Contents Foreword Acknowledgments vii xiii Chapter 1: The Federal Government As A Civil Litigant 1 1.01 THE FEDERAL GOVERNMENT AS A PRIMARY ACTOR BEFORE THE CIVIL COURTS 1 1.02 THE ATTORNEY GENERAL AND THE DEPARTMENT OF JUSTICE 2 1.02(a) Introduction: Centralized Control Of Federal Government Litigation 2 1.02(b) The Attorney General And Centralized Litigation Authority 3 1.02(c) The Structure Of The Department Of Justice 7 1.02(d) The Litigating Divisions 9 1.02(d)(1) Introduction To The Litigating Divisions 9 1.02(d)(2) The Environment And Natural Resources Division 10 1.02(d)(3) The Civil Division 10 1.02(e) The United States Attorneys 12 1.02(f) The Solicitor General 14 1.03 THE GOVERNMENT LAWYER: NATURE OF WORK, THE GOVERNMENT CLIENT AND PUBLIC INTEREST, AND ETHICS 18 1.03(a) The Nature Of The Government Lawyer s Work 18 1.03(b) The Government As Client, The Public Interest, And The Moral Conscience Of The Government Lawyer 20 xix
xx Litigation With The Federal Government 1.03(c) The Ethical Responsibilities Of The Government Litigator 26 1.04 THE PRIVATE PRACTITIONER AND CONFLICTS OF INTEREST 31 1.05 JURISDICTION, VENUE, AND JUSTICIABILITY 33 1.06 SERVICE OF PROCESS UPON THE FEDERAL GOVERNMENT 36 1.07 DISCOVERY AND THE FEDERAL GOVERNMENT 38 1.07(a) Introduction: How Discovery Is The Same And How It Is Different With The Federal Government 38 1.07(b) General Rules Of Discovery And The Federal Government 39 1.07(c) Availability Of The Freedom Of Information Act To Obtain Information For Civil Litigation 42 1.07(d) Federal Government Privileges And Work Product Protection 44 1.07(d)(1) Introduction To Federal Government Privileges 44 1.07(d)(2) Executive Communication Privileges 45 1.07(d)(3) State Secrets Doctrine 48 1.07(d)(4) Other Government Privileges 49 1.07(e) Work Product Protection 50 1.08 THE GENERAL RULE OF NO JURY TRIALS IN FEDERAL GOVERNMENT CIVIL CASES 51 1.09 SETTLEMENT OF GOVERNMENT CASES 53 1.09(a) Negotiating Settlement With The Federal Government 53 1.09(a)(1) Frequency Of Settlement Of Government Cases 53 1.09(a)(2) Likely Outcome Of Case And Costs As Considerations In Settlement 54 1.09(a)(3) Special Governmental Considerations In Settlement 55 1.09(a)(4) Initiating Settlement Discussion And Offer 56 1.09(a)(5) Internal Settlement Approval Process 57
Contents xxi 1.09(b) Government Authority To Settle 59 1.09(b)(1) Allocation Of Settlement Authority In Department Of Justice 59 1.09(b)(2) Unauthorized Settlements Are Unenforceable 61 1.09(b)(3) Court Settlement Conferences And Settlement Authority 63 1.09(c) The Federal Government And Alternative Dispute Resolution 65 1.09(d) Payment By The Government After Settlement 66 1.10 PAYMENT OF JUDGMENTS AGAINST THE UNITED STATES AND INTEREST ON JUDGMENTS 66 1.10(a) The Judgment Fund For Payment Of Final Judgments 66 1.10(b) Setoff Against Judgment For Debts To United States 69 1.10(c) Interest On Judgments Against The Federal Government 70 Chapter 2: The Doctrine Of Federal Sovereign Immunity 73 2.01 INTRODUCTION TO FEDERAL SOVEREIGN IMMUNITY 73 2.02 THE HISTORY OF FEDERAL SOVEREIGN IMMUNITY 76 2.02(a) The Early Historical Origins Of Federal Sovereign Immunity In The United States 76 2.02(b) The Evolution Of The Doctrine Of Federal Sovereign Immunity In The Supreme Court 79 2.02(b)(1) Introduction To Federal Sovereign Immunity In The Supreme Court 79 2.02(b)(2) United States v. Lee 80 2.02(b)(3) Larson v. Domestic & Foreign Commerce Corp. 84 2.02(b)(4) Malone v. Bowdoin 87 2.02(b)(5) Summary Of The Current Doctrine Of Sovereign Immunity And Direct Officer Suits 88
xxii Litigation With The Federal Government 2.03 JUDICIAL CONSTRUCTION OF STATUTORY WAIVERS OF FEDERAL SOVEREIGN IMMUNITY 93 Chapter 3: Specific Statutory Waivers Of Sovereign Immunity 101 3.01 CATEGORIZATION OF STATUTORY WAIVERS OF SOVEREIGN IMMUNITY: SPECIFIC AND GENERAL 101 Part A: The Federal Tort Claims Act 102 3.02 INTRODUCTION TO THE FEDERAL TORT CLAIMS ACT 102 3.03 PREREQUISITES TO SUIT UNDER THE FTCA 105 3.03(a) The Administrative Claim Requirement 105 3.03(a)(1) Nature, Purpose, And Timing Of The Administrative Claim 105 3.03(a)(2) Presenting The Claim To The Appropriate Federal Agency 107 3.03(a)(3) Proper Notice In The Administrative Claim 108 3.03(a)(4) Statement Of Sum-Certain Amount Of Damages 111 3.03(a)(5) Evidence Of Authorization To Represent Claimant 113 3.03(b) The Two-Year Statute Of Limitations 113 3.03(b)(1) General Statute Of Limitations Rule 113 3.03(b)(2) The Discovery Rule 114 3.03(b)(3) Tolling Of FTCA Statute Of Limitations 116 3.04 COMMENCEMENT OF SUIT UNDER THE FTCA 118 3.04(a) Timing Of FTCA Action 118 3.04(b) Jurisdiction And Venue In FTCA Suit 119 3.04(c) United States As Proper Party In FTCA Action 119 3.04(d) Joining Non-Federal Parties To FTCA Suit 120 3.04(e) Third-Party Claims And Counterclaims 121 3.05 STANDARDS FOR IMPOSING LIABILITY UNDER THE FTCA 124 3.05(a) Outline Of Elements For Imposing Liability Under The FTCA 124
Contents xxiii 3.05(b) The State Law Liability Standard 125 3.05(b)(1) Identifying The State And Choice Of Law Rules 125 3.05(b)(2) Excluding Federal Law As The Basis For FTCA Claims 127 3.05(c) The Private Person Analogy 129 3.05(c)(1) The Private Person Analogy: Liability And Limitation 129 3.05(c)(2) Indian Towing v. United States: Liability Under Like Circumstances 129 3.05(c)(3) The Private Person Analogy In The Lower Federal Courts 131 3.05(c)(4) The Good Samaritan Doctrine In The Context Of Government Regulation 136 3.05(d) Liability For Wrongful Acts Or Omissions (Excluding Strict Liability) 138 3.05(e) The Scope-Of-Employment Requirement 139 3.06 EXCEPTIONS TO LIABILITY UNDER THE FTCA 141 3.06(a) Introduction To FTCA Exceptions 141 3.06(b) The Discretionary Function Exception 141 3.06(b)(1) Introduction To The Discretionary Function Exception 141 3.06(b)(2) Dalehite v. United States 142 3.06(b)(3) United States v. Varig Airlines 145 3.06(b)(4) Berkovitz v. United States 146 3.06(b)(5) United States v. Gaubert And The Current State Of The Law 149 3.06(c) The Misrepresentation Exception 154 3.06(d) The Intentional Tort Exception 156 3.06(d)(1) Introduction To The Intentional Tort Exception 156 3.06(d)(2) The Breadth Of The Intentional Tort Exception 158 3.06(d)(3) The Intentional Tort Exception And Claims For Negligent Hiring, Training, Or Supervision 161
xxiv Litigation With The Federal Government 3.06(e) The Foreign Country Exception 162 3.06(f) Other Exceptions To The FTCA 166 3.07 DAMAGES UNDER THE FTCA 167 3.08 CLAIMANTS EXCLUDED FROM RECOVERY UNDER THE FTCA 170 3.08(a) Introduction On Eligible Claimants Under The FTCA 170 3.08(b) Exclusion Of Federal Civilian Employees Injured On The Job (Federal Employees Compensation Act) 170 3.08(b)(1) Federal Employees Compensation Act Is Exclusive Remedy For Injuries On The Job 170 3.08(b)(2) General Unreviewability Of Secretary s Determinations Under The Federal Employees Compensation Act 171 3.08(b)(3) Stating The Problem: The Interrelationship Of The Federal Employees Compensation Act And The Federal Tort Claims Act 172 3.08(b)(4) Judicial Management Of The Intersection Of The Federal Employees Compensation Act And The Federal Tort Claims Act 173 3.08(b)(5) Advising clients Regarding Claims Under The Federal Employees Compensation Act And The Federal Tort Claims Act 176 3.08(c) Exclusion off Military Servicemembers Injured Incident To Service (The Feres Doctrine) 177 3.08(c)(1) Introduction To The Feres Doctrine 177 3.08(c)(2) Feres v. United States: Creation Of The Doctrine 178 3.08(c)(3) United States v. Johnson: Feres Revisited And Reaffirmed 179 3.08(c)(4) Feres, The FTCA, And The Veterans Benefits Act 182
Contents xxv 3.08(c)(5) The Meaning Of Incident To Service And The Scope Of The Feres Doctrine 183 3.08(c)(6) A Critique Of The Feres Doctrine And The Current State Of The Law 186 Part B: The Suits In Admiralty Act 187 3.09 MARITIME CLAIMS AGAINST THE UNITED STATES: THE SUITS IN ADMIRALTY ACT 187 3.10 THE JURISDICTIONAL SCOPE OF THE SUITS IN ADMIRALTY ACT, THE FEDERAL TORT CLAIMS ACT, AND THE PUBLIC VESSELS ACT 189 3.11 IMPLYING THE DISCRETIONARY FUNCTION EXCEPTION INTO THE SUITS IN ADMIRALTY ACT 192 Part C: Employment Discrimination Claims 194 3.12 FEDERAL SECTOR EMPLOYMENT DISCRIMINATION STATUTES 194 3.13 TITLE VII OF THE CIVIL RIGHTS ACT OF 1964 195 3.14 THE AGE DISCRIMINATION IN EMPLOYMENT ACT 198 3.15 DISABILITY DISCRIMINATION 198 Part D: Open Government And Privacy Laws 199 3.16 OPEN GOVERNMENT AND PRIVACY LAWS 199 3.16(a) The Freedom Of Information Act 200 3.16(b) The Privacy Act 201 3.16(c) The Government-In-The-Sunshine Act 202 Part E: The Social Security Act 202 3.17 DISABILITY LITIGATION UNDER THE SOCIAL SECURITY ACT 202 Part F: Environmental Protection Statutes 205 3.18 SUITS AGAINST THE FEDERAL GOVERNMENT UNDER ENVIRONMENTAL PROTECTION STATUTES 205 Part G: The Veterans Benefits Act 208 3.19 THE VETERANS BENEFITS ACT 208 Part H: The Religious Freedom Restoration Act 213
xxvi Litigation With The Federal Government 3.20 THE RELIGIOUS FREEDOM RESTORATION ACT 213 Part I: The Patent And Copyright Infringement Act 215 3.21 THE PATENT AND COPYRIGHT INFRINGEMENT ACT 215 Part J: Agencies With Sue-And-Be-Sued Clauses And Government Corporations 216 3.22 AGENCIES WITH SUE-AND-BE-SUED CLAUSES 216 3.23 GOVERNMENT CORPORATIONS 220 3.24 EXCEPTIONS TO SCOPE OF SUE-AND-BE-SUED CLAUSES 222 Chapter 4: General Statutory Waivers Of Sovereign Immunity 225 4.01 CATEGORIZATION OF STATUTORY WAIVERS OF SOVEREIGN IMMUNITY: SPECIFIC AND GENERAL 225 Part A: The Tucker Act And Related Non-Tort Money Claims 226 4.02 TRIAL COURT JURISDICTION THE UNITED STATES COURT OF FEDERAL CLAIMS AND THE UNITED STATES DISTRICT COURT 226 4.02(a) The United States Court Of Federal Claims 226 4.02(a)(1) The Origins Of The Court Of Claims 226 4.02(a)(2) The Modern Reconstitution Of The Court Of Claims Into The Court Of Federal Claims 228 4.02(a)(3) The Article I Status Of The Court Of Federal Claims 230 4.02(a)(4) The Varied Jurisdiction Of The Court Of Federal Claims 232 4.02(b) The Tucker Act As A Jurisdictional Statute 236 4.02(c) Concurrent Little Tucker Act Jurisdiction Of The United States District Court 237 4.02(d) Section 1500 And Claims Pending Simultaneously In The Court Of Federal Claims And Another Court 239 4.02(d)(1) Introducing The Problem Of Simultaneous Pending Claims In Different Courts 239
Contents xxvii 4.02(d)(2) The Origin Of Section 1500 As The Response To A Peculiar Historical Problem 241 4.02(d)(3) Section 1500 And The Prior-Filed Suit Scenario 242 4.02(d)(4) Section 1500 And The Later-Filed Suit Scenario 242 4.02(d)(5) Defining The Same Claim For Purposes Of Section 1500 244 4.02(d)(6) Proposals To Repeal Section 1500 245 4.02(e) Relief Available Under the The Tucker Act And In The Court Of Federal Claims 245 4.02(f) Six-Year Statute Of Limitations For Claims In The Court Of Federal Claims 248 4.02(g) Counterclaims By The Government In The Court Of Federal Claims 249 4.03 APPELLATE JURISDICTION THE UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 250 4.03(a) The Historical Origin And Nature Of The Federal Circuit 250 4.03(b) The Federal Circuit s General And Exclusive Jurisdiction Over Tucker Act Appeals 251 4.03(c) The Federal Circuit s Exclusive Jurisdiction Over Appeals In Mixed Cases With Both Little Tucker Act And Other Claims 251 4.03(d) The Federal Circuit s Non-Exclusive Jurisdiction Over Appeals From Final District Court Judgments In Disguised Big Tucker Act Cases 252 4.03(e) The Federal Circuit s Exclusive Jurisdiction Over Interlocutory Appeals From District Courts In Disguised Big Tucker Act Cases 253 4.03(f) The Federal Circuit s Appellate Jurisdiction Over Non-Tucker Act Matters 255 4.04 THE TUCKER ACT AND STATUTORY MONEY CLAIMS 256 4.04(a) The Tucker Act As A Waiver Of Sovereign Immunity For Money Claims 256
xxviii Litigation With The Federal Government 4.04(b) The Requirement Of A Money-Mandating Provision For Tucker Act Claims Founded Upon Statute 257 4.05 CIVILIAN EMPLOYMENT CLAIMS 261 4.05(a) The Tucker Act As The Former Means For Judicial Review Of Civilian Employment Claims 261 4.05(b) The Civil Service Reform Act As The Exclusive Means For Judicial Review Of Most Civilian Employment Claims 261 4.05(c) The Back Pay Act And Judicial Review Of Personnel Actions 265 4.05(d) Civilian Employment Matters Outside The Exclusive Coverage Of The Civil Service Reform Act 268 4.06 MILITARY EMPLOYMENT CLAIMS 269 4.06(a) Military Pay Act Claims Under The Tucker Act 269 4.06(b) The Availability Of The Administrative Procedure Act As An Alternative To The Tucker Act For Relief In Military Employment Cases 273 4.07 INDIAN MONEY CLAIMS 279 4.07(a) Indian Claims, The Tucker Act, And The Indian Tucker Act 279 4.07(b) The Mitchell Decisions 282 4.07(c) The Navajo Nation And White Mountain Apache Decisions 283 4.07(c)(1) The Navajo Nation Decision 284 4.07(c)(2) The White Mountain Apache Decision 285 4.07(d) The Role Of The Indian Trust Doctrine In Inferring A Substantive Right To Monetary Relief 287 4.07(e) Factors In Finding An Actionable Indian Trust Relationship 289 4.07(e)(1) Express Statutory Denomination Of Trust 290 4.07(e)(2) Role Of Trust Relationship And General Common Law Of Trust 290 4.07(e)(3) Control Of Indian Resources By Government 292
Contents xxix 4.07(e)(4) The Counter-Factor Of A Statutory Purpose To Encourage Indian Self-Determination 293 4.07(f) Indian Trust Claims Outside Of The Tucker Act 294 4.08 THE TUCKER ACT, THE CONTRACT DISPUTES ACT, AND CONTRACT CLAIMS 298 4.08(a) Introduction To Government Contract Claims 298 4.08(b) The Contract Disputes Act 299 4.08(b)(1) Scope Of The Contract Disputes Act 299 4.08(b)(2) Administrative Submission Of A Claim Under The Contract Disputes Act 300 4.08(b)(3) Review By The Court Of Federal Claims Or The Board Of Contract Appeals 303 4.08(b)(4) Relief Available Under The Contract Disputes Act And The Bar On Specific Performance 306 4.08(b)(5) Bid Protest Litigation 310 4.08(c) Contracts Outside The Scope Of The Contract Disputes Act 314 4.08(d) Implied Contracts Under The Tucker Act 317 4.08(e) Governing Law For Federal Contracts 320 4.08(f) The Sovereign Acts Doctrine Or Defense 321 4.09 THE TUCKER ACT CLAIMS FOUNDED UPON THE CONSTITUTION 327 4.09(a) Introduction To Constitutional Claims Under The Tucker Act 327 4.09(b) Fifth Amendment Takings Claims Under The Tucker Act 327 4.09(c) Other Constitutional Claims Under The Tucker Act 330 Part B: The Administrative Procedure Act And Claims For Specific Relief 331
xxx Litigation With The Federal Government 4.10 THE ADMINISTRATIVE PROCEDURE ACT 331 4.10(a) Introduction To The Administrative Procedure Act 331 4.10(b) The History Of Sovereign Immunity And The Administrative Procedure Act 333 4.10(c) Judicial Review Under The Administrative Procedure Act 335 Part C: The Relationship Between The Administrative Procedure Act And The Tucker Act 336 4.11 THE UNEASY BORDER BETWEEN THE ADMINISTRATIVE PROCEDURE ACT AND THE TUCKER ACT 336 4.12 BLURRING THE LINES: THE SUPREME COURT S DECISION IN BOWEN v. MASSACHUSETTS 338 4.12(a) The Supreme Court s Decision In Bowen v. Massachusetts 338 4.12(b) A Summary Of The Critique And The Impact Of Bowen v. Massachusetts 341 4.13 RECENT JUDICIAL CLARIFICATIONS REGARDING THE RELATIONSHIP BETWEEN THE ADMINISTRATIVE PROCEDURE ACT AND THE TUCKER ACT 343 4.13(a) Supreme Court Decisions After Bowen v. Massachusetts 343 4.13(b) Federal Circuit Decisions After Bowen v. Massachusetts 346 Chapter 5: Suits Against Federal Officers Or Employees 353 5.01 INTRODUCTION TO SUITS AGAINST FEDERAL OFFICERS OR EMPLOYEES 353 Part A: Suits Far Specific Or Equitable-Type Relief Against Federal Officers 355 5.02 NON-STATUTORY SUITS AGAINST FEDERAL OFFICERS 355 5.03 THE ADMINISTRATIVE PROCEDURE ACT 356 5.04 MANDAMUS 357
Contents xxxi Part B: Suits For Damages Against Federal Officers 358 5.05 INTRODUCTION TO SUIT FOR DAMAGES AGAINST FEDERAL OFFICERS 358 5.06 COMMON-LAW CLAIMS FOR DAMAGES AND IMMUNITY OF FEDERAL OFFICERS 358 5.06(a) Common-Law Claims Against Federal Officers 358 5.06(b) Judicial Precursors To Immunity For Federal Officers From Common-Law Suits 359 5.06(c) Statutory Immunity For Federal Officers From Common-Law Suits (The Westfall Act) 362 5.06(c)(1) Introduction To The Westfall Act 362 5.06(c)(2) The Legal Effect Of Officer Immunity And Substitution Of The United States As Defendant 362 5.06(c)(3) Attorney General Certification And Judicial Review Of Scope Of Employment 364 5.06(c)(4) Governing Law And Factual Determination Of Scope Of Employment Question 367 5.06(c)(5) Removal To Federal Court In Westfall Act Cases 370 5.06(c)(6) Exceptions To Westfall Act Immunity 373 5.07 CONSTITUTIONAL CLAIMS FOR DAMAGES AGAINST FEDERAL OFFICERS BIVENS SUITS 373 5.07(a) Introduction To Constitutional Damages Claims 373 5.07(b) Judicial Implication Of A Cause Of Action For Damages For Constitutional Violations Against Federal Officers Bivens v. Six Unknown Named Agents 375 5.07(c) Limitations On Implying A Cause Of Action For Damages For Constitutional Violations 378 5.07(d) Immunity Of Federal Officers Against Constitutional Suits For Damages 382 5.07(d)(1) Introduction To Immunity In Bivens Cases 382
xxxii Litigation With The Federal Government 5.07(d)(2) Adoption And Definition Of Qualified Immunity For Federal Officers Against Constitutional Suits For Damages 383 5.07(d)(3) Determining The Objective Reasonableness Of Official Conduct For Qualified Immunity Purposes 385 5.07(d)(4) Resolving The Qualified Immunity Question At Early Stage 388 5.07(e) Representation Of Federal Officers Against Constitutional Claims 391 5.07(f) Implying A Constitutional Claim For Damages Against The United States 392 5.07(g) The Choice Between Imposing Liability On The Employee And Imposing Liability Upon The Government For Constitutional Violations 394 Chapter 6: Binding The Federal Government 399 Part A: Unauthorized Representations By Government Employees Equitable Estoppel 399 6.01 INTRODUCTION TO THE QUESTION OF EQUITABLE ESTOPPEL AGAINST THE FEDERAL GOVERNMENT 399 6.02 THE PRESUMPTION AGAINST ESTOPPEL OF THE FEDERAL GOVERNMENT 401 6.03 THE PROHIBITION ON ESTOPPEL OF THE FEDERAL GOVERNMENT IN STATUTORY MONEY CASES 403 6.04 A CRITIQUE OF GOVERNMENTAL ESTOPPEL LAW 405 6.05 THE CONTINUED AVAILABILITY OF ESTOPPEL AGAINST THE GOVERNMENT? 407 Part B: Prior Adjudication: Preclusion And Stare Decisis 410 6.06 INTRODUCTION TO PRIOR ADJUDICATION AND PRECLUSION 410 6.07 THE UNAVAILABILITY OF NONMUTUAL PRECLUSION AGAINST THE GOVERNMENT 411
Contents xxxiii 6.08 PRECLUSION AND SOVEREIGN IMMUNITY 413 6.09 STARE DECISIS AND GOVERNMENTAL NONACQUIESCENCE IN LOWER COURT PRECEDENT 418 Chapter 7: Attorney s Fees: Limitations And Awards 427 7.01 INTRODUCTION TO ATTORNEY S FEES IN FEDERAL GOVERNMENT LITIGATION 427 Part A: Limitations On Private Attorney s Fee Contracts In Federal Government Cases 428 7.02 INTRODUCTION TO LIMITATIONS ON FEE CONTRACTS 428 7.03 LIMITATION ON ATTORNEY S FEES IN FEDERAL TORT CLAIMS ACT CASES 429 7.03(a) The Basic Statutory Limitation On Fees 429 7.03(b) Calculating The Fee When Recovery Involves Future Payments Or Non-Monetary Benefits 429 7.04 LIMITATION ON ATTORNEY S FEES IN SOCIAL SECURITY BENEFITS CASES 430 7.04(a) The Purpose Of The Limitation On Fees And Judicial Review 430 7.04(b) The Previous Debate On Proper Measurement Of Fees 431 7.04(c) The Supreme Court s Standard For Measuring Fees 433 7.04(d) Refunding the The Contingency Fee To The Client In Fee-Shifting Situations 434 Part B: Awards Of Attorney s Fees In Federal Government Cases 435 7.05 INTRODUCTION TO FEE-SHIFTING IN FEDERAL GOVERNMENT CASES 435 7.06 SOVEREIGN IMMUNITY AND THE AMERICAN RULE ON ATTORNEY S FEES 436 7.07 BASIC PRINCIPLES FOR AWARDING ATTORNEY S FEES 437 7.07(a) Introduction To Awards Of Attorney s Fees 437 7.07(b) Eligibility For A Fee Award Prevailing Party Status 438
xxxiv Litigation With The Federal Government 7.07(c) Entitlement To A Fee Award 441 7.07(d) Measurement Of A Fee Award 441 7.07(d)(1) The Road To The Lodestar Approach 442 7.07(d)(2) The Lodestar Hours Reasonably Expended 443 7.07(d)(3) The Lodestar A Reasonable Hourly Rate 450 7.07(d)(4) Upward Adjustments To The Lodestar (Multipliers) 451 7.07(d)(5) Downward Departures Based Upon Degree Of Success 452 7.07(d)(6) Compensation For Delay In Receipt Of Fees 455 7.07(d)(7) Fees For Fees 455 7.07(e) Calculation Of Fees In Federal Government Cases 456 7.07(f) Timing And Procedure For Fee Applications 458 7.08 ATTORNEY S FEE AWARDS IN EMPLOYMENT DISCRIMINATION CASES AGAINST THE GOVERNMENT 459 7.08(a) Fee Awards Under Title VII Of The Civil Rights Act Of 1964 459 7.08(b) Fee Awards Under Age Discrimination In Employment Act 460 7.08(c) Fee Awards In Disability Discrimination Cases 461 7.09 ATTORNEY S FEE AWARDS UNDER OPEN GOVERNMENT AND PRIVACY LAWS 461 7.09(a) Availability Of Fees 461 7.09(b) Eligibility For A Fee Award 463 7.09(c) Entitlement to To A Fee Award 465 7.10 ATTORNEY S FEE AWARDS UNDER ENVIRONMENTAL PROTECTION STATUTES 467 7.10(a) Introduction To Awards Of Fees Under Environmental Statutes 467 7.10(b) Awards Of Fees As Appropriate And The Prevailing Requirement 468
Contents xxxv 7.10(c) Awards Of Fees As Appropriate And The Catalyst Theory 470 7.10(d) Awards Of Fees In Environmental Cases Against The Government 472 7.10(e) Concluding Thoughts On Success In Environmental Cases 473 7.11 THE EQUAL ACCESS TO JUSTICE ACT 474 7.11(a) History, Purposes, And Overview Of The Equal Access To Justice Act 474 7.11(a)(1) Introduction To The EAJA 474 7.11(a)(2) Legislative History Of The EAJA 475 7.11(a)(3) Overview Of The EAJA 476 7.11(a)(4) Purposes Of The EAJA 478 7.11(b) EAJA Subsection (b) General Waiver For Fees 480 7.11(b)(1) Subsection (b) As A General Waiver For Fees 480 7.11(b)(2) Common-Law Fee-Shifting Awards 480 7.11(b)(3) Statutory Fee-Shifting Awards 482 7.11(c) EAJA Subsection (d) Fees For Unreasonable Government Conduct 483 7.11(c)(1) Subsection (d) Scope 483 7.11(c)(2) Subsection (d) Eligibility For A Fee Award 484 7.11(c)(3) Subsection (d) Entitlement To A Fee Award (Substantial Justification Standard) 486 7.11(c)(4) Subsection (d) Measurement Of Fee (Rate Ceiling) 491 7.11(c)(5) Subsection (d) Measurement Of Fee (Cost Of Living Adjustment) 492 7.11(c)(6) Subsection (d) Measurement Of Fee (Special Factor Enhancement) 494 7.11(c)(7) Subsection (d) Timing Of Application For Fees 500
xxxvi Litigation With The Federal Government Chapter 8: The United States As Plaintiff 503 8.01 INTRODUCTION TO THE UNITED STATES AS PLAINTIFF 503 Part A: Power To Sue 504 8.02 GOVERNMENT POWER TO FILE SUIT: GENERALLY 504 8.03 THE POWER OF THE UNITED STATES TO SUE IN THE ABSENCE OF STATUTORY AUTHORIZATION 505 8.03(a) Whether The United States Has Inherent Power To Sue 505 8.03(b) United States v. City Of Philadelphia 506 8.03(c) Other Decisions Denying Inherent Power To Sue 509 8.03(d) In re Estelle 509 8.03(e) Scholarly Commentary On Government Power To Sue 511 8.04 RECENT DEVELOPMENTS: GOVERNMENT SUITS AGAINST TOBACCO AND FIREARMS MANUFACTURERS 512 8.04(a) The Power To Sue Controversy Continues 512 8.04(b) The Federal Government s Lawsuit Against Tobacco Companies 512 8.04(c) The Federal Government Declines To Sue Handgun Manufacturers 516 8.05 DEBT COLLECTION 517 8.06 CIVIL FORFEITURE CLAIMS BY THE UNITED STATES 519 8.06(a) Civil Forfeiture As A Special Example Of The United States As Plaintiff 519 8.06(b) The Civil Asset Forfeiture Reform Act Of 2000 520 8.06(c) Forfeiture, Notice, Contest, Pleading, And Judicial Review 521 8.06(d) Burden Of Proof On Government To Justify Forfeiture 523 8.06(e) The Innocent Owner Defense 523
Contents xxxvii 8.06(f) Right To Legal Counsel In Forfeiture Cases 524 8.06(g) Remedies To Successful Claimants 524 Part B: Time Limitations Statute Of Limitations And Laches 525 8.07 INTRODUCTION TO TIME LIMITATIONS ON THE FEDERAL GOVERNMENT 525 8.08 EXPRESS STATUTES OF LIMITATIONS ON GOVERNMENT SUITS 526 8.09 TIME LIMITATIONS ON GOVERNMENT SUITS IN THE ABSENCE OF A FEDERAL STATUTE OF LIMITATIONS 527 8.10 THE APPLICABILITY OF THE EQUITABLE DOCTRINE OF LACHES TO THE UNITED STATES 529 8.11 TIME LIMITATIONS WHEN THE GOVERNMENT IS ASSIGNED PRIVATE RIGHTS OR ACTS IN A NON-SOVEREIGN CAPACITY 531 Part C: Counterclaims Against The United States 533 8.12 WAIVER OF SOVEREIGN IMMUNITY NECESSARY FOR COUNTERCLAIM AGAINST UNITED STATES 533 8.13 SET-OFFS AGAINST UNITED STATES 536 Table Of Cases 539 Table Of Statutes 565 Table Of Books And Journals 579 Index Of Subjects 597