ELR Citation: ELR 20910
No(s). 89-601 (U.S. Jun 4, 1990)

The Supreme Court holds that the Equal Access to Justice Act (EAJA) covers attorney fees in all phases of successful civil litigation addressed by the Act, so that once a court determines that the United States was not " substantially justified" in the underlying litigation on the merits, fees incurred in litigating the fee award over the size are presumptively included. The EAJA refers to "any civil action" and "the position of the United States" in the singular, without suggesting dividing litigation into its part on the merits and its part on the size of the fees. The EAJA favors treating the case as an inclusive whole, rather than as atomized line-items. The Court observes that its holding is unlikely to encourage exorbitant fee requests, since no award of fees is automatic. District courts can discount fee requests. Moreover, the specific purpose of the EAJA is to eliminate the financial disincentive to challenge unreasonable governmental actions. If the United States could impose the cost of fee litigation on prevailing parties by asserting a "substantially justified" defense to fee applications, the financial deterrent would be resurrected.

Counsel for Plaintiffs
Harriet Shapiro
Office of the Solicitor General
10th and Pennsylvania Aves., Rm. 5614, Washington DC 20530
(202) 514-4281

Counsel for Defendants
Ira J. Kurzban
Kurzban, Kurzban & Weinger
2650 S.W. 27th Ave., 2nd Fl., Miami FL 33133
(305) 444-0060