Unification Church v. I.N.S.
| Decision Date | 04 June 1985 |
| Docket Number | No. 83-2238,83-2238 |
| Citation | 762 F.2d 1077 |
| Parties | , 53 USLW 2613 UNIFICATION CHURCH, et al., Appellants v. IMMIGRATION & NATURALIZATION SERVICE. |
| Court | U.S. Court of Appeals — District of Columbia Circuit |
David Grosz, Los Angles, Cal., with whom Barry A. Fisher, Larry J. Roberts, Los Angles, Cal., and David Carliner, Washington, D.C., were on the brief, for appellants.
Nicholas S. Zeppos, Atty., Dept. of Justice, Washington, D.C., with whom Richard K. Willard, Acting Asst. Atty. Gen., Dept. of Justice, Joseph E. diGenova, U.S. Atty. and William Kanter, Atty., Dept. of Justice, Washington, D.C., were on the brief, for appellee.
Sylvia Royce and Thomas W. Hussey, Attys., Dept. of Justice, Washington, D.C., entered appearances for appellee.
David O. Stewart, Washington, D.C., was on the brief for Small Business Legal Defense Committee, amicus curiae, urging reversal.
Before WRIGHT, Circuit Judge, and WILKEY * and McGOWAN, Senior Circuit Judges.
Opinion for the Court filed by Senior Circuit Judge McGOWAN.
In this case, we review the District Court's decision to deny attorney's fees to appellants. 574 F.Supp. 93. The case involves the proper interpretation of two provisions of the Equal Access to Justice Act. We affirm.
In the underlying case, three individuals and the Unification Church (Church) sued to overturn the refusal of the Immigration and Naturalization Service (INS) to allow the individual plaintiffs to remain in the United States. The plaintiffs prevailed. See Unification Church v. INS, 547 F.Supp. 623 (D.D.C.1982). They thereby met any threshold criteria of success necessary for an award of attorney's fees. The contested issues here revolve rather upon the extent to which the Equal Access to Justice Act waives the usual sovereign immunity of the United States against awards of attorney's fees.
The Equal Access to Justice Act (Act) waives the federal government's immunity from attorney's fees, under certain conditions set forth therein, in both adversarial administrative proceedings and judicial proceedings. Equal Access to Justice Act, Pub.L. No. 96-481, tit. II, 94 Stat. 2325 (1980) (codified at 5 U.S.C. Sec. 504 and 28 U.S.C. Sec. 2412). What we will call "subsection (b)" of the Act waives immunity against attorney's fees stemming from judicial proceedings "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." 28 U.S.C. Sec. 2412(b) (1982). What we will refer to as "subsection (d)" awards fees in judicial proceedings against the United States "to a prevailing party ... unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. Sec. 2412(d)(1)(A) (1982). Awards under subsection (d), however, are specifically limited to a prevailing "party" who is
(i) an individual whose net worth did not exceed $1,000,000 at the time the civil action was filed, (ii) a sole owner of an ... organization whose net worth did not exceed $5,000,000 at the time the civil action was filed, except that an organization described in section 501(c)(3) of the Internal Revenue Code ... may be a party regardless of the net worth of such organization ..., or (iii) a sole owner of an unincorporated business ... or organization ... having not more than 500 employees at the time the civil action was filed....
28 U.S.C. Sec. 2412(d)(2)(B) (1982). 1 This case raises questions on the interpretation of both subsection (b) and subsection (d). First, we treat whether either the Church or the individuals can recover under subsection (b). We then decide whether the individual appellants can receive fees under subsection (d). We next discuss whether the proper interpretation of subsection (d)'s definition of "party" allows the Church to receive fees under subsection (d) regardless of the number of employees it has. Finally, we discuss whether the Church has too many "employees" to qualify for fees under subsection (d).
Subsection (b) of the Act makes the United States liable for attorney's fees "to the same extent" that any other party would be liable. Here, the Church claims that a state would be liable for fees under 42 U.S.C. Sec. 1988 (1982), if the state were to have acted under color of its laws to violate the individual plaintiffs' constitutional rights as the federal government did here under color of federal law, and that the federal government is therefore liable for the Church's attorney's fees. The federal government argues that it did not violate any of the statutes giving rise to fees under section 1988, and thus that it is not liable for fees here. Following the decisions of a number of other circuits, we hold that the federal government is not liable for fees under section 1988 unless it actually violates one of the statutes giving rise to fees under that section, regardless of whether a state might be liable for such fees had the state taken the same actions under color of state law as the federal government took under color of federal law.
Subsection (b) of the Act reads in full:
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.
28 U.S.C. Sec. 2412(b) (1982). It is the meaning of the final sentence, particularly the phrase "to the same extent that any other party would be liable," that is at issue here.
The particular statute underlying the plaintiffs' fee claim under subsection (b) is 42 U.S.C. Sec. 1988, which reads in part:
In any action or proceeding to enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, title IX of Public Law 92-318 [20 U.S.C. 1681 et seq.], or title VI of the Civil Rights Act of 1964 [42 U.S.C. 2000d et seq. ], 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.
42 U.S.C. Sec. 1988 (1982). In turn, the plaintiffs claim section 1988 fees through section 1983:
Every person who, under color of any statute ... of any State or Territory or the District of Columbia, subjects ... any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law [or] suit in equity....
42 U.S.C. Sec. 1983 (1982).
The appellants' claim is that the phrase "to the same extent" in subsection (b) means the United States is liable for attorney's fees whenever "any other party"--in this case, a state--would be liable in an "analogous" situation. Section 1988, through section 1983, makes states liable for attorney's fees stemming from violations of federal rights under color of state law. The appellants argue that subsection (d), by making the federal government liable "to the same extent" as "any other party," makes the United States liable for attorney's fees stemming from violations of federal rights under color of federal law.
In contrast, the government's interpretation, and that adopted by the District Court, is that "to the same extent that any other party would be liable" means substituting "the United States" into a fees statute wherever that statute might refer to states or private individuals as parties. The circumstances triggering the fees would otherwise remain unchanged.
The usual grant of sovereign immunity to the United States from fees awarded under a particular statute would, under the government's interpretation, now be waived even in the absence of a particular provision in the fees statute to that effect. For example, if a statute passed prior to the Act awarded fees to a prevailing party who brought suit "to enforce the laws of the United States" but did not specifically mention the liability of the federal government for fees, the government would now be liable for fees if it were to be an unsuccessful defendant in such a suit; in the absence of subsection (b), the United States would be protected from such liability by its sovereign immunity. The Act does not however, change what is "enforcement" and what are the "laws of the United States" for the purposes of the fees statute.
Applying the government's interpretation of subsection (b) would mean that the United States would be liable for fees when it was a losing defendant in proceedings to enforce the statutes listed in section 1988. Applying this interpretation to this case, the United States is not liable for fees. It did not violate section 1983, because it did not violate the appellants' rights under color of state law, as required by the words of section 1983. It did violate the appellants' rights under color of federal law, but that creates no cause of action under section 1983. Since it did not violate section 1983, it is not liable for fee awards under Section 1988, and thus not liable for fees awarded under subsection (b) of the Act.
A number of other circuits have decided this question. All have upheld the government's position that subsection (b) does not authorize fee awards in actions against the federal government analogous to section 1983 actions. See Premachandra v. Mitts, 753 F.2d 635 (8th Cir.1985) (en banc ); Lauritzen v. Lehman, 736 F.2d 550 (9th Cir.1984); see also Saxner v. Benson, 727 F.2d...
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