Opinion
Case No. 93-281-CIV-FTM-21-D
February 3, 1997
ORDER
This cause comes before the Court on motions of the Defendants Florida Cities Water Company ("Florida Cities") and Avatar Holdings, Inc. ("Avatar Holdings" or "Avatar") to tax costs and certain attorney's fees against the Plaintiff United States of America. Specifically, filed herein are Defendant Florida Cities' Motion for Bill of Costs (Dkt. 346) and Verified Motion for Attorneys Fees (Dkt. 347) and Defendant Avatar Holdings' Motion for Judgment of Costs (Dkt. 348) and Application for Attorney Fees (Dkt. 349) and Memorandum (Dkt. 350) in support thereof. Plaintiff has filed a Response (Dkt. 352) to these filings.
To the extent that Plaintiff's Response (Dkt. 352) asserts the United States' entitlement to an award of costs under 28 U.S.C. § 2412 (a), such request is untimely under Rule 4.18, Local Rules, Middle District of Florida, as it was submitted more than fourteen days after the entry of judgment. The filings prompted by Plaintiff's Response (Dkt. 352) are discussed below in part IV.
Defendants also filed a Joint Motion to Extend Time in Which to Apply for Costs and Attorney's Fees and for Expedited Consideration (Dkt. 345). However, since both Defendants timely submitted their applications for costs and attorney's fees, the motion to extend time will be denied as moot.
See Rule 4.18, Local Rules, Middle District of Florida; Rule 54, Federal Rules of Civil Procedure.
BACKGROUND
This action was instituted by Plaintiff, the United States of America, against Florida Cities Water Company ("Florida Cities"), a private utility company, and its parent company, Avatar Holdings, Inc. ("Avatar Holdings"), pursuant to the civil penalty provisions of the Clean Water Act (CWA), 33 U.S.C. § 1319 (b). As more fully set out in prior orders of this Court, the Court previously granted partial summary judgment in favor of Defendant Florida Cities and partial judgment on the pleadings in favor of Defendant Avatar on several counts of Plaintiff's Second Amended Complaint, based on various grounds.
The action was tried to the Court sitting without a jury, after which the Court issued a Memorandum Order (Dkt. 341) containing its findings of fact and conclusions of law, pursuant to Rule 52, FRCP, and entered judgment (Dkt. 342) in favor of Defendant Avatar Holdings on all of Plaintiff's claims, but in favor of Plaintiff on its claims against Florida Cities in the amount of $309,710.00, id. Thereafter the Defendants submitted the above-referenced motions for costs and attorney's fees pursuant to Rule 54, FRCP and Rule 4.18, Local Rules, Middle District of Florida.
The Court notes that, subsequently, the United States has filed a Notice of Appeal (Dkt. 357) of this Court's judgment. The pendency of this appeal does not remove this Court's jurisdiction to hear the Defendants' timely filed motions for attorney's fees and costs. Budinich v. Becton Dickinson Co., 486 U.S. 196, 202 (1989) ("[A] decision on the merits is a `final decision' for purposes of [28 U.S.C.] § 1291 whether or not there remains for adjudication a request for attorney's fees attributable to the case."); see also Andrews v. Employee's Retirement Plan of First Alabama Bancshares. Inc., 938 F.2d 1245, 1247 n. 3 (11th Cir. 1991) (recognizing same).
Avatar Holdings seeks to recover its costs incurred in defending this suit as a prevailing party under 28 U.S.C. § 2412 (a). Florida Cities, having made a Rule 68 offer of judgment to Plaintiff that was greater than the amount which Plaintiff ultimately recovered, seeks to recover those costs it incurred subsequent to making that offer. Both Defendants seek to recover their attorney's fees under 28 U.S.C. § 2412 (b) and the common law bad faith exception to the American Rule, contending that the United States' relitigation of those claims which this Court held to be barred by res judicata constitutes bad faith.
As a general proposition, parties can seek to recover their attorney's fees incurred in litigation with the United States under either one of two sections of the Equal Access to Justice Act, 28 U.S.C. § 2412. While both sections may be applicable in a particular situation, the amount recoverable and standards applicable under each section are significantly different. Compare 28 U.S.C. § 2412 (b) with 28 U.S.C. § 2412 (d). Application of the common law bad faith exception to the American Rule through § 2412(b) requires a showing of egregious conduct by the United States, but allows for recovery of fees at the market rate. Section 2412(d) requires a lesser showing to recover fees against the United States, but recovery thereunder is, inter alia, subject to the "substantial justification" and "special circumstances" exceptions, is limited to a rate of $75 per hour absent special justification, and requires submission of an application in a particular form. See generally Brown v. Sullivan, 916 F.2d 492, 495 (9th Cir. 1990) (discussing differences between § 24 12(b) (d)); Garcia v. Sullivan, 781 F. Supp. 969, 973-74 (S.D.N.Y. 1991) (same); Fitzgerald v. Hampton, 545 F. Supp. 53, 56 n. 8 (D.C.D.C. 1982) (same).
As the Defendants submitted their requests for attorney's fees pursuant to 28 U.S.C. § 2412 (b), basing their right to recovery on the United States' alleged bad faith (which standard is only applicable under § 2412(b)), and did not submit a fee application in the form required by § 2412(d)(1)(B), the Court need not and will not consider the Defendants' rights to fees, if any, under § 2412(d).
The United States, in its Response (Dkt. 352), concedes Avatar Holdings entitlement to costs under 28 U.S.C. § 2412 (a), but contends that Avatar's inadequate documentation thereof significantly reduces the amount which it claims, and argues that Florida Cities is not entitled to costs under Rule 68 absent an underlying waiver of the United States' sovereign immunity against such awards. Regarding the Defendants' claims for attorneys' fees under 28 U.S.C. § 2412 (b), Plaintiff argues that the circumstances and procedural history of this case demonstrate that the United States did not litigate in bad faith.
I. PRELIMINARY CONSIDERATIONS: 28 U.S.C. § 2412. Rule 54, Sovereign Immunity, The American Rule on Attorney's Fees
Rule 54, FRCP, provides the procedure by which a party may seek recovery of costs and attorney's fees.
Rule 54. Judgments; Costs
(d) Costs; Attorneys' Fees
(1) Costs Other than Attorneys' Fees. Except when express provision therefor is either in a statue of the United States or in these rules, costs other than attorney's fees shall be allowed as of course to the prevailing party unless the court otherwise directs; but costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law. . . .
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(2) Attorney's Fees
(A) Claims for attorneys' fees and related nontaxable expenses shall be made by motion unless the substantive law governing the action provides for the recovery of such fees as an element of damages to be proved at trial.
It is beyond peradventure that the United States, as Sovereign, is immune from suit as well as liability in its courts unless it expressly consents thereto. This principle is equally applicable to the payment of costs and attorney's fees in litigation in which the United States is involved. Without its consent, the United States cannot be held liable for the payment of costs or attorney's fees.
See 14 C. Wright et al., Federal Practice Procedure § 3654 pp. 186-193 (1985 Supp. 1996).
10 Wright et al., § 2672 p. 235 (1983) (citing United States v. Chemical Foundation, Inc., 272 U.S. 1 (1926)).
See 14 Wright et al., § 3654 pp. 192-193 (1985 Supp. 1996).
Rule 54(d)(1), FRCP provides that, "costs against the United States, its officers, and agencies shall be imposed only to the extent permitted by law," but is merely declaratory of that proposition. The section has been held "not [to] effect any change in principle[s]" of sovereign immunity. 10 C. Wright et al., Federal Practice Procedure, § 2672 p. 236 (citing RFC v. J.G. Menihan Corp., 312 U.S. 81, 85 (1941)). The same is true for awards of attorney's fees against the United States; a party seeking fees against the United States must still have some underlying affirmative Congressional grant of such right in order to proceed under Rule 54. As the Clean Water Act makes no express provision for fees or costs, such affirmative grant, if any, must be contained in 28 U.S.C. § 2412, known also as the Equal Access to Justice Act (EAJA).
As first enacted in 1948, 28 U.S.C. § 2412 was extremely narrow in scope, only allowing for the taxation of costs against the United States in a few specifically enumerated classes of cases. See 10 Wright et al. § 2672 p. 236 (1983). Otherwise, § 2412 echoed the J.G. Menihan case in its mandate that any consent by the United States to the taxation of costs had to take the form of an "express . . . Act of Congress." This, as Professor Wright notes, made taxation of costs against the United States the exception, not the rule. 10 Wright et al., § 2672 at 237.
In 1966, seeking to end the disparity in treatment between private parties and the United States concerning the allowance of court costs, Congress amended 28 U.S.C. § 2412 to permit federal courts to tax costs against the United States to the same extent that they, in their discretion, could tax costs against private litigants. See 10 Wright et al., § 2672 at 238. However, the amendment expressly prohibited the award of attorney's fees and expenses against the United States pursuant to that section. See id. at 239 (citations omitted); 14 Wright et al., § 3660 p. 367 (citations omitted).
5. Rep. No. 1329, 89th Cong. 2d Sess. (1966), reprinted in 1966 U.S.C.C.A.N. 2527, 2528.
Id. at 2529.
Total parity between the United States and private litigants as regards the awarding of fees and costs in litigation was not achieved until 1980, when 28 U.S.C. § 2412 was again amended. The effect of this amendment was to give federal courts the discretionary authority to award attorney's fees against the United States to the same extent that such were available against private litigants, see 10 Wright et al., § 2672 at 241, in addition to the courts' preexisting power to tax costs against the United States
P.L. 96-481, § 204, 94 Stat. 2327 et seq., reprinted in 1980 U.S.C.C.A.N. 4984 et seq.
The statute now reads, in relevant part:
s 2412. Costs and fees
(a)(1) 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 any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. A judgment for costs when taxed against the United States shall, in an amount established by statute, court rule, or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by such party in the litigation.
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(b) 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.
Thus, 28 U.S.C. § 2412, in its current form, effects a waiver of the United States' sovereign immunity against the imposition of costs and attorney's fees to prevailing parties in civil actions, and exposes the United States to liability for such awards to the same extent that such awards may be imposed against private individuals. The Federal Rules of Civil Procedure subject private litigants to awards of litigation costs under Rules 54 and 68, among others. However, since the Courts of the United States operate under the American Rule on Attorney's Fees, the Supreme Court has mandated that attorney's fee awards must be made pursuant to one of the few recognized common law exceptions or one of the many express statutory exceptions to the American Rule. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240 (1975). One of these common law exceptions is known as the bad faith exception, pursuant to which a court may award fees to a party's opponent to punish the party's vexatious litigation. See part II, infra. The express wording and unequivocal legislative history of § 2412(b) make clear that Congress intended for these exceptions to apply to the United States under the EAJA. H. Rep. No. 96-1418, 96th Cong. 2d Sess. 9 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4984, 4987 (applicability of common law and statutory exceptions to United States under EAJA). II. FEES
The Court is cognizant that the EAJA is a waiver of the United States' sovereign immunity, and that therefore construction of any of the provisions of this act must be undertaken carefully. There has been some disagreement among the federal appellate circuits as to how expansively or narrowly the EAJA should be construed, compare NTEA v. NHTSA, 972 F.2d 669 (6th Cir. 1992) (liberal construction) with Estate of Smith, 930 F.2d 1496 (10th Cir. 1991) (narrow construction) and Fenton, 633 F.2d 1119 (5th Cir. 1981) (same). Fenton, decided prior to October 1, 1981, is binding precedent in the Eleventh Circuit. See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (adopting as binding precedent all decisions rendered by the former Fifth Circuit Court of Appeals prior to the close of business on September 30, 1981).
To recover fees under § 2412(b) of the EAJA, the Defendants must be "prevailing part[ies]" as defined by that section, and must prove that the United States litigated in bad faith. It is undisputed that Defendant Avatar is a prevailing party; it is not so clear whether Florida Cities is. However, the Court need not determine Florida Cities' status as a prevailing party under 2412(b) given the Court's determination of the issue of Plaintiff's alleged bad faith, as explained below. "[A]ttorney's fees may be awarded to a successful party when his opponent has acted in bad faith, vexatiously, wantonly, or for oppressive reasons." F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129 (1974). Bad faith can take various forms. Both specific instances of conduct, and overall patterns of behavior, whether occurring prior to the institution of or during litigation, can constitute bad faith to support an award of attorney's fees under § 2412(b). See Brown v. Sullivan, 916 F.2d 492 (9th Cir. 1990); Fitzgerald v. Hampton, 545 F. Supp. 53 (D.C.D.C. 1982). The Eleventh Circuit has also recognized the bad faith exception in situations in which the losing party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons," Kreager v. Solomon Flanagan. P.A., 775 F.2d 1541, 1543 (11th Cir. 1985) (citing Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 258-59 (1975)), whether such conduct occurred prior to or during litigation,id. The court has directed that "[i]n determining the propriety of a bad faith award, `the inquiry will focus primarily on the conduct and motive of a party rather than on the validity of the case.'" Id. (citations omitted).
Both the former Claims Court (now the United States Court of Federal Claims) and the Second Circuit have enunciated similar but distinctive frameworks for analyzing conduct alleged to be bad faith.See, e.g., St. Paul Fire Marine Ins. Co. v. U.S., 4 Cl. Ct. 762 (Cl. Ct. 1984); New York Housing Authority v. Kemp, 751 F. Supp. 1123 (S.D.N.Y. 1990). However, because these tests place equal emphasis on whether the claims are colorable and the nature of the prosecuting party's motives, they have a slightly different focus than the Eleventh Circuit test, which focuses primarily on the conduct and/or motive of the prosecuting party. Although not relying on them in reaching its result, the Court notes these tests shed significantly more light on the general subject of the bad faith exception than Eleventh Circuit case law, due to the brief treatment of the topic in Kreager and the general lack of Eleventh Circuit case law on the subject, and support the Court's conclusion on the bad faith issue in this case.
In their motions for attorney's fees, both Defendants posit that the maintenance of claims that are found to be barred by res judicata is bad faith sufficient to merit an award of attorney's fees. The Defendants assert that Plaintiff herein made little or no effort to determine the scope of prior administrative (EPA) dispositions of various claims, instead recklessly relitigating these claims and thereby unnecessarily burdening the Defendants and the Court. Plaintiff counters that there was ample factual and legal support for its assertion of the later-precluded claims, and that it did undertake an investigation into the administrative disposition of those claims before seeking to add them to this case by amendment of the complaint. Plaintiff further maintains that the significant briefing which this Court required of the parties on this issue underscores the opacity of the res judicata issue presented in this case.
This Court is not persuaded that Defendant has adduced sufficient proof of the bad conduct or ill motive of Plaintiff in litigating these claims so as to support a finding of bad faith. Plaintiff's actions and conduct herein are simply not of the character that merits awards under the bad faith exception. Nonetheless, the Court will address the case law specifically cited by both Defendants in support of their assertion that Plaintiff's litigation of the precluded claims constitutes bad faith.
The defendants rely on the cases of United States v. Nesglo, 744 F.2d 887 (1st Cir. 1984), Ellingson v. Burlington Northern, Inc., 653 F.2d 1327 (9 Cir, 1981), and Pallante v. Paine Webber, Jackson Curtis. Inc., No. 84 CIV 5761, 1985 WL 1360 (S.D.N.Y. May 14, 1985). In each of these cases, whenever the party against whom fees were awarded was met with a defeat, it simply ignored the clearly final adjudication of its claims and filed a new suit asserting the same claim. The Nesglo and Ellingson plaintiffs asserted their particular claims multiple times (three for Nesglo, five for Ellingson), in various forums, with the plaintiff in each case making two intermediate trips to the respective appellate court. The Pallante Plaintiffs were equally defiant, though not as repeatedly. After losing the arbitration of their claim before the American Stock Exchange, they filed a state court lawsuit based on the identical facts and same theory as their original claim instead of moving to challenge the arbitration as they could have done. In each case, despite the rendering of clear rulings against them on all relief sought, the Nesglo, Ellingson, andPallante plaintiffs returned to court and reasserted the identical claims. And thus, in each case, the courts which assessed them attorney's fees for bad faith were able to determine with relative ease that all the claims being asserted were barred by res judicata. Such is not the situation in the present case.
In the instant case, those claims which the Court found to be barred by res judicata were not a large portion of the Plaintiff's case, much less the totality thereof. Nor, as Plaintiff correctly asserts, was the applicability of res judicata to those prior claims such a clear-cut issue. In reaching its decision that certain of Plaintiff's claims were precluded, the Court required much briefing of the issues by the parties, as well as rebriefing upon the Court's grant of reconsideration. Such is quite different from the situation characterizing those cases of bad faith cited by the Defendants, in which parties continually relitigated their claims after receiving definitive rulings on all those claims. Although the Defendants herein may have been greatly frustrated by being forced to mount a defense to claims that were later found to be barred by res judicata, the Court notes that such a reaction by the Defendant does not compel the conclusion that the United States litigated in bad faith. Even when federal courts have determined that a party's prosecution of a claim was unreasonable, or unwise and without great concern for his adversary, so as to greatly frustrate him, they have still found that such behavior is not bad faith, and is not litigation undertaken vexatiously, wantonly, or for oppressive reasons. III. COSTS
Garcia v. Sullivan, 781 F. Supp. 969, 974 (S.D.N.Y. 1991).
Kominers v. U.S., 9 Cl. Ct. 647, 651 (Cl.Ct. 1986).
Garcia, 781 F. Supp. at 974; Kominers, 9 Cl. Ct. at 651.
A. The Defendants' Entitlement to Costs
As Plaintiff has conceded that Defendant Avatar is entitled to costs under 28 U.S.C. § 2412 (a) as a "prevailing party," the Court need not address this issue. Plaintiff, however, does contest Defendant Florida Cities' entitlement to costs, arguing that it cannot recover costs against the United States pursuant to a Rule 68 Offer of Judgment because there exists no underlying statute which waives the United States' sovereign immunity in suits, like the present, in which the United States prevails. The United States contends that since a judgment was returned in its favor on its claims against the Defendant Florida Cities, the Florida Cities is thereby precluded from being a § 2412(a) "prevailing party." The Court agrees with Plaintiff's analysis and, grudgingly, with its conclusion. Rule 68 Offers of Judgment, available only to nonprevailing parties under the Rule, operate through Rule 54, which provides that costs against the United States can be imposed only "to the extent permitted by law." Since the Clean Water Act is apparently silent on the award of costs in cases brought by the United States, the EAJA is the only provision ostensibly applicable to Defendant's requests for costs. But since § 2412(a) of the EAJA only grants costs to a "prevailing party," parties seeking costs under Rule 68 are implicitly precluded from the scope of § 2412(a). Thus, although it is against the clear intent of Congress in amending the EAJA in 1966, based upon the principles of sovereign immunity discussed below, this Court concludes that Florida Cities cannot recover costs against the United States under Rule 68, FRCP, because of the bar imposed by the doctrine of sovereign immunity. The Supreme Court has recently reiterated the "common rule, with which [it] presume[s] congressional familiarity, that any waiver of the National Government's sovereign immunity must be unequivoc al. Waivers of immunity must be construed strictly in favor of the sovereign, and not enlarge[d] . . . beyond what the language requires. United States Department of Energy v. Ohio, 503 U.S. 607, 615 (1992) (citations omitted) (internal quotation marks omitted). Such a strong statement cannot be disregarded, as would be necessary in order for this Court to conclude that an award of costs under Rule 68 to a nonprevailing party such as Florida Cities is permitted under the plain language of the EAJA, which only permits such awards to "prevailing parties."
The parties' briefs are silent on this issue.
See supra, part I.
The Court notes that despite the strenuous argument between Defendant Florida Cities and Plaintiff over whether the United States is subject to the operation of Rule 68 through 28 U.S.C. § 2412 (a), neither party is able to cite any case law bearing on this subject. Nor has the Court been able to locate any authority on this point. While the history and purposes of Rule 68 and 28 U.S.C. § 2412 (a) militate strongly for an award of costs to Florida Cities, the procrustean doctrine of sovereign immunity precludes such. Florida Cities' bill of costs must therefore be denied. B. Costs awardable
The case of U.S. v. American Commercial Barge Line Co., 988 F.2d 860 (8th Cir. 1993), cited in Defendant's Replies (Dkts. 353 355), is inapposite. Inter alia, American Commercial deals with the effect of the U.S.'s rejection of an offer of judgment on its right to prejudgment interest under admiralty law. The Eighth Circuit's recitation of the procedural history of the case, which does not even rise to the level ofobiter dictum, merely recounted that the district court therein did award costs to the Defendant based upon the U.S.'s rejection of an offer of judgment which exceeded the final judgment in favor of the United States The Eighth Circuit did not pass on the propriety of that award, as it was not an issue before the court. The opinion of the district court is unpublished and its reasoning is thus unknown.
The case of U.S. v. Trident Seafoods Corp., 92 F.3d 855 (9th Cir. 1996) is equally frustrating in the manner it comes close to addressing, but never does directly address, the issue before this Court. Trident deals with the interplay of Rule 68, the Clean Air Act, and the EAJA. Although an offer of judgment was made by the Trident defendant to the United States in an amount which exceeded the final judgment in favor of the United States, and which apparently formed the basis of the district court's award of costs to the defendant under 2412(a), the correctness of that basis of the award was not at issue on appeal. Rather, the Ninth Circuit addressed the issue of whether a specific provision of the substantive statute at issue (the Clean Air Act) relating to fees and costs preempted the more general provisions of the EAJA. As with American Commercial Barge Line, supra, the Trident lower court opinion is unpublished.
Rule 68 is clearly intended to encourage settlement of cases by forcing parties to take seriously any offers of settlement properly tendered. For if a Plaintiff rejects a Rule 68 offer that is larger than the verdict he ultimately receives, he is then liable to the Defendant for all costs incurred by the Defendant after the offer was made. Rule 68 thus reverses the normal operation of Rule 54, which otherwise would allow a prevailing party to recover his costs, and instead mandates that the offeree pay to the offeror all costs incurred by the offeror after making the offer of judgment, despite the fact that he may have prevailed pursuant to a verdict returned in his favor. As noted by Plaintiff; and stated explicitly by the rule itself; Rule 54 requires that taxation of costs against the United States be made pursuant to some specific grant of that right.
The legislative history of the EAJA, as noted hereinabove in part I, makes absolutely clear that in enacting 2412(a) Congress intended to "provide for uniformity of treatment in the award of costs" between private litigants and the United States, and to do away with any "governmental advantage derived from the principle favoring immunity of the sovereign from suit." S. Rep. No. 1329, 89th Cong. 2d Sess. (1966),reprinted in 1966 U.S.C.C.A.N. 2527, 2528. In making these changes to § 2412, Congress was surely aware of Rule 68, which had been in effect in the same basic form since the adoption of the Federal Rules in 1937. Thus, notwithstanding Plaintiff's argument that Rules Enabling Act, 28 U.S.C. 2072, prohibits the application of the FRCP so as to "abridge, enlarge, or modify any substantive right," the Court believes that Congress intended for the 1966 amendments to § 2412 to submit the United States to the full liability faced by private parties for taxation of costs — including the operation of Rule 68. It is highly unlikely that Congress in its crafting of an Act with the stated purpose of completely equalizing the United States and private litigants in the awarding of costs and attorney's fees could have intended to exclude the United States from the operation of Rule 68.
But the plain language of the EAJA simply does not extend that far and the doctrine of sovereign immunity precludes any expansive interpretation of that language. Perhaps the Eleventh Circuit will view the issue differently, but the expansion of the EAJA contrary to the Supreme Court's pronouncements regarding sovereign immunity is simply not the province of this Court.
One could also argue, as does Defendant in its Reply briefs, that the term "prevailing party" in 28 U.S.C. § 2412 (a) should be construed in line with the construction of that term under 42 U.S.C. § 1988, which provides for awards of attorney's fees to the prevailing party as part of costs, in cases arising under the Civil Rights Act. It is clear that the vast body of case law defining "prevailing party" that has arisen under 42 U.S.C. § 1988 of the Civil Rights Act was intended to apply equally to that term under § 2412(b)the EAJA see H.R. 96-1148, 96th Cong. 2d Sess. 11, reprinted in 1980 U.S.C.C.A.N. 4984, 4990 ("It is the committee's intention that the interpretation of the term [`prevailing party'] . . . be consistent with the law that has developed under existing statutes."), and that the Supreme Court has approved of the application of case law arising under various statutory fee schemes to any situation in which a fee award is authorized to a prevailing party, Hensley v. Eckerhart, 461 U.S. 424, 433 n. 7 (1983) ("The standards set forth in this opinion [on the issue of the proper relationship of the results obtained to an award of attorney's fees] are generally applicable in all cases in which Congress has authorized an award of fees to a `prevailing party'".); however, it is not so clear that this body of law should be applied to awards of costs under § 2412(a). While this argument is facially logical — sections § 2412(a) (b) and § 1988 all use identical terminology — such reasoning suffers from at least two significant defects.
First, what is now § 2412(a), and specifically its "prevailing party" terminology, was enacted over a decade before the enactment of the attorney's fees provision in 42 U.S.C. § 1988, upon which rests most, if not all, of the federal statutes dealing with the issue of when a party is considered "prevailing" under the various federal statutes authorizing fee awards to such parties. Second, adoption of such precedent in cases involving § 2412(a) would generally undermine the very purposes of the EAJA, as a defendant's status as a "prevailing party" for purposes of § 1988 depends upon a determination that the plaintiff litigated in bad faith. Sullivan v. School Board of Pinellas County, 773 F.2d 1182, 1188 (11th Cir. 1985) (citing Hughes v. Rowe, 449 U.S. 5, 14 (1980)); Hill v. Longini, 767 F.2d 332, 335 (7th Cir. 1985) (A defendant may be considered a prevailing party under section 1988 if plaintiff's action was "vexatious, frivolous, or brought to harass or embarrass the defendant.'") (citing Hensley v. Eckerhart, 461 U.S. 424, 429 n. 3 (1983)). Hinging a party's ability to recover costs under § 2412(a) upon a determination of litigation impropriety by the United States would lessen a private party's incentive to litigate its rights, contrary to Congress' desire in enacting the EAJA to "reduce the deterrents and disparity" in contesting government action. Cf. U.S. v. Trident Seafoods Corp., 92 F.3d 855, 863 (9th Cir. 1996) (refusing to import the Clean Air Act § 7413(b) requirement of unreasonable government action for awarding costs and fees into the analysis of an EAJA § 2412(a) cost award). Additionally, adoption of such precedent in cases involving § 2412(a) would clearly prohibit the awarding of costs to Defendants herein, as this Court has already determined that Plaintiff herein did not litigate frivolously, vexatiously, or for an improper purpose. Defendants would thus, presumably, avoid advocacy of such a position.
Having concluded that Avatar is entitled to costs under § 2412(a), the Court is unable to make a complete award of costs because of insufficiencies in the Defendant's application for costs. Thus, seeking to avoid making a more piecemeal ruling on this issue, the Court will grant the Defendant Avatar leave to file a bill of costs which this Court can consider. While the form of its submission is helpful to the Court, the necessary substance is lacking. The primary fault of the submitted bill is its lack of specificity and itemization, particularly as regards the expenses listed for photocopying.
The Court would note for the Defendant Avatar's benefit that Florida Cities' attachment to its bill of costs was in a form particularly helpful to the Court in ruling on this issue.
As the parties are well aware, 28 U.S.C. § 1920 (4) and case law arising thereunder only permit the recovery of costs for photocopies necessary to the maintenance of the suit. At a minimum, Avatar's amended application for costs shall state the nature of the document or item copied, the purpose or necessity for which the cost was incurred, explaining such where it is not plainly obvious. Additionally the length of the document or item and the per page rate should be provided. As for costs claimed under 28 U.S.C. § 1920 (2) for reporter/stenographic services and charges, Avatar should also state the purpose or necessity of these expenses, again explaining such where necessary. Particularly, Avatar shall address the issue of costs recoverable for trial transcripts requested at the expedited rate if it intends to assert a claim for such.
See, e.g., DeSisto College v. Town of Howey-in-the-Hills, 718 F. Supp. 906 (M.D. Fla. 1989).
In doing the above, Avatar shall also address the deficiencies alleged by the Plaintiff in its Response (Dkt. 352) where applicable, make relevant reference to the abundant case law arising under 28 U.S.C. § 1920, and generally provide the maximum relevant detail possible. Failure to address these deficiencies will result in denial without further notice of those costs inadequately supported. Avatar's amended applications for costs shall be submitted to the Court no later than February 21, 1997. The Plaintiff shall have the normal time frame as set out by the Local and Federal Rules within which to respond. Chambers copies shall be provided by the parties to this Court's Tampa chambers by the same applicable deadlines.
IV. Defendant Florida Cities' Replies
Finally, there is the matter of the multiple documents filed by Defendant Florida Cities and the United States herein. These pleadings are Defendant Florida Cities' Motion to File Reply Memorandum (Dkt. 353) along with attached Reply Memorandum; Defendant Florida Cities' Notification etc. (Dkt. 354); Defendant Florida Cities' Notice of Substitution of Reply Memorandum (Dkt. 355); and United States' Memorandum in Opposition etc. (Dkt. 356). The parties, of course, are aware of Rule 3.01(b), Local Rules, Middle District of Florida, and its prohibitions. However, it is not inappropriate under Local Rule 3.01(b) for the Defendant to have filed a motion for leave to file a reply and have attached the proposed reply to such motion. The Defendant's motion will be granted.
Upon consideration thereof, it is hereby ORDERED AND ADJUDGED:
1. Defendants' Joint Motion to Extend Time in Which to Apply for Costs and Attorney's Fees and for Expedited Consideration (Dkt. 345) is hereby DENIED as moot.
2. Defendant Florida Cities' Verified Motion for Attorneys Fees (Dkt. 347) is DENIED.
3. Defendant Avatar Holdings' Application for Attorney Fees (Dkt. 349) is DENIED.
4. Defendant Florida Cities' Motion for Bill of Costs (Dkt. 346) is DENIED.
5. Defendant Avatar Holdings' Motion for Judgment of Costs (Dkt. 348) is GRANTED in part. Pursuant to the Court's instructions above, Defendant shall submit an amended application for costs no later than February 21, 1997. Plaintiffs shall timely respond thereto as provided under the rules. Courtesy copies shall be provided the Court as directed above.
6. Defendant Florida Cities' Motion to File Reply Memorandum (Dkt. 353) is GRANTED. The Clerk is DIRECTED to file the reply Memorandum attached to Defendant's Motion (Dkt. 353) as well as Defendant's Substituted Reply (Dkt. 355).