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July 13, 1982

Regina M. NUNES-CORREIA, Plaintiff,
Alexander HAIG, et al., Defendants

The opinion of the court was delivered by: BRYANT


This case is now before the court on plaintiff Regina M. Nunes-Correia's request for attorneys' fees and expenses under the Equal Access to Justice Act of 1980 (the "Act"), Pub.L.No.96-481, 94 Stat. 2327 (1980), 28 U.S.C. § 2412 (1976 & Supp. IV). For the reasons set forth below, the court finds that the position of the government in this case was not substantially justified, and grants Mrs. Nunes-Correia's request for fees and expenses. *fn1"


 Mrs. Nunes-Correia brought this action in 1974. She claimed she was illegally forced to resign from her career in the Foreign Service of the Department of State (the "Department") on the basis of unconstitutional regulations prohibiting employment to a person married to an alien who did not intend to become a United States citizen. Mrs. Nunes-Correia further alleged that she was prohibited reemployment based on the unconstitutional alien-spouse regulations. Mrs. Nunes-Correia sought reinstatement, full backpay, and all related benefits.

 During the first three years of this litigation, the government took the position that the alien-spouse regulations were constitutional. By mid-1977, the State Department had rescinded most of the regulations. The government then moved to dismiss the case as moot; and argued in the alternative that even if the alien-spouse regulations were unconstitutional, Mrs. Nunes-Correia was not entitled to relief because her resignation and subsequent inability to obtain reemployment in the Foreign Service resulted from her unavailability for world-wide service.

 The court rejected the government's mootness claim in 1979 and found that most of the alien-spouse regulations impermissibly infringed upon the constitutionally protected right to marry. Memorandum and Order, August 7, 1979 ("1979 Order"). On November 9, 1981, the court determined that the regulations, not Mrs. Nunes-Correia's unavailability for world-wide service, were the basis for Mrs. Nunes-Correia's forced resignation and the Department's refusal to rehire her. Memorandum and Order, November 9, 1981 ("1981 Order"). The court granted Mrs. Nunes-Correia's motion for summary judgment.


 Litigants who seek attorneys' fees awards under the Equal Access to Justice Act must satisfy a number of requirements imposed by the Act. The parties agree that this is a civil action against the government in which fees may be awarded; that Mrs. Nunes-Correia is a "prevailing party"; and that she meets the financial eligibility requirements of the Act. However the government contends that the Act does not authorize awards of attorneys' fees incurred prior to October 1, 1981; and that even if it does, Mrs. Nunes-Correia is not entitled to fees because the government's position was "substantially justified" and there are special circumstances mitigating against a fee award in this case. The court will address each of these issues in turn.


 Section 208 of Pub.L.96-481 provided that: "This title and the amendments made by this title (amending, inter alia, 28 U.S.C. § 2412) shall take effect on October 1, 1981, and shall apply to ... any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after such date." 94 Stat. 2330 (1980) (see 28 U.S.C. § 2412 note and 5 U.S.C. § 504 note). Before the passage of the Equal Access to Justice Act, the doctrine of sovereign immunity barred fee awards against the United States absent clear or express statutory authority to the contrary. Alyeska Pipeline Co. v. Wilderness Society, 421 U.S. 240, 267-268, 95 S. Ct. 1612, 1626-1627, 44 L. Ed. 2d 141 (1975); NAACP v. Civiletti, 197 U.S. App. D.C. 259, 609 F.2d 514, 516 (D.C.Cir.1979), cert. denied, 447 U.S. 922, 100 S. Ct. 3012, 65 L. Ed. 2d 1114 (1980). The government asserts that since no language in the Act expressly and unequivocally waives sovereign immunity retroactively, the policy against implied waivers of federal sovereign immunity precludes courts from awarding fees incurred before October 1, 1981. See Lehman v. Nakshian, 453 U.S. 156, 160-161, 101 S. Ct. 2698, 2701-2702, 69 L. Ed. 2d 548 (1981); Brookfield Construction Co., Inc. v. United States, 228 Ct. Cl. 551, 661 F.2d 159 (Ct.Cl.1981); Nibali v. United States, 225 Ct. Cl. 8, 634 F.2d 494, 497 (Ct.Cl.1980); Fitzgerald v. United States Civil Service Commission, 180 U.S. App. D.C. 327, 554 F.2d 1186, 1189 (D.C.Cir.1977).

 While a number of courts have awarded fees for attorneys' services rendered before October 1, 1981, see Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir. 1982); Kinzley v. United States, 228 Ct. Cl. 620, 661 F.2d 187, 193 (Ct.Cl.1981); Matthews v. United States, 526 F. Supp. 993, 1008 (M.D.Ga.1981); Muth v. Marsh, 525 F. Supp. 604, 609 (D.D.C.1981) ("(T)his action was obviously pending on October 1 and plaintiff may therefore apply for fees and costs * * * should he be the "prevailing party' in this court"), only a handful of courts have addressed the retroactivity issue directly. In Photo Data, Inc. v. Sawyer, 533 F. Supp. 348 (D.D.C.1982), appeal docketed, No. 82-1644 (D.C.Cir. June 9, 1982), Judge Penn, relying on the principle that statutes should be given their plain, clear, and common readings, concluded that "(t)he Act explicitly applies to cases pending on October 1, 1981, and nothing in the legislative history suggests that it should be interpreted to apply only to that part of a case pending on October 1, 1981 that occurs on or after that date." Id. at 351. *fn2" In Berman v. Schweiker, 531 F. Supp. 1149 (N.D.Ill.1982) and Wolverton v. Schweiker, 533 F. Supp. 420 (D.Idaho 1982), courts construed the word "pending" in the statute to reach a similar conclusion.

 However, in Commodity Futures Trading Commission v. Rosenthal & Co., 537 F. Supp. 1094 (N.D.Ill.1982), the court pointed out that the "take effect" clause of the Act's effective date provision is surplusage unless it is read to apply to the "fees ... incurred" language. Under that construction, the Act's allowance would extend only to "fees ... incurred" after the Act "take(s) effect on October 1, 1981." Relying on the rules that statutes should be read to give meaning to all their provisions, and that waivers of sovereign immunity should be construed narrowly, the court suggested that the doctrine of sovereign immunity precludes retroactive application of the Act, but reserved judgment on the retroactivity issue pending further briefing.

 As the CFTC v. Rosenthal court acknowledged, Photo Data and Berman exemplify a "reasonable," and "perhaps even the normal" reading of the Act. 537 F. Supp. at 1096. The alternative construction is so strained that this court inclines to hold that the plain language of the statute explicitly authorizes fees for pre-October 1, 1981 work. That holding is, however, unnecessary because the Congressional Budget Office ("CBO") cost estimates, which the CFTC court stated it wished to consider in greater depth, demonstrate that Congress clearly intended the Act to apply retroactively.

 According to the government, had Congress expected parties to be able to recover pre-October 1, 1981 fees in pending cases, Congress would have forecasted substantially greater expenditures during the Act's first year, when old cases such as the one here with large accumulated legal fees were being decided or settled, than in the Act's second or subsequent years. The statistical reasoning underlying this argument is flawed. Since, ceteris paribus, the distribution of long-lived and short-lived cases terminated in 1982 and each subsequent year will remain constant, ...

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