# Lee v. Johnson

> Court of Appeals for the Third Circuit · August 7, 1986 · 799 F.2d 31

URL: https://www.frixlaw.com/law-library/cases/8944033

## Case

- **Full name:** Makana LEE and Ft. Steuben Co., Inc., in No. 85-3339 v. J. Alan JOHNSON, United States Attorney for the Western District of Pennsylvania, and William von Raab, Commissioner, United States Customs Service, in No. 85-3321
- **Court:** Court of Appeals for the Third Circuit
- **Decided:** August 7, 1986
- **Citations:** 799 F.2d 31; 1986 U.S. App. LEXIS 27970
- **Precedential status:** Published
- **Opinion:** Concurrence by Rosenn
- **Judges:** Becker, Gibbons, Rosenn
- **Cited by:** 43 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/8944033

## How later opinions describe it (automated extraction)

- reasoning that the Second Circuit’s holding in Boudin “certainly lends some support to the government’s proposed restrictive interpretation of the ‘civil action’ language in the [EAJA]”
- recognizing 1985 Congress’ requirement of a test more stringent than reasonableness, but asserting that Third Circuit already has a more stringent test
- holding that a technical deficiency in a fee application, such as a party’s net worth, could be cured after the expiration of the statute’s time period

## Opinion text

ROSENN, Circuit Judge,
concurring.
I join in Judge Gibbons’ opinion in all respects except that my view of the reasonableness test for “substantial justification” of the Government’s position is more stringent than that set forth in part III A(3). When this court considered the fee issue in Washington v. Heckler, 756 F.2d 959 (3d Cir.1985), it did not have the benefit of the 1985 amendments to the Equal Access to Justice Act, 28 U.S.C.A. § 2412 (West Supp.1986) (the Act). Several months after the Washington decision, Congress renewed the Act retroactively in amended form. Pub.L. No. 99-80, 99 Stat. 183 (1985) (the Amendments). Congress in enacting the Amendments intended to clarify the Act. See H.R. No. 120, 99th Cong., 1st Sess. 21 (1985), reprinted in 1985 U.S. Code & Cong. & Ad.News at 149. The need for such clarification is reflected in Chief Judge Aldisert’s concurring opinion in Washington, 756 F.2d at 968-70 . The legislative history pertaining to the amendments persuades me that Congress intended that an evaluation of “substantial justification” under the Act requires more than a marginal standard of reasonableness.
*41 In the original legislative history of the Act, the House Judiciary Committee stated that “[t]he test of whether or not a government action is substantially justified is essentially one of reasonableness.” H.R. Rep. No. 1418, 96th Cong., 2d Sess. 13, reprinted in 1980 U.S. Code Cong. & Ad. News at 4953, 4992. In its report accompanying the Amendments, the Committee stated that in evaluating substantial justification, “the test must be more than mere reasonableness.” H.R.Rep. No. 120, supra at 9, reprinted in 1985 U.S.Code Cong. & Ad.News at 132, 138. 1 In reconciling these expressions of congressional intent, I believe that Congress did not intend a reasonableness standard for substantial justification of government action to be weak or relaxed. In meeting that standard, I conclude that the Government now must show not merely that its position was marginally reasonable; its position must be clearly reasonable, well founded in law and fact, solid though not necessarily correct. United States v. 1,378.65 Acres of Land, 794 F.2d 1313 , (8th Cir.1986). See Gavette v. Office of Personnel Management, 785 F.2d 1568, 1579 (Fed.Cir.1986) (in banc); McDonald v. Schweiker, 726 F.2d 311, 316 (7th Cir.1983). But see Russell v. National Mediation Board, 775 F.2d 1284, 1289 (5th Cir.1985) (finding legislative history irreconcilable and retaining reasonableness standard).
Under such a standard — or even the less demanding standard described by Judge Gibbons — the Government has failed to show that its position was substantially justified. I therefore agree that the order appealed from must be affirmed in all respects.
. The report cited approvingly four court decisions applying a test slightly more stringent than reasonableness for substantial justification. H.R.Rep. No. 120, supra at 9 n. 15, reprinted in 1985 U.S. Code Cong. & Ad.News at 138 n. 15; see, e.g., Spencer v. NLRB, 712 F.2d 539 , 558 & n. 67 (D.C.Cir.1983) (citing other cases), cert. denied, 466 U.S. 936 , 104 S.Ct. 1908 , 80 L.Ed.2d 457 (1984). In a report accompanying a prior version of the Amendments, which was enacted by Congress but vetoed by the President for reasons unrelated to substantial justification, see 20 Weekly Comp.Pres.Doc. 1814-15 (Nov. 12, 1984), Congress explicitly adopted the "slightly more stringent” language and stated that one of the purposes of the test was to ensure that "only sound, well-prepared cases be initiated” by the Government. S.Rep. 586, 98th Cong., 2d Sess. 11-12.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/8944033. Public record. Not legal advice.