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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 10, 2003 Decided September 2, 2003
No. 02-5045
TRI–STATE HOSPITAL SUPPLY CORPORATION,
APPELLANT
v.
UNITED STATES OF AMERICA,
APPELLEE
Appeal from the United States District Court
for the District of Columbia
(No. 00cv01463)
Terence J. Lynam argued the cause for the appellant.
John M. Dowd and Joseph P. Esposito were on brief.
Lisa S. Goldfluss, Assistant United States Attorney, ar-
gued the cause for the appellee. Roscoe C. Howard, Jr.,
United States Attorney, and R. Craig Lawrence, Assistant
United States Attorney, were on brief.
Bills of costs must be filed within 14 days after entry of judgment.
The court looks with disfavor upon motions to file bills of costs out
of time.
2
Before: HENDERSON and ROGERS, Circuit Judges, and
SILBERMAN, Senior Circuit Judge.
Opinion for the court filed by Circuit Judge HENDERSON.
Separate concurring opinion filed by Circuit Judge ROGERS.
Separate concurring opinion filed by Senior Circuit Judge
SILBERMAN.
KAREN LECRAFT HENDERSON, Circuit Judge: Tri–State Hos-
pital Supply Corporation (Tri–State) seeks reversal of the
final judgment of the district court dismissing its complaint
against the United States for want of subject matter jurisdic-
tion. Relying on the Federal Tort Claims Act (FTCA), 28
U.S.C. §§ 2671 et seq., Tri–State sought to recover $3.2
million in damages for the ‘‘injury or loss of property’’ it
incurred over a six-year period defending itself against the
government’s multiple investigations into its importation of
surgical instruments from Pakistan. Granting the govern-
ment’s motion to dismiss, the district court held that it lacked
authority to award the relief sought by Tri–State because the
FTCA does not expressly waive the sovereign immunity of
the United States from liability for attorney’s fees. Tri-State
Hosp. Supply Corp. v. United States, 142 F. Supp. 2d 93, 101–
04 (D.D.C. 2001) (Tri-State).
On appeal, Tri–State argues that the district court erred in
holding that ‘‘money damages TTT for injury or loss of proper-
ty,’’ 28 U.S.C. § 1346(b)(1), recoverable under the FTCA for
claims of abuse of process and malicious prosecution, id.
§ 2680(h), do not include the attorney’s fees Tri–State ex-
pended defending itself against the government’s alleged
torts. We agree and hold that attorney’s fees qua damages
are recoverable against the United States for abuse of pro-
cess and malicious prosecution if ‘‘the law of the place’’ where
the tort occurred so provides. Id. § 1346(b)(1). Accordingly,
we reverse the district court’s dismissal of Tri–State’s action
and remand the matter for further proceedings to consider
Tri–State’s specific FTCA allegations.
3
I. Background
Tri–State is a small, privately-owned corporation that sells
hospital supplies throughout the United States.1 In the early
1980s, Tri–State began importing surgical instruments—for-
ceps, scissors and the like—from suppliers in Pakistan. The
surgical instruments entered the United States at the Port of
Detroit, where Tri–State engaged the services of a licensed
customs broker, LEP International, Inc. (LEP), to complete
the required customs entry forms. The forms require the
importer to list ‘‘the price actually paid or payable’’ for goods
entering the country. 19 U.S.C. § 1401a(b)(1).
Although Tri–State in fact paid the invoice price for the
imported goods, it subsequently received rebates from its
Pakistani suppliers. From 1984 to 1986, Tri–State consulted
with LEP regarding the manner in which it should declare
the price ‘‘actually paid or payable’’ for the surgical instru-
ments it imported from Pakistan. LEP advised Tri–State to
declare the price that was reflected on the invoices accompa-
nying the imported supplies. As a result, Tri–State declared
a higher price on the customs entry forms than the price it
ultimately paid for the supplies after deducting the subse-
quent rebates. Because the goods imported from Pakistan
were duty-free, however, the United States Customs Service
(Customs) suffered no loss of revenue as a result of this
practice.2 The customs entry forms do not require disclosure
of any price rebate. See id.
Beginning in early 1994, Tri–State became the subject of
civil and criminal investigations for allegedly falsifying the
1 Because we review here the dismissal of Tri–State’s complaint
for lack of subject matter jurisdiction, ‘‘we ‘must accept as true all
of the factual allegations contained in the complaint.’ ’’ Scandinavi-
an Satellite Sys., AS v. Prime TV Ltd., 291 F.3d 839, 844 (D.C. Cir.
2002) (quoting Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 n.1
(2002)).
2 ‘‘In fact, by declaring only the higher invoice price, Tri–State
paid more money to Customs in merchandise processing fees than it
would have paid if it [had] declared a lower price (after deduction of
the rebates) for the instruments.’’ Complaint at ¶ 12.
4
forms it submitted to Customs. On March 28, 1994, Customs
officials executed a search warrant at Tri–State’s headquar-
ters, seizing evidence relating to the value of surgical instru-
ments imported from Pakistan. Over the next year, Customs
sought the indictment of Tri–State and two of its executives
for criminal customs fraud. These efforts ultimately proved
unsuccessful, however, as both the United States Attorney for
the Eastern District of Michigan and the United States
Attorney for the Eastern District of Virginia declined to
prosecute Tri–State.
Notwithstanding the federal prosecutors’ decision not to
indict Tri–State for criminal customs fraud, Customs began to
issue a series of civil penalty notices against Tri–State in 1995
based upon allegations that it had fraudulently overstated the
prices it had paid for imported surgical instruments and that
it had engaged in an international money laundering scheme.
Undaunted, Tri–State steadfastly refused to pay any of the
amounts alleged in the various penalty notices. In November
1996, Customs referred its case to the Department of Justice
(DOJ) for the collection of civil penalties. DOJ then brought
suit against Tri–State, on behalf of Customs, in the United
States Court of International Trade (CIT) on April 28, 1997.
On numerous occasions before and during the enforcement
trial, Tri–State’s counsel explained to both DOJ and Customs
that Tri–State had relied on LEP’s advice in reporting the
prices of the surgical supplies it had imported from Pakistan.
Evidence likewise emerged both before and during trial that
indicated that Tri–State had not in fact engaged in any
fraudulent scheme. After the government rested its case,
Tri–State moved for judgment as a matter of law on two of
the three counts. DOJ then decided to dismiss its fraud
claim against Tri–State. The CIT subsequently granted Tri–
State’s motion for judgment as a matter of law on the gross
negligence count, finding ‘‘[no] evidence which rises to the
level of willful or wanton conduct.’’ Complaint at ¶ 156. At
the close of trial, the jury deliberated on the sole remaining
negligence count and returned a verdict in Tri–State’s favor.
5
Tri–State filed the instant lawsuit under the FTCA on June
20, 2000 to recover the $3.2 million in attorney’s fees it had
incurred defending itself against the government. Count I of
the complaint alleged that the government engaged in a
malicious prosecution because it lacked probable cause to
issue the penalty notices against Tri–State or to sue Tri–State
for collection of those penalties in the CIT. It also claimed
that Customs officials knowingly violated their own regula-
tions by seeking to impose civil penalties on Tri–State.
Count II alleged that the government engaged in an abuse of
process in connection with the penalty notices and enforce-
ment trial.
The government then moved to dismiss Tri–State’s com-
plaint for lack of subject matter jurisdiction, arguing that
Tri–State’s claims were jurisdictionally barred because the
United States had not waived its sovereign immunity from
suit. Granting the government’s motion to dismiss in part,3
the district court held that because the FTCA does not
contain an express waiver of sovereign immunity for the
recovery of attorney’s fees, it lacked authority to award as
damages the attorney’s fees Tri–State expended defending
3 The district court likewise dismissed, as jurisdictionally barred,
Tri–State’s claims arising from the alleged conduct of DOJ attor-
neys. Tri-State, 142 F. Supp. 2d at 98. Concluding that the federal
prosecutors were not ‘‘investigative or law enforcement officers’’ as
defined by the FTCA, the district court held that claims arising
from their conduct were barred by 28 U.S.C. § 2680(h), the FTCA’s
abuse of process/malicious prosecution exception. Id. However,
the district court also concluded that the Customs officials refer-
enced in the complaint could be considered ‘‘investigative or law
enforcement officers’’ under section 2680(h); it therefore held that
Tri–State’s claims based on the alleged torts of Customs officials
were not barred. Id. at 98–100. In addition, the district court
rejected the government’s argument that Tri–State’s claims against
Customs officials for falsifying records, lying under oath and violat-
ing customs regulations were barred by the FTCA’s discretionary
function exception. Id. at 100–101. These other rulings are not
before us, however, as the government chose not to cross-appeal.
6
itself against the government’s alleged tortious conduct. Tri-
State, 142 F. Supp. 2d at 101–04.
Although the district court recognized the unique posture
of Tri–State’s case—it sought attorney’s fees qua damages,
not attorney’s fees incurred in pursuing the FTCA action—
the district court concluded that ‘‘the result must be the
same’’ as that obtained in the myriad appellate court decisions
holding that attorney’s fees are not recoverable under the
FTCA. Id. at 102. Stating that ‘‘parties cannot use artful
pleading to circumvent the limitations of a statute,’’ the
district court rejected Tri–State’s characterization of the $3.2
million in attorney’s fees as ‘‘ ‘money damages TTT for injury
or loss of property.’ ’’ Id. (quoting 28 U.S.C. § 1346(b)(1)).
The district court further observed that Tri–State had failed
to cite a single case in which a court had awarded attorney’s
fees in an abuse of process or malicious prosecution action
brought under the FTCA. Id. at 103. Because it also was
unaware of any such cases itself, save a single district court
decision overturned by the Ninth Circuit on other jurisdic-
tional grounds, the district court declined to ‘‘be the first.’’
Id. & n.7.
In addition, the district court reasoned that its ‘‘analysis is
further supported by the fact that Congress established the
Equal Access to Justice Act [EAJA] as a separate statutory
scheme that specifically waives the government’s sovereign
immunity for awards of attorney[’s] fees.’’ Id. Noting that
‘‘a precisely drawn, detailed statute pre-empts more general
remedies,’’ the district court declined to ‘‘imply the availabili-
ty of attorney[’s] fees under the more general FTCA, when
the more-precisely drawn EAJA appears to express Con-
gress’s clear mandate concerning the issue.’’ Id. Because,
as Tri–State conceded, it did not meet certain procedural
requirements of EAJA, the district court refused to ‘‘allow
Tri–State to TTT seek[ ] the same relief under a different,
more general statute.’’ Id. at 104 n.8.
Nevertheless, the district court observed that ‘‘all may not
be lost for Tri–State,’’ given that its ‘‘complaint asserts that
[it] incurred ‘special injury including but not limited to
7
$3,239,153.60 in damages.’ ’’ Id. (emphasis in original). The
district court thus gave Tri–State the opportunity to move to
amend its complaint to clarify ‘‘what other ‘special injury’ it
suffered’’ as a result of the government’s actions. Id. Tri–
State declined to do so, however, choosing instead to file a
motion for reconsideration, which the district court denied.
Soon thereafter, on January 29, 2002, the district court en-
tered final judgment in the government’s favor. Tri–State
now appeals.
II. Analysis
We review de novo the district court’s dismissal of Tri–
State’s complaint for lack of subject matter jurisdiction. See,
e.g., Ass’n of Civilian Technicians, Inc. v. FLRA, 283 F.3d
339, 341 (D.C. Cir.), cert denied, 123 S. Ct. 618 (2002).
A. Sovereign Immunity and the Federal Tort Claims Act
Absent waiver, the doctrine of sovereign immunity shields
the federal government from suit. FDIC v. Meyer, 510 U.S.
471, 475 (1994); see also United States v. Sherwood, 312 U.S.
584, 586 (1941). Because sovereign immunity is jurisdictional
in nature, Meyer, 510 U.S. at 475, ‘‘the terms of [the govern-
ment’s] consent to be sued in any court define that court’s
jurisdiction to entertain the suit,’’ Sherwood, 312 U.S. at 586.
As the Supreme Court has often observed, waiver of sover-
eign immunity must be ‘‘unequivocally expressed in the statu-
tory text’’ and ‘‘strictly construed, in terms of its scope, in
favor of the sovereign.’’ Dep’t of Army v. Blue Fox, Inc., 525
U.S. 255, 261 (1999) (internal quotations omitted). A party
bringing suit against the United States bears the burden of
proving that the government has unequivocally waived its
immunity. See, e.g., Graham v. Fed. Emergency Mgmt.
Agency, 149 F.3d 997, 1005 (9th Cir. 1998); James v. United
States, 970 F.2d 750, 753 (10th Cir. 1992); Reynolds v. Army
& Air Force Exch. Serv., 846 F.2d 746, 748 (Fed. Cir. 1988).
The FTCA represents a limited waiver of the government’s
sovereign immunity, United States v. Orleans, 425 U.S. 807,
813 (1976), ‘‘grant[ing] the federal district courts jurisdiction
8
over a certain category of claims for which the United States
has TTT ‘render[ed]’ itself liable,’’ Meyer, 510 U.S. at 477
(quoting Richards v. United States, 369 U.S. 1, 6 (1962)).
Specifically, section 1346(b)(1) of the FTCA confers exclusive
jurisdiction to the district courts over
civil actions on claims against the United States, TTT for
money damages TTT for injury or loss of property, or
personal injury or death caused by the negligent or
wrongful act or omission of any employee of the Govern-
ment while acting within the scope of his office or
employment, under circumstances where the United
States, if a private person, would be liable to the claimant
in accordance with the law of the place where the act or
omission occurred.
28 U.S.C. § 1346(b)(1). In Meyer the Supreme Court recog-
nized that this language establishes six elements a claim must
encompass to be actionable under section 1346(b)(1), namely,
the claim must be
‘‘[1] against the United States, [2] for money damages,
TTT [3] for injury or loss of property, or personal injury
or death [4] caused by the negligent or wrongful act or
omission of any employee of the Government [5] while
acting within the scope of his office or employment, [6]
under circumstances where the United States, if a pri-
vate person, would be liable to the claimant in accordance
with the law of the place where the act or omission
occurred.’’
Meyer 510 U.S. at 477 (quoting 28 U.S.C. § 1346(b)). Tri–
State’s claim plainly satisfies four of the six elements (1, 2, 4,
5): it is against the United States (which is the named
defendant), seeks $3,239,153.60 in damages, which were
caused by the wrongful conduct (malicious prosecution and
abuse of practice) of employees of the United States Justice
Department and Commerce Department acting within the
scope of their official enforcement duties. For the following
reasons, we conclude that the claim also satisfies the third
and sixth elements and therefore the district court possessed
jurisdiction over the claim under section 1346(b).
9
First, the money damages sought—compensation for the
roughly $3.2 million Tri–State expended defending itself in
the prior proceedings may be properly characterized as dam-
ages ‘‘for injury or loss of property’’ within the meaning of
the third statutory element of section 1346(b)(1)—whether
they be considered as damages for ‘‘injury’’—actionable inju-
ry other than ‘‘personal injury’’ (here, for example, being
subjected to indictment, trial, penalties, etc.4)—or viewed as
damages for ‘‘loss of property’’ (that is, of the funds necessar-
ily expended to defend against the wrongful legal proceed-
ings). In fact, expenditures for legal defense traditionally
make up a major component of the damages recoverable for
malicious prosecution and abuse of process. See Restatement
(Second) of Torts, §§ 671(b) (damages for unjustifiable crimi-
nal litigation), 681(c) (damages for unjustifiable civil litigation
for abuse of process); W. Page Keaton et al., Prosser and
Keeton on Torts, §§ 119, at 888 (criminal malicious prosecu-
tion damages); 120, at 895 (civil malicious prosecution dam-
ages) (5th ed. 1984). It is therefore unlikely that the Con-
gress intended to foreclose such damages in actions against
the government under the FTCA which expressly authorizes
actions for malicious prosecution and abuse of process. See
28 U.S.C. § 2680(h) (‘‘provisions of TTT section 1346(b) of this
title shall apply to any claim arising, on or after the date of
the enactment of this proviso, out of assault, battery, false
imprisonment, false arrest, abuse of process, or malicious
prosecution’’) (emphasis added); see also Smith v. United
States, 507 U.S. 197, 203 (1993) (‘‘We should also have in mind
that the [FTCA] waives the immunity of the United States
and that TTT we should not take it upon ourselves to extend
the waiver beyond that which Congress intended. Neither,
however, should we assume the authority to narrow the
waiver that Congress intended.’’) (quoting United States v.
Kubrick, 444 U.S. 111, 117–118 (1979)). When the Congress
wished to except a class of damages from the FTC, it had no
4 See General Dynamics Corp. v. United States, 139 F.3d 1280
(9th Cir. 1998) (O’Scannlain, J., dissenting) (identifying ‘‘injury’’ in
FTCA malicious prosecution action, for statute of limitation pur-
pose, as ‘‘the indictment’’).
10
difficulty doing so specifically and unambiguously. See 28
U.S.C. § 2674 (excepting government liability for pre-
judgment interest or punitive damages) (discussed infra p.
12).
Even if an FTCA claim satisfies section 1346(b)(1)’s third
requirement it may yet fail the sixth requirement and juris-
diction be therefore lacking. The section’s sixth element re-
quires that the alleged wrong have been done ‘‘under circum-
stances where the United States, if a private person, would be
liable to the claimant in accordance with the law of the place
where the act or omission occurred.’’ In Meyer, the Supreme
Court made clear that ‘‘[section] 1346(b)’s reference to the
‘law of the place’ means law of the State—the source of
substantive liability under the FTCA.’’ Meyer, 510 U.S. at
478. Thus, under the sixth element, state law establishes the
elements of a particular tort that is otherwise actionable
under the FTCA. While the choice of law issue is not before
us, we note that the District of Columbia is not alone in
allowing attorney’s fees to be recovered as damages in a
malicious prosecution suit. Our examination of state tort law
reveals that many states permit the recovery of attorney’s
fees qua damages in malicious prosecution suits—and, to our
knowledge, not a single state forbids the practice.5 Assum-
ing, then, without deciding, that District of Columbia tort law
applies in this case, Tri–State will be able to seek such
damages here.
To be sure, several appellate courts have held that attor-
ney’s fees are not recoverable under the FTCA. See, e.g.,
Anderson v. United States, 127 F.3d 1190, 1191–92 (9th Cir.
5See, e.g., Stevens v. Chisholm, 178 P. 128, 131 (Cal. 1919);
Technical Computer Servs., Inc. v. Buckley, 844 P.2d 1249, 1256
(Colo. Ct. App. 1992); Cal. Fed. Sav. & Loan Ass’n v. Coley, 593 So.
2d 1152, 1153 (Fla. Dist. Ct. App. 1992); Davis v. Rudolph, 52
N.W.2d 15, 20 (Iowa 1952); Nelson v. Miller, 607 P.2d 438, 447
(Kan. 1980); Wheeler v. Hanson, 37 N.E. 382, 386 (Mass. 1894);
Reenan v. Klein, 444 N.E.2d 63, 65 (Ohio Ct. App. 1981); Bucher v.
Staley, 297 N.W.2d 802, 806 (S.D. 1980); see also RESTATEMENT
(SECOND) OF TORTS § 671 & cmt. c, § 681.
11
1997) (‘‘Congress has not waived the government’s sovereign
immunity for attorney[’s] fees and expenses under the
FTCA.’’), cert. denied, 523 U.S. 1072 (1998); Joe v. United
States, 772 F.2d 1535, 1537 (11th Cir. 1985) (‘‘The FTCA does
not contain the express waiver of sovereign immunity neces-
sary to permit a court to award attorney[’s] fees against the
United States directly under that act.’’). However, Tri–State
is not seeking the attorney’s fees it incurred in bringing its
FTCA action but rather ‘‘damages in the form of attorney’s
fees already expended in defending itself against the underly-
ing tortious conduct.’’ Br. for Appellant at 33. Because
Anderson, Joe and similar cases stand only for the proposi-
tion that a prevailing party may not recover the attorney’s
fees incurred in prosecuting an FTCA action, they provide no
basis for denying Tri–State recovery of its damages—simply
measured in the form of attorney’s fees—here. Anderson,
127 F.3d at 1191–92; Joe, 772 F.2d at 1536–37.
Moreover, as Tri–State correctly observes, a pat reliance
upon cases such as Anderson and Joe effectively reads a
damage-specific waiver requirement into the FTCA; i.e.,
absent the express waiver of a specific category of damages—
for example, pain and suffering—that category of damages
may not be recovered under the FTCA. In our view, at least
two rationales counsel against such a reading. First, the
FTCA expressly precludes the recovery of prejudgment in-
terest and punitive damages only. 28 U.S.C. § 2674. The
inclusion of this provision suggests that other categories of
damages should not be precluded. See, e.g., Qi–Zhuo v.
Meissner, 70 F.3d 136, 139 (D.C. Cir. 1995) (‘‘[A]n item which
is omitted from a list of exclusions is presumed not to be
excluded.’’); Detweiler v. Pena, 38 F.3d 591, 594 (D.C. Cir.
1994) (‘‘Where a statute contains explicit exceptions, the
courts are reluctant to find other implicit exceptions.’’). Sec-
ond, given the absence of any damage-specific waiver in the
FTCA itself, reading such a requirement into the statute
could preclude the recovery of any category of damages,
including pain and suffering, lost wages and medical ex-
penses. By adhering to the ordinary meaning of section
1346(b)(1), however, we avoid such an illogical result. See
12
United States v. Wilson, 290 F.3d 347, 361 (D.C. Cir.) (‘‘ ‘ab-
surd results’ are strongly disfavored’’ in construing statute
(quoting Griffin v. Oceanic Contractors, Inc., 458 U.S. 564,
575 (1982)), cert. denied, 123 S. Ct. 581 (2002).6
6 Tri–State’s reading of the statute is lent further support by
General Dynamics Corp. v. United States, 1996 WL 200255 (C.D.
Cal. March 25, 1996), rev’d on other grounds, 139 F.3d 1280 (9th
Cir. 1998), which held that attorney’s fees were recoverable ‘‘money
damages TTT for injury or loss of property’’ in a negligence action
brought under the FTCA. In General Dynamics, the plaintiff
corporation brought an FTCA action against the United States
alleging that the Defense Contract Audit Agency (DCAA) had
committed professional malpractice in performing an audit. Id. at
*1. As a result of the DCAA audit, the DOJ initiated—but ulti-
mately dismissed—criminal and civil litigation against General Dy-
namics. Id. at *31–32. In its subsequent FTCA action, General
Dynamics sought to recover $25.8 million in damages ‘‘representing
the legal fees and other litigation expenses’’ that the corporation
incurred defending itself against the government’s criminal and civil
cases. Id. at *32. Noting that ‘‘[c]ompensation for the loss of
money or for expenditures is a proper measure of damages in an
action for professional malpractice’’ under California law, id. at *35
(citing Electronic Equip. Express, Inc. v. Donald H. Seiler & Co.,
176 Cal. Rptr. 239 (1981)), the district court concluded that ‘‘money
expended on attorney[’s] fees due to a defendant’s negligence is a
recoverable damage,’’ id. (citing Budd v. Nixen, 6 Cal. 3d 195, 201–
02 (1971)). ‘‘[S]uch expenses are ‘money damages’ for injury or loss
of property within the context of the FTCA,’’ the district court held,
‘‘because General Dynamics expended its own money to protect
itself from injury resulting from the prosecution.’’ Id.
The Ninth Circuit reversed, however, holding that the FTCA’s
discretionary function exception precluded the district court from
exercising subject matter jurisdiction over General Dynamics’s
claim. General Dynamics, 139 F.3d at 1282–86. Although the
Ninth Circuit did not discuss—much less criticize—the district
court’s interpretation of section 1346(b)(1), Judge O’Scannlain, dis-
senting in part, observed that ‘‘identifying the injury for which
General Dynamics seeks relief is simple: the injury is the indict-
ment. In defending itself against the erroneously premised indict-
ment, General Dynamics spent over $25,000,000 in attorney’s fees.’’
Id. at 1288. While he concurred in the result because, in his view,
13
We note that the government finds some support for its
position in a series of Ninth Circuit decisions holding that the
FTCA does not confer subject matter jurisdiction upon the
district court for claims seeking expenses incurred by states
in fighting forest fires negligently set in federally-controlled
forests. See Idaho ex rel. Trombley v. Dep’t of Army, 666
F.2d 444 (9th Cir.), cert. denied, 459 U.S. 823 (1982); Califor-
nia v. United States, 307 F.2d 941 (9th Cir. 1962), cert.
denied, 372 U.S. 941 (1963); Oregon v. United States, 308
F.2d 568 (9th Cir. 1962), cert. denied, 372 U.S. 941 (1963).
‘‘Such expenses,’’ the Ninth Circuit reasoned, ‘‘simply do not
constitute ‘money damages’ ‘for injury or loss of property’
under the FTCA.’’ Idaho, 666 F.2d at 446. Because it
concluded that the state-plaintiffs had sought the recovery of
firefighting expenses and not damages to person or property,
the Ninth Circuit thrice held that section 1346(b)(1) does not
General Dynamics’s claim was time-barred under 28 U.S.C.
§ 2401(b), Judge O’Scannlain considered the claim to be ‘‘otherwise
valid,’’ id., and further observed that ‘‘the government TTT should
have reimbursed the $25,880,752 in resulting attorney’s fees,’’ id. at
1289.
Tri–State claims that a second district court decision, Ware v.
United States, 971 F. Supp. 1442 (M.D. Fla. 1997), likewise supports
its position. Ware was acquitted of federal drug charges and sued
the United States for malicious prosecution under the FTCA. Id.
at 1446. Although the district court concluded that Ware had failed
to establish three of the six elements of malicious prosecution under
Florida law, thus warranting a judgment in the government’s favor,
id. at 1460–72, it further observed in its discussion of damages that
‘‘[r]easonable out-of-pocket expenses are one type of compensatory
damages available to a malicious prosecution plaintiff,’’ id. at 1471.
Because Ware had court-appointed counsel at the time of his
prosecution, however, the district court concluded that he had not
incurred ‘‘any discernable out-of-pocket expenses’’ in defending
himself. Id. Seizing upon the aforementioned passage, Tri–State
asserts that the district court’s ‘‘holding’’ clearly indicates that ‘‘if
the plaintiff had paid for his own counsel, as Tri–State did, those
out-of-pocket expenses would have been recoverable under the
FTCA.’’ Br. for Appellant at 25. The district court’s discussion of
out-of-pocket expenses, however, is plainly dicta.
14
confer jurisdiction upon the district court to hear such claims.
See id. at 446; see also California, 307 F.2d at 944; Oregon,
308 F.2d at 569.7
Tri–State attempts to distinguish the Ninth Circuit’s fire-
fighting expenses decisions on two distinct bases. First, Tri–
State argues that the Ninth Circuit’s decisions are inapposite
because, unlike the state-plaintiffs in Idaho, California and
Oregon, it has alleged the commission of intentional torts—
abuse of process and malicious prosecution—rather than neg-
ligence. This argument fails to withstand close scrutiny,
however, as none of the Ninth Circuit’s decisions appears to
turn on the nature of the cause of action alleged. See Idaho,
666 F.2d at 446; California, 307 F.2d at 943–44; Oregon, 308
F.2d at 569.
7 The government also relies upon Charles Burton Builders v.
United States, 768 F. Supp. 160 (D. Md. 1991), which held that an
FTCA plaintiff could not recover the expenses it incurred in testing
its property for environmental damage where the government’s
alleged tortious conduct had in fact caused no physical damage to
the property. Charles Burton Builders, 768 F. Supp. at 161–63.
After discussing the Ninth Circuit’s firefighting expenses cases, the
district court in Charles Burton Builders observed:
[The precedents] all indicate that in order to be covered by the
FTCA there must have been a physical impact of some type on
the plaintiff or its property. A claim for damages sustained
only in reaction to governmental activity, even though possibly
cognizable under state law, does not constitute an action for
money damages for ‘‘injury or loss of property.’’
Id. at 162. As Tri–State correctly observes, however, this decision
‘‘stands for nothing more than the proposition that a plaintiff who
has not suffered any damages in the form of harm to or loss of
property, may not recover its expenses for conducting tests to
determine whether such damages occurred.’’ Reply Br. at 13.
Because Tri–State is not seeking comparable damages—i.e., ex-
penses incurred in determining whether it has an abuse of process
or malicious prosecution claim against the government—the district
court’s ruling in Charles Burton Builders fails to undermine Tri–
State’s claim.
15
Citing New York v. United States, 620 F. Supp. 374
(E.D.N.Y. 1985), Tri–State next argues that the Ninth Circuit
decisions are inapplicable because, unlike the state-plaintiffs
in Idaho, California and Oregon, it has in fact alleged injury
to property. This argument has some appeal. In New York
v. United States, the district court held that the Ninth
Circuit’s firefighting expenses cases did not control New
York’s claim for money damages under the FTCA for the
costs it incurred in removing jet fuel contaminants from a
former U.S. Air Force base. Id. at 375–79. Rejecting the
government’s argument that the state’s damages claim was
really an equitable restitution claim seeking compensation for
the alleged costs of cleaning up the polluted areas, the district
court agreed with New York that ‘‘the cost of removing the
contaminants is simply the suggested measure of damages to
its property.’’ Id. at 378. Similarly, Tri–State argues here
that the attorney’s fees it incurred defending itself represent
‘‘ ‘the measure’ of the damage to its property,’’ i.e., its finan-
cial assets. Reply Br. at 12. Although the New York deci-
sion arguably involved a more conventional loss of property—
groundwater underlying the former Air Force base was con-
taminated—Tri–State’s argument carries a certain degree of
force. New York, 620 F. Supp. at 375.
To the extent that the Ninth Circuit’s firefighting expenses
decisions require a physical injury to recover ‘‘money dam-
ages’’ under the FTCA, we decline to follow them. No such
requirement appears on the face of section 1346(b)(1) and we
decline to engraft one. We thus conclude that Tri–State has
adequately stated a claim ‘‘for money damages TTT for injury
or loss of property’’ within section 1346(b)(1) to the extent
that the state law governing Tri–State’s tort claims allows the
recovery of attorney’s fees qua damages for abuse of process
and malicious prosecution. 28 U.S.C. § 1346(b)(1).
B. The Equal Access to Justice Act
The district court declined to sanction the availability of
attorney’s fees ‘‘under the more general FTCA, when the
more-precisely drawn EAJA appears to express Congress’s
16
clear mandate concerning the issue.’’ Tri-State, 142 F. Supp.
2d at 103. On appeal, Tri–State contends that the district
court’s reliance upon EAJA was misplaced because the stat-
ute does not preclude recovery of attorney’s fees qua dam-
ages for injury or loss of property under the FTCA. Once
again, we agree with Tri–State.
‘‘[S]overeign immunity protects the United States from
attorney’s fees liability ‘except to the extent [the government]
has waived its immunity [from suit].’ ’’ United States v.
Wade, 255 F.3d 833, 836 (D.C. Cir. 2001) (quoting Ruckel-
shaus v. Sierra Club, 463 U.S. 680, 685 (1983)). As we
recognized in American Hospital Association v. Sullivan, 938
F.2d 216, 219 (D.C. Cir. 1991), EAJA expressly waives the
government’s sovereign immunity for the recovery of attor-
ney’s fees ‘‘in two distinct manners.’’ Under 28 U.S.C.
§ 2412(d)(1)(A), a ‘‘prevailing party’’ may recover reasonable
attorney’s fees against the United States if the government
takes a substantially unjustified position in the underlying
civil litigation. In order to recover attorney fees under
section 2412(d)(1)(A), however, a party must satisfy certain
threshold eligibility requirements. 28 U.S.C. § 2412(d)(2)(B)
(corporate claimant must have net worth not in excess of
$7,000,000 or more than 500 employees at time civil action
filed). Alternatively, under 28 U.S.C. § 2412(b), a court may
award reasonable attorney’s fees ‘‘to the prevailing party in
any civil action brought by or against the United States TTT
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.’’
The government relies upon our decision in American
Postal Workers Union, AFL–CIO v. United States Postal
Service, 940 F.2d 704 (D.C. Cir. 1991), to argue that EAJA
effectively precludes Tri–State from recovering attorney’s
fees under the FTCA. In American Postal Workers, four
former probationary employees of the Postal Service sought
to use the FTCA to press claims for retaliatory discharge
pursuant to state law. Id. at 708. Reasoning that the Postal
Reorganization Act (PRA) ‘‘is the type of ‘narrowly tailored
employee compensation scheme’ that the Supreme Court has
17
held ‘pre-empts the more general tort recovery statutes,’ ’’ we
ruled that ‘‘the FTCA [did] not provide a basis for the
asserted claim for relief.’’ Id. (quoting Brown v. Gen. Servs.
Admin., 425 U.S. 820, 834–35 (1976)). Because the PRA
incorporated ‘‘an ‘elaborate remedial system that has been
constructed step by step, with careful attention to conflicting
policy considerations,’ ’’ we concluded that ‘‘we have no war-
rant to permit the appellants to use the FTCA as a means of
circumventing it.’’ Id. (quoting Bush v. Lucas, 462 U.S. 367,
388 (1983)).8 From the government’s perspective, Tri–State’s
FTCA action ‘‘is no less an attempt to ‘circumvent’ the
exquisitely-detailed procedures, limitations, and conditions set
forth in’’ EAJA, specifically, the eligibility criteria of section
2412(d)(2)(B). Br. for Appellee at 33.
Tri-State views matters differently. Because EAJA explic-
itly provides that ‘‘[n]othing in section 2412(d) TTT alters,
modifies, repeals, invalidates, or supersedes any other provi-
sion of Federal law which authorizes an award of such fees,’’
EAJA, Pub. L. No. 96–481, § 206, 94 Stat. 2321 (1980), Tri–
State argues that EAJA has no effect upon its right to
recover attorney’s fees—as ‘‘money damages TTT for injury or
loss of property’’—under the FTCA. It thus contends that
EAJA’s ‘‘no preclusion’’ provision renders the government’s
reliance upon American Postal Workers inapposite because
the FTCA’s waiver of sovereign immunity for claims of abuse
of process and malicious prosecution is an ‘‘other provision’’ of
federal law which authorizes the award of attorney’s fees.
See 28 U.S.C. § 2680(h).
Although the government correctly observes that the
FTCA lacks an express waiver for the recovery of attorney’s
8 Although the employees in American Postal Workers could not
seek redress under the PRA’s compensation scheme—they had not
completed the requisite one year of continuous service before being
terminated—this fact did not alter our decision. American Postal
Workers, 940 F.2d at 708–09. On the contrary, we viewed the
exclusion of appellants from the PRA’s compensation scheme as
evidence of the Congress’s intent to deny a particular class of
employees the protections of the statutory scheme which, if avail-
able, provided postal workers their only remedy. Id. at 709.
18
fees, its argument under EAJA ignores the critical feature of
this case: Tri–State does not seek to recover attorney’s fees
per se, but rather attorney’s fees qua damages—for the torts
of abuse of process and malicious prosecution. Because the
FTCA waives sovereign immunity for claims of abuse of
process and malicious prosecution, 28 U.S.C. § 2680(h), and in
light of the fact that the statutory waiver preceded the
enactment of EAJA by six years, compare Act of Mar. 16,
1974, Pub. L. No. 93–253, § 2, 88 Stat. 50 (1974) (amending
section 2680(h)), with EAJA, Pub. L. No. 96–481, § 206, 94
Stat. 2321 (1980), we have little trouble agreeing with Tri–
State that EAJA does not ‘‘alter[ ], modif[y], repeal[ ], invali-
date[ ], or supersede[ ]’’ the pre-existing remedies afforded by
the FTCA. The government’s reliance on EAJA is therefore
misplaced.
III. Conclusion
For the foregoing reasons, we conclude that the FTCA
provides jurisdiction over an action to recover attorney’s fees
qua damages against the United States for the torts of abuse
of process and malicious prosecution under the FTCA if ‘‘the
law of the place’’ where the tort occurred so provides. 28
U.S.C. § 1346(b)(1). Accordingly, we reverse the judgment
of the district court and remand the matter for further
proceedings consistent with this opinion.
So ordered.
1
ROGERS, Circuit Judge, concurring: The court ‘‘hold[s] that
attorney fees qua damages are recoverable against the Unit-
ed States for abuse of process and malicious prosecution if
‘the laws of the place’ where the tort occurs so provides.’’
Op. at 2. As I interpret the court’s opinion, the terms ‘‘injury
or loss of property’’ under the Federal Tort Claims Act
(‘‘FTCA’’), 28 U.S.C. § 1346(b), are defined as a matter or
federal law in determining whether Tri–State’s claim is out-
side the intended scope of the FTCA, and not defined solely
by state law. This follows in my view from the following
analysis.
In Smith v. United States, 507 U.S. 197 (1993), the Su-
preme Court acknowledged that its decisions interpreting the
FTCA ‘‘contain varying statements as to how it should be
construed.’’ Id. at 203. It announced, however, that it was
embracing the approach that ‘‘we should not take it upon
ourselves to extend the wavier beyond that which Congress
intended. Neither, however, should we assume the authority
to narrow the waiver that Congress intended.’ ’’ Id. (quoting
United States v. Kubrick, 444 U.S. 111, 117–18 (1979)). De-
partment of the Army v. Blue Fox, Inc., 525 U.S. 255, 261
(1999), on which the court relies in describing a more strin-
gent standard of review, Op. at 7, involved the Administrative
Procedure Act, not the FTCA.
The following year, in FDIC v. Meyer, 510 U.S. 471 (1994),
the Supreme Court described § 1346(b) as establishing a
waiver of sovereign immunity and a cause of action against
the federal government if ‘‘six elements’’ are met. Id. at 477.
Thus, a claim must be:
[1] against the United States, [2] for money dam-
ages, TTT [3] for injury or loss of property, or
personal injury or death [4] caused by the negligent
or wrongful act or omission of any employee of the
Government [5] while acting within the scope of his
office or employment, [6] under circumstances where
the United States, if a private person, would be
liable to the claimant in accordance with the law of
the place where the act or omission occurred.
2
Id. (quoting § 1346(b) (alterations in original)). The Court
concluded that a federal due process constitutional claim was
not cognizable under the FTCA, holding that the claim failed
to meet the sixth element because it ‘‘could not contain’’ an
allegation that the United States ‘‘ ‘would be liable to the
claimant’ as ‘a private person’ ‘in accordance with the law of
the place where the act or omission occurred.’ ’’ Id. at 477–78
(quoting § 1346(b)). As the Court noted, it had ‘‘consistently
held that § 1346(b)’s reference to the ‘law of the place’ means
law of the State—the source of substantive liability under the
FTCA.’’ Id. at 478. Because, ‘‘[b]y definition, federal law,
not state law, provides the source of liability for a claim
alleging the deprivation of a federal constitutional right,’’ a
federal constitutional claim could not meet the sixth element
of § 1346(b) as it raised no claim under state law, and the
‘‘United States simply has not rendered itself liable under
§ 1346(b) for constitutional tort claims.’’ Id. at 478. In other
words, the Court’s reference in Meyer to the importance of
state tort law for defining the scope of the FTCA is directed
solely at the sixth and last element of § 1346(b), but a FTCA
claim, as the government notes, can only be established by
meeting all six elements.
In analyzing the fourth element of § 1346(b), whether the
harm complained of by the plaintiff has been ‘‘caused by the
negligent or wrongful act or omission of any employee of the
Government,’’ the Supreme Court has emphasized that feder-
al law controls the definition of the relevant terms. In Laird
v. Nelms, 406 U.S. 797, 797 (1972), the plaintiffs sought
‘‘recovery for property damage allegedly resulting from a
sonic boom caused by California-based United States military
planes flying over North Carolina on a training mission.’’
The Fourth Circuit, relying on ‘‘a theory of strict or absolute
liability for ultrahazardous activities,’’ had reversed the dis-
trict court’s grant of summary judgment for the government
based on the absence of negligence. Id. at 798. The Su-
preme Court reversed, noting that it had previously rejected
a claim based on strict liability in Dalehite v. United States,
346 U.S. 15, 44–45 (1953), and characterized its holding in
Dalehite as
3
not turn[ing] on the question of whether the law of
Texas or of some other State did or did not recog-
nize strict liability for the conduct of ultrahazardous
activities. It turned instead on the question of
whether the language of the Federal Tort Claims
Act permitted under any circumstances the imposi-
tion of liability upon the Government where there
had been neither negligence nor wrongful act. The
necessary consequence of the Court’s holding in
Dalehite is that the statutory language ‘‘negligent or
wrongful act or omission of any employee of the
Government,’’ is a uniform federal limitation on the
types of acts committed by its employees for which
the United States has consented to be sued. Re-
gardless of state law characterization, the Federal
Tort Claims Act itself precludes the imposition of
liability if there has been no negligence or other
form of ‘‘malfeasance or nonfeasance.’’
Laird, 406 U.S. at 798–99 (quoting Dalehite, 346 U.S. at 45)
(emphasis added). The Supreme Court has taken a similar
approach in construing other provisions of the FTCA, such as
the independent contractor exception in § 2671, see Orleans
v. United States, 425 U.S. 807, 814–15 (1976); Logue v.
United States, 412 U.S. 521, 528 (1973), and the intentional
torts exception in § 2680(h), see United States v. Neustadt,
366 U.S. 696, 705–06 (1961). As the Court has said with
respect to another section of the FTCA prohibiting the award
of punitive damages against the government, ‘‘the meaning of
the term ‘punitive damages’ as used in § 2674, a federal
statute, is by definition a federal question.’’ Molzof v. United
States, 502 U.S. 301, 305 (1992). Cf. Indian Towing Co. v.
United States, 350 U.S. 61, 64–65 (1955).
The court notes that it is well-established that under state
law (whether or not the District of Columbia provides the
correct substantive law to apply in this case) attorney’s fees
may be collected as damages. Op. at 10 & n.5. Hence, the
requirement of the sixth element is met by Tri–State’s claim.
The question remains whether Tri–States’s claim is an ‘‘injury
or loss of property’’ under a theory of malicious prosecution.
The only Supreme Court case to discuss the terms ‘‘injury or
4
loss of property’’ is unhelpful for the Court declined, in the
course of resolving the scope of the exception under § 2689(c)
to ‘‘[t]he Act’s broad wavier of sovereign immunity,’’ to re-
solve the scope of § 1346(b). See Kosak v. United States, 465
U.S. 848, 852 & n.7 (1984).
Tri–State’s contention that its claim falls within the scope
of what Congress intended in the FTCA by allowing the
recovery of ‘‘damages’’ for ‘‘injury or loss of property’’ is
persuasive. See Op. at 15. It relies on New York v. United
States, 620 F. Supp. 374 (E.D.N.Y. 1985), where, in, address-
ing a claim for the costs of removing contaminants placed in
the soil by United States Air Force, New York, 620 F. Supp.
at 375, the district court cited Rayonier, Inc. v. United
States, 352 U.S. 315 (1957), which held that negligence by the
Forest Service was actionable under the FTCA for recovery
of property damage, see New York, 620 F. Supp. at 378. The
district court in New York proceeded to accept New York’s
position that its clean-up costs were ‘‘simply the suggested
measure of damages to its property,’’ rejecting the United
States’ position that New York’s claim was in the nature of a
claim for equitable restitution for the costs of the clean up.
Id. So too here, Tri–States’ attorneys fees are a measure of
the damages it suffered as a result of the government’s
malicious prosecution and abuse of process. Cases imposing
a ‘‘physical injury’’ requirement, such as California v. United
States, 307 F.2d 941, 944 (9th Cir. 1962), are distinguishable,
and hence the court has no need to hold that it declines to
follow them, Op. at 15, because in a malicious prosecution
cause of action, it is the litigation itself that is the injury (and
hence the court need go no further in rejecting that line of
authority). ‘‘The interest in freedom from unjustifiable litiga-
tion is protected by actions for malicious prosecution and
abuse of process.’’ W. Page Keeton, et al., Prosser and
Keeton on Torts, § 119, at 870 (5th Ed. Hornbook Series
Lawyer’s Ed. 1984). Thus, the money spent on attorney’s
fees is money spent rectifying or correcting that injury and is
recoverable. Cf. New York, 620 F. Supp. at 378–79. As the
5
court notes, Tri–State is not seeking to recover its attorney’s
fees for bringing its claim under the FTCA. Op. at 11.
Contrary to Congress’s endorsement of recovery for mali-
cious prosecution, 28 U.S.C. § 2680(h), the government’s pro-
posed restriction of recovery of damages for ‘‘injury or loss of
property or personal injury or death’’ in malicious prosecution
claims to claims involving physical damage or injury to the
plaintiff’s property could mean that no recovery would be
possible, for example, for civil prosecutions against private
corporations involving no imprisonment or other physical
intrusion on the plaintiff, nor any loss of a property right by
the plaintiff who will (by definition) have won the prior
lawsuit. There is no reason to think that Congress was
unaware of the traditional meanings of various tort terms
when it added malicious prosecution by law enforcement
officers to § 2680(h), and that tort has traditionally allowed
for recovery of attorneys fees. See Restatement (Second) of
Torts § 681(c); Prosser and Keaton, § 119 at 888; id. § 120
at 889–92, 895–96; A.L. Azores, Annotation, Attorney’s Fees
as Element of Damages in Action for False Imprisonment or
Arrest, or for Malicious Prosecution, 21 A.L.R.3d 1068 § 2
(1968). The legislative history indicates that in allowing
recovery for malicious prosecution or abuse of process and
other intentional torts Congress intended to reach ‘‘any case
in which a Federal law enforcement agent committed the tort
while acting within the scope of his employment or under
color of Federal law.’’ See S. Rep. No. 93–588 at 4 (1974),
reprinted in 1974 U.S.C.C.A.N. 2789, 2791.
Under this analysis, which clarifies the federal and state-
law questions, the court’s opinion is properly read as holding
with respect to claims for malicious prosecution and abuse of
process, claims specifically recognized by Congress as viable
under § 2680(h), that, as a matter of federal law, recovery of
attorneys fees as damages is within the scope of what Con-
gress meant by ‘‘injury or loss of property’’ under § 1346(b).
Only if attorney’s fees are collectable as damages under state
law will a plaintiff be able to recover them under the FTCA
because the sixth element of § 1346(b) will then have been
satisfied. The court’s references to District of Columbia law,
6
other state law, and the Restatement (Second) of Torts, see
Op. at 10 & n.5, relate therefore only to its conclusion that,
for purposes of that sixth element, attorney’s fees will be
collectable. So understood, I concur inasmuch as the Equal
Access to Justice Act, see esp. 28 U.S.C. § 2412(d), is not a
bar to Tri–States’ claim. Op. at 16–18.
1
SILBERMAN, Senior Circuit Judge, concurring: It is not
apparent to me why both my colleagues found it necessary to
author opinions in this case. There is, to be sure, a percepti-
ble difference in their stated views as to our scope of review
of the Federal Tort Claims Act. Judge Henderson empha-
sizes that as a statute waiving sovereign immunity it should
be strictly construed against a plaintiff, whereas Judge Rog-
ers justifiably points to Smith v. United States, 507 U.S. 197
(1993). There the Supreme Court, in an opinion by the Chief
Justice, specifically addressing the construction of the FTCA,
adopted a more neutral standard of review. Id. at 203
(quoting United States v. Kubrick, 444 U.S. 111, 117–18
(1979)). Still, Judge Henderson cites Smith (although in the
wrong place), and, amusingly, the Chief Justice himself in a
subsequent case, Department of the Army v. Blue Fox, Inc.,
525 U.S. 255, 261 (1999), on which Judge Henderson relies,
repeated the standard sovereign immunity strict construction
maxim and cited FTCA cases.
The question is not totally academic because some of the
statutory language we are interpreting (‘‘money damages TTT
for injury or loss of property, or personal injury or
deathTTTT’’ 28 U.S.C. 1346(b)) is rather awkward, even
ambiguous, but both judges (as do I) reject the government’s
strained interpretation as excluding attorney’s fees from the
definition of injury or loss of property so I do not see any
difference in their actual approaches.
Nor do I detect any differences between my colleagues as
to their understanding of the respective spheres of Federal
and state law. Therefore I do not understand why, in the
interest of collegiality, one opinion could not have been fash-
ioned. Perhaps the problem stems from my colleagues’ writ-
ing style. See generally Richard A. Posner, Judges’ Writing
Styles (And Do They Matter?), 62 U. CHI. L. REV. 1421 (1995).