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Dunn v. United States

October 21, 1985

JANIS DUNN; WILLIAM DUNN; ANTHONY AMOROSE; STELLA BADIA; SAMUEL W. BROWN AND EVELYN BROWN, HIS WIFE; DEBRA BURGESS; LOUIS KENNETH DAVIS, SR. AND HELEN H. DAVIS, HIS WIFE; FRANK J. DELOST AND MARIE K. DELOST, HIS WIFE; TONY DELOST AND JEAN B. DELOST, HIS WIFE; ROBERT E. DUNN AND DOROTHY C. DUNN, HIS WIFE; ROBERT W. DUNN AND KATHRYN DUNN, HIS WIFE; AUDREY FARSON; JANE B. HEIRENDT; M. MARJORIE HERRON; JOHN R. HILDERBRAND, SR.; EDWARD T. LIPTAK AND JACQUELINE LIPTAK, HIS WIFE; JACQUELINE LIPTAK, AS CUSTODIAN FOR EDWARD LIPTAK, DONNA G. MACK; ELIZABETH MAFFIO; PATRICIA MALARDIE; EDWARD J. MARTON AND JUANITA MARTON; HIS WIFE; EST BETTY MCGANT, THRU EXEC. ALEXANDER MCGANT; BARBARA L. PROWITT; ELIO SPINOSO AND ISABELLA M. SPINOSE, HIS WIFE; MICHAEL TOMECSKO AND PEGGY TOMECSKO, HIS WIFE; GERALD H. WAGNER AND ROSANN WAGNER, HIS WIFE; SOPHIE WINSECK; ELMER J. YOUNG, SR., AND FRANK R. ZUZEK
v.
THE UNITED STATES OF AMERICA; UNITED STATES DEPARTMENT OF ENERGY AND THE HONORABLE JAMES B. EDWARDS, ITS SECRETARY; UNITED STATES DEPARTMENT OF DEFENSE AND THE HONORABLE CASPER WEINBERGER, ITS SECRETARY; UNITED STATES NUCLEAR REGULATORY COMMISSION AND JOSEPH M. HENDRIE, ITS CHAIRMAN; UNITED STATES DEPARTMENT OF PUBLIC HEALTH & WELFARE AND THE HONORABLE RICHARD A. SCHWEIKER, ITS SECRETARY; UNITED STATES ENVIRONMENTAL PROTECTION AGENCY AND ANN MCGILL GORSUCH, ITS ADMINISTRATOR; THE COMMONWEALTH OF PENNSYLVANIA AND THE HONORABLE RICHARD A. THORNBURGH, ITS GOVERNOR; AND THE PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL RESOURCES AND PETER DUNCAN, ITS SECRETARY, JANIS DUNN, ET AL., APPELLANTS



ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA - PITTSBURGH (D.C. Civil No. 82-0437)

Author: Gibbons

BEFORE; ADAMS, GIBBONS and WEIS, Circuit Judges

Opinion OF THE COURT

Janis Dunn and others, the named plaintiffs in a class action against several federal agencies, appeal from an order dismissing their petition for the award of counsel fees pursuant to the Equal Access to Justice Act, 28 U.S.C. § 2412(d) for lack of jurisdiction. The petition was filed in a case in which a consent judgment was entered on May 23, 1984. A verified fee petition was filed on June 22, 1984. The district court dismissed for lack of jurisdiction because the petition, filed on the last day of the time period specified in 28 U.S.C. § 2412(d)(1)(B) (1982), was not sufficiently specific. We reverse and remand for further proceedings.

I.

The underlying action for injunctive relief and damages arises out of radiation contamination in the Canonsburg, Pennsylvania area near a uranium processing site. The plaintiff class members are residential landowners near the site. The defendants include the United States and several federal agencies, the Department of Energy, the Environmental Protection Agency, the Nuclear Regulatory Commission, the Department of Defense, and the Department of Health and Human Services. The class contended that radiation contamination at the site amounted to an actual nuisance which should be corrected by remedial action. Settlement discussions resulted in a consent decree. In the consent decree the plaintiffs reserved the right to apply for fees pursuant to the Equal Access to Justice Act, and the federal defendants reserved the right to oppose any award of fees and expenses. As noted above, a verified petition seeking such fees was filed on June 22, 1984, the thirtieth day following the entry of the consent decree.

The Equal Access to Justice Act, although repealed by Section 204(B) of Pub. L. 96-481 effective October 1984, governs this action, since it was pending prior to the effective date of the repeal.*fn1 In relevant part the Act provides:

A party seeking an award of fees shall, within thirty days of final judgment in the action, submit to the court an application for fees and other expenses which shows that the party is a prevailing party and is eligible to receive an award under this subsection, and the amount sought, including an itemized statement from an attorney or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses are computed. The party shall also allege that the petition of the United States was not substantially justified.

28 U.S.C. § 2412(d)(1)(B)(1982).

The petition filed with the court on June 22, 1984 alleged that the action had been concluded on May 23, 1984 by the entry of a consent judgment, that the petitioners were prevailing parties in the action, and that the position of the federal governmental had not been substantially justified. It alleged that no petitioners net worth exceeded one million dollars, and thus established that the petitioners were eligible, under 28 U.S.C. § 2412(d)(a)(B) (1982), to receive an award.*fn2 It alleged as well, that "the attorneys' fees requested and a description of services rendered by the law firm of Mansmann, Cindrich & Huber." Attached to the petition is an affidavit by J. Jerome Mansmann, which alleges:

1. The factual allegations set forth in plaintiffs' petition for Attorneys' Fees, Expenses, and Costs are true and correct to the best of my knowledge, information and belief.

2. The time and costs expended, as represented in this petition, are drawn from the financial records of my firm, and are necessarily incurred in order to properly represent the plaintiffs' interests.

3. Plaintiffs have neither received nor applied for, and do not intend to apply for, reimbursement of the costs of items listed in the ...


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