ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA.
Seitz, Chief Judge, Adams and Garth, Circuit Judges.
Gregory J. Dougherty (Dougherty) and John F. Lehman, Secretary of the Navy ("Secretary") appeal from orders of the United States District Court for the Eastern District of Pennsylvania, filed May 12 and July 9, 1982, granting, in part, Dougherty's petition for an award of attorney's fees pursuant to the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412 (Supp. IV 1980). Dougherty contends that the district court abused its discretion by granting him an award of $2,130.37, rather than the $14,197.50 Dougherty had sought. The Secretary, on the other hand, contends that the district court erred, as a matter of law, in awarding Dougherty attorney's fees at all.
We dismiss Dougherty's appeal for lack of jurisdiction. Further, we hold that the Secretary, even though not succeeding in full on the merits, was "substantially justified" in opposing Dougherty's claim. We, therefore, reverse the district court's order granting Dougherty attorney's fees.
On November 22, 1980, when Dougherty was in his final year at the United States Naval Academy ("Academy"), he and four other male midshipmen engaged in sexual relations with a female midshipman in Dougherty's room, in violation of Academy disciplinary rules. As a result of this incident, the Academy filed charges against Dougherty. After consulting with his military counsel, Dougherty waived his right to an Administrative Conduct Hearing and, on December 3, 1980 pleaded guilty to charges of conduct unbefitting an officer of the Naval Service and of aiding, counseling, and procuring the commission of an offense. Dougherty v. Lehman, 688 F.2d 158, 159 (3d Cir. 1982).
By an order dated January 14, 1981, the Secretary discharged Dougherty, as well as another male midshipman also involved in the incident, from the Academy. The Secretary further ordered both men to report to the United States Naval Base in Washington, D.C. by 9 A.M., January 15, 1981 for assignment to the fleet as enlisted men (App. at 4), for a period of three years. The woman involved was allowed to resign without an active duty order. The remaining male midshipmen were permitted to remain at the Academy, but were otherwise disciplined. Id., 688 F.2d at 160.
On January 14, 1981, hours before Dougherty was required to report for active duty, Dougherty filed suit in the United States District Court for the Eastern District of Pennsylvania, seeking a temporary restraining order and injunctive relief alleging a violation of his constitutional due process rights, as well as a failure to follow the statutory requirements attending discharge. Following trial on June 2, 1981, the district court upheld the Secretary's right to discharge Dougherty from the Academy.*fn1 The court, however, enjoined the Secretary from ordering Dougherty to active duty. An appeal from the Secretary followed, and this court affirmed the district court, but on different grounds. Dougherty v. Lehman, supra, 688 F.2d 158, 161 n.2 (3d Cir. 1982). Neither the district court nor this court, when it reviewed the district court's actions, reached Dougherty's constitutional claim. Rather, the disposition in both courts rested on statutory grounds, albeit on different theories.
On December 29, 1981, Dougherty submitted a fee petition which had been amended to include details of time and costs. This schedule was prepared, in part, from attorney Malloy's reconstructed time records.*fn2 It recited an aggregate of 167.9 hours expended by these attorneys over the course of the proceeding and sought $14,197.50.
By Memorandum Opinion and Order filed May 12, 1982 the district court granted Dougherty's motion but reduced the amount claimed to an award of $2,130.37 in total. First, the district court held that the provisions of the Equal Access to Justice Act were applicable because Dougherty's case was "pending" on October 1, 1981.*fn3 See P.L. 96-481, 94 Stat. 2330, § 208.*fn4 The court also found that Dougherty was a prevailing party within the meaning of the Act.
The district court, following the procedures established in Lindy I, and Lindy II,*fn5 then examined the time sheets of the attorneys and reduced the time allowable to Malloy to 25.3 hours. Stouffer's allowable time was reduced to 9.2 hours. The district court disallowed payment for the services of a third attorney. Out-of-pocket costs were disallowed because "the itemization does not show that the costs were directly related to the prevailing issue." The court then further reduced the award by 25% because of its estimate of the quality of the attorney's work product.
On May 17, 1982 the Secretary filed a motion for reconsideration, arguing that reconsideration was necessary primarily because the Secretary's position was "substantially justified," within the meaning of the EAJA, 28 U.S.C. § 2412. However, before the court ruled on the Secretary's reconsideration motion, Dougherty, on June 7, 1982, filed a notice of appeal from the May 12, 1982 order.
On June 9, 1982, the district court filed a supplemental decision affirming its Order of May 12, 1982. The court found that the Secretary had failed to meet its burden of proving that its position was substantially justified, as required under the Act. Thereafter, on July 9, 1982, the Secretary filed his notice of "cross-appeal."
On appeal, Dougherty argues that the district court abused its discretion in setting the amount of attorney's fees and costs to be awarded Dougherty, and that the court's calculation of the amount of the fees was arbitrary and contrary to the law of this circuit. We do not reach the merits of this argument. Because the only notice of appeal that Dougherty filed, was filed from the May 12, 1982 order, and because that order was not appealable once a motion for reconsideration was properly filed, Dougherty's notice of appeal with respect to the May 12 order must, therefore, be deemed a nullity. Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 103 S. Ct. 400, 403, 74 L. Ed. 2d 225 (1982); see Fed. R. App. P. 4(a)(4) (1982). Because Dougherty did not file a timely notice of appeal after the district court's June 9, 1982 order was filed, we lack jurisdiction over Dougherty's appeal.
Prior to the Supreme Court's decision in Griggs, supra, this court had interpreted Fed. R. App. P. 4(a)(4)*fn6 to deny jurisdiction only where an appellee could demonstrate that the premature filing of a notice of appeal by the appellant resulted in prejudice to the appellee. See Richerson v. Jones, 572 F.2d 89 (3d Cir. 1978); cf. Cape May Greene, Inc. v. Warren, 698 F.2d 179 (3d Cir. 1983). Indeed, this court reiterated this construction of Fed. R. App. P. 4(a)(4) in Griggs v. Provident Consumer Discount Corp., 680 F.2d 927 (3d Cir.) rev'd 459 U.S. 56, 103 S. Ct. 400, 74 L. Ed. 2d 225 (1982). In that case we accepted jurisdiction despite the fact that the appellant had filed his notice of appeal while a Motion for Reconsideration and a Motion to Alter, Amend and Vacate Judgment (Fed. R. Civ. P. 59(e)) was pending before the district court. Id., 680 F.2d at 929-30. We concluded that the appellant's notice of appeal had been prematurely filed under Rule 4(a)(4), "but though a premature notice of appeal is subject to dismissal, we have generally allowed appellant to proceed unless the appellee can show prejudice resulting from the premature filing of the notice. [citations]. . . . In our case, the Griggses have shown no prejudice by the premature filing of a notice of appeal." Id., 680 F.2d at at 929 n.2; see discussion in Griggs, supra, 103 S. Ct. at 402-03; Tose v. First Pennsylvania Bank, N.A., 648 F.2d 879, 882 n.2 (3d Cir.), cert. denied, 454 U.S. 893, 102 S. Ct. 390, 70 L. Ed. 2d 208 (1981); Hodge v. Hodge, 507 F.2d 87, 89 (3d Cir. 1975).
In reversing this court's judgment in Griggs, supra, the Supreme Court emphasized that, after the 1979 Amendments to the Rules, it was no longer permissible for the district court to retain jurisdiction to decide post trial motions after a notice of appeal was filed because of the very real danger that both the district court and the court of appeals would have the power to modify the same judgment simultaneously. It noted that the "1979 Amendments avoided that potential conflict by depriving the courts of appeals of jurisdiction in such situations." Griggs, supra, 103 S. Ct. at 403. The Supreme Court, therefore, held that a notice of appeal filed during the pendency of a Rule 59 motion "was not merely ...