Dr. Bhartur N. Premachandra v. Dr. Murray G. Mitts, Etc.

PREMACHANDRA, Bhartur N. Dr.

Appellee, MITTS, etc., Murray G. et

Dr.

al., Appellant.

No. 82-2441. Appeals,

United States Court of

Eighth Circuit. Sept.

Submitted 1983.

Decided Feb.

Rehearing Rehearing En Banc April 18,

Granted

suit in federal district or- seeking enjoining terminating der the VA from him and from him to his requiring dismantle process until he received a due laboratory, hearing before the MSPB. Plaintiff Teitelbaum, Barker, Marilyn Sally S. E. pretermin- claimed that he was entitled ato Schuchat, Louis, Werner, Mo., Cook St. & hearing the 5th ation Amendment to appellee. for prevent possible to irreparable harm his lab- Dittmeier, Thomas E. Atty., U.S. St. oratory experiments. research and Mo., Louis, McGrath, J. Paul Atty. Asst. court, The F.Supp. district ini Gen., Kanter, Sobol, William Anne Buxton tially re granted plaintiff temporary a Zeppos, Attys., Div., Dept, Nicholas S. Civ. order, straining but then Justice, later denied him D.C., of Washington, for appellants. injunction. preliminary The court found HEANEY, Before Judge, Circuit FLOYD plaintiff irreparably injured by GIBSON, R. Judge, Senior Circuit and the dismantling laboratory, the but GIBSON, Judge. JOHN R. Circuit potential nevertheless concluded that this hardship outweighed by plaintiff’s GIBSON, FLOYD R. Senior Circuit slight chance of success on Re the merits. Judge. lying principally on Arnett Kennedy, (VA) The Veterans ap Administration 134, 94 1633, 40 (1974), L.Ed.2d 15 * peals the plain district court’s award to rejected the court plaintiff’s contention that tiff, Premaehandra, Dr. Bhartur N. laboratory thе continuation of his research $15,630.67 in attorneys’ $1,848.49 fees and entitled pretermination/predis him to a expenses under 28 2412 (Equal U.S.C. § mantling process hearing due 5th under the Act) Access to Justice and 42 U.S.C. § Mitts, Amendment. See Premachandra (Civil Rights Attorneys’ Act). Award The 509 F.Supp. (E.D.Mo.1981). 428-30 VA contends the plaintiff eligible was not for attorneys’ (1) fees because: plaintiff plaintiff’s district court also denied was not “prevailing (2) party”; plaintiff’s injunction for application pending ap- an suit pursuant was not brought to civil as peal, Eighth did the Circuit and the rights provision enumerated in 42 U.S.C. Supreme Plaintiff later Court. submitted (3) and sovereign bars immunity injunction second pending ap- motion for awards of fees for time attorney expended Eighth Circuit, peal seeking the this time 1,1981 before the October effective date an order prohibiting VA from disman- reject EAJA. We these contentions tling laboratory disrupting his his experi- fees, affirm the award of attorneys’ but ments, permitting terminate but the VA to $10,000. reduce the amount of the fee to employment prior process his to the due

I. Background hearing before MSPB. is a Plaintiff research em- endocrinologist motion, response this sеcond and to ployed by past the VA for eighteen expressed willingness VA’s not to dis- years. 30,1980, On December the VA noti- rupt plaintiff’s ap- laboratory pending plaintiff fied termination of his effective peal, Eighth Circuit entered order to 16, 1981, January and also directed him to stay the dismantling VA’s lab- experiments end his and dismantle labo- his oratory pending argument oral before the ratory date. Eighth stay Circuit. This did not extend response First, plaintiff’s employment Plaintiff’s so sub- was two-fold. VA he appealed sequently his salary termination to the Merit terminated but Systems Protection (MSPB). working Board him to continue in the permitted Second appeal, most relevant laboratory. he filed * Nangle, Judge, John Honorable F. trict United States Dis- Eastern District of Missouri. sonable, evidenced eventual by plaintiff’s from argument plaintiff’s appeal

Oral request calculating court’s denial of his district success before MSPB. injunction was held before the preliminary award, by one-third the court reduced However, Eighth on June Circuit to reflect compensable hours the number of mer- Eighth Circuit never ruled on the was unsuccessful the fact that because, appeal its of this in a letter from termi- enjoin the VA attempting court, July agreed the VA dated hearing to his employment prior his nating [plain- “not to dismantle or interfere with therefore before the Board. The court laboratory use of the before the deci- tiff’s] $15,630.67 and awarded fees of discharge merits of is filed sion [his] $17,- $1,848.49 for a total expenses Hearing Examiner.” This [MSPB] 431.16. agreement permitted plaintiff to remain in Party Prevailing II. laboratory until the ruled on the MSPB 26, validity discharge. of his On October in this case is The threshold issue 1981, the Board issued a final decision rev- finding in whether the district court erred ersing plaintiff. the VA’s termination of party” un plaintiff “prevailing result, the as Eighth As Circuit dismissed (EAJA) 2412 and therefore entitled der § moot of the denial of his plaintiff’s appeal EAJA attorneys’ Although fees. the preliminary injunction. motion for a party”, “prevailing does not define the term Following Eighth these decisions legislative history clearly indicates Board, plaintiff sought Circuit and the with its consistently the term is to be read attorneys’ and obtained fees in connection H.R. shifting use in other fee statutes. See discharge with the proceedings before 96-1418, 96th 2nd 11 Rep. Cong., No. Sess. plaintiff Boаrd.1 The also asked the dis- (1980), Cong. & reprinted in 1980 U.S.Code trict court to award reasonable attorneys’ 4984, Recently, Ad.News 4990.3 Su fees he preliminary injunc- incurred in the preme “plaintiffs may Court stated that be litigation, pursuant tion to 42 U.S.C. 1988 attorneys’ for ‘prevailing parties’ considered 2412(b). and 28 awarding U.S.C. In at- signifi purposes they if succeed on torneys’ $15,630.67, fees of the district court some litigation cant issue in which achieves interpreted conjunction in with sought bringing parties of the benefit the 42 1988 U.S.C. to make federal defend- -- Eckerhart, v. Hensley suit”. ants, VA, prevailing like the liable to a --, 40, 76 L.Ed.2d 50 103 S.Ct. party for attorneys’ fees incurred in a suit (1983), Nadeau, 278-79. quoting, 581 F.2d at rights. for the vindication of civil however, “Prevailing party”, is not limited then, court applying two-part the Nadeau2 entry judg to a “victor” after of final only test, plaintiff concluded that “pre- was a merits; a following ment a full trial on the vailing 1) party” litigation because: prevailed be considered to have party may his “catalyst” lawsuit served as a through a favorable settlement of a case agreement VA’s disrupt plaintiff’s not ulti agreement, consent even if he does laboratory pending dispositiоn of his case 2) before the Agency; mately prevail his lawsuit was rea- on all issues.4 United States fees, Eckerhart, awarding attorney’s Hensley the Board con- 3. See also v. -- U.S. --, -- n. 1933, 7, 7, cluded that VA “should have known that 1939 n. 76 L.Ed.2d 103 S.Ct. [plaintiffs] separation could 40, (1983); Memphis not have been sus- v. Bd. 50 n. 7. Northcross tained” and that reck- 2201, Education, 427, “[w]hether [VA’s] 37 412 U.S. 93 S.Ct. precipitated lessness heedlessness was provi (1973) (similar fee L.Ed.2d 48 faith, clearly ill-will or bad the facts of this case ). pari passu interpreted should be sions prudently show that had the made rea- [VA] certainly inquiry it sonable would have and history legislative the EAJA states: 4. The should have ascertained the outset phrase party” “prevailing be should not [t]he charges plaintiff were without mer- entry after of a final limited to a victor it.” judgment following on the merits. a full trial prevailing Helgemoe, party ob- (1st A deemed he 2. Nadeau 581 F.2d Cir.1978). of his case ... tains a favorable settlement Bank, ex Heydt voluntary rel. v. Citizens State compliance. support, (8th Cir.1982); F.2d United States relies on Parham v. Southwestern Bell Tele Yalobusha, Acres, phone, (8th 329.73 Grenada and Cir.1970) F.2d 429-30 (5th Cir.1983) (en Miller, F.2d 808-09 and Williams v. banc); Busbee, Doe v. Cir.1980) curiam). F.2d (per (11th Cir.1982). We are сompelled apply “reasona- Nadeau, bleness” as the parties prong

While the court did agree the law First, they disagree Handicapped. generally, proper stan Parham determining dard court’s failure “prevailing party” expressly apply the “rea- where, here, prong as sonableness” of Nadeau voluntary defendant’s was under- compliance with standable since Parham plaintiff’s requested preceded relief Nadeau by eight years. Parham, however, moots Reading the lawsuit. The VA contends the appropriate is difficult to conceive that two-part standard test the court regarded plaintiff’s announced in suit Helgemoe, Nadeau v. case be- applied by ing anything Parham, the district court. but reasonable. See Second, step The first 433 F.2d at 429-30. requires under Nadeau in United determine, matter, Handicapped, 346-7, as a factual 622 F.2d at the court whether the cited suit served as a Parham in applying cata Nadeau's two- test, lyst i.e., part “a necessary important apparently recognizing fac that Na- — tor” —in achieving augmented, deau rather relief desirеd. This than contradicted here; first step presents Third, no Parham. dispute the although both William's parties agree on court a only determination, the of a made necessity “catalyst” “cata lyst” inquiry gave and the VA no for dispensing does not reason contest with the the district finding prong court’s the “reasonableness” plain Nadeau in cases tiff’s lawsuit as served a where catalyst5 bring voluntary compliance, in rather a than ing plaintiff’s settlement, i.e., about desired achieved the desired relief. In relief — maintenance of his all laboratory probability, the William's pending the court decided disposition Board’s not the to discuss the underlying ap “reasonableness” of the peal. Assuming plaintiff’s plaintiff’s suit was lawsuit in a cata order to avoid belabor- lyst, part the second ing the requires plaintiff’s Nadeau a obvious—since suit was court to make legal clearly establish, the determination reasonable —rather than to plaintiff’s silentio, whether suit “frivolous, was sub a legal so nice distinction between unreasonable, or a groundless” that settlement agreement the de and com- voluntary fendant’s voluntary compliance pliance. Fourth, plain with United Handicapped itself tiff’s desired relief recognized “gra two-part considered that Nadeau’s ap- test tuitous.” Id. plied to obtains litigant cases where a relief through agreement either a settlement As by noted the district court and the the action the voluntary by defendant. VA, Eighth Circuit adopted both parts 622 F.2d Handicapped, 346 n. 5. of Nadeau’s two-part test in United Handi- capped Andre, Federation v. 622 F.2d Plaintiff does not and offer we cannot (8th Cir.1980), 346-347 which, a case like discern why reason we should a apply Nadeau, through involved relief a settle- different prevailing party test where relief agreement. ment The neverthe- through voluntary obtained compliance less part contends that the second agreement. Na- rather than a settlement asking plaintiff’s whether situations, suit was both the “reasonableness” in- deau — inapplicable in “reasonable” —is cases quiry by congressional is dictated the same ultimately prevail agrees plaintiffs not catalyst even he does on 5. VA suit was a H.R.Rep. maintaining laboratory all pending issues. No. 96-1418 at re- dispositiоn printed plaintiffs Cong. Board’s the merits of 1980 U.S.Code & Ad.News improper discharge p. claim. VA’s Brief 15 n. however, claim, legal for the i.e., basis vindi- purposes underlying EAJA — suf being as the issue court viewed district and deter- legal rights cating plaintiffs ‍​‌‌​‌‌‌‌​‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​‌‍claim could plaintiff’s close that ficiently unreasonable con- government’s ring unreasonable. be characterized 96-1418, 1,5,10; H.R.Rep. No. duct. See issue into an deeply too delving 4984, Without Ad.News, Cong. & 1980 U.S.Code volun the VA’s mooted that has been NLRB, Spencer v. see also say unprepared we are tary compliance, plaintiff’s legal If (D.C.Cir.1983). hearing prior to a claim plaintiff’s “frivolous, groundless, truly claims were was clear laboratory dismantling of the unreasonable,” then, of the regardless consti traditional merit under devoid of ly took, awarding form the relief Kennedy, Arnett v. theory. tutional to vindicate would serve neither (1974), 1633, L.Ed.2d 15 134, 94 S.Ct. nor to deter unrea- legal rights plaintiff’s service that a civil justices recognized six conduct. government sonable hear pretermination to a employee’s right plain- whether This leads us to consider rule by an absolute determined not ing was as a matter of tiff’s suit was unreasоnable interests balancing competing but pretermina- Plaintiff’s suit law. employ employee hearing brought tion/pre-dismantling (Pow 167-68, 94 at 1650-51 er. Id. at clause of the directly process under the due Blackmun, concurring in ell, J. joined by J. to the Con- 5th Amendment United States (White, J. concur 94 S.Ct. part), inquiry, of our we purposes stitution. For 217-18, dissenting part), ring part aspect focus J., joined by (Marshall, 1675-76 94 S.Ct. i.e., granted he was relief: suit on which J., dissenting). Brennan, Douglas, J. and process hearing prior the claim for due fully em was more balancing approach The laboratory. The dis- dismantling of his v. El in Mathews and embellished braced suit was rea- trict court concluded that the 334-35, 96 S.Ct. dridge, 424 U.S. sonable, eventual pointing where the 902-03, (1976), 47 L.Ed.2d contends success before the Board. VA Security Adminis approved Social established the suits’ unreasonableness was hearings on conducting practice tration’s plaintiff’s rejection the district court’s by after disability benefits the termination of by pre-dismantling hearing claim for a Bathke, Brown v. Later in termination. subsequent rejection of Eighth Circuit’s Cir.1977) Eighth (8th The VA’s injunction pending appeal. his Mathews, that under Circuit, stated citing purported- not to dismantle was agreement circumstances, employ government some litigat- nothing “gratuitous than a ly more hearing may not satis post-termination ee’s interpreted be ing courtesy,” and should not Hathaway process. due also fy See plain- that recognition as a or concession Cir.1976) Mathews, F.2d The VA also any legal tiff's suit had merit. satisfy hearing may (postdeprivation success before points plaintiff’s out that and the VA We cannot find process). due the merits of his Board was irrelevant any controlling precedent pointed has not dismantling hear- pretermination claim for is never employee that a civil service saying ing. re hearing, predeprivation entitled to a Hence, the circumstances. gardless plaintiff’s suit not believe We do hearing right predismantling to a plaintiff’s “frivolous, ground as so may regarded be balancing competing by is determined that the VA’s vol less, and unreasonable” VA. and the interests of the regarded be as may untary compliance Handicapped, plaintiff’s balancing approach, “gratuitous.” Applying First, de- though the district court the irretrievable preventing interest in F.2d at relief, laboratory argu- apparently it did of his scientific struction preliminary denied interest weighty on than the briefing ably may the benefit of full be more so without Arnett; and, discharged employee plaintiff’s process due merits legal dismantling the labora- interest in on the VA’s having fully been briefed claim. After be hearing has, to a less tory prior weighty government by because the government'employer’s than the interests voluntary compliance, virtue of its effec- Without an expressing opinion in Arnett. tively precluded judicial a final determina- proper one the other on the resolu- way on the tion merits. issue, this we conclude merely tion of by We are also unpersuaded VA’s plaintiff’s claim was frivolous not so contention that the fear of a fee award voluntary compliance may pre- the VA’s might litigating force it “to harden its posi- be gratuitous. sumed to tion the future” and “never to voluntari- agree to defer action as a ly legal litigating VA’s suggestion its volun courtesy.” with sympathize We the VA’s compliance tary “gratuitous merely well founded in quickly interest and effi- litigating on courtesy” self-serving borders ciently disposing through of claims volun- urged hindsight сould be in every tary compliance Indeed, or settlement. our by case mooted voluntary judicial interest in economy aligns own with compliance. The VA however relies Na However, has this interest. the VA’s judi expressed deau’s statement that “if it been cially determined that defendant’s is conduct fear unfounded because it assumes the required law, ... is not by then defendants significant courts, existence of a risk that must be held to have gratuitously”. acted passing on fees claims in attorneys’ volun- at 281. unwilling F.2d We are to inter cases, tary compliance or settlement will be district pret prelimi court’s denial of to distinguish unable between frivolous and nary injunctive Eighth relief and the Cir claims; reasonable the latter war- Supreme cuit’s and denials Court’s of an Second, rants award of fees. injunction a final pending appeal judicial as Nadeau court so re- appropriately plaintiff’s determination the merits of sponded virtually argument: the identical process Indeed, due claim. the merit of argument “The ways. cuts both If de- that claim was still to be by determined fendants may refuse settle a case and Circuit, Eighth until it wаs mooted accept the litigation cost of continued voluntary VA’s own with compliance plain fees, paying attorneys’ avoid equally requested tiff’s relief. James River counsel, likely rather than Watt, Flood Ass’n Control receive compensation no at all for their (8th Cir.1982). Further, determining, efforts, willing would be to continue the matter, as a legal the reasonableness of litigation on the chance that they might suit, neither the district court nor cut if not eliminate their losses. We can- court should be a district bound not decide based on this issue such honest preliminary court’s assessment to the but speculative concerns.” plaintiff’s on probability of success the mer Limmer, Cf., its. Fernandes v. (5th Cir.1981) (district court’s deni Eligibility III. for relief under EAJA al plaintiff’s of relief preliminary did not attorneys’ Plaintiff seeks fees under two render erroneous the court conclusion that EAJA, the separate provisions of 28 U.S.C. plaintiff ultimately prevailed.) A contrary First, 2412(b), 2412. the “discretion- § § position permit would the subsection, ary” provides “may that a court

parlay preliminary a favorable finding, private prevailing parties award” fees to in erroneous, ephemeral however or into a fi against civil actions the United nal legal victory on the merits declares that shall be United States “[t]he acceding plaintiff’s to the pri- relief desired for the liable such fees to same extent that or to a final on the merits. determination any party other be liable under the would Paradoxically, this that par would mean a plaintiff, any ty, prevailed like common law or under the terms of who has in a practical sense attorneys’ specifically provides would statute which be denied for such 1983, it Second, component of the the state action 2412(d)(1)(A), § § an award.”6 action, subsection, to a “mandatory” nearly was identical sweeping §

more award fees to constitu- being alleged a court shall provides that difference “the court private parties unless of feder- prevailing was under color deprivation tional of the United States position finds that the law, law. al not state special that substantially justified was or adopted essentially The district court unjust.”7 make award circumstances of mak- 2412(b) had the effect view that § attorneys’ awarded fеes The district court attorneys’ liable for ing United States on wheth- 2412(b), passing under without § it in a prevails against to a who party fees been awarded under er fees could have to vindicate constitutional seeking suit so, doing the district court 2412(d). § case, Amend- 5th rights —in conjunction with 42 2412(b) read in § process rights procedural ment due —on Right Attorneys’ Fee (Civil U.S.C. § would or its a state official grounds that 1976). U.S.C. Awards Act of Under 1988, in an liable, under ordinarily be § is authorized to award at- 19888 a court § 1983. brought analogous under § suit other than torneys’ against litigants fees making the Thus, 2412(b)’s language § has where the United States “to attorneys’ for fees States liable provision “to a of” the enu- sued enforce any party same that other extent including 42 rights merated civil statutes interpreted to make be liable” was turn, pro- 19839 in § U.S.C. Section in engages when it United States liable right against of action statutory vides that, “other activity by any if carried who, color “any person acting under of official, under acting state party” e.g., a— rights law, state violates the constitutional in assess- of state law—would result color Hence, of another”. 1988 authorizes fee § attorneys’ against party of ment officials in- against awards in actions state under rights volving of constitutional deprivation the district plaintiff suggests under color of state law. Plaintiff’s claim con- interpretation court’s alleged violation federal a constitutional purpose with the EAJA’s remedial sistent federal law. acting officials under color of “complete putting the United States give While claim would not rise con- with states who violate equal footing” to a fee under 1988 since lacked award any having juris- provision in 6. The reads: the United States court full text of action, court finds statute, diction of that unless the expressly prohibited by Unless position of the United States may court fees and ex- award reasonable special substantially justified circum- penses attorneys, or that addition costs unjust. pursuant stances made an award which awarded 1981). 2412(d)(1)(A) 2412(a) ], prevailing party any (Supp. V 28 U.S.C. § [§ brought by civil the United action provides part: 8. 42 U.S.C. any agency any States or official acting her United States in his or official any proceeding enforce action jurisdiction capacity any having 1983, 1985, provision of Sections such shall be actiоn. The United States lia- title, Law title IX of Public of this expenses to the ble for such fees and same 92-318, Rights Act of of the Civil or title VI any party other would be liable extent court, discretion, may allow in its terms common law or under the prevailing party, the United other than specifically provides statute States, part of a fee as reasonable such an award. the costs. 2412(b) 1981). (Supp. 28 § U.S.C. V provides: 9. 42 U.S.C. 1983 § provision 7. The text of the reads: full person who, any Every State color of under ... provided Except specifically as otherwise subjects any ... ... citizen of the [law] by statute, prevailing court shall to a award rights, deprivation any ... States party than the United States fees and other by privileges, secured the Consti- or immunities expenses, any in other addition to costs laws, party be tution and shall liable to pursuant 2412(a)], to incurred awarded [§ law, equity, injured or in suit in an action any party (other that civil action than proper proceeding for other redress. sounding tort) against brought by cases

725 rights. 125, Just as state Magazines, stitutional officials are 541 F.Supp. 127-28 under liable for fees 1988 in a 1983 (N.D.Ill.1982). § § The United States addition action a constitutiоnal alleging violation un urges to ally hold the United States law, der so color of state too then the automatically liable for fees in constitution liable, is pursuant United States al suits would mean the United States 2412(b), in suit alleging an analogous § be liable for regardless fees would constitutional violation under color fed position whether its “substantially just eral conceding law. While that the statuto ified,” effectively swallowing thus up the ry language ambiguous point, is on this provisions 2412(d). Id. Arguably, this § plaintiff urges legislative history run of Congress’ would afoul desire that the supports this interpretation broad of the impair government’s EAJA not ability making language the United States liable to enforce and administer the federal laws. for fees “to the same extent that any other compels Candor us admit that both party” would be liable. See Lauritzen v. parties’ interpretations and supporting ar- Sec. of the 546 Navy, F.Supp. guments are persuasive. problem we 1227-29 (C.D.Ca.1982). face deciding is which one of the two inter- The VA on the other hand avers that pretations is Congress’ more consistent with 2412(b) is a limited sovereign § waiver of intent. The judiciary has not settled on one immunity and must be strictly construed. date, or the other. To no other Circuit has It 2412(b), strictly contends that con- § 2412(b) determined whether was intended § strued, make the United States does.not against to authorize fee awards the United automatically liable for fees in suits States when it loses a rights federal civil alleging constitutional violations federal facing suit. Those four courts district this officials acting Rather, under federal law. issue have come to different conclusions.10 it authorizes only “to the same extent We are upon thus called to make our own that” shifting another fee statute —in this inquiry very statutory con- close case 1988—would “any par- make other § struction matter. ty” However, liable for fees. 1988 would § We turn first to the relevant statu not authorize against a fee other “any par- tory language itself. See Universities Re ty” because there has been no violation of a Coutu, 771, 101 Ass’n search 450 statute encompassed by specifical- § 1988— ly, (1981). 1983. L.Ed.2d 662 plaintiffs While is § claim analo- gous suit, Section provides civil actions it nevertheless § could not have provisions invoked the United States federal offi § cers, alleged becausе the deprivation United States shall be liable for was under “[t]he federal, color Thus, expenses such state law. fees and to the same extent be- cause no party any “other party would be liable” for other would be liable under fees under the United is the common law or the terms of any § non-liable “to the same extent”. Unit- statute which specifically provides for such ed States v. Pornographic Thus, Miscellaneous an award.” the disputed limiting lan- 10. Secretary Navy, 2412(b)’s In Lauritzen v. express language, § which overrides F.Supp. (C.D.Ca.1982) Judge 1227-1229 any contrary legislative history, makes the Tashima, having carefully 2412(b)’s reviewed § “any United States liable suits where legislative history purpose, concluded that party” i.e., a other state official —would in — language making the United States liable payment fact liable of fees under 1988. par- for fees “to the ty” same extent other claim, type This could not occur in a Biven’s Congress’ place reflected intent the Unit- lacking predicate state action complete equal footing ed States on with the liability under United States Miscel Thus, states under United States Pornographic Mаgazines, F.Supp. laneous was held liable for fees where federal official’s Goodman, (N.D.Ill.1982); Venus v. plaintiffs rights violated constitutional since F.Supp. (W.D.Wis.1983); 520-21 Unifica officials state been have liable under I.N.S., (D.C. F.Supp. tion Church v. 1983). they thing. had done the same Three other district courts have concluded that fees because highlighted, applies pari paying attorneys’

guage, which recovered, not have party could prevailing “common law” and “stat- passu to both the suit, “other against fees some in the same shifting provisions. We can utory” fee Congress faith. That party” for similar bad re- Congress’ intent with glean therefore sanctioning this anoma- no intention of had statutory exceptions by to the con- spect by clear House lous result was made intent with sidering Congress’ unambiguous 96-1418, the final accompanying Report No. exceptions. to the “common law” respect EAJA, states: of the which version 427, 2201, Northcross, 412 See 2412 to (similar fee author- The EAJA amends 28 U.S.C. 37 L.Ed.2d 48 to award a court in its discretion izing provisions interpreted pari permit should be expenses pre- attorney fees and other passu.) to the parties litigаtion in civil vailing recognized has judiciary The federal award fees in cases same extent it to the American Rule on exceptions several Thus, the United involving parties. other has held that a successful attorney fees and under the would be liable for fees States against losing litigant may recover “com- faith”, fund” and “bad “common faith, litigant who “has acted in bad vexa to the American exception mon benefit” rea tiously, wantonly, oppressive or for justifica- to be no appears Rule. There son;” who, by litigant also a successful exempting tion for the United States suit, winning virtue of his has conferred situation; []. persons on a group “common benefit” 9; U.S.Cong. H.R.Rep. No. 1418 at may recover fees from beneficiaries.12 add- (emphasis Ad.News at 4987. Code & 539, NLRB, Spencer ed). (D.C.Cir.1983). effect of important One this tells us is that the United What codify applica was to and make liability for fees in civil actions States’ ble to the United the “bad faith” and States common ‍​‌‌​‌‌‌‌​‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​‌‍law subject should be to the same exceptions “common benefit” to the Ameri party. other applicable any standards can Rule. 1418 at H.R.Rep. Nо. instance, For the United would be States (1980); reprinted Cong. in 1980 & U.S.Code if it in bad faith “to the liable for fees acted Spencer, Ad.News see also who any party same extent” that other (D.C.Cir.1983).13 F.2d at 545 one has No have been acted in similar bad faith would suggested that language making short, liable for fees. similar conduct United States liable for fees “to the same treatment, re shifting warrants similar fee extent as other be liable party would was gardless of whether the similar conduct under the common law” should be inter committed in the same suit. preted against to authorize fees the United only prevailing States a suit where the logical It would seem reasonable party could have law invoked a common ex- interpret statutory shifting fee exception to against par Thus, recover fees some if ception similarly. that, ty other than the United For ex engaged States. States was conduct if, suit, would ample, govern party”, in a civil the federal carried on some “other faith, ment has acted “in liable under a vexatiously, party” bad render “other reason,” shifting then the wantonly oppressive statutory provision, feе seem anomalous to immunize it from United should be liable “to the same States, immunity; general sovereign 11. F.D. Rich Co. v. United 417 U.S. “the doctrine (1974). prior 94 S.Ct. 40 L.Ed.2d 703 to amend- and 28 U.S.C. EAJA, ‘consistently ment construed Co., Mills v. Electric Auto Lite 396 U.S. immunizing the United States attor- 616, 625-28, 392-97, 24 L.Ed.2d 593 90 S.Ct. express ney’s clear or statu- fees awards absent (1970). ” Spencer, authority contrary.’ tory Civiletti, 545, quoting NAACP EAJA, F.2d at inapplicability 13. Prior to the (D.C.Cir.1979). exceptions faith” and “common fund” “bad the United States derived from two sources: provision, legislative “common history Like the law” and purpose. extent”. As be read to statutory provision Yates, stated in Lambur completely equal States on place (8th Cir.1945): any similar footing party”; with “other All be given statutes must sensible con- fee shifting warrant similar conduct would sole object struction. The of construction interpretation would of treatment. This legislative is to determine the intent. course render the United States liable for be primarily Such intent must found in involving in viola- fees suits constitutional itself; language statute but officials, under by acting tions federal fed- language when the is ambiguous or the law, (an party”) eral because a state “other doubtful, meaning is the court should would be liable for fees under 1988 if § subject consider purpose, matter officials, state acting under color state and the condition of which affairs led to law, committed a similar constitutional vio- enactment, its and so it construe as to lation. effectuate and not destroy spirit and Thus, although language force of law and not to render 2412(b) relatively opaque, is it neither § absurd. precludes nor implausible renders an inter Cf., Ashley Ry. Drew and Northern Unit- pretation that would fees in authorize Union, ed Transp. F.2d case like the instant one. Nor does the Cir.1980) (“it impermissible is to follow a construed, language, strictly even necessari literal reading engenders absurd conse- support VA’s ly proffered interpreta quences where there an alternative inter- limiting tion the United liability States for pretation reasonably effects the stat- those in a statutory suits purpose”); Stribling ute’s see also v. United exception (e.g., 1988)would in fact apply States, (8th Cir.1969). F.2d some “other party” (e.g., state); in deed, above, as discussed such an interpre A legislative close evaluation of the tation would be fundamentally inconsistent history purpose 2412(b) and convinces with the way language identical is inter us that Congress, making the United preted the context of the “common law” liable for attorneys’ fees “to the exception. this, however, Saying we are any same extent party as other would be not unmindful the suggestion liable ... under the terms of statute Congress wanted really to make the United fees,” providing for such intended to autho States liable for fees in depri constitutional suits, fee here, rize awards like one vation actions, it could have so done more where federal government officials have vi clearly and precisely, by perhaps olated fundamental constitution amending 1988 of the Rights Civil Act. rights, al since state officials would be lia however, Conceivably, Congress thought ble for fees analogous clarity would be served by simply consoli violations of rights. constitutional dating all shifting fee exceptions —both First, as in the Report stated relevant common law statutory exceptions ap — the House Committee on the Judiciary plicable to parties” “other provi into one (H.R.Rep. 5-6, 9, No. 1418 1980 U.S. sion, making all these exceptiоns applica Cong. 4984, 4987) Code & Ad.News ble to the United States “to the same ex EAJA was intended to ensure that individu- event, tent”. In any Congress’ lack of pre als small businesses not be “would de- cision in drafting legislation should never seeking of, terred from review defending for defeating instrument or frustrat governmental ing the unreasonable action purpose manifest and intent of Con expense as because of the gress, legislative securing revealed involved history. Where, here, a remedial the vindication of their statutory provi rights”. See also Schweiker, sion is relatively opaque susceptible Berman v. 1295- more than one interpretation, (7th Cir.1983). court may Pursuant that pur- congressional discern intent resorting designed pose, § “[to establish] for general Lawyer’s of Committee statutory exception for an award Derfner 7; 1980 Under Law. Id. at against Rights of fees the Government” and Civil “[to Mr. Cong. & Ad.News 4985-86. the federal place] government and civil liti- U.S.Code the subcommittee: Derfner told gants private parties and on a [both states] completely equal footing” with respect Kastenmeier, just I direct could Mr. 9;8, attorneys’ Report fees. Hоuse at of this portion to one bill? myself Cong. & Ad.News at 4987. These U.S.Code slight area in which' a There is an objectives making could be best served by out carry could drafting modification in suits the United liable for fees States of might be the intention what I believe against federal officials for vindication of committee; put and that is to right, “to the same extent constitutional far completely par on a as United States (the are liable party”) that” states “other important of constitu- as the enforcement analogous involving for fees in 1983 suits statutory rights. § tional and state officials. Rights you Act of In the Civil someone, it that when whether provided Second, reveals legislative history business, whatever, be an individual Bill which was to become that Senate under 42 government or local sues a State EAJA, to as- specifically amended Code, 1983, to vin- section United States sure the would be liable for United States or Federal statuto- dicate a constitutional attorneys’ type fees in suits of the involved fees would be available ry right, pro- here. Bill as originally Senate [Piggie] Peggy the Newman v. under [sic] 2412(b) posed provided § say standard. These bills Park the same the United States shall be liable to fees-in the pay should United States (rather private party” extent as “a than to 28 United States Code amendment any other would be liable. party) circumstances where 2412-in those Against Award of Fees The Fed- Attorneys’ fees in suits in- may award such Hearing eral on 265 Be- Government: S.B. volving private parties. Courts, fore the on Civil Lib- Subcommittee govern- or local say That doesn’t State erties, and the Administration of Justice of ment, were amended language but if the Committee, Judiciary Cong. the House 96th read, circumstances where “in those 1, 3, (setting 2d at forth 265 as Sess. S.B. award such fees in suits may the court However, 1979).14 after August hearings would involving litigants”; other it on S.B. 265 before the House Subcommittee it And I think purpose. achieve that Courts, on Civil Liberties and the Adminis- putting go would even further toward Justice, tration subcommittee with other par the United changed language so that § bodies. governmental the final version made the United States 265 at 100. Hearings on S.B. “any liable to the same extent as other party”, private party”, rather than “a remarks import of Mr. Derfner’s H.R.Rep. extending would be liable. See No. 96-1418 сlear: the Unit- pretty seems Cong. liability attorneys’ at Ad.News for U.S.Code & ed States’ Obviously, “any party”, Congress 4985-86. the subcommittee was other liable for at- persuaded by testimony of Armend make the federal 96-253, Report Cong. exempting in these situa- 14. Senate the United States No. 96th 1st tions; (1979), explains purpose change reflects the belief Sess. 4 the intended that, minimum, original 2412(b). version of the United States should § litigating the same standards held to changes in Senate bill 265 makes two such, private parties. it is consistent with As First, present law. it amends 28 U.S.C. 2412 strong history of 2412 which reñects a permit a court in its discretion to award placing by Congress movement toward expenses prevail- fees and other litigants and civil Federal Government parties litigation involving ing in civil generally, equal footing. completely United States to the same extent E.P.A., Resources Defense Council Natural involving private parties fees in cases award Cir.1973). (1st 484 F.2d 1331 appears justification There to be no .... tomeys’ fees in suits to see how seeking to vindicate this supports the VA’s interpre- rights, just federal constitutional as states tation of 2412(b) making the are liable under 1988 for fees in analo- States liable for fees those rare gous suits brought state officials constitutional suits in which federal offi- accordance with Mr. cials acted in have concert with a state Derfner’s suggestion, the subcommittee actor.15 an interpretation Such lan- amended “any S.B. 265 to read other party” guage making the United States liable “to draft, in the immediately succeeding the same extent that other party would became the final version of the EAJA. which, be liable” encounters three obstacles H.R.Rep. No. 96-1418at 7. We believe when together, considered are insurmounta- this sequence of events demonstrates Con- First, ble. it would conflict with the clearly intent gress’ 2412(b) to extend to make § meaning established of language that when the United suits, States liable for fees in used in reference to the “common law” one, like the instant where federal officials exceptions 2412(b). of As § mentioned engage that, in activity if carried on by 'a above, it would be anomalous to insulate official, state would render a state liable for the United States from fee awards where attorneys’ fees under 42 U.S.C. § federal officials pursue litigation in “bad Finally, the drafters of the bill were well faith” ‍​‌‌​‌‌‌‌​‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​‌‍simply because no party” “other potential aware of the applicability of litigation of guilty similar acts of 2412(b)to 1988. House Report § No. 96- § Second, “bad faith”. interpreta- VA’s provides 1418 the Act “reflects a tion is support without in the EAJA’s legis- strong movement ... toward placing the and, history fact, lative actually conflicts federal and civil litigants on a legislative Third, with its history. it would completely equal footing” and that frustrate the Congressional purpose behind “[2412(b) clarifies the of liability the Unit- ] 2412(b) putting of § United States and ed States under such statutes as the Civil other civil litigants, private parties whether Rights Fees Attorneys’ Awards Act of 1976 states, on completely equal footing under H.R.Rep. U.S.C. No. 1418 § [42 1988].” existing shifting fee statutes. 1980 Cong. U.S.Code & Ad.News at 4987, 4996. The VA however points out that the fail- ure to retain the state action requirement We do regard not our interpretation here of purposes 2412(b) 1983 for of fee § § as violative of the rule requiring waivers of awards would mean that the United States sovereign immunity strictly to be construed. be liable regardless for fees of Compare NLRB, Monark Boat Co. v. 708 position whether its just- was “substantially (8th F.2d 1322 Cir.1983). Unlike Monark 2412(d).16 ified” under The VA fears § Boat, the case upon which the VA principal- 2412(b), read a without state action § relies, ly legislative history purpose requirement, would effectively up swallow behind the language we interpret here justification” more lenient “substantial clearly supports finding Congress 2412(d), waived the standard of government’s thereby seriously sovereign § immu- nity hamper proper for cases like this enforcement Perhaps one. Con- and admin- gress could have 2412(b) drafted istration of federal predicates with law. The VA § more precision clarity. Even conceding contention on the assumption that however, thé lacks language clarity, we fail 1983 extends not only to violations of § interpretation scope Cir.1979), 15. The VA’s part grounds of the limited rev’d in on other 446 2412(b) adopted by (1980). was U.S. 100 S.Ct. court United L.Ed.2d 670 Pornographic Maga- States v. Miscellaneous 2412(d) provides recovery 16. § of fees in zines, F.Supp. points at 127-29. As the VA actions, civil “unless the court finds that out, § cause of action lies feder- position substantially of the United States was al officials who act in concert with statе offi- justified special or that circumstances make an acting cials under color of state laws. unjust.” (See 6, supra, award note for full Hampton Hanrahan, (7th 600 text.) violations cause of action for provides but also to violations rights, constitutional to funda rights “akin statutory feder- those range created a broad rights the fourteenth Thiboutot, protected by rights al statutes. Maine mental Bank of Oma First National 2502, 65 L.Ed.2d 555 amendment.” Minneap Bank of National (1980); Pornographic, Marquette Miscellaneous ha v. Cir.1980) cert. denied olis, at 125. 636 F.2d 195 F.Supp. 1761,68 L.Ed.2d 1042, 101S.Ct. 450 U.S. the VA’s fear We do not share a violation (1981) (holding that 2412(b) up by 2412(d) will be swallowed § Banking the National rights under bank’s 2412(d) interpretation. our Section cause rise to a give Act did encourage small designed primarily there is extent that action). Finally, to the exer- the unreasonable businesses to contest 2412(d), 2412(b) and a conflict between § H.R.Rep. agency action. See cise of federal spe the more intended Congress apparently 9-10; Cong. & No. 1418 at 1980 U.S.Code to su shifting provision fee cific § 2412(d) Accordingly, Ad.News at 4988. 2412(d). See general the more percede provi- catchall envisioned as a sort of was 18; U.S.Cong. & Ad. at 1980 Report House sion, range a broad of federal encompassing News at 4997. already not covered regulatory litigation statutes. Id. at existing fee-shifting as a plaintiff, that Having determined at 4997. Cong. 1980 & Ad.News U.S.Code fees can obtain prevailing party, only (“[§ 2412(d)] apply is intended alter- upon his 2412(b), pass we need not § cases) where fee (other cases than tort entitled to claim that he was native al- are not against awards government’s 2412(d) because under § Thus, authorized”). 2412(d)’s pro- ready § to include by plaintiff defined “position”, which types numerous of suits vision covers was position, prelitigation the VA’s the rubric of 1983 would not fall within justified.”17 “substantially Moreover, claim that suits. the VA’s type Fee Award IV. The is 2412(d) meaningless rendered will be 1, 1981 incurred before October A) Fees flawed insofar as it is based fundamentally time on argues for this first The VA encompasses the notion that 1983 entitled to an that is appeal, Recently, federal statute. any violation of fees, recover attorneys’ he cannot award of implica- considered the Eighth Circuit effective date prior to the any fees incurred Maine v. Thi- Supreme tion of the Court’s 1981, EAJA, 1, though even October that 1983 of boutot decision and concluded legislative Foley agency recently recognized action have read the same As Construc- 17. Engi- history See Nat- Army Corp. come to different results. and United States tion Co. v. Inc., E.P.A., 1202, Cir.1983) v. neers, (8th Defense Council ural Resources 1204 716 F.2d Cir.1983) (underlying 700, (3rd “posi- 703 F.2d 707 whether EAJA does not make clear Lehman, action); Dougherty “litiga- agency 711 justify v. government must is its tion” the agency 555, (3rd Cir.1983) (underlying “underlying agency position” F.2d 561 action” tion or its NLRB, action); Foley Spencer 557 v. 712 F.2d precipitated the lawsuit. litigation posi- (government’s “litiga- (D.C.Cir.1983) government’s court considered States, tion); Kay Mfg. 699 F.2d parties v. United position” framed Co. so tion because (Fed.Cir.1983); (government’s liti- cases, 1379 be- In most the distinction the issue. Tyler posi- gation position); Servs. v. “litigation Business “underlying and action” tween Cir.1982) NLRB, (4th (govern- litiga- F.2d 75 “the because tion” makes no difference Laundry litigation position); Broad Ave. almost ment’s position States will of the United tion States, legally Tailoring F.2d underlying United & always action was be that its litigation NLRB, (Fed.Cir.1982) (government’s Spencer 712 F.2d at justifiable”. however, position). split close- case, rеveals the extreme This the distinction In this 551-552. interpretations find Both big ness of issue. because difference would make history. language legislative support and entirely upon in the the al- 2412(d) focuses claim § legedly are re- terminating Spencer, at 547-49. We agency 712 F.2d unjustified action in this issue here because him, luctant to decide precipitated the lawsuit. Circuit findings on the addressing to make court failed squarely the nettlesome issue district courts government’s “position”, govern- Congress for the reasonableness intended of whether position. litigation underlying prelitigation or “position” either its to include ment’s strict indisputably “pending” case construction require doctrine —would Berman, on that It sovereign reading. date.18 contends that tortured F.2d expressly was not waived for fees “The immunity statement that a statute expenses incurred before case applies ‘pending’ October on its effective precisely that, date means unless Con- otherwise, gress indicates the statute ap- recognizing While that waivers plies in to all Kay, full such cases.” of sovereign immunity strictly must be con F.2d at 1378. “If Congress had intended to (see NLRB, strued Monаrk Boat Co. v. fees, pre-effective exclude date it could (8th Cir.1983)), F.2d 1322 we conclude stating have so done Section Congress intended clearly prevailing that a only post-effective date fees for party in a suit United pending actions actions commenced after entitled to fees for ren services 1, 1981 Berman, October were covered.” prior dered to the effective date 713 F.2d at 1297. (October 1981), EAJA provided the suit in the Nothing EAJA’s legislative history was pending on the effective date. so Congress indicates that intended distin holding we are in accord with other every guish between fees before incurred addressing Circuit Court this issue. See those incurred after October Heydt States for v. Citizens State cases were pending on that date. See Bank, 444, 446 (8th Cir.1982); Ber Heydt, (court, 668 F.2d at 446 interpreting Schweiker, man v. EAJA authorizing pre-effective fees for Cir.1983); Kay Mfg. States, Co. v. United work, date stated appellate court “[a]n 1376, 699 F.2d 1378 (Fed.Cir.1983); Natural must the law in at apply effect the time it Resources Defense Council v. Environ U.S. renders its decision is unless there some 700, mental Agency, Protection 703 F.2d to indication the the contrary in statute or 712-13 (3rd Cir.1983); Tyler Business Ser legislative its history or unless manifest in vices, NLRB, 73, (4th Inc. v. 695 F.2d 77 justice fact, result.”) would the legisla Cir.1982).19 history tive interpretation. buttresses our EAJA, Section 208 of the Pub.L. No. 96- Specifically, the Congressional Budget Of 481, explicitly states that it applicable is (CBO’s) fice’s estimates of the cost to the fees in pending 1, cases on October 1981: government ‍​‌‌​‌‌‌‌​‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​‌‍of the congres EAJA reveal a II, [i.e., “Sec. 208. This title title the recognition sional pre-Act and the by amendments made EAJA] would estimates, be covered. The cost CBO title shall apply civil ... action Congress which had available when it described in section 2412 28, of title Unit- EAJA, passed the predicted that the annual ed Code, on, which is or pending expenditures could with the vary only num or commenced on after such date.” ber of cases terminated each the infla year, The meaning of this language is clear: rate, tion and the EAJA’s incentive effect applies EAJA fees generated before 21-23; No. 1418 at H.R.Rep. 1980 U.S.Code after the effective date long as the ac- Ad.News, 4984, Cong. & The 5000. CBO tion “pending” on October 1981. projected the EAJA would cost estimat Any other construction —even applying 1982,20 еd million in fiscal year $92 $109 parties agree very 18. As the little adopted of the district 19. To date no circuit court has contrary limiting performed court’s fee award was view attributable to the work fees to work expended Only after the effective date. on this case after Northern October 1981. adopted District of Illinois courts Apparently, post-October have this in 1 work was Commodity Trading terpretation. Futures plaintiffs preparation request counsel’s Co., F.Supp. 1094, Comm. v. Rosenthal & fees. The Board’s decision reinstat- States, (N.D.Ill.1982); Allen v. United ing plaintiff September was issued F.Supp. (N.D.Ill.1982). plaintiffs ap- and the court dismissed as moot peal preliminary from the court’s denial of a 20. Since the EAJA became effective October injunction on October 1, 1981, (the day 1982) year first of fiscal there award of the fees B) Reasonableness 1983, and million in fiscal $129 million are yearly These increases fiscal 1984. $15,- fees of awarding attorneys’ as one constant, rather than askewed nearly assess began its the district court 630.6721 prior those fees incurred expect multiplying fee of a reasonable ment excluded. In- being were October reasonably expended number of hours being deed, 1,1981 fees were if pre-October rate, hourly a reasonable litigation by budget excluded, expect the then one would $23,806.00. Bee equaled in this case lower than significantly for 1982 to -- U.S. at --, Eckerhart, Hensley the number budget for 1983 because Recogniz at 50. 76 L.Ed.2d at S.Ct. (but pri- terminating pending in 1982 cases matter, not end the this did ing large 1, 1981) would have to October amount down adjusted the fee then Nunes- of their fees excluded. See portion of addi take account one third to ward 812, 815-16 Haig, F.Supp. Correia v. in Johnson v. Geor set forth tional factors (CBO estimates “demon- (D.D.C.1982) cost Cir.1974)— 717-719 gia, clearly intended Congress strate that factor”. As obtained the “results including performed work Act to authorize fees for observed recently Supreme Court 1, 1981.”) before October factor is Hensley, obtained] “[results Furthermore, interpreting plaintiff where a crucial particularly fees incurred permit recovery EAJA to though he succeed even prevailing deemed not defeat prior to the effective date would relief.” his claims for only some of ed on i.e., compen рurposes EAJA — -- --, at rights their seeking sate those to vindicate L.Ed.2d at action government unreasonable district believe the We do not prospectively and to deter unreasonable went far adjustment downward court’s Indeed, inter action. such an claim —the enough. predismantling goals. further these pretation may certainly prevailed on—was one Berman, 713 F.2d 1290. claim insofar pretermination related to the Thus, muster interpretation passes our pro essentially due procedural as both were rules set under the strict construction even (relatedness of Hensley cess claims. See which the YA upon forth in the three cases is a fac claims successful and nonsuccessful v. relies —Monark Boat Co. principally obtained”). “results determining tor NLRB, (8th Cir.1983), Brook 708 F.2d 1322 Nevertheless, “achieve a did not plaintiff States, 661 field Construction Co. v. United rea makes the hours of success that level 159, 228 (1981), F.2d Ct.Cl. 551 and Commis basis expended satisfactory sonably [for States, 684 Highways sioners of v. United Instead, plaintiff the fee award]”. F.2d, 443, (7th Cir.1982). It 444-445 should Hensley, success.” only “partial achieved that Monark dealt with the inter be noted U.S. at -- - --, -- - --, 103 -- language that wаs pretation statutory 51-2, 1943, 1940-41, L.Ed.2d at at 76 And, specif without anything but clear. 54-5; Auc v. Auto compare Tusa Omaha discussing Brookfield ically Construction 1248, Cir.1983). tion, (8th 1255 712 F.2d add Highways, Commissioner of we support affidavits While statutory presented that those two cases the the time allocated to fees do not reveal inapposite issues to the statu construction claims, predismantling pretermination here. construction issue we address tory support the briefs in it is clear from (distinguishing 699 F.2d at 1378 Kay, See preter treated injunction, plaintiff Brookfield); Berman, at 1301-03 713 F.2d issue, issue, being losing mination (distinguishing High both Commissioner of overall relief. Construction.) major importance to his and Brookfield ways plaintiff the court also awarded for the 21. The district was no reason to authorize awards out-of-pocket ex- Berman, claimed year entire amount of 713 F.2d 1299. fiscal $1,848.49. (See penses, totalling Des.Rec. at 122). Premachandra, F.Supp. at 548 112 and

733 Moreover, considering nature of preliminary injunction ground on the involved, process we do due issue not be there was no likelihood his suit would hours attorney spent lieve the 411.3 on the succeed on the merits. On appeal, “In law suit was reasonable. determining a court request injunction denied his for an award, fee should proper court consider [a] pending appeal, request and his for rehear- number ordinarily of hours necessary ing and banc rehearing en of this decision competently prepare comparable cases.” was also denied. Justice Blackmun then 931, Coughlin, (7th Bonner v. F.2d 934 twice denied Dr. Premachandra’s applica- Cir.1981); citing Bathke, v. Brown 588 F.2d injunction tion for an pending appeal, and Also, Cir.1978). awards “[f]ee the full Supreme Court similarly denied him upon based number of excessive hours this relief. encourage overpreparation of often ” Nadeau Helgemoe, F.2d relatively simple Bonner, . cases .. . (1st Cir.1978), upon by relied United Handi standards, F.2d 935. By comparative capped Andre, Federation v. legally case here was neither nor factually (8th Cir.1980), 345-46 the court states: complex. Although procedural pro due one, issue cess raised was a close it was not plaintiffs Even if can establish that type complicated issue typically war their causally suit was related to the de- ranting extraordinary such research and fendants’ improved action which their preparation Gagne Maher, time. condition, this is half of their battle. Cir.1979), (2d aff’d 448 U.S. The test is they pass legal must as well as 100 S.Ct. 65 L.Ed.2d 653 (1980) factual. If it has been judicially deter- (trial court properly disallowed half conduct, mined that defendants’ however rights hours claimed in civil case where plaintiffs’ beneficial it be to inter- simple issues were relatively most at ests, law, required by then defend- torneys would spent not have so much time ants gratui- must be held to have acted case); Bonner, F.2d 931 (appel tously and have not plaintiffs prevailed in court late vacated determination of 253.5 a legal sense. attorney hours of for a spent two-day time Nadeau, the district court’s decision trial, concluding issues favorable to the was reversed and raised were not legally factually com remanded on Before a appeal. second trial plex); Peeler v. Longview Independent Sch. began, into parties entered a consent Dist., 485 F.Supp. (E.D.Tex.1979) there judicial decree. was no Consequently, (trial $49,127.00 from reduced fees determination as tо whether the defend- $3,000, finding that procedural pro due ants’ conduct required by law. The cess claim relatively simple). involved was court, in determining right to Therefore, in light of limited success attorneys’ circumstances, fees under these issue, the uncomplicated and nature of the decided that the defendants’ action was $10,000 we reduce the fee leaving award if the suit gratuitous was “frivo- $1,848.49 the award of expenses intact. lous, Nadeau, unreasonable groundless.” Judgment affirmed to extent of an majority 281. The in this case $10,000.00 fees, award plus awards Dr. Premachandra attorney’s fees $1,848.49 in On expenses. appeal, three- the ground that his suit met this stan- of costs fourths assessed the VA dard. against plaintiff, and one-fourth Dr. Pre- Nadeau, machandra. This case distinguishable from however, in that judicial determination GIBSON, Judge, R. dis- JOHN Circuit has been made. Dr. Premachandra’s re- senting. injunction for a quest preliminary was de- nied, repeated requests injunc- The district for an respectfully I dissent. court request Dr. Premachandra’s for a pending appeal denied tion were unsuccessful. I need not consider believe that we therefore suit. There has of his

the reasonableness determination, for attor-

been a sufficient the VA’s action purposes,

neys’ law, therefore required by standard, the above

gratuitous. light par- a prevailing

Dr. Premachandra was not

ty-

Dr. Premachandra was awarded a fee for Merit litigation

his successful before the

Systems Protection Board and has retained employment.

his Insofar as it can be said prevailed,

that he it was before the Merit Board,

Systems Protection and not in this

litigation. I reverse the district a fee on ‍​‌‌​‌‌‌‌​‌‌​​‌‌​‌​‌‌​‌‌‌‌‌​​‌‌​‌​​​‌​​‌‌​‌​‌‌​​‌‍Premachandra’s deny Dr. respect dismantling

claim with

laboratory. America, Appellee,

UNITED STATES of

v. POSTON, Appellant.

Rosena America, Appellee,

UNITED STATES POSTON, Appellant.

Bernard F. America, Appellee,

UNITED STATES POSTON, Appellant.

Lizzie

Nos. 83-1146 83-1148. Appeals,

United States Court of

Eighth Circuit. Oct.

Submitted 9, 1984.

Decided Feb. April 30,

Certiorari Denied S.Ct. 2179.

Case Details

Case Name: Dr. Bhartur N. Premachandra v. Dr. Murray G. Mitts, Etc.

Court Name: Court of Appeals for the Eighth Circuit

Date Published: Apr 18, 1984

Citation: 727 F.2d 717

Docket Number: 82-2441

Court Abbreviation: 8th Cir.