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BLITZ v. DONOVAN

August 29, 1983

Dorothy BLITZ, Plaintiff,
v.
Raymond J. DONOVAN, Defendant



The opinion of the court was delivered by: PARKER

 BARRINGTON D. PARKER, District Judge:

 Plaintiff, Dorothy Blitz, seeks an award of attorney's fees and expenses under the Equal Access to Justice Act (Act) 28 U.S.C. § 2412(d). Ms. Blitz, a Virginia resident, challenged the constitutionality of an amendment to Public Law 97-92, *fn1" known as the "Blitz Amendment", which prohibited distribution of Comprehensive Employment and Training Act (CETA) funds to anyone who publicly advocates, or within the last five years has advocated, the violent overthrow of the government of the United States. The Employment Commission of the State of Virginia relied on the amendment to deny Ms. Blitz an opportunity to participate in the CETA program on the grounds that she violated a regulation of the Commission which mandated that all CETA participants declare that they do not espouse the violent overthrow of the federal government.

 On May 14, 1982, this Court granted plaintiff's motion for summary judgment holding that the "Blitz Amendment" violated basic first amendment principles. Blitz v. Donovan, 538 F. Supp. 1119, 1124 (D.D.C.1982). Ms. Blitz was then reinstated into the CETA program which she completed on June 11, 1982. On January 10, 1983, the United States Supreme Court vacated the decision with instructions to dismiss the complaint as moot. 459 U.S. 1095, 103 S. Ct. 711, 74 L. Ed. 2d 943 (1983). *fn2" No reasons were given for the dismissal but at that time plaintiff had already completed her training course *fn3" and funding for the program had terminated. *fn4"

 This memorandum opinion will focus on and deal with the government's contention that in the course of this litigation its position was substantially justified and on the support and reasons provided by plaintiff's attorney in his request for fees and expenses.

 A.

 The Equal Access to Justice Act was enacted to enable "relatively impecunious private parties to challenge unreasonable or oppressive government behavior by relieving such parties of the fear of incurring large litigation expenses." Spencer v. National Labor Relations Board, 712 F.2d 539 at 549 (D.C.Cir.1983). The Act authorizes the award of fees and expenses to the "prevailing party . . . unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).

 It is the government's burden to prove that its position was "substantially justified." Spencer, at 557; Nunes-Correia v. Haig, 543 F. Supp. 812, 817 (D.D.C.1982). *fn5" The government would have this Court find that its position was substantially justified because there was a genuine dispute over whether Ms. Blitz was entitled to CETA benefits, and because the defense it asserted was not frivolous. *fn6" These criteria have been rejected by both Spencer, at 559 and Nunes-Correia, at 817. At the very least, the government's position must have "a reasonable basis both in law and fact." and the court in Spencer, at 559 and Nunes-Correia at 817, have interpreted the legislative history of the Act to indicate that a slightly stricter standard than reasonableness is appropriate.

 The government, in opposing a fee award, advances two arguments, first, that the District Court was without jurisdiction because plaintiff had not exhausted her administrative remedies; second, that the Blitz Amendment could (should) be narrowly construed so as to preserve its constitutionality. Neither argument was substantially justified. Given the importance and validity of plaintiff's constitutional challenge, this Court rejected the exhaustion claim. Blitz, 538 F. Supp. at 1125 citing Hark v. Dragon, 611 F.2d 11, 14 (2d Cir.1979). This Court also found that the defendant's attempt to narrowly interpret this facially unconstitutional statute was void of any reasonable basis and that the Secretary of Labor's interpretation was unsupported, and inconsistent with the legislative history of the amendment.

 Based on the claim that its constitutional argument was "novel but credible," the government contends that the argument qualifies under the "special circumstance" provision, and thus an award of fees is unwarranted. Government's Brief at 6. In Nunes-Correia, 543 F. Supp. at 820, Judge Bryant of this District Court found that the special circumstance provision of the Act was not a stamp of approval for "novel" government arguments. The provision does require that due attention be paid to theories which are new or not commonly accepted, but such arguments must still satisfy the substantial justification requirement. Id.

 In sum, none of the reasons advanced by the government satisfy this Court that its position during this litigation was substantially justified.

 B.

 In Concerned Veterans our Court of Appeals determined the standards an attorney must meet to sustain a request for attorney's fees. National Association of Concerned Veterans v. Secretary of Defense, 219 U.S. App. D.C. 94, 675 F.2d 1319 (D.C.Cir.1982). Among other things, the Court determined that the primary objective was to establish the "lodestar" -- the number of hours expended multiplied by the prevailing community rate. Of major concern in this proceeding is the computation of the lodestar.

 In a footnote to its opposition brief, the government argues that plaintiff's application does not satisfy the Concerned Veterans criteria and thus an award of attorney's fees is not justified. Government's Brief at 1, n. *. Specifically, it argues that the number of hours for which plaintiff's counsel seeks reimbursement is not based on contemporaneous time records but rather that it is reconstructed. But at best this would reduce an award -- not eliminate it. "Where the documentation of hours is inadequate, the district court may reduce the award accordingly." Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983) (emphasis supplied). Plaintiff's counsel concedes that he did not keep contemporaneous time records. However, in Concerned Veterans, 675 F.2d at 1327, the court concluded that the purpose of such time records is to enable the trial court to make a just determination and provide adequate and sufficient information to consider the validity of the claim. Counsel's records do in fact provide the necessary information upon which a reasonable determination can be based. The records ...


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