In Kimmel v State of New York (No. 36), previewed here and here, the Court of Appeals was asked whether an award of attorney’s fees is available to a prevailing plaintiff against the State under the Equal Access to Justice Act (CPLR article 86) in an action alleging sex discrimination by a state agency in violation of the New York Human Rights Law. In Kimmel, a former State Trooper brought a gender discrimination, sexual harassment, and retaliation action under the Human Rights Law against the State and the Division of State Police. The conduct that she alleged was reprehensible.
After 12 years of litigation, the plaintiff won a sizeable judgment against the State and moved for an award of attorney’s fees under the EAJA. Supreme Court denied the request, holding that the EAJA doesn’t apply to actions for damages against the State. The Appellate Division, Fourth Department, on a 3-2 vote, reversed, holding that the EAJA applies to any “action” against the State, including this one.
The Court of Appeals plurality (DiFiore, C.J., Rivera, and Acosta, sitting by designation), reading the statute broadly to further its remedial purpose, held that the EAJA applies to any action against the State, except for two types of cases that are specifically excluded in the statutory language — cases where another statute provides for the recovery of attorney’s fees and those commenced against the State in the Court of Claims.
Because neither of those exclusions applied here — this was a discrimination action filed against the State in Supreme Court and the Human Rights Law did not provide for an award of attorney’s fees at the time (it does now after the 2015 amendments, see Executive Law § 297, as amended by L 2015, ch 364) — the EAJA allowed Kimmel to recover attorney’s fees as the prevailing plaintiff in this action. “Any” action means any action, the Court held, subject only to the two statutory exclusions. To hold otherwise, the plurality reasoned would render the statutory exclusion for cases commenced in the Court of Claims meaningless.
Judge Wilson, concurring in the result only, relied on a concession made by the State at oral argument that the EAJA would apply to a plaintiff suing the State under the Human Rights Law for injunctive relief. Here, Judge Wilson held, Kimmel was seeking more than just damages for the outrageous conduct to which she was subjected. She also sought other injunctive and equitable relief to stop this kind of pervasive conduct from harming herself and others in the future. Judge Wilson, on that limited ground, voted to affirm the Appellate Division’s ruling. This is one case that clearly shows the continuing value of oral argument, and what can happen if a litigant concedes a point at argument that it argued in its briefs.
Judge Garcia, in dissent joined by Judge Stein, disagreed and would have held that the EAJA simply does not apply to employment discrimination actions against the State for compensatory damages. Instead, it applies only to challenges to official acts of a state agency or official, including Article 78 proceedings, declaratory judgment actions, and actions seeking injunctive relief. As Judge Garcia wrote,
This limited interpretation, Judge Garcia noted, was consistent not only with other provisions of the EAJA (see e.g. CPLR 8601[a]), but also the principle that the EAJA, which modifies the common law rule that parties must bear their own fees and expenses, must be strictly construed. Most significantly, Judge Garcia pointed out, the plurality’s broad interpretation will have significant and unintended ramifications for attorney’s fee awards in numerous other actions maintained against the State exclusively for compensatory damages.
The Court of Appeals’ opinion can be found here.
New York Appeals 