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June 29, 1984

JOHN DOE, Plaintiff,

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. *fn1"

 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). *fn2"

  The government challenges plaintiff's right to attorneys' fees on several grounds including assertions that the EAJA is inapplicable because this case was not "pending" on October 1, 1981, that the plaintiff is not a "prevailing party" and that the government's position was "substantially justified". *fn3" The Court addresses these arguments in turn.


 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). *fn4" 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. *fn5"


 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 benefit the parties sought in bringing suit.

 Hensley v. Eckerhart, 461 U.S. 424, 103 S. Ct. 1933, 1939, 76 L. Ed. 2d 40 (1983), quoting Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978); Environmental Defense Fund v. Environmental Protection Agency, 230 U.S. App. D.C. 264, 716 F.2d 915, 919 (D.C. Cir. 1983). *fn6" Plaintiff Doe meets this test. Plaintiff alleged that his discharge from the Air Force violated his rights under the Administrative Procedure Act and the Due Process Clause of the Fifth Amendment to the Constitution. He also alleged that the imposition of less than honorable discharge violated Air Force regulations. See Doe v. Secretary of the Air Force, 563 F. Supp. 4, Memorandum Opinion dated February 4, 1982, at p. 1. Although this Court found that the Air Force did not violate Does's due process rights, the Court also found that the discharge of the plaintiff by the Air Force under other than honorable conditions was improper. Id. at p. 6. The Court held that the Air Force had made no showing that Doe's misconduct was service-related, and ordered that Doe be given a "general" discharge rather than one "under other than honorable conditions." Id.

 Although the Court did not order the Air Force to grant plaintiff Doe an "Honorable Discharge," as Doe requested, the Court clearly granted Doe some of the relief he sought by bringing suit when the Court held the discharge on other than honorable conditions to be invalid and improper. Indeed, "a party may be deemed prevailing . . . even if he does not ultimately prevail on all issues." S.Rep. No. 253, 96th Cong., 1st Sess. 7 (1979); H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S. Code Cong. & Ad. News 4953, 4990; see H.R.Rep. No. 1434, 96th Cong., 2d Sess. 21-2 (1980) (conference report). As such, under the circumstances presented in this case, plaintiff Doe was a "prevailing party" as that term is used in the EAJA.


 Despite the fact that plaintiff Doe was a "prevailing party" in a case "pending" on or after October 1, 1981, he is ineligible for an award of attorney's fees and expenses if the government persuades the Court that its position in this case was "substantially justified." 28 U.S.C. § 2412(d)(1)(A); Spencer v. NLRB, 229 U.S. App. D.C. 225, 712 F.2d 539, 557 (D.C. Cir. 1983)(burden is on government to show that position was substantially justified). The legislative history makes clear that this burden requires the government to meet a test slightly more stringent than one of reasonableness. Cinciarelli v. Reagan, 234 U.S. App. D.C. 315, 729 F.2d 801, 804 (D.C.Cir. 1984); Spencer, 712 F.2d at 558 (discussing legislative history). In this circuit, the "position" that the government must show is substantially justified is its litigation position, and not the pre-litigation conduct giving rise to the lawsuit. Del Manufacturing Co. v. United States, 232 U.S. App. D.C. 454, 723 F.2d 980, 983 (D.C. Cir. 1983).

 Congress and the D.C. Circuit instruct this Court that "where the Government can show that its case had a reasonable basis in both law and fact, no award will be made." H.R. Rep. No. 1418, 96th Cong., 2d Sess. 10, reprinted in U.S.Code Cong. & Admin.News 1980 p. 4953, 4989; Cinciarelli, 729 F.2d at 805. Such a standard, however, "should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case. Nor, in fact, does the standard require the Government to establish that its decision to litigate was based on a substantial probability of prevailing." H.R.Rep. No. 1418, at 10-11.

 In Spencer v. NLRB, 229 U.S. App. D.C. 225, 712 F.2d 539 (D.C. Cir. 1983), the D.C. Circuit identified three factors for a court to examine in determining whether the government's position was "substantially justified": the clarity of the governing law, the length/complexity of the litigation and the consistency of the government's position. *fn7" After full examination of the pleadings and the record in this case, it appears to the Court that the real issue here is whether the Government was "substantially justified" in arguing to the Court that this case was somehow distinguishable from the case of Roelofs v. Secretary of the Air Force, 202 U.S. App. D.C. 307, 628 F.2d 594 (D.C. Cir. 1980). In Roelofs, the Court held that for a discharge under less than honorable conditions, the conduct forming the basis of the discharge must be "service-related." Id. at 598.

 At the outset, it is important to note that neither party was entirely correct in their interpretations of the Roelofs case when compared to the final decision of this Court which was affirmed by the Court of Appeals. The Court did not adopt the Government's view that Roelofs permitted the Air Force to award plaintiff an other than honorable discharge for his commission of unlawful homosexual acts with a child. The Court also did not adopt plaintiff's view that the Air Force must award him an honorable discharge. The judicial determination was a "middle ground", representative of the reasonableness of the arguments of interpretation on both sides of the case. The government argued that the commission of homosexual acts with a child was service-related because it affected plaintiff's ability to perform effectively as an officer, because it worsened his relationship with his supervisor, and caused animosity among personnel since the child was a sibling of another officer. In addition, the government argued that homosexuality was per se incompatible with military service and thus inherently service-related.

 These arguments are substantially justifiable arguments to make in light of Roelofs. The application of the law as set out in Roelofs is susceptible to varying degrees of application and interpretation. See e.g., Doe v. Secretary of the Air Force, 563 F. Supp. 4 (D.C. Cir. 1983). Furthermore, the impermissible conduct existing in this case clearly involves a military serviceman's relationship with his fellow officers. It is unclear to what extent the conduct in Roelofs infected the serviceman's relationship with his fellow officers. Nevertheless, because the Court finds the government's position to be substantially justified, plaintiff's application of attorneys' fees is denied. An order in accordance with the foregoing will be entered on even date herewith.


 Upon consideration of Plaintiff's Revised Motion for Attorney's Fees, the government's opposition thereto, and the entire record herein, and for the reasons set forth in the accompanying opinion of even date herewith, it is hereby

 ORDERED that plaintiff's motion be, and the same is, hereby denied.

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