stating that Congress recognized that the American Rule deterred individuals and small businesses “from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights”
How later courts described this case
- stating that Congress recognized that the American Rule deterred individuals and small businesses “from seeking review of, or defending against unreasonable governmental action because of the expense involved in securing the vindication of their rights”
- holding that, to demonstrate substantial justification, the “Government must show that it has not ‘persisted in pressing a tenuous factual or legal position, albeit one not wholly without foundation’ ” (internal citation omitted)
- holding that “ ‘substantial justification’ requires that the Government show that it was clearly reasonable in asserting its position, including its position at the agency level, in view of the law and the facts”
- noting that Olsen held that the Equal Access to Justice Act (“EAJA”), 5 U.S.C. § 504 and 28 U.S.C. § 2412, “does not apply to proceedings before the board in cases involving ‘tenure’ ” and treating the “request for attorney fees for proceedings before the board as a request under the Back Pay Act,” but “reaffirm[ing]” Olsen’s holding that “the EAJA applies to appeals from the board to the Federal Circuit, because such appeals are judicial proceedings or ‘civil actions’ under 28 U.S.C. § 2412(d)(1)(A)”
Written by the judges who cited it.
The opinion
BISSELL, Circuit Judge,
with whom MARKEY, Chief Judge, and NIES and ARCHER, Circuit Judges, join, dissenting-in-part.
I agree that Gavette’s request for attorney fees — but not expenses — should be granted. However, I would find that the sole statutory basis for a fee award incurred in a judicial appeal, when as a result of the appeal a petitioner is entitled to an award of back pay, is the Back Pay Act, 5 *1469 U.S.C. § 5596 (b)(1)(A)(ii) (1982). Contrary to the majority analysis, the Equal Access to Justice Act, Pub.L. No. 96-481, Title II, § 204, 94 Stat. 2325 , 2327 (1980) (EAJA), itself dictates that liability be determined in accordance with any statute which specifically provides for such an award. 28 U.S.C. § 2412 (d) (1982). Since the Back Pay Act provides for an award of fees in this judicial appeal, liability must be determined in accordance with that Act and the standard of that Act, that is, the award must be “in the interest of justice.” I agree with the majority that that standard has been satisfied by petitioner in this case.
With respect to attorney expenses, as the Back Pay Act makes no provision for an award, I would hold that this court may not award such expenses in connection with the appeal.
Finally, I would remand for the Board to determine the amount of the award with respect to work before the Board.
I.
I depart from the majority’s position that Gavette has, in effect, an option to seek attorney fees for the appeal either under the Back Pay Act or under the EAJA’s catch-all provision, 28 U.S.C. § 2412 (d)(1)(A). * In connection with government personnel cases when as a result of the judicial appeal the petitioner is entitled to an award of back pay, the Back Pay Act and its standard of liability applies.
5 U.S.C. § 5596 (1980) provides:
(b)(1) An employee of an agency who ... is found ... to have been affected by an unjustified or unwarranted personnel action which has resulted in the withdrawal or reduction of all or a part of the pay, allowances, or differentials of the employee—
(A) is entitled, on correction of the personnel action, to receive ...
(ii) reasonable attorneys fees related to the personnel action which ... shall be awarded in accordance with standards established under section 7701(g) of this title____
(c) The Office of Personnel Management shall prescribe regulations to carry out this section.
The Office of Personnel Management (OPM) in promulgating its regulations pursuant to 5 U.S.C. § 5596 (c) provided that a request for attorney fees “may be presented only to the appropriate authority that corrected or directed the correction of the unjustified or unwarranted personnel action.” 5 C.F.R. § 550.806 (a) (1985). (emphasis added). Under 5 C.F.R. § 550.803 “ ‘[appropriate authority’ means an entity having authority in the case at hand to direct or direct the correction of an unjustified or unwarranted personnel action, including (a) a court____” [Emphasis added]. This definition of “the appropriate authority” follows our predecessor court’s holding in Ainsworth v. United States, 399 F.2d 176, 181 (Ct.Cl.1968) that, under an earlier version of the Back Pay Act “[a] ‘proper authority’ includes ‘a court authorized to direct the correction of’ an unwarranted separation (ie., a district court) and, also, a court ‘authorized ... to correct’ improper personnel actions (ie., the Court of Claims).”
After passage of the Civil Service Reform Act of 1978, the court stated that in a review of a decision of the Board, the court lacked jurisdiction to render a money judgment—a Tucker Act remedy. Brewer v. United States Postal Service, 647 F.2d 1093, 1098 (Ct.Cl.1981). However, the court did note that it would have the power under 5 U.S.C. § 7703 (c) to remand with instructions to award the employee back pay and to reinstate him to his former position. Id. at 1099 . That is to say, the court, under the Civil Service Reform Act *1470 of 1978, did not have the authority itself to “correct” the unwarranted personnel action, but it did have the power “to direct the correction” thereof. This court in Sullivan v. Department of Navy, 720 F.2d 1266, 1276 (Fed.Cir.1983), held that subsequent to the passage of the Federal Courts Improvement Act of 1982 this court under 5 U.S.C. § 7703 (c) and 28 U.S.C. § 1295 (a)(9) has the same authority as did the former Court of Claims to instruct the Board to order reinstatement and payment of back pay and related benefits to a discharged employee. Therefore, 5 U.S.C. § 7703 (c) and 28 U.S.C. § 1295 (a)(9) provide a jurisdictional base for the award of attorney fees under the Back Pay Act. This Act directs that the award shall be in accordance with the standards of 5 U.S.C. § 7701 (g). See Sims v. Department of the Navy, 711 F.2d 1578 (Fed.Cir.1983).
At this point it is necessary to set forth the specific language of the EAJA, 28 U.S.C. § 2412 , which, in pertinent part, reads as follows:
(d)(1)(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) 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. [Emphasis added.]
[NOTE to § 2412]
Section 206 of Pub.L. 96-481 provided that: “Nothing in section 2412(d) of title 28, United States Code, as added by section 204(a) of this title, alters, modifies, repeals, invalidates, or supersedes any other provision of Federal law which authorizes an award of such fees and other expenses to any party other than the United States that prevails in any civil action brought by or against the United States.” [Emphasis added.] Referring to § 2412(d)(1)(A), the House
Report on the EAJA states:
[TJhis section is not intended to replace or supercede any existing fee-shifting statutes such as the Freedom of Information Act, the Civil Rights Acts, and the Voting Rights Act in which Congress has indicated a specific intent to encourage vigorous enforcement, or to alter the standards or the case law governing those Acts. It is intended to apply only to cases (other than tort cases) where fee awards against the government are not already authorized. [Emphasis added.]
H.R.Rep. No. 1418, 96 Cong., 2d Sess., 18 (1980), U.S.Code Cong. & Admin.News 1980, pp. 4984, 4997; see also S.Rep. No. 253, 96 Cong., 1st Sess., 3-6, 19-22 (1980).
In view of the preamble to § 2412(d)(1)(A) and the uncodified § 206 set forth in the note to § 2412, as well as the legislative history, I conclude that Con-' gress did not intend for the EAJA to provide a supplemental basis for the assessment of attorney fees in back pay cases. If there is an alternative applicable fee award statute to the EAJA, the alternative must be utilized. Read as a whole, that is the import of the EAJA. The Back Pay Act is such a statute. Failure to utilize the Back Pay Act would be contrary to § 206, which specifically provides, “Nothing in § 2412(d) ... alters, modifies, repeals, invalidates or supersedes any other provision of Federal law which authorizes an award of such fees.” Thus, the EAJA and its standard for determining liability set forth in § 2412(d)(1)(A) must be held inapplicable in this case since it would supersede the provisions of the Back Pay Act.
Amicus the National Treasury Employee’s Union argues that the preamble of § 2412(d)(1)(A) (i.e., the phrase “Except as otherwise specifically provided by statute”) was inserted only “to allay the fears of civil rights groups and others that the EAJA would lessen the fee remedies already provided for under existing, more liberal, statutes.” [Emphasis added.] In *1471 support of its position it cites United States v. 329.73 Acres, Granada and Yalobusha Counties, 704 F.2d 800 (5th Cir.1983) (en banc), and United States v. 101.80 Acres of Land, 716 F.2d 714 (9th Cir.1983), which are cases involving land condemnation and Environmental Defense Fund v. Environmental Protection Agency, 716 F.2d 915 (D.C.Cir.1983) and National Resources Defense Counsel v. Environmental Protection Agency, 703 F.2d 700 (3rd Cir.1983). I do not find these cases in conflict with the interpretation of the statute herein. The attorney fees provision specifically applicable in the land condemnation cases did not cover the type of action involved in those cases and thus no fee award could be made under that provision. Therefore, the EAJA was found to supplement the right to an award but only for the types of actions which were not previously covered. In the environmental cases, the statutory provision for award of attorney fees applied only at the district court level. The EAJA was found to authorize fees at the appellate level. Here, the Back Pay Act applies fully to the appellate proceedings before us.
II
Since attorneys’ expenses are not recoverable under the Back Pay Act and since I would hold that the Back Pay Act is the sole statutory basis applicable in this case, I would not award expenses.
III
Having determined that it is in the “interest of justice” because of the agency’s action, attorney fees for the judicial appeal and the proceedings before the Board should be awarded under the Back Pay Act to petitioner Gavette. I, too, would refer his application to the original panel of three judges who decided the appeal on the merits for determination of the amount of reasonable fees (but not expenses) to be awarded in connection with the appeal.
As to the amount of reasonable attorney’s fees (but not expenses) for the Board proceedings, I would remand Gavette’s application to the Board for a determination thereof.
The 1985 amendments to the Equal Access to Justice Act do not in any way affect the provisions dealt with here except to confirm that "a civil action” includes an appeal to a court from an administrative proceeding. Equal Access to Justice Act, Extension and Amendment, Pub.L. No. 99-80, § 2 (a)(2), 1985 U.S.Code Cong. & Ad.News (99 Stat.) 183, 184 (1985).