Witt v. United States Dep't of the Air Force
| Decision Date | 16 May 2012 |
| Docket Number | No. 06-cv-05195 RBL,06-cv-05195 RBL |
| Court | U.S. District Court — Western District of Washington |
| Parties | MAJOR MARGARET WITT, Plaintiff, v. UNITED STATES DEPARTMENT OF THE AIR FORCE, et al., Defendants. |
ATTORNEYS' FEES AND COSTS [Dkt. 197]
THIS MATTER is before the Court on Plaintiff's Motion for Fees under the Equal Access to Justice Act (EAJA). [Dkt. 197]. Defendants oppose the request, arguing that it is untimely and fees are not warranted. [Dkt. 204]. It also argues that even if fees are warranted, they should be reduced to $151,953.88. [Dkt. 204 at 12]. For the reasons set forth below, the Motion is timely and an award of fees under the EAJA is merited in the amount of $462,559.32.
The EAJA provides for an award of fees to the prevailing party in a civil action against the United States, unless the government's position was "substantially justified." 28 U.S.C. §2412(d)(1)(A).
The EAJA requires a petitioner file a motion for fees within thirty days of entry of "final judgment." 28 U.S.C. 2412(B). The statute defines final judgment as "a judgment that is final and not appealable, and includes an order of settlement." 28 U.S.C.A. § 2412(2)(G).
The government contends that Witt's motion is untimely. It argues that because the parties settled and agreed to the entry of a judgment, both parties could appeal the judgment, and the period normally allowed for appeal (60 days for the United States) does not apply. It claims, that the thirty day EAJA period ran from the date of the judgment, and expired before Witt filed her fee request.
In this case, both parties moved for an amended judgment (without reservation), as a means of effectuating settlement. [See Dkt. 204 at 5]. The government points out that "[a] party who receives all that he has sought generally is not aggrieved by the judgment affording the relief, and cannot appeal from it." Deposit guar. Nat'l Bank v. Roper, 445 U.S. 326, 333 (1980). The government argues that neither party was aggrieved and neither could appeal entry of the judgment. Therefore, it claims, the fee application was not timely.
Witt argues that the government's appeal period (60 days) does apply and should be used to calculate the due date for her fee application. She points out that nothing in the settlement precluded an appeal, and that it was still possible for either party to attack the judgment. [Dkt. 205 at 4]. Witt argues that there was an inconsistency in the joint motion drafted by the government, and the parties' settlement agreement. [Dtk. 205 at 4]. The government indicated that it wanted specific language stricken from both the original Judgment [Dkt. 166] and the Opinion [Dkt. 163], but the joint agreement amends only the Judgment. [Dtk. 205 at 4]. Thus, Witt contends, the government could have appealed the judgment.
The Ninth Circuit has held that even when the judgment was entered "pursuant to the government's request," the appeal period of sixty days still applies to EAJA requests. Li v. Keisler, 505 F.3d 913, 917 (9th Cir. 2007); Van v. Barnhart, 483 F.3d 600, 607 (9th Cir. 2007).
The Ninth Circuit considers a judgment final when there is "no longer any possibility that the district court's judgment is open to attack." Al-Harbi v. INS, 284 F.3d 1080, 1084 (9th Cir. 2002). Witt has pointed to a specific way in which the government might have attacked the Court's judgment during the sixty day appeal period. [Dkt. 205 at 4]. The judgment was not final until the lapse of the sixty-day appeal period, and Witt's EAJA request was due within thirty days of the lapse of that period. Witt's motion is therefore timely.
A prevailing party is "one who has succeed[ed] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing the suit." Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Plaintiff claims that she is the prevailing party in this case. While the government does not contest that Witt has prevailed, it argues that she only prevailed to a limited extent. [Dkt. 204 at 11]. The Court will discuss the extent of Witt's success in relation to the appropriate amount of fees. Witt is a prevailing party entitled to a fee award under the EAJA. 28 U.S.C. § 2412(d)(1)(A).
To overcome Witt's right to fees under the EAJA, the government bears the burden of showing that its "position [] was, as a whole, substantially justified." U.S. v. Marolf, 277 F.3d 1156, 1161 (9th Cir. 2002); Kali v. Bowen 854 F.2d 329, 332 (9th Cir. 1988) (government's burden). The government's position is "substantially justified" if it has a "reasonable basis in both fact and law." Mendenhall v. National Transp. Safety Bd., 92 F.3d 871, 874 (9th Cir. 1996).The Court looks to the "government's position during litigation" as well as "the action or failure to act by the agency upon which the civil action is based." Id.; 28 U.S.C. § 2412(d)(1)(B). In other words, the Court must consider Witt's discharge as well as the government's position during the course of litigation.
Under the EAJA, he Court considers the government's position as a single unit throughout all stages of the case. Comm'r, INS v. Jean, 496 U.S. 154, 159 (1990). This case is unusual, however. When this case was originally filed, the Ninth Circuit had consistently upheld Don't Ask Don't Tell (DADT), and its opinions supported the government's actions. The Court followed that precedent in dismissing the action, and Witt successfully appealed. Witt v. Dep't of Air Force, 444 F.Supp.2d 1138 (W.D. Wash. 2006).
The Ninth Circuit's opinion in this case announced a new standard by which to evaluate DADT. Witt v. Dep't of Air Force, 527 F.3d 806, 813 (9th Cir. 2008). It acknowledged that "[i]n previous cases, we have applied rational basis review to DADT and predecessor policies." Id. However, it determined that given recent Supreme Court precedent, "something more than traditional rational basis review" now applied. Id. This heightened scrutiny test has since been referred to as the "Witt standard." See, Log Cabin Republicans v. U.S., 716 F.Supp.2d 884, 922 (C.D. Cal 2010), vacated by 658 F.3d 1162 (9th Cir. 2011).
Whether the government's position is substantially justified is dependent on whether it had a reasonable basis in the law. Because the law underwent a major change in the course of these proceedings, the reasonableness of the government's position will be evaluated at two distinct times: before and after the Ninth Circuit's May 21, 2008 opinion.
The government's initial action giving rise to this claim (separating Major Witt from the Air Force) was substantially justified. The government's litigation position was similarly substantially justified. Both had a reasonable basis in law and fact. Therefore, prior to the Ninth Circuit decision, the government's position as a whole was substantially justified.
The government separated Witt from the Air Force pursuant to DADT, under the law as it existed prior to the Ninth Circuit decision. The Ninth Circuit has relied on objective indicia, including the views of other courts, to determine whether the government was substantially justified. Pierce, 487 U.S. at 569. The Ninth Circuit has noted that a "string of [government] success" could be indicative of reasonableness and therefore substantial justification. Id.
Witt brought this case against a long history of Ninth Circuit precedent upholding DADT. These cases began as early as 1991 with DADT's predecessor statutes and the Ninth Circuit consistently found DADT to be constitutional. Pruitt v. Cheney, 963 F.2d 1160 (9th Cir. 1991); Meinhold v. United States Dept. of Defense, 123 F.3d 1275 (9th Cir. 1997); Philips v. Perry, 106 F.3d 1420 (9th Cir. 1997); Holmes v. California Army Nat. Guard, 124 F.3d 1126 (9th Cir. 1997).
While the defense of a statute is not always "substantially justified" under the EAJA, League of Women Voters of California v. F.C.C., 798 F.2d 1255, 1259 (9th Cir. 1986), "situations in which the government's defense of the constitutionality of a federal statute fails the 'substantially justified' test should be exceptional." Grace v. Burger, 763 F.2d 457, 459 n.5 (D.C. Cir. 1985).
In this case the government relied on more than twenty years of precedent supporting its position on the constitutionality of DADT. The government's position was substantially justifiedwhen Witt initially brought this case, and through the date of the Ninth Circuit's opinion announcing a new standard.
The Ninth Circuit's opinion upset precedent and changed the analysis that applies to challenges to DADT. Witt, 527 F.3d at 819. Prior to this decision, the government had to prove DADT could withstand rational basis scrutiny. Id. at 813. The Ninth Circuit's opinion, for the first time, required a heightened level of scrutiny. Id. at 819. After that opinion, the government was required to show that "the application of DADT specifically to Major Witt significantly furthers the government's interest and whether less intrusive means would achieve substantially the government's interest." Id. at 821. The government had to show that Witt's sexual orientation negatively affected its interest in "unit cohesion and the like." Id.
On remand the government presented "no credible evidence. . .that Major Witt's sexual orientation ever had a negative effect on the unit morale, order, discipline, or cohesion of [her unit]." Findings of Fact and Conclusions of Law, Dkt. 164 at 3. The government's inability to meet this burden, of course, does not mean that its position was not substantially justified. Kali, 854 F.2d at 334. But its failure to even attempt to do so greatly undermines its claim that its...
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