Omaha Tribe of Nebraska v. Swanson, 83-1812
| Decision Date | 08 June 1984 |
| Docket Number | No. 83-1812,83-1812 |
| Citation | 736 F.2d 1218 |
| Parties | OMAHA TRIBE OF NEBRASKA, Appellant, v. Harold A. SWANSON, Jr; United States Department of Interior; James Watt, Secretary; Kenneth Smith, Asst. Secretary of Indian Affairs; Kenneth Payton, Acting Commissioner of Indian Affairs; Jerry Jaeger, Area Director-Aberdeen Office, Bureau of Indian Affairs, Appellees. OMAHA TRIBE OF NEBRASKA, Appellant, v. Harold A. SWANSON, Jr; United States Department of Interior; James Watt, Secretary; Kenneth Smith, Asst. Secretary of Indian Affairs; Jerry Jaeger, Area Director-Aberdeen Office, Bureau of Indian Affairs, Appellees. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Roth, Van Amberg, Gross, Amarant & Rogers, Santa Fe, N.M., for appellant Omaha Tribe of Nebraska.
F. Henry Habicht, Acting Asst. Atty. Gen., Washington, D.C., Evan L. Hultman, U.S. Atty., Cedar Rapids, Iowa, Asher E. Schroeder, Asst. U.S. Atty., Sioux City, Iowa, Anne S. Almy, Claire L. McGuire, Attys., Dept. of Justice, Washington, D.C., for appellees.
Before BRIGHT, ARNOLD and FAGG, Circuit Judges.
The Omaha Tribe of Nebraska appeals from a denial of attorney's fees and costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412. For reversal, the tribe argues that it is a prevailing party under the EAJA and that the government's position is not substantially justified. We reject the tribe's argument that it is a prevailing party and affirm the district court.
In 1975, the United States, acting as trustee for the Omaha Tribe, brought an action to quiet title to certain lands, consisting of almost three thousand acres, alleged to be within the Omaha Indian Reservation. The lands had for many years been occupied and farmed by non-Indians, and have been the subject of many court decisions. See, e.g., Omaha Indian Tribe v. Wilson, 614 F.2d 1153 (8th Cir.), cert. denied, 449 U.S. 825, 101 S.Ct. 87, 66 L.Ed.2d 28 (1980); Wilson v. Omaha Indian Tribe, 442 U.S. 653, 99 S.Ct. 2529, 61 L.Ed.2d 153 (1979); United States v. Wilson, 433 F.Supp. 67 (N.D.Iowa 1977). By court order of June 5, 1975, the lands were deemed to be in possession of the Omaha Tribe pending the results of the litigation to quiet title. The tribe then entered into several agreements to lease the lands to Harold A. Swanson, Jr. The leases included crop-share arrangements, mandatory accounting provisions, and various other requirements. The Bureau of Indian Affairs (BIA) was not actively involved in negotiating or supervising the leases, although it did sign the leases as trustee. In 1980, title to the lands involved in this case was quieted in the United States as trustee on behalf of the tribe. See Omaha Indian Tribe v. Wilson, supra, 614 F.2d at 1153.
Assured of proper title, the BIA initiated an investigation into Swanson's alleged noncompliance with the lease conditions. As a result of its investigation as well as new tribal concern about possible lease violations by Swanson, the BIA issued Swanson a lease cancellation letter in accordance with 25 C.F.R. Sec. 162.14. The lease cancellation was reversed, however, for insufficient evidence after an appeal by Swanson under 25 C.F.R. Sec. 2. The BIA continued its investigation by seeking information from Swanson, local grain elevators, the federal court, and attorneys for Swanson and the tribe. The BIA initiated an independent audit of Swanson's operations and prepared regular crop reports concerning Swanson. On the basis of this investigation, the BIA sent Swanson a second cancellation letter, five months after the acting area director had reversed the first lease cancellation.
The leases were subsequently cancelled after a hearing. Swanson was notified of his appeal rights and was required to post bonds in excess of $250,000 to remain on the leased lands pending an appeal. Swanson appealed, but failed to post the bonds, prompting the superintendent to serve upon Swanson a notice to quit. However, because exhaustion of appeal procedures was estimated to take substantial time and the BIA did not believe there was authority to remove Swanson forcibly, it advised the tribe that independent legal action was necessary to remove Swanson expeditiously from the leased lands if the tribe had evidence of fraud by Swanson in connection with the leases. Acting on this advice, the tribe obtained a temporary restraining order preventing Swanson from disposing of the crops grown on the leased lands. The tribe also brought two actions in federal district court against Swanson seeking an accounting and the immediate removal of Swanson from the leased lands and against the government and certain government officials for breach of fiduciary duty in failing to take appropriate action against Swanson.
After consolidation of the actions, a settlement was reached by the parties concerning the dispute between Swanson and the tribe. In the settlement decree, Swanson acknowledged the tribe's right to immediate possession of the leaseholds and abandoned his administrative appeal. Swanson also agreed to transfer certain stored crops and $70,000 to the tribe in satisfaction of earlier accrued rents. In exchange, the tribe granted Swanson a limited license to harvest the remaining crops and agreed to lease other lands to Swanson on a cash-rent basis. Finally, the parties agreed not to pursue further legal actions against one another for claims arising from the leases, although the tribe did not release any claims it might have had against the United States. The district court approved the settlement agreement. Relying on the favorable settlement, the tribe applied for fees and expenses under the EAJA. The district court denied the tribe's application and the tribe appeals from that decision.
The Equal Access to Justice Act authorizes attorneys fees and expenses in litigation against the government under certain circumstances. 28 U.S.C. Sec. 2412(d)(1)(A) provides:
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.
To qualify for fees, a party must first demonstrate that it has prevailed in its lawsuit as against the United States. Congress intended that interpretation of the term prevailing party under the EAJA be consistent with interpretations that have developed under existing fee-shifting statutes. See H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Ad.News 4953, 4990. See also Citizens Coalition for Block Grant Compliance, Inc. v. City of Euclid, 717 F.2d 964, 966 n. 2 (6th Cir.1983). To determine if a party has prevailed, a court may look to the substance of the litigation's outcome. Reel v. Arkansas Board of Correction, 672 F.2d 693, 697 (8th Cir.1982) (42 U.S.C. Sec. 1988). A party need not succeed on all the issues to be considered prevailing. United States for Heydt v. Citizen's State Bank, 668 F.2d 444, 447 (8th Cir.1982). Neither must the litigation proceed to trial; a party may be considered prevailing if a favorable settlement is obtained. Id. It is enough if a party succeeds on any significant issue which achieves some of the benefit the party sought in bringing the suit. Hensley v. Eckerhart, --- U.S. ----, 103 S.Ct. 1933, 1939, 76 L.Ed.2d 40 (1983) (42 U.S.C. Sec. 1988). To determine whether a...
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