Haitian Refugee Center v. Meese

• Decision Date: 24 June 1986
• Docket Number: No. 84-5679,84-5679
• Citation: 791 F.2d 1489
• Parties: HAITIAN REFUGEE CENTER, an unincorporated, not for profit organization, Plaintiffs-Appellees, v. Edwin MEESE, III * , Attorney General of the United States, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1489

791 F.2d 1489

HAITIAN REFUGEE CENTER, an unincorporated, not for profit

organization, Plaintiffs-Appellees, v. Edwin MEESE, III ^*, Attorney General of the

United States, et al., Defendants-Appellants.

No. 84-5679.

United States Court of Appeals, Eleventh Circuit.

June 24, 1986.

Leon Kellner, U.S. Atty., Miami, Fla., William Kanter, Appellate Staff, Civil Div., Dept. of Justice, Michael Jay Singer, Washington, D.C., for defendants-appellants.

Thomas R. Kline, Brown, Roady, Bonvillian & Gold, Chartered, Mary D. Dick, Washington, D.C., Ira Kurzban, Miami, Fla., for plaintiffs-appellees.

Appeal from the United States District Court for the Southern District of Florida.

Before CLARK, Circuit Judge, HENDERSON ^**, Senior Circuit Judge, and HOFFMAN ^***, Senior District Judge.

WALTER E. HOFFMAN, Senior District Judge:

This is an appeal from an interim award of attorneys' fees under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(d) (1982) (EAJA). EAJA was amended, effective August 5, 1985, with the passage of Public Law 99-80. Section 7 of that law provides:

(a) In General.--Except as otherwise provided in this section the amendments made by this Act shall apply to cases pending on or commenced on or after the date of the enactment of this Act.

(b) Applicability of Amendments to Certain Prior Cases.--The amendments made by this Act shall apply to any case commenced on or after October 1, 1984, and finally disposed of before the date of the enactment of this Act, except that in any such case, the 30-day period referred to in section 504(a)(2) of Title 5, United States Code, or section 2412(d)(1)(B) of Title 28, United States Code, as the case may be, shall be deemed to commence on the date of the enactment of this Act.

Paragraph (a) clearly applies to the present case, which has been pending since 1979. Paragraph (b) applies to those cases which were initiated after the sunset provision of the original EAJA took effect on September 30, 1984, and before the amendments were enacted. Consequently Paragraph (b) has no relevance to the case before this court.

On May 9, 1979, the Haitian Refugee Center and eight individual Haitians brought a class action on behalf of over 4,000 Haitians who had petitioned for political asylum in this country. The suit challenged the legality of the "Haitian Program." This program was instituted by the Immigration and Naturalization Service (INS) in the summer of 1978 to accelerate the processing of the applications made by Haitians for asylum. After a non-jury trial, the district court, in a lengthy opinion dated July 2, 1980, found for the plaintiffs. Haitian Refugee Center v. Civiletti, 503 F.Supp. 442 (S.D.Fla.1980) (hereinafter Haitian I).

The district court ordered the government to submit a plan for reprocessing the applications for asylum to the court for its approval. The district court also enjoined further deportation proceedings against class members until the reprocessing plan had been approved by the court. The government then filed a Motion to Enter Judgment pursuant to Fed.R.Civ.P. 58. The district court denied the government's motion on August 11, 1980, ruling that its July 2, 1980, order was "far from final." The government then filed its Notice of Appeal on August 27, 1980, and subsequently submitted its reprocessing plan to the district court on December 24, 1980.

On appeal, this court ¹ affirmed the district court's decision with some modifications on May 24, 1982. Haitian Refugee Center v. Smith, 676 F.2d 1023 (5th Cir. Unit B 1982) (hereinafter Haitian II), and our mandate was issued on July 28, 1982.

After the appeal, between August 18, 1982, and March 1, 1983, the plaintiffs filed applications for attorneys' fees pursuant to EAJA. The matter was referred to a U.S. Magistrate, who recommended that attorneys' fees and costs should be allowed in the amount of $221,873.86. The district court adopted the Magistrate's report with some modifications and awarded a total of $441,094.98. The government appeals this award on a number of grounds.

Appealability

Before reaching the merits of the case, it is necessary to determine whether the district court's order awarding attorneys' fees is an appealable order. The Court raised this issue sua sponte during oral argument, and the parties have submitted supplementary briefs on the issue.

This appeal was taken under 28 U.S.C. Sec. 1291, which provides that courts of appeal have "jurisdiction of appeals from all final decisions of the district courts" of the United States. 28 U.S.C. Sec. 1291. The difficulty arises in this case because the district court has yet to enter a final judgment. Therefore, the question becomes whether the award of attorneys' fees in this case is a "final decision" within the meaning of Sec. 1291.

The Supreme Court has stated that this provision in the statute should be given a practical, rather than technical, construction. Cohen v. Beneficial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949). The Supreme Court has stated that the "effect of the statute is to disallow appeal from any decision which is tentative, informal or incomplete ... So long as the matter remains open, unfinished or inconclusive, there may be no intrusion by appeal ... Nor does the statute permit appeals, even from fully consummated decisions, where they are but steps towards final judgment in which they will merge." Id. at 546, 69 S.Ct. at 1225.

In the Cohen case, the plaintiff brought a stockholder's derivative action as a diversity suit in the federal court. The district court refused to order the plaintiff to post security for the costs of the litigation as required by state statute. The Supreme Court ruled that the decision was appealable because it fell into that small class of decisions "which finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1225-26.

A decision "final" within the meaning of Sec. 1291 does not necessarily mean the last order that could possibly be made in the case. Gillespie v. U.S. Steel Corp., 379 U.S. 148, 152, 85 S.Ct. 308, 311, 13 L.Ed.2d 199 (1964). In "deciding the question of finality the most important competing considerations are 'the inconvenience and costs of piecemeal review on the one hand and the danger of denying justice by delay on the other.' " Id. at 152-53, 85 S.Ct. at 311 (quoting Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 511, 70 S.Ct. 322, 324, 94 L.Ed. 299 (1950)).

The Court further stated in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), that to "come within the 'small class' of decisions excepted from the final judgment rule by Cohen, the order must conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment." Id. at 468, 98 S.Ct. at 2458.

It is clearly evident that the district court's order awarding attorneys' fees is appealable under Cohen and its progeny. The court's award finally disposes of the issue of attorneys' fees for litigating the case until this point. Whether the plaintiffs are entitled to an award of attorneys' fees under the EAJA is separate and collateral to the litigation on the merits. This court has implicitly ruled that such orders are appealable in Jonas v. Stack, 758 F.2d 567 (11th Cir.1985). Therefore, we hold that the district court's order awarding attorneys' fees is a final decision and is appealable under Cohen.

Timeliness

The government contends that the applications for attorneys' fees were untimely filed and therefore should be denied. The EAJA provides, in pertinent part:

A party seeking an award of fees and other expenses shall, within 30 days of final judgment in the action, submit to the court an application for fees and other expenses.

28 U.S.C. Sec. 2412(d)(1)(B).

The EAJA is a waiver of sovereign immunity, and as such it must be strictly construed. Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984). The condition that the applications for attorneys' fees must be filed within 30 days of the final judgment in the action is jurisdictional. Id. at 225; Clifton v. Heckler, 755 F.2d 1138, 1144 (5th Cir.1985). "The United States, as sovereign, is immune from suit save as it consents to be sued, and the terms of its consent to be sued in any court define that court's jurisdiction to entertain the suit." United States v. Sherwood, 312 U.S. 584, 61 S.Ct. 767, 85 L.Ed. 1058 (1941) (citations omitted). Therefore, if the applications were untimely filed, the district court lacked jurisdiction to award any attorneys' fees.

The government contends that this court's decision in Haitian I was the "final judgment" within the meaning of the EAJA. That decision was issued on May 24, 1982, with our mandate not being issued until July 21, 1982. The first application was not filed until August 18, 1982. Therefore, according to the government, the applications were untimely filed because they were filed more than thirty days after May 24, 1982.

Courts interpreting the language of the original EAJA are divided regarding the initiation of the 30-day time period. Some courts have held that it begins when the district court enters its final judgment order. See McQuiston v. Marsh, 707 F.2d 1082, 1085 (9th Cir.1983); Paskel v. Heckler, 581 F.Supp. 15 (E.D.Pa.1984), but other courts have held that the 30 days begin to run only once the time for any appeal has expired. See Russell v. National Mediation Board, 775 F.2d 1284 (5th Cir.1985); McDonald v. Schweiker, 726 F.2d 311 (7th Cir.1983); Taylor v. United States, 749 F.2d 171, 174 (3d Cir.1984); Rawlins v. United...