The opinion of the court was delivered by: RICHEY
Before the Court for consideration is Plaintiff's Revised Motion for Attorneys' Fees under the Equal Access to Justice Act, 28 U.S.C. § 2412 (Supp. V 1981), and the government's opposition thereto. On December 11, 1980, plaintiff filed an action in this court seeking to enjoin an administrative discharge proceeding convened to consider whether to discharge him from the Air Force for committing unlawful homosexual acts with the child of a fellow officer. On December 17, 1980, this Court determined that it lacked subject matter jurisdiction since the case was not ripe for review, and that plaintiff had failed to exhaust administrative remedies. As such, the Court denied plaintiff's Motion for a Temporary Restraining Order and Preliminary Injunction and dismissed the complaint without prejudice. See Order of December 17, 1980. Plaintiff appealed to the D.C. Circuit and this Court denied plaintiff's motion for relief pending appeal. See Order of May 6, 1981. On May 6, 1981, the Secretary of the Air Force issued a final order discharging plaintiff from the Air Force under less than honorable conditions.
Upon consent of the parties, the D.C. Circuit granted a motion by plaintiff Doe to remand the case back to the District Court where the Court accepted a "supplemental complaint" and cross-motions for summary judgment. On February 4, 1982, the Court held that the Air Force acted improperly when it discharged Plaintiff Doe under less than honorable conditions and ordered the Air Force to give plaintiff a general discharge. On February 26, 1982, the Court denied Plaintiff's Motion for Reconsideration.
On May 17, 1982, the Court stayed Plaintiff's Motion for an Award of Attorneys' Fees pending the completion of any appeal. On January 14, 1983, the D.C. Circuit affirmed this Court's February 4, 1982 decision. Judge MacKinnon dissented. See Doe v. Secretary of the Air Force, 701 F.2d 221 (D.C. Cir., 1983). Thereafter, plaintiff filed a motion for an award of attorneys' fees with the Court of Appeals. The D.C. Circuit denied that motion without opinion and subsequently denied plaintiff's motion for clarification and declined to give specific reasons for the denial of the attorneys' fees motion. Judge MacKinnon again dissented, noting that in his view, Doe was not a prevailing party in his appeal, and that the Air Force's position was "substantially justified" in the cross-appeal. Plaintiff filed a revised Motion for Attorney's Fees which is now before the Court for consideration.
Prior to the implementation of the EAJA, 28 U.S.C. § 2412 barred an award of attorneys' fees to the prevailing party in any civil action brought by or against the United States government, unless specifically provided for by statute. The EAJA made significant changes in 28 U.S.C. § 2412 that became effective on October 1, 1981. As amended, § 2412 still retains a general provision barring attorneys' fees and expenses against the federal government except as provided by statute, but adds a significant statutory exception in § 2412(d). That section provides in relevant part:
[A] court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, 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).
SOVEREIGN IMMUNITY DOES NOT BAR AN AWARD OF FEES
The government argues that sovereign immunity bars the award of attorneys' fees because the services were performed prior to October 1, 1981, the effective date of the EAJA. See 5 U.S.C. § 504 note. The government cites no cases interpreting the EAJA to support its position and the Court finds that the weight of case authority supports the conclusion that as of October 1, 1981, this action was "pending." Absent any legislative history to the contrary, an action is "pending" so long as a party's right to appeal has not yet been exhausted or expired. United States For Heydt v. Citizens State Bank, 668 F.2d 444, 446 (8th Cir. 1982); Photo Data, Inc. v. Sawyer, 533 F. Supp. 348, 350-51 (D.D.C. 1982); Berman v. Schweiker, 531 F. Supp. 1149 (N.D. Ill. 1982), aff'd, 713 F.2d 1290 (7th Cir. 1983); Bradley v. School Board, 416 U.S. 696, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974); Knights of the Ku Klux Klan v. East Baton Rouge Parish School Board, 679 F.2d 64, 68 (5th Cir. 1982).
The EAJA's test for recovery of attorney's fees is whether the case was pending on or after October 1, 1981, and not when the fees were incurred. The Supreme Court has previously approved fee awards for work performed before the effective date of the applicable authorizing statute. See Hutto v. Finney, 437 U.S. 678, 694 n.23, 57 L. Ed. 2d 522, 98 S. Ct. 2565 (1978) (Civil Rights Attorney's Fee Awards Act); Bradley v. School Board of the City of Richmond, 416 U.S. 696, 711-21, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974) (Educational Acts Amendments of 1972). On October 1, 1981, this action was clearly pending in the District Court and there is no prohibition in the EAJA against requesting fees for services rendered prior to October 1, 1981, so long as they are part of an adversary adjudication.
PLAINTIFF DOE IS A PREVAILING PARTY UNDER THE EAJA
The government additionally argues that plaintiff Doe is not a "prevailing party" as required under 28 U.S.C. § 2412(d)(1)(A). Recently, the Supreme Court identified the standard for determining whether a party meets this test:
. . . plaintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the ...