# United States v. 329.73 Acres of Land, Situated in Grenada and Yalobusha Counties, State of Mississippi, and J.G. Carter

> Court of Appeals for the Fifth Circuit · May 12, 1983 · 704 F.2d 800

URL: https://www.frixlaw.com/law-library/cases/9470511

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellant, v. 329.73 ACRES OF LAND, SITUATED IN GRENADA AND YALOBUSHA COUNTIES, STATE OF MISSISSIPPI, and J.G. Carter, Et Al., Defendants-Appellees
- **Court:** Court of Appeals for the Fifth Circuit
- **Decided:** May 12, 1983
- **Citations:** 704 F.2d 800; 20 ERC 1025; 20 ERC (BNA) 1025; 1983 U.S. App. LEXIS 28040
- **Precedential status:** Published
- **Opinion:** Dissent by Rubin
- **Judges:** Clark, Brown, Gee, Rubin, Reavley, Politz, Randall, Tate, Johnson, Williams, Garwood, Jolly, Higginbotham, Higgin-Botham
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9470511

## How later opinions describe it (automated extraction)

- rejecting appellant’s attack on the probative value of a landowner’s testimony regarding the value of his land before and after the imposition of a flowage easement because appellant’s argument “overlooks the fact that the opinion testimony of a landowner as to the value of hi…
- holding EAJA applied before deciding petitioner was prevailing party

## Opinion text

ALVIN B. RUBIN, Circuit Judge,
with whom GEE and PATRICK E. HIGGIN-BOTHAM, Circuit Judges, join, dissenting:
Read as a whole, the majority opinion says, in magisterial sweep: “Congress intended the government to pay. Let its will be done.” But Congress simply did not issue such a pervasive ukase. The majority holds that a landowner who receives an award only slightly more than the government’s condemnation offer is the prevailing party even if the landowner’s final demand was ten times greater than the amount of the award. It holds that a party who did not prevail below is entitled to collect from the government attorneys’ fees incurred on appeal if the appeal is determined not to be “substantially justified” even though the appeal is not frivolous and, therefore, other private litigants could not collect fees incurred in defending against it. It sweeps on to suggest in dicta that the government may be taxed for fees incurred either in opposing a government motion or in overcoming government resistance on interlocutory matters, including discovery, even if the private party does not prevail in the lawsuit, and, with munificent hand, extends this recompense not only to suitors in condemnation cases but to private participants in all civil cases in which the federal government is a litigant. The majority finds all of this ordained by reading one statute as if it stood in splendid isolation from the body of condemnation law. By this interpretation, the EAJA alters radically the position of both the sovereign and the private litigant in condemnation matters. I do not think that either the explicit command of the statute or the congressional intent in enacting it suggest that we thus give a litigant whose land the government successfully condemns rights greater than that litigant would have against a private party. I, therefore, respectfully dissent from all of the opinion save part IY concerning interest on the judgment.
The question actually before the court is a narrow one: may a landowner, whose property has been condemned by the United States, recover attorneys’ fees under the Equal Access to Justice Act (EAJA) 1 if the government unsuccessfully appeals the amount awarded as just compensation? I differ with the majority’s sweeping answer for three basic reasons. First, I cannot agree that the statute permits a fee award for winning points unless the private party prevails in the entire lawsuit. Second, I cannot agree with the holding that any landowner who is awarded anything more than the government deposits is the prevailing party. Third, I cannot agree with the court’s application of the EAJA to condemnation cases. I also differ with the majority concerning whether' the case should be remanded to the district court and with various dicta in the opinion for reasons that I state as I comment on those expressions.
I.
The relevant portion of the EAJA states:
*814 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),[ 2 ] 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.
28 U.S.C.A. § 2412 (d)(1)(A) (West Supp. 1982).
• The statute thereafter fixes the procedure for recovery. Id. § 2412(d)(1)(B). It requires the party seeking the award to file an application thirty days after the judgment becomes final “which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from any attorney ... representing ... the party .... ” Id. In describing the “fees and other expenses” recoverable, the statute includes “the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party’s case, and reasonable attorney fees.” Id. § 2412(d)(2)(A).
The statute contemplates, like other statutes authorizing attorneys’ fees, that fees will be awarded for the entire case, including trial and appeal. It contains no intimation that a litigant who does not prevail in the final judgment has a claim for attorneys’ fees based solely on defending against an appeal that sought an even more favorable result for the party who had already succeeded in the trial court and who would still be the prevailing party in the final judgment.
The legislative history indicates that the EAJA is to be interpreted consistently with other fee-shifting statutes. E.g., S.Rep. No. 253, 96th Cong., 1st Sess. 7 (1979); H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980). The term “prevailing party” means a party who wins final victory, not a single round. 3 Thus in Hanrahan v. Hampton, 446 U.S. 754 , 100 S.Ct. 1987 , 64 L.Ed.2d 670 (1980) (per curiam), the Supreme Court held that the plaintiffs did not achieve prevailing party status by gaining reversal on appeal of the district court’s directed verdict against them. Therefore, the plaintiffs were not entitled to fees for the appeal under the Civil Rights Attorneys’ Fees Awards Act, 42 U.S.C. § 1988 (Supp. Ill 1979), even though they gained a reversal of the trial court’s adverse ruling. Id. at 759 , 100 S.Ct. at 1990 , 64 L.Ed.2d at 675 . 4
The debate on passage of the EAJA suggests that legislators thought that fees should be awarded for services rendered in connection with an appeal only when the private litigant had won in the district court or agency and maintained that victory on appeal or when the private litigant had lost his case below, secured reversal on appeal, and then was awarded judgment. See 125 Cong.Ree. S10,917 (daily ed. July 31, 1979) (remarks of Sen. Goldwater) (private citizen who “wins his case [at trial] and is *815 then forced to defend his judgment in an appellate court after the Government appeals ...should receive fees); see also 126 Cong.Rec. H10,230 (daily ed. Oct. 1, 1980) (remarks of Rep. Schutze) (“Should the Federal Government use its right of appeal all the way to the Supreme Court, a private party could prevail three times yet never recover costly attorneys’ fees necessary to uphold his rights” under then-current law) (emphasis added).
Of course, litigants who prevail in the district court and repeat their success on appeal may receive fees for all of their attorneys’ work, including the appeal, under any of the fee-shifting statutes authorizing awards against governmental entities, e.g., 42 U.S.C. § 1988 (Supp. Ill 1979), or against private parties. E.g., id. § 2000e-5(k) (1976). Similarly, a private litigant who loses to the government at trial and gains an outright reversal on the merits on appeal is entitled to fees; that person, having prevailed at judgment, should recover fees for both the appeal and the trial. But today’s case presents neither of those situations.
This case is more akin to a suit between private litigants in which a party who lost in the district court seeks damages and costs for preventing an even greater loss on appeal. Private litigants can gain such an award only if the court characterizes the appeal as frivolous, in which case it may award damages and single or double costs to the party who is successful on appeal without regard to whether that party prevailed in the court below. See Fed.R. App.P. 38; 28 U.S.C. § 1912 (1976). 5
The majority interprets the statute to permit fees for success on appeal only, creating a set of remedial provisions unique to the EAJA for litigants who lose their case in the trial court but successfully resist a government appeal. This holding gives private litigants greater rights against the government than they would have against another private litigant. The legislative history of the EAJA makes clear that the Act was intended to do no more than even the score between private litigants and the government. The majority’s interpretation instead changes the rules.
Indeed, the majority states that under the EAJA a private party who loses the case but “prevails” on an interlocutory issue is entitled to fees incurred on that issue. 6 I do not think that Congress intended to slice litigation so thin and into so many parts and then, after the julienne, to allow a litigant against the government a fee if he achieves interlocutory success in any part. See Hanrahan, 446 U.S. at 757 , 100 S.Ct. at 1989 , 64 L.Ed.2d at 674 (interlocutory fee award available only when party has established liability of opponent).
The statute evinces no congressional intent either to allow a party who did not prevail at trial to recover for only successfully resisting an appeal or to allow any party to recover more from the United States than could be recovered from a private litigant under the same circumstances. See 125 Cong.Rec. S10,915 (daily ed. July 31, 1979) (remarks of Sen. Stevens) (“The Court will be able, in its discretion, to award legal fees to the prevailing party in an action against the government, just as it is now able to award such fees in cases involving private parties.”) (emphasis added). Allowing the landowner to recover here extends the general rule governing appellate fee awards in both directions against the government only.
II.
The majority holds that, even if the government succeeds in acquiring the land it seeks, the landowner is the prevailing party if he obtains an award greater than *816 the government’s offer. 7 This does not take into account either the intent Congress has expressed in other legislation or the real nature of condemnation proceedings. Congress has expressed the opinion that the landowner does not prevail when the government acquires the land, for in 1971 it enacted a statute dealing with costs and fees in condemnation suits in which the United States either does not acquire the land or abandons the proceeding. See 42 U.S.C. § 4654 (1976). This suggests that Congress considered the government the victor when it succeeds in obtaining the property.
The congressional intimation accords with the nature of condemnation litigation. The objective of the exercise of the power of eminent domain is to secure property for public use. Unless the government loses or abandons the condemnation suit — situations provided for in § 4654 — it will be the “prevailing party.” See United States v. 341.45 Acres of Land, 542 F.Supp. 482 (D.Minn.1982); United States v. 101.80 Acres of Land, 92 F.R.D. 774 (D.Idaho 1982), appeal pending, No. 82-3046 (9th Cir. argued Dec. 8, 1982). This is because the government got what it sought — the land — even though it had to pay a higher price than it originally offered. See also Advisory Committee on Federal Rules of Civil Procedure, Comment to Fed.R.Civ.P. 71A (“[T]he condemn- or will normally be the prevailing party ....”) (quoted in full infra at 817).
The majority holds, in effect, that the prevailing party requirement is satisfied in condemnation cases if the landowner recovers more than the government deposits with the district court. Focusing only on whether the award exceeds the government’s offer ignores the entire background of condemnation. Before the United States can institute condemnation proceedings it must appraise the land and negotiate with the landowner. See 42 U.S.C. § 4651 (1976). If we engage in the kind of economic rationalization on which the majority opinion apparently rests, weighing only the award against the offer, it would be equally plausible to say that, if the final award is one dollar less than the landowner’s final counter-offer, the government has prevailed. 8
In short, the court rejects the long-standing rule that the government prevails in condemnation cases in which it secures the land and adopts a new rule that in effect means that the landowner prevails if he convinces the trier of fact that the government’s offer was $1.00 less than the ultimately determined fair market value of the property. I do not understand how the passage of the EAJA so radically altered the law of eminent domain.
III.
Let us turn now to a separate question: apart from its availability only to the prevailing party, does the EAJA apply to con *817 demnation cases? Of course, if the government is the prevailing party, as I have suggested it should be, this question is moot. But if we assume that the majority is correct in holding that the landowner prevails and reach this issue, we must take account of other legislation specifically dealing with condemnation. Indeed, the EAJA commands us to do so for it applies only “except as otherwise specifically provided by statute” and Section 6 of the statute, the “saving clause,” states:
Nothing in [this statute] ... alters, modifies, repeals, invalidates, or supersedes any other provision of State or Federal law which authorizes an award of such fees and other expenses to any party, other than the United States, who prevails in any civil action brought by or against the United States.
The Act of Jan. 2, 1971, Pub.L. No. 91-646, 84 Stat. 1906 (codified at 42 U.S.C. § 4654 (1976)), permits a property owner made defendant in a condemnation case to be reimbursed for “costs, disbursements, and expenses, including reasonable attorney, appraisal, and engineering fees ... if (1) the final judgment is that the Federal agency cannot acquire the property by condemnation; or (2) the proceeding is abandoned by the United States.”
Section 2412(d)(1)(A) allows fees and other expenses “in addition to any costs awarded pursuant to subsection (a) .... ” (emphasis added). See supra note 2 & accompanying text. This implies that Congress intended to award fees only to a litigant who is permitted to recover costs. 9 The right to costs is governed generally by Fed. R.Civ.P. 54(d), which states:
Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States ... shall be imposed only to the extent permitted by law.
In land condemnation cases, however, Fed. R.Civ.P. 71A(I) states simply: “Costs are not subject to Rule 54(d).”
The Advisory Committee explained the need for Rule 71A(I) by stating: “Since the condemnor will normally be the prevailing party and since he should not recover his costs against the property owner, Rule 54(d) ... is made inapplicable.” (emphasis added). The Committee continued: “Costs may not be taxed against the United States except to the extent permitted by law. Even if it were thought desirable to allow the property owner’s costs to be taxed against the United States, this is a matter for legislation and not court rule.” Notes of Advisory Committee on Rules (following Fed.R.Civ.P. 71A) (citation omitted). Nothing in the subsequently enacted § 4654 changes the rule that, if the government acquires the land, it may not be taxed for costs, although, reaching out, the majority suggests that the EAJA repealed Rule 71A(I) and altered completely the meaning of § 4564.
The relevant EAJA provisions allow costs and fees “[ejxcept as otherwise specifically provided by statute ... . ” Because § 4654 specifically provides for costs and fees against the government in condemnation cases only when it abandons the proceeding or does not succeed in acquiring the land sought, §§ 2412(a) and (d) are not applicable. The majority holds that the EAJA does more than merely supplement § 4654; the court holds that it virtually repeals the statute. This is particularly odd in view of Congress’ express declaration that the EAJA does not alter, modify, or repeal any provision authorizing an award of fees and other expenses against the United States.
The • majority interprets § 2412(a) as though the words “expressly provided” have no meaning. Yet when Congress intended to allow fees and costs to be taxed against the government unless an existing *818 statute prohibited such an award, it said so in plain terms: Section 2412(b) of the EAJA allows fees “[u]nless expressly prohibited by statute .... ” Section 2412(a), which we are interpreting, does not include this clear language.
The legislative history furnishes little guide to the statute’s applicability to condemnation cases. The majority cites broad statements of intention and the testimony of various witnesses before the Senate Judiciary Subcommittee on Improvements in Judicial Machinery about the burden on the government if the proposed bill, S. 265, applied to condemnation cases. It is a fair interpretation of this testimony that the Department of Justice understood that S. 265 would allow such awards. See Equal Access to Justice Act of 1979: Hearings on S. 265 Before the Subcomm. on Improvements in Judicial Machinery of the Senate Comm, on the Judiciary, 96th Cong., 1st Sess. 50, 51, 56 (1979) (statement of Raymond S. Calamoro & W.R. King, Department of Justice).
After the hearings were completed, however, the Senate Judiciary committee added the “saving clause” (§ 6) to the EAJA. See supra, at 817. While the Justice Department continued to oppose the legislation on the ground that it would increase the cost of condemnation, see at 806 n. 11, the Committee report itself contains no explanation for the addition of this clause. There are two statements in debate possibly referring to the saving clause. Senator Kennedy, after noting that “until now, ... attorneys’ fees have only been authorized in law suits brought under particular statutes ...,” stated:
This legislation would authorize attorneys fees in agency proceedings or court suits not now covered by a fee provision in a specific statute.
In addition, the report makes clear that the $75 cap does not apply to the determination of fees under other specific statutes which are designed to promote the private enforcement of the policy involved in that statute, such as the civil rights law. In those cases, the concept of a fee cap would not be appropriate.
In general, statutes, such as the Freedom of Information Act and civil rights laws, which contain special fee-shifting provisions remain unaffected by this measure, even if the standard for awarding fees under the statute has evolved through case law and is not set out in the statute itself.
125 Cong.Rec. S10,923-24 (daily ed. July 31, 1979) .
Representative Kastenmeier stated:
I would like to emphasize that this bill does not alter the standards and methods of determining attorneys’ fees under existing law, wherein attorneys’ fees can be awarded. For example, the $75 general ceiling in the bill for the attorneys’ fees should not be considered a maximum in other existing attorney fee statutes, such as those under civil rights laws. Important public policies are served by the private enforcement of such laws, and reimbursement is not the main issue. Courts have considered other factors in those cases, and should continue to do so.
126 Cong.Rec. H10,223 (daily ed. Oct. 1, 1980) .
The majority reads this additional clause as merely protecting the rights of civil rights litigants. I do not think it is so restricted. The congressional committee, after hearing testimony from the administration about the potential financial impact of the EAJA — including its application to condemnation cases — considered it necessary to add the clause. This indicates an intention not to trespass on territory covered by all other statutes, not merely civil rights laws. Section 4654 covers the condemnation territory.
The Senate Bill, S.265, was passed by the Senate on July 31, 1979. When S.265 was considered by the House Subcommittee, it contained the saving clause. The witness who appeared for the Justice Department at the hearings before that subcommittee, held in May and June 1980, did not refer to condemnation cases in her testimony. However, the letter quoted by the majority *819 in footnote 11 does appear in the documents collected as part of the legislative history. It is dated October 17,1979, and was, therefore, written after adoption of the saving clause.
Therefore, the statute, read as a whole, in the light of its legislative history, cannot be said to preclude the interpretation placed on it by the majority. But in interpreting a statute such as the EAJA, we cannot take one sentence, one section, or even the entire statute alone and say that it has a “plain meaning” as if there were an objective formula in the few words simply waiting to be grasped by the courts. Instead the statute must be read as a whole, taking all of its provisions and reading them in the context of the legal fabric to which they are to be applied. An interpretation that creates an admittedly anomalous result is not salved by the majority’s apologia that, if we read the statute in that fashion, Congress created the anomaly. Instead the question is whether the statute read as a whole was intended by Congress to create such results. The law is not an isolated bundle of capricious and inconsistent commands by a legislature presumed to react mindlessly. The question is whether the EAJA applies to those condemnation cases in which the government acquires the land it seeks and in which, according to my understanding, the government is the prevailing party. It seems to me that the answer to that inquiry is that the statute does not.
IV.
In any event, the remand to the district court cannot be justified. If the government’s appeal (not its position at trial) was without substantial justification, who is better prepared to determine that than we? How can the district court divine the state of the appellate mind? Why should we ask it to do so? If the landowner is entitled to fees, we ought to say so, or, at the very least, remand to the panel that heard the appeal on the merits. 10
For all of these reasons, I would reinstate the panel’s judgment save for its denial of interest.
. 28 U.S.C.A. § 2412 (West Supp.1982). The landowner in this case does not argue that he is entitled to attorneys’ fees for trial of the condemnation case, and does not suggest that he “prevailed” in the district court. He contends only that he is entitled to recover fees under the EAJA for successfully resisting the government’s appeal.
. Subsection (a) permits an award of costs to the prevailing party in any civil action brought by or against the United States. Such a judgment is permitted “[ejxcept as otherwise specifically provided by statute .... ” and is limited to “reimbursing ... the prevailing party for the costs incurred .... ” Id. § 2412(a).
. Suppose the plaintiff in a civil rights action obtains a judgment of $10,000 and then appeals, seeking an increase in the award. The judgment below is affirmed on appeal. Unless the appeal is frivolous, and costs and damages are allowed under Fed.R.App.P. 38, the defendant-appellee would not, I submit, be allowed attorneys’ fees for defending the appeal. The plaintiff would still be the prevailing party, although the victory would not be as great as was desired.
. See NLRB v. Doral Building Services, Inc., 680 F.2d 647 (9th Cir.1982) (per curiam) (Hanrahan definition of prevailing party applies to EAJA); Lipscomb v. Wise, 643 F.2d 319, 323 (5th Cir.1981) (per curiam) (success in result determines entitlement to fees); Davis v. City of Ennis, 520 F.Supp. 262 (N.D.Tex.1981) (3-judge court) (same).
. Whether damages and costs for a frivolous appeal can be awarded against the United States has, so far as I can find, not been decided. Judgment on that question should, however, be reserved until the issue is presented.
. “We see no reason why Congress did not intend by the Act that a private litigant be afforded a remedy for an appeal by the government upon insubstantial justification, as well as for his resisting unfavorable, or securing favorable, interlocutory or final rulings in the trial court.” At 810.
. Of course, the majority does not say exactly that: it says that the “test of a ‘prevailing party’ ... would clearly include a landowner who won by judgment or negotiation far more than the government had offered or admitted liability for . . .. ” At 809 (emphasis added). This does not tell us whether the majority thinks a party prevails only if he obtains “far more” or how much more is “far more.” It also does not tell us the relationship of the “far more” test to “substantial justification.”
The majority may mean that any landowner who gets “more” prevails. That, in fact, seems to be the rationale of its opinion. If it is not, I cannot see how, by the majority’s logic, there is any principled way of determining who prevails from the relative size of the award so that a landowner who is awarded $100,000 more than the government offers “prevails” but one who gets $1 more does not “prevail.” To “prevail” means “to gain ascendancy” or, in the vernacular, “to win.” To say that the landowner “wins” if he gets a lot more than the government offered but not if he gets a little bit more seems to me to ignore the difference between determining who is the prevailing party on the one hand and whether there is substantial justification for the government’s position on the other.
. See, e.g., United States v. 6,162.78 Acres of Land, 680 F.2d 396 (5th Cir.1982). The government’s highest appraisal was $1,891,173 and it offered this amount. The landowner’s lowest appraisal was $3,052,193. The jury awarded $2,071,973. The award was, therefore, $180,-000 more than the government’s offer but almost $1,000,000 below the landowner’s lowest figure. The government saved the taxpayers $980,220. Who prevailed?
. I do not read the adjective “any” in the term “any costs” to imply that the award of costs under subsection (a) is discretionary or that sometimes attorneys’ fees may be awarded even if no costs are due. The statute does not read “costs, if any.” Its phrasing implies a general reference, e.g., those costs awarded pursuant to subsection (a).
. Every other case involving the question whether the government’s position was “substantially justified” on appeal has been decided by the appellate court. See Wyandotte Savings Bank v. NLRB, 682 F.2d 119 (6th Cir.1982) (per curiam); S & H Riggers & Erectors, Inc. v. OSHRC, 672 F.2d 426 (5th Cir.1982); United States v. Citizens State Bank, 668 F.2d 444 (8th Cir.1982).

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9470511. Public record. Not legal advice.