Amicus Curiae Brief — Commissioner, INS v. Jean
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Supreme Court of the United States
OCTOBER TERM, 1989
No. 89-601
ee
In THE
COMMISSIONER OF THE IMMIGRATION AND
NATURALIZATION SERVICES, et al.,
Petitioners,
Vv.
MARIE LUCIE JEAN, et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
BRIEF FOR THE NATIONAL ORGANIZATION OF
SOCIAL SECURITY CLAIMANTS’ REPRESENTATIVES,
AS AMICUS CURIAE ON BEHALF OF RESPONDENTS
Of Counsel: JAMES E. COLEMAN, JR.*
Kirk B. Roose JOSEPH E. KILuory, JR.
Nancy G. SHOR EDWARD J. JANGER
NATIONAL ORGANIZATION OF WILMER, CUTLER &
SOCIAL SECURITY PICKERING
CLAIMANTS’ REPRESENTATIVES 2445 M Street, N.W.
19 East Central Avenue Washington, D.C. 200387
Pearl River, New York 10965 (202) 663-6000
Counsel for Amicus Curiae :
April 9, 1990 * Counsel of Record
WiLson - Eres Printine Co.. Inc. - 789-0096 - Wasnincron. D.C. 20001
TABLE OF CONTENTS
INTEREST OF AMICUS CURIAE 0.
SUMMARY OF ARGUMENT .......... pememserusnnmaemmee
INET ceicnnninenmencen ceieitininlaaenaatabiiaiaaemnmammmets
I. PETITIONERS’ READING OF THE EAJA
Ill.
IS CONTRARY TO THE LANGUAGE OF THE
STATUTE AS INTEKPRETED BY THIS
ee
A. The Threshold of Entitlement: Defining the
“Position of the United States”...
B. Scope: Legal Services in a Unitary “Civil
EE
C. Government's Liability: “Fees and Other
RE en
SEVERING THE FEE DISPUTE FROM
THE LITIGATION ON THE MERITS WOULD
BE INCONSISTENT WITH THE ESSENTIAL
LEGISLATIVE PURPOSE OF THE EQUAL
ACCESS TO JUSTICE ACT .0
A. Petitioners’ Argument Is Logically Flawed.
PETITIONERS’ ARGUMENTS REST ON AN
INACCURATE EMPIRICAL PICTURE OF
THE EAJA IN ACTION .............. pesatnnannamnnnane
A. This Is Not a Typical EAJA Case...
B. The EAJA Has Not Led to Burdensome Gov-
ernmental Liability
C. Petitioners Have Ignored the Role of the
Judge in Calculating a Reasonable Award
CONCLUSION
21
21
cs
. iii
TABLE OF AUTHORITIES
CASES: Page TABLE OF AUTHORITIES—Continued .
a
Ashburn v. United States, 740 F.2d 843 (11th Cir. -
1984) _ 8 Equal Access to Justice Act, 5 U.S.C. § 504
Boudin v. Thomas, 732 F.2d 1107 (2d Cir. 1984) 8 I sieectstrseenineesersonenenrereneersmersonmsenevenone—onnm——~ 1, 9, 10, 22
Del Manufacturing Co. v. United States, 723 F.2d 28 U.S.C. § 2412 (1982 & Supp. IV 1986) ....... passim
980 (D.C. Cir. 1983) . mmanaad =
Hensley v. Eckerhart, 461 US. 424 (1983) _ wniaiiee passim MISCELLANEOUS MATERIALS:
National Resources Defense Council, Inc. v. EPA, Administrative Conference of the United States,
703 F.2d 700 (3d Cir. 1983) 8 Report of the Chairman of the Administrative
New York Gaslight Club, Inc. v. Carey, 447 US. Conference of the United States on Agency Ac-
54 (1980) . 13 tivities Under the Equal Access to Justice Act
Pennsylvenia | v. . Delaware Valley Citizen's Couneil —October 1, 1987-September 30, 1988 (Feb. 6,
for Clean Air, 478 U.S. 546 (1986) 13 ES ee 6, 21, 22, 24
Pierce v. Underwood, 108 8. Ct. 2541 (1988) 3, 15, 17, 19 | Administrative Office of the United States Courts,
Spencer v. NLRB, 712 F.2d 539 (D.C. Cir. 1983), Annual Report of the Director (1988)... 2, 21, 22
cert. denied, 466 U.S. 936 (1984) 8 Administrative Office of the United States Courts,
Sullivan v. Hudson, 109 S. Ct. 2248 (1989) passim Report of the Director on Fees and Expenses
Texas State Teachers Association v. Garland Inde- Awarded Under the — Access to Justice Act
pendent School District, 109 S. Ct. 1486 (1989). 17 Sc 2, 6, 21, 24
Trichilo v. Secretary of Health & Human Services,
823 F.2d 702 (2d Cir. 1987) 11,14
Tyler Business Services, Inc. v. NLRB, 695 F.2d
73 (4th Cir. 1982) . ’ ~
United States v. 2,116 Bores of Boned Beef, 726
F.2d 1481 (10th Cir.), cert. denied, 469 U.S.
| x
Webb v. County Board of Education, 471 US. 234
LEGISLATIVE MATERIALS:
H.R. Rep. No. 120, 99th Cong., Ist Sess. (1985) _._ passim
H.R. Supp. Rep. No. 120, 99th Cong., Ist Sess.,
Part II (1985) eee ee
STATUTORY MATERIALS:
42 U.S.C. § 406(b) (1982) 2 )
Civil Rights Attorney's Fees Awards Act of 1976, |
42 U.S.C. § 1968 (1962) —..........._.___. 3,13
IN THE
Suprenwe Court of the Mnited States
OCTOBER TERM, 1989
No. 89-601
COMMISSIONER OF THE IMMIGRATION AND
NATURALIZATION SERVICES, et al.,
. Petitioners,
MARIE LUCIE JEAN, et al.,
Respondents.
On Writ of Certiorari to the
United States Court of Appeals
for the Eleventh Circuit
BRIEF FOR THE NATIONAL ORGANIZATION OF
SOCIAL SECURITY CLAIMANTS’ REPRESENTATIVES,
AS AMICUS CURIAE ON BEHALF OF RESPONDENTS
INTEREST OF AMICUS CURIAE
The National Organization of Social Security Claim-
ants’ Representatives (“NOSSCR”) is a non-profit cor-
poration. Its membership includes attorneys, both in pri-
vate practice and in programs providing legal services to
the poor, who represent individuals seeking disability
benefits from the Social Security Administration. In the
course of that work, NOSSCR members often file civil
actions in the United States district courts on behalf of
clients whose disability benefits improperly have been
terminated or denied.
The Equal Access to Justice Act, 5 U.S.C. § 504
(1988), 28 U.S.C. § 2412 (1982 & Supp. IV 1986) (the
“EAJA”) directly benefits Social Security claimants who
win district court reversals of unreasonable agency
denials of disability benefits! Fee awards under the
EAJA typically reimburse prevailing disability claimants
for attorney's fees that otherwise would have to be paid
from the claimant’s past-due benefits. See § 206(b) of
the Social Security Act, 42 U.S.C. § 406(b) (1982).
NOSSCR’s interest in this case is on behalf of its mem-
bers and their disabled clients who would be denied the
benefits of the EAJA if petitioners’ construction of that
statute were adopted.
SUMMARY OF ARGUMENT
In enacting the EAJA, Congress sought to “ensure
that individuals . . . [would] not be deterred from seek-
ing review of, or defending against, unjustified govern-
mental action because of the expense involved in securing
the vindication of their rights.” H.R. Rep. No. 120, 99th
Cong., Ist Sess. 4 (1985) (“1985 House Report”). This
Court has recognized that in so doing, Congress did not
intend to throw litigants “a lifeline that it knew was a
foot short.” Sullivan v. Hudson, 109 §S. Ct. 2 5
pooling . Ct. 2248, 2256
By its plain language the EAJA effectuates this legisla-
tive purpose in a simple and effective manner. The stat-
ute provides that when the federal government acts un-
reasonably it must pay the attorney’s fees of the victim
of that unreasonable action. An eligible claimant who
' District court reversals of agency denials of disability benefits
represented between 93 and 95 percent of the successful fee claims
under the EAJA in 1988 and 1989. See Administrative Office of
the United States Courts, Report of the Director on Fees and Ex-
penses Awarded Under the Equal Access to Justice Act (1989)
(“1989 Report of the Administrative Office’). Relevant statistical
information from this report is contained in Tables 1 and 2 of the
Appendix to this Brief. See also Administrative Office of the United
States Courts, Annual Report of the Director 100-06 (1988) (“1988
Report of the Administrative Office”).
3
“prevails” in a “civil action” or “adversary agency ad-
judication” against the United States is entitled to at-
torney’s fees if the “position of the United States” either
in court or at the administrative level was not “substan-
tially justified.”
The EAJA does not contemplate or speak in terms of
bifurcated proceedings or separate “actions” for the merits
portion of the case and the subsequent determination of
the entitlement to and amount of fees. To the contrary,
the statute speaks only in terms of a unitary “civil ac-
tion.” This Court recently found that the unitary “civil
action” contemplated by Congress was sufficiently broad
to encompass administrative proceedings ordered on re-
mand by the district court. See Sullivan v. Hudson, 109
S. Ct. at 2257. The only issue in determining whether
a claimant is entitled to fees for work done in that “civil
action” is whether the claimant has prevailed over an
unreasonable government position. The entitlement de-
cision follows naturally from the court’s determination of
the merits, and is not—as Petitioners repeatedly suggest
—the subject of a separate action. The amount of the
award is to be “reasonable,” as defined in Section 2412
(d)(2)(A) and by this Court’s decision in Hensley V.
Eckerhart, 461 U.S. 424, 433-34 (1983),? and is subject
to reversal or modification only if the court below has
abused its discretion. Pierce v. Underwood, 108 8. Ct.
2541, 2553 (1988).
In this case, petitioners seek to avoid paying the at-
torney’s fees incurred by the prevailing party in respond-
ing to the government’s challenge to its request for fees
under the EAJA (“fees on fees”). Petitioners concede
2 Although Hensley arose under 42 U.S.C. § 1988, the Court there
stated: “The standards set forth in this opinion are generally
applicable in all cases in which Congress has authorized an award
of fees to a ‘prevailing party.”” 461 U.S. at 433 n&. Indeed, in
Pierce v. Underwood, 108 S. Ct. 2541, 2553 (1988) this Court ap-
parently ratified that approach in the EAJA context.
4
that the government acted unreasonably here and that the
request for attorney’s fees by the victim of that unreason-
able action was necessary to obtain the EAJA-mandated
fees. Petitioners assert, however, that this final neces-
sary step to secure the fees should be viewed as an in-
dependent “civil action” in which the government is given
a second opportunity to escape from the consequences of
its unreasonable action. Petitioners argue that the gov-
ernment should be allowed to oppose the fee request—and
litigate the issue without limitation, so long as its posi-
tion opposing the fees is not unreasonable—and not be
required to compensate the victim for defending against
the government’s challenge to his fee award. This posi-
tion is inconsistent with both the language and legislative
purpose of the EAJA. Adoption of that position would
not merely shorten the EAJA lifeline thrown by Con-
gress, it would tangle that lifeline beyond repair.
Petitioners contend that the substantive finding of un-
reasonable conduct by the government on the merits
should be disregarded, and the government permitted a
second opportunity—based on a newfound posture of rea-
sonableness—to deter victims from ever pursuing vindica-
tion, by creating the possibility of substantial uncompen-
sable legal costs. This “two bites of the apple” approach,
resting upon an artificial bifurcation of the civil action,
specifically has been rejected by Congress and is incon-
sistent with the plain language of the statute.
Congress, in its 1985 amendments to the EAJA, ex-
plicitly rejected the kind of bifurcation advocated by
petitioners. The 1985 amendments clarify the threshold
for entitlement under the EAJA. In those amendments,
Congress defined the term “position of the United States”
so as to eliminate the possibility that the government
could act unreasonably, and then take a reasonable liti-
gating position in order to insulate itself from liability
for fees. Petitioners’ arbitrary at*empt to divide the
“civil action” under the EAJA into two unrelated pieces
5
also is inconsistent with this Court’s recent decision in
Sullivan v. Hudson, 109 S. Ct. 2248 (1989), and with
this Court’s interpretation of similar language in other
fee-shifting statutes.
Petitioners’ reading of the EAJA directly contradicts
Congress’ fundamental purpose in enacting that statute.
Despite their repeated protests that an “infinite regres-
sion” of oppositions to fee petitions is merely a theo-
retical possibility, Petitioners’ core argument is that the
court must determine whether the “position of the United
States” was reasonable for each identifiable stage in the
litigation of a claim. Each such sub-question of substan-
tial justification would be a mixed question of law and fact,
requiring legal analysis at the district court level and
raising the possibility of appealable issues. Petitioners’
theoretical possibility would in fact be the inevitable
reality under their view of the EAJA.
In addition to creating the potential for judicial grid-
lock, Petitioners’ gloss on the statute would place suc-
cessful claimants at the mercy of government attorneys
capable of forcing them through an endless series of
potentially uncompensated legal arguments and appeals
over attorney’s fees. This Court repea‘edly has stated
that disputes about attorney’s fees should not become a
second major litigation. Adoption of Petitioners’ position
would do just that. It would create second, third, and
fourth rounds of attorney’s fee litigation, which ulti-
mately would dwarf the merits litigation in complexity
and expense. Moreover, the government would be free
to pursue its larger agenda—seeking, as in Hudson and
in this case, to clarify EAJA issues wholly unrelated to
the reasonableness of the claimant’s fee request through
lengthy and expensive appeals to the Court of Appeals
and to this Court—and then force the individual claimant
to foot the bill for such “test case” litigation even where
the claimant ultimately prevails in that litigation. There
can be no doubt that adoption of Petitioners’ position
would mean that a victim of unreasonable government
action seeking to obtain the assistance of counsel would
face the prospect of substantial uncompensated legal
work in order to obtain a modest fee award. That is
just the type of economic deterrent to vindication of
rights that the EAJA was intended to prevent.
Finally, Petitioners’ argument rests on a depiction of
the EAJA in operation that is flatly wrong. In attempt-
ing to create a policy rationale for its reading of the
statute, Petitioners paint a picture of the United States
government held ransom by a flood of unreasonable fee
requests. That picture is wildly inaccurate. Statistical
data provided to Congress by the Administrative Office
of the United States Courts* and the Administrative
Conference of the United States‘ demonstrate that (1)
the vast majority of fee requests involve very small sums
of money, (2) the overall amount of fees awarded by
courts is relatively small, and (3) the trial judge, con-
spicuously ignored by Petitioners, performs a signifi-
cant mediating role in arriving at an appropriate fee
award.
Petitioners’ entire analysis ignores the fact that when
Congress threw social security claimants and other liti-
gants a “lifeline” it did not do so blindly. By requiring
the district court judge to calculate a “reasonable”
award, Congress placed the lifeline in capable hands.
The available empirical evidence suggests that the pres-
ence of judges has had the desired effect of discouraging
unreasonable fee requests and that judges have not hesi-
tated promptly to reduce any such requests. Accordingly,
* 1989 Report of the Administrative Office. See Appendix Tables
1 and 2.
* Administrative Conference of the United States. Report of the
Chairman of the Administrative Conference of the United States
on Agency Activities Under the Equal Access to Justice Act—
October 1, 1987-September 30, 1988 (Feb. 6. 1990) (“1990 Report
of the Administrative Conference”). Relevant statistical informa-
tion from this report is contained in Table 3 of the Appendix to
this Brief.
7
the specter of overstated fee requests and ensuing exten-
sive fee litigation at the expense of taxpayers is simply
not borne out by the facts.
ARGUMENT
I. PETITIONERS’ READING OF THE EAJA IS CON-
TRARY TO THE LANGUAGE OF THE STATUTE
AS INTERPRETED BY THIS COURT
Petitioners characterize “civil actions” under the EAJA
as bifurcated proceedings in which purportedly separate
“merits” and “fees” litigations are subject to separate
and distinct threshold requirements of government un-
reasonableness. This separate actions dual thresholds
approach is contradicted by the language of the statute,
as most recen‘ly amended,’ and the decisions of this
Court construing that statutory language. In particular,
Petitioners’ argument rests on a misguided interpreta-
tion of two critical phrases in the statute: (1) “position
of the United States,” as defined in Section 2412(d) (2)
(D:, in connection with the threshold requirement of
unreasonable government action; and (2) “civil action,”
as interpreted by this Court, in connection with the
scope of the proceeding and the proper amount of the
award.
*Section 2412(d)(1)(A) of the EAJA provides as follows:
Except as otherwise specifically provided by statute, a court
shall award to a preva/ling party other than the United States
fees and other cxpenses, in addition to any costs awarded
pursuant to subsection (a), ineurred by that party in any
civil! action ‘(other than cases sounding in tort), including
proceedings for judicial review of agency action, brought by
or against the United States in any court having jurisdiction
of that action, unless the court finds that the position of the
United S'ates was substantially justified or that special cir-
cumstances make an award unjust.
(Emphasis added ).
A. The Threshold of Entitlement: Defining the “Posi-
tion of the United States”
As noted, the legislative purpose in enacting the EAJA
was to encourage and assist the victims of unjustified
governmental action to vindicate their rights by limiting
the financial disincentive associated with the high cost
of obtaining legal assistance. The requirement for fee
entitlement under the EAJA is “prevailing” in a “civil
action” against a governmental action—a “position of
the United States”—that was not “substantially justi-
fied.” Petitioners recognize this statutory test, but posit
a separate “position of the United States”—and an ac-
companying separate “substantial justification” test—in
connection with the actual fee request. In arriving at
this interpretation, Petitioners misread the statutory
definition of the term “position of the United States”;
fail to recognize that the substantial justification of the
government's litigating positions has no bearing what-
soever on the amount of the award; and seek to relitigate
an issue foreclosed by Congress in its 1985 reenactment
and amendment of the EAJA.
Prior to the 1985 EAJA Amendments, a split devel-
oped among the circuits over the meaning of the term
“position of the United States.” Some courts held that
the “position of the United States” referred only to the
government's litigating position. Others took the
broader view that the “position of the United States”
included the underlying governmental action that led to
the litigation in the first place.’ Congress resolved this
* Spencer v. NLRB, 712 F.2d 539, 557 (D.C. Cir. 1983), cert.
denied, 466 U.S. 926 (1984). Ashburn v. United States, 740 F.2d
843, 849 (11th Cir. 1984); Boudin v. Thomas, 732 F.2d 1107, 1115
(2d Cir. 1984); United States v. 2,116 Boxes of Boned Beef, 726
F.2d 1481, 1487 (10th Cir.), cert. denied, 469 U.S. 825 (1984);
Tyler Bosiness Servs., Inc. v. NLRB, 695 F.2d 73, 75 (4th Cir.
1982).
7 National Resources Defense Council, Inc. v. EPA, 703. F 2d
700, 710 (Sd Cir. 1983); sce aleo Del Mig. Co. v. United States,
723 F.2d 980, 986-89 (D.C. Cir. 1983) (Wald, J., dissentinz).
split in circuits in 1985 when it added 28 U.S.C. § 2412
(d)(2)(D) to the statute. That section provides that:
“position of the United States” means, in addition
to the position taken by the United States in the
civil action, the action or failure to act by the
agency upon which the civil action is based; except
that fees and expenses may not be awarded to a
party for any portion of the litigation in which the
party has unreasonably protracted the proceed-
ings...
The legislative history is crystal clear as to Congress’
intent in enacting this amendment. Congress wished to
focus the attention of courts on the underlying govern-
mental behavior which gave rise to the entitlement to
fees. The 1985 House Report states:
[T|he amendment will make clear that the Con-
gressional intent is to provide attorneys’ fees when
an unjustifiable agency action forces litigation, and
the agency then |[tries} to avoid such liability by
reasonable behavior during the litigation.
Id, at 11.*
Congress was emphatic that simply taking a reasonable
litigating position would not insulate a party from lia-
bility for fees:
In clarifying the “position” term, the Committee
expressly rejects the holding of the District of Co-
lumbia Circuit in Spencer v. N.L.R.B., 712 F.2d 539,
557 (D.C. Cir. 1983), cert. denied, 104 8. Ct. 1908
(1984), that the only government “position” to be
scrutinized in the context of an EAJA case is that
taken in the litigation itself.
* The bracketed language reflects corrections made to the original
text in H.R. Supp. Rep. No. 120, 99th Cong., Ist Sess. Part II,
4-7 (1985) (“1985 House Supplemental Report”). This statement
was made in reference to the portion of the EAJA which was later
codified as 5 U.S.C. $504(a). This reference was made expressly
applicable to § 2412(d)(2)(D) by reference at page 17 of the 1985
House Report: “The term ‘position of the United States’ has been
discussed in relation to subsections 1(a)(1) and 1(c¢)(4).”
10
This restrictive view, adopted by several other courts
of appeal has resulted in the deniai of a number of
meri‘orious fee claims, because it fails to focus at-
tention on the unjustified government activity that
formed the basis of the litigation.
If the government's litigation position was the sole
consideration, the government could insulate itself
from fee liability simply by conceding error or
settling, because such actions will always be deemed
“reasonable” litigation positions; thereby having the
effect of substantially justifying their ion.
Environmental Defense Fund v. Watt, 554 F. Supp.
36, 41 (E.D.N.Y. 1982). Interpreting the EAJA
so as to restrict its ——— to mere litigation
arguments and not the underlying action which
made the suit necessary, would remove the very in-
centive for careful agency action that Congress
hoped to create in 1980. National Resources Defense
Council v. EPA, 703 F.2d 700, 710 (3d Cir. 1983).
The Committee's clarifica‘ion of the “position” term
is intended to broaden the court's or agency's focus
of inquiry for EAJA purposes beyond mere litiga-
tion arguments, and to require an assessment of
those government actions that formed the basis of
the litigation.
Id. at 12-13."
Moreover, the legislative history of the EAJA speaks
directly to the question of fees on fees. In discussing
the question of fees awarded at the agency level, the
1985 House Report states that:
In addition, the Committee notes that fees incurred
by a party when a fee award or denial is appealed
are recoverable as part of the final fee award.
1985 House Report at 17.
* Again, this language appears in reference to the portion of the
EAJA which was codified at 5 USC. §30t(a)(1). As noted
above at footnote &, this language subsequently was incorporated
by reference into the discussion of § 241214) (2) 1D).
11
Reaching the conclusion that a reasonable litigating
position in the fee portion of the “civil action” does not
provide a defense to liability for fees on fees does not,
however, require resort to the legislative history. It is
compelled by inference from the text of the statute.
By including the last clause of § 2412/d)(2)(D) Con-
gress specifically recognized the possibility that, in elim-
inating the “litigation position” defense to fee liability,
it could create automatic liability for all fees. To deal
with this possibility, Congress stated that “fees . . . may
not be awarded . . . for any portion of the litigation in
which the party has unreasonably protracted the proceed-
ings.” In carving out this limited exception, Congress
made no suggestion that a reasonable government litigat-
ing position would constitute a defense to a fee award.
Indeed it stated just the opposite in establishing that only
where cla'mant acts unreasonably is there a per se de-
fense to fee liability, and then only for the unreasonable
portion of the fee.
The 1985 Amendments and the statute as a whole thus
make clear that unjustified agency action triggers FAJA
liability for attorney's fees regardless of the reaconable-
ness of the government's subsequent litigating positions.
The “litigating position” seized upon by Petitioners here
—oppo:ition to the fee recuest—is indistinguishab'e from
any other of the many litigation positions taken by the
government. The 1985 Amendments make clear that the
reaconableness of any such losing litigat'ng position is
no defense to a claim for fees. Petitioners have shown
no reason why such a litigating position should be a de-
fense to a claim for fees incurred in obtaining the fees."
The Second Cireuit in Trichile rf. Serretarw of Health &
Human Services, 823 F.2d 702 (2d Cir. 1987). explains the point
well:
Severine seperate perts of the litication fer purposes of
determining the availability of counsel fees is inappropriate
in view of thie comeressional mandate te look net at the gov-
ernmment's litigation position, but rather at the underlying ac-
12
Petitioners’ arguments amount to no more than a vain
attempt to end run the 1985 Amendments and resuscitate
the “litigation position” as a method for insulating the
government from liability for fees. Such a club in the
hands of the government would have a chilling effect on
the willingness of lawyers to undertake cases in which
1 ec depended upon a fee award under the
B. Scope: Legal Services in a Unitary “Civil Action”
Section 2412(d)(1)(A) states that “a court shall
award to a prevailing party . . . fees and other expenses
.. . ineurred by that party in any civil action.” (Em-
phasis added). In Sulliven v. Hudson, 109 S. Ct. 2248
(1989), this Court examined the meaning of the term
“civil action” as used in § 2412. The decision in Hudson
recognized that “civil action” within the meaning of the
EAJA encompasses the entire litigation, defined broadly
to include any work that was “necessary” to obtain the
results sought. Thus once the threshold to entitlement
has been crossed—a claimant prevailing over an unrea-
sonable government action—the civil action for which the
government bears fee liability cannot thereafter be sub-
divided or bifurcated to limit the government's exposure.
In Hudson, the issue was whether, in a Social Security
disability case, proceedings on remand from the district
court were part of the “civil action” defined in § 2412.
There this Court looked to cases decided under other fee-
shifting statutes and stated that:
Our past decisions interpreting other fee-shifting
provisions make clear that where administrative
proceedings are intimately tied to the resolution of
tion that spawned the litigation in the first place.... [T)here
is no reason toe divide up phases of the litigation for examina-
tion. In shert. if the underlying agency action was net sub-
stantially justified, the victim of that unjustified action is
entitled to all reasonable attorney's fees, including these in-
curred on the fee application
823 F 2d at 708.
13
the judicial action and necessary to the attainment
of results Congress sought to promote by providing
for fees, they should be considered part and parcel
of the action for which fees may be awarded.
Id. at 2255.
In reaching this conclusion, the Court examined cases
decided under similar fee statutes that made fees gen-
erally available for all work that was “reasonably neces-
sary” to achieving the goals of the litigation. This Court
looked to Pennsylvania v. Delaware Valley Citizen’s
Council for Clean Air, 478 U.S. 546, 557-61 (1986), for
example, which held that under the Clean Air Act the
costs of representation before federal and state adminis-
trative agencies in defense of the provisions of a consent
decree were compensable under the fee-shifting provision
of that statute. The Court also examined New York Gas-
light Club, Inc. v. Carey, 447 U.S. 54, 60-63 (1980)
which held that under the fee-shifting provision of Title
VII, a federal court could award attorney’s fees for ser-
vices performed in state administrative and judicial en-
forcement proceedings. Finally, the Court examined
Webb v. County Board of Education, 471 U.S. 234, 243
(1985) which held that work performed in administra-
tive proceedings that is “both useful and of a type ordi-
narily necessary to advance civil rights litigation” may
be compensable under 42 U.S.C. $1988 (1982). After
examining these cases, the Court held that their logic
leads to the conclusion that remand proceedings before
the Social Security Administration could properly be con-
sidered part of the “civil action” before the district court
for the purposes of making an EAJA award.
This case is easier than Hudson. There at least, a
question existed as to whether an administrative proceed-
ing on remand came within the four corners of the “civil
action.” Here there is no such question. The litigation
over the amount of a fee is part and parcel of the same
“civil action”; indeed, it is the inquiry mandated by the
14
EAJA itself. The fee request is heard by the same judge,
carries the same docket number, and, by definition, was
spawned by the same unreasonable governmental action
that created the entitlement to the award. Nothing in the
language of the statute even remotely suggests that Con-
gress intended that the determination of what fee is
reasonable should acquire independent status under the
EAJA.
Indeed, even if the fee dispute were not so clearly an
integral part of the “civil action,” resolution of the dis-
pute is quintessentially “necessary to the attainment of
the results Congress sought to promote by providing for
fees,” Hudson, 109 S. Ct. at 2255. Again, as the Second
Circuit stated in Trichilo:
To begin with, the very purpose of the EAJA is to
ensure that persons aggrieved by unreasonable gov-
ernmental actions are not prevented from vindicat-
ing their claims by the potentially high costs in-
volved in doing so. Since the statute primarily as-
sures prevailing plaintiffs their reasonable attor-
ney’s fees, it would be ironic if claiming those very
fees—which would have been unnecessary if not for
the governmental action—was the one act for whi h
a claimant could not receive compensation. Since
the purpose of the EAJA is to remove counsel fees
as an impediment to. challenging unreasonable and
unjustified governmental actions, where a govern-
mental action has been shown to have been unjusti-
fied, there should be as little disincentive for plain-
tiffs to obtain attorney’s fees as there is for them
to challenge the action itself. The government asks
us “to treat the EAJA application as part of coun-
sel’s cost of doing business.” To do so, however,
would leave it in the power of the government,
which already has been unjustified in its actions
toward plaintiff, to so raise the cost of plaintiff's
counsel’s ‘doing business’ simply by strenuous re-
sistance to all fee applications as to discourage or
15
economically prevent a _ plaintiff from litigating
against the government in the first place.
823 F.2d at 707.
Finally, this interpretation of the term “civil action”
is consistent with the 1985 amendment to Section 2412
(d)(2)(D), discussed above, that requires courts to
view the action as a whole rather than as individual liti-
gating positions.
C. Government’s Liability: Fees and Other Expenses
Petitioners’ attempt to create a separate and distinct
requirement of independent unreasonable government ac-
tion with regard to a fee dispute under the EAJA is
contradicted by the language of Section 2412(d)(2)‘A)
which details the method for calculating fees. Nowhere
in that section does the term “substantial justification”
appear. Section 2412(d)(2)(A) provides for the award
of a
reasonable attorney fee!| . .. based upon prevailing
market rates for the kind and quality of services
furnished, except ... not... in excess of $75 per
hour unless the court determines that an increase
in the cost of living or a special factor, such as the
limited availability of qualified attorneys for the
proceedings involved justifies a higher fee. . .
As noted. this Court has spoken at length about what
constitutes a ‘reasonable fee,” and the method for cal-
culating such a fee. The basic method to be used is set
forth in Hensley v. Eckerhart, 461 U.S. 424, 433-34
(1983):"
The most useful starting point for determining the
amount of a reasonable fee is the number of hours
reasonably expended on the litigation multiplied by
11 In Hensley this Court stated that the method set forth therein
was of general applicability. 461 U.S. at 433 n.8. This Court rati-
fied this approach in the EAJA context in Pierce v. Underwood,
108 S.Ct. 2541, 2553 (1988). See note 2, supra.
16
a reasonable hourly rate. This calculation provides
an objective basis on which to make an initial esti-
mate of the value of a lawyer’s services. The party
seeking an award of fees should submit evidence
supporting the hours worked and rates claimed.
Where documentation of hours is inadequate, the
district court may reduce the award accordingly.
Id. at 433-34.
Multiplying the number of hours worked by the hourly
rate does not end the inquiry. The Court also defined the
proper approach in cases involving partial success on
multiple claims.
There remain other considerations that may lead the
district court to adjust the fee upward or downward,
including the important factor of the “results ob-
tained.” This factor is particularly crucial where a
plaintiff is deemed “prevailing” even though he suc-
ceeded on only some of his claims for relief. In this
situation two questions must be addressed. First,
did the plaintiff fail to prevail on claims that were
unrelated to the claims on which he succeeded?
Second, did the plaintiff achieve a level of success
that makes the hours reasonably expended a satis-
factory basis for making a fee award?
Id. at 434.
The Hensley Court also made clear that this was not
to be an overly mechanical inquiry, and that the deter-
mination of the amount of an award was committed to
the discretion of the judge, saying:
There is no precise rule or formula for making these
determinations. The district court may attempt to
identify specific hours that should be eliminated, or
it may simply reduce the award to account for the
limited success. The court necessarily has discre*ion
in making this equitable judgment. This discretion,
17
however, must be exercised in light of the considera-
tions we have identified.
Id. at 436-37."
The teachings of Hensley on this issue are more than
adequate in guiding district courts in the awarding of
fees under the EAJA, and provide sufficient protection
against unreasonable fee requests. Nothing in the statu-
tory language of the EAJA suggests that Congress in-
tended that the approach followed in these cases should
be overridden—and the discretion of the district judge
usurped—by the application of a multi-tiered and re-
curring threshold test of substantial justification.
Thus, under the EAJA, the inquiry into entitlement
requires a court to engage in a two step inquiry. First,
the court determines whether an eligible claimant has
“prevailed” in a “civil action” against the United States.
Second, the court determines whether the “position of the
United States” as defined in Section 2412(d) (2) (D) was
“substantially justified.” If these criteria for entitle-
ment are met, the court then calculates the amount of a
“reasonable” fee. To do so, the court applies the prin-
ciples set forth in Section 2412(d)(2)(A) and this
Court’s decision in Hensley. On appeal, that amount is
subject to reversal or modification only if the district
court abuses its discretion. Pierce v. Underwood, 108
S. Ct. at 2553.
Il. SEVERING THE FEE DISPUTE FROM THE LITI-
GATION ON THE MERITS WOULD BE INCON-
SISTENT WITH THE ESSENTIAL LEGISLATIVE
PURPOSE OF THE EQUAL ACCESS TO JUSTICE
ACT
Petitioners concede that “Fee litigation is . . . part
of the ‘civil action.’” Petitioner’s Brief at 17. This
This Court recently reaffirmed the principles set forth in
Hensley in Texas State Teachers Association v. Garland Inde-
pendent School District, 109 S. Ct. 1486, 1491-92 (1989).
18
should end the inquiry. Petitioners nevertheless repeatedly
strain to assert that fee litigation is separate and dis-
tinct from the litigation on the merits. Petitioners’ basic
premise is that it would be logically inconsistent to “im-
pose a standard of liability for the fee litigation phase
of the action that is different from . . . the standard set
forth in the Act.” Jd. The short answer is that both
phases are part of the same action and therefore share
the very same threshold standard of liability: govern-
ment action that is not substantially justified. Once that
standard is met for the “merits phase,” it is satisfied for
the “fees phase.”
A. Petitioners’ Argument Is Logically Flawed
Petitioners make three policy arguments in favor of
their interpretation of the statute:
(1) the Eleventh Circuit’: position would chill legit-
imate enforcement efforts;
(2) the Eleventh Circuit's position would require
the government to pay fees even when it makes
arguments which ultimately succeed; and
(3) Petitioners’ interpretation would deter unrea-
sonable fee requests.
The first two arguments rest on Petitioners’ failure to
distinguish the inquiry into entitlement from the resolu-
tion of disputes about amount. The third ignores the full
effect of the government's argument: not enly would
Petitioners’ position deter unreasonable fee requests, it
also would deter reasonable fee requests by placing all!
prevailing parties at the mercy of the government's
whim.
First, Petitioners are correct that by enacting the
EAJA Congress did not wish to chill legitimate enforce-
ment efforts. It did, however, wish to encourage chal-
lenges to unreasonable governmental behavior. It struck
a balance between those seemingly conflicting goals by
distinguishing the threshold for entitlement from the in-
19
quiry into the amount of the award. To protect enforce-
ment, Congress established a threshold for entitlement
that goes beyond merely prevailing and requires unrea-
sonable governmental action to form the basis for the
claim. Once the entitlement to fees is established, how-
ever, Congress left the determination of amount to the
discretion of the judge guided by the considerations set
forth in Section 2412(d)}(2)(A) and Hensley. See Pierce
v. Underwood, 108 8. Ct. at 2553.
Second, Petitioners’ argument that the Eleventh Cir-
cuit’s reading of the EAJA would force the government
to compensate claimants even for arguments as to which
the government prevails is simply wrong. Under the
framework set forth in Hensley, nothing prohibits the
court when awarding fees on fees from taking into con-
sideration the reasonableness of the prevailing party's
effort to establish the amount of fees. Indeed. that is
the mandate of the Eleventh Circuit’s position in this
case.
Finally, Petitioners argue that reopening the question
of substantial justification will deter unreasonable re-
quests. To the contrary, its sole effect would be to im-
pair the functioning of the statute by placing litigants
at the mercy of governmental whim. Government law-
yers faced with fee petitions would have nothing to
lose and everything to gain by strongly opposing every
fee request so long as some plausib'e grounds could be
found to place the issue in dispute. Fee awards are
small, and appeals are expensive. It is not difficult to
imagine that the cost of litigating over fees in three
courts, as in this case, could dwarf the amount of fees
actually in dispute. As discussed at pages 24-25 infra,
and demonstrated by the data contained in Tables 1 and
2 of the Appendix, the average EAJA award by a court
is $4,482. The amount of fees on fees is only a small
portion of that. The cost of an appeal could easily exceed
the amount of fees at issue. From the government's per-
spective the effort may be justified for policy considera-
tions beyond the particular case. For the prevailing
party, however, the only issue is whether his fees are
paid. Few lawyers would be willing to bear the cost of
litigating the policy issue just to recover the small
amounts of fees at issue.
Indeed, Petitioner: concede that:
[Ijt is... true, at least as a theoretical matter,
that inquiring into whether the was
substantially justified in arguing in fee litigation
that its position on the merits was substantially
justified could lead to an “infinite regression,” with
the government asserting in response to each suc-
ceeding fee application that its defense to the pre-
ceding application was substantially justified.
Brief of Petitioners at 29. Petitioners’ dismissal of the
infinite regression possibility is based on the assertion
that it has not occurred in the cireuits that have adopted
its position. This explanation is insufficient. Indeed
Pierce, Hudson, and this case provide evidence of the
government's willingness to litigate aggressively over at-
torney’s fees questions. Moreover, rather than inspiring
voluntary restraint by the government, it is far more
likely that the effect of the rule has been to cause claim-
ants simply to zive up on their fees rather than under-
take a potentially costly battle against the government.
Finally, Congress was cognizant of the possibility of
unreasonable behavior by fee claimants, and the EAJA
provided a mechanism for dealing with it. In § 2412/d)
(2) (D+, the statute provides that a fee award shall be
reduced if the plaintiff unreasonably prolongs the litiga-
tion. That determination is made as part of the inquiry
into whether the fee requested is reasonable. Petitioners
instead seek to establish an entirely different and more
burdensome mechanism for making the same determina-
tion: a mechanism that would swallow the required statu-
tory inquiry, and lead to consequences inconsistent with
the essential purposes of the EAJA.
21
Ill, PETITIONERS’ ARGUMENTS REST ON AN INAC-
CURATE EMPIRICAL PICTURE OF THE EAJA
IN ACTION
Petitioners’ argument rests on a picture of the EAJA
in operation that is simply wrong as an empirical mat-
ter. In support of its position, Petitioners paint a pic-
ture of the United States government held ransom by a
flood of unreasonable fee requests. However, statistical
data provided by the Administrative Office of the United
States Courts’ and the Administrative Conference of
the United States" belie Petitioner's parade of horrors.
These statistics demonstrate that: (1) the present case
is not the typical EAJA case; (2) the total amount
awarded wnder the EAJA by courts and agencies is rela-
tively small and indeed is less than Congress expected
when it reenacted the statute in 1985; and (3) judges
faced with an unreasonable fee request have the ability,
and indeed do not hesitate, to reject an amount that is
unreasonable. The third point is perhaps the most im-
portant, in that it strongly suggests that the active
presence of the judge, as called for in the plain language
of the statute, imposes any necessary discipline on the
amount of fee requests.
A. This Is Not a Typical EAJA Case
The fee awarded by the district court in this cave re-
flects the unusual nature of the case, its size, length and
complexity. A cursory review of the statistics contained
in Tables 1 and 2 of the Appendix to this Brief demon-
strates how the typical EAJA claim differs from the
claim at issue here.
1 See 1989 Report of the Administrative Office. Relevant statis-
tical data from this report are contained in Tables 1 and 2 in the
Appendix to this Brief. See also 1988 Report of the Administrative
Office.
'* 1990 Report of the Administrative Conference. Relevant statis-
tical information from this report is contained in Table 3 of the Ap-
pendix to this Brief.
The typical EAJA fee awarded by a court is generally
quite small. Social Security claimants who have won
relief in court are the principal beneficiaries of EAJA
awards. In 1988 and 1989, Social Security claimants
who won reversals of the agency's disability determi-
nation in district court represented between 93 and
95 percent of the successful fee claimants under EAJA.
Sixty-one percent of the total dollars awarded under
EAJA in statistical year 1989 were in these disability
cases.’ In statistical year 1989, district courts and
courts of appeals granted EAJA fees and expenses in
383 cases against HHS, and awarded a to‘al of $1,133,-
938 to Social Security claimants. Hence, the average
award in the most common type of EAJA case was
$2,961. This is well in proportion to the amount of bene-
fits at stake in disability cases. Indeed, the average
EAJA award for all types of cases in 1989 was $4,482,
far below the amount of fees at stake in the present case.
EAJA also applies at the agency level. Under 5 U.S.C.
£504 (1988), agencies are also required to award fees
when the United States takes an unreasonable position
in an “adversary” agency adjudication. See Su/liven v.
Hudson, 109 8. Ct. at 2255. Awards at the agency level
are no different than those awarded by courts. The
amount is typically quite small. As Table 3 demon-
strates, the average award made by agencies in fiscal
years 1982-1988 was $3,278.'*
B. The EAJA Has Not Led to Burdensome Govern-
mental Liability
No withstanding the importance of EAJA fees to
Social Security claimants, it is important to note that,
"In statistical year 1988, 47 percent of the dollars awarded
under EAJA were awarded in cases against HHS. This low per-
centage is primarily because of two large awards made that year.
See 1988 Report of the Administrative Office at 105-01
1990 Report of the Administrative Conference.
after six years in effect, the EAJA has not proven to be
burdensome to the public fise. Congress noted when it
reenacted the EAJA in 1985 that it had not proven to
be nearly as expensive as originally predicted. Since re-
enactment, the total amount awarded under the statute
has even been less than the amount in the
vised 1985 cost estimate. ee _
The House Report, relying on information gathered by
the Administrative Office of the United States Courts
and the Administrative Conference of the United States
stated that:
Between October 1, 1981 (the effective date of the
Act) and October 1, 1984, approximately $3.9 mil-
lion have been awarded under the Act... . These
—- - Smaed hn the $100 million
ann estimat t ongressional | Budget
Office (CBO) in 1981 and higher amounts cvalinad
by the Justice Department.
1985 House Report at 8-9. Indeed, when Congress reen-
acted the FAJA it expressed some dissatisfaction with
the low amount of fees awarded under the statute, noting
that “part of the problem in implementing the Act has
been that agencies and courts are misconstruing the
Act.” Id. at 9. The response to this dissatisfaction was
the enactment of § 2412(d)(2)(D) which defined “the
term “position of the United States.”
In 1985, the Congressional Budget Office again pro-
jected the future cost of the amended EAJA, making the
following assumptions :
The number of phrties recovering fees has grown
from 20 in fiscal year 1982 to 64 in 1988 to 198 in
1984. If that number continues to increase by about
130 each year, it would reach 1.000 in 1990. We
estimate an average award of $6,000 and assume
that it will remain roughly constant. (The average
award was $5,600 in|| 1984). We also expect that
a few unusually large awards will be made, aver-
flated is demonstrated by the data contained in Tables
and 3 of the Appendix.
In the courts, the total amount awarded under EAJA
has not exceeded $4,000,000 in any single year, and over
As the data in Table 3 indicate, the picture is the
same in the administrative agencies. The total amount
awarded has been exceedingly small. Between 1982 and
1988, a total amount of $1,193,231 was awarded, or an
average of $170,462 each year." The number of applica-
tions filed has never exceeded 300, and in fiscal 1988 the
number actually declined to 210 from 267 the year be-
fore. Finally, in fiscal years 1982-1988, the average
award by an administrative agency was $3,278, far below
17 In 1988, the total amount awarded reached an all time high
of $513,795.65. This was due primarily to the settlement by HHS
of Underdwe v&. Bowen, No. K-83-3885 (D. Md. 1987), which en-
abled certain fee applicants to file with HHS after the statutory
filing deadline had passed. See 1990 Report of the Administrative
Conference at App. V. This far exceeds the previous high and is
probably a statistical aberration.
the $6,000 predicted by the CBO. Indeed, in fiscal 1988
the average successful fee applicant received only $1,828.
Thus in most cases the fee award is relatively small.
Fees on fees represent only a tiny portion of that award.
Simply by forcing a claimant to defend a fee award
on appeal, the government may double the amount of
time a lawyer must spend on his or her case. If fees
not allowed, expense to the claiment may
be worth the effort, and the claimant may give up
fees to which he or she is legally entitled. That would
defeat the very purpose of the EAJA.
C. Petitioners Have Ignored the Role of the Judge in
Calculating a Reasonable Award
Perhaps most importantly, these statistics, and the
discussion above, demonstrate that Petitioners have com-
pletely ignored the mediating role of the trial judge in
determining the appropriate amount of a fee award.
Petitioners’ brief seems to assume that the on'y thing
standing between the EAJA claimant and the public fise
is the government lawyer. Last year courts denied 20°
of all fee applications outright, and Table 2 demonstrates
that courts have not hesitated, when presented with an
unreasonable fee request, to reduce the award to an ap-
propriate level, sometimes by as much as 80° . Thus, as
noted above, it is important to remember that the lifeline
thrown b Congress was placed in the hand of the dis-
trict court judge. Adoption of Petitioners’ argument
would create a tremendous incentive for government at-
torneys simply to stand in the way of the toss."
Petitioners argue as a fallback position that if their reading
of the statute is rejected, this Court should at least adept the
“technical defense” exception to fees on fees. The question of a
technical defense is not presented by this case. Moreover, the
arguments stated above apply with equal force te that interpreta-
tien. Indeed, Petitioners concede that such a reading is inconsistent
with the statutory language.
iu
it
cfatpll
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Hip
apes
Hin H
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|
sult is antithetical to the purpose of the EAJ
ingly. the opinion of the Eleventh Circuit should
z
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NATIONAL ORGANIZATION OF Wicmer, CuTLeR &
Soctat SECURITY PICKERING
CLAIMANTS’ REPRESENTATIVes 2445 M Street, N.W.
19 East Central Avenue Washington, D.C. 20037
Pear! River, New York 10965 (202) 663-6000
April 9, 1990 * Counsel of Record
APPENDIX
la
APPENDIX
Table 1
Decisions on Equal Access to Justice Act Applications
1984 Through 1989
Total Applications Applications Total
Year Applications Denied Granted Awarded
1984 296 130 166 $1,417,211
1985 577 157 420 $1,912,768
1986 672 108 564 $2,567,910
1987 496 95 401 $3,878,033
1988 521 105 416 $2,027,997
1989 503 90 413 $1,850,906
Percent
Change
1989 over
1988 -3.5 -143 —0.7 —8.7
Source: Administrative Office of the United States Courts,
1989 Annual Report of the Director
Nature and Amount of Awards *
— $13,372 $33,372
A A
$1,850,906 $1,804,162
$2,4 19, 125
Table 2
ions on Applications for Equal Access to Justice Aet Awards By Type of Court and Agency
1989
Applicati
415
$1,561,263
Applications Denied
90
HS,
Decis
U.S. Courts of Appeals
Commodities Futures
Total
bhitl gt
brrtt ue
bhdtt oad
=
Sig! gl!
= -
_ ll =z
Ke FO CO
= =
50181 —
Dept. ofthe Treasury 2 2
a edt
z''5 38
‘eee. e4
cee Oe
a
or
f''3 &
a i
dt Eine =“
= | é |
eed
~
4a va
- , , _ | | | Table 3
is | = , sai : .
= “ <= Disposition of Applications for Awards of
oy _ . . .
Fees and Expenses under the Equal Access
£ To Justice Act in Administrative Proceedings
, | ’ ’ ! : ».
Z ° rot td | | FY 1982-1988
5 Appli- Appli- Appli-
E - ' ’ | | 5 cations cations cations Amount
. , : ' as) Fiscal Year Filed Denied Granted Awarded
3
, =
é en > = S S @ b> ol Ss ‘ _ or«
Lita = ae s so :; 1983 88 53 8 $35,933.89
=- & 2 Um ol = ¥ 2
= pr 5 1984 146 76 13 $121,943.79
=
¢ - -, ‘ ae ~- we
rs S 1985 56 63 11 $200,095.66 !
*«ti/2 Ss 2 ¢ Re o ra 3
aan ee os Ss = - = 1986 128 54 21 $107,141.29!
_E2ee os @® - ws Ss 6].5 =} . =
El’ <ei[s ©& = UN N o Se & 1987 267 60 30 $214,320.74 !
E > = =
~ — °o . ~79 Oe}
_ 1s i, = 1988 2102 943 281 4 $513,795.65 !
> bee , ay for) 7 ——--- en —- — ——
sItlfgisci@2 = 2 ¢ 1c a 7c All Years 998 431 364 $1,193,231.00 !
—s=isi* 2g Ss ¢€ Ss ¢ iD Ss ais™ E
eiz2i2 z Ss © - ¢ oS Ss Sica .
: 3 Sa © 2 - 8 o> i < 5 : :
Sissies" ia = > - & ; 1 Does not include unknown amounts in settlement.
4 en (-) _ ~ o ‘ ° €
eh . pom > ¥ 2 * The department of Health and Human Services reports 134 of the
= 2 ao - = ~« z $ ¢ §& 210 cases filed in FY88 under the Act.
ks = : = ‘ , .
r o 8 - = * The department of Health and Human Services reports 72 of the
2 F ” o ~~ 2-4... °o = 94 cases filed in FY88 in which applications were denied .
ia & § = a Sis Ff - = :
2s i* é¢& a ) =/-3 2s 6S * The department of Health and Human Services reports 240 of the
. S = ~ - “a. ~ . —_ " . . . .
aig*2 t al =i- = e = 281 cases filed in FY88 in which application for fees was granted.
- =” w = = > " s
ei" § a 2 r 3
o 4 m a nae , ;
5s <= = a Source: Report of the Chairman of the Administrative Conference
— o Y es “ ae .
z | = a 2 be of the United States on Agency Activities Under The Equal
2 ..: = | | - She « e 6S Access to Justice Act, February 6, 1990
ya SS ae) om >
= 2et be &
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.