*1 denied, (5th cert. Cir.), F.2d 818, 105 (1984).
U.S. 83 L.Ed.2d S.Ct. part conclusively While of the Board order 933(g) ap determined that section plicable, the does to the com issue relate
pensation Interrupting award. the admin process
istrative portion to review a contrary Board’s decision would be purpose 921(c). of section
Therefore, join our sister circuits and hold that Board decisions that remand
cases to an AU for a determination of damages are not final orders. The motion granted.
to dismiss is TRAHAN, Ava P. et al. REGAN, Secretary Donald T. al., Treasury, Appellants. et No. 86-5051. United Appeals, States Court of
District of Columbia Circuit.
Argued Nov. July
Decided *2 Justice, Paup, Atty., Dept, of
chael L. D.C., brief, Washington, on the for were appellants. Deford, S. Dudo-
Gill with whom Neal vitz, Cal., Angeles, Michael R. Schus- Los ter, Sweeney Eileen Richard Hub- P. and D.C., brief, bard, Washington, were on the appellees. for MIKVA, B. RUTH Before: SILBERMAN, Circuit GINSBURG Judges. by filed
Opinion for the Court Judge MIKVA. Circuit Dissenting opinion by filed Circuit Judge SILBERMAN.
MIKVA, Judge: Circuit Treasury Secretary of the and the Internal Revenue Service Commissioner of (IRS) award challenge the district court’s in- litigation costs attorney’s against the appellees in a suit curred partic- former Appellees, current and IRS. Security Income Supplemental in the ipants applica- their fees (Benefits) program, filed to Justice Act Equal Access tion under (1982 2412(d)(1)(A) & (EAJA), 28 U.S.C. § 1985), obtaining a declarato- after Supp.III from re- preventing the IRS ry judgment the So- information to leasing certain tax (SSA). The Administration Security cial application, hold- granted district court IRS action was challenged ing that the justified.” We conclude “substantially that, governing the standards under awards, correctly held district court fee in this case was that the IRS’ Further, we con- “substantially justified.” “spe- does not involve that this case clude make an that would circumstances” cial af- Accordingly, we unjust. of fees award firm the fee award.
Background
I. litigation precipitated
present proceeding fee arose from SSA’s Justice, Miller, Dept, implementation Gayle Atty., policy verify P. of a new diGenova, Atty., the income and Joseph recipi- E. U.S. assets of Benefits with whom Olsen, Gen., Atty. program, and Mi- ents. The Roger M. Asst. Benefits administered SSA, designed cash assist- which may the IRS release otherwise confi- needy ance to who are elderly, individuals information, dential tax but it does not blind or Title disabled. See XVI of the authorize disclosure of the information at Act, Social Security U.S.C. 1381- §§ issue here to SSA. See U.S.C. (1982). eligible assistance, 1383c To be 6103(c)-(o). 6103(c), Under subsection quali- such must meet individuals financial however, the IRS release tax informa- fications established SSA. tion, “subject requirements to such *3 1382; U.S.C. 20 C.F.R. 416.1100-.1266 § §§ may prescribe by regula- conditions it [as] (1986). Regulations prescribed by SSA re- tions, person persons ... to such or as the quire recipients supply Benefits to the taxpayer may designate in a written re- agency necessary with the evidence to quest or a consent to such disclosure.” In prove eligibility any and with information light provisions, of these GAO made two agency requests. See 20 C.F.R. suggested recommendations: GAO 416.200. If an individual fails comply to § amend the specif- Code to request, with an agency may SSA de- ic authorization for the IRS to release the termine ineligible that the individual is to or, needed information to SSA the alter- suspend any receive Benefits and further native, that attempt SSA to obtain the de- payments. 416.1322, See C.F.R. 416.- §§ sired by soliciting recipi- information 714(b). Before discontinuance of Benefits ents’ consent to such disclosure. occur, however, may SSA must afford a legislative Because change im- was not recipient procedural protections, extensive mediately forthcoming, agencies pur- including See, hearing. notice and a e.g., SSA, sued GAO’s 1383(c)(3); second recommendation. U.S.C. C.F.R. 416.- § §§ together IRS, with developed 416.1407-1494. GAO and the designed give notice-and-consent form to In order to ensure that provides SSA SSA access to the pur- desired information only eligible assistance to individuals and in 6103(c) suant to subsection of the Code. amounts, correct Security the Social Act The form consisted of parts. two In the agency verify directs the to an applicant’s part, attempted first SSA notify to Benefits representation eligibility through corrob- recipients purpose requested of their orating evidence from other sources and consent: additional information obtained as neces- sary. 1383(e)(1)(B). See 42 U.S.C. The § give We want the us information [IRS] statute identify any does not specific your from tax records. The will [IRS] sources supplemental for this evidence. give us you sign the information if Congress, however, required that other form below. agencies “provide federal such information compare We will this tax information purposes as needs for of deter- [SSA] you your what told us about income mining eligibility benefits, for or amount of you and what own to make sure we are verifying or other respect information with paying right your amount in [Bene- 1383(f). thereto.” U.S.C. § checks. fits] Prompted by reports widespread recipients notice then advised that: abuse in program, the Benefits the General You signing have a choice about Accounting (GAO), Office separate two form. But we must have accurate infor- reports, verify recommended that the SSA mation your about income you and what eligibility by using tax information collect- pay your own to If checks. [Benefits] by ed the IRS. The International Revenue you sign form, your do not [Benefits] (Code) Code's stringent confidentiality re- may checks be affected.
quirements, however, erected a substantial
part
roadblock to this
The second
source of
of the form
information.
constituted
recipient’s
only
requested
release tax data
ex-
“consent.” It
the re-
plicitly
by
cipient’s signature,
authorized
authorizing
section 6103 of the
the IRS to
6103(a) (1982).
Code.
See U.S.C.
relating
disclose to
information
SSA
§
section
many
agencies
lists
federal
recipient’s
separate
unearned income. In a
agency
document sent
area office we concluded that
the notice-and-consent
staff,
explained that
SSA
those who re-
forms were invalid in
major respects.
First,
subject
fused to consent would
we held
be
to sus-
that the form “does not meet
requirements
pension procedures.
sign
Refusal to
regula-
IRS’ own
tions,”
was,
itself,
grounds
and therefore
apparently
form
reliance on the
forms
suspending
May
would
Benefits.
SSA
be “invalid.”
Treasury
Id. at 455. The
Regulations per-
mailed the form to each of four million
taining
6103(c)
require
subsection
former
recipients.
and current Benefits
the consent “be in the form of a
recipients,
Almost
written
including
three million
pertaining
document
solely to the autho-
appellees, signed and returned the form to
specific
rized disclosure” and contain
infor-
SSA,
requested.
as SSA had
including
mation
year
taxable
cover-
“[t]he
1982, eight
recipients
In June
Benefits
ed
the return or return information.”
against
alleging
filed a class action
SSA
301.6103(c)-l(a) (1982).
26 C.F.R.
In this
statutory
various
and constitutional viola-
regard,
*4
the form at issue authorized the
respect
tions with
to the notice-and-consent
release of information “for
years
all tax
sought
enjoin
forms. Plaintiffs
the SSA
beginning
1, 1980,
January
and subse-
gaining
from
access to the tax information
quent.”
It
expiration
contained no
date.
by
covered
the forms. The district court
granted
Second,
summary judg-
SSA’s motion for
emphasizing
importance
of
judge explained
ment.
maintaining
The trial
that be-
confidentiality
of tax re-
“premature,”
turns,
cause the case was
he had
we found that
the forms did not
complaint
dismissed the
reaching
without
“type
knowing
of
and volun-
Schweiker,
the merits. Tierney
tary
6103(c)
v.
Civ.Ac-
consent that [subsection
of]
(D.D.C.
6, 1982).
July
tion No. 82-1638
contemplates.”
the statute
Id.
forms
appealed
Plaintiffs
the decision to this
notify recipients
procedur-
failed to
of their
And,
court.
rights.
found,
al
as we
they
because
poorly-veiled
“contained
threats that
After the district court’s dismissal in Ti-
recipients’ benefits would be terminated if
erney,
conveyed many
signed
SSA
of the
they
sign,”
failed to
likely
the forms were
forms to the
Some of
plain-
IRS.
the same
recipients
relinquishing
to coerce
into
their
IRS,
against
tiffs then filed suit
alleg-
statutory right to confidentiality.
Id. at
ing,
alia,
inter
that the forms had been
Although
we found that “the form
by
coercion,
obtained
threat and
rather
used in this
mockery
case
of the
[made]
consent,
required
than
as
under subsec-
requirement,”
consent
specifically
re-
6103(c)
Code,
tion
of the
and that the forms
judgment
served
as to whether another
requirements
did not meet the
set forth
knowing
form could
voluntary
result
applicable
regulations.
Plaintiffs
conclusion,
consent.
Id.
we directed
sought declaratory relief and an order en-
the district court to
declaratory
enter a
joining
disclosing
the IRS from
information
judgment
signed
that reliance on the
forms
A
judge
based
the forms.
different trial
justify
the IRS to
release of tax infor-
complaint
variety
dismissed the
on a
mation would be unlawful.
at 457.
See id.
jurisdictional
grounds,
and remedial
con-
cluding
plaintiffs’
concurring
opinion
Tierney urged
claims were “insub-
A
Congress
stantial and frivolous.”
Regan,
Trahan v.
to amend section 6103 of the
57,
(D.D.C.1982).
F.Supp.
give
554
63
Plaintiffs Code to authorize the IRS to
the SSA
appealed this decision as well.
the tax information it needed.
at
See id.
458-59.
so amended the statute
appeal,
On
this court consolidated the
6103(Z)(7),
in 1984.
See
U.S.C.
as
ruling
two cases. We reversed the
in Tra-
2651(k)(l)
by Section
of the Defi-
amended
and,
result,
unnecessary
as a
found it
han
cit Reduction Act of
Pub.L. No. 98-
independent
to reach the
issues raised in
98 Stat.
Schweiker,
Tierney.
Tierney
v.
(D.C.Cir.1983). Upon reaching
F.2d 449
After the district court entered the de-
IRS,
instructed,
against
claratory judgment
appellees
of the claims
merits
application
filed their
under the EAJA for
II. Discussion
attorney’s
litigation
fees and
costs. The
Congress passed the
“to
encour
granted appellees’ motion,
district court
age relatively impecunious private parties
$25,743.73
awarding
them
fees and
challenge
oppressive
unreasonable or
in costs. Trahan v. Regan,
$80.00
governmental
by relieving
behavior
such
(D.D.C.1985).
F.Supp. 1163
In determining
parties of
fear
incurring large litiga
liable,
appellants
were
the court ruled
expenses.” Spencer
NLRB,
the 1985 amendments to the EAJA
(D.C.Cir.1983),
denied,
F.2d
cert.
(Amendments) applied to the instant case.
936, 104
1908, 80
466 U.S.
S.Ct.
L.Ed.2d 457
ruling,
As a result
of this
(1984).
key provision
of the EAJA
required
to show that it was “substan-
provides:
tially justified” in
litigating posi-
both its
court shall
prevailing
award to a
[A]
tion and its administrative acts or omis-
party ...
fees and
expenses
other
...
filing
sions that led
underly-
of the
party
incurred
in any civil action
ing suit.
Id.
1165-66. The court looked
...,
including proceedings
judicial
re-
opinion
to this
prior
court’s
in the
appeal to
action,
view
brought
by or
position
determine if the IRS’
was substan-
against the United
any
States in
tially justified. The district court first dis-
having jurisdiction
action,
of that
unless
missed the
contention that
finds that the
IRS had not taken
“official” admin-
United States
substantially justified
istrative action on the forms and that
special
or that
circumstances make an
“position
therefore there was no
*5
unjust.
award
United States” in this
regard,
case. In this
(d)(1)(A)
28 U.S.C.
2412
1985).
(Supp.III
the
§
court noted our observation in Tierney
appeared
prepared
IRS
to release
Congress’ 1985 Amendments
to the
the tax information and observed itself that EAJA modified the statute in several re-
the
reject
IRS had failed to
improper
the
spects.
pertinent
As
proceeding,
this
Both,
found,
forms.
constituted
the Amendments
clarified the statute
“positions”
purposes
for
of the EAJA. Id.
resolving
split
a
in the
concerning
circuits
at 1166-67. The court then concluded that
meaning
the
“position
of the United
government’s
the
conduct at
agency
the
States.” See Center
Science in the
for
level was not substantially justified be-
(CSPI),
Regan
Public Interest v.
802 F.2d
cause “the
prepared
IRS was
to release tax
518,
(D.C.Cir.1986).
523-24
The Amend-
pursuant
information
to consent
forms ments added a definition of
phrase
which violated
regulatory require-
clear
only
which includes
government’s
not
the
ments.”
Id.
1167. The court added that
litigating position but also “the action or
motivated,
its conclusion
part, by
its
failure to
agency upon
act
which the
conviction that “the EAJA should be con- civil action
is based.”
28 U.S.C.
greater
strued to
‘incentive for
2412(d)(2)(D).
required
This addition
§
where,
careful agency
here,
action’
change in this circuit’s
justifica-
substantial
agency's
large
conduct involves a
inquiry.
number
tion
We had
pre-
construed the
people
of
and affects their assertion of
requiring
1985 EAJA as
the court to scruti-
statutory rights.” Id. at 1167 n. 5.
only
government’s
nize
position in the
litigation.
Spencer,
terred from precisely action was the sort of novel inter interpre extensions and novel but credible pretation underlying enforce law vigor often underlie tations of the law that Congress contemplated in ment efforts that protect efforts” and to ous enforcement enacting special excep circumstances rely “equitable the court’s discretion to The IRS asserts that tion to the EAJA. denying a fee award. considerations” creative, litigation arose from a but this 1980 U.S.Code H.R.Rep. No. 96-1418 well-grounded, attempt by As with Cong. & Ad.News at statutory obligations comply with its provision, justification the substantial gener Security Act and its under the Social of demonstrat government has the burden responsibility. As we obligation al of fiscal special circumstances the existence case, previous opinion this noted our unjust. that would render an award “conflicting signals” given has Tierney, F.2d at 454. On the specifical court did not SSA. district hand, Congress mandated that SSA one has ly special IRS’ circumstanc respond to the context, eligibility from applicants’ determine arguments. es In a similar applicants’ other than the own attorney’s sources recently remanded
105 provide for disclo- did not the hand, Congress revised Code statements; the other on prepared to afford the was the release sure that IRS in the Code for failed seeks. here. that SSA now SSA the information of Congress speaks that observed
We “[w]hen arguments little The IRS’ other merit conflicting minds, separate the eq- contends that two IRS discussion. dilemmas.” Id. difficult present can goals granting make the of uitable considerations what was “[g]iven argues that The IRS especially un- in this case attorney’s fees Congress in enact- oversight an obvious First, complains IRS that SSA just. the Revenue Internal of the Section in de- principal agency the involved was consent forms Code, to use the attempting district and since the signing the forms to a rather solution only practical the application for the award denied the court Although do not we problem.” significant SSA, against in the case attorney’s fees of the that the omission necessarily agree impose fees harsh” to be “rather it would “oversight,” we congressional of result point, initial the court IRS. As an on the in- government’s the quarrel with have no SSA, against the application the fee denied apparent dilemma. resolving the terest plaintiffs found that part, because it condemning the are not We party” that “prevailing not the were condemning the means motives; are we addition, proceeding was re- the case. its to reach chose the that Amendments; prior to the solved not, has it ever nor goal. It is intended therefore, SSA’s the found that court attempt to been, agencies for acceptable justi- substantially litigating position was Congress has created problems solve solely jurisdiction- on litigated fied and SSA their own contravenes taking action Heckler, Tierney Civ. grounds. v. al the Congress writes governing statutes. 28,1984) (D.D.C. March No. 82-1638 Action as apply them laws; must agencies the WESTLAW, DCT database]. [Available they should and not as they are written are ad- in this case important, More coordinat- perfectly in a written have been concerning the con- dressing role the IRS’ falls If a statute legislative world. ed nothing about We find harsh sent form. necessary or desireable providing short of part for its IRS accountable holding the Congress, for problem is a “that provisions, re- action, similar if SSA avoided even the courts, to ad or the [agency] not the sponsibility. Feder the Governors dress.” Board of of if the dis- Second, the asserts IRS Finan System Dimension al Reserve application the resolved court had trict 681, 689, 361, 106 S.Ct. Corp., 474 U.S. cial would 1985 Amendments quickly, more (1986); Independent see L.Ed.2d Appel- in this case. an issue not have been Bankers Association Community of February application in their lees filed Dakota, Governors Inc. v. Board South of did not consider but System, Federal Reserve of 428, Had the of 1985. October application until draw (D.C.Cir.1987). The can IRS August before court acted district Congress fact that support no from controlling and been would have Spencer specifically the Code eventually amended only the examined court would have informa- to SSA provide for release im- IRS litigating position. The agency’s through attempted to secure that SSA have found would plies that forms. notice-and-consent use substantially litigating position agency’s Code, may have amending the By presump- argument is both This justified. exchange of agreement “that the shown assuming the Even irrelevant. tuous and law enforce- legitimate information was [a] correct, see we fail hypothesis IRS’ But effort,” the IRS contends. ment get now equity how demands of amend- Congress’ subsequent enactment reading of the court’s the benefit IRS’ pursuit allowed which ments interpretation the clear prior to means the sanction goals is not a Amend- Congress in its enunciated legisla- anything, If employed. the statute. ments to the un- the fact highlights action tive *10 sum, Thus, meaning that the IRS has not we conclude EAJA. Rose special requires circumstances carefully demonstrated us to consider whether in unjust fee award would make a government’s position administrative case. despite having was reasonable been found
legally defective.
at 1089. “Con-
See id.
Conclusion
gress’
legal
inclusion of the discrete
stan-
[substantially justified]
dard
makes clear
preparing
At the time the IRS was
information,
independent
through
that an
evaluation
tax
it
release confidential
acting
regulations
perspective
required.”
under a statute and
that EAJA
is
Id.
plainly proscribed such action. There were
majority rejects
approach
1087. The
made
no facts extant which would have
government’s
involving
for cases
inter-
tolerable;
indeed,
such action
the ultimate
pretation
regulations,
of statutes and
con-
the enforcement needs of SSA
solution to
cluding
governing scope
that since our
by Congress
amending
in
was achieved
requires
agen-
review
that we defer to an
Congress
Internal Revenue Code. Until
cy’s
interpretation,
reasonable
our declar-
action,
authorized such
the IRS’ adminis-
ing
agency’s position “contrary
to law”
position
participating
in the draft-
trative
necessarily
agency’s posi-
means that the
of the notice-and-consent forms and
unreasonable,
perforce
and thus
preparing to release otherwise confidential
substantially justified
under EAJA.
pursuant
tax information to SSA
I
majority opinion
Since
believe the
is a
regulations
forms in contravention of its
victory
logic
of semantics over
and con-
substantially justi-
and the Code was
intent,
gressional
I respectfully dissent.
special
fied. There are no
circumstances
U.S.A.,
Under Chevron
Inc. v. Natural
against awarding
ap-
that counsel
fees to
Council, Inc.,
Resources
467 U.S.
Defense
party in
pellees,
prevailing
the civil suit
(1984),
104 S.Ct.
trative judicial law and decisionmaking will
bear. Under the rule, majority’s future of attorney’s
awards
fees may
depend
well
capricious
almost
judicial labeling.
truth,
there are analytically only two
postures
matter what words are used
—no
express
them—for courts to take in de-
termining whether
government’s
posi-
tion is substantially justified.1
isOne
say
the majority
does
this case—
—as
if
government
merits,
loses on the
Spencer
NLRB,
Ever since
"slightly
more than reasonable"
inter-
(D.C.Cir.1983),
denied,
cert.
466 U.S.
changeably.
Pierce,
See Battles Farm Co. v.
S.Ct.
quired
(1984),