Russell v. National Mediation Bd.

• Decision Date: 23 October 1985
• Docket Number: No. 84-1345,84-1345
• Citation: 775 F.2d 1284
• Parties: 120 L.R.R.M. (BNA) 3172, 104 Lab.Cas. P 11,842 Laurence G. RUSSELL, William L. Hanna, and Eddie D. Langwell, Plaintiffs-Appellants, v. NATIONAL MEDIATION BOARD, Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1284

775 F.2d 1284

120 L.R.R.M. (BNA) 3172, 104 Lab.Cas. P 11,842

Laurence G. RUSSELL, William L. Hanna, and Eddie D Langwell, Plaintiffs-Appellants, v. NATIONAL MEDIATION BOARD, Defendant-Appellee.

No. 84-1345.

United States Court of Appeals Fifth Circuit.

Oct. 23, 1985.

Robert F. Gore, Rex H. Reed, Springfield, Va., John Cosmic, Amarillo, Tex., for plaintiffs-appellants.

Mark W. Pennak, William Kanter, Dept. of Justice, Washington, D.C., for Nat. Mediation Bd.

Appeal from the United States District Court for the Northern District of Texas.

Before THORNBERRY, REAVLEY and HIGGINBOTHAM, Circuit Judges.

THORNBERRY, Circuit Judge.

In our initial opinion, we found (1) that the phrase "position of the United States" in the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412(d)(1)(A) (1982) (repealed 1984), meant the government's litigation position, and not its underlying action; and (2) that appellee National Mediation Board's litigation position was substantially justified. We therefore affirmed the district court's order denying appellant Russell attorney fees for his successful action against the Board. Russell v. National Mediation Board, 764 F.2d 341 (5th Cir.1985).

Russell submitted a suggestion for rehearing en banc on July 12, 1985. No member of the panel nor Judge in regular active service of this Court having requested that the Court be polled on rehearing en banc, we denied the suggestion on August 5. Treating the suggestion as a petition for rehearing, we denied the petition as well. That same day, the President signed into law a bill that extended and amended the EAJA. Act of Aug. 5, 1985, Pub.L. No. 99-80, 99 Stat. 183. One provision of the new statute defines "position of the United States" as "in addition to the position taken by the United States in the civil action, the action or failure to act by the agency upon which the civil action is based." Id. Sec. 2(c)(2), 99 Stat. at 185 (to be codified at 28 U.S.C. Sec. 2412(d)(2)(D)). In light of the obvious conflict between this provision and our previous holding, we withheld our mandate on August 9 and invited the parties to brief the new statute's effect on this case.

We now withdraw our initial opinion. We hold (1) that the definition of "position of the United States" contained in the new statute applies to this case; (2) that the Board's underlying action was not "substantially justified"; (3) that there are no "special circumstances" in this case that would make an award unjust; and (4) that Russell should receive attorney fees for all of the time spent contesting the merits of this case, not just the time spent challenging the government's underlying action. ¹ We vacate the district court's order and remand for a determination of the amount of the fee award.

I. APPLICATION OF PUB.L. NO. 99-80

Section 7 of Pub.L. No. 99-80 states: "Except as otherwise provided in this section, the amendments made by this Act shall apply to cases pending on or commenced on or after the date of the enactment of this Act." Pub.L. No. 99-80, Sec. 7(a), 99 Stat. at 186. The exceptions are not pertinent here. ² The issue, therefore, is whether this case was "pending" on August 5, 1985, the day the new EAJA became law.

It is clear that Russell's fee application was pending on August 5. Although we denied his petition for rehearing and suggestion for rehearing en banc on that day, we subsequently withheld the mandate. Moreover, Russell retained the option of petitioning the Supreme Court for writ of certiorari. See Ochoa v. Employers National Insurance Co., 754 F.2d 1196, 1198 (5th Cir.1985). The Board argues, however, that a case is not "pending" under Pub.L. No. 99-80 when the only matter remaining to be considered is a fee application.

We begin our consideration of this argument with the language of the statute. The phrase "cases pending" makes no distinction between the fee application stage of a case and consideration of the merits. On its face, therefore, the statute applies to fee applications pending on the date of enactment.

The statutory language is not entirely free of ambiguity, however, so we turn to the legislative history for further guidance. The House Report accompanying H.R. 2378, which became Pub.L. No. 99-80, states:

The changes which are made by H.R. 2378 which merely clarify existing law are retroactive, and apply to matters which were pending on, or commenced on or after October 1, 1981. However, changes which are made by H.R. 2378 and which expand or otherwise change existing law shall take effect on the date of enactment and shall apply to matters pending on or commenced after that date.

H.R.Rep. No. 120 (pt. 1), 99th Cong., 1st Sess. 11 (1985), reprinted in 1985 U.S.Code Cong. & Ad.News 132, 139. ³

The House Report makes clear that the definition of "position of the United States" contained in Pub.L. No. 99-80 is intended to clarify existing law. See id. at 7, 1985 U.S.Code Cong. & Ad.News at 135 ("H.R. 2378 clarifies that the United States will be liable unless the position of the government--the action or failure to act by the government upon which the administrative proceeding or civil action is based, as well as the litigation position--is substantially justified...."); id. at 9, 1985 U.S.Code Cong. & Ad.News at 137 ("H.R. 2378 clarifies that the broader meaning [of 'position of the United States'] applies."); id. at 12, 1985 U.S.Code Cong. & Ad.News at 140 ("The Committee here defines the 'position' term in a way to clarify the EAJA, consistent with the original Congressional intent and the underlying purposes of the statute."); id. at 16, 1985 U.S.Code Cong. & Ad.News at 144 ("[T]he Committee, consistent with the original Act, has determined that it would be unfair to parties ... to be denied fees when the underlying agency action was not substantially justified."). Thus, the definition of "position of the United States" contained in the new Act should apply to this action, which was before the district court on the merits on October 1, 1981.

The Board relies heavily on a statement by Representative Kastenmeier, a co-sponsor of H.R. 2378:

I would like to clarify the effective date provisions of H.R. 2378 and the relationship of these provisions with the original act. Cases which were pending on October 1, 1984, including fee application proceedings would be governed by the original act, provided that the time to file the fee application expired before the date of enactment of this bill. This bill would apply to any case pending on October 1, 1984, and finally disposed of before the date of enactment of this bill, if the time for filing an application for fees and other expenses had not expired as of such date of enactment.

131 Cong.Rec. H4762 (daily ed. June 24, 1985). The Board points out that this fee application proceeding was "pending on October 1, 1984" and that the time to file the application expired that year. It concludes, therefore, that this proceeding is "governed by the original act."

Although the Board's interpretation of Representative Kastenmeier's statement is plausible, it does not resolve the statement's crucial ambiguity. Representative Kastenmeier does not address the distinction in the House Report between provisions that "clarify existing law" and those that "expand or otherwise change existing law." H.R.Rep. No. 120 (pt. 1) at 11, 1985 U.S.Code Cong. & Ad.News at 139. Thus, we cannot be sure whether Representative Kastenmeier's reference to the "original act" means the Act as "clarified" by the new amendments or the Act as interpreted by the courts before the amendments were enacted. We doubt, however, that he intended courts with fee applications pending to disregard the clarifying provisions of the new Act in defining the terms of the original EAJA.

We conclude that the language and legislative history of Pub.L. No. 99-80 indicate that its definition of "position of the United States" applies to this case. The case law supports this conclusion. In Bradley v. School Board, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), the Supreme Court confronted circumstances similar to ours. Attorneys for successful civil rights plaintiffs sought attorney fees. The district court granted fees and the defendant appealed. While the fee award was before the court of appeals, the President signed the Education Amendments of 1972, which included a provision for attorney fees in school desegregation cases. The court of appeals held that the new statute did not apply to the case before it.

In vacating the judgment of the court of appeals, the Supreme Court relied on "the principle that a court is to apply the law in effect at the time it renders its decision, unless doing so would result in manifest injustice or there is statutory direction or legislative history to the contrary." Id. at 711, 94 S.Ct. at 2016. The Eighth Circuit applied this principle in holding that the original EAJA, which contained an effective date provision similar to Sec. 7 of Pub.L. No. 99-80, controlled a case in which only the fee application was pending at the time of enactment. United States for Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir.1982). This Court followed suit, noting that:

[a]bsent any legislative history to the contrary, an action is "pending" so long as a party's right to appeal has not yet been exhausted or expired.... The fact that a motion for attorneys' fees is the only matter pending before a court does not mean that court lacks jurisdiction or that the case is not "pending."

Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 679 F.2d 64, 67-68 (5th Cir.1982).

Other courts have criticized our decision in KKK for failing to apply the principle that waivers of sovereign immunity are to be narrowly construed. See Tongol v. Donovan, 762 F.2d 727, 730-33 (9th Cir.1985) (original EAJA does not apply to cases in which only a fee application was pending on date of enact...