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

Magri

Hip

apes

Hin H

STH

|

sult is antithetical to the purpose of the EAJ

ingly. the opinion of the Eleventh Circuit should

z

oe

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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“ SEGRE EZESEL LE E2E = a.

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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.

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