The opinion of the court was delivered by: STANLEY SPORKIN
MEMORANDUM OPINION AND ORDER
This case comes before the Court on Defendant Kenneth L. Turner's Application for Attorneys' Fees, Other Expenses and Bills of Costs. Turner, a Federal Protective Service police officer at the time of the events in this case, seeks recovery of his fees and costs from the United States pursuant to the Equal Access to Justice Act ("EAJA"). See 28 U.S.C. § 2412(d); see also Fed. R. Civ. P. 54 (d); Local Rule 214. The Court finds that Turner is entitled to a portion of the fees and costs for which he has petitioned under EAJA. Therefore his petition will be granted against the United States in the amount of $ 60,447.67.
A summary of the procedural history and alleged facts underlying this action is necessary. plaintiff, Henry Mebane, brought this action as a result injuries he allegedly sustained when his motorcycle crashed after a high-speed chase involving Mebane and Turner. Turner, who observed Mebane speeding while on duty in the Pentagon parking lot, pursued Mebane into the District of Columbia, where he saw Mebane speed through a traffic signal and scatter pedestrians. Turner attempted to stop Mebane, but Mebane allegedly sped away, continuing to ignore both Turner and the traffic signals he encountered. The crash occurred while Turner was pursuing Mebane in the District. Turner was on duty at the time and was in a police vehicle.
In his original complaint, Plaintiff named both the United States and Turner as Defendants in the action. The complaint alleged that, in pursuing Mebane, Turner was both negligent (Count I) and deprived Mebane of Due Process in violation of his constitutional rights (Count III). The United States was charged with negligent training and supervision of Turner (Count II).
Under the Federal Liability Reform and Tort Compensation Act ("Act") of 1988, a plaintiff's exclusive remedy for a common law tort committed by a Federal employee acting within the scope of employment is an action against the United States pursuant to the Federal Tort Claims Act ("FTCA"). See 28 U.S.C. §§ 1346, 2671 et seq. Upon certification by the government that the Federal employee was acting within the scope of his employment, the employee is automatically dismissed from the complaint and the United States substituted as a defendant. See 28 U.S.C. § 2679(d)(1). In this case, however, the United States refused to certify that Turner acted within the scope of his employment while pursuing Mebane. Because the United States refused to certify that Turner was acting within the scope of his employment and because Turner could not afford an attorney, this Court was forced to appoint a member of the bar to defend Turner as pro bono counsel on both Count I and Count III.
Turner's counsel conducted discovery and filed two motions in the case. Turner made a motion under 28 U.S.C. § 2679(d)(3), which permits the Court to certify that the a government employee was acting within the scope of his employment when the government refuses to do so. The United States vigorously opposed that motion on the merits. After briefing and argument, however, Turner's motion to certify that he acted within the scope of employment was granted. This Court found that the United States erred when it decided that Turner had not acted within the scope of his employment, and the United States was substituted for Turner in Count I.
Turner simultaneously filed a motion to dismiss or for summary judgment as to any claims left against him after the Court's ruling on the motion to certify the scope of employment.
Pursuant to that motion the Court dismissed Count III, alleging a Constitutional tort against Turner. Thus, Turner is no longer a defendant in the case and the united States is named in the negligence count pursuant to the FTCA. Turner now petitions this Court to award him the attorney's fees and costs which he incurred during the period of time when the government wrongly refused to certify that he was acting within the scope of his employment.
Under the Equal Access to Justice Act:
28. U.S.C. § 2412 (d) (1) (A). Turner petitions this Court for the fees he incurred between the time the United States refused to certify that he was acting within the scope of his employment and the time when this Court granted his motion and found that the United States had been incorrect in denying that certification.
Turner is clearly a "prevailing party" in a civil action as is required by EAJA. A party must have "succeed[ed] on any significant issue in litigation" in order to qualify as a prevailing party. Massachusetts Fair Share v. Law Enforcement Assistance Administration, 776 F.2d 1066 (D.C. Cir. 1985). With respect to Count I Turner prevailed on his motion asking the Court to find that he was acting within the scope of employment. No issue could have been more important to Turner. As a result of that motion Turner is no longer a party to Count I. The United States, despite its vigorous opposition, has assumed his place in the litigation in its capacity as Turner's employer. Any judgment which is awarded on Count I will be paid by the United States, not Turner. All future costs ...