Kloeckner v. Solis

Filing 57

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that Plaintiff's Motion for Attorney's Fees [ECF No. 52 ] is DENIED. Signed by District Judge E. Richard Webber on June 27, 2013. (BRP) (Main Document 57 replaced on 6/27/2013) (BRP).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION

CAROLYN M. KLOECKNER,
Plaintiff,
vs.
SETH D. HARRIS,
Acting Secretary of Labor,
Defendant.

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Case No. 4:09CV00804 ERW

MEMORANDUM AND ORDER

This matter comes before the Court upon Plaintiff Carolyn M. Kloeckner’s Motion for
Attorney’s Fees [ECF No. 52]. Defendant filed a Response to Plaintiff’s Application for
Attorney’s Fees. [ECF No. 56]. For the following reasons, Plaintiff’s motion is denied.
I.

BACKGROUND

Following a series of adverse rulings from agency boards, Plaintiff filed this unlawful
discrimination cause of action in federal district court on May 26, 2009. See Kloeckner v. Solis,
133 S.Ct. 596, 602-04 (2012). The District Court dismissed the case for lack of jurisdiction, and
the Eighth Circuit Court of Appeals affirmed. Id. Plaintiff then successfully petitioned the
Supreme Court for certiorari. Id. The Supreme Court reversed and remanded, holding that the
district court properly had jurisdiction to hear the case. Id. at 604. The Eight Circuit then
remanded the case back to the district court. [ECF No. 52 at 2].
II.

DISCUSSION

Plaintiff contends that the Supreme Court’s reversal and remand entitles her to attorney’s
fees under the Equal Access to Justice Act, 28 U.S.C. § 2412(d)(1)(A) (1980). Id. ( “Plaintiff . .

. now files to recover her attorney’s fees from the jurisdictional litigation that took place . . .
[and] is the ‘prevailing party’ . . . represented by her jurisdictional appeal from the Eight Circuit
decision affirming the decision of this Court.” Id. Defendant argues the Plaintiff is not a
“prevailing party” as no court has yet ruled on the merits of the discrimination claim, and
therefore awarding attorney’s fees is premature. See ECF. No. 56.
Ordinarily, parties bear their own litigation costs, regardless of outcome. Courts utilize
“‘a general practice of not awarding fees to a prevailing party absent explicit statutory
authority.’” Buckhannon Bd. and Care Home v. W. Va. Dept. of Health and Human Res., 532
U.S. 598, 602 (2001) (quoting Key Tronic Corp. v. United States, 511 U.S. 809, 819 (1994)).
Congress has created such authority through a plethora of statutes, see Buckhannon, 532 U.S. at
602-04 (listing several examples of fee-shifting statutes), including the one cited by the Plaintiff,
the Equal Access to Justice Act (“EAJA”).
The EAJA, passed by Congress in 1980, provided a cost-balancing means for would-be
plaintiffs to contest injustices. See Sullivan v. Hudson, 490 U.S. 877, 883 (1989) (“Congress
passed the EAJA in response to its concern that persons ‘may be deterred from seeking review
of, or defending against, unreasonable governmental action because of the expense involved’”)
(quoting EAJA Pub. L. 96-481, 94 Stat. 2325 (1980)). Cost-balancing is accomplished by feeshifting provisions that authorize awarding attorney’s fees under certain conditions. See, e.g.,
Buckhannon, 532 U.S. at 602-04. Those conditions are: (1) the plaintiff is the “prevailing
party”, and (2) the government’s position was not substantially justified1. See, e.g., 28 U.S.C. §
2412(d)(1)(A).

1

As the Court finds that Plaintiff is not the prevailing party, the Court need not reach
Plaintiff’s argument that the Government’s position was not substantially justified.

In requesting attorney’s fees, Plaintiff claims to “obviously” be the prevailing party
because the Supreme Court reversed the Eighth Circuit and District Court, thus siding with the
Plaintiff’s position regarding jurisdiction. [ECF No. 52 at 2]. Plaintiff, however, misunderstands
the term “prevailing party.”
“Prevailing party” is a term of art within the legal profession, and thus must be given its
specialized meaning. See Buckhannon, 532 U.S. at 615-16 (Scalia, J., concurring) (“‘[W]here
Congress borrows terms of art in which are accumulated the legal tradition . . . [Congress]
presumably knows and adopts . . . the meaning [the term’s] use will convey to the judicial
mind’”) (quoting Morissette v. United States, 342 U.S. 246, 263 (1952)). Accordingly, the term
“prevailing party” is interpreted identically across all fee-shifting statutes, see, e.g., Buckhannon
532 U.S. at 603 n.4 (“We have interpreted these fee-shifting provisions consistently”), including
the EAJA’s provision at issue here. See Ward v. U.S. Postal Service, 672 F.3d 1294, 1298 (Fed.
Cir. 2012) (applying fee-shifting precedents to the EAJA).
That interpretation “requires that a plaintiff receive at least some relief on the merits of
his claim before he can be said to prevail.” Hewitt v. Helms, 482 U.S. 755, 760 (1987) (emphasis
added). “According to the [Supreme] Court, the extent of this relief must rise to the level of
enforceable judgments on the merits . . . creating a material alteration of the legal relationship of
the parties.” E.g., Ward, 672 F.3d at 1297 (citations omitted) (internal quotation marks omitted).
Relief, however, does not require whole-case finality. See Buckhannon, 532 U.S. at 607 (“‘the
phrase ‘prevailing party’ is not intended to be limited to the victor only after entry of a final
judgment following a full trial on the merits’”) (quoting H.R.Rep. No. 94-1558, p.7 (1976)).
Successful interlocutory review can, at times, confer prevailed status on a party since “it
is evident . . . that Congress contemplated the award of fees pendente lite in some cases. But it
seems clearly to have been the intent of congress to permit such an interlocutory award only to a

party who has established his entitlement to some relief on the merits of his claims.” Hanrahan
v. Hampton, 446 U.S. 754, 757 (1980). Therefore, remands within the federal courts typically do
“not constitute relief on the merits for the purposes of the fee-shifting statutes.” Former
Employees of Motorola Ceramic Prod.s v. United States, 336 F.3d 1360, 1364 (Fed. Cir. 2003).
Hence, the Court in Hewitt v. Helms stated that an interlocutory reversal of a 12(b) dismissal by
the district court was “not the stuff of which legal victories are made.” 482 U.S. at 760.
Likewise, here, while the plaintiff “did prevail on these matters in the sense that the
[Supreme Court] overturned several rulings against them in the District Court”, she is not a
prevailing party “in the sense intended” by the fee-shifting provisions. Hanrahan, 448 U.S. at
755. The Supreme Court’s remand “did not guarantee that there would be any legal change in
the relationship between the parties,” Former Employees, 336 F.3d at 1365, since, “as a practical
matter they are in a position no different from that they would have occupied if [Plaintiff] had
simply defeated the [Defendant’s] motion [to dismiss] in the trial court.” Hanrahan, 446 U.S. at
758-59.
The original relief sought by Plaintiff was for the resolution of the merits in her
discrimination lawsuit. The Supreme Court’s holding in Kloeckner made no determination on
those merits. See 133 S.Ct. at 603 (“We granted certiorari to resolve a circuit split on whether an
employee seeking judicial reveiw should proceed in the Federal Circuit or in a district court when
the [Merit Systems Protection Board] MSPB has dismissed her mixed case on procedural
grounds.”) (footnote omitted) (citations omitted). Furthermore, no court, on this subsequent
remand, has made a determination on the merits of the Plaintiff’s discrimination action. Thus,
there has been no prevailing party on those merits. The Court, therefore, denies the Plaintiff’s
Motion for Attorney’s Fees as premature.
Accordingly,

IT IS HEREBY ORDERED that Plaintiff’s Motion for Attorney’s Fees [ECF No. 52] is
DENIED.

So Ordered this 27th day of June, 2013.

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E. RICHARD WEBBER
SENIOR UNITED STATES DISTRICT JUDGE