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08/23/88 James Wilkett D/B/A v. Te Commerce Commission and

August 23, 1988

JAMES WILKETT D/B/A WILKETT TRUCKING CO., PETITIONER

v.

INTERSTATE COMMERCE COMMISSION AND UNITED STATES OF AMERICA, RESPONDENTS 1988.CDC.335



UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

On Respondents' Suggestion For Rehearing En Banc. Suggestion Denied by Order Filed June 30, 1988.

APPELLATE PANEL:

Concurrence in the denial of rehearing en banc filed by Circuit Judge Edwards. Dissent from the denial of rehearing en banc filed by Circuit Judge Starr, in which Circuit Judges Buckley, D.H. Ginsburg and Sentelle join. Dissent from the denial of rehearing en banc filed by Circuit Judge Williams.

On Respondents' Suggestion For Rehearing En Banc. IN AGREEMENT

EDWARDS, Circuit Judge, concurring in the denial of rehearing en banc:

Five years ago, in a unanimous opinion in which I joined with Judge McGowan and Judge MacKinnon, this court held that the ICC's denial of Wilkett Trucking Company's application for expanded license authority to transport coal from all points in Oklahoma to any point in Texas was arbitrary and capricious. Wilkett v. ICC, 228 U.S. App. D.C. 350, 710 F.2d 861 (D.C. Cir. 1983) (" Wilkett I "). In reaching this judgment, the panel found the ICC decision to be "misdirected," id. at 863, and "unreasonable," id. at 864, in part because the agency action constituted "an unexplained departure from previously applied standards." Id. at 865. No member of this court saw reason to call for a vote for rehearing en banc to question the opinion of the panel in Wilkett I.

Five years after the decision on the merits in Wilkett I, a second unanimous panel of this court awarded fees to Wilkett under the Equal Access to Justice Act , 28 U.S.C. ยง 2412 (1982 & Supp. III 1985), as the prevailing party in the underlying case against the ICC. Wilkett v. ICC, 228 U.S. App. D.C. 350, 844 F.2d 867 (D.C. Cir. 1988) (" Wilkett II "). In reaching this result, the panel found that the position of the Government in the underlying litigation was not "substantially justified," id. at 871-73, and that "unusual delay" in the award of fees could be considered a "special factor" under EAJA. Id. at 876. In an Order issued on June 30, 1988, a majority of the judges on the court voted against a suggestion for rehearing en banc in Wilkett II.

In light of the history of this case, it is perplexing to read Judge Williams' dissent from the denial of rehearing en banc in Wilkett II. Judge Williams' principal complaint is that "the underlying decision [in Wilkett I ] is troubling," and so he seeks some measure of relief by overturning the entire award of fees in Wilkett II. Although Judge Williams recognizes that "the court cannot use the en banc procedure to correct every opinion that a majority regards as erroneous," he appears to abandon this precept in seeking en banc review in Wilkett II.

A unanimous panel judgment that agency action is not "substantially justified" surely presents a compelling situation in which the judges of this court ought to be constrained to give significant weight to the decision of a three-judge panel in considering a suggestion for rehearing en banc. This is especially true in a case of this sort, where both the original panel and a second unanimous panel deciding the attorney fee issue have found that the ICC's decision reflected a "gross failure" to follow previously applied agency standards. Wilkett II, 844 F.2d at 872. I agree with Judge Williams that this case is "simple." This is why the panel in Wilkett II found that the Commission action was not "substantially justified" under any measure of that standard. 844 F.2d at 871 n.2.

In his separate opinion dissenting from the denial of rehearing en banc, Judge Starr raises a different--and not insignificant--issue regarding the question of "delay." Judge Starr's disagreement with the panel opinion focuses on an interpretation of the Supreme Court's decision in Library of Congress v. Shaw 478 U.S. 310, 106 S. Ct. 2957, 92 L. Ed. 2d 250 (1986). As Judge Starr notes, the Court in Shaw indicated that there must be a clear waiver of the no-interest rule for the shield of sovereign immunity to be lifted; but, as the panel opinion in Wilkett II notes, Shaw did not purport to interpret the Equal Access to Justice Act. Wilkett II, 844 F.2d at 876. In this case, relying on the statutory language of EAJA (which is quite different from the statutory fee provision considered in Shaw), the panel found that fees could be awarded for "unusual delay" in limited circumstances. Id.

If there is some doubt about the decision on the question of delay, it is noteworthy that the holding on this point is very limited. The panel in Wilkett II said the following:

We emphasize . . . that no adjustment of the $75 cap other than that necessary to compensate for an increase in the cost of living is available in routine cases. Some delay in payment is inevitable, given the strain under which almost all courts labor. The normal delay attendant on litigation of a fee request can hardly be called a " special factor." Nor will we permit an increase in the cap in every instance when there has been a delay in payment that is unusually long. If, for example, a prolonged delay is attributable to the negligence of the party requesting fees, an upward revision of the adjusted cap might not be warranted. Where the delay is exceptional and not attributable to negligence or improper conduct by the prevailing party, however, an increase might be appropriate where the prevailing party is able to justify the increase it seeks.

Wilkett II, 844 F.2d at 876. It is plain from the foregoing language--especially when considered in light of the highly unusual facts that resulted in the delay in this case, that there ...


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