Morley v. Brown, C78-116.

• Citation: 605 F. Supp. 1468
• Decision Date: 05 April 1985
• Docket Number: No. C78-116.,C78-116.
• Parties: Howard MORLEY, Plaintiff, v. The Honorable Harold BROWN, Secretary of Defense, et al., Defendants.
• Court: U.S. District Court — Northern District of Ohio

605 F. Supp. 1468

Howard MORLEY, Plaintiff, v. The Honorable Harold BROWN, Secretary of Defense, et al., Defendants.

No. C78-116.

United States District Court, N.D. Ohio, E.D.

April 5, 1985.

COPYRIGHT MATERIAL OMITTED

Mary J. Paolano, Cleveland, Ohio, for plaintiff.

Mark Kinot, Asst. U.S. Atty., Cleveland, Ohio, for defendants.

MEMORANDUM OPINION AND ORDER

BATTISTI, Chief Judge.

Plaintiff on August 27, 1982 filed a motion for attorneys fees and expenses. As of January 10, 1984, plaintiff sought the total amount of $10,798.68 for two attorneys in fees and expenses covering the period December 7, 1977 through January 8, 1984.

I. CASE HISTORY

On February 2, 1978, plaintiff, an employee of the Defense Logistics Agency (hereinafter DLA), filed a complaint challenging a promotion decision which was made between April 1, 1975 and June 11, 1975. Plaintiff, a white male who was 59 years old in 1978, claimed that despite receiving a higher score from the promotion panel (based on his qualifications)¹ he was denied the promotion; a black male, approximately ten years younger, received the promotion to the post of Chief, Office of Contract Compliance, Defense Supply Agency. Plaintiff claimed he was denied the promotion because of race and age discrimination in violation of 42 U.S.C. § 1981; 42 U.S.C. 2000e-16; 5 U.S.C. §§ 7151, 7154, and 5 C.F.R. 713 et seq. He also claimed the DLA violated procedures under the Federal Merit Promotion Program.

Before filing his action in federal court, plaintiff filed a formal grievance on July 18, 1975 with his commander at the Defense Contract Administrative Services Region (DCASR). On August 19, 1975, plaintiff rescinded his formal grievance. However, on that same date the DCASR rejected his grievance. On November 15, 1976, plaintiff was reassigned. On November 10, 1976, plaintiff appealed his 1975 nonpromotion and reassignment to the Federal Appeals Board, Civil Service Commission. The Board denied his request on December 9, 1976. On November 18, 1976, plaintiff wrote a letter to the Director of the Defense Logistics Agency protesting his nonselection and reassignment. On February 3, 1977, the DLA rejected plaintiff's grievance. On February 2, 1978, plaintiff filed the instant action in this Court.

On January 13, 1982, this Court granted the defendants' motion to dismiss for lack of subject matter jurisdiction as it applied to plaintiff's race and age discrimination claims but denied defendants' motion to dismiss regarding alleged violations of the Federal Merit Promotion Program. The Court remanded the latter claim as a grievance to the DLA and reactivated the grievance procedure for plaintiff; the Court found that the agency could continue the investigation but that the Court lacked jurisdiction to pursue a de novo review of the matter. Opinion at 6.

On May 7, 1982, plaintiff renewed his DLA grievance and requested attorneys fees and expenses from DLA. On June 10, 1982, the DLA decided in plaintiff's favor as to the grievance but denied the request for attorneys fees. The DLA found that plaintiff had been harmed by an "unjustified or unwarranted personnel action." On June 29, 1982, the DLA Civilian Personnel Director notified plaintiff of the retroactive promotion and corrective pay actions in his case. On July 13, 1982, the promotion document was executed. On July 23, 1982, plaintiff received his first check from the Department of Defense.

On July 9, 1982, plaintiff submitted to the DLA a request for reconsideration of the DLA's denial of attorneys fees. On August 5, 1982, DLA stated that it lacked authority to award attorney fees to plaintiff under the Equal Access to Justice Act.

On August 27, 1982, plaintiff filed the instant motion for attorney fees and costs totaling $6,878.41 for the period December 7, 1977 through August 26, 1982. On January 10, 1984, plaintiff submitted a revised affidavit listing the amount sought for December 7, 1977-August 26, 1982 as $7,234.66 and adding the amount of $3,564.02 for the period August 27, 1982-January 8, 1984.

II.

Although the traditional "American Rule" holds that a prevailing party ordinarily cannot collect attorneys fees, Alyeska Pipeline Service Co. v. Wilderness Soc'y., 421 U.S. 240, 95 S.Ct. 1612, 44 L.Ed.2d 141 (1975), Congress has enacted statutes to permit the award of such fees in federal courts. The Equal Access to Justice Act, P.L. 96-481 (effective October 1, 1981), which amends 28 U.S.C. § 2412, states in pertinent part:

(a) Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency and any official in the United States acting in his or her official capacity in any court having jurisdiction of such action.

(b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses 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.

* * * * * *

(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), 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.² (Emphasis added)

28 U.S.C. § 2412 (as amended Oct. 21, 1980, Pub.L. 96-481, Title II, § 204(a), 94 Stat. 2327.)

Thus, there are two bases for awarding fees against the United States; § 2412(d) is mandatory and § 2412(b) is discretionary. Keasler v. United States, 585 F.Supp. 825, 830 (E.D.Ark.1984); Dubose v. Pierce, 579 F.Supp. 937, 946 (D.D.C.1984). Hence, § 2412(d) makes the award of attorney fees obligatory (note "shall") for cases pending or commenced on or after October 1, 1981 and before October 1, 1984 unless the government was substantially justified in its position or special circumstances exist. Defendant, however, alleges that the Equal Access to Justice Act hereinafter EAJA is inapplicable in the instant case because plaintiff failed to timely file his application for fees. The requirements for applicability of the EAJA will be considered in turn. First, the current action was pending on October 1, 1981. Although initiated in February 1978, the case was not resolved by the Court until January 1982 by the entry of a partial dismissal and remand opinion and order. Once final judgment is entered, the prevailing party has thirty days to file an application for attorney fees and costs. 28 U.S.C. § 2412(d)(1)(B).³ The Judgment Entry in this matter was filed on January 13, 1982. However, plaintiff did not file an application for fees and other expenses until August 27, 1982.

Plaintiff responds that the Court's January 13, 1982 judgment entry was not a "final judgment." Rather, it was a disposition of the age and sex discrimination claims but it did not conclude the litigation regarding the Federal Merit Promotion program and plaintiff's right, if any, to the promotion and back pay. Plaintiff claims that the "final judgment has not been made in this case. The 30 days limitation set forth in 28 U.S.C. § 2412(d)(1)(B) has not begun to run." Reply to Memorandum of Defendant Harold Brown Regarding Applicability of 28 U.S.C. § 2412(d) in this Action, at 10.

Defendant's answer is that the DLA's decision to promote plaintiff and award back pay on June 10, 1982 or July 13, 1982⁴ cannot be used as the date from which the thirty day period begins to run since "the DLA's determination was not a `final disposition in an adversary adjudication'." Defendant's Memorandum Regarding the Applicability of 28 U.S.C. § 2412(d) to the Instant Action, at 7.

This Court must therefore decide what constitutes a "final judgment" in an action like this where the Court's earlier judgment calls for further administrative action. Because the EAJA is a waiver of sovereign immunity, the statutory time limit is a "jurisdictional prerequisite" to the award of attorney fees under the EAJA. Clifton v. Heckler, 755 F.2d 1138, 1145 (5th Cir.1985); Action on Smoking and Health v. C.A.B., 724 F.2d 211, 225 (D.C.Cir.1984).

The question of what constitutes a timely filing and a "final judgment" under the EAJA has been litigated several times before. The clearest statement of the meaning of those terms is found in Taylor v. United States, 749 F.2d 171 (3d Cir.1984). In that case, a serviceman sought an injunction in district court to prevent the Navy from transferring him from American custody to Spanish authorities. The district court issued the injunction and ordered plaintiff released from custody on July 15, 1982. On June 21, 1983, the district court's decision was affirmed in Taylor v. United States, 711 F.2d 1199 (3d Cir.1983). The Third Circuit denied rehearing en banc on July 21, 1983. On August 2, 1983 the district court received the Third Circuit's affirmance. On August 25, 1983, plaintiff filed his application for fees under the EAJA. The district court denied Taylor fees on the grounds that his application was not timely filed within thirty days of the district court judgment, Taylor v. U.S., 580 F.Supp. 687 (E.D.Pa.1984).

In considering plaintiff's...