Ellis v. U.S.

• Decision Date: 13 July 1983
• Docket Number: 83-724,Nos. 83-556,s. 83-556
• Citation: 711 F.2d 1571
• Parties: LeRoy H. ELLIS, Appellant, v. The UNITED STATES, Appellee. Appeal
• Court: U.S. Court of Appeals — Federal Circuit

Page 1571

711 F.2d 1571

LeRoy H. ELLIS, Appellant, v. The UNITED STATES, Appellee.

Appeal Nos. 83-556, 83-724.

United States Court of Appeals Federal Circuit.

July 13, 1983.

Paul F. Stack, Chicago, Ill., argued for appellant. With him on brief was Robert A. Filpi, Chicago, Ill., of counsel.

Velta A. Melnbrencis, New York City, argued for appellee. With her on brief were J. Paul McGrath, Asst. Atty. Gen. and David M. Cohen, Director, Washington, D.C.

Before MARKEY, Chief Judge, and DAVIS and BALDWIN, Circuit Judges.

DAVIS, Circuit Judge.

LeRoy H. Ellis appeals from a judgment of the United States Claims Court denying his application for attorney's fees and costs pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (Supp. V 1981). That court declined to award attorney's fees and costs to appellant because, in its view, the government's litigation position was "substantially justified." We affirm in part and reverse in part.

I

Appellant's application for attorney's fees and costs follows upon his long-pending effort to recover his hazardous duty retirement annuity in the Court of Claims. The detailed facts are reported in previous opinions of that court. Ellis v. United States, 610 F.2d 760 (Ct.Cl.1979) (Ellis I ); Ellis v. United States, 657 F.2d 1178 (Ct.Cl.1981) (Ellis II ). For our purposes, a brief summary of the litigation will suffice.

For over twenty years, Ellis served as a civilian fire chief at the Great Lakes Naval Training Center in Illinois. In October 1975, he retired and claimed his hazardous duty retirement annuity in accordance with 5 U.S.C. § 8336(c)(1) (Supp. V 1981). ¹ The Navy accepted his retirement under this "firefighter" statute and Ellis entered the private work-force. However, the then Civil Service Commission later denied (in March 1976) entitlement to that annuity on the grounds that he was not a "firefighter" within the meaning of the statute, but a "supervisor." Consequently, Ellis returned to duty at Great Lakes in April 1976, and in 1978 filed suit in the Court of Claims to recover the claimed annuity. On cross-motions for summary judgment, the court held that Ellis fit the statutory description of "firefighter" and thus was entitled to hazardous duty annuity payments. Ellis I, supra, 610 F.2d at 764-65. ² The court then remanded the case to the Trial Division for calculation of the annuity judgment.

On remand, the trial judge recommended that appellant had, constructively, the status of a reemployed annuitant from the time of his return to duty in 1976 to his second retirement in 1980. By 5 U.S.C. § 8344, if he had been an actual reemployed annuitant, an amount equal to his annuity would have been deducted from the active duty salary and returned to the Retirement and Disability Fund so that, in effect, the reemployed annuitant netted only the active duty salary and got no benefit from the annuity. Accordingly, the trial judge allowed nothing for the annuity during that period, ceasing the annuity recovery as of the date of return to duty.

Appellant filed exceptions to this recommended decision. The Court of Claims held that 5 U.S.C. § 8344 was literally inapplicable and should not be applied constructively. It was literally inapplicable because he was not in fact receiving the annuity, the only case § 8344 covered. Therefore, the entire amount of unpaid annuity that accrued while appellant was reemployed was to be added to his recovery without offset for any of his active duty pay. Ellis II, supra.

Following his successful challenge to the trial judge's calculation of damages, appellant applied for attorney's fees and costs under the EAJA on November 18, 1981, seeking these expenses for both the liability and the damages phases of the proceedings. This application, filed while the Court of Claims was still in existence, was transferred by statute on October 1, 1982, to the Claims Court. That court ruled in November 1982 that the government's position in both phases was substantially justified and accordingly denied the application. Ellis v. United States, 1 Cl.Ct. 6, 11, 550 F.Supp. 674, 680 (1982).

II

The Equal Access to Justice Act provides, in relevant part, that a prevailing party shall recover fees and other expenses in any civil action against the United States from "any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified...." 28 U.S.C. § 2412(d)(1)(A) (Supp. V 1981). "Fees and other expenses" include reasonable attorney's fees. Id. § 2412(d)(2)(A). As the Claims Court correctly noted, the EAJA applies to this case, as it was pending in the Court of Claims on that statute's effective date. See Kay Manufacturing Co. v. United States, 699 F.2d 1376, 1378 (Fed.Cir.1983); Knights of the Ku Klux Klan v. East Baton Rouge, 679 F.2d 64, 67-68 (5th Cir.1982); Photo Data, Inc. v. Sawyer, 533 F.Supp. 348, 351 (D.D.C.1982).

Appellee urges initially that no attorney's fees can be awarded in this case because the Claims Court, said not to be a "court of the United States," is without jurisdiction to award fees under the EAJA. ³ That argument misses the mark. Properly formulated, the real question here is whether the Claims Court and this court have jurisdiction to determine the propriety of a fee award in a so-called "transition" matter, begun before the Court of Claims, carried over by statute to the Claims Court, and then decided by the latter after October 1, 1982. See Aleut Tribe v. United States, 702 F.2d 1015, 1018 (Fed.Cir.1983).

Neither party now disputes the fact that the Court of Claims properly assumed jurisdiction of the merits of Ellis' claim for his hazardous duty retirement annuity. As we point out infra, the Court of Claims also had power to award fees under the EAJA. When the Federal Courts Improvement Act of 1982 (Pub.L. No. 97-164, 96 Stat. 25) became effective on October 1, 1982, it designated the new Claims Court to be the forum for the resolution of a class of cases then pending in the Court of Claims. Section 403(d) of the Improvement Act provides that "[a]ny matter pending before a commissioner of the United States Court of Claims on the effective date of this Act ... shall be determined by the United States Claims Court" (emphasis added). Unlike § 403(a) of the Act, see infra note 5, § 403(d) is not merely a transfer provision requiring an independent basis for jurisdiction. Cf. Aleut Tribe, supra, 702 F.2d at 1018. The plain language of § 403(d) requires the Claims Court to determine, or issue final decisions, on matters such as the present fee application that were pending in the Court of Claims on September 30, 1982. The legislative history noted simply that § 403 "provides for the orderly disposition of cases pending on the effective date of the bill." S.Rep. No. 275, 97th Cong., 2d Sess. 32 (1981), U.S.Code Cong. & Admin.News 1982, pp. 11, 42. Nothing in the Improvement Act or in its legislative history suggests that appellant would be divested of the opportunity to pursue an award of fees and costs because of the transfer provisions contained in the Act. On the contrary, Congress intended, at least with respect to matters pending undecided before the Court of Claims on September 30, 1982, to transfer such matters to the Claims Court--which then would have all the authority the predecessor court had to issue final decisions.

There is no doubt that both the Court of Claims and this court could and can award fees under the EAJA. For the Court of Claims, see 28 U.S.C. § 2412(d)(1)(A) (Supp. V 1981); id. § 1920 (1976 & Supp. V 1981); id. § 451 (1976 & Supp. V 1981). On several occasions, that court considered the merits of EAJA awards. Estate of Berg v. United States, 687 F.2d 377, 383 (Ct.Cl.1982); Papson v. United States, No. 602-80T, slip op. at 2-3 (Ct.Cl. June 18, 1982) (order). This court is likewise indisputably empowered by statute to award fees under the EAJA and costs (see 28 U.S.C. §§ 451, 1920, 2412(a), (d) (1976 & Supp. V 1981)) and it has reviewed the merits of EAJA awards assessed against the United States by the Claims Court in other transition cases similar to this dispute. See Kay Manufacturing, supra, 699 F.2d at 1377; Gava v. United States, 699 F.2d 1367, 1368 (Fed.Cir.1983). We hold, therefore, that both the Claims Court and this court possess jurisdiction to determine whether an EAJA award is proper in fee applications transferred from the Court of Claims to the Claims Court by § 403(d) of the Improvement Act, and decided by the Claims Court on or after October 1, 1982.

Aleut Tribe, supra, is not to the contrary. Appellant in that case attempted to pursue an interlocutory appeal from the Claims Court to this court, though it failed to comply with any of the necessary prerequisites ⁴ to establish our jurisdiction over such an appeal. Instead, the Tribe contended that § 403(a) of the Improvement Act ⁵ provided us with a new basis of jurisdiction to review interlocutory orders of the Claims Court. We rejected this interpretation of § 403(a) because Congress did not intend, in enacting that section, to confer a new right of interlocutory appeal upon appellants who neglect to seek proper certification. See supra note 5. Thus we held in Aleut Tribe that § 403(a) did not provide us with jurisdiction to hear the appeal. See Aleut Tribe, supra, 702 F.2d at 1021.

Here, in contrast, the Claims Court was required by the terms of § 403(d) to determine the merits of the fee application after the effective date of the Improvement Act. That court issued a final decision on the merits which is now properly appealable under the jurisdictional provisions of the Act. See § 127(a) of the Improvement Act (to be codified at 28 U.S.C. § 1295(a)(3). In short, Aleut Tribe does not preclude our jurisdiction over final decisions of the Claims Court, whether or not that court received the case for determination under § 403(d). Aleut merely...