In Re Kenneth L. Turner

14 F.3d 637, 304 U.S. App. D.C. 339, 1994 U.S. App. LEXIS 1478, 1994 WL 23082

• Court: Court of Appeals for the D.C. Circuit
• Decided: February 1, 1994
• Docket: 92-5211
• Status: Published

Opinions

Opinion for the court filed PER CURIAM.

STEPHEN F. WILLIAMS, Circuit Judge, filed a separate concurring opinion.

KAREN LeCRAFT HENDERSON, Circuit Judge, filed a separate opinion concurring in part and dissenting in part.

PER CURIAM:

Appellant United States of America (Government) appeals the district court’s award of attorney’s fees and costs to appellee Kenneth L. Turner (Turner). Turner, a Federal Protective Service officer, was sued for negligence under the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671 et seq., and, in response, sought certification from the Attorney General that the alleged negligent acts were within the scope of his employment so that the Government would be substituted as defendant on the negligence claim pursuant to 28 U.S.C. § 2679(d)(1). When the Attorney General refused certification, Turner moved under 28 U.S.C. § 2679(d)(3) for scope-of-employment certification from the district court. The court granted Turner’s motion and substituted the Government as defendant. In addition, the court awarded Turner attorney’s fees and costs against the Government, under subsections 2412(d)(1)(A) and 2412(a)(1) of the Equal Access to Justice Act (EAJA), for his successful litigation of the certification issue. Mebane v. United States, 789 F.Supp. 410 (D.D.C.1992). The Government appeals both awards. For the following reasons, we conclude the attorney’s fee award must be vacated but the award of costs should be affirmed.

The material facts are not in dispute. On July 15, 1986, between midnight and 1:00 a.m., Turner was patrolling the Pentagon parking lot and observed Henry Mebane (Mebane), the plaintiff below, driving a speeding motorcycle through the lot. Turner pursued Mebane into the District of Columbia where Mebane continued to speed, drove through several red lights and finally crashed into a lamppost. Mebane subsequently filed an.action in the district court against Turner and the Government, asserting three claims: one against Turner for negligence in conducting the high speed pursuit, a second against the Government, under the FTCA, for negligent training and supervision and a third against Turner, under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for violating Mebane’s right to due process.

Turner, as noted above, sought certification from the Attorney General, under 28 U.S.C. § 2679(d)(1), that the high speed chase causing Mebane’s accident was within the scope of Turner’s employment entitling Turner to - have the Government substituted as defendant on Mebane’s first claim.¹ When his request was denied, Turner filed motions with the district court for’ (1) scope-of-employment certification and substitution of the Government as defendant on the negligence claim under 28 U.S.C. § 2679(d)(3)² and (2) dismissal of the Bivens claim on the merits. The district' court granted both motions and Turner then petitioned the court, under the EAJA, for attorney’s fees and costs from the Government for expenses incurred in obtaining the certification and defending against the Bivens claim. The court granted the petition as to the certification expenses, awarding Turner attorney’s fees and costs totalling $60,447.67.³

The Government appeals the district court’s award of fees' and costs on the grounds that (1) this is a case “sounding in tort” for which the EAJA expressly prohibits an attorney’s fee award, (2) the Government’s refusal to certify “course of employment” was “substantially justified” so as to preclude an attorney’s fees award under the EAJA and (3) Turner was not a prevailing party entitled to costs under the EAJA. We agree that the fee award must be vacated on the first ground but affirm the award of costs.⁴

Attorney’s Fees

Under the “American Rule,” “each party in a, lawsuit ordinarily shall bear its own attorney’s fees unless there is express statutory authorization to the contrary.” Hensley v. Eckerhart, 461 U.S. 424, 429, 103 S.Ct. 1933, 1937, 76 L.Ed.2d 40 (1983). Further, even where a fee award is otherwise authorized, the Government is shielded by sovereign immunity from attorney’s fee liability “except to the extent it has waived its immunity.” Ruckelshaus v. Sierra Club, 463 U.S. 680, 685, 103 S.Ct. 3274, 3278, 77 L.Ed.2d 938 (1983) (citing Alyeska Pipeline Serv. Co. v. Wilderness Society, 421 U.S. 240, 267-268 & n. 42, 95 S.Ct. 1612, 1626-1627 & n. 42, 44 L.Ed.2d 141 (1975)). Subsection 2412(d)(1)(A) waives this immunity, but only to a limited degree. That subsection states:

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), including proceedings for judicial review of agency action, 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. § 2412(d)(1)(A) (emphasis added). We agree with the Government that the statutory exception to this waiver for “cases sounding in tort” forecloses an award of attorney’s fees to Turner in this case.

Both the waiver of immunity and its tort exception “must be ‘construed strictly in favor of the sovereign.’ ” Sierra Club, 463 U.S. at 685, 103 S.Ct. at 3278 (quoting McMahon v. United States, 342 U.S. 25, 27, 72 S.Ct. 17, 19, 96 L.Ed. 26 (1951)). Thus, we “may not find a waiver unless Congress’ intent is ‘unequivocally expressed’ in the relevant statute.” Hubbard v. EPA, 982 F.2d 531, 532 (D.C.Cir.1992) (quoting United States v. Mitchell, 445 U.S. 535, 538, 100 5.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980)). In awarding fees to Turner, the district court ignored both this governing principle and the plain language of the EAJA. The court found the sounding in tort exception inapplicable because “the issue litigated between the United States and Turner was whether Turner was entitled to the benefit of immunity under 28 U.S.C. § 2679(d)” and the court’s resolution of that issue “does not ‘sound in tort,’ ” but “involves a Congressionally mandated decision as to whether the government’s waiver of sovereign immunity extends to this ease and, therefore, relieves the individual employee of liability.” 789 F.Supp. at 415 (emphasis added).⁵ The statute itself, however, does not parse “eases” into tort and non-tort issues but instead provides a blanket exception for cases that sound in tort. There can be no doubt that the civil action below is one sounding in tort⁶ and therefore outside the statute’s limited immunity waiver. Because subsection 2412(d)(1)(A) does not unequivocally (or otherwise) waive the Government’s immunity from fee awards incurred litigating specific issues within a case sounding in tort but, to the contrary, expressly bars any fee award in such a case, the district court’s award must be vacated.

Costs

The question whether a co-defendant who successfully moves the court for “scope of employment” certification and substitution is a “prevailing party” against the government and entitled to recover litigation costs under 28 U.S.C. § 2412(a)(1) appears to be one of first impression. Absent clear precedent, our starting point is Federal Rule of Civil Procedure 54(d), which provides for reimbursement of costs as a matter of course to parties prevailing in a “judgment” (as defined by part (a) of the rule). Where the government is involved, however, reimbursement is allowed “only to the extent permitted by law.” This points us to EAJA, which extends Rule 54’s general presumption in favor of awarding costs, with certain limitations, to cases brought by or against the government. 28 U.S.C. § 2412(a)(1). Section 2412(a)(1) does not, however, explicitly limit an award of costs to those litigants who formally bring suit against the government; rather, a reasonable interpretation of the section permits recovery to a litigant, such as Mr. Turner, who takes an adverse litigating position against the government in the context of a civil action and obtains the functional equivalent of a final judgment against the government that entitles him to some relief. Here, that relief consists of an order certifying scope of employment and protecting Turner against liability under the Westfall Act.

Since nothing in § 2412(a)(1) prevents recovery, Rule 54 determines whether the district court abused its broad discretion in awarding costs to Mr. Turner. Unfortunately, the two lines of cases relied on by the parties do not shed much light on this issue. On one hand, Turner cites to Friends for All Children v. Lockheed, 725 F.2d 1392, 1398-99 (D.C.Cir.1984), for the proposition that a prevailing party may be entitled to costs even in the absence of a final judgment. The plaintiffs in Friends, parties to a stipulation agreement granting only limited and temporary relief, sought to extend the reasoning of cases in the civil rights context holding that litigants can be deemed “prevailing parties” without having yet obtained a favorable final judgment, so long as they “have established a right to some relief on [their] claim.” Id. at 1398 (emphasis added); see, e.g., Hanrahan v. Hampton, 446 U.S. 754, 100 S.Ct. 1987, 64 L.Ed.2d 670 (1980) (construing Civil Rights Attorney’s Fee Award Act of 1976). Although Mr. Turner technically did not receive a judgment against the United States, he arguably established a right to relief. But analogy to Friends and the civil rights cases ends there. First, the Friends court denied plaintiffs’ request for costs and declined to apply the broad statutory interpretation of “prevailing party” established in civil rights cases to “the ordinary tort case where Rule 54(d) is controlling.” Friends, 725 F.2d at 1398-99. Second, this is not a situation where the movant has received some relief short of a final judgment but is undoubtedly still an adverse party in the action. Here the posture of the case is the opposite: the district court’s order certifying scope of employment against the government’s opposition granted Turner the. full relief he sought, yet Turner himself did not bring suit against the government.

Equally unilluminating are the cases cited by the government holding that a defendant who is voluntarily dismissed from an action is a “prevailing party” and may recover costs from the non-prevailing plaintiff in the underlying action. E.g., Kollsman v. Cohen, 996 F.2d 702, 706 (4th Cir.1993). None of these cases addresses a voluntarily dismissed defendant’s rights to recover costs from a. co-defendant, or suggests some sort of general principle that the plaintiff was necessarily the sole correct obligor for costs. More important, voluntary dismissal of a co-defendant is very different from the situation here, where liability (if any) clearly lay with either the United States or Turner, but not both, and Turner had to litigate vigorously against the government over whether the Westfall Act protected him from liability.

In the final analysis, this case should be perceived to include two distinct claims. The first is the underlying tort suit brought by Mebane against Turner and the government. The second is Turner’s action against the government on scope of employment. Although not so distinct from the first action to escape EAJA’s “sounding in tort” exception, this latter dispute is, as Judge Williams notes in his concurrence, more the functional equivalent of an action for subrogation or reimbursement by Turner against the government. The dispute was concrete, fully litigated, wholly resolved, and solely between Turner and the government, no matter how the parties were named on the underlying complaint. Accordingly, we uphold the district court’s award of costs in the amount of $2,953.00.

For the preceding reasons, the district court’s attorney’s fee award is vacated and the award of costs is affirmed.

So Ordered.

1 . This subsection provides:

Upon certification by the Attorney General that the defendant employee was acting within the scope of his office or employment at the time of the incident out of which the claim arose, any civil action or proceeding commenced upon such claim in a United States district court shall be deemed an action against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant.

28 U.S.C. § 2679(d)(1).

2 . This subsection provides in part:

In the event that the Attorney General has refused to certify scope of office or employment under this section, the employee may at any time before trial petition the court to find and certify that the employee was acting within the scope of his office or employment. Upon such certification by the court, such action or proceeding shall be deemed to be an action or proceeding brought against the United States under the provisions of this title and all references thereto, and the United States shall be substituted as the party defendant."

28 U.S.C. § 2679(d)(3).

3 . The district court declined to award expenses for the Bivens claim because the FTCA does not authorize a Bivens suit against the Government and the Attorney General was under no obligation to represent Turner on that claim. See 789 F.Supp. at 416.

4 . Because we vacate the attorney's fee award on the first ground, we need not reach the Government’s second argument that its opposition to certification was substantially justified.

5 . The court characterized Turner's claim against the Government as an "ancillary action” that "involves a determination that is much more akin to an action in which a claimant has been wrongfully denied a government benefit conferred by statute.” 789 F.Supp. at 415. A glance at the legislative history, however, reveals that, in amending 28 U.S.C. § 2679(d), Congress intended to "establish[] legislative standards to govern the immunity of Federal employees who have allegedly committed common law torts.” H.R.Rep. No. 700, 100th Cong., 2d sess. 4 (1988), reprinted in 1988 U.S.C.C.A.N. 5945, 5947.

6 . The verb "sound" "has a special legal sense, ‘to be actionable (in).'" Bryan Gamer, A Dictionary of Modem Legal Usage 510 (1987). In this sense, an action for damages resulting from negligence "sounds in” tort. See, e.g., Federal Marine Terminals, Inc. v. Burnside Shipping Co., 394 U.S. 404, 415, 89 S.Ct. 1144, 1150, 22 L.Ed.2d 371 (1969) ("It is not disputed, for example, that if the shipowner’s negligence caused damages-to the stevedoring contractor's equipment, those damages would be recoverable in a direct action sounding in tort.”).