Lauritzen v. Secretary of the Navy, CV 81-879 AWT.

• Decision Date: 09 September 1982
• Docket Number: No. CV 81-879 AWT.,CV 81-879 AWT.
• Court: U.S. District Court — Central District of California
• Parties: Carolyn R. LAURITZEN, Plaintiff, v. SECRETARY OF THE NAVY, Defendant.

546 F. Supp. 1221

Carolyn R. LAURITZEN, Plaintiff, v. SECRETARY OF THE NAVY, Defendant.

No. CV 81-879 AWT.

United States District Court, C. D. California.

September 9, 1982.

COPYRIGHT MATERIAL OMITTED

Susan McGreivy, Fred Okrand, ACLU Foundation of Southern California, William G. Smith, Los Angeles, Cal., for plaintiff.

Stephen S. Trott, U. S. Atty., Frederick M. Brosio, Jr., Asst. U. S. Atty., Chief, Civ. Div., Herbert W. Booker, Asst. U. S. Atty., Los Angeles, Cal., for defendant.

MEMORANDUM OPINION

TASHIMA, District Judge.

Plaintiff Carolyn R. Lauritzen alleged in this action that she was threatened with discharge from the Navy and that her rank and pay had been reduced as a result of her statements to a Navy psychiatrist that she might have homosexual tendencies. Plaintiff sought damages and injunctive and declaratory relief, on the ground that the Navy's past and threatened actions violated her rights under the First, Fourth, Fifth, Sixth and Ninth Amendments to the United States Constitution.

A temporary restraining order was issued by the Court enjoining plaintiff's discharge from the Navy pending a hearing on her request for a preliminary injunction. Before that hearing was held, Lauritzen amended her complaint, purporting to join as additional plaintiffs the Lesbian and Gay Community Center of San Diego and the Military Law Task Force of the National Lawyers Guild of San Diego. No motion was made, however, to join these parties pursuant to Rule 21, Fed.R.Civ.P. Plaintiff's request for a preliminary injunction was granted; however, plaintiff was ordered, pending a trial on the merits, to seek review of the order that she be discharged from the Board for the Correction of Naval Records ("BCNR"). The BCNR, on application of plaintiff, ordered that Lauritzen's file be purged of material pertaining to her intended discharge, and that her rank and pay appropriate thereto be retroactively restored. Since plaintiff Lauritzen had received from the BCNR substantially all of the relief she sought in this action, the Court, pursuant to an order to show cause and cross-motions by the parties, dismissed this case as moot as to her. The other putative plaintiffs were dismissed for lack of standing under Article III of the U. S. Constitution.

This matter is now before the Court on plaintiff's application for attorney's fees, made pursuant to the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988, and § 204(a) of the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412. For the reasons set forth below, the Court concludes that plaintiff cannot recover fees directly under 42 U.S.C. § 1988, but that she is entitled to an award pursuant to § 204(a) of the EAJA, 28 U.S.C. § 2412.

I. Civil Rights Attorney's Fees Award Act of 1976

The Civil Rights Attorney's Fees Award Act of 1976 amended 42 U.S.C. § 1988 so as to provide in relevant part:

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 in any civil action or proceeding, by or on behalf of the United States of America, to enforce, or charging a violation of, a provision of the United States Internal Revenue Code, 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.¹

Plaintiff did not bring this action to enforce any of the specific provisions (i.e., § 1981, etc.) enumerated in § 1988. Instead, she claimed a right to relief directly under the United States Constitution and under Bivens v. Six Unknown Named Agents, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971) (recognizing private damage action for Fourth Amendment violations by federal officers). See also Davis v. Passman, 442 U.S. 228, 99 S.Ct. 2264, 60 L.Ed.2d 846 (1979) (Fifth Amendment). Accordingly, plaintiff cannot obtain attorney's fees directly under 42 U.S.C. § 1988.

II. Equal Access to Justice Act

Plaintiff also seeks to recover fees under the EAJA. This motion presents previously undecided questions regarding the applicability of this recent legislation² to actions brought against federal officers for violations of the federal Constitution.

The EAJA substantially broadens the liability of the United States for attorney's fees in civil actions and adversarial administrative adjudications. As stated in the Report of the House Committee on the Judiciary, H.R.Rep.No.1418, 96th Cong., 2d Sess., reprinted in 1980 U.S.Code Cong. & Ad. News 4984 (hereinafter "House Report"), the general purposes underlying the enactment of the EAJA were as follows:

The bill rests on the premise that certain individuals, partnerships, corporations and labor and other organizations may be deterred from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights. The economic deterrents to contesting governmental action are magnified in these cases by the disparity between the resources and expertise of these individuals and their government. The purpose of the bill is to reduce the deterrents and disparity by entitling certain prevailing parties to recover an award of attorney fees, expert witness fees and other expenses against the United States, unless the Government action was substantially justified. Additionally, the bill ensures that the United States will be subject to the common law and statutory exceptions to the American rule regarding attorney fees. This change will allow a court in its discretion to award fees against the United States to the same extent it may presently award such fees against other parties.

Id. at 5-6, 1980 U.S.Code Cong. & Ad.News at 4984.

Plaintiff seeks fees under the EAJA pursuant to two separate subsections of 28 U.S.C. § 2412:

(1) § 2412(b), which 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"; and

(2) § 2412(d)(1)(A), which requires that fees be awarded to a party prevailing in a civil action against the United States "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."³

In order to evaluate plaintiff's request for fees under these provisions, it is necessary to determine: (a) whether plaintiff was a "prevailing party"; (b) whether the position of the United States was "substantially justified" and, if not, whether special circumstances nevertheless make an award unjust (under § 2412(d)(1)(A)); and (c) whether any party other than the United States would be liable for fees under the common law or pursuant to specific statutory authority (under § 2412(b)).

A. Meaning of "Prevailing Party"

The EAJA provides no definition of the term "prevailing party" as used in § 2412. However, applicable legislative history makes clear that Congress intended "that the interpretation of the term in the EAJA be consistent with the law that has developed under existing statutes." House Report at 11, 1980 U.S.Code Cong. & Ad. News at 4990. Consistent with the legislative history, this Circuit has recently held that for the purpose of defining the term "prevailing party" the EAJA and 42 U.S.C. § 1988 are indistinguishable. NLRB v. Doral Bldg. Services, Inc., 680 F.2d 647 (9th Cir. 1982).

The case law in this Circuit construing the term "prevailing party" under § 1988 was recently summarized in Pomerantz v. County of Los Angeles, 674 F.2d 1288, 1293 n.2 (9th Cir. 1982):

The trial court, in reconsidering the attorney's fees issue, may wish to note the following: The court in American Constitutional Party v. Munro, 650 F.2d 184 (9th Cir. 1981), held that in order for there to be a "prevailing party," there must be a causal relationship between the litigation brought and the practical outcome realized. The former must be a material factor in bringing about the latter. Id. at 187. In addition, although the plaintiff need not win formal relief, the suit must cause a significant or important change in order for the plaintiff to be a "prevailing party." S.Rep.No.1011, 94th Cong., 2d Sess. 5, reprinted in 1976 U.S. Code Cong. & Ad.News 5912 (fees especially appropriate where party prevails on an important matter in the litigation); Manhart v. City of Los Angeles Department of Water & Power, 652 F.2d 904, 906-07 (9th Cir. 1981) (plaintiff must prevail on a significant issue).

Applying these standards to the present case, it is apparent that plaintiff Lauritzen was the "prevailing party" in this action. Plaintiff's case on the merits was found strong enough by the Court to support the issuance of a preliminary injunction restraining her discharge. That relief, in turn, enabled her to seek administrative relief from the BCNR prior to her discharge⁴ and to retain her position with the Navy pending resolution of this matter. Furthermore, it is clear from the administrative record that the BCNR considered and gave appropriate weight to this Court's findings and conclusions in support of the preliminary injunction in reaching its decision to grant plaintiff the relief she sought. Since the judicial relief obtained by plaintiff was a material factor in bringing about the practical outcome realized in this case, plaintiff should be considered a prevailing party for purposes of 28 U.S.C. § 2412. See Williams v. Alioto, 625 F.2d 845, 847-48 (9th Cir. 1980) (plaintiff who obtained preliminary injunction was "prevailing party" under 42 U.S.C. § 1988, even though action was subsequently dismissed as moot), cert. denied, 450 U.S. 1012, 101 S.Ct. 1723, 68 L.Ed.2d 213 (1981). See also Besig v. Dolphin Boating and Swimming Club, 683 F.2d 1271 at 1278 (9th Cir. 1982).

B...