Lauritzen v. Lehman

Decision Date05 July 1984
Docket NumberNos. 82-6020,82-6045,s. 82-6020
Citation736 F.2d 550
PartiesCarolyn R. LAURITZEN, Lesbian and Gay Community Center, San Diego, The Military Law Panel, National Lawyers Guild, San Diego, Plaintiffs-Appellees, v. Secretary of the Navy, John LEHMAN, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Susan McGreivy, Lorraine L. Loder, Los Angeles, Cal., for plaintiffs-appellees.

Robert Rubin, San Francisco, Cal., for amicus.

Nicholas Z. Zeppos, Dept. of Justice, Washington, D.C., for defendant-appellant.

Appeal from the United States District Court for the Central District of California.

Before SNEED and BOOCHEVER, Circuit Judges, and SOLOMON *, District Judge.

SNEED, Circuit Judge:

This appeal is from an order awarding attorney's fees pursuant to the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. We reverse and remand this case for further proceedings consistent with our decision.


Plaintiff Carolyn R. Lauritzen alleged in this action that she was threatened with discharge from the Navy and that her rank and pay were reduced as result of her statements to a Navy psychiatrist that she might have homosexual tendencies. Lauritzen sought damages and prospective relief on the grounds that the Navy's actions violated her constitutional rights. The district court issued a preliminary injunction and ordered Lauritzen to seek review of her discharge order from the Board for Correction of Naval Records (BCNR). The BCNR ordered that Lauritzen's file be purged of material pertaining to the intended discharge, and that her rank and pay be retroactively restored. Because the BCNR granted Lauritzen substantially all of the relief she had sought in the court action, the district court dismissed the case as moot.

Lauritzen requested an award of attorney's fees pursuant to sections 2412(b) and 2412(d)(1)(A) of EAJA. Section 2412(b) gives the court discretion to award fees to a prevailing party and provides that the United States "shall be liable ... 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." 1 In contrast to the discretionary awards under section 2412(b), section 2412(d)(1)(A) provides that attorney's fees shall be awarded to a party prevailing in a civil action against the government "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 2 The district court refused to award fees under section 2412(d)(1)(A) because it found that the government's position in the litigation was substantially justified. Lauritzen v. Secretary of the Navy, 546 F.Supp. 1221, 1226 (C.D.Cal.1982). Section 2412(b), the district court concluded, authorized a fee award because Lauritzen's claim was "virtually identical to an action under [42 U.S.C.] Sec. 1983, the only difference being that this action involves a federal official acting under the color of federal law." 546 F.Supp. at 1227. 3 The district court reasoned that because "a state official would be liable for fees under [42 U.S.C.] Sec. 1988 in a Sec. 1983 action alleging constitutional violations of the type asserted here, the United States should be held liable, pursuant to Sec. 2412(b), for attorney's fees equivalent to those available under Sec. 1988." 546 F.Supp. at 1227. The district court awarded fees totalling $20,267.50. The government filed a timely notice of appeal and Lauritzen filed a timely cross-appeal. We reject both the district court's reasoning and its conclusion.


Because this appeal raises issues concerning the proper interpretation of EAJA in awarding fees, our review is de novo. See Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1481 (9th Cir.1983).

A. The Fee Award Pursuant to Section 2412(b)

The government argues that section 2412(b) does not authorize fee awards in cases that are "analogous" to section 1983 suits. To clarify the contentions of the parties, we set forth the key sentence of section 1988 on which Lauritzen relies:

"In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318, or title VI of the Civil Rights Act of 1964, the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs."

Lauritzen interprets section 2412(b) as if section 1988 contained the following language after the phrase "and 1986 of this title":

any rights against the United States, its officials, or employees analogous to those protected by the foregoing sections,"

Insisting that section 1988 must be read as it is written, i.e., without this additional language, the government maintains that it may be liable for fees under that section only if it has violated a provision actually named therein. For example, if the government violates Title VI or Title IX, sections 2412(b) and 1988 would authorize a fee award against the United States. We agree with the government.

Our starting point is the language of section 2412(b). See, e.g., Reiter v. Sonotone Corp., 442 U.S. 330, 337, 99 S.Ct. 2326, 2330, 60 L.Ed.2d 931 (1979). It authorizes fee awards under the common law exceptions to the American rule that a party pays its own fees or "under the terms of any statute which specifically provides for such an award." 28 U.S.C. Sec. 2412(b) (emphasis added). The most nearly applicable such statute is section 1988. Lauritzen, as the district court acknowledged, 546 F.Supp. at 1224, could not obtain a fee award under the express language of section 1988, because she did not allege a violation of any of the specific provisions enumerated under that act. Other courts have held that in these circumstances fees should not be awarded under section 2412(b). E.g., Saxner v. Benson, 727 F.2d 669, 673 (7th Cir.1984); Unification Church v. INS, 574 F.Supp. 93, 96 (D.D.C.1983); United States v. Miscellaneous Pornographic Magazines, 541 F.Supp. 122, 127-29 (N.D.Ill.1981).

The district court, however, relied on the legislative history and policy of EAJA to give section 2412(b) a broader meaning that, in effect, expands the coverage of section 1988. The Eighth Circuit recently employed a similar approach to reach the same conclusions as did the district court here. See Premachandra v. Mitts, 727 F.2d 717, 727 (8th Cir.1984). We believe, however, that neither the legislative history nor the policy of EAJA compels a departure from the actual language of sections 2412(b) and 1988.

The primary purpose of Congress in enacting section 2412(b) was to apply the common law exceptions to the American rule to the federal government. See H.R.Rep. No. 1434, 96th Cong., 2d Sess. 25, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 5003, 5014. The House Report notes two cases that refused to apply common law exceptions to the government--Pealo v. Farmers Home Administration, 562 F.2d 744 (D.C.Cir.1977) (rejecting "common benefit" exception), and Rhode Island Committee on Energy v. General Services Administration, 561 F.2d 397 (1st Cir.1977) (refusing to apply "bad faith" exception). Immediately following, the Report states "[t]his subsection reflects the belief that at a minimum, the United States should be held to the same standard in litigating as other parties and that no justification exists for excepting the United States from fee awards in these limited situations." H.R.Rep. No. 1434, supra, at 17, 1980 U.S.Code Cong. & Ad.News at 4996.

That section 2412(b) might reach beyond these limits is suggested by the House Report, which observes that the section also makes the government "liable under the same standards which govern awards against other parties under Federal statutory exceptions, unless the statute expressly provides otherwise. This subsection clarifies the liability of the United States under such statutes as [section 1988], as well." Id. These comments, we believe, indicate that section 2412(b) authorizes fee awards against the United States under the terms of statutes allowing fees against "any party" or "any person." 4 This is the approach adopted in Natural Resources Defense Council v. EPA, 484 F.2d 1331, 1335-36 & n. 5 (1st Cir.1973) (allowing fee award against government under Sec. 304(a) of Clean Air Act), a case which House reports cite approvingly for the proposition that the history of section 2412 "reflects a strong movement by Congress toward placing the Federal Government and civil litigants on a completely equal footing." H.R.Rep. No. 1418, 96th Cong., 2d Sess. 9, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4987; H.R.Rep. No. 1434, supra, at 25, 1980 U.S.Cong. Code & Ad.News at 5014. We follow this approach here.

The district court, however, found that EAJA reaches further and authorizes fee awards in suits analogous to those brought against state officials under section 1983. In doing so it relied on the following circumstances. Senate Bill 265, as originally proposed in 1979, provided in section 2412(b) that the United States should be liable to the same extent as a "private party" would be liable. See Award of Attorneys' Fees Against the Federal Government: Hearings on S.265 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Judiciary Comm., 96th Cong., 2d Sess. at 3, 9 (1980) [hereinafter cited as "Hearings on S.265"]. After hearing testimony on S.265, a House subcommittee amended the proposed language of section 2412(b) so that the final version made the United States liable to the same extent as "any other party," rather than "a private party," would be liable. See H.R.Rep. No. 1418, supra, at 4.

Nothing in the legislative reports explains the reason for this change. The district court inferred that it was in response to...

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