[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________ U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
OCTOBER 28, 2011
No. 11-12782
JOHN LEY
Non-Argument Calendar
CLERK
________________________
D.C. Docket No. 6:07-cv-01690-GAP-GJK
CARVONDELLA BRADLEY,
JOYCE ELAINE NIEVES,
LARHONDA WILLIAMS,
CHRIS CROWLEY,
DERRICK BURKE,
CHARLES E. BURKE, JR.,
GREG BURKE,
CYNTHIA BURKE,
BEATRICE WELLS,
KARL CROWLEY,
individually, et. al.,
llllllllllllllllllllllllllllllllllllllll Plaintiffs-Appellants,
versus
SECRETARY, U.S. DEPARTMENT OF HEALTH
AND HUMAN SERVICES,
lllllllllllllllllllllllllllllllllllllll lDefendant-Appellee.
________________________
Appeal from the United States District Court
for the Middle District of Florida
________________________
(October 28, 2011)
Before HULL, MARTIN, and FAY, Circuit Judges.
PER CURIAM:
Plaintiff-Appellant Carvondella Bradley, on behalf of Charles Burke’s
estate and the ten surviving Burke children, appeals the district court’s denial of
Bradley’s request for attorney’s fees, pursuant to the Equal Access to Justice Act
(“EAJA”), 28 U.S.C. § 2412(b). After review, we affirm.
I. BACKGROUND
Charles Burke resided in a Florida nursing home for approximately eighteen
months. After becoming seriously ill, Burke was removed from the nursing home
and died in a hospital. During Burke’s hospital stay, the Secretary of the
Department of Health and Human Services (“Secretary” or “DHHS”), on behalf of
Medicare, paid $38,875.08 for his medical care.
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Subsequently, Plaintiff-Appellant Bradley, on behalf of Burke’s estate,
brought a wrongful death claim against the nursing home and its liability
insurance carrier. Bradley settled the claim for $52,500 and notified the Secretary
of the settlement. The Secretary asserted that Burke’s estate had to reimburse
Medicare for Burke’s net medical expenses of $22,480.89.
Plaintiff-Appellant Bradley then filed in probate court an application for the
court to adjudicate the rights of the estate and the children to the settlement funds.
The Secretary declined to participate in the probate court proceeding. The probate
court determined that DHHS was entitled to only $787.50 of the settlement funds.
The Secretary declined to recognize the probate court’s determination,
relying upon DHHS’s Medicare Secondary Payer Manual (“Medicare Manual”).1
The Secretary continued to assert that Burke’s estate owed Medicare $22,480.89.
Bradley paid that amount under protest. After exhausting her administrative
remedies, Bradley appealed the Secretary’s decision to the federal district court.
The district court deferred to the Secretary’s interpretation of the Medicare
1
In pertinent part, the Medicare Manual states: “The only situation in which Medicare
recognizes allocations of liability payments to non-medical losses is when payment is based on a
court order on the merits of the case.” Medicare Secondary Payer Manual (CMS Pub. 100-05)
Chapter 7, § 50.4.4 (currently under review).
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Manual, and held that Medicare was entitled to reimbursement in the amount of
$22,480.89.
Bradley then appealed to this Court. In Bradley v. Sebelius, we reversed the
district court’s decision, concluding that DHHS’s Medicare Manual was not
entitled to deference. 621 F.3d 1330, 1338 (11th Cir. 2010). Accordingly, we
held the Secretary’s decision was not supported by substantial evidence and found
the Secretary was entitled to only $787.50, as determined by the probate court. Id.
at 1339.
On remand, the district court entered judgment in accordance with our
appellate opinion. Subsequently, Plaintiff-Appellant Bradley filed a motion for an
award of attorney’s fees and costs pursuant to § 2412(b) of the EAJA. The district
court denied Bradley’s motion, finding that DHHS had not acted in bad faith. The
district court explained that our appellate decision involved an issue of first
impression and that nothing suggested the Secretary had acted in bad faith, as
follows:
The Secretary acted in conformity with [DHHS’s] long-held legal
position, one supported by decisions from other Courts of Appeal[s].
The Secretary’s position in this particular case was also supported by
most of the judges who heard this dispute. Ultimately, two of the three
judges on the Eleventh Circuit Court of Appeals agreed with the
Plaintiffs on a question of first impression. But neither of those judges
suggested that the Secretary acted in bad faith in litigating this case, and
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the Plaintiffs have not provided any basis for such a conclusion in their
motion.
This appeal followed.
II. DISCUSSION
We review a district court’s decision denying a request for attorney’s fees
under § 2412(b)2 of the EAJA for abuse of discretion. Maritime Mgmt., Inc. v.
United States, 242 F.3d 1326, 1331 (11th Cir. 2001). We review a district court’s
finding regarding a party’s lack of bad faith for clear error. Id.
Under 28 U.S.C. § 2412(b), a district court’s award of attorney’s fees is
discretionary. The district court may appropriately exercise its discretion to award
fees under § 2412(b) where the government acted “in bad faith, vexatiously,
wantonly, or for oppressive reasons.” Maritime Mgmt., 242 F.3d at 1331 (quoting
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 258-59, 95 S. Ct.
1612, 1622 (1975)) (quotation marks omitted). “Bad faith,” in turn, means “not
2
In the district court, Bradley filed a motion entitled: “Plaintiffs’ Verified Motion for
Award of Attorneys’ Fees and Costs as Prevailing Parties in These Proceedings Pursuant to
Federal Common Law and Equal Access to Justice Act (“EAJA”) 28 U.S.C.
§2412(b)/Memorandum of Law in Support.” The Memorandum of Law argues for attorney’s
fees exclusively under § 2412(b). Because Bradley argued before the district court only that she
was entitled to attorney’s fees under § 2412(b), we decline to address her argument on appeal as
to 28 U.S.C. § 2412(d)(1)(A). See Access Now, Inc. v. Sw. Airlines, Co., 385 F.3d 1324, 1331
(11th Cir. 2004) (“[A]n issue not raised in the district court and raised for the first time in an
appeal will not be considered by this court.” (quotation marks omitted)).
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simply bad judgment or negligence, but rather it implies the conscious doing of a
wrong because of dishonest purpose or moral obliquity; . . . it contemplates a state
of mind affirmatively operating with furtive design or ill will.” United States v.
Gilbert, 198 F.3d 1293, 1299 (11th Cir. 1999) (alteration in original) (quotation
marks omitted).
Here, the district court’s finding of no bad faith was not clearly erroneous
and thus its denial of attorney’s fees was not an abuse of discretion. In explaining
its finding, the district court noted that the Secretary’s actions followed
“[DHHS’s] long-held legal position,” which other circuit court decisions
supported. While our circuit (in a 2–1 opinion) reached a different conclusion
than the Secretary on a matter of first impression in this circuit, that is not enough
to compel a finding of bad faith. See Gilbert, 198 F.3d at 1299. Nothing in the
record indicates DHHS pursued its position “because of dishonest purpose or
moral obliquity.” See id. Further, Plaintiff-Appellant Bradley has presented no
evidence that DHHS acted vexatiously or wantonly, such as by pursuing dilatory
tactics or abusive discovery practices. Accordingly, we must affirm the district
court’s denial of Bradley’s § 2412(b) attorney’s fee request.
AFFIRMED.
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