Foster v. Tourtelltotte, 704 F.2d 1109 (9th Cir. 1983). · Go Syfert
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Foster v. Tourtelltotte, 704 F.2d 1109 (9th Cir. 1983). Cases Citing This Book View Copy Cite
153 citation events (13 in the last 25 years) across 30 distinct courts.
Strongest positive: Navy Federal Credit Union v. Veros Credit, LLC, Anthony Tyrone Williams, and Latrenda Anntonette Williams (fladistctapp, 2026-04-10)
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discussed Cited as authority (rule) Navy Federal Credit Union v. Veros Credit, LLC, Anthony Tyrone Williams, and Latrenda Anntonette Williams
Fla. Dist. Ct. App. · 2026 · confidence medium
The court found that Navy Federal’s assertion that the Williamses’ account was in Virginia was “contrary to existing facts and legal precedent,” and that its “ongoing, frivolous motion practice in this case and others constitutes bad faith conduct which has been extremely prejudicial to [Veros Credit]” and to its “various judgment debtors and customers.” 4 As we explain below, we reverse and direct the post- judgment order imposing sanctions be vacated. 3 IV In Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998), the Florida Supreme Court explained that “[t]he inequitable…
discussed Cited as authority (rule) Tyler Forrey, Danielle Forrey, Miles Garner, Roof Rx LLC, Island Life Charter Company v. Marlin Construction Group, LLC
Fla. Dist. Ct. App. · 2024 · confidence medium
This doctrine “is rarely applicable” and “is reserved for those 6 extreme cases where a party acts ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’” Id. (quoting Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir. 1983)). “[A] finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings[, and] . . . the amount of the award of attorneys’ fees must be directly related to the attorneys’ fees and costs that the opposing party has incurred as a result of the specific bad faith conduct . . . .” Moakley v. Smallwood, 82…
cited Cited as authority (rule) Shukla v. Apple Inc.
S.D.N.Y. · 2021 · confidence medium
See United States v. Yoffe, 775 F. 2d 447, 449-450 (CA1 1985); Ramos v. Haig, 716 F. 2d 471, 473 (CA7 1983); Foster v. Tourtellotte, 704 F. 2d 1109, 1112 (CA9 1983) (per curiam); Hon.
discussed Cited as authority (rule) REGINALD WILLIAMS and CHANEL WILLIAMS v. PREPARED INSURANCE COMPANY
Fla. Dist. Ct. App. · 2019 · confidence medium
But the “doctrine is rarely applicable,” and is “reserved for those extreme cases where a party acts ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’” Id. (quoting Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir. 1983)).
discussed Cited as authority (rule) ANNE MARIE COROMINAS, as personal rep. of the estate of Patrocinio R. Libre, etc. v. AJAY DEVELOPMENT GROUP, LLC and AJAY TRANSPORTATION, INC.
Fla. Dist. Ct. App. · 2019 · confidence medium
“The inequitable conduct doctrine permits the award of attorney’s fees” in “extreme cases where a party acts ‘in bad faith, vexatiously, wantonly, or for oppressive reasons.’” Bitterman v. Bitterman, 714 So. 2d 356, 365 (Fla. 1998) (quoting Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir. 1983)). “[A] finding of bad faith conduct must be predicated on a high degree of specificity in the factual findings.” Moakley v. Smallwood, 826 So. 2d 221, 227 (Fla. 2002).
discussed Cited as authority (rule) FCCI COMMERCIAL INSURANCE COMPANY v. EMPIRE INDEMNITY INSURANCE CO.
Fla. Dist. Ct. App. · 2018 · confidence medium
This authority, however, should rarely be exercised, as it is "reserved for those extreme cases where a party acts 'in bad faith, vexatiously, wantonly, or for oppressive reasons, ' " id. (quoting Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir. 1983)), whether in connection with the conduct leading to the litigation or during the litigation itself, id. (quoting Dogherra v. Safeway Stores, Inc., 679 F.2d 1293, 1298 (9th Cir. 1982)).
discussed Cited as authority (rule) Sonya Renee v. Arne Duncan
9th Cir. · 2012 · confidence medium
Given the Secretary’s task and the divergent views of federal judges, it was reasonable for the Secretary to test the validity of the regulation “in the absence of any precedent on the question.” Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam).
discussed Cited as authority (rule) Martin v. Secretary of the Army
N.D.N.Y. · 2006 · confidence medium
The United States must demonstrate that its position had “ ‘a reasonable basis in both law and fact.’ ” Pierce, 487 U.S. at 565 , 108 S.Ct. at 2550 (quoting Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983)); see Vacchio v. Ashcroft, 404 F.3d 663, 674 (2d Cir.2005) (citing Sotelo-Aquije v. Slattery, 62 F.3d 54, 57 (2d Cir.1995)).
cited Cited as authority (rule) Moakley v. Smallwood
Fla. · 2002 · confidence medium
It is reserved for those extreme cases where a party acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983) (quoting F.D.
cited Cited as authority (rule) Bitterman v. Bitterman
Fla. · 1998 · confidence medium
It is reserved for those extreme cases where a party acts "in bad faith, vexatiously, wantonly, or for oppressive reasons." Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983) (quoting F.D.
cited Cited as authority (rule) Hilton Oil Transp. v. Oil Transp. Co.
Fla. Dist. Ct. App. · 1995 · confidence medium
A court may award attorneys' fees if one party has "acted in bad faith, vexatiously, wantonly, or for oppressive reasons." Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983), quoting F.D.
discussed Cited as authority (rule) Gumport v. Interstate Commerce Commission (In re Transcon Lines)
Bankr. C.D. Cal. · 1995 · confidence medium
Pierce v. Underwood, 487 U.S. 552, 565 , 108 S.Ct. 2541, 2549-51 , 101 L.Ed.2d 490, 503 (1988); Wilderness Soc’y, 5 F.3d at 388; League of Women Voters, 798 F.2d at 1257 ; Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam).
discussed Cited as authority (rule) Hong-Yee Chiu v. The United States
Fed. Cir. · 1991 · confidence medium
Until clarified by the Supreme Court, appellate courts were similarly split as to the meaning of the phrase “substantially justified.” Compare Gavette, 808 F.2d at 1467-68 (position must be “clearly reasonable”) and Spencer, 712 F.2d at 558 (position must be slightly more than reasonable) with Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (position must have reasonableness in law and fact) and Ramos v. Haig, 716 F.2d 471, 473 (7th Cir.1983) (position must be reasonable).
discussed Cited as authority (rule) Utu Utu Gwaitu Paiute Tribe of the Benton Paiute Resrvation v. Department of Interior
E.D. Cal. · 1991 · confidence medium
This issue was an issue of first impression and defendants advanced “a novel but credible extension or interpretation of the law.” Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (quoting S & H Riggers & Erectors v. OSHRC, 672 F.2d 426 , 431 (5th Cir.1982)).
cited Cited as authority (rule) Spicer Accounting, Inc. v. United States
9th Cir. · 1990 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983).
cited Cited as authority (rule) Kali v. Bowen
9th Cir. · 1988 · confidence medium
No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4989); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam).
discussed Cited as authority (rule) Kali v. Bowen
9th Cir. · 1988 · confidence medium
No. 1418, 96th Cong., 2d Sess. 10, reprinted in 1980 U.S.Code Cong. & Admin.News 4953, 4984, 4989); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam). 9 The original EAJA contained a "sunset" provision and expired on Sept. 30, 1984.
discussed Cited as authority (rule) Pierce v. Underwood (2×)
SCOTUS · 1988 · confidence medium
See United States v. Yoffe, 775 F. 2d 447, 449-450 (CA1 1985); Dubose v. Pierce, 761 F. 2d, at 917-918; Citizens Council of Delaware County v. Brinegar, 741 F. 2d 584, 593 (CA3 1984); Anderson v. Heckler, 756 F. 2d 1011, 1013 (CA4 1985); Hanover Building Materials, Inc. v. Guiffrida, 748 F. 2d 1011, 1015 (CA5 1984); Trident Marine Construction, Inc. v. Dis trict Engineer, 766 F. 2d 974 , 980 (CA6 1985); Ramos v. Haig, 716 F. 2d 471, 473 (CA7 1983); Foster v. Tourtellotte, 704 F. 2d 1109, 1112 (CA9 1983) (per curiam); United States v. 2,116 Boxes of Boned Beef, 726 F. 2d 1481 , 1486-1487 (CA10)…
discussed Cited as authority (rule) Lear Siegler, Inc., Energy Products Division, Plaintiff-Appellee/cross v. John Lehman, Secretary of the Navy, Defendants-Appellants/cross- Lear Siegler Inc., and United States Senate United States House of Representatives, Plaintiffs- Intervenors-Appellees v. John Lehman, Secretary of the Navy William Stevenson, Contracting Officer (2×)
9th Cir. · 1988 · confidence medium
Attorneys' fee awards are reviewed under an abuse of discretion standard, Foster v. Tourtellotte, 704 F.2d 1109, 1110-11 (9th Cir.1983); see Hensley v. Eckerhart, 461 U.S. 424, 436-37 , 103 S.Ct. 1933, 1941 , 76 L.Ed.2d 40 (1982), but the legal interpretation of the attorneys' fee statute is reviewed de novo.
discussed Cited as authority (rule) Lear Siegler, Inc. v. Lehman (2×)
9th Cir. · 1988 · confidence medium
Attorneys’ fee awards are reviewed under an abuse of discretion standard, Foster v. Tourtellotte, 704 F.2d 1109, 1110-11 (9th Cir.1983); see Hensley v. Eckerhart, 461 U.S. 424, 436-37 , 103 S.Ct. 1933, 1941 , 76 L.Ed.2d 40 (1982), but the legal interpretation of the attorneys’ fee statute is reviewed de novo.
discussed Cited as authority (rule) Rodriguez v. Bowen (2×)
E.D. Cal. · 1988 · confidence medium
To avoid the imposition of attorney’s fees, the government’s position must be substantially justified both in law and fact, Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir. 1983), and that determination is evaluated under the totality of the circumstances, prelitigation and during trial.
discussed Cited as authority (rule) Martin v. Bowen
E.D. Cal. · 1987 · confidence medium
With respect to the meaning of the term “substantially justified,” the Ninth Circuit has repeatedly held that it means “reasonable.” See, e.g., Minor v. United States, 797 F.2d 738, 739 (9th Cir.1986); Petition of Hill, 775 F.2d 1037 , 1042 (9th Cir.1985); Albrecht v. Heckler, 765 F.2d at 915 ; Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir.1983); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983).
cited Cited as authority (rule) Oregon Environmental Council v. Leonard Kunzman
9th Cir. · 1987 · confidence medium
League of Women Voters v. FCC, 798 F.2d 1255, 1257 (9th Cir.1986); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam).
cited Cited as authority (rule) Oregon Environmental Council v. Kunzman
9th Cir. · 1987 · confidence medium
League of Women Voters v. FCC, 798 F.2d 1255, 1257 (9th Cir.1986); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam).
cited Cited as authority (rule) Oliveira v. Bowen
N.D. Cal. · 1986 · confidence medium
Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir.1984); Hoang Ha v. Schweiker, 707 F.2d 1104, 1106 (9th Cir. 1983); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983).
discussed Cited as authority (rule) Don Casey Co. v. Commissioner
Tax Ct. · 1986 · confidence medium
Ashburn v. United States, 740 F.2d 843, 850 (11th Cir. 1984); Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir. 1983); S & H Riggers & Erectors, Inc. v. O.S.H.R.C., 672 F.2d 426 , 430 (5th Cir. 1982); U.S. for Heydt v. Citizens State Bank, 668 F.2d 444, 447 (8th Cir. 1982).
cited Cited as authority (rule) International Woodworkers of America, Afl-Cio, Local 3-98 v. Raymond J. Donovan, Secretary of Labor, and California Employment Development Department
9th Cir. · 1986 · confidence medium
The standard to apply to determine whether the government’s position was substantially justified is one of “reasonableness.” Foster v. Tourtellotte, 704 F.2d 1109,1112 (9th Cir.1983).
discussed Cited as authority (rule) Gavin v. Bowen
N.D. Ill. · 1986 · confidence medium
For instance, the Eighth Circuit in Iowa Express Distribution, Inc. v. N.L.R.B., 739 F.2d 1305, 1308 (8th Cir.1984), cert. denied, — U.S. -, 105 S.Ct. 595 , 83 L.Ed.2d 704 (1984), construed the standard as requiring the government to show that “there is a reasonable basis in truth for the facts alleged in the pleadings; that there exists a reasonable basis in the law for the theory it propounds; and that the facts alleged will reasonably support the legal theory advanced.” See also Washington v. Heckler, 756 F.2d 959 (3d Cir.1985); accord: Anderson v. Heckler, 756 F.2d 1011, 1013 (4th Ci…
discussed Cited as authority (rule) Hill v. United States Immigration & Naturalization Service (2×) also: Cited "see"
9th Cir. · 1985 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983).
discussed Cited as authority (rule) Hill v. United States Immigration and Naturalization Service (2×) also: Cited "see"
9th Cir. · 1985 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983).
cited Cited as authority (rule) International Woodworkers of America, Afl-Cio, Local 3-98 v. Raymond J. Donovan, Secretary of Labor, and California Employment Development Department
9th Cir. · 1985 · confidence medium
The standard to apply to determine whether the government’s position was substantially justified is one of “reasonableness.” Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983).
cited Cited as authority (rule) Gloria T. ALBRECHT, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary, Health and Human Services, Defendant-Appellee
9th Cir. · 1985 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (per curiam).
cited Cited as authority (rule) Charles Laduke v. Alan C. Nelson, Etc.
9th Cir. · 1985 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1110-11 (9th Cir.).
cited Cited as authority (rule) Carroll E. FELDPAUSCH, Plaintiff-Appellant, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellee
6th Cir. · 1985 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983); Spencer v. NLRB, 712 F.2d 539, 563 (D.C.Cir.1983).
discussed Cited as authority (rule) Trucks, Inc. v. United States
8th Cir. · 1985 · confidence medium
To prevail, appellants must show that the district court’s ruling was “clearly erroneous.” See United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481 , 1486 (10th Cir.1984); Foster v. Tourtellotte, 704 F.2d 1109, 1110 (9th Cir.1983); Spencer v. N.L.R.B., 712 F.2d 539, 564-65 (D.C.Cir.1983), cert. denied, — U.S. -, 104 S.Ct. 974 , 80 L.Ed.2d 457 (1984).
discussed Cited as authority (rule) Trucks, Inc., a Nebraska Corporation v. United States of America, Leroy Hilt and Molly Hilt v. United States of America, Thomas L. Hilt and Katherina Hilt v. United States of America, Robert P. Hilt v. United States of America, Roger W. Norris and Sandra M. Norris v. United States of America, Allyson L. Linton, Formerly Allyson L. Hilt v. United States
8th Cir. · 1985 · confidence medium
To prevail, appellants must show that the district court's ruling was "clearly erroneous." See United States v. 2,116 Boxes of Boned Beef, 726 F.2d 1481 , 1486 (10th Cir.1984); Foster v. Tourtellotte, 704 F.2d 1109, 1110 (9th Cir.1983); Spencer v. N.L.R.B., 712 F.2d 539, 564-65 (D.C.Cir.1983), cert. denied, --- U.S. ----, 104 S.Ct. 974 , 80 L.Ed.2d 457 (1984).
cited Cited as authority (rule) Miller v. Hotel & Restaurant Employees & Bartenders Union, Local 2
N.D. Cal. · 1985 · confidence medium
Rawlings, supra, 725 F.2d at 1196 ; Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983) (quoting H.R.Rep.
discussed Cited as authority (rule) Optyl Eyewear Fashion International Corp. v. Style Companies, Ltd.
9th Cir. · 1985 · confidence medium
Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1384 (9th Cir. 1984); Lone Ranger Television, Inc. v. Program, Radio Corp., 740 F.2d 718, 720 (9th Cir.1984); Foster v. Tourtellotte, 704 F.2d 1109, 1110 (9th Cir.1983).
discussed Cited as authority (rule) Optyl Eyewear Fashion International Corporation v. Style Companies, Ltd.
9th Cir. · 1985 · confidence medium
Sealy, Inc. v. Easy Living, Inc., 743 F.2d 1378, 1384 (9th Cir.1984); Lone Ranger Television, Inc. v. Program Radio Corp., 740 F.2d 718, 720 (9th Cir.1984); Foster v. Tourtellotte, 704 F.2d 1109, 1110 (9th Cir.1983). 10 B.
discussed Cited as authority (rule) Baker v. Commissioner
Fla. · 1984 · confidence medium
Ashburn v. United States, 740 F.2d 843, 850 (11th Cir. 1984); Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir. 1983); S & H Riggers & Erectors, Inc. v. O.S.H.R.C., 672 F.2d 426 , 430 (5th Cir. 1982); United States for Heydt v. Citizens State Bank, 668 F.2d 444, 447 (8th Cir. 1982).
discussed Cited as authority (rule) People of Village of Gambell v. Clark
9th Cir. · 1984 · confidence medium
Assuming appellants are prevailing parties we cannot say the government's position was not "substantially justified." See Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984); Foster v. Tourtellotte, 704 F.2d 1109, 1112-13 (9th Cir.1983). 59 AFFIRMED in part, REVERSED in part, and REMANDED for further proceedings consistent with this opinion. * William Clark is substituted for James G.
discussed Cited as authority (rule) PEOPLE v. CLARK
9th Cir. · 1984 · confidence medium
Assuming appellants are prevailing parties we cannot say the government’s position was not “substantially justified.” See Rawlings v. Heckler, 725 F.2d 1192, 1196 (9th Cir.1984); Foster v. Tourtellotte, 704 F.2d 1109, 1112-13 (9th Cir.1983).
examined Cited as authority (rule) Herbert W. Timms, Dba Petrol Express Petrol Express Cooperative and Petrol Stops Northwest v. United States (4×) also: Cited "see"
9th Cir. · 1984 · confidence medium
Wolverton v. Heckler, 726 F.2d 580, 583 (9th Cir.1984); Hoang Ha, 707 F.2d at 1106 ; Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983).
cited Cited as authority (rule) United States v. 0.51 Acre of Land
E.D. Wash. · 1984 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983); United States v. First National Bank of Circle, 732 F.2d 1444, 1447 (9th Cir.1984).
cited Cited as authority (rule) Hanson v. Heckler
E.D. Wash. · 1984 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983); United States v. First National Bank of Circle, 732 F.2d 1444, 1447 (9th Cir.1984).
cited Cited as authority (rule) United States of America and Dennis P. McCarthy Special Agent, Internal Revenue Service v. James F. Ford
9th Cir. · 1984 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1110 (9th Cir.1983); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69 (9th Cir.1975), cert. denied, 425 U.S. 951 , 96 S.Ct. 1726 , 48 L.Ed.2d 195 (1976).
examined Cited as authority (rule) United States v. First National Bank of Circle (6×)
1st Cir. · 1984 · confidence medium
See, e.g., Rawlings v. Heckler, 725 F.2d 1192 at 1193, 1194 (9th Cir.1984); Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 1481 (9th Cir.1983); United States v. 101.80 Acres of Land, More or Less, in Idaho County, Idaho, 716 F.2d 714, 728 (9th Cir.1983); Hoang Ha v. Schweiker, 707 F.2d 1104, 1105 (9th Cir.1983); Foster v. Tourtellotte, 704 F.2d 1109, 1110 (9th Cir.1983).
cited Cited as authority (rule) Rawlings v. Heckler
9th Cir. · 1984 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1111 (9th Cir.1983).
discussed Cited as authority (rule) Don WOLVERTON, Plaintiff-Appellee, v. Margaret M. HECKLER, Secretary of Health and Human Services, Defendant-Appellant (2×)
9th Cir. · 1984 · confidence medium
Foster v. Tourtellotte, 704 F.2d 1109, 1112 (9th Cir.1983).
discussed Cited as authority (rule) United States v. 2,116 Boxes Of Boned Beef
10th Cir. · 1984 · confidence medium
Matthews v. United States, 713 F.2d 677, 682 (11th Cir.1983); Hoang Ha v. Schweiker, 707 F.2d 1104, 1105 (9th Cir.1983); Foster v. Tourtellotte, 704 F.2d 1109, 1110 (9th Cir.1983); Knights of the KKK v. East Baton Rouge Parish School Board, 679 F.2d 64 , 69 (5th Cir.1982).
Retrieving the full opinion text from the archive…
William James Foster, Deceased Through William James Foster, Jr., Special Administrator for the Estate of Deceased
v.
Wallace W. Tourtellotte, M.D., ph.d., Individually and as a Physician in the Employ of the Veterans Administration, an Agency of the United States Government, H. Earl Gordon, M.D., ph.d., Individually and as a Physician in the Employ of the Veterans Administration, an Agency of the United States Government, and Robert Nimmo, Individually and as Director of the Veterans Administration, an Agency of the United States Government
82-5415.
Court of Appeals for the Ninth Circuit.
Apr 26, 1983.
704 F.2d 1109
Published

704 F.2d 1109

William James FOSTER, Deceased through William James Foster,
Jr., Special Administrator for the Estate of
Deceased, Plaintiff-Appellant,
v.
Wallace W. TOURTELLOTTE, M.D., Ph.D., Individually and as a
Physician in the employ of the Veterans Administration, an
Agency of the United States Government, H. Earl Gordon,
M.D., Ph.D., Individually and as a physician in the employ
of the Veterans Administration, an Agency of the United
States Government, and Robert Nimmo, Individually and as
Director of the Veterans Administration, an Agency of the
United States Government, Defendants-Appellees.

Nos. 82-5415, 82-5694.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted March 10, 1983.
Decided April 26, 1983.

Richard Stanley Scott, Malley, Yelsky, Chernove & Scott, Beverly Hills, Cal., for plaintiff-appellant.

Roger E. West, Asst. U.S. Atty., Los Angeles, Cal., for defendants-appellees.

Appeal from the United States District Court for the Central District of California.

Before FLETCHER and NELSON, Circuit Judges, and THOMPSON,[*] District Judge.

PER CURIAM:

[*~1109]1

Appellant Foster, plaintiff below and now deceased, sued for and was granted a preliminary injunction ordering that the respirator on which he was dependent for life be removed.[1] However, the district court denied Foster's requests for money damages and for attorney's fees under the Equal Access to Justice Act (EAJA), 28 U.S.C. Sec. 2412 (Supp. IV 1980). Foster appeals only from the decision to deny attorney's fees.

FACTS AND PROCEDURAL BACKGROUND

2

Foster was admitted to the Wadsworth Veterans Administration National Center on October 10, 1980. His condition made him dependent on a respirator from October 21, 1980 until his death on November 4, 1981. On September 14, 1981, Foster withdrew his consent for further respiratory treatment effective on September 28, 1981. Foster consistently requested medication to make his death as comfortable as possible. The hospital conceded Foster's mental competence to withdraw consent, but refused to disconnect the respirator and administer the requested medication. The hospital's position was that sedation might hasten Foster's death, making it possibly liable for abetting a suicide. The hospital also expressed its concern for the fact that Foster's wife and at least one of his three children opposed his decision to disconnect the respirator.

3

On September 28, 1981, Foster filed a Complaint and Motion for Preliminary Injunction against his doctor, Dr. Tourtellotte, and the Veterans Administration. He sought damages for each day of unwanted respiration, and an injunction ordering that the respirator be removed and that sedation be administered. Foster's wife and one of his children were allowed to intervene as defendants.

4

On October 14, 1981, Foster suffered a heart attack that left him in a coma. On October 23, the district court granted the requested injunction on the grounds that Foster's constitutional rights of privacy and dignity were being violated, but stayed the order for fifteen days pending appeal. Foster was pronounced "brain dead" under the California Brain Death Statute on November 4. On November 5, when the court learned no appeal would be taken, the court lifted the stay, ordered the removal of the respirator, and rescinded the order to administer medicine. The respirator was removed November 6, and Foster was pronounced dead under all standards. On May 25, 1982, the district court granted summary judgment for appellants on the question of damages, and denied Foster's motion for attorney's fees.

ISSUE

5

Did the district court abuse its discretion in denying Foster's application for attorney's fees under the EAJA?

DISCUSSION

I. Standard of Review

6

The parties agree that the basic standard to be applied to a denial of attorney's fees is the abuse of discretion standard. See Knights of the Ku Klux Klan Realm of Louisiana v. East Baton Rouge Parish School Board, 679 F.2d 64, 68-69 (5th Cir.), vacated and remanded for other reasons, 454 U.S. 1075, 102 S.Ct. 626, 70 L.Ed.2d 609 (1982); Kerr v. Screen Extras Guild, Inc., 526 F.2d 67, 69 (9th Cir.1975), cert. denied, 425 U.S. 951, 96 S.Ct. 1726, 48 L.Ed.2d 195 (1976); H.R.Rep. No. 1434, 96th Cong., 2d Sess. 23-24, reprinted in 1980 U.S.Code Cong. & Ad.News 5003, 5012-13. The district court's interpretation of the EAJA is, of course, a question of law subject to de novo review on appeal.

II. The Equal Access to Justice Act

[*~1110]7

Appellant claims attorney's fees under two provisions of the EAJA.[2] Foster first claims attorney's fees under section 2412(d)(1)(A). That section provides that a court shall award reasonable attorney's fees to a prevailing party in a suit against the United States unless that suit was a tort action, or "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust."[3] Section 2412(d)(1)(A) applies to Foster's claim because the underlying suit was not a tort action for purposes of the EAJA. The lower court rejected Foster's claim, finding both that the Government's position was substantially justified and that special circumstances made an award unjust. We affirm the denial of attorney's fees on grounds that the Government's position was substantially justified. Because we affirm the finding of substantial justification, we need not reach the question of special circumstances.

8

Foster also claims attorney's fees under section 2412(b), which states that a court may award attorney's fees against the United States where it would otherwise award them under the common law.[4] The common law allows attorney's fees when one party "has acted in bad faith, vexatiously, wantonly or for oppressive reasons." F.D. Rich Co. v. Industrial Lumber Co., 417 U.S. 116, 129, 94 S.Ct. 2157, 2165, 40 L.Ed.2d 703, 713-14 (1974).[5] The substantial justification standard was intended to make it easier for the prevailing party to recover attorney's fees than the common law standard under which that party must demonstrate bad faith. See H.R.Rep. No. 1418, 96th Cong., 2d Sess. 10-11, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4989-90. Therefore, by affirming the finding that the Government demonstrated substantial justification for its position, we necessarily affirm the finding that Foster failed to demonstrate bad faith.

III. The "Substantially Justified" Standard

9

The legislative history assists us in construing the statutory phrase, "substantially justified." The House Committee on the Judiciary's report on the EAJA states:The test of whether or not a Government action is substantially justified is essentially one of reasonableness. Where the Government can show that its case had a reasonable basis both in law and in fact, no award will be made....

10

The standard, however, should not be read to raise a presumption that the Government position was not substantially justified, simply because it lost the case.

11

Id.

[*~1111]12

Other Circuits have adopted the reasonableness test. For instance, S & H Riggers & Erectors, Inc. v. OSHRC, 672 F.2d 426 (5th Cir.1982), applied this standard to deny an application for attorney's fees where one of the Government's three contentions advanced "a novel but credible extension or interpretation of the law," even though it was inconsistent with existing precedent in the circuit. Id. at 431 (quoting H.R.Rep. No. 1418, 96th Cong., 2d Sess. 11, reprinted in 1980 U.S.Code Cong. & Ad.News 4984, 4990). United States for Heydt v. Citizens State Bank, 668 F.2d 444 (8th Cir.1982), affirmed a district court's denial of attorney's fees in a case where a taxpayer successfully narrowed an IRS summons because "[t]he district court found that the summons had been issued in good faith and for a proper purpose." Id. at 448. In Donovan v. Dillingham, 668 F.2d 1196 (11th Cir.1982) reh'g granted, id. at 1199, the Eleventh Circuit appears to have applied a reasonableness test. That case denied attorney's fees where another circuit had decided the question adversely to the Government, but at the time of the appeal it was not clear that there was controlling precedent in the circuit. Id. at 1199. It appears to us that reasonableness is the correct test for determining whether the Government's position was substantially justified.

IV. Application

13

The Government argues that it had legitimate defenses to Foster's position. Foster's action was brought under 42 U.S.C. Sec. 1983 (1976), alleging a violation of the right to privacy. But whatever the merits of this theory, no court has yet found an absolute constitutional right to refuse lifesaving medical treatment. Cf. Rogers v. Okin, 634 F.2d 650, 653 (1st Cir.1980) (finding a right to refuse antipsychotic medication as part of the "penumbral right to privacy, bodily integrity, or personal security"), vacated sub nom. Mills v. Rogers, --- U.S. ----, 102 S.Ct. 2442, 73 L.Ed.2d 16 (1982).

14

Even if the right to refuse lifesaving treatment is assumed, the Government legitimately questioned whether it applied in this particular fact situation. Over the long course of his illness, Foster had equivocated on his decision to terminate the respirator. Moreover, his wife and at least one of his children strongly opposed his eventual decision. It was reasonable for the Government to seek a court's guidance in resolving this conflict in the absence of any precedent on the question.[6]

15

The Government further contends that acquiescing in Foster's decision might render it liable for abetting a suicide. The doctors involved felt that the medication Foster had requested might hasten his death, subjecting them and the hospital to a possible wrongful death action by Foster's relatives, or even to criminal prosecution. The reasonableness of this fear is demonstrated by the local District Attorney's refusal to grant appellants a declination of prosecution. There appears to be neither California nor federal precedent on the question of liability for terminating life-sustaining treatment. Moreover, we have failed to find any decision on liability for the administration of a requested medication that could hasten death.

16

In conclusion, Foster's request for an injunction raised troublesome and disturbing questions in a matter quite literally of life and death. The Government faced a complete absence of helpful precedent in the Supreme Court or the court of appeals on the application of the right to privacy to a patient's desire to terminate life-sustaining treatment. The district court, therefore, did not abuse its discretion in finding the Government substantially justified in defending this case. The decision that Foster was not entitled to attorney's fees under the EAJA is

[*~1112]17

AFFIRMED.

*

Honorable Bruce R. Thompson, Senior United States District Judge for the District of Nevada, sitting by designation

1

Foster sued various physicians and administrators and the Veterans Administration. This opinion refers to defendants-appellees collectively as the Government

2

Foster's claim was based on an alleged violation of his right to privacy. The district court properly exercised jurisdiction under 28 U.S.C. Sec. 1331 (federal question jurisdiction). A claim of constitutional violation need not be proven to establish jurisdiction; a federal court has jurisdiction over a claim that federal officers violated the Constitution unless the claim "clearly appears to be immaterial and made solely for the purpose of obtaining jurisdiction or where such a claim is wholly insubstantial and frivolous." Bell v. Hood, 327 U.S. 678, 682-83, 66 S.Ct. 773, 776, 90 L.Ed. 939, 943 (1946)

3

Sec. 2412(d)(1)(A) provides:

Except as otherwise specifically provided by statute, 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.

4

Sec. 2412(b) provides:

Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys ... to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award.

5

The "common good" and "common benefit" exceptions to the common law presumption against awarding attorney's fees are concededly not applicable here

6

The presence of this problem distinguishes Satz v. Perlmutter, 362 So.2d 160 (Fla.App.1978), aff'd, 379 So.2d 359 (Fla.1980). That case held that the right to refuse treatment is tempered by a number of state interests, including the "[n]eed to protect innocent third parties." Id. at 162 (citation omitted). The court in Satz noted that petitioner's family members were all in agreement with his decision, and distinguished a case where "the patient by refusing treatment, is said to be abandoning his dependent child." Id. (citing Application of the President and Directors of Georgetown College, Inc., 331 F.2d 1000 (D.C.Cir.), cert. denied, 377 U.S. 978, 84 S.Ct. 1883, 12 L.Ed.2d 746 (1964))