Premachandra v. Mitts

• Decision Date: 12 April 1985
• Docket Number: No. 82-2441,82-2441
• Citation: 753 F.2d 635
• Parties: Dr. Bhartur N. PREMACHANDRA, Appellee, v. Dr. Murray G. MITTS, et al., Appellants.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 635

753 F.2d 635

53 USLW 2383

Dr. Bhartur N. PREMACHANDRA, Appellee, v. Dr. Murray G. MITTS, et al., Appellants.

No. 82-2441.

United States Court of Appeals,

Eighth Circuit.

Submitted Sept. 13, 1984.

Decided Jan. 14, 1985.

Motion for Clarification and Reconsideration Denied April 12, 1985.

Nicholas Zeppos, Justice Dept., Washington, D.C., Thomas E. Dittmeier, U.S. Atty., Joseph B. Moore, Asst. U.S. Atty., St. Louis, Mo., and William Kanter and Anne Buxton Sobol, Justice Dept., Washington, D.C., for appellant.

Marilyn S. Teitelbaum, St. Louis, Mo., for appellee.

Before HEANEY, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BRIGHT, ROSS, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges, en banc.

JOHN R. GIBSON, Circuit Judge.

The question before us is whether the United States is liable under the Equal Access to Justice Act, 28 U.S.C. Sec. 2412(b) (1982), for attorneys' fees incurred by Dr. Bhartur Premachandra in his suit against the Veterans Administration based on an alleged constitutional violation. As we find no basis in the language of the statutes or legislative history to support an award, we reverse the judgment of the district court granting Premachandra fees.

Premachandra is a research endocrinologist with the VA. On December 30, 1980, the VA told him that he would be terminated on January 16, 1981 and that his laboratory must be dismantled by then. Premachandra appealed his termination to the Merit Systems Protection Board. He also filed a suit in federal court, seeking to enjoin the termination and the dismantling of the laboratory pending a hearing before the MSPB. Premachandra alleged that the fifth amendment guaranteed him the right to a pretermination hearing.

The district court denied the preliminary injunction. Premachandra v. Mitts, 509 F.Supp. 424 (E.D.Mo.1981). On appeal, this court stayed the dismantling of the laboratory pending oral argument, when the parties agreed that the laboratory would be left intact until the MSPB ruled. Premachandra prevailed in the MSPB appeal; the VA was ordered to reverse the termination and pay Premachandra's attorneys' fees in the administrative proceedings. We dismissed the injunction appeal as moot. Premachandra v. Mitts, No. 81-1246 (8th Cir. Oct. 27, 1981) (judgment).

On February 26, 1982, Premachandra asked the district court for an attorneys' fee award in the injunction litigation. The court found that Premachandra was a "prevailing party," and entitled to fees under 42 U.S.C. Sec. 1988 (1982) and section 2412(b). Premachandra v. Mitts, 548 F.Supp. 117 (E.D.Mo.1982). The court decided that section 2412(b) supported an award "because Sec. 1988 explicitly allows the award of fees to 'prevailing parties' in civil rights actions." Id. at 121. The award was affirmed by a divided panel of this court. Premachandra v. Mitts, 727 F.2d 717 (8th Cir.1984). The panel majority commented: "Candor compels us to admit that both parties' interpretations and supporting arguments are persuasive. The problem we face is deciding which one of the two interpretations is more consistent with Congress' intent." Id. at 725. The panel essentially held that section 2412(b) authorizes fee awards in cases that are analogous to actions brought under 42 U.S.C. Sec. 1983 (1982). This is tantamount to holding that section 1988 applies in suits against the United States or its officials based on rights analogous to those protected by the laws specifically listed in section 1988. See Lauritzen v. Lehman, 736 F.2d 550, 553 (9th Cir.1984).

We granted rehearing en banc. Premachandra supports the decisions of the district court and the panel with the following reasoning: Section 1988 allows fees for suits brought under section 1983, which covers violations of the Constitution and federal laws by persons acting under color of state law. The defendants' conduct would have been actionable under section 1983 had they acted under color of state law. Thus, section 2412(b) should be interpreted to make the United States liable for fees when it loses a lawsuit based on conduct that would support an award against a party acting under color of state law. Premachandra maintains that this interpretation is consistent with the statute's remedial purpose and legislative history. A few courts have adopted this reasoning. See Boudin v. Thomas, 732 F.2d 1107, 1114 (2d Cir.1984) (dictum); Trujillo v. Heckler, 587 F.Supp. 928, 931-32 (D.Colo.1984); Clemente v. United States, 568 F.Supp. 1150, 1171 (C.D.Cal.1983).

The VA argues that section 2412(b) is a limited waiver of sovereign immunity and must be strictly construed. It contends that section 2412(b) authorizes fees only "to the same extent that" another fee-shifting statute--in this case section 1988--would make "any other party" liable for fees. Section 1988 would not authorize a fee against "any other party" because there has been no violation of any statute encompassed by section 1988. Because no "other party would be liable" for fees under section 1988, the VA argues that the United States is non-liable "to the same extent." This is the majority view. See Holbrook v. Pitt, 748 F.2d 1168, at 1176-77 (7th Cir.1984); Lauritzen, 736 F.2d 553-59; Saxner v. Benson, 727 F.2d 669, 673 (7th Cir.1984); Northwest Indian Cemetery Protective Association, 589 F.Supp. 921, 924-26 (N.D.Cal.1983); Unification Church v. Immigration & Naturalization Service, 574 F.Supp. 93, 95-96 (D.D.C.1983); Venus v. Goodman, 556 F.Supp. 514, 521-22 (W.D.Wis.1983); United States v. Miscellaneous Pornographic Magazines, 541 F.Supp. 122, 127-29 (N.D.Ill.1982).

I.

To decide this issue, we must look primarily to the statute itself, for we believe that the ordinary meaning of its language expresses the legislative purpose. See Immigration & Naturalization Service v. Phinpathya, 464 U.S. 183, 104 S.Ct. 584, 589, 78 L.Ed.2d 401 (1984). Section 2412(b) provides:

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.

Premachandra's claim to fees under the common law was not reached by the district court. Accordingly, we must first examine whether "the terms of any statute * * * specifically" provide for attorneys' fees. The only statute arguably applicable is section 1988, which provides:

In any action or proceeding to enforce a provision of Section 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.

Premachandra's underlying lawsuit was brought against federal officials acting in their individual and official capacities. The action was brought to vindicate his alleged fifth amendment due process rights. ¹ Section 1983 is the only statute named in section 1988 that provides a remedy for violations of the Constitution. Because Premachandra did not allege that the defendants acted under color of state law, no section 1983 liability could be found. See Ellis v. Blum, 643 F.2d 68, 83 n. 17 (2d Cir.1981). Thus, the action was not brought to "enforce a provision" enumerated in section 1988. Consequently, there is no statute that specifically provides for attorneys' fees in this case, and section 2412(b) does not apply. Sections 1988 and 2412(b) have recently been analyzed under similar circumstances in Lauritzen, 736 F.2d at 553-54, and the same conclusion was reached.

II.

Even if it is accepted that section 2412(b) is facially vague or ambiguous, the next step is not to delve into the "ashcans of the legislative process." C. Curtis, It's Your Law 52 (1954). Rather, resort should be had to a more formal expression of congressional intent--the context in which section 2412(b) appears. See Richards v. United States, 369 U.S. 1, 11, 82 S.Ct. 585, 591-92, 7 L.Ed.2d 492 (1962); Sierra Club v. Clark, No. 84-5042, slip op. at 7 (8th Cir. Jan. ---, 1984); C. Sands, Statutes and Statutory Construction Sec. 27.02, at 310 (4th ed. 1972). 28 U.S.C. Sec. 2412(d)(1)(A) (1982) 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.

Adopting Premachandra's interpretation of section 2412(b) could render nugatory the "substantially justified" and "special circumstances" limits in section 2412(d). Many of the civil actions for which fees may be sought under subsection (d) are based on violations of federal law or the Constitution. These actions could support suits under section 1983 but for the fact that they involve officials acting under color of federal rather than state law. If subsection (b) allowed fee awards in cases analogous to section 1983 actions, persons prevailing against the United States in a wide variety of civil suits could receive attorneys' fees in cases where the government's position was substantially justified. ² Consequently, the restrictions in subsection (d) would be circumvented, and congressional intent...