Elisa Cazares v. James Barber

959 F.2d 753, 92 Cal. Daily Op. Serv. 2067, 1992 U.S. App. LEXIS 3807, 1992 WL 43249

• Court: Court of Appeals for the Ninth Circuit
• Decided: March 11, 1992
• Docket: 90-16423
• Status: Published

Opinions

WIGGINS, Circuit Judge:

The government appeals the district court’s granting of attorneys’ fees to plaintiff/appellee in excess of the statutory cap of $75 per hour under the Equal Access to Justice Act.¹ We affirm the grant on the basis of bad faith on the part of the government.

Under 28 U.S.C. section 2412(b), a court, in the absence of a prohibiting statute, may grant attorneys’ fees to a prevailing party against the United States in a civil case as it would in any civil case.² This includes an award against a party acting in bad faith. The cases interpreting this section, as well as the plain language of the statute itself, indicate that this subsection is not subject to the fee cap in subsection (d)(2)(A).

A district court’s finding regarding a party’s bad faith is reviewed under the clearly erroneous standard. Brown v. Sullivan, 916 F.2d 492, 495 (9th Cir.1990) (in the context of a section 2412(b) review) (citing Beaudry Motor Co. v. Abko Properties, Inc., 780 F.2d 751, 756 (9th Cir.1986), cert. denied, 479 U.S. 825, 107 S.Ct. 100, 93 (1986)). According to Brown, fees granted under section 2412(b) are at a reasonable market rate. Id. at 495.

The district court considered the “totality of the circumstances, prelitigation and during trial.” Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984). This included “the underlying agency actions and the government’s litigation posture.” Id. at 1195. It found that the school officials had an “arrogant and calloused attitude ... from the beginning.” It perceived the conduct of the school officials after the district court issued its judgment on the merits as a “clear indication of their attitude” throughout. We conclude that the district court’s finding of bad faith is not clearly erroneous.

The district court found that the sole reason for Cazares’ denial of admission to the Honor Society was the fact that she was pregnant, unmarried and not living with her child’s father. Then the district court issued a permanent injunction, ordering that the induction ceremony at the high school not take place without Cazares. In his Findings of Facts and Conclusions of Law, the judge stated that Cazares would suffer irreparable injury if she were excluded because of her pregnant, unmarried status.

The district court assumed that the school administration would hold the ceremony and include Cazares because it did not want to harm the other students who were to be inducted. In their earlier filings with the court, school officials had stated their desire to hold the ceremony without delay to benefit the selected students and to get off to a good start with the National Honor Society in its first year of affiliation.

After the injunction was issued, appellants decided to cancel the entire induction ceremony rather than include Cazares. They preferred to deny all selected students the honor rather than follow the district court’s direction. Appellants claim that they canceled the ceremony in order to preserve their appeal. However, such an appeal would have been frivolous.³ Seeking to preserve a frivolous appeal is itself frivolous.

Furthermore, the total amount in dispute is less than $5,000. It appears unreasonable that appellants would spend the money to send an attorney from Washington, D.C., to San Francisco to contest such a small figure in a case like this, which has its origins in government wrongdoing.

The district court’s Memorandum of Decision contains what we believe was an inadvertent error. The court stated that the application for attorney’s fees by plaintiff/appellee was pursuant to 28 U.S.C. section 2412(d). In truth, the application was pursuant to section 2412 in general. In the reply to defendant’s response to the motion for attorney’s fees, plaintiff/appellee specifically discusses both section 2412(b) and section 2412(d).

We believe the court’s omission of section 2412(b) is inadvertent because its Memorandum specifically refers to defendant/appellant’s bad faith:

Plaintiff’s response to the defendant’s opposition to the application for attorneys’ fees very adequately sets forth the arrogant and calloused attitude taken by the defendants from the beginning.... Defendants’ argument ... is frivolous and further proof of their bad faith.

Thus, the Memorandum is sufficient.

Appellants contend that even if the Memorandum was sufficient, it was issued too late by the district court. The district court judge did not explain in writing his granting of attorneys’ fees until after the notice of appeal was filed. Appellants argue that he could not do so because once the appeal was filed, the district court no longer had jurisdiction.

However, the judge did not “make further findings or adjudications regarding the issues being appealed” as the appellants argue. Rather, he merely explained findings he had already made in granting the fees. In fact, the Ninth Circuit has said that a district court still has jurisdiction, even after appeal is filed but before the appeals court has ruled, to grant attorneys’ fees. Masalosalo by Masalosalo v. Stonewall Ins. Co., 718 F.2d 955, 956-57 (9th Cir.1983) (The “rule of exclusive appellate jurisdiction is a creature of judicial prudence, however, and is not absolute.”) Thus, the district court certainly still has jurisdiction after an appeal is filed to explain its granting of attorneys’ fees. As the Masalosalo court stated, such a policy prevents piecemeal appeals.

The judgment of the district court is AFFIRMED.

1 . 28 U.S.C. § 2412(d)(2)(A).

2 . Section 2412(b) provides: "Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.”

3 . Appellants may have later realized this, as ney stipulated to a dismissal of their appeal.