In re Interest of A.A.
308 Neb. 749
| Neb. | 2021Background
- Juvenile petition filed alleging the mother’s fault/habits justified adjudication and removal of child B.C. from the mother’s home.
- Joshua C., the child’s legal father, intervened and sought temporary physical placement; the juvenile court denied placement by finding Joshua unfit without formally alleging his unfitness.
- Joshua appealed the denial as violating due process; while that appeal was pending the mother pled no contest to adjudication and the district court proceeded.
- Joshua prevailed on appeal regarding the denial of placement; he then sought attorney fees and expenses under Neb. Rev. Stat. § 25-1803 as the prevailing party against the State.
- The Nebraska Supreme Court evaluated (1) whether the statutory waiver of sovereign immunity for fees applied and (2) whether the State’s position was "substantially justified."
- The Court held the State’s decision to bring the petition was substantially justified as a whole, so the limited waiver in § 25-1803 did not authorize awarding Joshua’s requested fees for this appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Joshua can recover appellate attorney fees under § 25-1803 after prevailing on appeal from the denial of temporary placement | § 25-1803 requires award to prevailing party against the State; Joshua prevailed and is eligible | The statutory waiver is limited to fees after final judgment in the action and only if the State’s position was not substantially justified | Denied — appeals were from intermediate final orders; statute construed to apply only when the underlying action (as a whole) was not substantially justified |
| Whether juvenile proceedings here constitute a civil action by the State triggering § 25-1803 | Joshua: juvenile proceedings are subject to the statute so prevailing intervenor may recover | State: statute’s waiver must be strictly construed and applies only in the circumstances the Legislature specified; in any event the State’s position was substantially justified | Court did not rest relief on a categorical exclusion; it found the State’s action was substantially justified, so no fee award under § 25-1803 |
| Whether waiver covers fees for defending particular motions/issues within an otherwise substantially justified action | Joshua: fees for this discrete appellate victory should be recoverable | State: waiver looks to the State’s position in the case as a whole; fees for discrete issues are barred when the action overall was substantially justified | Held that waiver does not permit recovery for fees defending particular motions where the State’s position in the action as a whole was substantially justified |
Key Cases Cited
- Commissioner, INS v. Jean, 496 U.S. 154 (1990) (interpreting “substantially justified” to assess the government’s position in a case as a whole rather than issue-by-issue)
- Moser v. State, 307 Neb. 18 (Neb. 2020) (statutory waivers of sovereign immunity are strictly construed in favor of the sovereign)
- Dycus v. Dycus, 307 Neb. 426 (Neb. 2020) (discussion of attorney-fee recoveries under Nebraska practice rules/statutes)
- Meier v. State, 227 Neb. 376 (Neb. 1988) (definition and application of "substantial justification")
- Roanoke River Basin Ass’n v. Hudson, 991 F.2d 132 (4th Cir. 1993) (federal precedent applying Jean to evaluate government’s justification from totality of circumstances)
- In re Interest of Krystal P. et al., 251 Neb. 320 (Neb. 1996) (noting application of § 25-1803 in proceedings involving the State)