Opposition — Gibson v. Davis

PE f -

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oe preme Court, U, g3 ‘e!

Genes ie a are

No. 78-1167. | MAR 17 1979 4

MOHAS. RODAK, JR., CLERK

In the Supreme Court of the United States

OCTOBER TERM, 1978

CASPER CARROLL GIBSON, PETITIONER

Vv.

Rex Davis, DIRECTOR, BUREAU OF ALCOHOL,

TOBACCO AND FIREARMS, ET AL. ;

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

WabeE H. McCreg, JR.

Solicitor General

Department of Justice

Washington, D.C. 20530

Inu the Supreme Court of the Hnited States

OCTOBER TERM, 1978

No. 78-1167

CASPER CARROLL GIBSON, PETITIONER

V.

Rex Davis, DIRECTOR, BUREAU OF ALCOHOL,

TOBACCO AND FIREARMS, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS FOR

THE SIXTH CIRCUIT

MEMORANDUM FOR THE RESPONDENTS

IN OPPOSITION

Petitioner seeks review of the court of appeals’ decision

reversing the district court’s order awarding him attorneys’

fees. The district court’s decision rested on a finding that

respondents acted vexatiously and in bad faith.!

1. In 1974 petitioner, an agent of the Bureau of

Alcohol, Tobacco and Firearms (the Bureau), became

engaged in an altercation with a fellow agent (Pet. App.

la-2a, 30a). Petitioner was wounded and the other agent

was killed (Pet. App. 2a, 30a-3la). While petitioner was

on disability leave following the injuries he suffered in

'The court of appeals did not reach the government's contention that

the district court's finding of bad faith was clearly erroneous, and that

factual issue remains unresolved. We will not repeat the argument on

that question here, but we have lodged with the Clerk of the Court a

copy of the government's brief on appeal, which thoroughly addresses

this point.

(1)

that incident, he was discharged by the Bureau for his

allegedly improper conduct during the incident (Pet. 9;

Pet. App. 2a, 3la). On July 31, 1975, the Federal

Employee Appeals Authority of the Civil Service

Commission (FEAA) concluded that petitioner must be

reinstated because the notice of proposed removal had

been insufficiently specific and had not included one of

the reasons cited in the final Bureau decision ordering

that petitioner be discharged (App. 18-24).2

Respondents filed affidavits in the district court (App. 52,

57-58) stating that officials of the Bureau then met with

petitionet and informed him that he would be reinstated,

although proceedings to discharge him would be renewed.

The affidavits stated that the officials also pointed out that it

might be to petitioner’s advantage to remain on disability

status, because his worker’s compensation payments, unlike

regular pay, would not be cut off pending administrative

appeal of a discharge (App. 53, 58). Petitioner was

reinstated on September 3, 1975 (App. 27), although he

elected to remain on disability status, and the Bureau

discharged him a second time in a final decision dated

October 8, 1975 (App. 30-32).

In December 1975, while petitioner’s second FEAA

hearing was pending, he filed suit seeking reinstatement and

back pay (see Pet. 10). Since the FEAA proceeding was

going forward, no action was taken by the district court. In

an opinion dated February 5, 1976, the FEAA reversed the

Bureau’s second order discharging petitioner, this time on

the merits, and it again ordered petitioner’s reinstatement

(App. 28-36). On March 8, 1976, petitioner returned to work

(Pet. App. 15a; App. 37, 55, 58, 63). A pay adjustment was

necessary because petitioner elected to claim back pay for

the period of his second discharge in lieu of the disability

“App.” refers to the Defendants’ A i i

o ppendix filed in the court of

tre eeepc

_

3

payments he had received, and in October 1976 petitioner

received a check for $738.50 to cover this amount (Pet. App.

15a). On October 26, 1976, petitioner retired on disability

status because of emotional problems related to the

shooting incident (App. 73-75).

Despite the fact that petitioner had been reinstated and

subsequently retired on disability status, the district court

held on November 5, 1976, that the Bureau had defied the

FEAA by twice refusing to restore petitioner to its rolls (Pet.

App..1a-9a). The court ordered that petitioner be reinstated

with back pay and ordered the Bureau to show cause why

attorneys’ fees should not be awarded to petitioner because

of the government's bad faith behavior in failing to comply

with the FEAA’s orders.3 After a hearing at which evidence

was received concerning petitioner’s claim that he had been

harassed after his return to work, the district court ordered

that respondents pay petitioner $5,000 in attorneys’ fees

(Pet. App. 10a-22a).

The court of appeals reversed (Pet. App. 30a-38a; 587 F.

2d 280), holding that whether or not bad faith is involved, 28

U.S.C. 2412 forbids the award of attorneys’ fees against the

United States in the absence of an express statutory

authorization.’ The caurt concluded that, because no such

3Petitioner also sought disclosure of certain documents of the Postal

Service concerning his case. The district court denied disclosure (Pet.

App. 5a-8a), but the court of appeals: remanded because of an

intervening change in the law (Pet. App. 34a-38a). This matter is not at

issue in the present petition.

428 U.S.C. 2412 provides in relevant part:

Except as otherwise specifically provided by statute, a judgment

for costs, as enumerated in section 1920 of this title but not

including the fees and expenses of attorneys may be awarded to

the prevailing party in any civil action brought by or against the

United States or any agency or official of the United States

acting in his official capacity, in any court having jurisdiction of

such action.

statute had been cited, and none could be located, the

district court had erred in awarding petitioner attorneys’

fees (Pet. App. 34a).5

2. The court of appeals’ decision is correct, and it is in

accord with a long line of cases holding that 28 U.S.C. 2412

forbids the award of attorneys’ fees against the United

States or its agencies and officers, unless a statute expressly

authorizes award of attorneys’ fees. See, e.g., Rhode Island

Committee on Energy v. GSA, 561 F. 2d 397, 405 (Ist Cir.

1977); Fitzgerald v. CSC, 554 F. 2d 1186 (D.C. Cir. 1977);

Natural Resources Defense Council, Inc. v. EPA, 539 F. 2d

1068 (Sth Cir. 1976); Adams v. Carlson, 521 F. 2d 168, 170-

172 (7th Cir. 1975). Although the “American rule”: against

awarding attorneys’ fees to the prevailing party does not

apply in cases between non-federal parties when the losing

party has acted in bad faith, see Alyeska Pipeline Service

Co. v. Wilderness Society, 421 U.S. 240, 257-260 (1975),

there can be no non-statutory exception—for bad faith or

any other grounds—to the rule established by Section 2412

when the United States is a party.®

5The court of appeals remanded for calculation of the amount of back

pay that might still be owed to petitioner (Pet. App. 32a). Petitioner

does not here challenge that portion of the court of appeals’ decision.

¢The cases petitioner cites (Pet. 37-40) are inapposite. Tenants and

Owners In Opposition To Redevelopment v. HUD, 406 F. Supp. 960

(N.D. Cal. 1975), appears to have involved only a motion for attorneys’

fees against a non-federal co-defendant. See id. at 963. In any event no

attorneys’ fees were awarded, and the court did not mention Section

2412. In Red School House, Inc. v. OEO, 386 F. Supp. 1177(D. Minn.

1974) (which was decided prior to Alyeska), the district court awarded

attorneys’ fees based in part on the “private attorney general” theory and

in part on the conclusion that moneys in OEO’s appropriations for

attorneys’ fees could be used for this purpose, and thus no funds would

have to be paid out of the Treasury. In Adams v. Carlson, supra, the

plaintiffs sought to strenghen their claim for attorneys’ fees under the

private attorney general rationale by alleging that the government

officials had acted in bad faith. The court concluded that in light of the

decision in Alyeska their claim couid not be sustained and also noted

that the record did not support the claim of bad faith. 521 F. 2d at 170.

Section 2412 is a specific expression of the settled rule

that an order that would expend itself on the Treasury is

permissible only if Congress has authorized such relief.

See United States v. Testan; 424 U.S. 392, 399 (1976);

United States v. Sherwood, 312 U.S. 584 (1941).

Petitioner has not identified any such authorization (and

we know of none) for the payment of attorneys’ fees in

cases involving bad faith conduct by governmental

agencies. The court of appeals therefore correctly reversed

the district court’s award of attorneys’ fees.

It is therefore respectfully submitted that the petition

for a writ of certiorari should be denied.

Wape H. McCreE, JR.

Solicitor General

Marcu 1979

DOJ-1979-03