Oden v. Vilsack

• Decision Date: 09 August 2013
• Docket Number: CIVIL ACTION NO. 10-00212-KD-M
• Parties: FERRELL ODEN, Plaintiff, v. TOM VILSACK, Secretary of the United States Department of Agriculture, Defendant.
• Court: U.S. District Court — Southern District of Alabama

FERRELL ODEN, Plaintiff,

v.TOM VILSACK, Secretary of the United States Department of Agriculture, Defendant.

CIVIL ACTION NO. 10-00212-KD-M

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION

DONE: August 9, 2013

ORDER

This action is before the Court on the "Motion for Attorneys' Fees and Cost [sic]" (Doc. 158) filed by Plaintiff Ferrell Oden ("Oden") and the "Memorandum in Support of Claims for Attorney's Fees and Expenses" (Doc. 157) filed by Intervenor Dwight E. Jefferson ("Jefferson"), along with the Defendant's Responses (Docs. 163-164) in opposition and Oden's Reply (Doc. 168) in support. Upon consideration, the Court finds that both petitions are due to be GRANTED in part and DENIED in part, for the reasons and in the manner set forth herein.

I. Procedural History

Intervenor Jefferson originally represented Oden in this action. On October 14, 2011, Plaintiff Oden filed a pro se motion to "Proceed Pro Se," "citing an irreversible conflict of interest." (Doc. 62). On October 26, 2011, Jefferson filed a motion to withdraw as counsel for Oden, denying a conflict of interest but acknowledging a breakdown in attorney/client relations. (Doc. 66). Jefferson's motion to withdraw was granted. (Doc. 77).

Contemporaneously with his motion to withdraw, Jefferson filed a Plea in Intervention (Doc. 67), seeking to intervene in this action in order to protect his interest in recovering attorney's fees and costs pursuant to a contingency fee agreement between him and Oden for hisrepresentation of Oden in this matter. The Court has previously found "that Mr. Jefferson is allowed to intervene [as a matter of right] in this action" for such a purpose but reserved judgment on "whether Mr. Jefferson is entitled to recover, and if so, how much . . ." (Doc. 142).¹

On April 9, 2013, the Court found in favor of Oden on his claim that Defendant Tom Vilsack, in his official capacity as Secretary of the United States Department of Agriculture (hereinafter, Defendant referred to as "the USDA"), had discriminated against Oden on the basis of his race in violation of the Equal Credit Opportunity Act of 1972, 15 U.S.C. § 1691 et seq. ("ECOA"). (Doc. 154). This finding was based on the USDA's concession of liability as to Oden's claim, specifically acknowledging that Oden was the victim of "programmatic [racial] discrimination." (Doc. 130 at 2, ¶ E). The Court further awarded Oden actual damages in the amount of $73,900.00. (Doc. 154). Finally, the Court set a filing and briefing schedule for any petition requesting an award of attorneys' fees and costs in this action. Both Oden and Jefferson have filed such petitions, and both are fully briefed and ripe for adjudication.

II. Analysis

A. Oden's Petition

Oden seeks attorneys' fees and costs incurred by his four current counsel of record inprosecuting this action, "pursuant to 15 U.S.C. Section 1691e(d)." (Doc. 158 at 2). ECOA provides: "In the case of any successful action under subsection (a), (b), or (c) of [§ 1691e], the costs of the action, together with a reasonable attorney's fee as determined by the court, shall be added to any damages awarded by the court under such subsection." 15 U.S.C. § 1691e(d). In determining an appropriate award of attorneys' fees pursuant to § 1691e(d), "[t]he court should consider all the relevant factors on a case-by-case basis, including the amount of damages awarded, the number of past and future consumers affected by the creditor's discrimination, the complexity of the litigation, and the time expended. Plaintiffs who cause a creditor to halt an illegal practice should be compensated for their attorneys' fees." Anderson v. United Fin. Co., 666 F.2d 1274, 1278 (9th Cir. 1982).

i. ECOA vs. Equal Access to Justice Act

As an initial matter, the USDA argues that the Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), governs the liability of the USDA, as a federal government agency, for attorneys' fees and costs in this action, rather than § 1691e(d). The USDA cites no authority in support of this proposition, instead relying solely on the language of EAJA.

In opposition to the USDA's argument, Oden cites EEOC v. Northwest Structural Components, Inc., 897 F. Supp. 249 (M.D.N.C. 1995), which held: "Both the plain language of the EAJA and its legislative history indicate that Congress did not intend the EAJA to apply where a statute regulating awards of attorney fees against the government already exists." 897 F. Supp. at 251 (finding that "the EAJA does not apply to suits under Title VII" due to Title VII's own fee-shifting provision). EAJA provides that "a judgment for costs . . . may" and that "fees and other expenses' "shall" be awarded to a "prevailing party" in a civil action against the UnitedStates, "[e]xcept as otherwise specifically provided by statute . . ." § 2412(a)(1) & (d)(1)(A).²

It is true that sovereign immunity "bar[s] the award of attorney fees against the United States absent explicit congressional authorization" and that "[a] waiver of the United States government's sovereign immunity must be 'unequivocal[]' . . ." United States v. Certain Real Prop., Located at 317 Nick Fitchard Rd., N.W., Huntsville, AL, 579 F.3d 1315, 1320 (11th Cir. 2009). However, ECOA has been read "to include a broad waiver of governmental immunity[,]" both federal and state. Moore v. U.S. Dep't of Agric. on Behalf of Farmers Home Admin., 55 F.3d 991, 994 (5th Cir. 1995). See also Ordille v. United States, 216 F. App'x 160, 164 (3d Cir. 2007) ("The ECOA 'creates a private right of action against a creditor, including the United States, 15 U.S.C. § 1691e(a), who "discriminates against any applicant, with respect to any aspect of a credit transaction" "on the basis of race, color, religion, national origin, sex or marital status, or age" or "because the applicant has in good faith exercised any right under this chapter." ' Garcia v. Johanns, 444 F.3d 625, 629 n.4 (D.C. Cir. 2006) (quoting 15 U.S.C. § 1691(a)) . . . The ECOA thus waived the sovereign immunity of the United States, permitting suits against the Government for discrimination in the provision of credit."). In setting forth allowable damages under ECOA, Congress drafted § 1691e(b) to expressly exempt "government[s]" and "government subdivision[s] or agenc[ies]" from an award of punitive damages for violating the act. The fact that such an express exemption is not similarly set forth in § 1691e(d) indicates thatCongress intended government entities, including those of the United States, be liable under that subsection for "the costs of the action, together with a reasonable attorney's fee as determined by the court[,]" for ECOA violations.³ See Russello v. United States, 464 U.S. 16, 23 (1983) (" '[W]here Congress includes particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress acts intentionally and purposely in the disparate inclusion or exclusion.' " (quoting United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir. 1972))).

ii. Eligibility for Fees & Costs as a "Successful" Party

The USDA argues that this was not a "successful action" entitling Oden to attorneys' fees and costs under § 1691e(d) because he did not receive the major portion of damages that he sought, lost profits. However, Oden was still awarded some actual damages pursuant to § 1691e(a), and the plain language of § 1691e(d) allows for attorneys' fees and costs to be awarded in "any successful action under subsection (a) . . ." (emphasis added). See also Anderson v. United Fin. Co., 666 F.2d 1274, 1278 (9th Cir. 1982) (Under § 1691e(d), "attorneys' fees are available to appellant only if there has been a 'successful action', whether the success lies in obtaining actual or punitive damages, or injunctive or declaratory relief."); Farrar v. Hobby, 506 U.S. 103, 111-12, 114 (1992) ("[A] plaintiff 'prevails' when actual relief on the merits of his claim materially alters the legal relationship between the parties by modifying the defendant's behavior in a way that directly benefits the plaintiff . . . [W]e hold that the prevailing party inquiry does not turn on the magnitude of the relief obtained [under 48 U.S.C. § 1988]. We recognized as much . . . when we noted that 'the degree of the plaintiff's success' does not affect'eligibility for a fee award.' " (quoting Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 790 (1989))).⁴ ,⁵ Even a party who receives only nominal damages can be considered a "prevailing party" eligible for a statutory award of attorneys' fees and costs. See Farrar, 506 U.S. at 112 ("We . . . hold that a plaintiff who wins nominal damages is a prevailing party under § 1988.").

The USDA also represents that, "[h]ad Plaintiff accepted the settlement offered to him in Jan/Feb 2011, he would have received more than the seventy-three thousand, nine hundred dollars ($73,900.00) awarded by the Court in 2013." (Doc. 163 at 11). The USDA cites Marek v. Chesny, 473 U.S. 1 (1985), for the proposition that "a plaintiff who rejects an offer of judgment under FRCP 68, and who ultimately obtains a judgment that is less than that offer, is not entitled to an award of attorney's fees for his efforts after the offer in obtaining that judgment." (Doc. 163 at 11). As Oden correctly points out, however, the USDA has presentedno evidence of a Rule 68 offer of judgment in this case.

The USDA admits in its brief that it "does not have the Jan/Feb 2011 settlement offer in writing as that was the result of a telephonic settlement conference with Plaintiff's first counsel in this court suit . . ." (Doc. 163 at 12 n.5). Oral offers of settlement are generally held not to constitute Rule 68 offers of judgment. See Knoeffler v. Town of Mamakating, 126 F. Supp. 2d 305, 315 (S.D.N.Y. 2000) ("Rule 68 requires that the defendant's offer be 'served' upon the adverse party. Although it does not specifically require a...