Jones v. Lujan, 88-5229

• Decision Date: 17 October 1989
• Docket Number: No. 88-5229,88-5229
• Citation: Jones v. Lujan, 887 F.2d 1096 (D.C. Cir. 1989)
• Parties: , 281 U.S.App.D.C. 105 David E. JONES, Appellee, v. Manuel LUJAN, Jr., in his official capacity as Secretary of Interior, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 1096

887 F.2d 1096

107 A.L.R.Fed. 873, 281 U.S.App.D.C. 105

David E. JONES, Appellee, v.Manuel LUJAN, Jr., in his official capacity as Secretary of Interior, Appellant.

No. 88-5229.

United States Court of Appeals District of Columbia Circuit.

Oct. 17, 1989.

On a Motion for Award of Attorney Fees(Civil ActionNo. 87-02466).

Michael Jay Singer, Atty., Dept. of Justice, with whom Victoria F. Nourse, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellant.

David E. Jones, pro se Atty.

Before MIKVA, EDWARDS and SILBERMAN, Circuit Judges.

Opinion for the Court filed PER CURIAM.

Dissenting Opinion filed by Circuit Judge SILBERMAN.

PER CURIAM:

This case is before the panel for the second time on a claim for attorney fees.In our initial opinion, Jones v. Lujan, 883 F.2d 1031(D.C.Cir.1989)("Jones I "), aff'gJones v. Hodel, 685 F.Supp. 4(D.D.C.1988), we affirmed the judgment of the District Court awarding fees to the appellee, David Jones, under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. Sec. 2412(d)(1)(A)(Supp. V 1987).In Jones I, we held that fees were due the appellee because the Government's litigating position and the underlying action that spawned the civil litigation were not "substantially justified" under section 2412(d)(1)(A) of EAJA.The appellee now seeks fees incurred in the course of defending against the Government's appeal on his original fee award.The Government opposes this request for "fees for fees," on the ground that its appeal from the District Court's judgment was substantially justified.

We hold that the Government cannot avoid paying fees for fees under the circumstances of this case.The Government's litigation position on appeal in Jones I was no different from the one before the District Court, and we found that position not to be "substantially justified" under EAJA.Furthermore, the question that the Government raises here (i.e., whether pro se lawyers may claim fees under EAJA) is precisely the same question on which the District Court and this court already have ruled in favor of the appellee.Therefore, the Government's opposition to the present application for fees is plainly without merit.The settled law of this and other circuits is that EAJA permits fees for fees.Accordingly, because we find the appellee's request to be fully justified, the application for fees is granted.

I.BACKGROUND

This case has its origins in David Jones' pro se action against the Secretary of the Department of the Interior seeking to compel the agency to comply with its own grievance procedures.The District Court awarded the injunctive relief Jones sought, and the agency eventually complied with its own procedures.Jones then applied to the District Court for attorney fees under EAJA.The District Court granted the application, concluding that Jones was a prevailing party under EAJA and that the Government had not met its statutory burden of proving that its litigation position and its underlying action were "substantially justified."We affirmed the District Court's decision, holding that the literal language of EAJA made it clear that a pro se attorney is entitled to fees.SeeJones I, 883 F.2d at 1034.

Jones now applies for attorney fees incurred in the course of defending against the Government's appeal of the fee award granted by the District Court.The Government contends that this court should not grant Jones' request for fees for the appeal, because the appeal itself was reasonable and thus "substantially justified" within the terms of EAJA.

II.ANALYSIS

A."Substantially Justified " Under EAJA

Under EAJA, a prevailing party may recover attorney fees unless the "position of the United States" is "substantially justified."EAJA states, in relevant part, that:

[A]court shall award to a prevailing party other than the United States fees and other expenses ... incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.

28 U.S.C. Sec. 2412(d)(1)(A)(Supp. V 1987).Prior to the 1985amendments to EAJA, there was some doubt among the circuits about the meaning of "position of the United States,"seeRawlings v. Heckler, 725 F.2d 1192, 1195(9th Cir.1984); however, it is now clear that this phrase comprehends both the Government's underlying action and its litigation position.EAJA defines "position of the United States" to mean, "in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based."28 U.S.C. Sec. 2412(d)(2)(D)(Supp. V 1987).¹

The meaning of "substantially justified" in EAJA is now equally well settled.In Pierce v. Underwood, 487 U.S. 552, 108 S.Ct. 2541, 101 L.Ed.2d 490(1988), the Supreme Court stated that "substantially justified" means "justified to a degree that could satisfy a reasonable person," or having a "reasonable basis both in law and fact."Seeid.108 S.Ct. at 2550;cf.Trahan v. Regan, 866 F.2d 1424(D.C.Cir.1988)(order en banc)(notingSupreme Court's rejection in Pierce of this circuit's "slightly more than reasonable" explication of EAJA"substantially justified" test).

Under this settled statutory scheme, whenever the Government contests an application for fees under EAJA, it must address two issues: first, whether the agency's underlying action that gave rise to the civil litigation is substantially justified; second, whether its position in the civil litigation is substantially justified.The Government bears the burden of proof on both issues.SeeWilkett v. Interstate Commerce Commission, 844 F.2d 867, 871(D.C.Cir.1988).²

B.Application of the "Substantially Justified" Test

1.The Government's Position Before the District Court

In contesting Jones' application for attorney fees before the District Court, the Government argued that both its underlying action and its litigation position was substantially justified.The underlying action was the way in which the Department of the Interior handled the dismissal of an employee under its own grievance procedures.The litigation position was the Government's contention that a pro se attorney could not recover fees under EAJA.The District Court concluded that neither the Government's underlying action nor its the litigation position was substantially justified within the meaning of EAJA.³The Government appealed to this court.

2.The Government's Position Before This Court in Jones I

On appeal to this court, the Government did not contest the District Court's finding that its underlying action was not substantially justified.SeeJones I, 883 F.2d at 1033 n. 3.Its sole claim on appeal was that its litigation position--that a pro se attorney could not recover fees under EAJA--was substantially justified.We rejected that claim, holding that the literal language of EAJA made it clear that a pro se attorney may claim fees under the statute.SeeJones I, 883 F.2d at 1034.

3.The Government's Argument in Opposition to "Fees for Fees"

Jones has now applied to this court for EAJA attorney fees incurred in defending against the Government's appeal of his fee award by the District Court.The Government asserts that its appeal of the District Court's grant of EAJA fees was reasonable, and therefore "substantially justified," and that we should therefore reject Jones' application for "fees for fees."

The Government does not argue that one cannot recover fees for fees; ⁴ rather, it argues that "Appellee's application for fees should be denied because no fee is authorized by the terms of the [EAJA],"Defendant-Appellant Opposition to Application for Attorneys' Fees, Jones v. Lujan, No. 88-5229(D.C.Cir.)(filed Aug. 10, 1989)("Government Opposition")at 2, and refers to "the government's position in this case--that pro se lawyers are not entitled to fees under EAJA,"id. at 3.That is precisely the question on which both the District Court and this court have already ruled.We held in Jones I that this litigation position was plainly at odds with the literal language of EAJA.SeeJones Iat 1034("the literal language of EAJA covers an award of fees for services performed by Jones");id. at 1034(EAJA is "facially clear" regarding Jones' entitlement to fees);cf.id. at 1035(cases cited by Government found to be inapposite since they involved only pro se litigants, not pro se attorneys).⁵Thus, the Government's present Opposition is nothing more than an attempt to reargue a point that was lost on the original appeal.This surely cannot furnish a basis to defeat an otherwise valid application for fees for fees.

In an effort to bolster an obviously flawed position, the Government argues that "[g]iven conflicting precedent in the Circuits dealing with similar cases," its litigation position in its original appeal--that EAJA does not entitle pro se lawyers to fees--was "eminently reasonable," and, therefore, substantially justified.SeeGovernment Oppositionat 3.It does remain good law in this circuit that the "clarity of the governing law" is one factor a court may consider in determining whether the Government's litigation position is substantially justified.SeeSpencer v. National Labor Relations Board, 712 F.2d 539, 559(D.C.Cir.1983).However, this legal principle does not help the Government here, for the Government has had its day in court on the issue of whether the law regarding pro se attorney fee recovery under EAJA was unclear enough to make its position substantially justified.Indeed, in support of its opposition, the Government has cited many of the same cases already considered in Jones I. CompareJones I, at 1034withGovernment Oppositionat 3.In holding that those cases were inapposite on a...