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Appendix B to opinion of BRENNAN, J., dissenting

CA3:

United States v. Meyer, 827 F. 2d 943, 945 (1987)

CA4: Tarantino v. Baker, 825 F. 2d 772, 777, n. 3 (1987)

CA5:

CA6:

CA7:

Crowder v. Sinyard, 884 F. 2d 804, 826, n. 30 (1989), cert. pending, No. 89-1326

United States v. Poulos, 895 F. 2d 1113, 1121 (1990)

United States v. Perry, 815 F. 2d 1100, 1105 (1987)

CA8: United States v. Peterson, 867 F. 2d 1110, 1113 (1989)

CA9: United States v. Holzman, 871 F. 2d 1496, 1512 (1989)

CA10: Wolfenbarger v. Williams, 826 F. 2d 930, 935 (1987)

CA11: United States v. Bent-Santana, 774 F. 2d 1545, 1551 (1985)

CADC: In re Search Warrant Dated July 4, 1977, for Premises at 2125 S Street, Northwest, Washington, D. C., 215 U. S. App. D. C. 74, 102, 667 F. 2d 117, 145 (1981), cert. denied, 456 U. S. 926 (1982)

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COMMISSIONER, IMMIGRATION AND NATURALIZATION SERVICE, ET AL. v. JEAN ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 89-601.

Argued April 23, 1990-Decided June 4, 1990

The Equal Access to Justice Act (EAJA) directs a court to award fees and other expenses to private parties who prevail in litigation against the United States if, inter alia, the Government's position was not "substantially justified." 28 U. S. C. § 2412(d)(1)(A). The District Court found that respondents were prevailing parties within the meaning of the EAJA, petitioners' position was not substantially justified, and there were no other special circumstances that would make a fee award unjust. The Court of Appeals upheld these findings, but remanded for recalculation of fees. Although petitioners concede that fees for time and expenses incurred in applying for fees are appropriate, they contend that respondents are ineligible for fees for services rendered during the substantial litigation over the fees unless the Court finds that petitioners' position in the fee litigation itself was not substantially justified. Held: A second "substantial justification" finding is not required before EAJA fees are awarded for fee litigation itself. Pp. 158-166.

(a) The EAJA's "substantial justification" requirement is a single finding that operates as a clear threshold for determining a prevailing party's fee eligibility. Once a litigant has met all of the eligibility conditions for fees, the district court has the discretion to adjust the amount of fees for various portions of the litigation, guided by reason and the statutory criteria. See Hensley v. Eckerhart, 461 U. S. 424. There is no textual support for the position that the Government may assert a "substantial justification" defense at multiple stages of an action, since the EAJA refers only to a single "position," §§ 2412(d)(1)(A) and (d)(2)(D), that the Government has taken in the past, § 2412(d)(1)(B), in "any civil action," § 2412(d)(1)(A). Pp. 158-162.

(b) Petitioners' argument that automatic awards of "fees for fees" will encourage exorbitant fee requests, generate needless litigation, and unreasonably burden the federal fisc is rejected. First, no fee award is automatic, since a district court always has discretion to fix the amount of the award once eligibility is established. In contrast, requiring courts to make a separate "substantial justification" finding regarding the Government's opposition to fee requests would multiply litigation. Second, the EAJA's purpose to eliminate the average person's financial

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disincentive to challenge unreasonable governmental actions would be defeated if the Government could impose on prevailing parties the costs of litigating fee requests, costs that may exceed those incurred in litigating the claim's merits. Pp. 162–166.

863 F. 2d 759, affirmed.

STEVENS, J., delivered the opinion for a unanimous Court.

Paul J. Larkin, Jr., argued the cause for petitioners. On the briefs were Solicitor General Starr, Assistant Attorney General Gerson, Deputy Solicitor General Merrill, Harriet S. Shapiro, William G. Kanter, and Michael J. Singer.

Ira J. Kurzban argued the cause for respondents. With him on the brief were Bruce J. Winick, Irwin P. Stotzky, Robert E. Juceam, Terrence A. Corrigan, and Sandra M. Lipsman.

*

JUSTICE STEVENS delivered the opinion of the Court.

The Equal Access to Justice Act (EAJA) directs a court to award "fees and other expenses" to private parties who prevail in litigation against the United States if, among other conditions, the position of the United States was not "substantially justified."1 In many cases parties are able to resolve by stipulation a claim for fees under the EAJA. In some cases, however, a fee application will prompt the Government to litigate aspects of the fee request or require the

*Briefs of amici curiae urging affirmance were filed for the American Immigration Lawyers Association by Lawrence H. Rudnick; for the National Immigration Project et al. by Robert L. King and Niels W. Frenzen; and for the National Organization of Social Security Claimants' Representatives by James E. Coleman, Jr., Joseph E. Killory, Jr., and Nancy G. Shor.

1 28 U. S. C. § 2412(d)(1)(A). The EAJA, Pub. L. 96-481, 94 Stat. 2325, and its extension and amendment, Pub. L. 99-80, 99 Stat. 183, authorized fee awards to prevailing parties in both federal agency adjudications and certain civil actions. It therefore amended relevant portions of the Administrative Procedure Act (APA), 5 U. S. C. § 504 et seq., as well as the Judicial Code, 28 U. S. C. § 2412 et seq. This case involves only the latter portion of the EAJA.

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court to convene a hearing before deciding if an award of fees and expenses is authorized. The question in this case is whether a prevailing party is ineligible for fees for the services rendered during such a proceeding unless the Government's position in the fee litigation itself is not “substantially justified."

Because the question for decision is so narrow-affecting only eligibility for compensation for services rendered for fee litigation rather than the amount that may be appropriately awarded for such services-it is not necessary to restate the protracted history of this vigorously contested litigation.2 It is sufficient to note that the District Court expressly found that respondents "were the prevailing parties within the meaning of the Act, that the government's position was not substantially justified and that there are no other special circumstances that would make an award unjust." The Court of Appeals upheld these findings. Jean v. Nelson, 863 F. 2d

2 The fee litigation is the subject of Louis v. Nelson, 624 F. Supp. 836 (SD Fla. 1985) (initial order), Louis v. Nelson, 646 F. Supp. 1300 (SD Fla. 1986) (corrected memorandum after hearing), and Jean v. Nelson, 863 F. 2d 759 (CA11 1988). The history of the litigation of the merits is traced in a dozen other opinions. Louis v. Meissner, 530 F. Supp. 924 (SD Fla. 1981); Louis v. Meissner, 532 F. Supp. 881 (SD Fla. 1982); Louis v. Nelson, 544 F. Supp. 973 (SD Fla. 1982); Louis v. Nelson, 544 F. Supp. 1004 (SD Fla. 1982); Jean v. Nelson, 683 F. 2d 1311 (CA11 1982); Jean v. Nelson, 711 F. 2d 1455 (CA11 1983); Louis v. Nelson, 560 F. Supp. 896 (SD Fla. 1983); Louis v. Nelson, 560 F. Supp. 899 (SD Fla. 1983); Louis v. Nelson, 570 F. Supp. 1364 (SD Fla. 1983); Jean v. Nelson, 727 F. 2d 957 (CA11 1984) (en banc); Jean v. Nelson, 472 U. S. 846 (1985); Jean v. Nelson, 854 F.2d 405 (CA11 1988).

3624 F. Supp., at 837. With respect to the lack of substantial justification, the court explained: "In light of prior precedent and the advice of counsel, [the Immigration and Naturalization Service's] refusal to comply with the APA was not reasonable; nor was the position of the United States Attorney's Office in defending these actions by claiming that the change in policy was not a rule subject to the rulemaking requirements of the APA." Id., at 839.

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759, 765-769 (CA11 1988). After an extensive review of the record developed at the fee hearing, however, the Court of Appeals decided that certain errors required that the case "be remanded for recalculation of attorney's fees and expenses." Id., at 780. In view of this holding, we must assume that at least some of the positions petitioners took regarding the proper fee were substantially justified, even though their position on the merits of the litigation was not. Thus, the record squarely presents the question whether the District Court must make a second finding of no "substantial justification" before awarding respondents any fees for the fee litigation.

Petitioners concede that fees for time and expenses incurred in applying for fees are appropriate, but take the position that, unless the court finds that their position in the fee litigation itself was not substantially justified, fees for any litigation about fees are not recoverable. It is respondents' position that fee litigation is a component part of an integrated case and that if the statutory prerequisites for an award of fees for prevailing in the case are satisfied, the award presumptively encompasses services for fee litigation. Because the Courts of Appeals have resolved this question differently, we granted certiorari. 493 U. S. 1055 (1990).5

4 Petitioners divide the consideration of EAJA fee awards into two stages:

"In our view, it is appropriate to include reasonable fees and expenses incurred in preparing a fee application as part of any award of fees for the merits phase of the litigation. But... the government should not be required to pay for attorney's fees and expenses incurred in separate litigation over the availability and size of the fee award unless the position of the government in this distinct phase of the case was not substantially justified." Brief for Petitioners 15-16 (footnote omitted).

5 Compare Cinciarelli v. Reagan, 234 U. S. App. D. C. 315, 729 F. 2d 801 (1984); McDonald v. Secretary of Health and Human Services, 884 F. 2d 1468 (CA1 1989); Trichilo v. Secretary of Health and Human Services, 823 F. 2d 702 (CA2 1987); Powell v. Commissioner, 891 F. 2d 1167 (CA5

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