775 F.2d 99 | 3rd Cir. | 1985
Lead Opinion
OPINION OF THE COURT
Janis Dunn and others, the named plaintiffs in a class action against several federal agencies, appeal from an order dismissing their petition for the award of counsel fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d), for lack of jurisdiction. The petition was filed in a case in which a consent judgment was entered on May 23, 1984. A verified fee petition was filed on June 22, 1984. The district court dismissed for lack of jurisdiction because the petition, filed on the last day of the time period specified in 28 U.S.C. § 2412(d)(1)(B) (1982), was not sufficiently specific. We reverse and remand for further proceedings.
I.
The underlying action for injunctive relief and damages arises out of radiation contamination in the Canonsburg, Pennsylvania area near a uranium processing site. The plaintiff class members are residential
The Equal Access to Justice Act, although repealed by section 204(c) of Pub.L. 96-481 as of October 1, 1984, governs this action, since it was pending prior to the effective date of the repeal.
A party seeking an award of fees shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from an attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed. The party shall also allege that the petition of the United States was not substantially justified.
28 U.S.C. § 2412(d)(1)(B) (1982).
The petition filed with the court on June 22, 1984 alleged that the action had been concluded on May 23, 1984 by the entry of a consent judgment, that the petitioners were prevailing parties in the action, and that the position of the federal government had not been substantially justified. It alleged that no petitioner’s net worth exceeded one million dollars, and thus established that the petitioners were eligible, under 28 U.S.C. § 2412(d)(2)(B) (1982), to receive an award.
1. The factual allegations set forth in plaintiffs’ petition for Attorneys’ Fees, Expenses, and Costs are true and correct to the best of my knowledge, information and belief.
2. The time and costs expended, as represented in this petition, are drawn from the financial records of my firm, and are necessarily incurred in order to properly represent the plaintiffs’ interests.
3. Plaintiffs have neither received nor applied for, and do not intend to apply for, reimbursement of the costs of items listed in the Petition under any other program or statute.
4. No plaintiff’s net worth exceeded $1,000,000.00 as of the date on which this proceeding was initiated.
AND FURTHER DEPONENT sayeth not.
The June 22, 1984 affidavit mentions neither a specific amount of fees requested, nor an itemized statement of the actual time expended and the rate at which fees and expenses are computed. On June 22, 1984 the petitioners also served a memorandum in support of their petition, asserting that both an increase in the cost of
On June 27, 1984 the petitioner served and filed an affidavit of J. Jerome Man-smann in support of the request for fees and allowances, to which is attached resumes of the attorneys in the firm of Man-smann, Cindrich & Huber, detailed time records for each attorney, a summary of time expended, a computer detail of time expended, a statement of costs, a ledger detail of costs, and a statement for total costs expended of $6,807.64 and for time, at the customary billing rate for each attorney, totaling $92,833.24, at the statutory rate of $75 per hour, totalling $78,347.04, and at a requested rate of $86.03 per hour, and at the customary billing rate with a 1.5 multiplier. Mansmann’s affidavit set forth the reasons why more than the statutory rate should be awarded. The information contained in the supporting exhibits is remarkably complete.
On July 9, 1984 the petitioners filed the affidavit of Gary L. Sweat, a partner in the firm of Johnson & Sweat, which is co-counsel to the plaintiff class, with supporting exhibits similar to those filed on June 27, 1984 with respect to the time and expenses of Mansmann, Cindrich & Huber. The Johnson & Sweat statements show the disbursement of expenses totalling $1,739.45 and the expenditure of time valued at customary billing rates at $25,422.00.
On August 1, 1984 the United States served and filed an answer to the verified petition for allowance of attorneys fees, in which it put in issue the contentions that the petitioners were the prevailing parties and that the position of the United States was not substantially justified. The answer also alleged that the petitioners were not entitled to an award of fees in the amounts requested. In addition, the answer asserted the defense that “[t]he Court lacks jurisdiction, under the Equal Access to Justice Act, 28 U.S.C. § 2412, to award Plaintiffs attorneys fees and costs in this action.” Simultaneously with this answer, the United States filed declarations under penalty of perjury of several federal officials in opposition to the petition for fees and expenses, and served a memorandum of points and authorities in opposition. That memorandum argues that the petitioners are not the prevailing parties. It also argues that because the June 22, 1984 petition did not contain an itemized statement of the time expended and the rate of compensation, and an indication of the amount sought, the court lacked the power to consider the application.
The district court, while noting that except for non-compliance with the statutory time requirements an award of fees and expenses would have been made, held that the failure of petitioners to include the itemized statements and an indication of the amount sought in the June 22, 1984 petition deprived it of power to consider the award. Relying on language in Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984), the court reasoned:
The thirty-day time limitation contained in the EAJA is not simply a statute of limitations. It is a jurisdictional prerequisite to governmental liability. Plaintiffs’ failure to file an application in compliance with the provisions of 28 U.S.C. § 2412(d)(1)(B) deprives this court of subject matter jurisdiction to award fees.
A. 237, 238. This appeal followed.
II.
Petitioners make two arguments with respect to the district court’s ruling, either of
A.
Two courts of appeals have been presented with the situation in which a fee petition under the Equal Access to Justice Act has been filed with the district court more than thirty days after the docketing of a final judgment. Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984); Columbia Manufacturing Corp. v. NLRB, 715 F.2d 1409, 1410 (9th Cir.1983). A third has dealt with a similarly late filing of a fee petition for services performed in agency adjudication, governed by 5 U.S.C. § 504(a)(2) (1982). Monark Boat Co. v. NLRB, 708 F.2d 1322, 1326-27 (8th Cir.1983). All three courts have held that if the petition is filed outside the thirty-day time period the district court or the adjudicating agency may not consider it.
We have no quarrel with the general proposition that time bars with respect to the filing of claims against the United States should be strictly construed. That has been the recognized rule of statutory interpretation with respect to filing administrative claims and complaints under the Federal Tort Claims Act. But this court has recognized that while the time for filing a claim must be strictly complied with, deficiencies in the contents of the claim may be corrected if the government cannot show any prejudice arising from the later correction of those deficiencies. Tucker v. United States Postal Service, 676 F.2d 954 (3d Cir.1982).
We are, of course, dealing with an issue of statutory construction. It is not helpful in approaching that task to attach labels such as “jurisdictional” to the actions of Congress before first examining the language of the statute and the context in which that language was used. Section 2412(d)(1)(B) contains two requirements: a time for filing, and a standard for pleading. It is not immediately apparent that Congress intended that strict compliance with the pleading requirement must be accomplished within the same time as filing. The two requirements serve different purposes.
Requiring the filing of a fee claim (or any other) with the court or adjudicative agency serves the purpose of establishing a means certain for proving compliance with a time bar. Such certainty is required in most situations in the interest of finality
Unlike the Federal Tort Claims Act which provides for administrative filing of claims as a condition precedent to filing in a court in order to permit government agencies to consider settlement, section 2412(d) authorizes filing with the court in the first instance, with no provision for administrative action. The filing thus takes place in a pending action, as to which the United States has already waived the claim of sovereign immunity. The government is already in court when the question arises. Moreover, while section 2412(d) provides for “submission to the court, within thirty days,” it makes no provision for a time limit on service of the application. It appears, therefore, that in enacting section 2412(d) Congress was not concerned with the time within which affected government agencies received information about the details of the fee claim. Since the court to which the application is submitted obviously will not act on it until the government responds, it is equally clear that Congress was not concerned with any separate interest of the court in promptly receiving information about the details of the claim. In short, no identifiable interest of the affected government agencies or of the court suggests that Congress intended that the pleading requirements of section 2412(d)(1)(B), as distinct from the filing requirement, be treated as metaphysically “jurisdictional.”
On the other hand there are good reasons why the pleading requirements should be read as permitting some degree of flexibility. We know from our experience, both under the Equal Access to Justice Act and in other instances, of departure from the American Rule on fees that fee petitions must be prepared with great care because they are often hotly contested. Litigation over fee amounts has on some occasions been almost as protracted as the underlying lawsuit. Congress cannot have been unmindful of this reality. If we were to construe section 2412(d)(1)(B) in the manner urged by the government and accepted by the district court, the result would be to force counsel to demand the highest amount and include the largest number of hours and items of expense they could dream up. That would be so because the logic of the government’s position as to the meaning of section 2412(d)(1)(B) would preclude any upward amendment of the petition after the expiration of the thirty-day filing period. It seems unlikely that Congress would have intended anything so inconsistent with sound administration and fair adjudication of fee disputes.
Thus we conclude that Congress did not intend that defects in the pleading requirements of section 2412(d)(1)(B) be treated as jurisdictional. So long as a fee petition is filed within the thirty-day period which puts the court, and eventually the government, on notice that the petitioner seeks fees under the Equal Access to Justice Act, the court may consider the petition, and may, absent prejudice to the government or noncompliance with court orders for timely completion of the fee determination, permit supplementation. Because in this instance the fee petition giving such notice was timely filed, we need not address the question whether section 2412(d)(1)(B) is merely a statute of limitations and thus subject to the doctrines of waiver, estoppel, or equitable tolling.
B.
Our holding that the court did not lack subject matter jurisdiction over the fee petition is dispositive and requires a reversal. Because, however, the government may seek further review, we deem it appropriate to address petitioners’ alternative contention that in any event the June 27 and July 9,1984 filings were timely because the
Petitioners point out, however, that in class actions members of the affected class may seek leave to intervene in order to object to a settlement, and may appeal because they are dissatisfied with the relief obtained. While there is some merit to that contention, we do not find it controlling here. In this instance no application for intervention was filed either prior to the entry of the consent decree or during the thirty-day period specified in section 2412(d)(1)(B). Mindful of the policy of repose behind that section, we hold that absent any motion for intervention prior to the expiration of the thirty-day period, a consent judgment, even in a class action, shall be deemed final as of the date of its entry.
III.
The district court did not lack subject matter jurisdiction to consider the fee petition. The judgment appealed from must, therefore, be reversed and the case remanded for further proceedings.
. The Act has now been restored. See Act of Aug. 5, 1985, Pub.L. No. 99-80, 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183.
. When it recently extended the Act, Congress increased this amount to two million dollars. See Act of Aug. 5, 1985, Pub.L. No. 99-80, § 2(c)(1)(A), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 185 (amending 28 U.S.C. § 2412(d)(2) (1982)).
. Compare Berman v. Schweiker, 713 F.2d 1290, 1300 (7th Cir.1983) (Equal Access to Justice Act applies retroactively); Taylor v. United States, 749 F.2d 171 (3d Cir.1984) (thirty-day period does not expire until time for appeal has expired).
Dissenting Opinion
dissenting.
I respectfully dissent. Although I share the majority’s concern over the hardship resulting from a strict application of the statute in this case, I believe we are constrained by firmly established principle to affirm the trial court’s ruling that it lacked jurisdiction to entertain the fee petition at issue here.
The guiding precept in this field is clear. The Equal Access to Justice Act (EAJA) represents a waiver of the federal government’s immunity from lawsuits for attorney’s fees. Action on Smoking and Health v. Civil Aeronautics Board, 724 F.2d 211, 225 (D.C.Cir.1984). Waivers of sovereign immunity must be strictly construed. Id. Where the government agrees to permit lawsuits against it, “the terms of its consent to be sued in any court define that court’s jurisdiction to entertain the suit.” United States v. Sherwood, 312 U.S. 584, 586, 61 S.Ct. 767, 770, 85 L.Ed. 1058 (1941).
Also clear is the statutory language in this case. The Act states that a party seeking fees, “shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows ... the amount sought, including an itemized statement from an attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed.” 28 U.S.C. § 2412(d)(1)(B) (1982) (emphasis added).
In stating what is required of a petitioner, the statute uses mandatory language. The requirement that an itemized statement be filed is contained in the same sentence as the requirement that a claim be filed within 30 days. Nothing in the wording or structure of the sentence suggests that certain elements necessary to meet the statute’s jurisdictional prerequisites are more or less important than others, or that some are to be interpreted more or less strictly than others.
To the extent it sheds any light on the issue, the legislative history of this provision provides no support for the majority’s parsing of the statute’s jurisdictional requirements. The House Conference Report, in adopting the Senate version of the 30-day requirement, described it as follows: “The Senate bill also requires a party seeking an award of fees and other expenses to submit an application for them within thir
The majority appears to believe that the treatment of the Federal Tort Claims Act jurisdictional provision in Tucker v. United States Postal Service, 676 F.2d 954 (3d Cir.1982), buttresses its position. That ease, however, is not analogous to this one. In Tucker, the Court interpreted two provisions of the Federal Tort Claims Act: a jurisdictional provision, set forth in two sections, requiring that a claim under the act be filed with the appropriate government agency within two years of the accident, and another provision conferring authority on the agency to settle the claim. Under the settlement provision, the government also promulgated a regulation allowing the agency to request detailed documentation of the claimant. The regulation stated that such documentation “may be required” of the claimant. 676 F.2d at 956-957.
Tucker rejected the position that a claimant’s failure to comply with a request for documentation under this regulation deprived a court of jurisdiction to. hear a claim that otherwise met the statutory requirements. Rather than excusing a failure to comply with jurisdictional requirements, the court found that the settlement provision was clearly independent of the jurisdictional provision. Noncompliance with the settlement portion, declared the court, “deprives a claimant only of the opportunity to settle his or her claim outside the courts,” 676 F.2d at 959, quoting Adams v. United States, 615 F.2d 284, 290, modified, 622 F.2d 197 (5th Cir.1980), while noncompliance with the jurisdictional provision “deprives a claimant of federal court jurisdiction over his or her claim.” Id. This conclusion, it added, was reinforced by the precatory language employed in the regulation; a jurisdictional prerequisite, it reasoned, would not be expressed in “permissive” language. Tucker, 676 F.2d at 957.
Here, by contrast, we are faced with what is quite clearly a jurisdictional provision in the statute itself, framed in unambiguous, mandatory language. Given the clarity and force of the strict construction principle as to waivers of sovereign immunity, and in the absence of any authority for departing from it in the case of the EAJA, I would defer to the wording chosen by Congress and hold that the petitioner was required to file an itemized petition within 30 days.
. Under the circumstances of this case, denying a counsel fee might appear to be a harsh result. In light of this, Congress may wish to amend the EAJA to allow a court to entertain a petition where the petitioner has substantially complied by filing a claim within 30 days. But because a waiver of sovereign immunity "cannot be implied but must be unequivocally expressed,” United States v. King, 395 U.S. 1, 4, 89 S.Ct. 1501, 1503, 23 L.Ed.2d 52 (1969), I believe the judiciary, as contrasted with the Congress, lacks the power to accomplish such a result.