Boehms v. Crowell ( 2000 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-60033
Summary Calendar
JOE F. BOEHMS,
Plaintiff-Appellee,
versus
CRAVEN CROWELL, in his official capacity as a member of the Board
of Directors of the Tennessee Valley Authority; BILL KENNOY, in
his official capacity as a member of the Board of Directors of
the Tennessee Valley Authority; JOHNNY HAYES, in his official
capacity as a member of the Board of Directors of the Tennessee
Valley Authority,
Defendants-Appellants.
_________________________________________________________________
Appeal from the United States District Court
for the Northern District of Mississippi, Eastern Division
Civil Docket # 1:94-CV-21-JAD
_________________________________________________________________
September 21, 2000
Before JOLLY, JONES, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Defendants-appellants Craven Crowell, Bill Kennoy, and Johnny
Hayes (“defendants”), all members of the Board of Directors of the
Tennessee Valley Authority, appeal the award of attorney’s fees to
Joe F. Boehms (“Boehms”) under the Equal Access to Justice Act
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR. R.
47.5.4.
(“EAJA”), 28 U.S.C. § 2412(b). This court initially denied an
award of attorney’s fees under the Age Discrimination in Employment
Act (“ADEA”), 29 U.S.C. § 633a (1994), but remanded this case to
the magistrate judge for a determination whether an attorney’s fees
award may stand under the EAJA. Boehms v. Crowell, 139 F.3d 452,
463 (5th Cir. 1998), cert. denied, 525 U.S. 1102 (1999). On remand,
the magistrate judge awarded attorney’s fees and costs in the
amount of $13,072.45. The defendants appeal this award.
The defendants argue that Boehms’ fee petition should be
denied because: 1) Boehms did not specifically plead the EAJA as a
basis for the recovery of attorney’s fees in the complaint; 2) the
attorney’s fee claim is barred by the pretrial order; and 3) the
magistrate judge’s decision to deny defendants’ motion to strike
and to grant Boehms’ petition for attorneys’ fees and costs was an
abuse of discretion. Having carefully reviewed the briefs and
record excerpts, this court finds that the court did sufficiently
follow our previous instruction on remand.
First, the defendants assert that Boehms’ attorney’s fee
request may not stand under the EAJA because he did not plead it
specifically as a basis for a recovery in his complaint. They
disagree with the magistrate judge's determination that Boehms’
"failure to specifically plead for attorney's fees under the EAJA
does not bar his recovery since there is generally recovery for
attorney fees under the ADEA." This point is less than meritless.
-2-
We raised consideration of the EAJA sua sponte in our first review.
Boehms, 139 F.3d at 463 ("EAJA enables trial courts to award
attorney's fees against the federal government in ADEA cases."). By
remanding the case to the magistrate for a determination of the
attorney fee award under the EAJA, we implicitly decided that it
was unnecessary for the plaintiff to have pled this claim
specifically in his complaint. On a second appeal following
remand, the scope of our review is limited to whether the court
below reached its decision “in due pursuance of our previous
opinion and mandate.” Burroughs v. FFP Operating Partners, 70 F.3d
31, 33 (5th Cir. 1995).
Defendants also contend that Boehm’s request for
attorney’s fees under the EAJA should have been denied either
because of his failure to show good cause or to exercise due
diligence by not focusing on the EAJA in his initial pleadings or
because he waived this claim by not asserting it in the agreed
pretrial order. We agree with Boehms that the defendants’
arguments are irrelevant to this appeal. Consideration of the EAJA
claim was in accordance with our instruction.
Finally, the defendants argue that the magistrate judge's
denial of defendants' motion to strike Boehms’ petition for
attorneys' fees and costs was an abuse of discretion. Defendants
contend that the court abused its discretion by failing to make
any findings regarding their motion to strike Boehms’ untimely fee
-3-
petition. After the magistrate judge granted Boehms three
extensions of time to file his petition for attorneys' fees, Boehms
still filed one of his Statements two days out of time, and the
second four days out of time. Defendants also contend that the
court abused its discretion by awarding the fees despite Boehms’
failure to comply with the substantive provisions of Uniform Local
Rule 54.2(B)(3), including consideration of the 12 factors set out
in the Rule “relating to the determination of a reasonable
allowance.”
We review fee awards under the EAJA for abuse of
discretion. Squires-Allman v. Callahan, 117 F.3d 918, 920 (5th
Cir. 1997). “[A] party is entitled to recover attorney's fees
under the EAJA if four requirements are met: 1) it is the
prevailing party, 2) it files a timely fee application, 3) the
position of the government was not substantially justified, and 4)
no special circumstances make an award unjust.” Squires-Allman,
117 F.3d at 920; 28 U.S.C. S 2412(d). The court adequately
complied with our direction on remand. In its Order Granting
Attorney Fees, the court stated that, “there is no sound policy
reason for denying the award of attorney fees against the
government.” In its final order awarding fees, the court stated
that “[i]n an effort to resolve this fee issue and conclude the
case, the $24,389 sought by the plaintiff for attorney fees will be
reduced by 50% to account for the unsuccessful portions of
plaintiff’s case.” Based on the trial court’s review of the
-4-
parties’ briefs concerning attorneys’ fees and its familiarity with
the background of the case, it had sufficient information to
determine whether and how much to award in fees and costs. The
court did not abuse its discretion in entering a very modest fee
award.
For these reasons, the judgment is AFFIRMED.
-5-