In the Matter of the Complaint Against THE ROBERTSON-TAYLOR COMPANY, Suite 290, 781 W. Oakland Park Boulevard at Fort Lauderdale, FL 33311-1729, et al. P.S. Docket No. 16/99 February 6, 1987 Quentin E. Grant Administrative Law Judge APPEARANCE FOR COMPLAINANT: Hilda Rosenberg, Esq. Consumer Protection Division Law Department United States Postal Service Washington, DC 20260-1112 APPEARANCE FOR RESPONDENT: Lee H. Harter, Esq. 2256 Van Ness Avenue San Francisco, CA 94109-2513
Respondent has applied for an award of attorney's fees under the Equal Access to Justice Act, 5 U.S.C. 504 (hereinafter "Act" or "EAJA"). Complainant opposes the application on grounds (1) that Respondent was not a "prevailing party" as that term is used in the Act, (2) that Complainant's position was substantially justified and (3) that special circumstances make an award unjust. Complai- nant also opposes an award on the ground that the fee claimed is excessive and unreasonable.
1. On April 25, l983, Complainant filed a Complaint alleging that Respondent was engaged in a scheme or device for obtaining money or property through the mail by means of the following false representations in violation of 39 U.S.C. 3005:
"1. Derma-Tec 90 Facial Treatment will remove wrinkles and age lines from the user's face.
2. The procaine ingredient of Derma-Tec 90 Facial Treatment is effective to remove wrinkles and age lines from the user's face.
3. The procaine that Derma-Tec 90 Facial Treatment is labelled to contain may be legally sold 'over the counter' or by mail without a physician's prescription."
2. The Complaint and Notice of Answer and Hearing were served on Respondent on May 3, l983. This established May 18 as the Answer due date.
3. On May 6 Complainant filed a Motion for Leave to File Amended Complaint. The Amended Complaint substituted for the alleged representation numbered 3, supra , another and entirely different representation. The motion was received by Respondent on May 11.
4. On May 10 and 11, Lee H. Harter, Esquire, had telephone dis- cussions with Complainant's co-counsel concerning Mr. Harter's need for an extension of time to file Respondent's Answer to the Complaint and secured from co-counsel assurance that there would be no objection to an extension of time to May 31.
5. On May 13 Administrative Law Judge Edwin S. Bernstein issued an order granting Complainant's motion to amend the Complaint. This order was received by Respondent on May 16.
6. On May 16, the Recorder received from Attorney Harter his first written appearance in the matter by way of an undated request for an extension of time to May 31 to file the Answer. In this request Mr. Harter stated that he had been engaged in several other activities which had precluded him from spending "significant time in preparation of a defense of these matters." These "matters" included four other 3005 proceedings against Respondent commenced by Complainant simultaneously with P.S. 16/99 in which Mr. Harter filed simultaneous identical requests for extensions of time to file Answers (P.S. 16/98, 100, 101 and 102).
7. On June 1 the Recorder received an undated Answer to the Complaint in this proceeding. The Answer contained simple denials of all allegations of misrepresentation.
8. Under date of June 1, l983, Mr. Harter filed an EAJA appli- cation based on the argument that Respondent prevailed in defending against the original allegation of misrepresentation numbered 3, supra , when it was eliminated by Complainant's amendment of the Complaint. The claim is in the amount of $375.00 computed at the rate of $75.00 per hour for 5 hours. The application states that Mr. Harter had to spend most of the 5 hours in a law library researching FDA regulations on procaine to refute the later- eliminated allegation. The application fails to state when Mr. Harter became aware of the amendment of the Complaint and the date or dates on which the alleged hours of research occurred.
9. In the latter half of July 1983, the matter went to hearing on the Complaint as amended. On October 27, l983, the undersigned issued an Initial Decision in which it was concluded that Respon- dent made the representations alleged in that Complaint and that they were materially false in fact.
10. Respondent appealed to the Judicial Officer from the Initial Decision. On March 31, l986, the Judicial Officer issued a Postal Service Decision affirming the findings and conclusions of the Initial Decision. No appeal was taken from the Postal Service Decision.
The EAJA (as applicable in this type of proceeding) provides no definition of the term "prevailing party." However, the legislative history offers guidance.
"Under existing fee-shifting statutes, the definition of prevailing party has been the subject of litigation. It is the committee's intention that the interpretation of the term in S. 265 be consistent with the law that has developed under existing statutes. Thus, the phrase 'prevailing party' should not be limited to a victor only after entry of a final judgment following a full trial on the merits. A party may be deemed prevailing if he obtains a favorable settlement of his case, Foster v. Boorstin , 561 F.2d 340 (D.C. Cir. 1977); if the plaintiff has sought a voluntary dismissal of a groundless Com- plaint, Corcoran v. Columbia Broadcasting System, Inc. , 121 F.2d 575, (9th Cir. l941); or even if he does not ultimately prevail on all issues, Bradley v. School Board of the City of Richmond , 416 U.S. 696 (1974).
"In cases that are litigated to conclusion, a party may be deemed 'prevailing' for purposes of a fee award in a civil action prior to the losing party having exhausted its final appeal. A fee award may thus be appropriate where the party has prevailed on an interim order which was central to the case, Parker v. Matthews , 411 F. Supp. 1059, 1064 (D.D.C. l976), or where an interlocutory appeal is 'sufficiently signi- ficant and discrete to be treated as a separate unit', Van Hoomissen v. Xerox Corp. , 503 F.2d 1131, 1133 (9th Cir. l974)." (H.R. Rep. No. 1418, 1980 U. S. Code Cong. & Ad. News, p. 4990)
Respondent has not cited, and a search has failed to reveal, any case in which an EAJA claimant or an applicant under any other fee-shifting statue, has been held to be a "prevailing party" on facts such as those presented here. The facts in Corcoran v. Columbia Broadcasting System , supra , come closest but there the defendant had appeared in the action, filed a motion to dismiss the Complaint and an application for a further and better statement of particulars. The motion to dismiss was denied but the application for a more particular statement was granted with leave to plaintiff to amend the Complaint within a certain time. Plaintiff did not amend. Instead it moved for a voluntary dismissal. In affirming an award of attorneys' fees to defendant as the prevailing party the Court (at p. 576) said:
"The authority given [to award attorneys' fees] is not in terms limited to the allowance of fees to a party who prevails only after a trial on the merits. Where, as here, a defendant has been put to the expense of making an appearance and of obtaining an order for the clarification of the complaint, and the plaintiff then voluntarily dismisses without amending his pleading, the party sued is the prevailing party within the spirit and intent of the statute even though he may, at the whim of the plaintiff, again be sued on the same cause of action."
Decisions of the United States Supreme Court ( Hanrahan v. Hampton , 446 U. S. 754 (1980)) and the Court of Appeals for the District of Columbia Circuit ( Grubbs v. Butz , 548 F.2d 973) (1976)) establish as a general principle that an applicant for attorneys' fees has the burden of showing that there has been a determination of his substantial rights through his having prevailed on the merits of at least some of his claims. The Respondent here has not made such a showing. Complainant moved with alacrity to amend within a ew days after service of the Complaint. The motion was received by Respondent on May 11, l983 and granted by Judge Bernstein on May 13, three days prior to the Recorder's receipt of Mr. Harter's appear- ance and request for extension of time to answer the Complaint. It can hardly be said that Respondent has prevailed on the merits, or in any other sense, as to an alleged misrepresentation which was withdrawn prior to any appearance by it, or on its behalf, and the filing of an Answer or a motion against the Complaint contesting the allegation.
The application is also deficient in detail as to the date or dates on which Mr. Harter performed the claimed five hours of work related to the allegation omitted by the amendment. Such detail is critical given the very short time span in which the Complaint was served on Respondent and transmitted to Mr. Harter, the motion to amend was filed and granted, and Mr. Harter applied for an extension of time to file the Answer because of inability to spend "signifi- cant time" on the matter.
The application is denied.