Allen S. Berman v. Richard S. Schweiker, Secretary of Health and Human Services, Defendant

COFFEY, Circuit Judge,

dissenting.

I dissent as I disagree with the majority’s decision allowing recovery under the Equal Access to Justice Act (EAJA) for attorney’s fees incurred prior to the effective date of legislation, October 1, 1981. The broad liability imposed on the public treasury by the majority in this case is an unwarranted departure from well-settled legal principles reciting that: (1) statutes are to be applied only prospectively unless there is clear, strong and imperative statutory language to the contrary; and (2) a limited waiver of sovereign immunity, such as the EAJA, must be strictly construed and must not be extended by implication. Neither the clear and unambiguous statutory language of the EAJA nor its legislative history discloses a congressional intent to open the public treasury to pay retroactive attorney’s fees under the EAJA. Furthermore, allowing recovery of retroactive attorney’s fees fails to promote the purpose of the EAJA, but rather merely constitutes an unwarranted wind *1304 fall for attorneys, at the taxpayer’s expense.

I.

It is a well-settled legal principle that retroactive application of a legislative act is impermissible absent a clear and unequivocal expression of a contrary Congressional intent. This court explicitly stated in South East Chicago Com’n v. Department of Housing and Urban Development, 488 F.2d 1119, 1122 (7th Cir.1973): “There are few principles of law more ancient, and none more respected, than the canon which holds that laws are enacted for the future.” Similarly, the Supreme Court has mandated in unequivocal language that:

“[T]he first rule of construction is that legislation must be considered as addressed to the future, not to the past .. . [and] a retrospective operation will not be given to a statute which interferes with antecedent rights ... unless such be ‘the unequivocal and inflexible import of the terms, and the manifest intention of the legislature.’ ”

Greene v. United States, 376 U.S. 149, 160 , 84 S.Ct. 615, 621 , 11 L.Ed.2d 576 (1964). Furthermore, the court in Alyeska Pipeline Service Co. v. United States, 624 F.2d 1005, 1013 , 224 Ct.Cl. 240 (Ct. Claims 1980) stated:

“This rule [against retroactive application of statutes] governs unless the words in the statute ‘are so clear, strong, and imperative, that no other meaning can be annexed to them, or unless the intention of the legislature cannot be otherwise satisfied.” (quoting United States v. Heth, 7 U.S. (3 Cranch) 399, 413 [ 2 L.Ed. 479 ] (1806)).

Based on this case law, it is clear that the EAJA cannot be construed as authorizing the retroactive award of attorney fees since the statute contains no “clear, strong and imperative” language mandating retroactive application. Union Pacific Railroad Co. v. Laramie Stock Yards Co., 231 U.S. 190 at 199 , 34 S.Ct. 101 at 102 , 58 L.Ed. 179 . The EAJA merely provides that it “shall apply to any adversary adjudication ... which is pending on, or commenced on or after”, October 1,1981. The EAJA nowhere states that fee awards in “pending” cases are to be retroactive, but rather is silent concerning the recovery of pre-October 1981 fees. However, the majority interprets the statute’s silence on the issue of retroactivity as mandating the retroactive award of attorney’s fees, stating “Congress having failed to exclude pre-effective date fees, it is inappropriate for a court to impose a limitation which Congress chose not to impose.” In holding that Congress’s silence can be equated with a clear and unequivocal legislative directive for retroactive application of the EAJA, the majority casts aside and destroys well-settled principles of statutory construction to reach a decision based on the social policy that fees should be awarded for pre-October 1981 services. However, proper statutory construction requires that the EAJA only be applied so as to allow for the award of attorney’s fees prospectively since “legislation must be considered as addressed to the future, not to the past.” Aleyeska, 624 F.2d at 1013 , quoting Union Pacific Railroad Co. v. Laramie Stock Yards Co., 231 U.S. 190, 199 , 34 S.Ct. 101, 102 , 58 L.Ed. 179 (1913). “This rule governs unless the words in the statute ‘are so clear, strong, and imperative that no other meaning can be annexed to them. ... ” Aleyeska, 624 F.2d at 1013 , quoting United States v. Heth, 7 U.S. (3 Cranch) 399, 413 , 2 L.Ed. 479 (1806). Congress’ silence on the issue of retroactivity cannot be construed as a clear, strong and imperative indication of an intent to allow a court to legislate for the retroactive recovery of attorney’s fees. Rather, where Congress has been silent on the issue of retroactivity, well-settled principles of statutory construction from time immemorial mandate only prospective application of the EAJA.

II.

The majority’s decision to authorize the retroactive award of attorney’s fees also violates the legal principle of sovereign immunity which precludes a litigant from asserting a claim against the sovereign *1305 (government) unless the sovereign consents to be sued. Land v. Dollar, 330 U.S. 731 , 67 S.Ct. 1009 , 91 L.Ed. 1209 (1947). It is well-settled that before a prevailing party may recover attorney’s fees from an agency of the federal government, that party “must first surmount a formidable barrier, the doctrine of sovereign immunity.” N.A.A. C.P. v. Civiletti, 609 F.2d 514, 516 (D.C.Cir.1979). An assessment of attorney’s fees against a government agency “is not permissible in the absence of explicit statutory authority that may serve as a waiver of the Government’s traditional immunity.” E.E. O.C. v. Kenosha Unified School District, 620 F.2d 1220 , 1227 (7th Cir.1980) (emphasis added). “Waivers of sovereign immunity must be strictly construed and are not to be extended by implication.” Commissioners of Highways v. United States, 684 F.2d 443, 444 (7th Cir.1982). Therefore, retroactive attorney’s fees may be awarded under the EAJA, only if, strictly construing the statute against imposing liability on the government, there exists “explicit statutory authority” allowing for such a retroactive waiver of sovereign immunity.

The EAJA states:

“This Title and the amendments made by this Title ... shall take effect on October 1, 1981 and shall apply to ... any civil action ... pending on, or commenced on or after, such date.” (emphasis added).

Strictly construing (as we must) this statutory language, it is clear that the EAJA’s limited waiver of the Government’s sovereign immunity cannot be interpreted as allowing for retroactive recovery of attorney’s fees. The majority’s interpretation of the EAJA focuses solely on the so-called “pending provision” of the statute, to the exclusion of Congress’ explicit statement that the Act “shall take effect on October 1, 1981.” By specifying an effective date, Congress envisioned the payment of fees for work done on or after that date, for to construe it otherwise would force the treasury to pay out unappropriated funds. Under the majority’s tortured construction of the statute, the language pertaining to the effective date of the statute is rendered meaningless since in this case the majority has authorized recovery of attorney’s fees for legal services performed before the effective date of the statute. It is well-settled that a statute must be construed as a whole rather than relying on one word, phrase or sentence in the statute. Philbrook v. Glodgett, 421 U.S. 707 , 95 S.Ct. 1893 , 44 L.Ed.2d 525 (1975); Brach v. Amoco Oil Co., 677 F.2d 1213 (7th Cir.1982). In reading one provision of the statute (the so-called “pending provision”) in a manner which renders meaningless another provision of the statute (the effective date), the majority has ignored the cardinal principle of statutory construction that “in construing statutes we are obligated to give effect, if possible, to every word Congress used.” Reiter v. Sonotone Corp., 442 U.S. 330, 339 , 99 S.Ct. 2326, 2331 , 60 L.Ed.2d 931 (1979).

The most logical and well-reasoned legal interpretation of the EAJA, and the interpretation most consistent with the principle that “waivers of sovereign immunity must be strictly construed and are not to be extended by implication”, Commissioners of Highways, 684 F.2d at 444 , is that the “pending” provision determines only in which cases fees may be awarded, while the language pertaining to the effective date of the Act governs which fees may be awarded in pending cases — only those fees incurred after the effective date of the Act. Any other interpretation of the statute, including the majority’s, constitutes a judicial extension by implication of a limited waiver of sovereign immunity, in direct violation of the “duty of all courts to observe the conditions defined by Congress for charging the public treasury.” Schweiker v. Hansen, 450 U.S. 785, 788 , 101 S.Ct. 1468, 1471 , 67 L.Ed.2d 685 (1981).

A clear indication that Congress did not authorize the award of attorney’s fees for legal services rendered prior to October 1, 1981 is found by examining 28 U.S.C. section 2412 (d)(4)(B). That subsection of the EAJA states:

“(B) There is authorized to be appropriated to each agency for each of the fiscal years 1982, 1983, and 1984, such sums as may be necessary to pay fees and *1306 other expenses awarded pursuant to this subsection in such fiscal years.”

(emphasis added). Thus, Congress appropriated funds for awards under the EAJA only for the fiscal years commencing on October 1,1981 —no funds were appropriated for the fiscal year 1981. Nevertheless, the majority has seen fit to require the government to pay for legal services rendered in the 1981 fiscal year, despite the fact that Congress decided against appropriating money for such payments. The majority’s decision ignores the fact that courts not only have the obligation to interpret and apply the law, but also to exercise fiscal responsibility. The majority in this case acts as if they were operating in an economic vacuum and imposes an unwarranted liability on the government.

III.

I reject the majority’s conclusion that permitting retroactive recovery of attorney’s fees is consistent with the purpose of the EAJA. Section 202 of the EAJA sets forth the purposes underlying enactment of the EAJA:

“(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.

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(c) It is the purpose of this title ... (1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney’s fees, expert witness fees, and other costs against the United States ...”

Clearly, awarding retroactive attorney’s fees in this case fails to further the Act’s purpose of reducing the economic deterrents to challenging government action. The plaintiff Berman was obviously not “deterred from seeking review of ... governmental action because of the expense involved” in suing the government as he commenced this action pro se sixteen months before the EAJA even became effective. Thus, it is clear that the plaintiff commenced this action against the government with no expectation of being reimbursed for his attorney’s fees, in fact, since he was proceeding pro se he presumably did not expect to even incur attorney’s fees. Furthermore, at the time the district court appointed an attorney to represent the plaintiff, the court specifically informed the attorney that “this case will not produce a fund from which you could be compensated and there is no provision under the Social Security Act for an award of attorney’s fees. Therefore, your representation is truly pro bona [sic] publico.” Since the attorney in accepting the court’s appointment did so on a pro bono basis with no expectation of remuneration for his services, it would thus certainly impose no hardship to deny his request for attorney’s fees. As this court recently stated, it is

“the recognized ethical responsibilities of each lawyer engaged in the practice of law to provide public interest legal services without a fee.

“The bar within this Circuit has long viewed appointments of counsel as part of its professional duty to provide public service. We have faith that lawyers always ■ will be found who are willing to represent the indigent without remuneration.

“Pro bono publico work is an established tradition and it is up to the district courts to tap the reservoir of talent that exists within this Circuit.”

Caruth v. Pinkney, 683 F.2d 1044, 1049 (7th Cir.1982). Awarding retroactive attorney’s fees in this case amounts to nothing more than an unexpected windfall from the public treasury to the plaintiff’s attorney; certainly, Congress did not intend the EAJA to be merely a godsend to attorneys who performed legal services prior to the effective *1307 date of the EAJA, or to be a “relief fund for lawyers.” See, e.g., Hensley v. Ecker hart,-U.S.-at-, 103 S.Ct. 1933 at 1938 , 76 L.Ed.2d 40 (1983) quoting 122 Cong.Rec. 33, 314 (remarks of Sen. Kennedy regarding Civil Rights Attorney’s Fees Awards Act of 1976).

Our Supreme Court has ruled that it is outside the competence of judges to “pick and choose among plaintiffs and statutes under which they sue and to award fees in some cases but not in others.” Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 269 , 95 S.Ct. 1612, 1627 , 44 L.Ed.2d 141 (1975). “Congress, however has full authority to make such decisions, and it responded to the challenge of Alyeska by doing the ‘picking and choosing’ itself.” Hensley v. Eckerhart,-U.S. at-, 103 S.Ct. at 1936 . (Brennan, J., concurring in part and dissenting in part). Here the majority has resorted to “picking and choosing” in the face of the contrary intent of the EAJA.

Furthermore, I disagree with the majority’s conclusion that awarding retroactive attorney’s fees will advance the purpose of the EAJA by “prospectively deter[ing] unreasonable government action.” It is important to note that the summary judgment order against the government on the underlying merits of the plaintiff’s case was issued on August 14, 1981, more than six weeks before the EAJA became effective. Certainly, the summary judgment order in this case has exactly the same effect on the future actions of the government, regardless of whether the plaintiff’s attorney is now awarded retroactive attorney’s fees or if, on the other hand, he receives no compensation for his services, as was the original understanding when he accepted the case. Therefore, I reject and fail to understand the majority’s weak and hollow theory that retroactively awarding attorney’s fees under the EAJA will somehow “prospectively deter unreasonable government action.”

IV.

In conclusion, I would hold that the EAJA authorizes courts to award attorney’s fees only for services rendered on or after the Act’s effective date of October 1, 1981. The majority’s decision, and the decisions of the other circuits also permitting retroactive recovery of attorney’s fees under the EAJA, fail to adequately consider the important legal principle that “a waiver of traditional sovereign immunity cannot be implied but must be unequivocally expressed,” Army and Air Force Exchange Service v. Sheehan, 456 U.S. 728 , 102 S.Ct. 2118 at 2122 , 72 L.Ed.2d 520 , and further violate the time-honored rule of statutory construction mandating only prospective application of statutes in the absence of a clear, strong and imperative legislative expression to the contrary. Moreover, the legislative purpose of the EAJA will in no way be furthered by granting lawyers a windfall of retroactive attorney’s fees at the government’s expense. I dissent from the majority’s decision to authorize recovery of attorney’s fees incurred prior to the effective date of the Act, since that decision amounts to an unwarranted judicial extension of the liability imposed on the public treasury by the EAJA. I believe that it is the role of Congress.and not the courts, to legislate in this area. “Under our constitutional framework, federal courts do not sit as councils of revision, empowered to rewrite legislation in accord with their conceptions of prudent public policy.” United States v. Rutherford, 442 U.S. 544, 555 , 99 S.Ct. 2470, 2477 , 61 L.Ed.2d 68 (1979).