6 Vet. App. 101 | Vet. App. | 1993
Lead Opinion
NEBEKER, Chief Judge, filed the opinion of the Court.
KRAMER, Judge, filed a concurring opinion.
STEINBERG, Judge, filed a dissenting opinion.
These consolidated motions, seeking attorney fees and expenses, require the resolution of whether a recent amendment to the Equal Access to Justice Act (EAJA), 28 U.S.C.A. § 2412 (West Supp.1993), applies to legal services performed in cases decided on their merits before the date of the amendment. In resolving this issue, we are quite mindful of the competing policy pressures favoring availability of counsel to veterans seeking to appeal denial of benefits and the rather strict command to require clear waivers of sovereign immunity by statute. There is, after all, much to be said for favoring compensation of counsel in these cases, and we do not lightly reach our conclusion. However, we hold that those legal services are not compensable because the clause concerning cases “pending” at the time of the amendment does not reach the services performed in these cases.
I. Factual and Procedural Background
The merits of each of the underlying appeals were decided prior to the enactment of
The Court, en banc, then held, pursuant to Ardestani v. INS, — U.S. -, 112 S.Ct. 515, 116 L.Ed.2d 496 (1991), that the EAJA did not apply to proceedings in this Court because sovereign immunity had not been waived. Jones v. Derwinski, 2 Vet.App. 231 (1992) [hereinafter Jones/Kamas]. Appellant Karnas appealed to the United States Court of Appeals for the Federal Circuit (Federal Circuit). Appellant Jones did not. During the pendency of the Karnas appeal, the FCAA was enacted. That Act contained an express waiver of sovereign immunity and made the EAJA applicable to any future appeal brought before this Court as well as to cases pending in the Federal Circuit or in this Court on the date of enactment of the FCAA, October 29, 1992. Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (1992). Prompted by the new legislation, the parties filed a joint motion with the Federal Circuit to vacate and remand as moot. The Federal Circuit granted the motion, vacated this Court’s decision as to appellant Karnas, and remanded for further proceedings consistent with the FCAA. See Karnas v. Principi, 985 F.2d 582 (1992).
II. Analysis
Appellant Karnas argues that the Federal Circuit, in granting the joint motion, has decided that these cases were “pending” by virtue of its remand to this Court since the Federal Circuit would have granted the joint motion to vacate and remand only if the cases were indeed pending. Otherwise, appellant Karnas argues, the issue on appeal before the Federal Circuit, i.e., whether these cases fell under the EAJA before the FCAA amendments were enacted, would still have needed to be decided by the Federal Circuit.
Appellant Karnas’s argument is misguided for two reasons. We think it clear that the Federal Circuit, far from the holding ascribed to it, was merely reacting to the parties’ then assumption that the case was pending under the FCAA. The issue was not expressly posed in the joint motion and, understandably, the Federal Circuit remanded for further proceedings under that Act without an express holding on the “pending” question. The second problem with appellant Karnas’s argument is that, even without a joint motion, a remand would still have been the ordinary course for the Federal Circuit to take in order that this Court might first interpret the EAJA as amended by the FCAA. See 38 U.S.C.A. § 7292(a) (West 1991). Because the Federal Circuit has not determined whether these cases were in fact “pending” within the meaning of FCAA’s section 506, we turn to our analysis of the law.
At the time of our 1992 decision in these cases, the Supreme Court, in Ardestani, had recently reemphasized that in order for the EAJA to apply, there must be an unambiguous waiver of sovereign immunity. “The EAJA renders the United States liable for attorneys’ fees for which it would not otherwise be liable, and thus amounts to a partial waiver of sovereign immunity. Any such waiver must be strictly construed in favor of the United States.” Ardestani — U.S. at -, 112 S.Ct. at 520. The Supreme Court also explained that the EAJA’s reach could not be extended “when the plain language of the statute, coupled with the strict construction of waivers of sovereign immunity, constrain us to do otherwise.” Id. — U.S. at -, 112 S.Ct. at 521. In the absence of such an express waiver of sovereign immunity, we held that the EAJA did not apply to proceedings in this Court.
The Supreme Court’s most recent cases addressing the principles of construction applicable to waivers of the Government’s sovereign immunity are United States Dep’t of
•Keeping in mind the Supreme Court’s admonition that waivers of sovereign immunity must be express and, where such a waiver is expressed, it must be narrowly construed, we begin our analysis of the EAJA as amended by the FCAA section 506, which states in pertinent part:
[This amendment] shall apply to any case pending before the United States Court of Veterans Appeals on the date of the enactment of this Act, to any appeal filed in that court on or after such date, and to any appeal from that court that is pending on such date in the United States Court of Appeals for the Federal Circuit.
Curiously, the Supreme Court was not included in the “case pending” sentence, though review there is also possible. See 38 U.S.C.A. § 7291 (West 1991).
We note that this is not the first time that the question of which “pending” cases fall under the EAJA has been raised. The federal courts have had to decide this question twice before: both at the time of the original enactment of the EAJA in 1980 and after its subsequent reenactment with amendments in 1985. Disputes as to the applicability of both the original 1980 enactment and the 1985 amendments gave rise to litigation which, in turn, resulted in two distinct lines of decisions in the federal courts of appeals on the issue of whether a case was “pending” on the effective date of enactment or amendment.
A. “Pending” Cases at the Time of the 1980 Enactment of the EAJA
When the EAJA was enacted in 1980, section 208 of the Act provided that it applied to “any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after [October 1, 1981].” Pub.L. No. 96-481, § 208, 94 Stat. 2330 (1980) (emphasis added). In early decisions, two courts of appeals held that the word “pending” included cases where the merits had been decided and only applications for attorney fees remained. In United States for Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir.1982) (Heydt), the United States Court of Appeals for the Eighth Circuit, concluded that since no manifest injustice would occur should it consider appellant’s request for attorney fees, it would entertain his request. In reaching its decision, the Heydt court specifically relied on Bradley v. School Bd., 416 U.S. 696, 711-16, 94 S.Ct. 2006, 2016-18, 40 L.Ed.2d 476 (1974), in which the Supreme Court had held that, unless manifest injustice would result or some indication existed to the contrary in the statute or legislative history, an appellate court must apply the law in effect at the time it renders its decision. See also Knights of the KKK v. East Baton Rouge, 679 F.2d 64, 68 (5th Cir.1982) (KKK) (“fact that a motion for attorneys’ fees is the only matter pending before a court does not mean that court lacks jurisdiction or that the ease is not ‘pending’”).
In subsequent decisions, however, other courts of appeals felt themselves constrained by the strict construction which must be accorded to waivers of sovereign immunity and held that “pending” for EAJA purposes includes only cases pending on the merits. In Nichols v. Pierce, 740 F.2d 1249, 1256 (D.C.Cir.1984) (citations omitted), the United States Court of Appeals for the District of Columbia (D.C.Circuit) commented:
Examining the language of [EAJA], it is apparent that a fair reading of its terms does not demonstrate a congressional intent to establish liability. The Act itself offers no definition of the term “pending.”
We do not believe the word “pending” should be interpreted as broadly as the appellant suggests. It may be that the result she urges is not explicitly ruled out by the Act. But this is not enough. As a waiver of sovereign immunity, the Act’s*105 terms must affirmatively establish liability, not merely fail to preclude it.
The D.C. Circuit further reasoned that including claims pending on attorney fees alone would not further Congress’ purpose in enacting the EAJA. Since the EAJA was enacted in order to encourage those who might otherwise be deterred financially from bringing suit when faced with unreasonable governmental action, see EAJA, Pub.L. No. 96-481, § 202(a), 94 Stat. 2326 (1980), “no possible deterrent could be removed by an award of attorneys’ fees [here, given that] the appellant’s case was filed, briefed, argued, and decided by a final judgment on the merits before the Act ever took effect.” Nichols, 740 F.2d at 1257. See also Commissioners of Highways of Towns of Annawan v. United States (Highways), 684 F.2d 443, 444 (7th Cir.1982) (since waivers of sovereign immunity must be strictly construed and are not to be extended by implication, cases pending only on applications for attorney fees are not covered by EAJA); Stanwood v. Green, 744 F.2d 714, 716 (9th Cir.1984) (per curiam) (case not “pending” for purposes of civil rights attorney fees under section 1988 when “no unresolved substantive claim” remained).
The United States Court of Appeals for the Ninth Circuit reached a similar conclusion in Tongol v. Donovan, 762 F.2d 727 (9th Cir.1985). Acknowledging the holdings of the Fifth and Eighth Circuits in KKK and Heydt, the Ninth Circuit nevertheless wrote,
We believe the District of Columbia [Nichols decision] and Seventh Circuits [Highways decision] more closely reflect the approach mandated by [the] latest teachings of the Supreme Court. The Eighth Circuit’s opinion [Heydt] is devoid of any statutory analysis, and the Fifth Circuit’s conclusion [KKK] is hampered by a failure to heed principles of narrow construction.
Tongol, 762 F.2d at 732 (citations omitted).
B. Cases “Pending” at the Time of the 1985 Amendments to the EAJA
In 1985, Congress amended and extended the EAJA. Pub.L. No. 99-80, 99 Stat. 183 (1985). The 1985 amendments were made applicable “to cases pending on or commenced on or after [August 5, 1985].” Pub.L. No. 99-80, § 7, 99 Stat. 183, 186 (1985). The question of what cases were actually “pending” arose again. In Russell v. National Mediation Bd., 775 F.2d 1284 (5th Cir.1985), the Fifth Circuit again held that eases which involve only EAJA applications are nevertheless “pending” cases. However, the Fifth Circuit took great care to distinguish its 1982 decision in KKK and, in so doing, appeared to question its rationale while acknowledging the decisions by the other courts of appeals which had rejected it because of the doctrine of sovereign immunity:
Other courts have criticized our decision in KKK for failing to apply the principle that waivers of sovereign immunity are to be narrowly construed. [These cases] find Bradley inapposite to an EAJA case because the United States was not a party in Bradley and no waiver of sovereign immunity was involved. Whatever the merits of the criticism directed at KKK, it has little weight here_ [The] clarifying amendments in Pub.L. No. 99-80 do not waive sovereign immunity in the same sense that the original EAJA did; the original Act created a new liability where none previously had existed, while the portion of the new Act with which we are concerned — the definition of “position of the United States” — merely clarifies] the EAJA.
Id. at 1287-88 (citations omitted).
In Center for Science in the Public Interest v. Regan, 802 F.2d 518 (D.C.Cir.1986), the D.C.Circuit held that, for purposes of the 1985 amendments, the plain meaning of “pending” includes pending applications for attorney fees. The Court distinguished its Nichols decision by saying,
the concerns which prompted the courts to decline to apply retroactively the original EAJA to cases which were closed save for the fee petition are inapplicable in the context of the application of the new definition of “position” under the new Amendments. By virtue of the original EAJA, the Government has already expressly waived sovereign immunity from attorneys’ fees in this case.
Center for Science, 802 F.2d at 524 n. 11.
One court of appeals has even held that, despite the “clarifying” nature of the 1985
Not surprisingly, appellants urge us to apply Heydt, KKK, and the line of cases which grew out of the 1985 EAJA amendments. We must decline this invitation, however, because those cases are simply inapposite. As this Court has made clear in its previous decision in these consolidated matters, we are presented with situations which are analogous not to the 1985 clarifying amendments to the EAJA but to the 1980 EAJA waiver of sovereign immunity. Jones/Karnas, 2 Vet.App. at 231. The FCAA was not merely a clarifying amendment; rather, it was Congress’ response to our original 1992 holding in Jones/Kamas that the EAJA did not apply to proceedings in this Court because there had been no express statutory waiver of sovereign immunity.
Any ambiguity which might have resulted from the decisions of the courts of appeals following the 1980 enactment and the 1985 amendment of the EAJA was clarified once and for all by the Supreme Court in Ardesta-ni and Nordic Village: “The EAJA renders the United States hable for attorney’s fees for which it would not otherwise be hable, and that amounts to a partial waiver of sovereign immunity. Any such waiver must be strictly construed in favor of the United States.” Ardestani — U.S. at -, 112 S.Ct. at 521; see Nordic Village, — U.S. at -, 112 S.Ct. at 1014. Pursuant to this command, we accord the EAJA waiver of sovereign immunity embodied in the 1992 FCAA the same strict construction which was accorded to the 1980 EAJA waiver of sovereign immunity by the D.C.Circuit in Nichols, the Seventh Circuit in Highways, and the Ninth Circuit in Tongol.
Finally, we note that appellant Karnas argues that language in a 1986 Federal Circuit decision demonstrates that the Federal Circuit viewed the 1985 amendments to the EAJA as applying to cases then pending merely on application for attorney fees, and that we are bound by this “holding.” Gavette v. Office of Personnel Management, 808 F.2d 1456 (Fed.Cir.1986) (en banc). The Federal Circuit stated in Gavette that “[t]he [1985] amendments ... provide for their applicability to 'pending cases without distinction, and the amendments apply to Gavette’s petition for fees.” Id. at 1467 (emphasis in original). This language does not, as appellant Karnas contends, constitute a holding, as that part of the opinion dealt with the meaning of “position of the United States”. Id. Moreover, the Federal Circuit in Gavette dealt with the 1985 reenactment of the EAJA without an expiration date, including the provisions to fill the time void between the expiration of the 1980 act and the 1985 reenactment, not the original enactment. The reference to the legislative history of the 1985 amendments in a footnote stating that those amendments were “clarifying” also has no bearing on our interpretation of the FCAA. Id. at 1467 n. 62. As we observed above, the FCAA so-called “clarification” served an entirely different purpose — to resolve the issue of EAJA’s applicability to this later-created Court. Furthermore, Gavette was decided before the Supreme Court’s holding in Ar-destani that EAJA waivers of sovereign immunity must be construed strictly. Ardestani — U.S. at -, 112 S.Ct. at 521; Nordic Village, — U.S. at -, 112 S.Ct. at 1016.
C. Legislative History
We are asked to view the legislative history of the FCAA, which states that the “intent of section [506] is to clarify the inclusion of the Court of Veterans Appeals as a ‘court’ for purposes of EAJA,” as reflective of an expressed desire to clarify the existence of a past waiver of sovereign immunity rather than a waiver concurrent with the amendment. See S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992). But in Nordic Village, the Supreme Court held that, although the statute had waived sovereign immunity, it had failed to unambiguously establish and unequivocally express that the waiver extended to monetary recovery in bankruptcy actions since it could be interpreted as not authoriz
The foregoing [interpretations of the Bankruptcy Code] are assuredly not the only readings of [the statute], but they are plausible ones — which is enough to establish that a reading imposing monetary liability on the Government is not “unambiguous” and therefore should not be adopted. Contrary to respondent’s suggestion, legislative history has no bearing on the ambiguity point_ [T]he “unequivocal expression” of elimination of sovereign immunity that we insist upon is an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee report.
Id. — U.S. at -, 112 S.Ct. at 1016 (citations omitted). While the Supreme Court in Nordic Village relied on its earlier decision in Ardestani for the principle of strict construction, Nordic Village represents a termination of the narrow use of legislative history in construing waivers of sovereign immunity permitted by Ardestani See Nordic Village, — U.S. at -, 112 S.Ct. at 1016; Ardestani, — U.S. at -, 112 S.Ct. at 520 (the “‘strong presumption’ that the plain language of the statute expresses congressional intent is rebutted only in ‘rare and exceptional circumstances,’ when a contrary legislative intent is clearly expressed” (citations omitted)).
Since the language of the EAJA as amended by the FCAA makes no distinction between pending on the merits and pending on applications for fees, it does not meet the “clear and unequivocal” requirement of Department of Energy or the “unequivocal expression” requirement of Nordic Village. The terms are susceptible to either interpretation, and since it is equally reasonable to construe the terms as referring only to cases pending on the merits, a reading which extends the Government’s waiver to cases pending on fee applications is not “ ‘unambiguous’ and therefore should not be adopted.” Nordic Village, — U.S. at -, 112 S.Ct. at 1016; see Dep’t of Energy, — U.S. at -, 112 S.Ct. at 1627.
Guided by the Supreme Court in Nordic Village, once we conclude that the statutory language does not unambiguously waive immunity over cases pending on fee applications, that conclusion ends our analysis since the requisite “unequivocal expression” of the waiver cannot be “supplied by a committee report.” Nordic Village, — U.S. at -, 112 S.Ct. at 1016. Furthermore, even if we were to consider the language of the Senate report, we think it more plausible that the expression in the Senate report respecting clarification recognized that the question as decided by this Court in 1992 was still open and pending in the Federal Circuit. Thus, the Act, if the Senate report is at all relevant on this question of clarification, resolved or clarified the discrete issue that was sub judi-ce, not the existence of a past waiver.
Finally, we note that Ardestani distinguished its holding that the immigration proceedings in question were “wholly outside the scope of the EAJA” from cases in which it had recognized that “once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to ‘assume the authority to narrow the waiver that Congress intended.’” — U.S. at -, 112 S.Ct. at 520 (citations omitted). Here, because the threshold requirement of a statutory waiver of sovereign immunity with respect to cases pending merely on application for attorney fees has not been met, we are not interpreting a statutory waiver of sovereign immunity too narrowly by holding that the eases before us do not fall under the EAJA.
III. Conclusion
We hold, therefore, that for purposes of FCAA section 506 and the EAJA, the term “case pending” includes only eases pending before the Court on the merits on or after October 29,1992; it does not include cases in which the only matters pending before the Court are EAJA applications.
Since the Court lacks power to entertain them, the motions for attorney fees and expenses are DISMISSED.
Concurrence Opinion
I concur in the result reached by the majority, but write separately to address recent Supreme Court and Court of Appeals for the Federal Circuit cases and the legislative history of the Federal Courts Administration Act of 1992 (FCAA), Pub.L. No. 102-572, § 506, 106 Stat. 4506, 4513 (codified at 28 U.S.C.A. § 2412 note (West Supp.1993) (Application of 1992 Amendment to Pending Cases)).
The most recent Supreme Court case addressing waivers of sovereign immunity was decided in May 1993. In United States v. Idaho, ex rel. Director, Idaho Dep’t of Water Resources, — U.S. -, 113 S.Ct. 1893, 123 L.Ed.2d 563 (1993), the Court reaffirmed the principles of construction applicable to waivers of sovereign immunity followed in April 1992 in United States Dep’t of Energy v. Ohio, — U.S. -, -, 112 S.Ct. 1627, 1635, 118 L.Ed.2d 255 (1992) (statutory language did not provide a “clear and unequivocal” waiver), and in February 1992 in United States v. Nordic Village, Inc., — U.S. -, -, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992) (“‘unequivocal expression’ of elimination of sovereign immunity that we insist upon is an expression in statutory text”), by stating that “[tjhere is no doubt that waivers of federal sovereign immunity must be ‘unequivocally expressed’ in the statutory text.” Idaho, ex rel., — U.S. at -, 113 S.Ct. at 1896 (emphasis added) (citation omitted).
In Smith v. United States, — U.S. -, 113 S.Ct. 1178, 122 L.Ed.2d 548 (1993), a case decided in March 1993, just two months before Idaho, ex rel., the Supreme Court held that the waiver of sovereign immunity in the Federal Tort Claims Act (FTCA) did not encompass tort claims arising in Antarctica. However, in construing Antarctica as a “foreign country” within the meaning of the foreign-country exception to FTCA applicability, the Court, unlike in Idaho, ex rel., not only relied upon the language and the structure of the statute, but also utilized FTCA legislative history to bolster its interpretation of the statute. Smith, — U.S. at - n. 4, 113 S.Ct. at 1182 n. 4. In so doing, the Supreme Court cited United States v. Kubrick, 444 U.S. 111, 100 S.Ct. 352, 62 L.Ed.2d 259 (1979), where the Court had also analyzed both the language and the legislative history of the statute to determine congressional intent. Kubrick, 444 U.S. at 118-120, 100 S.Ct. at 357-358. By referring to legislative history, and by citing to Kubrick, the Supreme Court in Smith seemed to indicate that legislative history has a role in interpreting statutory waivers of sovereign immunity, contrary to the seemingly decisive language in Nordic Village, — U.S. at -, 112 S.Ct. at 1016, that, “[i]f clarity does not exist ... [in statutory text], it cannot be supplied by a committee report.”
Finally, in Ardestani v. INS, — U.S. -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (1991), relied upon by the majority here and by the Court in Nordic Village, the Supreme Court extensively examined the Equal Access to Justice Act (EAJA) legislative history after stating that the “ ‘strong presumption that the plain language of the statute expresses congressional intent is rebutted only in ‘rare and exceptional circumstances,’ when a contrary legislative intent is clearly expressed” (citations omitted).
Further confusion arises from a decision issued in June 1993 by the Court of Appeals for the Federal Circuit subsequent to both Idaho, ex rel. and Smith. In M.A. Mortenson Co. v. United States, 996 F.2d 1177 (Fed.Cir.1993), a ease which also dealt with the applicability of EAJA, the Federal Circuit held that EAJA waived sovereign immunity with respect to an award of fees for abuse of discovery assessed against the Government pursuant to Rule 37 of the Rules of the Federal Court of Claims, a rule patterned after Rule 37 of the Federal Rules of Civil Procedure. The Court stated:
The present case is representative of a situation in which congressional intent is clear, even though imprecisely couched in the statutory phraseology of section 2412(b). The legislative history of the EAJA and the circumstances surrounding the passage thereof demonstrate that the drafters explicitly contemplated recovery of attorney fees against the government under circumstances other than those narrowly revealed by the “terms of any statute” language [of 28 U.S.C. § 2412(b) ].
Given the ambiguity now created by Smith, Ardestani, and M.A. Mortenson on the one hand, which seem to permit the use of legislative history, and Idaho, ex rel., Department of Energy, and Nordic Village on the other hand, which seem to preclude its use, and resolving this ambiguity by concluding that recourse to legislative history has not been unequivocally foreclosed by binding precedent opinions, an examination of the legislative history of the FCAA itself reveals considerable ambiguity.
The Senate Judiciary Committee report and the House Judiciary Committee report use the words “clarify” and “clarifies,” respectively, in describing, respectively, the FCAA’s “inclusion” of the Court in the EAJA and the “appli[cability]” of the EAJA to the Court. See S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992) (“The intent of section 508 [enacted as § 506] is to clarify the inclusion of the Court of Veterans Appeals as a ‘court’ for purposes of EAJA”); H.R.Rep. No. 1006, 102d Cong., 2d Sess. 25 (1992), reprinted in 1992 U.S.C.C.A.N. 3921, 3934 (“Vets are among the types of individuals the statute was intended to help. Therefore, § 508 amends EAJA and clarifies that it applies to the Court of Veterans Appeals”). In this regard, the majority states:
We are asked to view the legislative history of the FCAA, ... as reflective of an expressed desire to clarify the existence of a past waiver of sovereign immunity rather than a waiver concurrent with the amendment.
... [W]e think it more plausible that the expression in the Senate report respecting clarification recognized that the question as decided by this Court in 1992 was still open and pending in the Federal Circuit. Thus, the Act, if the Senate report is at all relevant on this question of clarification, resolved or clarified that discrete issue that was sub judice, not the existence of a past waiver.
Ante at 106-07 (citations omitted). The preceding majority statement correctly indicates that the legislative history’s attempt at clarification has resulted in further ambiguity.
The Senate report further states: “The Committee intends to make clear that EAJA applies to the court to the full extent of the law, including the principles contained in ... Center for Science in the Public Interest v. Regan [, 802 F.2d 518 (D.C.Cir.1989)]” (CSPI). S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992). As the majority notes, ante at 105, CSPI held that, for purposes of applying the 1985 EAJA amendments, “cases pending” included pending applications for attorney fees. Appellants therefore have concluded that the Senate report’s citation to CSPI indicates congressional intent that the terms “case pending” and “appeal ... pending” in the FCAA include pending fee applications. Appellant Jones even asks in his memorandum to the Court that if this is not the proper conclusion, “... what was the Committee referring to in specifically citing this case?” Mem. of Sept. 7, 1993, at 7.
The response to appellant Jones’ inquiry is two-fold. First, the report language is not an expression from the Congress, but only from the Senate. Second, it is not clear what the Committee was referring to when it cited CSPI. A significant distinction exists between CSPI and the cases presently before the Court in that, while CSPI arose in the context of applying a clarifying definition of a term (“position of the United States”) used in the original EAJA that had been added by the 1985 EAJA amendments, our eases arise in the context of an original waiver of sovereign immunity. Had the Senate Committee meant to waive sovereign immunity for pending fee applications filed pursuant to the FCAA’s original waiver of sovereign immunity (as opposed, for example, to a future modification of that waiver), a clearer expression of such intent would have been a citation not to CSPI, but to United States for Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir.1982), or Knights of the KKK v. East Baton Rouge, 679 F.2d 64 (5th Cir.1982), both of which dealt with the scope of the original
The Court of Appeals for the District of Columbia Circuit in CSPI itself distinguished its earlier strict construction approach in Nichols v. Pierce, 740 F.2d 1249 (D.C.Cir.1984), a case which, like ours, deals with an original waiver of sovereign immunity for purposes of EAJA applicability, by stating:
[T]he concerns which prompted the courts to decline to apply retroactively the original EAJA to cases which were closed save for the fee petition are inapplicable in the context of the application of the [1985] ... Amendments. By virtue of the original EAJA, the Government has already expressly waived sovereign immunity from attorneys’ fees in this case. The EAJA is no longer “temporary and experimental”, but has been made permanent by the [1985] Amendments.
CSPI, 802 F.2d at 524 n. 11 (citations omitted).
In contrast, Heydt and KKK, although arising in the context of applying the original waiver contained in the 1980 EAJA, did not follow the strict construction approach as exemplified in Nichols, but, rather, held that “pending” eases included cases pending only on applications for fees. Because Heydt and KKK are more analogous than CSPI to the cases presently before the Court in that they arose in the context of an original waiver of sovereign immunity, a citation to one of them in the legislative history would better support appellants’ position. Therefore, the Senate Judiciary Committee’s choice of CSPI is, at best, ambiguous, and thus does not constitute “clearly expressed” legislative intent. See Ardestani — U.S. at -, 112 S.Ct. at 520; cf. M.A. Mortenson Co., 996 F.2d at 1181.
As the legislative history here cannot be seen as unambiguous, I agree with the majority’s holding that, “for purposes of FCAA section 506 and the EAJA, the term ‘case pending’ [and ‘appeal pending’] includes only cases pending before the Court on the merits on or after [the effective date of enactment of the FCAA]; it does not include cases in which the only matters pending before the Court [were] EAJA applications [on such date].” Ante at 107.
Dissenting Opinion
dissenting:
I respectfully dissent from the holding of the majority because I believe the Court’s opinion conflicts with applicable binding precedent of the Supreme Court
I. Plain Meaning of the Statute
I agree with the majority that the inquiry regarding whether sovereign immunity has been waived as to a “case pending” in this Court or an “appeal ... pending” in the Federal Circuit must begin with the language of the statutory provision on which the appellants rely in contending that such a waiver has been made.
Sec. 506. Costs and Fees in the United States Court of Veterans Appeals.
(a) In GENERAL. — Section 2412(d)(2)(F) of title 28, United States Code, is amended by inserting before the semicolon “and the United States Court of Veterans Appeals”.
(b) Application to Pending Cases.— The amendment made by subsection (a) shall apply to any case pending before the United States Court of Veterans Appeals on the date of the enactment of this Act, to any appeal filed in that court on or after such date, and to any appeal from that court that is pending on such date in the United States Court of Appeals for the Federal Circuit.
FCAA, § 506, 106 Stat. 4513 (1992).
Subsection (a) of FCAA § 506 amends a definition in the Equal Access to Justice Act (EAJA) so as to include this Court (along with the Court of Federal Claims) in the definition of “court” in 28 U.S.C. § 2412(d)(2)(F).
A. Dictionary Defínitions. In determining the plain meaning of “ease” and “appeal”, a first resort would logically be to a dictionary to determine the accepted use of the terms used.
Case. A general term for an action, cause, suit, or controversy, at law or in equity; a question contested before a court of justice; an aggregate of facts which furnishes occasion for the exercise of the jurisdiction of a court of justice. A judicial proceeding for the determination of a controversy between parties wherein rights are enforced or protected, or wrongs are prevented or redressed; any proceeding judicial in its nature.
Appeal. Resort to a superior (ie. appellate) court to review the decision of an inferior (ie. trial) court or administrative agency. A complaint to a higher tribunal of an error or injustice committed by a lower tribunal, in which the error or injustice is sought to be corrected or reversed.
The above broad, inclusive definitions do not square with the majority’s crabbed “strict construction” analysis. Ante at 103-04, 106.
B. Nature of the “Case” and “Appeal” Here at Issue. In enacting the FCAA § 506(a) express waiver of sovereign immunity as to EAJA’s applicability to this Court, Congress explicitly vested this Court with jurisdiction to decide EAJA attorney-fee applications and to award attorney fees where authorized. It is these cases that are the sole subject of subsection (a), and it defies logical and contextual analysis to infer that subsection (b) deals with some other subject. In his opinion for the U.S. Court of Appeals for the District of Columbia Circuit in Center for Science in the Public Interest (CSPI) v. Regan, Judge Starr, in construing the term “case pending” in the 1985 EAJA Amendments, made this exact point, as follows: “The statute before us is exclusively concerned with attorneys’ fees and fee petitions; as a result, the plain meaning of ‘cases pending’ in specifying the effective date of the fee
C. Binding Federal Circuit Precedent. Precedent opinions of the Federal Circuit are binding on this Court unless clearly superseded by applicable Supreme Court opinions.
At the time the Federal Circuit decided Gavette, five other circuits had decided cases involving the meaning of “cases pending” in the 1985 Amendments; all had held, either explicitly or implicitly, that the term included a case pending on the EAJA-attorney-fee issue only.
D. Textual Analysis. Indeed, a thorough examination of the key statutory words and the context in which they are used supports the above plain-meaning conclusion. It seems quite clear that the term “case” as used in FCAA § 506(b) is the equivalent of “civil action” as used in EAJA. Specifically, EAJA § 2412(d)(1)(A) provides in pertinent part that “a court shall award to a prevailing party ... fees and other expenses, ... incurred by that party in any civil action ..., including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action_” 28 U.S.C.A. § 2412(d)(1)(A) (West Supp.1993) (emphasis added). Since EAJA uses the term “case” or “cases” and the term “appeal” or “appeals” in only two places (“eases” once and “appeals” once) and both uses reflect that the terms are subsumed within the term “civil action”, the FCAA’s use of “case” to refer to EAJA proceedings must be synonymous with EAJA’s use of “civil action”.
1. Textual analysis in light of case law: First, two recent Supreme Court opinions, Comm’r, INS v. Jean and Sullivan v. Hudson, have eschewed a restrictive interpretation of the term “civil action” in the EAJA
In Hudson, the Supreme Court held that nonadversarial proceedings in a Social Security case that were conducted pursuant to a federal court remand to the administrative agency were “an integral part of the ‘civil action’ for judicial review and thus EAJA attorney fees for representation on remand are available subject to the other limitations in the EAJA.”
Quite clearly, the Supreme Court in Jean and Hudson was not constrained by notions of “strict construction of waivers of sovereign immunity”, ante at 103-04,106 (quoting from Ardestani v. INS, — U.S. -, -, 112 S.Ct. 515, 521 (1991)), to adopt a narrow reading of “civil action”. Moreover, under the holding of Jean set forth above, an EAJA “civil action” includes all of the parts of that litigation: merits; EAJA applicability; and “fees for fees”.
Moreover, when Congress used the term “ease” in 1992 in FCAA § 506(b), it is presumed, according to Supreme Court and Federal Circuit precedent, to have been “knowledgeable about existing [statutory and case] law pertinent to the legislation it en
2. Contextual analysis of FCAA: Second, an examination of the FCAA for other uses of “case” or “appeal” lends further support to the above plain meaning of those terms in FCAA § 506(b). In FCAA § 102(d), Congress provided for the abolition of the Temporary Emergency Court of Appeals (TECA) six months after the FCAA’s enactment.
E. Cautionary Principle Not to Narrow Waiver Once Made. In determining the meaning of § 506(b), we should also heed the
In the context of FCAA § 506, there can be no doubt that subsection (a) of that section waived sovereign immunity as to suits against the Department of Veterans Affairs to recover fees under EAJA for representation before this Court. This Court should follow the cautionary principle set forth in Kubrick, Irwin, and the three recent Supreme Court cases and take care not “to assume the authority to narrow the waiver that Congress intended.”
F. Original Waiver v. Clarification. With regard to determining the plain meaning of the statute, I do not place great reliance on the distinction discussed by the majority, ante at 103-07, and by Judge Kramer, ante at 109-10, that has been characterized as one between “a waiver of sovereign immunity” and an amendment “intended merely to ‘clarify’ the original EAJA”.
G. “Plain Meaning” Conclusion. For the foregoing reasons, I conclude that, if the majority is correct that the waiver of sovereign immunity as to the pending fee applications must be clear and unequivocal on the face of the statute itself (I do not so conclude, as explained in part II., below), FCAA § 506(b) does clearly and unequivocally express a waiver of sovereign immunity as to the pending attorney-fee applications.
II. Legislative History
If I were to conclude, which I do not, that the plain meaning of the statute did not waive sovereign immunity as to the two pending fee applications, then I would agree with Judge Kramer that it is necessary to examine the FCAA’s legislative history to determine whether such a waiver was made. Ante at 109. Upon such examination, I find that Congress clearly intended to waive sovereign immunity for the categories of cases into which our two appellants fall.
I start by noting again that we are bound by Federal Circuit rulings unless we conclude that they have been clearly superseded by applicable Supreme Court opinions.
Where the language of a statute is clear, the plain meaning of the language governs interpretation thereof: “[T]he starting point for interpreting a statute is the lan*118 guage of the statute itself. Absent a clearly expressed legislative intention to the contrary, that language must ordinarily be regarded as conclusive.” Consumer Prod. Safety Comm’n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct. 2051, 2055, 64 L.Ed.2d 766 (1980). Where congressional intent would be thwarted absent reference to the legislative history, however, it is permissible to look beyond the specific language used, especially recognizing the Supreme Court’s guidance that the EAJA be interpreted “in light of [the EAJA’s] manifest purpose.” Sullivan, Secretary of Health & Human Servs. v. Hudson, 490 U.S. 877, 890, 109 S.Ct. 2248, 2257, 104 L.Ed.2d 941 (1989). This is no less true when attempting to determine the scope of the government’s waiver of sovereign immunity. See, e.g., McDonald’s Corp. v. United States, 926 F.2d 1126, 1129-32 (Fed.Cir.1991) (rejecting the government’s position that the plain language of 28 U.S.C. § 1491 must be interpreted without resort to the legislative history of the Tucker Act; Congress’ intent was clearly evidenced from the legislative history, and would have been frustrated by a technical reading of the statutory language).
The present ease is representative of a situation in which congressional intent is clear, even though imprecisely couched in the statutory phraseology of section 2412(b). The legislative history of the EAJA and the circumstances surrounding the passage thereof demonstrate that the drafters explicitly contemplated recovery of attorney fees against the government under circumstances other than those narrowly revealed by the “terms of the statute” language.
Mortenson, 996 F.2d at 1181 (emphasis added). The applicability of these rules to the situation before us could not be more clear.
I agree with Judge Kramer’s concurring opinion that recent Supreme Court precedents are confusing and ambiguous on the role of legislative history in determining whether waivers of sovereign immunity have been made by various enactments, and have not excluded resort to such history. Ante at 109. Hence, I believe that this Court is bound by the Federal Circuit’s express and very specific rules for interpreting EAJA even though the Circuit did not cite all applicable Supreme Court precedent.
A recent statement of this sort, and the one to which we now adhere, is found in United States v. Kubrick, 444 U.S. 111, 117-18, 62 L.Ed.2d 259, 100 S.Ct. 352 (1979): “We should also have in mind that the Act waives the immunity of the United States and that ... we should not take it upon ourselves to extend the waiver beyond that which Congress intended. Neither, however, should we assume the au*119 thority to narrow the waiver that Congress intended.”
Smith v. United States, — U.S. -, -, 113 S.Ct. 1178, 1183, 122 L.Ed.2d 548 (1993) (citations omitted) (emphasis added). See also United States v. ex rel. Director, Idaho Dep’t of Water Resources, — U.S. -, -, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (May 3, 1993). Moreover, Ardestani, so heavily relied upon by the majority, also quoted Kubrick to this effect.
I believe it is incontestable that the customary way to determine what Congress “intended” is by examining legislative history. Turning, then, to the legislative history of FCAA § 506, for the following reasons I disagree with Judge Kramer’s assessment that it “cannot be seen as unambiguous”. Ante at 110.
A. Unequivocal Legislative Historg. As to waivers of sovereign immunity, I assume, as Judge Kramer suggests in his opinion, that the legislative history as to Congressional intent needs to be “unequivocal” if the statutory text is not.
B. Committee Reports. The entire FCAA § 506 legislative history is set forth below.
The Senate Judiciary Committee, which reported the FCAA on July 27, 1992, stated:
A March 13,1992, decision of the United States Court of Veterans Appeals (court), in Jones and Karnas v. Derwinski, denied the right of plaintiffs to recover attorney fees under the Equal Access to Justice Act (EAJA). This ruling has resulted in a substantial burden on veterans bringing cases to the court, aggravating the situation in which a majority of cases are being brought pro se, thereby creating additional work for the court.
The objective of EAJA is to eliminate financial deterrents to individuals attempting to defend themselves against unjustified Government action. Veterans are exactly the type of individuals the statute was intended to help. Therefore, section 508 [enacted as section 506] amends EAJA to clarify that it applies to the Court of Veterans Appeals, overruling the Jones and Kamas decision.
The Committee intends to make clear that EAJA applies to the court to the full extent of the law, including the principles contained in Sullivan v. Hudson, and Center for Science in the Public Interest v. Regan.
The intent of section 508 is to clarify the inclusion of the Court of Veterans Appeals as a “court” for purposes of EAJA. It is not the intent of the committee, by specifying the Court of Veterans Appeals, to exclude any other nonarticle III courts having jurisdiction of an action from qualifying as a “court” under EAJA.
S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992) (footnotes omitted) (emphasis added).
The House Judiciary Committee then stated in its report, filed on October 3, 1992:
A March 13, 1992, decision of the United States Court of Veterans Appeals, Jones v. Derwinski, denied the right of plaintiffs to recover attorneys’ fees under the Equal Access to Justice Act (EAJA). This ruling has resulted in a substantial burden on veterans bringing cases to the court and has resulted in a majority of cases being brought pro se, creating additional work for the court.
The objective of EAJA is to eliminate financial deterrents to individuals attempting to defend themselves against unjusti*120 fied government action. Veterans are among the types of individuals the statute was intended to help. Therefore, section 508 [enacted as section 506] amends EAJA and clarifies that it applies to the Court of Veterans Appeals.
H.R.Rep. No. 102-1006,102d Cong., 2d Sess. 25 (1992), U.S.Code Cong. & Admin.News pp. 3921, 3934 (emphasis added).
I find that these authoritative expositions of the congressional committees of jurisdiction clearly express the following congressional intent: (1) to treat FCAA § 506 as “clarifying”, rather than making, a waiver of sovereign immunity; (2) to overrule the March 1992 decision in the instant case, 2 Vet.App. 231 (1992); and (3) to adopt “the principles of’ CSPI and Hudson in the application of EAJA to proceedings in this Court (emphasis added).
As to whether subsection (a) of section 506 was a clarification rather than a “new” waiver for purposes of the caselaw discussed in part I.F., above, I must conclude that the Committees were in the main not correct in their characterizations. As we held in the instant case in 1992, no “unambiguous” waiver of sovereign immunity was enacted in the 1988 Veterans’ Judicial Review Act (VJRA) as to the applicability of EAJA in this Court. Jones (McArthur) and Karnas v. Derwinski, 2 Vet.App. 231, 234 (1992). However, that does not mean that the Committees were altogether wrong; subsection (b) could certainly be considered to be a “clarification” of the applicability of the waiver being provided in subsection (a). And in that sense an analysis of the language in the Committee reports invokes the caution of Kubrick, Irwin, Ardestani Smith, and Idaho, ex rel, that “once Congress has waived sovereign immunity over certain subject matter, the Court should be careful not to ‘assume the authority to narrow the waiver that Congress intended.’ ” Ardestani — U.S. at -, 112 S.Ct. at 520 (quoting Kubrick ).
Most fundamentally, I do not agree with Judge Kramer that the Senate Committee’s reference to “the principles” of CSPI and Hudson is ambiguous in terms of the Committee’s intent. CSPI stands for the “principle”, as contrasted with its strict holding, that the “straightforward” reading of “case” in the 1985 Amendments effective-date provision includes cases pending only on fee applications when those amendments were enacted.
Focusing expressly on the fee applications of our two appellants, Mr. Jones’ EAJA attorney-fee application was pending here on October 29,1992, and Mr. Karnas’ was pending in the Federal Circuit on that date. Given the binding Supreme Court and Federal Circuit precedent, the plain meaning of FCAA § 506 in which the Congress decided to provide expressly for retroactive application of EAJA eligibility, and the stated congressional intentions of “overriding the [1992] Jones and Karnas decisions” by this Court and that “the principles” of CSPI and Hudson are to govern the application of EAJA in this Court, the majority has reached the erroneous conclusion that Congress intended to deny to appellants the benefit of the very law that their litigation was responsible for producing. I, therefore, am constrained to dissent from the Court’s dismissal of these EAJA applications.
. Comm'r, INS v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990); Sullivan v. Hudson, 490 U.S. 877, 109 S.Ct. 2248, 104 L.Ed.2d 941 (1989).
. M.A. Mortenson Co. v. United States, 996 F.2d 1177, 1181 (Fed.Cir.1993); Gavette v. OPM, 808 F.2d 1456, 1467 (Fed.Cir.1986) (en banc).
."The starting point in statutory interpretation is the language [of the statute] itself.” Ardestani v. INS, - U.S. -, -, 112 S.Ct. 515, 519, 116 L.Ed.2d 496 (1991); see Mortenson, 996 F.2d at 1181. I agree with Judge Kramer in concluding that applicable precedents do not clearly establish that the inquiry must end with the statutory language. See the discussion infra part II.
. As amended, 28 U.S.C.A. § 2412(d)(2)(F) (West Supp.1993) provides: " 'court' includes the United States Claims Court [now the United States Court of Federal Claims] and the United States Court of Veterans Appeals”.
. See Ardestani, - U.S. at -, 112 S.Ct. at 520 ("the legislative purpose is expressed by the ordinary meaning of the words used”) (quoting American Tobacco Co. v. Patterson, 456 U.S. 63, 68, 102 S.Ct. 1534, 1537, 71 L.Ed.2d 748 (1982)); Hudson, 490 U.S. at 890, 109 S.Ct. at 2257 (quoting Black’s definition of "civil action”); id., 490 U.S. at 894, 109 S.Ct. at 2259 (White, J., dissenting) (same).
. Center for Science in the Public Interest (CSPI) v. Regan, 802 F.2d 518, 521-22 (D.C.Cir.1986) (quoting Trahan v. Regan, 625 F.Supp. 1163, 1164 (D.D.C.1985), in construing the 1985 EAJA Amendments, Pub.L. No. 99-80, § 7(a), 99 Stat. 183, 186 (1985)). The court further stated:
As the Fifth Circuit aptly put it in addressing this issue, "[t]he phrase 'cases pending' makes no distinction between the fee application stage of a case and consideration of the merits.” Russell v. National Mediation Board, 775 F.2d 1284, 1286 (5th Cir.1985); Gavette v. Office of Personnel Management, 785 F.2d 1568, 1578 (Fed.Cir.1986) [(en banc)] [amended 808 F.2d 1456 (Fed.Cir.1986) (en banc)]. Both stages of litigation would seem to be encompassed by the statutory term. At all events, no such distinction is to be found in the language of the statute itself.
Ibid. This analysis in CSPI was cited with approval and followed by Judge Breyer for the First Circuit in United States v. 6.93 Acres of Land, 852 F.2d 633, 634-35 (1st Cir.1988) (also citing Russell and Gavette in concluding that "the language of the new law itself says that it applies”), which was in turn cited with approval and followed by the 10th Circuit in United States v. 1002.35 Acres of Land, 942 F.2d 733, 736 (10th Cir.1991) ("the 1985 Amendments expressly provide[] that the Amendments shall apply to pending cases ..., including cases where the fee petition was the only remaining item on the docket when the Amendments were enacted”).
. See 38 U.S.C.A. § 7292(c), (d), (e) (West 1991); Bethea v. Derwinski, 2 Vet.App. 252, 254 (1991) ("binding precedent” as to this Court includes "a decision of the ... Federal Circuit”); see also Jones (McArthur) and Karnas v. Derwinski, 2 Vet.App. 231, 234 (1992) (en banc) (Federal Circuit decision "is of extreme importance because some of our decisions, and possibly this one on the interpretation of the EAJA, are subject to review by the Federal Circuit (38 U.S.C.[A.] § 7292)"), vacated as to appellant Karnas, Karnas v. Principi, 985 F.2d 582 (Fed.Cir.1992); Dudley v. Derwinski, 2 Vet.App. 602, 603 (1992) (en banc) (expressly confirming panel holding in Jones (Ponce), 2 Vet.App. 362, 363 (1992), that Federal Circuit precedent opinion in Butler v. Derwinski, 960 F.2d 139, 141 (Fed.Cir.1992), had overruled a prior precedent of this Court in Elsevier v. Derwinski, 1 Vet.App. 150, 154 (1991)).
. Pub.L. No. 99-80, § 7(a), 99 Stat. 183, 186 (1985).
. Fulton v. Heckler, 784 F.2d 348, 349 (10th Cir.1986); United States v. Kemper Money Market Fund, Inc., 781 F.2d 1268, 1270 n. 1 (7th Cir.1986); Trust Co. of Columbus v. United States, 776 F.2d 270, 271-72 (11th Cir.1985) (by implication); United States v. Yoffe, 775 F.2d 447, 448-49 (1st Cir.1985) (by implication); Russell v. National Mediation Bd., 775 F.2d 1284, 1286 (5th Cir.1985).
. McQuiston v. Marsh, 790 F.2d 798, 800 (9th Cir.1986) (following Gavette). Contra Blackmon v. United States, 807 F.2d 70, 74 (6th Cir.1986).
. See discussion infra part I.D. of the text.
. Section 208 of the 1980 EAJA provided:
This title and the amendments made by this title shall take effect on October 1, 1981, and shall apply to any adversary adjudication, as defined in section 504(b)(1)(C) of title 5, United States Code, and any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after, such date.
Pub.L. No. 96-481, § 208, 94 Stat. 2325 (1980).
. Knights of the Ku Klux Klan v. East Baton Rouge Parish School Bd., 679 F.2d 64, 67-68 (5th Cir.1982); United States for Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir.1982).
. Tongol v. Donovan, 762 F.2d 727, 732 (9th Cir.1985); Nichols v. Pierce, 740 F.2d 1249, 1256 (D.C.Cir.1984); Commissioners of Highways v. United States, 684 F.2d 443, 444-45 (7th Cir.1982). See also Blackmon v. United States, 807 F.2d 70, 73-75 (6th Cir.1986) (later adopting Nichols and Tongol reasoning as applied to the 1985 Amendments).
. See Chiu v. United States, 948 F.2d 711, 713 (Fed.Cir.1991) (referring to prior remand of case, Chiu v. United States, 887 F.2d 1094 (Fed.Cir. 1986), in order for the Claims Court to apply 1985 amendment to case pending only on EAJA fee application when amendment enacted, see 948 F.2d at 711 n. 1).
. 28 U.S.C.A. § 2412(d) (West Supp.1993) (emphasis added) provides in subparagraphs (1)(A) and (2)(E):
(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
(E) "civil action brought by or against the United States” includes an appeal by a party, other than the United States, from a decision of a contracting officer rendered pursuant to a disputes clause in a contract with the Government or pursuant to the contract Disputes Act of 1978....
See generally, for EAJA's use of “civil action", 28 U.S.C.A. § 2412(a), (b), (d) (West Supp.1993).
. Jean, 496 U.S. at 160, 110 S.Ct. at 2320.
. Although a portion of Hudson's holding (relating to remands ordered by district courts pursuant to sentence four of Social Security Act section 405(g)) may be considered to have been overruled in part by dictum in Shalala v. Schaefer, - U.S. -, 113 S.Ct. 2625, 125 L.Ed.2d 239 (1993), the Supreme Court there took pains to point out, in response to the dissenting opinion of Justice Stevens, that "Hudson remains good law as applied to remands ordered pursuant to sentence six [of § 405(g) ]." Schaefer, - U.S. at -, 113 S.Ct. at 2631 n. 4.
. See also 28 U.S.C.A. § 2412(d)(3) (West Supp. 1993), which empowers a court "to award fees for representation before an agency to a party who prevails in an action for judicial review to 'the same extent authorized in [5 U.S.C. § 504(a) ].' ” Hudson, 490 U.S. at 890, 109 S.Ct. at 2257. An adversary adjudication is defined as one in which “the position of the United States is represented by counsel or otherwise”. 5 U.S.C.A. § 504(d)(3) (West Supp.1993).
. Hudson, 490 U.S. at 890, 109 S.Ct. at 2257.
. S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992).
. See quotation from Jean in text, ante at 114, note 17.
. Goodyear Atomic Corp. v. Miller, 486 U.S. 174, 184-85, 108 S.Ct. 1704, 1711-12, 100 L.Ed.2d 158 (1988) (state statutory law); accord Miles v. Apex Marine Corp., 498 U.S. 19, 32, 111 S.Ct. 317, 325, 112 L.Ed.2d 275 (1990) (federal statutory law); U.S. Dep't of Labor v. Perini North River Assoc., 459 U.S. 297, 319-20, 103 S.Ct. 634, 648, 74 L.Ed.2d 465 (1983) (case law); Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97, 99 S.Ct. 1946, 1957-58, 60 L.Ed.2d 560 (1979) (case law); V.E. Holding Corp. v. Johnson Gas Appliance Co., 917 F.2d 1574, 1581 (Fed.Cir.1990) (case law), cert. denied, 499 U.S. 922, 111 S.Ct. 1315, 113 L.Ed.2d 248 (1991).
. Federal Courts Administration Act (FCAA), § 102(d), 106 Stat. 4506, 4507 (1992) (providing for the abolition of TECA six months after the October 29, 1992, enactment of the FCAA).
. FCAA, § 102(e), 106 Stat. 4506, 4507 (1992). As to appeals which had been assigned to a panel on the effective date of the TECA’s abolition, the TECA panel was assigned to the Federal Circuit "for the purpose of deciding the case”. FCAA, § 102(e)(2), 106 Stat. 4506, 4507 (1992). The full text of section 102(e) reads:
(e) Pending Cases.- — (1) Any appeal which, before the effective date of abolition described in subsection (d), is pending in the Temporary Emergency Court of Appeals but has not been submitted to a panel of such court as of that date shall be assigned to the United States Court of Appeals for the Federal Circuit as though the appeal had originally been filed in that court.
(2) Any case which, before the effective date of abolition described in subsection (d), has been submitted to a panel of the Temporary Emergency Court of Appeals and as to which the mandate has not been issued as of that date shall remain with that panel for all purposes and, notwithstanding the provisions of sections 291 and 292 of title 28, United States Code, that panel shall be assigned to the United States Court of Appeals for the Federal Circuit for the purpose of deciding such a case.
. The Senate Committee report stated:
Whatever may have been the value of the [TECA] in earlier years, its caseload is now so small as to justify its abolition.... Section 103 of S. 1569 encompasses the Federal Courts Study Committee recommendation found on page 73 of the Study Committee Report. It would abolish TECA and vest its remaining caseload in the Court of Appeals for the Federal Circuit.
S.Rep. No. 342, 102d Cong., 2d Sess. 25 (1992).
. EAJA fees clearly are available in cases that were appealed to TECA. See Consumers Power Co. v. Dep't of Energy, 894 F.2d 1571, 1578-82 (Temp.Emer.Ct.App.1990).
. Sullivan v. Shoop, 496 U.S. 478, 484, 110 S.Ct. 2499, 2504, 110 L.Ed.2d 438 (1990) (quoting Sorenson v. Secretary of the Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 1606, 89 L.Ed.2d 855 (1986), and long line of Supreme Court precedent to the same effect); see also United States v. Nordic Village, Inc., — U.S. -, -, 112 S.Ct. 1011, 1015, 117 L.Ed.2d 181 (1992) (statute must be construed in such fashion that every word has some operative effect); Hellebrand v. Secretary of HHS, 999 F.2d 1565, 1571 (Fed.Cir.1993) (same); Genentech, Inc. v. Eli Lilly and Co., 998 F.2d 931, 942 (Fed.Cir.1993) (to same effect); In re Fee Agreement of Smith, 4 Vet.App. 487, 493 (1993) ("each part or section should be construed in connection with every other part or section so as to produce a harmonious whole”); Leopoldo v. Brown, 4 Vet.App. 216, 219 (1993) (quoting Talley v. Derwinski, 2 Vet.App. 282, 286 (1992), to the same effect).
. United States v. ex rel. Director, Idaho Dep 't of Water Resources, - U.S. -, -, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (May 3, 1993); Smith v. United States, — U.S. -, -, 113 S.Ct. 1178, 1183, 122 L.Ed.2d 548 (March 8, 1993); Ardestani v. INS, - U.S. -, -, 112 S.Ct. 515, 520, 116 L.Ed.2d 496 (December 10, 1991). See also Irwin v. Dep't of Veterans Affairs, 498 U.S. 89, 95, 111 S.Ct. 453, 457, 112 L.Ed.2d 435 (1990) (citing Bowen v. City of New York, 476 U.S. 467, 479, 106 S.Ct. 2022, 2029, 90 L.Ed.2d 462 (1986) for this principle).
. In Irwin, the Supreme Court held expressly in 1990 that principles of equitable tolling applicable in suits between private litigants were applicable in suits against the United States that invoke time requirements. The Court there stated:
Once Congress has made such a waiver [of sovereign immunity], we think that making the rule of equitable tolling applicable to suits against the Government, in the same way that it is applicable to private suits, amounts to little, if any, broadening of the congressional waiver. Such a principle is likely to be a realistic assessment of legislative intent as well as a practically useful principle of interpretation.
Irwin, 498 U.S. at 95, 111 S.Ct. at 457 (emphasis added).
. See discussion infra in part II.B. of the text about determining what Congress "intended''.
. See Schultz v. Crowley, 806 F.2d 281, 282 (D.C.Cir.1986), denying reh’g and reh’g en banc of 802 F.2d 498 (D.C.Cir.1986) (two panel judges characterized the 1985 EAJA Amendments as intended to "clarify” as compared with making a waiver of sovereign immunity); see also American Pacific Concrete Pipe Co. v. NLRB, 788 F.2d 586, 589 (9th Cir.1986) (distinguishing among parts of 1985 EAJA Amendments as to whether they involved new waivers of sovereign immunity or "clarifying” amendments). See cases cited infra note 34.
. H.R.Rep. No. 102-1006, 102d Cong., 2d Sess. 25, reprinted in 1992 U.S.C.C.A.N. 3921, 3934 (1992); S.Rep. No. 342, 102d Cong., 2d Sess. 39 (1992). See quotations infra in part II.B. of the text.
. See, e.g., CSPI, 802 F.2d at 523-24; Russell, 775 F.2d at 1288; American Pacific, 788 F.2d at 588-90.
. There was at least one other “new” waiver of sovereign immunity in the 1985 EAJA Amendments — an amendment increasing from $5 to $7 million the net-worth ceiling in 28 U.S.C.A. § 2412(d)(2)(B) above which an entity could not qualify for EAJA fees. Pub.L. No. 99-80, § 1(c)(1), 99 Stat. 183, 183 (1985). See American Pacific, 788 F.2d at 588-90 (holding, after close scrutiny of legislative history, that the increased ceiling was "an expansion of eligibility to new claimants” rather than a clarifying amendment as in Russell, supra note 34, and thus did not apply to a "pending” case).
One other provision in the 1985 EAJA Amendments was also arguably a waiver. That is the provision adding to EAJA a definition of "prevailing party” in eminent domain cases (28 U.S.C.A. § 2412(d)(2)(H)), Pub.L. No. 99-80, § 2(c)(2)(H), 99 Stat. 183, 185 (1989). Prior to the 1985 Amendments, "the [federal] courts were divided as to whether and how the EAJA applied to landowners in eminent domain proceedings [citing authorities].” 6.93 Acres of Land, 852 F.2d 633, 636 (1st Cir.1988). Although at least one circuit concluded that the 1985 Amendment was "clarifying” and therefore applicable to cases pending only on EAJA fee applications, 6.93 Acres of Land, 852 F.2d at 634-35, the facts of that case did not raise a question of an expansion of a sovereign immunity waiver since the applicant there failed to meet the new statutory definition, and fees, therefore, were denied by the First Circuit. Accord 1002.35 Acres of Land, 942 F.2d 733, 736 (10th Cir.1991).
. See supra note 7.
. It did not cite, in order of recency: Idaho, - U.S. -, -, 113 S.Ct. 1893, 1896, 123 L.Ed.2d 563 (1993); Smith, -U.S. -, -, 113 S.Ct. 1178, 1183, 122 L.Ed.2d 548 (1993); U.S. Dep't of Energy v. Ohio, U.S. -, -, 112 S.Ct. 1627, 1635, 118 L.Ed.2d 255 (1992); Nordic Village, - U.S. -, -, 112 S.Ct. 1011, 1016, 117 L.Ed.2d 181 (1992); or Ardestani, - U.S. at -, 112 S.Ct. at 515, 521 (1991). Although not cited in Mortenson, Nordic Village was cited by the Federal Circuit in two opinions issued shortly after Mortenson, for the proposition that "a statute is to be construed in a way which gives meaning and effect to all of its parts.” Hellehrand, 999 F.2d 1565, 1571 (Fed. Cir.1993). See also Genentech, 998 F.2d 931, 942 (Fed.Cir.1993) (“statute must be interpreted to give effect to each of its provisions”).
The Federal Circuit's resort, in Mortenson, to legislative history to determine the intent of various fee-shifting statutes, including EAJA, is not an isolated example of Federal Circuit jurisprudence. The Federal Circuit delved extensively into such legislative history in Gavette, 808 F.2d at 1464-65, in 1986 and did so again as to EAJA in 1988 in Naekel v. Dep't of Transp., 845 F.2d 976, 981 (Fed.Cir.1988).
. See supra note 37.
. Ardestani, — U.S. at -, 112 S.Ct. at 520. Indeed, in Jean, 496 U.S. at 162-165 n. 14, 110 5.Ct. at 2321-22, 2322 n. 14, the Supreme Court reviewed the EAJA legislative history in reaching its unanimous conclusion. So did the Court in Kubrick, 444 U.S. at 267 n. 6, 100 S.Ct. at 549 n. 6. And in Irwin, 498 U.S. at 95, 111 S.Ct. at 457, fully quoted supra note 30, the Court referred to its "little, if any, broadening of the congressional waiver” of sovereign immunity as "likely to be a realistic assessment of legislative intent.”
. The Federal Circuit, in the extensive quote above from its binding precedent opinion in Mortenson, ante at 117-18, may have indicated that legislative history must be “clear”. 996 F.2d at 1181. Likewise, the Supreme Court in Smith, - U.S. at -, 113 S.Ct. at 1183, noted in passing that the plaintiff had not asserted "clear evidence of congressional intent”. However, neither court held that unequivocal legislative history on the question of congressional intent was necessary to establish a waiver of sovereign immunity.
. I think that the Committees may also have been using "clarify” in the sense of making express what the floor managers in both houses had expressly stated, in the October 1988 debate prior to final passage of the Veterans' Judicial Review Act compromise legislation, that “it is clear that the Equal Access to Justice Act ... is applicable to VA benefit cases determined in Federal Court.... It is applicable on its face to VA benefit determinations made by either the Court of Veterans Appeals or the Court of Appeals for the Federal Circuit.” 134 Cong.Rec. 31789 (1988) (statement of Rep. Edwards); see also 134 Cong.Rec. 31473 (1988) (statement of Sen. Cranston).
. CSPI, 802 F.2d at 522.
. But cf. discussion supra in text at part I.F.
. Hudson, 490 U.S. at 890, 109 S.Ct. at 2257 quoting the statutory Congressional Findings and Purposes of the 1980 EAJA section 1(c)(2) (found at 5 U.S.C.A. § 504 note (West Supp.1993)).
