[*] Staff Attorney, Florida Fourth District Court of Appeal. J.D., Florida State University College of Law, 1998. The phrase "Corporate Goliaths in the Costume of David" was coined by Judge Reynoldo G. Garza to explain that aggregation of the individual net worths of an association's members must be required when determining if an association is eligible for attorneys' fees under the Equal Access to Justice Act. Texas Food Indus. Ass'n v. United States Dep't of Agric., 81 F.3d 578, 585 (5th Cir. 1996) (Garza, J., dissenting). Return to text.

[1] 28 U.S.C. § 2412 (1994 & Supp. 1996) (civil actions); 5 U.S.C. § 504 (1994 & Supp. 1996) (adversary administrative adjudications). While this Comment will focus on 28 U.S.C. § 2412, the courts' logic and the changes urged by this Comment apply to 5 U.S.C. § 504 as well. Return to text.

[2] Section 2412(d)(1)(A) states:

Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred 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 States was substantially justified or that special circumstances make an award unjust.
28 U.S.C. § 2412(d)(1)(A) (1994). Return to text.

[3] See Equal Access to Justice Act, Pub. L. No. 96-481, tit. II, § 203, 94 Stat. 2321, 2327 (1980). As originally enacted, the EAJA contained a sunset provision that caused it to expire on September 30, 1984. See id. Congress permanently reenacted the EAJA in 1985. See Act of Aug. 5, 1985, Pub. L. No. 99-80, § 2(b), 99 Stat. 183, 184-85 (codified as amended at 28 U.S.C. § 2414(d)(1)(B) (1994)). Return to text.

[4] See Gregory S. Sisk, The Essentials to the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part Two), 56 LA. L. REV. 1, 190 (1995) [hereinafter Sisk, Essentials II]; Gregory S. Sisk, A Primer on Awards of Attorney's Fees Against the Federal Government, 25 ARIZ. ST. L.J. 733, 800 n.496 (1993). Most commentators who examined the EAJA soon after its effective date responded favorably to the Act. See, e.g., P. Scott Mitchell, Note, Civil Procedure—Attorney's Fees—Recovery of Attorney's Fees Against the United States—The Equal Access to Justice Act, Pub. L. No. 96-481, 94 Stat. 2325 (1980), 10 FLA. ST. U. L. REV. 723 (1982). Return to text.

[5] For a discussion of the elements of an EAJA claim, see infra Part III. Return to text.

[6] See National Truck Equip. Ass'n v. National Highway Traffic Safety Admin., 972 F.2d 669, 672 (6th Cir. 1992). Return to text.

[7] See Texas Food Indus. Ass'n v. United States Dep't of Agric., 81 F.3d 578, 582 n.7 (5th Cir. 1996). Return to text.

[8] See Love v. Reilly, 924 F.2d 1492, 1494-95 (9th Cir. 1991). Return to text.

[9] See Grason Elec. Co. v. NLRB, 951 F.2d 1100, 1103 (9th Cir. 1991). Return to text.

[10] See Gregory C. Sisk, The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part One), 55 LA. L. REV. 217, 221 (1994) [hereinafter Sisk, Essentials I] (stating that "the EAJA remains a constant focus of judicial attention, with new appellate decisions interpreting its provisions and applying its standards appearing in nearly every volume of the Federal Reporter," and that "[a]s evidenced by its ubiquitous presence in the federal case reporters during the last decade, Section 2412 of Title 28 has become one of the most heavily and intensely litigated sections of the United States Code."). Return to text.

[11] As stated in the House Report on the Equal Access to Justice Act, Extension and Amendment, when the EAJA was reenacted in 1985:

The primary purpose of the Act was to ensure that certain individuals, partnerships, corporations, businesses, associations, or other organizations will not be deterred from seeking review of, or defending against, unjustified governmental action because of the expense involved in securing the vindication of their rights. The Act reduces the disparity in resources between individuals, small businesses, and other organizations with limited resources and the Federal Government.
H.R. REP. NO. 99-120, at 2 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 132; accord Unification Church v. INS, 762 F.2d 1077, 1082 (D.C. Cir. 1985). The Unification Church court stated:
[E]nacting the Equal Access to Justice Act, Congress wished to ease the burden upon small businesses of engaging in litigation with the federal government. . . . Indeed, the Equal Access to Justice Act was passed as one of the titles in an act that assisted small businesses in a number of ways.
Id. at 1082 n.2. Return to text.

[12] The purpose of the EAJA is summarized as follows:

(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.
(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations. (c) It is the purpose of this title — (1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorneys' fees, expert witness fees, and other costs against the United States Equal Access to Justice Act, Pub. L. No. 96-481, tit. II, § 202, 94 Stat. 2321, 2325 (1980). Return to text.

[13] H.R. REP. NO. 96-1418, at 12 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4991; see also Sisk, Essentials I, supra note 10, at 220 (noting that while other statutes provided attorneys' fees "to encourage private enforcement of important statutory policies, the EAJA blazed a new path by adopting fee-shifting as an instrument to monitor government regulation and to deter unjustifiable government policies and enforcement actions"). While other statutes authorize attorneys' fees, those statutes only provide for fees in causes of action under the specific statute involved. See id. at 229. The EAJA is thus "unparalleled among fee-shifting statutes in its breadth of application." Id. Return to text.

[14] H.R. REP. NO. 96-1418, at 10 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4988; accord Harold J. Krent, Fee Shifting Under the Equal Access to Justice Act—A Qualified Success, 11 YALE L. & POL'Y REV. 458, 463 (1993) ("The government can marshal more resources in litigation than can most private noninstitutional parties. Indeed, the government's sheer size may give it an unfair advantage in litigation, much like that which General Motors or Exxon enjoy over smaller adversaries. Private parties may not be able to afford protracted litigation against the government . . . because of this comparative lack of resources." (footnote omitted)); Nancy A. Streeff, Comment, Gavette v. Office of Personnel Management: The Right to Attorney Fees Under the Equal Access to Justice Act, 36 AM. U. L. REV. 1013, 1013 (1987). Congress desired to convey the following message to small litigants: "if you're right on the facts and right on the law—and its important to you—you can litigate and you don't need to back down just because it's the federal government." Catherine M. Brennan, Beating a Bully: Small Business Owner Wins Legal Fees from Department of Labor, DAILY REC., Nov. 2, 1996, at 23A. Return to text.

[15] Krent, supra note 14, at 458; accord Risa L. Lieberwitz, Attorneys' Fees, The NLRB, and the Equal Access to Justice Act: From Bad to Worse, 2 HOFSTRA LAB. L.J. 1, 46 (1984) (suggesting that the EAJA reflects Congress's reaction to the Reagan Administration's concerns about overregulation and government harassment). Return to text.

[16] See H.R. REP. NO. 96-1418, at 10 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4988; see also Lieberwitz, supra note 15, at 48 (noting that the EAJA is based on the cost-benefit analysis of a business that accedes to the government's position when faced with federal prosecution because the business concludes that the costs of compliance are less than the costs of challenging the position through litigation). Return to text.

[17] See Battles Farm Co. v. Pierce, 806 F.2d 1098, 1101 (D.C. Cir. 1986), vacated, 487 U.S. 1229 (1988); see also Krent, supra note 14, at 478 (commenting how some perceive injuries caused by government officials as particularly egregious because of a breach of public trust and noting that Congress could seek restoration in the public's faith in government via one-way fee shifting). Return to text.

[18] See Commissioner, INS v. Jean, 496 U.S. 154, 165 (1990) ("[T]here is evidence that small businesses are the target of agency action precisely because they do not have the resources to fully litigate the issue." (citing H.R. REP. NO. 96-418, at 12 (1980))). Return to text.

[19] See Lieberwitz, supra note 15, at 44 n.307 (noting that prior to the EAJA, virtually no statute provided for the ready recovery of fees by defendants). Return to text.

[20] See 28 U.S.C. § 2412(d)(1)(A) (1994). Return to text.

[21] See Lieberwitz, supra note 15, at 4 n.18 (noting that the U.S. Supreme Court first announced the American Rule in Arcambel v. Wisemann, 1 U.S. (3 Dall.) 306 (1796)). Return to text.

[22] See Alyeska Pipeline Serv. Co. v. Wilderness Soc'y, 421 U.S. 240, 247 (1975). Return to text.

[23] See Dwayne McCure & Mark J. Steele, Note, Liability for Attorneys' Fees Under The Equal Access to Justice Act—Raton Gas Transmission Co. v. FERC, 11 ENERGY L.J. 297, 301 (1990). Return to text.

[24] See Arlene S. Ragozin, The Waiver of Immunity in the Equal Access to Justice Act: Clarifying Opaque Language, 61 WASH. L. REV. 217, 217 n.7 (1986). Primary justifications for the American Rule include the following: (1) one should not be penalized for merely defending or prosecuting a lawsuit because litigation is inherently uncertain; (2) awarding fees to prevailing parties might discourage those with little resources from seeking to vindicate their rights in court; (3) the determination of what constitutes reasonable attorneys' fees would substantially burden the judicial system; and (4) attorneys might sacrifice their clients' best interests in order to avoid irking the judge, who will ultimately determine the amount of their fees. See Jay E. Rosenblum, The Appropriate Standard of Review for a Finding of Bad Faith, 60 GEO. WASH. L. REV. 1546, 1548-49 (1992). Return to text.

[25] See Stephen E. Blackman, Comment, Bad Faith and the EAJA: A Proposal for Strict Scrutiny of Government Fee Litigation Under the EAJA, 20 ENVTL. L. 975, 977 (1990). Return to text.

[26] See McCure & Steele, supra note 23, at 300. Return to text.

[27] See Brigitte Fresco, Lundin v. Mecham: Defining the Scope of the Equal Access to Justice Act, 62 GEO. WASH. L. REV. 795, 796 (1994) (noting that the statutory exceptions may have swallowed the American Rule, particularly since the EAJA, "one of the broadest exceptions to the American Rule," allows recovery of attorneys' fees in all civil litigation). Other federal statutes that provide for the recovery of attorneys' fees by prevailing parties include the Freedom of Information Act, 5 U.S.C. § 552(a)(4)(E) (1994), and the Civil Rights Attorneys' Fees Awards Act of 1976, 42 U.S.C. § 1988 (1994). Return to text.

[28] See 28 U.S.C. § 2412(d)(1)(A) (1994). Return to text.

[29] 28 U.S.C. § 2412(b) (1994). Return to text.

[30] See Rosenblum, supra note 24, at 1556. Return to text.

[31] See H.R. REP. NO. 96-1418, at 9 (1979), reprinted in 1980 U.S.C.C.A.N. 4984, 4987; see also Krent, supra note 14, at 473 ("[E]ven if the EAJA does not significantly deter careless government policy or implementation decisions, it may help deter litigation misconduct."). Return to text.

[32] See Equal Access to Justice Act, Pub. L. No. 96-481, tit. II, § 202(a), 94 Stat. 2321, 2325 (1980); see also Krent, supra note 14, at 477 ("[C]ompensation for injuries cannot be complete if a substantial part of the recovery must then be devoted to pay an attorney."); McCure & Steele, supra note 23, at 300. Return to text.

[33] 495 F.2d 1026 (D.C. Cir. 1974). Return to text.

[34] See id. at 1035-36. Return to text.

[35] 421 U.S. 240 (1975). Return to text.

[36] See id. at 271. Return to text.

[37] See McCure & Steele, supra note 23, at 330. Return to text.

[38] See H.R. REP. NO. 96-1418, at 6 (1979), reprinted in 1980 U.S.C.C.A.N. 4984, 4985. Return to text.

[39] See id. See generally Award of Attorney's Fees Against the Federal Government: Hearings on S. 265 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice on the House Comm. on the Judiciary, 96th Cong. 1 (1979) [hereinafter H.R. Hearings]; Equal Access to Justice Act of 1979: Hearings on S. 265 Before the Subcomm. on Improvements in Judicial Mach. of the Senate Comm. on the Judiciary, 96th Cong. 1 (1979) [hereinafter Sen. Hearings]. Return to text.

[40] See H.R. REP. NO. 96-1418, at 6 (1979), reprinted in 1980 U.S.C.C.A.N. 4984, 4985. Return to text.

[41] See Equal Access to Justice Act, Pub. L. No. 96-481, tit. II, 94 Stat. 2321, 2325 (1980). Return to text.

[42] See id. Return to text.

[43] Barry S. Rutcofsky, Note, The Award of Attorneys Fees Under the Equal Access to Justice Act, 11 HOFSTRA L. REV. 307, 307 (1982). State fee-shifting statutes patterned after those created by Congress have been enacted in increasing numbers. A 1983 survey found a total of 1974 state fee-shifting statutes, and a survey conducted 10 years later identified 3918 state fee-shifting statutes. See Susan M. Olson, How Much Access to Justice from State "Equal Access to Justice Acts"?, 71 CHI.-KENT L. REV. 547, 552 (1995). Twenty-nine states had mini-EAJAs on their books within a decade after the EAJA became effective, and in 1995 Washington became the most recent state to follow suit. See id. at 554-55. However, these mini-EAJAs produced only modest redistribution of resources from the government to private litigants. See id. at 549. Return to text.

[44] However, the EAJA exists as a default provision and does not apply if another statute specifically provides for fees. See, e.g., EEOC v. O & G Spring & Wire Forms Specialty Co., 38 F.3d 872, 881 (7th Cir. 1994) (noting that the EAJA does not apply to suits under Title VII). Return to text.

[45] See Equal Access to Justice Act, Pub. L. No. 96-481, tit. II, § 203(c), 94 Stat. 2321, 2327 (1980); see also Louise L. Hill, An Analysis and Explanation of the Equal Access to Justice Act, 19 ARIZ. ST. L.J. 229, 229 (1987). Return to text.

[46] See An Amendment to H.R. 2267 to Allow for the Recovery of Attorneys Fees and Litigation Costs in a Criminal Prosecution: Hearings Before the House Rules Comm., 1997 WL 14150345 [hereinafter Hearings Before the House Rules Comm.] (statement of Rep. Henry J. Hyde, Chairman, Comm. on the Judiciary, U.S. House of Rep.). But see Catherine M. Brennan, NLRB Paying for Pursuit of 'Anti-Union' Case, DAILY RECORD, Apr. 23, 1997, at 1A (noting that EAJA awards "may slow the National Labor Relations Board's willingness to prosecute cases which accuse businesses of illegally discouraging workers from unionizing"). Return to text.

[47] See Act of Aug. 5, 1985, Pub. L. No. 99-80, § 6(b)(1), 99 Stat. 183, 186 (1985). Return to text.

[48] See Hill, supra note 45, at 232. Return to text.

[49] See, e.g., Texas Food Indus. Ass'n v. United States Dep't of Agric., 81 F.3d 578 (5th Cir. 1996). Return to text.

[50] See, e.g., Hess Mechanical Corp. v. NLRB, 112 F.3d 146 (4th Cir. 1997). Return to text.

[51] See, e.g., Marcus v. Shalala, 17 F.3d 1033 (7th Cir. 1994) (challenging regulations governing disability benefits). Social Security disability claimants whose benefits were terminated during the 1980s frequently used the EAJA with success. See Olson, supra note 43, at 555 n.41. However, the amount of fees requested by prevailing parties was typically reduced by district courts during that time period. In Commissioner, INS v. Jean, the Supreme Court noted that "[o]ut of 502 applications [for EAJA awards] in 1989, the 413 that were granted requested a total of $2,419,123 in fees and expenses, of which only $1,850,906 were awarded." Commissioner, INS v. Jean, 496 U.S. 154, 161 n.9 (1990). Return to text.

[52] See, e.g., Love v. Reilly, 924 F.2d 1492 (9th Cir. 1991) (seeking an injunction to stop a pesticide ban); see also Karen Litscher Johnson, The Equal Access to Justice Act: It Can Pay to Get Your Way, CBA REC., Nov. 1994, at 42 (noting that "fighting the federal government can pay"). Return to text.

[53] See Krent, supra note 14, at 459. Return to text.

[54] See Maureen Armour, Rethinking Judicial Discretion: Sanctions and the Conundrum of the Close Case, 50 SMU L. REV. 493, 559 (1997). Return to text.

[55] See 28 U.S.C. § 2412 (1994 & Supp. 1996). Return to text.

[56] 28 U.S.C. § 2412 (d)(2)(B) (Supp. 1996). Return to text.

[57] See Shari S. Russo, Note, Will the Sun Rise Again for the Equal Access to Justice Act?, 48 BROOK. L. REV. 265, 283 (1982) (citing H.R. REP. NO. 96-1418, at 15 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4994). Return to text.

[58] However, Congress included some exceptions in the EAJA. Section 2412 (d)(2)(B) exempts the following from net worth criteria, but not from the 500 employee limit criterion: organizations described in section 501(c)(3) of the Internal Revenue Code of 1986, 26 U.S.C. § 501(c)(3) (1994), and cooperative associations as defined in section 15(a) of the Agricultural Marketing Act, 12 U.S.C. § 1141j(a) (1994). Return to text.

[59] "[A] court shall award [fees] to a prevailing party . . . ." 28 U.S.C. § 2412(d)(1)(A) (1994) (emphasis added). Return to text.

[60] See id. § 2412(d)(2)(H) (Supp. 1996) (defining a prevailing party as "a party who obtains a final judgment (other than by settlement), exclusive of interest, the amount of which is at least as close to the highest valuation of the property involved that is attested to at trial on behalf of the property owner as it is to the highest valuation of the property involved that is attested to at trial on behalf of the Government . . . ."). Return to text.

[61] See Sisk, Essentials I, supra note 10, at 262. Return to text.

[62] 489 U.S. 782 (1989) (deciding a claim for attorneys' fees under 42 U.S.C. § 1988 (1994)). Return to text.

[63] Id. at 789. Return to text.

[64] Neal & Co. v. United States, 121 F.3d 683, 685 (Fed. Cir. 1997) (quoting Farrar v. Hobby, 506 U.S. 103, 111-12 (1992)). Thus, a claimant with an original claim of $6,899,606 who receives $792,143 in damages (11.5% of its original claim), qualifies as a prevailing party because the award, although small compared to the original claim, constitutes a sizable damage judgment that materially alters the parties' relationship. See id. Return to text.

[65] See Fresco, supra note 27, at 808-09. Return to text.

[66] See id. at 809 & n.110 (citing Simien v. City of San Antonio, 809 F.2d 255, 258 (5th Cir. 1987)); see also Martin v. Heckler, 773 F.2d 1145, 1149 (11th Cir. 1985) ("The prevailing party test is 'whether he or she has received substantially the relief requested or has been successful on the central issue . . . .'" (quoting Watkins v. Mobile Hous. Bd., 632 F.2d 565, 567 (5th Cir. 1980))). Return to text.

[67] See Fresco, supra note 27, at 809 & n.111 (citing Nadeau v. Helgemoe, 581 F.2d 275, 278-79 (1st Cir. 1978) ("[P]laintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit."); Kreimes v. Department of Treasury, 764 F.2d 1186, 1188 (6th Cir. 1985). Return to text.

[68] See Fresco, supra note 27, at 809-10 (explaining that the significant issue standard looks solely at whether "the party [won] on one or more important issue[s], though not necessarily on the most important issue that achieved some benefit"). The central issue standard was therefore rejected by the Court in Garland. See id. Return to text.

[69] See Farrar v. Hobby, 506 U.S. 103, 105 (1992). Return to text.

[70] See Fresco, supra note 27, at 811. Return to text.

[71] See 28 U.S.C. § 2412(d)(1)(A) (1994). Return to text.

[72] Martin v. Lauer, 740 F.2d 36, 44 (D.C. Cir. 1984). Return to text.

[73] 28 U.S.C. § 2412(d)(2)(D) (1994). Return to text.

[74] See Sisk, Essentials II, supra note 4, at 6. Return to text.

[75] See White v. United States, 740 F.2d 836, 842 (11th Cir. 1984). The litigation position looks solely to the government's legal theory and litigation strategy in court. See Sisk, Essentials II, supra note 4, at 6-7. Return to text.

[76] See Keasler v. United States, 766 F.2d 1227, 1231 (8th Cir. 1985); see also Sisk, Essentials II, supra note 4, at 7 ("The government's underlying conduct may include the enactment of a statute or promulgation of a regulation, the rendering of an administrative decision, the initiation of an enforcement measure, or the taking of other action by an agency or federal official . . . ."). Return to text.

[77] See Sisk, Essentials II, supra note 4, at 7. Return to text.

[78] See Act of Aug. 5, 1985, Pub. L. No. 99-80, § 2(b), 99 Stat. 183, 184-85 (codified at 28 U.S.C. § 2412 (d)(1)(B) (1994)). Return to text.

[79] 28 U.S.C. § 2412 (d)(2)(D) (1994). Return to text.

[80] See Sisk, Essentials II, supra note 4, at 47 (citing H.R. REP. NO. 99-120, at 12 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 141). Return to text.

[81] See id. at 8. Return to text.

[82] See id. at 9 (citing Marcus v. Shalala, 17 F.3d 1033, 1036 (7th Cir. 1994)). Return to text.

[83] See id. Return to text.

[84] See id. A party who succeeds in obtaining a fee award under the EAJA for work done on the merits of the case is also entitled to compensation for fees incurred in seeking the award of fees themselves. See Commissioner, INS v. Jean, 496 U.S. 154, 161-62 (1990). Return to text.

[85] See id. at 11. Return to text.

[86] See H.R. REP. NO. 99-120, at 10 (1985), reprinted in 1985 U.S.C.C.A.N. 132, 139. Return to text.

[87] See Sisk, Essentials I, supra note 10, at 226. The substantially justified standard represents a compromise between the view that prevailing parties should always recover their attorneys' fees and the view that prevailing defendants should only recover fees when the plaintiff's action was frivolous, unreasonable, or without foundation. See Hill, supra note 45, at 241 n.73. Congress rejected the former view because of concerns that it might chill reasonable governmental enforcement efforts, and the latter view was rejected because "it simply would not overcome the strong disincentives to the exercise of legal rights which now exist in litigation with the Government." S. REP. NO. 96-253, at 6 (1979). Return to text.

[88] See Sisk, Essentials II, supra note 4, at 5 (citing H.R. REP. NO. 96-1418, at 11, 12 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4989). Return to text.

[89] 487 U.S. 552 (1988). Return to text.

[90] See id. at 565. Return to text.

[91] H.R. REP. NO. 96-1418, at 10 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4989 ("Where the Government can show that its case had a reasonable basis both in law and fact, no award shall be made."); accord Pierce, 487 U.S. at 565 (holding that the government's position is substantially justified if it is "justified to a degree that could satisfy a reasonable person"). This standard is essentially the same as the "reasonable basis both in law and fact" test applied by most federal appellate courts. See id. at 565. But see id. at 578 (Brennan, J., concurring) (disagreeing with the majority's interpretation of substantially justified because "the 1985 House Committee Report pertaining to the EAJA's reenactment expressly states that 'substantially justified' means more than 'mere reasonableness'"). Return to text.

[92] 496 U.S. 154 (1990). Return to text.

[93] See id. at 158; see also Fresco, supra note 27, at 815 ("Courts also consider whether the government's actions departed from standard procedures or established policies that singled out one group and whether the government cooperated in resolving the litigation."). Return to text.

[94] H.R. Hearings, supra note 39, at 39 (statement of Alice Daniel, Ass't Att'y Gen., Civil Div., Dep't of Justice). Return to text.

[95] See Lieberwitz, supra note 15, at 40. Return to text.

[96] The prevailing party's allegations that the government acted unreasonably establish a presumption that attorneys' fees should be assessed against the government unless the government disproves the presumption by showing a substantial justification for its action. See id. at 45. The Justice Department particularly objected to this presumption because it runs counter to "the common law presumption that public officials act lawfully and in good faith in performing their public duties." Id. at 46 (citing H.R. Hearings, supra note 39, at 42, (statement of Alice Daniel, Ass't Att'y Gen., Civil Div., Dep't of Justice)). Return to text.

[97] H.R. Hearings, supra note 39, at 76 (statement of Mary Frances Derfner, Dir., Attorneys' Fees Project, Lawyers Comm. for Civil Rights Under the Law). Return to text.

[98] See Sisk, Essentials II, supra note 4, at 13. Return to text.

[99] See id. at 24 (noting, however, that a review of the court's decision on the merits and its reasons for ruling against the government is an important consideration when determining whether to award fees under the EAJA). Return to text.

[100] See id. at 40-41. Another commentator noted:

The substantial justification standard in effect requires parties to relitigate their underlying dispute. Eligible parties must demonstrate to the judge or hearing officer that the government was not only wrong in the underlying litigation, but that it was inexcusably wrong. To make that showing, private parties must analyze all the legal questions and factual disputes anew in an effort to persuade the decisionmaker of the government's lack of substantial justification.
Krent, supra note 14, at 481. Return to text.

[101] See H.R. REP. NO. 96-1418, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4989-90. Return to text.

[102] See Sisk, Essentials II, supra note 4, at 52. Return to text.

[103] See id. at 61. Return to text.

[104] See Hanover Potato Prods., Inc. v. Shalala, 989 F.2d 123, 128 (3d Cir. 1993). An example of a position by the government not substantially justified occurs when the government goes forward with a complaint on the basis of a single, uncorroborated affidavit and in the face of significant adverse evidence. See Hess Mechanical Corp. v. NLRB, 112 F.3d 146, 150 (4th Cir. 1997). Return to text.

[105] See Pierce v. Underwood, 487 U.S. 552, 561 (1988). Return to text.

[106] See Kolman v. Shalala, 39 F.3d 173, 177 (7th Cir. 1994) ("The test for substantial justification is whether the [government] had a rational ground for thinking it had a rational ground for its action."). Return to text.

[107] Stillwell v. Brown, 6 Vet. App. 291, 303 (Vet. App. 1997) (quoting Roanoke River Basin Ass'n v. Hudson, 991 F.2d 132, 139 (4th Cir. 1993)). Return to text.

[108] 28 U.S.C. § 2412(d)(1)(A) (1994). Return to text.

[109] Lieberwitz, supra note 15, at 38 (citing H.R. REP. NO. 96-1418, at 11 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4989-90). Return to text.

[110] United States v. First Nat'l Bank, 732 F.2d 1444, 1448 (9th Cir. 1984). Return to text.

[111] Section 2412(d)(2)(A) defines the fees and expenses which may be awarded under the EAJA as

the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the court to be necessary for the preparation of the party's case, and reasonable attorney fees (The amount of fees awarded under this subsection shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the United States; and (ii) attorney fees shall not be awarded in excess of $125 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.) . . . .
28 U.S.C. § 2412(d)(2)(A) (Supp. 1996) (emphasis added). Return to text.

[112] See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983). Return to text.

[113] See 5 U.S.C. § 504(b)(1)(A)(ii) (Supp. 1996) (fees during administrative proceedings); 28 U.S.C. § 2412(d)(2)(A)(ii) (Supp. 1996) (fees during judicial proceedings). Return to text.

[114] Krent, supra note 14, at 505 (noting that the special factor enhancement is infrequently granted by courts due to concerns that, "[b]ecause there is arguably a shortage of qualified attorneys at the [statute's] dollar-per-hour range in most major markets across the country, following the plain language of the enhancement provision might permit enhancements in almost every case."). Return to text.

[115] See, e.g., Moore v. Gober, 10 Vet. App. 436, 441 (Vet. App. 1997) (employing the CPI-ALL index as the appropriate cost of living index for calculating attorneys' fees under the EAJA); see also Krent, supra note 14, at 506 (noting that when the fee cap was $75 per hour courts routinely awarded a cost of living increase in almost all EAJA cases and that "litigation has arisen with increasing regularity over the proper index and subcategory to use in calculating the cost-of-living increase"). Return to text.

[116] See Anthony v. Sullivan, 982 F.2d 586, 589 (D.C. Cir. 1993) (citing Hensley, 461 U.S. at 434-36). Return to text.

[117] See id. Return to text.

[118] 924 F.2d 1492 (9th Cir. 1991). Return to text.

[119] 951 F.2d 1100 (9th Cir. 1991). Return to text.

[120] 972 F.2d 669 (6th Cir. 1992). Return to text.

[121] 81 F.3d 578 (5th Cir. 1996). Return to text.

[122] 962 F. Supp. 191 (D.C. Cir. 1997). Return to text.

[123] See Sisk, Essentials I, supra note 10, at 227. Return to text.

[124] Id. Return to text.

[125] 924 F.2d 1492 (9th Cir. 1991). Return to text.

[126] See id. at 1493. Return to text.

[127] See id. Return to text.

[128] See id. at 1494. Return to text.

[129] See id. Return to text.

[130] See id. Return to text.

[131] See id. Return to text.

[132] See id. Return to text.

[133] 951 F.2d 1100 (9th Cir. 1991). Return to text.

[134] See id. at 1101. The NLRB conducted the adversary adjudication. See id. The National Labor Relations Act (NLRA) created the NLRB to regulate collective bargaining and to prevent unfair labor practices. See Joseph Covelli, Note, Brown v. Pro Football, Inc.: At the Intersection of Antitrust and Labor Law, Supreme Court's Decision Gives Management the Green Light, 27 STETSON L. REV. 257, 267 n.64 (1997). Return to text.

[135] See Grason Electric, 951 F.2d at 1102. The NLRB was the agency that conducted the adversary adjudication. See id. at 1101. Return to text.

[136] See id. at 1102. Return to text.

[137] See id. at 1103. Return to text.

[138] See id. at 1105. Return to text.

[139] See id. Return to text.

[140] Id. Return to text.

[141] 762 F.2d 1077 (D.C. Cir. 1985). Return to text.

[142] Grason Electric, 951 F.2d at 1105. Return to text.

[143] Id. at 1106. Return to text.

[144] Id. (noting that if the litigation expenses were paid jointly by all 48 members of the association, then it would be a windfall to award 100% of the fees to the six individual employers presenting claims in the case). Return to text.

[145] 972 F.2d 669 (6th Cir. 1992). Return to text.

[146] See id. at 670. Return to text.

[147] See id. Return to text.

[148] See id. Return to text.

[149] See id. Return to text.

[150] See id. at 671. Return to text.

[151] See id. Return to text.

[152] Id. Return to text.

[153] See id. (noting that the Truck Association's members included DuPont, Ford Motor Company, Freightliner Corporation/Mercedes Benz, GTE, and the Truck Division of General Motors Corporation). Return to text.

[154] Id. at 672. Return to text.

[155] Id. (quoting Administrative Conference of the United States, Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900, 32,912 (1981)). The Administrative Conference of the United States drafted nonbinding model regulations to promote uniformity of procedure among federal agencies in implementing the EAJA. See Administrative Conference of the United States, Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900, 32,900 (1981). Return to text.

[156] See National Truck, 972 F.2d at 673. Return to text.

[157] Id. at 673-74 (noting that only agricultural cooperatives, local labor unions, and tax-exempt organizations were not intended by Congress to be aggregated under the EAJA net worth equation). Return to text.

[158] Id. at 674 (the expression of one thing is to the exclusion of the other). Return to text.

[159] Id. Return to text.

[160] See id. Return to text.

[161] Id. at 674. Return to text.

[162] See id. Return to text.

[163] 81 F.3d 578 (5th Cir. 1996). Return to text.

[164] See id. at 579. Return to text.

[165] See id. Return to text.

[166] See id. Return to text.

[167] See id. at 580 (citing 28 U.S.C. § 2412(d)(2)(B)(ii)). Return to text.

[168] See id. Return to text.

[169] See id. at 580-81 (citing 28 U.S.C. § 2412(d)(2)). Return to text.

[170] Id. at 581. Return to text.

[171] Id. at 582. Return to text.

[172] See id. Return to text.

[173] See id. Return to text.

[174] See id. Return to text.

[175] Id. at 582-83 (Garza, J., dissenting). Return to text.

[176] See id. at 583. Return to text.

[177] See id. (citing United States v. American Trucking Ass'n, 310 U.S. 534, 543 (1940)). Return to text.

[178] Id. at 583 n.1. Return to text.

[179] Id. at 584 (quoting Administrative Conference of the United States, Equal Access to Justice Act: Agency Implementation, 46 Fed. Reg. 32,900, 32,903 (1981)). Return to text.

[180] See id. Return to text.

[181] Id. at 584 n.4. Return to text.

[182] 908 F.2d 1407 (8th Cir. 1990). Return to text.

[183] Id. at 1415-16. Return to text.

[184] Texas Food, 81 F.3d at 579. Return to text.

[185] See id. Judge Garza wrote, "What financial deterrent exists for a trade group when the members' combined net worth exceeds $7 million or when that group has members with billions in assets? Such a group is likely both willing and able to defend itself against government actions absent EAJA fee awards." Id. at 585 n.5 (Garza, J. dissenting). Return to text.

[186] Id. at 585. Return to text.

[187] 962 F. Supp. 191 (D.D.C. 1997). Return to text.

[188] See id. at 195. Return to text.

[189] Id. at 193. Return to text.

[190] See id. Return to text.

[191] See id. Return to text.

[192] Id. The court also noted that the "[association's] members include Du Font, Motorola, Boeing, and Chrysler." Id. at 193 n.3. Return to text.

[193] See id. at 194. Return to text.

[194] 762 F.2d 1077 (D.C. Cir. 1985). Return to text.

[195] See id. at 1079. Return to text.

[196] See id. at 1082. Return to text.

[197] See id. Return to text.

[198] See id. at 1092. Return to text.

[199] See National Ass'n of Mfrs. v. United States Dep't of Labor, 962 F. Supp. 191, 194 (D.D.C. 1997). Return to text.

[200] See id. Return to text.

[201] See id. Return to text.

[202] Id. at 195 (footnote omitted). Return to text.

[203] See id. Return to text.

[204] See id. Return to text.

[205] Id. Return to text.

[206] See id. ("This court therefore elects to give Congress'[s] words their plain meaning, and chooses not to implicitly read in that which is not present."). Return to text.

[207] See id. at 196. Return to text.

[208] See BLACK'S LAW DICTIONARY 121 (6th ed. 1990). Return to text.

[209] Sisk, Essentials I, supra note 10, at 314. Return to text.

[210] Section 2412(d)(2)(B) states:

"[P]arty" means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the civil action was filed . . . .
28 U.S.C. § 2412(d)(2)(B) (1994) (emphasis added). Return to text.

[211] Sisk, Essentials I, supra note 10, at 314 (noting that the broad extent to which groups may qualify for EAJA fee awards as associations since "[a]ny entity composed of a number of persons which has been formed for some special purpose or business, but does not fit comfortably into another category, may qualify as an 'association'"). Return to text.

[212] See id. at 316 (listing examples of common trade association business purposes, such as establishing standards, promoting relations with the government, and educating the public). Return to text.

[213] See id. at 316-17. Return to text.

[214] See id. at 321. Return to text.

[215] Id. at 319 ("[I]t would be a tenuous argument indeed to suggest that a labor union's net worth should reflect an aggregation of its individual members or that an environmental organization becomes ineligible because its litigation goal of protecting a natural preserve would benefit a wealthy individual member who hikes through the affected area."). Return to text.

[216] See id. at 320. Return to text.

[217] See 28 U.S.C. § 2412(d)(2)(B) (Supp. 1996). Return to text.

[218] See Sisk, Essentials I, supra note 10, at 322. Return to text.

[219] See id. Return to text.

[220] See id. Return to text.

[221] See id. at 323. Return to text.

[222] Section 2412(d)(2)(B) states:

[A]n organization described in section 501(c)(3) of the Internal Revenue Code of 1986 . . . exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act . . . may be a party regardless of the net worth of such organization or cooperative association.
28 U.S.C. § 2412(d)(2)(B) (Supp. 1996). Return to text.

[223] See Miller v. Hotel & Restaurant Employees & Bartenders Union, Local 2, 107 F.R.D. 231, 237 n.4 (N.D. Cal. 1985), rev'd on other grounds, 806 F.2d 1371 (9th Cir. 1986) (holding that eligibility for an EAJA award should be based on the local union's net worth alone). Return to text.

[224] See Sisk, Essentials I, supra note 10, at 326. Return to text.

[225] See Equal Access to Justice Act, Pub. L. No. 96-481, tit. II, § 202(a), 94 Stat. 2321, 2325 (1980). Return to text.

[226] See Sisk, Essentials I, supra note 10, at 327 n.711 (quoting International Bhd. of Elec. Workers, 121 N.L.R.B. 143, 146-49 (1958)). Return to text.

[227] In resolving a question of statutory interpretation, a court starts with the language of the statute. See Commissioner v. Engle, 464 U.S. 206, 214 (1984). Return to text.

[228] See Garcia v. United States, 469 U.S. 70, 76 n.3 (1984) (quoting Schwegmann Bros. v. Calvert Distillers Corp., 341 U.S. 384, 395-96 (1951) (Jackson, J., concurring)). Return to text.

[229] Griffin v. Oceanic Contractors, Inc., 458 U.S. 564, 571 (1982). Return to text.

[230] Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir. 1997) (quoting United States v. Barry, 888 F.2d 1092, 1096 (6th Cir. 1989)); accord Public Citizen v. United States Dep't of Justice, 491 U.S. 440, 455 (1989) (quoting Boston Sand & Gravel Co. v. United States, 278 U.S. 41, 48 (1928)) (noting that the plain meaning rule does not preclude consideration of persuasive evidence if it exists). Return to text.

[231] See Public Citizen, 491 U.S. at 465-66 (citing Edward J. Bartolo Corp. v. Florida Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988)). Return to text.

[232] Id. (quoting Watt v. Alaska, 451 U.S. 259, 266 (1981)). Judge Learned Hand observed that "it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning." Cabell v. Markham, 148 F.2d 737, 739 (1945). Return to text.

[233] 81 F.3d 578 (5th Cir. 1996). Return to text.

[234] Holy Trinity Church v. United States, 143 U.S. 457, 459 (1892). Commenting on the necessity of avoiding absurd results in statutory interpretation, Professor Daniel Farber wrote, "[V]irtually no one doubts the correctness of the ancient decision that a statute prohibiting 'letting blood in the streets' did not ban emergency surgery." Daniel A. Farber, Statutory Interpretation and Legislative Supremacy, 78 GEO. L.J. 281, 289 (1989). Return to text.

[235] See Russo, supra note 57, at 284 (noting that the EAJA's provision defining who qualifies as a party "will no doubt be subject to abuse . . . [because] 'some large businesses which have hundreds of millions in assets and a comparable amount in liabilities . . . might qualify as a small business under this definition.'" (quoting Marcus, Payment to Prevailing Businesses Scored, NAT'L L.J., July 14, 1980, at 7)). Return to text.

[236] See Lieberwitz, supra note 15, at 38; Unification Church v. INS, 762 F.2d 1077, 1082 (D.C. Cir. 1985) (recognizing "a congressional intention to limit the scope of subsection (d) [of the EAJA] to individuals or to small entities that find particularly burdensome the ever-rising costs of litigation." (citing H.R. REP. NO. 96-1418, at 10 (1980), reprinted in 1980 U.S.C.C.A.N. 4953, 4988)); Kut-Kwick Corp., 273 N.L.R.B. 838, 839 (1984) (noting that "the purpose of the [EAJA] is the aid of truly small businesses, rather than those that are part of larger groups or affiliated firms"). Return to text.

[237] See Unification Church, 762 F.2d at 1082 (noting that in passing the EAJA, Congress desired "not to subsidize through subsection (d) [of the Act] the purchase of legal services by large entities easily able to afford legal services"). The public suffers the costs of improvident use of judicial resources when large associations are permitted to qualify as parties and bring EAJA fee claims. In effect, the public subsidizes the associations, and this produces a result wholly inconsistent with the purpose of the Act. Return to text.

[238] H.R. Hearings, supra note 39, at 76 (statement of Mary Frances Derfner, Dir., Attorneys' Fees Project, Lawyers Comm. for Civil Rights Under Law); accord Krent, supra note 14, at 464 (noting that there are sufficient incentives for many private parties to challenge wrongful government action despite the prospect of fee shifting and that contingency fee arrangements are often an incentive for counsel to take a claim). Return to text.

[239] See, e.g., Louisiana ex rel. Guste v. Lee, 853 F.2d 1219, 1225 (5th Cir. 1988). Return to text.

[240] Id. at 1225 (declining to aggregate the net worth of the individual members of a class action). Return to text.

[241] See S. REP. NO. 96-253, at 7 (1993) ("The exception created by [the EAJA] focuses primarily on those individuals for whom cost may be a deterrent to vindicating their rights."). Return to text.

[242] Russo, supra note 57, at 267 (citing H.R. REP. NO. 96-1418, at 9 (1980), reprinted in 1980 U.S.C.C.A.N. 4984, 4988). Return to text.

[243] See Arthur J. Fried, Attorneys' Fees Against the State: The Equal Access to Justice Act, N.Y.L.J., Apr. 2, 1990, at 1 (noting that the income and resource eligibility criteria of a New York statute mirrors the criteria of the EAJA by "target[ing] those who lack the resources necessary to vindicate their civil and legal rights"). Return to text.

[244] For example, several of the members of NAWGA have net worths at or above $10 billion. See Texas Food Indus. Ass'n v. United States Dep't of Labor, 81 F.3d 578, 583 (5th Cir. 1996). The same is true for members of the National Truck Equipment Association. National Truck Equipment Ass'n v. National Highway Traffic Safety Admin., 972 F.2d 669, 671 (6th Cir. 1992). As the District of Columbia Circuit Court realized, awarding EAJA fees to such litigants "would open the door for the wholesale subversion of Congress's intent to prevent large entities from receiving fees under subsection (d). We cannot, consistent with our duty to implement the will of Congress, allow such a situation." Unification Church v. INS, 762 F.2d 1077, 1082 (D.C. Cir. 1985); accord Noel Produce, Inc., 273 N.L.R.B. 769, 769 (1984) (finding that the legislative intent behind the EAJA was to "'limit the bill's application to those persons and small businesses for whom costs may be a deterrent to vindicating their rights.' Parties that meet the eligibility standard only because of technicalities of legal or corporate form, while having access to a large pool of resources from affiliated companies, do not fall within this group of intended beneficiaries." (footnotes omitted)). Return to text.

[245] See Covelli, supra note 134, at 267 n.64. Return to text.

[246] 29 U.S.C. §§ 151-69 (1994). Originally enacted in 1935 as the Wagner Act, ch. 372, 49 Stat. 451 (1935), the NLRA was amended in 1947 by the Taft-Hartley Act, ch. 120, 61 Stat. 136 (1947), to create a more equal balance of power in national labor law previously viewed as too pro-employee. Return to text.

[247] See 29 U.S.C. § 151 (1994). The EAJA furthers the NLRA's fundamental purpose of preventing unrest and discontent in the workplace by satisfying the small employer's sense of justice and by maintaining an intent to prevent financially strong employers from qualifying for EAJA fees and thereby gaining a windfall. Return to text.

[248] See Sisk, Essentials I, supra note 10, at 226 ("[T]he EAJA serves 'a salutary function in creating the appearance of fairness' by providing more complete compensation to those who have suffered a breach of the public trust through the arbitrary and unreasonable use of government power." (quoting Krent, supra note 14, at 478)). This appearance of fairness should apply to the government's perspective with equal force and effect. Return to text.

[249] This is especially true when it is considered that "EAJA applications are granted by district courts at a surprisingly high rate." Sisk, Essentials II, supra note 4, at 41 (citing Krent, supra note 246, at 484) (finding that when an EAJA application was filed after a party prevailed in civil litigation with the government, an award was made in 70-85% of the cases); see also Susan G. Mezey & Susan M. Olson, Fee Shifting and Public Policy: The Equal Access to Justice Act, 77 JUDICATURE 13, 18 (1993) (finding a high rate of successful fee applications in individual benefits cases). It is not difficult to imagine the further burden that would be imposed on the government if associations were improperly permitted to bring EAJA claims without aggregation. Return to text.

[250] Arguments that EAJA awards have occurred far less than Congress originally estimated and that agencies and courts are construing the Act too narrowly are insufficient justification for unduly burdening the government. See Grason Elec. Co. v. NLRB, 951 F.2d 1100, 1104 (9th Cir. 1991) (stating that when Congress reauthorized the EAJA, it "believed that courts and agencies were being too parsimonious, rather than too generous."). An illustration of common sense refutes these arguments. Just because I saved more money last year than what I originally estimated does not mean that I should start burning money until my savings decreases to the originally estimated level. The argument that interpreting the EAJA as requiring aggregation of associations would unfairly burden the smaller members of associations is similarly misplaced. Although aggregation would admittedly preclude the award of EAJA fees to all members of an association exceeding the net worth ceiling, smaller members would not be unjustly burdened because any association exceeding the net worth ceiling is clearly able and most likely willing to litigate its members' interests in court without the need for any EAJA fee award. Return to text.

[251] See Sisk, Essentials I, supra note 10, at 221. Commentators suggest that the EAJA has had only limited success in encouraging parties to seek vindication of their rights against government wrongdoing. See id. If this suggestion is true, the fact that many larger parties have no need for the dangling of EAJA fee award carrots to entice them into litigating their rights no doubt reflects the only "qualified success" of the EAJA. Return to text.

[252] Such an interpretation "exempli[es] the predominance of anti-government over anti-litigation ideology." Olson, supra note 43, at 548; accord Krent, supra note 14, at 465 (noting how the EAJA likely encourages suits against the government that would not otherwise be brought since a "risk-adverse party is not likely to bring suit if it believes it has a negligible chance to collect attorney's fees, but would if it stands a fifty percent chance of recovering its own fees"). Return to text.

[253] See Fresco, supra note 27, at 795 ("The cost of litigation in America has skyrocketed due in large part to attorneys' fees that dominate litigation expenses."). Return to text.

[254] See Krent, supra note 14, at 458. Return to text.

[255] See id. at 459. Krent notes that despite the large number of awards paid, fee awards are "likely to be trivial, or at least quite modest, in comparison to the financial and social goals to be advanced by government-wide policy. For example, the Social Security Administration—the most frequent target of EAJA suits—pays approximately $5 million annually in EAJA fees under a program in which billions of dollars are paid to beneficiaries each year . . . ." Id. at 472. However, no matter how "trivial" or "modest" the EAJA awards may seem compared to vast government budgets, to the average taxpayer, $5 million is far from modest or trivial. Return to text.

[256] See id. at 479. Interestingly, Krent proposes that the EAJA may actually create a "perverse incentive" to litigate from the government's perspective. Krent cites anecdotal evidence that "suggests that some government attorneys view an award of attorney's fees as stigmatizing." Id. at 493. In addition, because few attorneys believe their litigation position is unreasonable, "[s]ettlement is thus less likely because of the understandable reluctance to label the government's conduct, and by extension one's own, as unreasonable." Id. Return to text.

[257] See id. at 479 (noting "the tendency for fee litigation to dwarf the underlying dispute between private litigants and the government," producing "socially unproductive litigation, 'which like a Frankenstein's monster meanders its well-intentioned way through the legal landscape leaving waste and confusion . . . in its wake.'" (quoting Hensley v. Eckerhart, 461 U.S. 424, 455 (1983) (Brennan, J., dissenting))). Return to text.

[258] See id. at 480 ( "No accurate gauge of the overall amount of time spent on EAJA requests can be made because government attorneys rarely record their hours expended in litigation."). Return to text.

[259] See id. at 491 (noting that "the government successfully invokes the substantial justification defense in a modest proportion of all [EAJA fee] cases," with the private applicant winning approximately 71% of the time). Return to text.

[260] Blackman, supra note 25, at 980. Similarly, Representative Henry Hyde expressed concerns that a proposed bill allowing congressional staff to recover legal expenses in a manner similar to the EAJA is overly burdensome on the government and would have a chilling effect on legitimate prosecutions. See Hearings Before the House Rules Comm., supra note 46. Return to text.

[261] See NAWGA Can Collect Attorneys' Fees, Fifth Circuit Rules, FOOD CHEMICAL NEWS, May 6, 1996, at 25 (noting that the case may go to the Supreme Court because three federal courts of appeals ruled on the issue of aggregation with differing results). Return to text.

[262] See Mary L. Heen, Plain Meaning, The Tax Code, and Doctrinal Incoherence, 48 HASTINGS L.J. 771, 771 (1997); Diarmuid F. O'Scannlain, Current Trends in Judicial Review of Environmental Agency Action, 27 ENVTL. L. 1, 6 (1997). The Court has been dominated by two different camps over the years, the intentionalists and the textualists, with the textualists currently in majority. See id. at 6. Intentionalists "use a variety of tools, including legislative purpose and legislative history, in an effort to determine the intent of the legislature when it included a particular word or phrase in a statute." Id. Conversely, textualists employ "a different set of tools, including dictionary definitions, rules of grammar, and canons of construction, in an effort to derive the putatively objective meaning of the statutory word or phrase." Id; accord Roger Colinvaux, What Is Law? A Search for Legal Meaning and Good Judging Under a Textualist Lens, 72 IND. L.J. 1133, 1141 n.35 (1997) (noting that "today's Supreme Court offers an immature jurisprudence given its increasing reliance on dictionaries"). Return to text.

[263] A common majority of today's Court consists of Chief Justice Rehnquist, Justice Scalia, Justice Thomas, Justice O'Connor, and Justice Kennedy. This generally conservative majority tends to favor business interests, while frowning on government overreaching. Moreover, even some of the generally liberal justices are considered pro-business to some extent. See Edward A. Fallone, Neither Liberal Nor Laissez Faire: A Prediction of Justice Ginsburg's Approach to Business Law Issues, 1993 COLUM. BUS. L. REV. 279, 280 (noting Justice Ginsburg's tendency to take a "'moderate' to 'conservative' approach to issues that concern corporate America," notwithstanding her generally liberal views on social issues); Brent L. Hoffman, Justice Stephen G. Breyer, Business Friend and Environmental Foe?: An Analysis of Justice Breyer's Judicial and Non-Judicial Works Concerning Environmental Regulation, 100 DICK. L. REV. 211 (1995). Hoffman writes that "[m]any of Breyer's critics and advocates alike have labeled Breyer as a general supporter of business interests" and that "Breyer has been hailed as a champion of big business." Id. at 216. Return to text.

[264] See Texas Food Indus. Ass'n v. United States Dep't of Agric., 81 F.3d 578, 582 (5th Cir. 1996). Return to text.

[265] For an analysis of the preferability of requiring aggregation, see supra Part V. Judge Learned Hand's statement in Cabell v. Markham certainly applies to this issue:

Of course it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning.
Cabell v. Markham, 148 F.2d 737, 739 (2d Cir. 1945). Return to text.

[266] Alternatively, Congress could wait for the Supreme Court to rule on the issue. However, it would be preferable for Congress to take the proverbial "bull by the horns" and resolve the controversy before the lower federal courts subvert the intent behind the EAJA any further by refusing to require aggregation. Return to text.