740 F.2d 1249 | D.C. Cir. | 1984
Lead Opinion
Opinion for the Court filed by Circuit Judge WILKEY.
Opinion concurring in part, dissenting in part, filed by Circuit Judge MIKVA.
These consolidated appeals stem from the attempts of appellant Jean Nichols to recover attorneys fees incurred in an action brought against the United States Department of Housing and Urban Development (“HUD”). After successfully challenging the sufficiency of procedural protections accorded to tenants receiving housing subsidies under a program administered by HUD, the appellant filed successive petitions for attorneys fees in the United States District Court, first under the Freedom of Information Act
I.Background
Under Section 8 of the Existing Housing Program,
Shortly after the suit was filed, ■ the appellant received a waiver of the family size requirements which permitted her family to remain in the three-bedroom home. The Government then filed a motion for summary judgment contending that the controversy was moot. This motion was denied on 7 January 1980.
A few weeks later HUD completed and released a new handbook entitled “Public Housing Agency Administrative Practices for the Section 8 Existing Housing Program” (“Section 8 Handbook”).
Instead, on 12 September 1980, the district court certified appellant’s class and granted the appellant’s motion for summary judgment. In the accompanying order the district court directed HUD to formalize the provisions of its Section 8 Handbook by incorporating them within the Code of Federal Regulations. The court also directed HUD to include within those procedures mandatory notification to housing claimants of their right to a waiver of the family size requirements, and the grounds upon which a waiver could be granted.
Since summary judgment was granted the appellant has sought to recover attorneys fees incurred during the litigation. At the time relief on the merits was obtained, there was no statute generally permitting awards of attorneys fees against the United States. Consequently, in a petition for attorneys fees filed 7 October 1980, appellant attempted to recover attorneys fees under the specialized provisions of the Freedom of Information Act (“FOIA”),
The appellant challenged that action on appeal to this court. During the course of this first appeal the Equal Access to Justice Act (“EAJA” or “Act”) took effect.
On remand the district court ruled that the appellant had not filed a request for fees within thirty days of the final judgment (12 September 1980) as required by the EAJA, and rejected appellant’s application for fees. Appellant now appeals the denial of fees under the EAJA and renews the challenge to the district court’s refusal to award fees under FOIA.
II. Attorneys Fees Under The Freedom Of Information Act
Section 552(a)(4)(E) of the Freedom of Information Act permits, but does not require, a court to assess attorneys fees against the United States “in any case under this section in which the complainant has substantially prevailed.”
This claim was extensively elaborated before the district court. Judge Flannery, who was intimately familiar with the course of the litigation, thoroughly considered the appellant’s contentions and rejected them in a sound and well-reasoned opinion. There is need to plod once again through each step of appellant’s labored arguments; it is abundantly clear that the appellant neither sought nor obtained relief under the Freedom of Information Act. This is unmistakable from the pleadings filed by appellant, the manner in which the sought-after relief was obtained, and the appellant’s own characterization of her case on appeal.
The complaint is devoid of any mention of FOIA by name. Neither does it contain any citation to the FOIA provision (Section 552(a)(1)(D)) under which the suit was allegedly brought. Although the complaint does refer to “§ 552, et seq.,” this is always described as the “Administrative Procedures [sic] Act,” not the Freedom of Information Act. Moreover, the appellant’s “cause of action” was the alleged “failure to require by regulation [the] notice and right to a hearing” mandated by the “National Housing Act, 42 U.S.C. § 1437f” and the “due process clause.”
The complaint’s failure to assert a claim under FOIA or to rely specifically on the provisions of Section 552(a)(1)(D) is not surprising, since the provisions of FOIA are largely irrelevant to the appellant’s effort “to have the court declare unconstitutional and enjoin the practice of [HUD] of denying procedural due process to low income participants in the Section 8 Existing Housing Program,”
Not only was there no reference to the specific protection of FOIA in the pleadings, but the tangential relevance of FOIA did not become apparent in the litigation until the appellant moved for summary judgment. Even then Section 552(a)(1)(D) was cited merely as a fallback defense to HUD’s position that its handbook rules could be considered merely interpretive guidelines, exempt from publication under Section 553 of the Administrative Procedure Act. Appellant relied on FOIA as an alternative ground under which the Section 8 regulations could be published in the event the district court found them to be both consistent with due process and interpretive guidelines statutorily exempt from rulemaking under the APA. This passing
Disputing that conclusion on appeal, the appellant attempts to recast the FOIA claim as a substantial one, which played an “important role ... in the decision to file and pursue this action ____”
There might be circumstances in which an award of attorneys fees under FOIA would be an appropriate response to a suit brought to correct agency action which is deficient under both FOIA and the Administrative Procedure Act, but we are satisfied they are not present here. Certainly none of the cases cited by the appellant compels a different result.
III. Attorneys Fees Under The Equal Access To Justice Act
The Equal Access to Justice Act permits an award of attorneys fees to litigants who prevail in actions against the United States, unless the position of the United States was substantially justified or circumstances indicate that an award of attorneys fees would be unjust. This provision, 28 U.S.C. § 2412(d)(1)(A), states in full:
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 ... incurred by that party in any civil action (other than cases sounding in tort) 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.
Application for fees must be made within thirty days of final judgment.
After this court remanded the case to the district court to consider whether the appellant satisfied the statutory requirements for allowing fees, the district court ruled that the appellant failed to apply for fees within the thirty-day time limit. We now
A. Effective Date of the Act
The initial question which we must confront is whether the Equal Access to Justice Act applies at all to the present action. By its terms the Act pertains only to actions “pending on, or commenced on or after” 1 October 1981.
The appellant initiated this litigation on 13 November 1979. Two motions for summary judgment filed by HUD were denied, and on 12 September 1980 the district court granted appellant’s motion for summary judgment. This ruling and the accompanying order granted to the appellant substantially all the relief which she had sought in her complaint. HUD did not challenge the court’s ruling.
Thus by 12 September 1980 all litigation over the legal and factual merits of the appellant’s claim was terminated by the judgment in her favor. In other words, before the Act was even passed,
In interpreting the language of the Act and applying it to this litigation we must be guided by the rule that waivers of sovereign immunity must be strictly construed. The United States is generally immune from suit except as it consents; the statutory terms governing its liability must be confined to their explicit terms.
This rule protects the United States Treasury from potentially excessive liabilities which Congress did not anticipate. Although the principle requiring strict construction of waivers of sovereign immunity is not a new one, the Supreme Court has recently reaffirmed its applicability in at
Consequently, courts interpreting the Act have generally recognized the necessity of narrowly construing its terms.
Examining the language of the Act, 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.” One may safely assume Congress intended it to use the word in its ordinary sense. Dictionaries confirm what ordinary usage suggests: A pending matter is one which is undecided, awaiting decision or settlement;
The appellant argues that where any col- . lateral issue, such as an attorneys fees question, remained to be decided on 1 October 1981, the entire case must still be considered “pending” under the Act. On 7 October 1980, only after all substantive issues were resolved in the appellant’s favor, the appellant filed a petition for attorneys fees under FOIA. This ancillary issue was the only undetermined question when the Act became effective on 1 October 1981; the pendency of an appeal solely on the issue of attorneys fees under FOIA is now said to permit retroactive consideration of attorneys fees under the EAJA.
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 terms must affirmatively establish liability, not merely fail to preclude it.
The final order in this case issued on 12 September 1980, one year and eighteen days before the Act passed into law. Surely, Congress did not intend to saddle the Treasury with the liability for legal fees in all previously filed and resolved lawsuits in which the only remaining questions at issue were undisputably irrelevant to the conclusively decided cases in which they arose. While the dispute in this suit was pending for over one year prior to the Act’s passage, there are many other fee controversies which have been pending even longer; the total number of such eases is indefinite. If liability were imposed, the financial drain on the Treasury would be staggering. The Supreme Court has noted the existence of over 150 federal fee shifting statutes.
Excluding liability in this class of cases is both consistent with the statutory scheme and legislative policies of the Act, and confirmed by the considered decisions of other courts which have dealt with the issue. The statutory scheme of the Act is a strong indicator that Congress intended the scope of liability under the Act to be narrowly interpreted. First, the Act is temporary and experimental.
In addition, the policies of the Act would not be served by broadly construing liability. The Act was premised on a finding that as of the time of its passage, “certain individuals ... may be deterred from seeking review of ... unreasonable governmental action because of the expense involved in securing the vindication of their rights.”
Other courts, both in our circuit and elsewhere, have reached similar conclusions. In Commissioners of Highways v. United States, the Seventh Circuit clearly held that the Act does not extend to cases in which the only matter at issue on 1 October 1981 was an appeal from the denial of attorney fees.
None of the other cases cited by the appellant are persuasive. She relies heavily on Bradley v. School Board,
Moreover, the statute at issue in Bradley was part of an entirely different legislative scheme, intended to serve other policies. That statute failed to specify an effective date, leaving entirely open the question of prospective or retroactive application from the date of enactment. In those circumstances the Court “anchor[ed]” its holding on the principle that “a court is to apply the law in effect at the time it renders its decision, unless ... there is statutory direction or legislative history to the contrary.”
Other cases relied on by the appellant for the opposite conclusion either misconstrue the holding of Bradley, with no analysis of the express statutory language and intent of the Act,
B. Substantial Justification for the Position of the United States
Even assuming, arguendo, that this ease was pending on the effective date of the Act, we would still be constrained to affirm the denial of attorneys fees under the Act. Section 2412(d)(1)(A) provides that a court shall award attorneys fees to a prevailing party “unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.”
The legislative history and case law establish several guidelines in determining whether substantial justification exists. The United States, not the prevailing, party, bears the burden of demonstrating substantial justification.
Applying these guidelines, it is evident that the position of HUD in this litigation was more than reasonable. After the complaint was filed, even as HUD took steps to respond to suit, several events took place which arguably resolved the controversy. First, only days after the suit was commenced, the plaintiff received notice that she continued to be eligible for a subsidy for her three-bedroom house. This removed the threat of eviction which had precipitated the action, and thus arguably mooted the entire case. A few weeks later, HUD finished and released its Section 8 Handbook, which required the authorities administering the housing subsidies (1) to give notice to tenants prior to any reduction or termination of benefits, (2) to notify tenants of the right to request an informal hearing prior to a reduction, (3) to provide such a hearing, when requested, and (4) to provide written notice of the decision after the hearing.
Although the district court was not entirely persuaded by these contentions, and eventually ruled that a justiciable controversy remained, HUD’s decision to respond to the changing circumstances of the lawsuit by seeking a ruling that the plaintiff’s request for relief had been superseded by
The appellant makes much of HUD’s decision not to file a written opposition to the appellant’s own motion for summary judgment, suggesting that this constitutes an admission that HUD’s position was unreasonable and unjustified. However, HUD did oppose the appellant’s motion for class certification. A court ruling denying the motion for certification and dismissing the suit on mootness grounds would have completely terminated the litigation in favor of HUD. The appellant ignores this litigation strategy, impliedly suggesting that it was improper for HUD to raise the threshold issue of mootness when the strength of the defendant’s case on the merits may have been put in doubt.
We do not believe it was imperative for the Government to concede the entire lawsuit as the appellant urges.
Moreover, an arguable claim that a particular controversy is moot, or otherwise nonjusticiable, can and should be pressed independently of the legal merits of the defendant’s position, at least when the courts’ Article III jurisdiction is at issue. Just as two parties cannot by consent confer subject matter jurisdiction on a court, our court cannot reach the merits of a controversy — no matter how clear the proper result on the merits of the case would be — when it is moot or the court would otherwise lack jurisdiction under Article III. Our judicial system relies on the advocacy of the parties to frame the dispositive issues clearly. Consequently, when the circumstances of a particular lawsuit suggest to a defendant that the case could be moot, regardless of the strength of its other defenses, that party may properly— some argue should — raise and argue the issue before the courts. This appears to have been the position taken by HUD in this case. Although it chose not to rely on legal arguments on the merits which it could have raised in its defense, it did assert that the controversy had become moot.
Although not ultimately prevailing, the Government’s position throughout the litigation, from the filing of the complaint through the final judgment, was substantially justified. Thus, an award of attorneys fees against HUD is not authorized under the Act.
IV. Conclusion
Under the American Rule prevalent in bur courts, the expense of attorneys fees has traditionally been borne by the lawyer’s own client, not the opposing litigant. For better or worse, that general rule applies today.
Since prevailing in her basic lawsuit nearly four years ago, the appellant in this case has cast about for an applicable exemption from the general rule, first under FOIA, and later under the EAJA as the likelihood of success under FOIA faded. After closely reviewing the stack of filings, briefs, and arguments on attorneys fees which have accumulated during the process of hearing and appeal, and which dwarf those papers relating to the merits of the appellant’s claim, it is evident that the general rule applicable to the typical litigant continues to apply in this case, requiring the appellant to bear the cost of her own attorneys. Her action seeking protection from any reduction of Section 8 housing subsidies without the benefit of asserted procedural due process rights is demonstrably not one arising under FOIA. Commenced, argued, and resolved more than one year prior to the effective date of the EAJA, it certainly was not “pending” on that date. Neither can it be said that HUD’s position, although eventually rebuffed, was without substantial justification. Under these circumstances, we must uphold the district court’s decisions denying attorneys fees under the Equal Access to Justice Act and.the Freedom of Information Act.
Affirmed.
. 5 U.S.C. § 552(a)(4)(E) (1982).
. 28 U.S.C. § 2412 (1982).
. See 42 U.S.C. § 1437f(b)(l) (1982).
. See 24 C.F.R. §§ 882.209(a)(2), 882.213 (1983).
. See 42 U.S.C. § 1437f (1982).
. 5 U.S.C. §§ 551-559 (1982).
. See Appendix at 14, No. 81-1160.
. Id. at 61.
. Brief for Appellee at 3, No. 81-1160; Appendix at 61, 63, No. 81-1160.
. See Appendix at 43-44, No. 81-1160.
. 5 U.S.C. § 552(a)(4)(E) (1982).
. Appendix at 54, No. 81-1160.
. Relevant portions of this Act are codified at 5 U.S.C. § 504 (1982) and 28 U.S.C. § 2412 (1982).
. 5 U.S.C. § 552(a)(4)(E) (1982) (emphasis added).
. Id. § 552(a)(1)(D).
. See Lund v. Affleck, 587 F.2d 75 (1st Cir. 1978).
. Complaint for Injunctive and Declaratory Relief and Relief in the Nature of Mandamus ¶ 25, Appendix at 13, No. 81-1160.
. Id. ¶ 1, Appendix at 6, No. 81-1160.
. Id. ¶ 3, Appendix at 14, No. 81-1160.
. See 5 U.S.C. § 553(b) (1982).
. Id. § 552(a)(1)(D).
. Appendix at 51-52, No. 81-1160.
. Brief of Plaintiff-Appellant at 28-29, No. 81-1160.
. Id. at 40 (emphasis added). We note that appellant’s characterization of FOIA’s role is also belied by the "freely" given admission of appellant's counsel that "they did not anticipate a fee award at the outset of this litigation.” Id.
. E.g., National Ass'n of Concerned Veterans v. Secretary of Defense, 675 F.2d 1319 (D.C.Cir. 1982); National Ass'n of Concerned Veterans v. Secretary of Defense, 487 F.Supp. 192 (D.D.C.1979).
. Fenster v. Brown, 617 F.2d 740, 742 (D.C.Cir.1979).
. See 28 U.S.C. § 2412(d)(1)(B) (1982).
. The appellant’s petition for attorneys fees under a separate section of the Act was also denied. See id. § 2412(b) (subjecting the United States to liability for attorneys fees to the same extent any other party would be liable). The appellant has not appealed this ruling. Brief of Plaintiffs-Appellants at 6, Nos. 81-1160 & 83-1154 (consolidated).
. Equal Access to Justice Act ("EAJA"), Pub.L. No. 96-481, § 208, 94 Stat. 2330 (1980).
. See Berman v. Schweiker, 713 F.2d 1290, 1297 (7th Cir.1983).
. HUD filed a notice of appeal but did not pursue it. HUD’s motion to dismiss the appeal was granted on 9 December 1980. Although there has been some discussion as to whether "final judgment” under the Act occurs when the trial court enters its order disposing of the case on the merits or when the appeal is terminated, e.g., McDonald v. Schweiker, 726 F.2d 311 (7th Cir.1983), we do not confront that issue here, since our analysis would not differ even accepting the later date of 9 December 1980 as the point of final judgment.
. See 126 Cong.Rec. 28,655, 28,846 (1 October 1980).
. See 16 Weekly Comp. Of Pres. Statements 2378 (21 October 1980).
. EAJA, Pub.L. No. 96-481, § 208, 94 Stat. 2330 (1980).
. United States v. Mitchell, 445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980); United States Lines, Inc. v. Baldridge, 677 F.2d 940, 944 (D.C.Cir.1982).
. NAACP v. Civiletti, 609 F.2d 514, 516-18 (D.C. Cir.1979), cert. denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1114 (1980).
. Williams v. Office of Personnel Management, 718 F.2d 1553, 1557 (Fed.Cir.1983); Bennett v. Department of the Navy, 699 F.2d 1140 (Fed.Cir. 1983).
. Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S.Ct. 3274, 3276-77, 77 L.Ed.2d 938 (1983).
. Boudin v. Thomas, 732 F.2d 1107, 1114-15 (2d Cir.1984).
. 724 F.2d 211, 225 (D.C.Cir.1984) (footnote omitted).
. Phillips v. United States, 346 F.2d 999, 1000 (2d Cir.1965).
. Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S.Ct. 3274, 3277, 77 L.Ed.2d 938 (1983) (emphasis added).
. 7 Oxford English Dictionary 637-38 (1933).
. Black’s Law Dictionary 1021 (5th ed. 1979); Ballentine’s Law Dictionary 929 (3d ed. 1969).
. NAACP v. Civiletti, 609 F.2d 514, 518 (D.C.Cir.1979), cert. denied, 447 U.S. 922, 100 S.Ct. 3012, 65 L.Ed.2d 1114 (1980).
. Action on Smoking and Health v. Civil Aeronautics Bd., 724 F.2d 211, 225 (D.C.Cir.1984).
. Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S.Ct. 3274, 3276, 77 L.Ed.2d 938 (1983).
. See United States v. Mitchell, 445 U.S. 535, 100 S.Ct. 1349, 63 L.Ed.2d 607 (1980).
. Berman v. Schweiker, 713 F.2d 1290, 1294 (7th Cir.1983).
. See EAJA, Pub.L. No. 96-481, § 204(c), 94 Stat. 2329 (1980).
. Fidelity Constr. Co. v. United States, 700 F.2d 1379, 1387 (Fed.Cir.), cert. denied, — U.S.-, 104 S.Ct. 97, 78 L.Ed.2d 103 (1983).
. EAJA, Pub.L. No. 96-481, § 202(a), 94 Stat. 2325 (1980).
. 684 F.2d 443, 444-45 (7th Cir.1982).
. Swain v. Secretary, 27 Fair Empl.Prac.Cas. (BNA) 1434 (D.D.C.1982), aff’d mem. sub nom. Swain v. Lehman, 701 F.2d 222 (D.C.Cir.), cert. denied, — U.S.-, 104 S.Ct. 68, 78 L.Ed.2d 83 (1983); cf. Tyler Business Servs., Inc. v. NLRB, 695 F.2d 73, 76-77 (4th Cir.1982) (blocking recovery of attorneys fees in agency actions which were resolved prior to Act’s effective date, although relying on a different interpretation of the Act); S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Review Comm’n, 672 F.2d 426 (5th Cir.1982) (same).
. 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974).
. Ruckelshaus v. Sierra Club, 462 U.S. 680, 103 S.Ct. 3274, 77 L.Ed.2d 938 (1983).
. See Commissioners of Highways v. United States, 684 F.2d 443, 443-45 (7th Cir.1982).
. 416 U.S. 696, 711, 94 S.Ct. 2006, 2016, 40 L.Ed.2d 476 (1974) (emphasis added).
. United States v. Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir.1982); WATCH v. Harris, 535 F.Supp. 9, 13-14 (D.Conn.1981).
. See Knights of the Ku Klux Klan v. East Baton Rouge Parish School Bd., 679 F.2d 64, 67-68 (5th Cir.1982).
. Dubose v. Pierce, 579 F.Supp. 937 (D.Conn.1984); Tongol v. Usery, 575 F.Supp. 409 (N.D.Cal.1983); Underwood v. Pierce, 547 F.Supp. 256 (C.D.Cal.1982).
. 28 U.S.C. § 2412(d)(1)(A) (1982).
. Dougherty v. Lehman, 711 F.2d 555, 561 (3d Cir.1983); H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11 (1980), U.S.Code Cong. & Admin. News 1980, p. 4953.
. Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir.1984); H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980).
. Environmental Defense Fund, Inc. v. Environmental Protection Agency, 716 F.2d 915, 920 (D.C.Cir.1983) (per curiam); H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980).
. H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10 (1980).
. Martin v. Lauer, 740 F.2d 36, 43 (D.C.Cir.1984); Spencer v. NLRB, 712 F.2d 539, 557-58 (D.C.Cir.1983), cert. denied, - U.S. -, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).
. Appendix at 63, No. 81-1160.
. See Hensley v. Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 1941, 76 L.Ed.2d 40 (1983).
. Dougherty v. Lehman, 711 F.2d 555, 562 (3d Cir.1983).
. See Environmental Defense Fund, Inc. v. Environmental Protection Agency, 716 F.2d 915, 920 (D.C.Cir.1983) (per curiam) (Government need not establish that its position had a substantial probability of prevailing).
. See Del Mfg. Co. v. United States, 723 F.2d 980, 985 (D.C.Cir.1983).
. Id. at 984 n. 10.
. Id. at 988 (Wald, J., dissenting).
. Spencer v. NLRB, 712 F.2d 539, 543-46 (D.C.Cir.1983), cert. denied, -U.S. -, 104 S.Ct. 1908, 80 L.Ed.2d 457 (1984).
Concurrence in Part
concurring . in part, dissenting in part.
I concur in the result of this case and concur in the reasoning articulated in Parts II and IIIB.
I cannot concur, however, in the reasoning of Part IIIA and therefore dissent from that section. I believe that Bradley v. School Board of the City of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1974), requires us to hold that the Equal Access to Justice Act applies to this suit. Bradley squarely held that the question of fees was sufficient to keep a case open for the purpose of applying another fee statute passed by Congress. See also Knights of the Ku Klux Klan v. East Baton Rouge-Parish School Board, 679 F.2d 64 (5th Cir.1982); Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir.1982). I would therefore reverse the district court on this issue.