Appeal from an order of the United States District Court for the Southern District of New York, Duffy, J., granting appellee Kathie Boudin attorney's fees of $37,740 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1982). Boudin cross-appealed from the district court's failure to consider her motion for attorney's fees under 42 U.S.C. § 1988 (Supp. IV 1980), its award of only half of the fees requested in her EAJA motion, its denial of fees based on reconstructed records and its denial of fees for expert witnesses. We reverse the judgment of the district court on the main appeal, affirm on the cross-appeal for fees under section 1988 and dismiss the remainder of the cross-appeal as moot.
Meskill, Cardamone and Pierce, Circuit Judges.
The United States appeals from an order of the United States District Court for the Southern District of New York, Duffy, J., granting appellee Kathie Boudin attorney's fees of $37,740 under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412 (1982). The fees were based on earlier litigation over the conditions of Boudin's confinement at the Metropolitan Correctional Center (MCC), a federal correctional institution in New York City. Boudin cross-appealed from the district court's failure to consider her motion for attorney's fees under 42 U.S.C. § 1988 (Supp. IV 1980), its award of only half of the fees requested in her EAJA motion, its denial of fees based on reconstructed records and its denial of fees for expert witnesses. We reverse the judgment of the district court on the main appeal, affirm on the crossappeal for fees under section 1988 and dismiss the remainder of the cross-appeal as moot.
Kathie Boudin was arrested on October 20, 1981 while fleeing the scene of an armed robbery of a Brinks truck during which a Brinks guard and two policemen were killed. She was not alleged to have been armed. Boudin was indicted on three counts of second degree murder and six counts of first degree robbery, as well as two assault counts and two theft counts.
Initially, Boudin was taken to the Rockland County Jail. Officials there were concerned with the lack of adequate security measures at the jail and requested her transfer to the custody of the Federal Bureau of Prisons. Boudin arrived at the MCC on October 26, 1981.
Boudin's alleged connections to terrorists in the Weather Underground and the Black Liberation Army were the subject of widespread news articles as well as FBI reports and reports of other law enforcement agencies. Prison officials at the MCC, aware of these reports and of the views of the law enforcement agencies that Boudin might be connected to the terrorist groups, feared a violent escape attempt. Their response was to place Boudin and her co-defendant Judith Clark in "administrative detention." This consisted of confining Boudin and Clark to their cells (with meals served there) except for one hour of recreation alone in the hallway next to their cells. Boudin and Clark were separated from each other, as well as from the rest of the prison inmates. Both were denied contact visits with anyone, including their infant children. Non-contact visits were allowed with immediate family members two days a week for two hour time periods and unlimited attorney visits were allowed between 8:00 a.m. and 8:30 p.m.
Boudin challenged these conditions in the district court. On January 7, 1982, the district court granted the relief Boudin sought. It ordered Boudin released from administrative detention and returned to the general prison population and also ordered the MCC to allow Boudin contact visits.*fn1 533 F. Supp. 786 (S.D.N.Y. 1982). Several hours before the district court's opinion was filed, the MCC transferred Boudin to Woodbourne, a New York state facility. The government's motion to have the January 7 order vacated as moot was denied and the government's appeal of that order was later dismissed without prejudice by order of this Court. Boudin v. Thomas, 697 F.2d 288 (2d Cir., 1982) (reprinted in Supp. J. App. at 450).
Boudin subsequently moved for attorney's fees under the EAJA and under the attorney's fees provision of the Civil Rights Act, 42 U.S.C. § 1988 (Supp. IV 1980). The district court granted the motion under the EAJA. 554 F. Supp. 703 (S.D.N.Y. 1982). It did not consider the motion under section 1988 because it considered an award under that section "duplicative." Id. at 705 n.5. After the parties submitted memoranda on the proper amount of attorney's fees, the district court awarded half of Boudin's request of $75,480 on the ground that the time spent on Boudin's petition was "obviously excessive in light of the petition presented to the court and its legal issues." 559 F. Supp. 521, 522 (S.D.N.Y. 1983). It also denied fees for the expert witnesses employed by Boudin. Id. This appeal and cross-appeal followed.
This appeal concerns the interpretation of the Equal Access to Justice Act of 1980, Pub. L. 96-481, § 204(a), 94 Stat. 2321, 2327-29. For purposes of this appeal, the pertinent part of the EAJA is 28 U.S.C. § 2412(d)(1)(A) (1982) which states:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), 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.
(emphasis added). In short, the Act authorizes the award of attorney's fees to a party litigating against the government when the party claiming attorney's fees was the "prevailing party" in a "civil action" unless the government successfully bears the burden of showing that its position was "substantially justified," see Environmental Defense Fund National v. Watt, 722 F.2d 1081, 1085 (2d Cir. 1983), or special circumstances make an award unjust.
A. Whether Boudin Was the "Prevailing Party "
Boudin was the "prevailing party" in both the original litigation and the government's appeal. Her success in the district court action is obvious. As for the question of her success on the government's earlier appeal, this Court's decision in Hastings v. Maine-Endwell Central School District, 676 F.2d 893, 896-97 (2d Cir. 1982), supports Boudin's contention that ...