Fitzgerald v. Hampton

• Decision Date: 15 June 1982
• Docket Number: Civ. A. No. 76-1486.
• Citation: 545 F. Supp. 53
• Parties: A. Ernest FITZGERALD, Plaintiff, v. Robert E. HAMPTON, et al., Defendants.
• Court: U.S. District Court — District of Columbia

545 F. Supp. 53

A. Ernest FITZGERALD, Plaintiff, v. Robert E. HAMPTON, et al., Defendants.

Civ. A. No. 76-1486.

United States District Court, District of Columbia.

March 31, 1982.

Settlement Agreement June 15, 1982.

John Bodner, Jr., Albert O. Cornelison, Jr., William L. Sollee, Washington, D.C., for plaintiff.

R. Lawrence Dessem, Anthony W. Norwood, U. S. Dept. of Justice, Civ. Div., Washington, D. C., for defendants.

MEMORANDUM AND ORDER

BRYANT, District Judge.

This case is before the court on plaintiff A. Ernest Fitzgerald's motion for attorney's fees. For the reasons set forth in this memorandum, the court grants plaintiff's motion.

I. HISTORY OF THE CASE

Plaintiff A. Ernest Fitzgerald was severed from his Air Force job in 1970, after he testified before Congress concerning costs of the C-5A transport plane.¹ Fitzgerald appealed his dismissal to the Civil Service Commission ("CSC"). The CSC concluded that Fitzgerald's dismissal resulted from "reasons that were personal to" Fitzgerald and directed the Air Force to restore Fitzgerald to his previous position as Deputy Assistant Secretary for Management Systems or to a position of equivalent grade, salary, tenure and qualifications. Decision on the Appeal of A. Ernest Fitzgerald, Sept. 18, 1973 at 20.

On December 3, 1973, the Air Force appointed Fitzgerald Deputy for Productivity Management in the office of the Assistant Secretary of the Air Force for Financial Management. Fitzgerald appealed to the CSC, claiming his new position violated the specific terms of the CSC decision of September 1973. The CSC upheld the Air Force decision to appoint Fitzgerald Deputy for Productivity Management. In the Matter of A. Ernest Fitzgerald, CSC Board of Appeals & Review, April 28, 1974. Fitzgerald filed an action in 1974, seeking review of the CSC's determination. Fitzgerald v. Civil Service Commission, C.A. NO. 74-686 (D.D.C. July 15, 1974), reconsideration denied, 383 F.Supp. 823 (D.D.C.1974). In response to a discovery motion in that case, the court, having before it the complete administrative record, decided to remand the case to the CSC "with direction to hold further hearings in accord with this order." Id., slip op. at 10. The CSC conducted further hearings and again upheld the Air Force's decision to appoint Fitzgerald Deputy for Productivity Management. Decision on the Appeal of A. Ernest Fitzgerald, June 18, 1976. Fitzgerald filed the present action to seek review of the CSC's 1976 determination.

On March 3, 1981, the court found that the CSC's failure to find that Fitzgerald had actually suffered a reduction in rank was arbitrary and capricious. The court directed the Air Force to reinstate Fitzgerald to his prior position or to a position of equivalent status, and to submit to the court, no later than 30 days from the date of the order, the official job description for any position proposed for the plaintiff. Memorandum and Order, March 3, 1981 at 22.

During the course of this litigation, documents absent from the administrative record came to the attention of counsel and the court. On January 10, 1978, Fitzgerald filed a request for production of these documents, and a motion for the entry of an order to prevent their destruction. In subsequent pleadings, Fitzgerald alleged that the withholding of the documents was deliberate; and sought sanctions, costs, and attorney's fees against the Air Force, Air Force counsel, and the CSC. Plaintiff's Third Supplemental Response to Defendants' Opposition to Plaintiff's Motion to Strike at 19. Fitzgerald also requested costs and attorney's fees "for all prior litigation" because of "vexatious and harassing" government conduct. Id. at 20.

In its March 3, 1981 order, the court stayed Plaintiff's Request for Production of Documents and Plaintiff's Motion for Entry of an Order to Prevent Destruction of Documents pending submission of supplemental briefs on the question of sanctions and the award of costs and attorney's fees. Memorandum and Order, March 3, 1981 at 22.² After review of the submitted briefs, the court concludes that Air Force officials' bad faith flouting of a clear CSC mandate to restore Fitzgerald to an equivalent position warrants an award of attorney's fees to Fitzgerald.³ As the following discussion indicates, the conduct warranting an attorney's fees award was that of Air Force officials, not of individual Air Force counsel or the CSC,⁴ so that the award granted in this case is against the Air Force alone. See 28 U.S.C. § 2412(c)(2).

II. JURISDICTION FOR A FEE AWARD

Until October 1, 1981, 28 U.S.C. § 2412 prohibited the imposition of expenses and attorney's fees upon the United States, except as authorized by other statutes. The Equal Access to Justice Act, Pub.L.No. 96-481, Title II, § 204(a), 94 Stat. 2327 (October 21, 1980), amended § 2412 to authorize recovery of expenses and attorney's fees from the United States in certain circumstances. This amendment affects civil actions and adversary adjudications which were pending on, or commenced on or after October 1, 1981.

As of October 1, 1981, the court had not entered a final judgment in this case.⁵ The March 3, 1981 order contemplated a subsequent ruling on the sufficiency of the proposed job description submitted by the Air Force. In addition, the March 3 order stayed Plaintiff's Request for Production of Documents and Plaintiff's Motion for Entry of an Order to Prevent Destruction of Documents pending the submission of additional briefs. Accordingly, this action was pending on October 1, 1981 and the court may award § 2412 attorney's fees, where appropriate, for services rendered throughout the course of the litigation. Photo Data, Inc. v. Sawyer, 533 F.Supp. 348 (D.D. C.1982), excerpted in 50 U.S.L.W. 2501 (1982) and cases cited therein at n.5.

III. THE BAD FAITH STANDARD FOR A FEE AWARD

The Equal Access to Justice Act permits attorney's fees awards in actions against the United States in two different circumstances. Section 2412(b) renders the United States liable for attorney's fees "to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award."⁶ Section 2412(d) renders the United States liable for attorney's fees "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."⁷ Since Fitzgerald has not applied for § 2412(d) fees, this court may consider only whether the United States is liable to Fitzgerald under 28 U.S.C. § 2412(b).⁸

The general "American rule" bars prevailing litigants from recovering attorney's fees from the losing party. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 247, 95 S.Ct. 1612, 1616, 44 L.Ed.2d 141 (1974). There are four exceptions to this rule. Attorney's fees may be recovered when specifically authorized by statute or contract; when a party has conferred a common benefit by recovering a fund or property; when a party has willfully disobeyed a court order; and when the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Id. at 257-59, 95 S.Ct. at 1621-23. 28 U.S.C. § 2412(b) was enacted so that the United States would no longer be exempt from an attorney's fee award in these four situations. H.R.Rep.No. 1418, 96th Cong., 2d Sess. 9 (1980), reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4987.

Usually the "bad faith" exception to the "American rule" is triggered by conduct which occurs during the course of the litigation and constitutes "insult added to injury." See, e.g., Adams v. Carlson, 521 F.2d 168 (7th Cir. 1975); Townsend v. Edelman, 518 F.2d 116 (7th Cir. 1975); Lichtenstein v. Lichtenstein, 481 F.2d 682 (3d Cir. 1973), cert. denied, 414 U.S. 1144, 94 S.Ct. 895, 39 L.Ed.2d 98 (1974); Kahan v. Rosenstiel, 424 F.2d 161 (3d Cir.), cert. denied, 398 U.S. 950, 90 S.Ct. 1870, 26 L.Ed.2d 290 (1970). In a few cases the award has been for activity which formed the basis for the suit. See, e.g., Rolax v. Atlantic Coast Line R. Co., 186 F.2d 473 (4th Cir. 1951); Schlein v. Smith, 160 F.2d 22 (D.C.Cir.1947). And in some instances awards have been made for vexatious conduct which occurred before litigation actually commenced. See, e.g., Vaughan v. Atkinson, 369 U.S. 527, 82 S.Ct. 997, 8 L.Ed.2d 88 (1962); Fairley v. Patterson, 493 F.2d 598, 606 (5th Cir.1974); Sims v. Amos, 340 F.Supp. 691 (M.D.Ala.), aff'd summarily, 409 U.S. 942, 93 S.Ct. 290, 34 L.Ed.2d 215 (1972).⁹

Prelitigation conduct provides the basis for an award of attorney's fees when a party, confronted with a clear statutory or judicially-imposed duty towards another, is so recalcitrant in performing that duty that the injured party is forced to undertake otherwise unnecessary litigation to vindicate plain legal rights. In Vaughan v. Atkinson, the seminal case allowing recovery of fees for prelitigation vexation, a seaman was hospitalized for tuberculosis shortly after he stopped working on the respondent shipowner's vessel. Although the seaman forwarded his hospital record to the shipowner, the owner's only investigation of the seaman's claim for maintenance and cure was an interrogation of the vessel's Master and Chief Engineer. The owner did not conduct any further investigation and did not bother even to admit or deny the validity of the seaman's claim. Although the seaman suffered no damages from the owner's failure to pay maintenance until ordered to do so by the court, the Court allowed attorney's fees because:

In the instant case respondents were callous in their attitude, making no investigation of libellant's claim and by their silence neither admitting nor denying it. As a result of that recalcitrance, libellant was forced to hire a lawyer and go to court to get what was plainly owed him under laws that are centuries old.... It is difficult to imagine a clearer case of damages suffered for failure to

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