Ouandji v. Hedglen et al

Filing 60

ORDER granting 49 United States Motion to Dismiss Counterclaim. Signed by Honorable Robin J. Cauthron on 05/02/18. (wh)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
STEVEN ADRIEN OUANDJI,
Plaintiff,
vs.
VINCENT HEDGLEN, and the
UNITED STATES OF AMERICA,
ex rel. UNITED STATES POSTAL
SERVICE,
Defendants.

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No. CIV-16-1303-C

MEMORANDUM OPINION AND ORDER
Defendant has filed a Motion to Dismiss Counterclaim. Therein, Defendant asks
the Court to dismiss the Counterclaim it filed pursuant to Fed. R. Civ. P. 41(a)(2). Plaintiff
objects, arguing that because the counterclaim sought recovery for property damage he
may be entitled to attorneys’ fees pursuant to 12 Okla. Stat. § 940, as the prevailing party
on that claim.
Defendant directs the Court to Hull by Hull v. United S, 971 F.2d 1499 (10th Cir.
1992), in support of its argument that Plaintiff cannot recover attorneys’ fees in this case.
Plaintiff argues this case is inapposite as it addresses recovery of fees between clients and
attorneys under the Federal Tort Claims Act (“FTCA”). Plaintiff’s analysis of the case is
incorrect. The Tenth Circuit quoted the Supreme Court stating: ‘“Except to the extent it
has waived its immunity, the Government is immune from claims for attorney’s fees.’”
Hull, 971 F.2d at 1509, quoting Ruckelshaus v. Sierra Club, 463 U.S. 680, 685 (1983).
Thus, the Circuit recognized that absent a specific waiver, the government is immune from

fees. The Eleventh Circuit has carefully explained that no such waiver can be found in
the FTCA.
The FTCA does not expressly provide for attorneys’ fees against the
United States. The only mention of attorneys’ fees within the FTCA occurs
in Section 2678, which prohibits an attorney from charging fees in excess of
25 percent of the judgment. Section 2678 was amended in 1966, at which
time Congress raised that limit on attorneys’ fees from 20 percent to the
present level of 25 percent. The legislative history of that amendment
indicates that its purpose was to “assure competent representation and
reasonable compensation” in matters litigated under the FTCA. S.Rep. No.
1327, 89th Cong., 2d Sess. (1966), reprinted in 1966 U.S.Code Cong. &
Ad.News 2515, at 2520. The increase was intended to encourage attorneys
to take claims under the FTCA, and to bring attorneys’ fees under that act
“more nearly in line with those prevailing in private practice.” Id.
If Congress had intended at the time of the 1966 amendment to
encourage attorneys to bring FTCA claims not by increasing the percentage
of the judgment available to attorneys but, instead, by providing for an award
of attorneys’ fees from the United States, Congress could easily have done
so. However, the legislative history implies that Congress viewed FTCA
claims as typically involving contingent fee arrangements. The 1966
amendment was designed to bring the permissible contingent fee more nearly
in line with that which prevailed in tort claims against private parties. The
FTCA does not contain the express waiver of sovereign immunity necessary
to permit a court to award attorneys’ fees against the United States directly
under that act.
Joe v. United States, 772 F.2d 1535, 1536-37 (11th Cir. 1985).
Plaintiff suggests that 28 U.S.C. § 2412(b) provides statutory evidence of a waiver
of sovereign immunity. However, the Eleventh Circuit rejected that argument in Joe:
We hold that the term “statute,” within the meaning of 28 U.S.C.A.
§ 2412(b), refers only to federal statutes. Thus, the attorneys’ fees provision
applicable to medical malpractice cases under Florida law does not entitle
appellant to an award of attorneys’ fees from the United States.
Joe, 772 F.2d 1537.
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Because the United States has not waived its sovereign immunity, Plaintiff cannot
recover attorneys’ fees on the Counterclaim even if he is determined to be the prevailing
party. Because that is the only basis offered in objection to the request for dismissal, the
request will be granted.
For the reasons set forth herein, United States’ Motion to Dismiss Counterclaim
(Dkt. No. 49) is GRANTED.
IT IS SO ORDERED this 2nd day of May, 2018.

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