The opinion of the court was delivered by: Shadur, District Judge.
MEMORANDUM OPINION AND ORDER
Commodity Futures Trading Commission ("CFTC") sued
defendants charging their sale of so-called "London commodity
options" violated the anti-fraud provisions of the Commodities
Exchange Act (such sales have since been rendered wholly
illegal by the Futures Trading Act of 1978, 7 U.S.C. § 6c).
This Court's January 26, 1982 order dismissed the action
without prejudice. Now Leonard Pomerantz, Larry Spatz, Don
Braverman, John Dexter and Perry Cracraft have petitioned this
Court for attorneys' fees under the newly enacted Equal Access
to Justice Act, 28 U.S.C. § 2412 (the "Act"). They have also
reasserted a similar claim of much lesser magnitude based on
this Court's Local Civil Rule 4 ("Rule 4").
Before this Court would turn to the various substantive
issues posed by defendants' application under the Act, the
Court asked the parties to brief the threshold question
whether the Act applies retroactively to permit recovery of
fees generated before its October 1, 1981 effective date.*fn1
For the reasons stated in this memorandum opinion and order
the Court determines the issue is certainly not so clear-cut
as to permit rejection of the petition solely on that score.
It therefore defers its decision pending full submissions on
the merits of the application.
Act subsection (d)(1)(A) reads:
Its effective date is provided for in the note following
5 U.S.C. § 504:
This Title and the amendments made by this
Title . . . shall take effect on October 1, 1981,
and shall apply to . . . any civil action . . .
pending on, or commenced on or after, such date.
Only two opinions cited by the parties have addressed the
retroactivity question directly. Each held the Act permits
recovery of all attorney's fees generated by an action, so long
as it was pending October 1, 1981. Photo Data, Inc. v. Sawyer,
533 F. Supp. 348 (D.D.C. 1982); Berman v. Schweiker, 531 F. Supp. 1149
No. 80 C 2737 (N.D.Ill. 1982). Neither however considered
the sovereign immunity argument advanced by the government
Certainly the Photo Data and Berman reading of the Act is a
reasonable — perhaps even the normal — one. It proceeds from
the dual premise that:
(1) All actions pending October 1, 1981 are
covered by the Act.
(2) Awards under the Act are for "fees and
other expenses . . . incurred . . . in any civil
action (other than cases sounding in tort)
brought by or against the United States. . . ."
There is no language specifically limiting awards to fees
incurred before the October 1, 1981 date.
But that reading is not the only permissible one. It could
be reached if the effective date provision contained only its
last clause, the one stating the Act "shall apply to . . . any
civil action . . . pending on" October 1, 1981. It thus might
be said to treat the earlier clause ("This Title and the
amendments made by this Title . . . shall take effect on
October 1, 1981. . . .") as surplusage. Under familiar rules of
construction statutes are to be read, if possible, to give
meaning to all their provisions. 2A D. Sands, Sutherland
Statutory Interpretation § 46.06 (rev. 2d ed. 1973). And one
rational reading of the "take effect" clause would be to apply
it to the "fees . . . incurred" language of the Act, so that
the allowance would extend only to "fees . . . incurred" after
the Act "shall take effect on October 1, 1981."
Sovereign immunity, though there have been many statutory
inroads on its once-universal scope, remains a viable
doctrine. See this Court's opinion in Edmondson v. Simon, 87
F.R.D. 487, 490 (N.D.Ill. 1980). One concomitant of the
doctrine is that statutes waiving sovereign immunity are
narrowly construed, requiring a clear showing of congressional