553 F. Supp. 1154 (1982) | Cited 0 times | N.D. Illinois | September 7, 1982


In these two separate actions plaintiffs, havingsuccessfully challenged certain administrative actions by theDepartment of Housing and Urban Development ("HUD"), havemoved for an award of attorney's fees against the federalgovernment under the Equal Access to Justice Act ("EAJA"),5 U.S.C. § 504, 28 U.S.C. § 2412(d) (Supp. IV 1980). While thecases raised separate issues on the merits, the attorney's feesmotions come to us at the same time and raise similar questionsunder the EAJA. In addition, the plaintiffs in both cases arerepresented by the Legal Assistance Foundation of Chicago andthe federal defendant is represented by the same AssistantUnited States Attorney. Not surprisingly, then, the briefssubmitted by the parties in each case are practicallyidentical, with the exception of application of the disputedlegal standards to the distinct factual situations. We haveconsolidated the cases for purposes of our decision on theattorney's fees question.

In Grand Boulevard, we awarded plaintiffs partial summaryjudgment and enjoined HUD from releasing funds to the City ofChicago for the proposed Paul G. Stewart Phase IV ("Phase IV")housing project "until the City explores the feasibility ofmodifications of the Phase IV planwhich will preserve existing housing and avoid permanentdisplacement of neighborhood residents." No. 80 C 4760, slipop. at 40 (N.D.Ill. October 14, 1981). In Coleman we found thatHUD's decision to sell the South Shore Beach Apartments ("SouthShore") was lawful but held that "to the extent that the saledoes not provide for a twenty year restriction againstconversion of the building to a condominium or cooperativewithout HUD's prior approval, and to the extent the contract ofsale sets aside only seven units of housing to be set aside fornon-elderly tenants eligible for § 8 assistance, the sale isset aside and HUD is enjoined from proceeding with it." No. 81C 1284, slip op. at 29 (N.D.Ill. January 11, 1982). Both setsof plaintiffs now seek to invoke the Equal Access to JusticeAct in support of their motions to obtain attorney's fees fromthe United States.

The EAJA became effective October 1, 1981. The amount oflitigation already decided under the Act is testimony to thefact that rarely will lawyers move more swiftly or adroitlythan where questions of attorney's fees are at issue. Thegovernment for its part is attempting to protect its pursestrings by consistently arguing, so far unsuccessfully, thatthe Act cannot possibly mean what it says. These cases presentus with several questions of importance under the EAJA; wetreat them in turn.

The government's first line of defense is that an award offees in both of these cases is barred by the doctrine ofsovereign immunity. There is no dispute that Congress waivedsovereign immunity in enacting the EAJA. The whole purpose ofthe statute was to make attorney's fees available against thegovernment where private litigants successfully challenged ordefended against agency actions. See generally H.Rep. No. 1418,96th Cong., 2d Sess., 8-13 (1980) reprinted in [1980] U.S.Code& Admin.News 4984, 4986-92. In its statement of findingsCongress declared the Act necessary to offset the high cost oflitigation which frequently deterred private parties fromseeking review of unreasonable agency actions, and to subjectthe government to fees under a standard even more beneficial toa prevailing party than embodied in the "American rule"regarding awarding of fees. See infra at 1160-1161.Accordingly, the government does not deny that the statute isan express waiver of sovereign immunity. The question raised issimply one of timing: when does the waiver take effect?

The EAJA was passed on October 4, 1980 and implementedaccording to the following provision:

[This section] shall take effect on October 1, 1981 and shall apply to any adversary adjudication . . . and any civil action . . . which is pending on, or commenced on or after, such date.

5 U.S.C. § 554 note. The government's contention is that whilethe Act clearly covers cases pending on October 1, 1981, itonly applies to that portion of legal work done after October1, 1981. The argument is predicated in large measure on thegeneralization that waivers of sovereign immunity must beexpressed and cannot be implied. See United States v. Mitchell,445 U.S. 535, 538, 100 S.Ct. 1349, 1351, 63 L.Ed.2d 607 (1980);United States v. Testan, 424 U.S. 392, 399, 96 S.Ct. 948, 953,47 L.Ed.2d 114 (1976); United States v. King, 395 U.S. 1, 4, 89S.Ct. 1501, 1502, 23 L.Ed.2d 52 (1969). But, unlike the casescited, we are not asked here to construe an otherwise ambiguousstatute and infer a consent to be sued on the part ofCongress.1 The general prohibitionagainst awarding fees and costs against the federalgovernment, embodied in 24 U.S.C. § 2412 (1976), see AlyeskaPipeline Co. v. Wilderness Society, 421 U.S. 240, 95 S.Ct.1612, 44 L.Ed.2d 141 (1975), was abrogated by the EAJA. SeeCommissioners of Highways v. United States, 681 F.2d 821 (7thCir. 1982) ("The Act constitutes a significant relaxation ofsovereign immunity in actions seeking attorneys' fees from theUnited States.") Indeed, in one of the cases cited by thegovernment for the general proposition that the United Statesis immune from an award of fees absent an express waiver,Knights of the Ku Klux Klan v. East Baton Rouge Parish SchoolBoard, 643 F.2d 1034 (5th Cir. 1981), the Supreme Court granteda petition for certiorari, vacated the judgment summarily andremanded for reconsideration in light of the EAJA, East BatonRouge Parish School Board v. Knights of the Ku Klux Klan,454 U.S. 1075, 102 S.Ct. 626, 70 L.Ed.2d 609 (1982). Despite thefact that all of the legal work was done on the case prior toOctober 1, 1981, on remand the Fifth Circuit held the case was"pending" within the meaning of the statute and remanded to thedistrict court for determination of whether plaintiffs wereotherwise qualified for an award of fees. See Knights of the KuKlux Klan v. East Baton Rouge Parish School Board, 679 F.2d 64at 67-68 (Former 5th Cir. 1982).2 Neither the Supreme Courtnor the Fifth Circuit expressed any reservations about thescope of the waiver contained in the EAJA.

In any question of statutory construction, no less inquestions of sovereign immunity, we must begin with thelanguage of the statute itself. Absent an indication to thecontrary in the legislative history, the plain language of thestatute governs our interpretation. See Consumer Product SafetyComm'n v. GTE Sylvania, Inc., 447 U.S. 102, 108, 100 S.Ct.2051, 2056, 64 L.Ed.2d 766 (1980); Aaron v. SEC, 446 U.S. 680,700, 100 S.Ct. 1945, 1957, 64 L.Ed.2d 611 (1980); Perrin v.United States, 444 U.S. 37, 42, 100 S.Ct. 311, 314, 62 L.Ed.2d199 (1979); Photo Data, Inc. v. Sawyer, 533 F. Supp. 348, 350(D.D.C. 1982). There is nothing ambiguous about the language ofthe EAJA — the statute applies as of October 1, 1981 toqualifying cases "pending on, or commenced on or after, suchdate." The government's argument would have us read into thestatute a qualification (applying the statute to pending cases,but only for that portion of the work done after October 1,1981) which simply does not exist. As another court said inresponse to the same argument:

The plain meaning of the EAJA is contrary to the Secretary's argument. The EAJA explicitly waives sovereign immunity with regard to a civil action or adversary adjudication pending on October 1, 1981. The Secretary's argument requires an exception to be read into the effective date provision, and this the court cannot do. The civil action before this court was pending on October 1, 1981. This effective date provides no barrier to an award of fees and expenses which might have occurred before October 1, 1981. Congress limited the applicability of the EAJA to cases pending on October 1, 1981. If it had intended to further narrow the number of applicable cases in this "pending" status, it could have done so by restricting potential cost and fee awards to those incurred after the effective date.

Wolverton v. Schweiker, 533 F. Supp. 420, 423 (D.Idaho 1982)(emphasis original); Accord Photo Data, Inc. v. Sawyer,533 F. Supp. 348 (D.D.C. 1982); see also Heydt v. Citizens StateBank, 668 F.2d 444 (8th Cir. 1982) (applying EAJA topre-October, 1981 services, but finding government's positionsubstantially justified); WATCH v. Harris, 535 F. Supp. 9(D.Conn. 1981) (awarding fees for pre-effective date services);Spang v.United States, 533 F. Supp. 220 (W.D.Okla. 1982) (same); Bermanv. Schweiker, 531 F. Supp. 1149 (N.D.Ill. 1982) (same);Under-wood v. Pierce, 547 F. Supp. 256, 260-261 (C.D.Cal. 1982)(same).3

Defendants have cited nothing in the legislative history ofthe EAJA to cause us to depart from the plain meaning of thestatute.4 But HUD contends that the purpose of the statutewill not be furthered by anaward of pre-effective date fees and argues that the costestimates and budget allocations under the Act indicate thatawarding such fees was not contemplated by Congress. Neitherargument is persuasive.

The legislative history of the statute provides amplesupport for applying the waiver to pre-effective date legalwork. One of the principal purposes of the Act was to permitan award of fees under the common benefit or common fundapproach which was not previously available to litigantsagainst the government, see 28 U.S.C. § 2412(b), see alsoAlyeska Pipeline v. Wilderness Society, 421 U.S. 240, 95 S.Ct.1612, 44 L.Ed.2d 141 (1975); H.Rep. No. 1418 at 6, reprinted in[1980] U.S.Code Cong. & Admin.News 4984, 4985 (expressingintent to partially overrule Alyeska Pipeline). The HouseReport indicates that

[t]he bill rests on the premise that a party who chooses to litigate an issue against the Government is not only representing his or her own vested interest but is also refining and formulating public policy. . . . The bill [] recognizes that the expense of correcting error on the part of the Government should not rest wholly on the party whose willingness to litigate or adjudicate has helped to define the limits of Federal authority. Where parties are serving a public purpose, it is unfair to ask them to finance through their tax dollars unreasonable Government action and also bear the costs of vindicating their rights.

Id. at 10, U.S.Code Cong. & Admin.News at 4988-89, See alsoHouse Conf.Rep. No. 96-1434, 96th Cong., 2d Sess. 25 (1980)reprinted in [1980] U.S.Code Cong. & Admin.News, 5003, 5014.Thus, construing the statute to require a party to bear its ownfees where the case is clearly pending on the Act's effectivedate and the government's position is found to be unreasonableis contrary to the purpose, as well as the plain language, ofthe statute. Accord Photo Data, Inc. v. Sawyer, 533 F. Supp. at351; Under-wood v. Pierce, at 261 n. 7.5

Finally, the cost analysis relied on by the defendantactually supports the result we reach here. The CongressionalBudget Office (CBO) cost estimates are based on the number ofcases likely to be decided adversely to the government duringeach fiscalyear and the average cost to the government of a reasonableattorney's fee in each case. The increase in costs estimatedfor the second and third year of the program is designed toaccommodate the fact that each year the number of casesinvolving the government has increased slightly, thus thenumber of adverse decisions, it is assumed, will increaseproportionally. See H.Rep. No. 1418, supra at 21, 22, U.S.CodeCong. & Admin.News at 5000, 5001.6 Moreover, the CBO costestimate assumes that the Act will achieve its intended effectof reducing the deterrence to challenging the government withthe result that the number of cases brought will increase, andincludes a slight increase in the size of the estimated averageaward to account for changes in the consumer price index. 22-23, U.S.Code Cong. & Admin.News at 5001-02. There isabsolutely no justification for reading the cost estimates asanticipating a bifurcation of fees depending on whether work ina pending case was performed before or after October 1, 1981.

In light of the plain language of the statute and thehistory which supports it, we conclude that the EAJAconstitutes a waiver of sovereign immunity by the governmentin cases pending on October 1, 1981, for attorney's feesincurred both before and after the effective date of the Act.

The government's second defense is that its position was"substantially justified." Under the standards set out in theEAJA a "prevailing party" in a civil action against the UnitedStates is entitled to fees "unless the Court finds theposition of the United States was substantially justified."28 U.S.C. § 2412(d)(1)(A) (Supp.IV 1980). As we pointed out in aprior opinion "[t]he standard created by this statute is a newone, not in line with either the common law exceptions to theAmerican rule restricting the award of attorneys' fees, orother statutory standards allowing fee awards in certain casesagainst the United States. It was intended to serve as a`middle ground' between an automatic award of fees to a[prevailing] party and permitting fees only where thegovernment's position was arbitrary or frivolous." Berman v.Schweiker, 531 F. Supp. at 1153-54; see H.Rep. No. 1418, supraat 14, U.S.Code Cong. & Admin. News at 4993. The legislativehistory makes clear that a determination that the United Stateswas "substantially justified" is tied to the reasonableness ofthe government's position. See id. at 10, 14, 18, U.S. CodeCong. & Admin.News at 4989, 4993, 4997; H.Conf.Rep. 96-1434,supra at 22, U.S.Code Cong. & Admin.News at 5011.

The parties disagree over whether the "position" of thegovernment referred to in the statute is the underlying agencyaction or the litigation position of the government'sattorneys. The case authority to date is divided on thisquestion and the legislative history supports both positions.Two decisions have construed the "position" of the governmentto refer to the litigation strategy and arguments. See CitizensCoalition for Block Grant Compliance v. City of Euclid,537 F. Supp. 422, 426 (N.D.Ohio 1982); Alspach v. District Directorof Internal Revenue, 527 F. Supp. 225, 228 (D.Md. 1982). InCitizens Coalition, however, the court chose to analyze thelitigation position "only to the extent that when as here therehas been no trial on the merits and no admission of fault inthe consent decree or otherwise, the court must examine thereasonableness of the government's litigation position[because] it generally has insufficient information todetermine the reasonableness of the government's underlyingaction." 537 F. Supp. at 426. To the contrary is Photo Data v.Sawyer, 533 F. Supp. at 352, where the court held thatunreasonable government conduct which led to the litigation inthe first place precluded a finding that the government'sposition was substantially justified.

No doubt in many cases arguing whether to scrutinize theagency action or the litigation position makes a mountain outof a molehill. As the court in Citizens Coalition pointed out,"[T]he two positions are closely related (i.e. to defend anunreasonable action in court may itself be an unreasonableaction), and the distinction may often be academic." 537F. Supp. at 426. But where, as in the instant cases, our reviewon the merits of the controversy was controlled by thestandards set out in the Administrative Procedure Act,5 U.S.C. § 706(2)(A) (1976), the difference may be important. Under thenarrow standard of review established by the APA for cases suchas these, an agency action may only be set aside where it isfound to be "arbitrary, capricious, an abuse of discretion, orotherwise not in accordance with law." See Grand BoulevardImprovement Assoc. v. City of Chicago, slip op. at 8-10;Coleman v. HUD, slip op. at 10-13. Where the plaintiffs havesucceeded in challenging agency conduct under that narrowstandard of review, they have already demonstrated that theunderlying position of the government was unreasonable. Itwould be too much for the English language to bear to say thata position can be arbitrary, capricious, or an abuse ofdiscretion but nevertheless "reasonable." Thus, if we were tolook solely at the reasonableness of the underlying action, areversal under the standards of § 706(2)(A) would appear tonegate the need to further inquire into the reasonableness ofthe government's "position."

The statute, however, appears to contemplate further reviewof the government's "position" after a finding for the privateparty. While there is support in the legislative history forfocusing on the underlying action,7 the bulk of thecommentary suggests we examine the decision of the governmentto litigate and the reasonableness of the position advancedbefore the court.

[The standard] presses the agency to address the problem of abusive and harassing regulatory practices. It is intended to caution agencies to carefully evaluate their case and not to pursue those which are weak or tenuous. At the same time, the language of the section protects the government when its case, though not prevailing, has a reasonable basis in law and fact. Furthermore, it provides a safety valve where unusual circumstances dictate that the government is advancing in good faith a credible, though novel, rule of law.

H.Rep. No. 1418, supra 14, U.S.Code Cong. & Admin.News at4993.8 Moreover, while the burden of establishing asubstantial justification is clearly on the government wherethe private party has prevailed, see id. at 10-11, U.S.CodeCong. & Admin.News at 4989, it is also true that "[t]hestandard . . . should not be read to raise a presumption thatthe Government position was not substantially justified, simplybecause it lost the case. Nor, in fact, does the standardrequire the Government to establish that its decision tolitigate was based on a substantial probability of prevailing."Id. at 11, U.S.Code Cong. & Admin.News at 4990.

This focus on the "case" and "decision to litigate" isconsistent with the general purpose of the statute to conformthe responsibility of the government to that of privateparties under the common law exceptions to the no attorney'sfees rule, see § 2412(b),9 and the citation to Fed.R.Civ.P.37 (fees to be awarded to a prevailing party on motion tocompel discovery unless losing party's position is"substantially justified"), see H.Rep. No. 1418, supra at 18,U.S.Code Cong. & Admin.News at 4997. Both of those standards,to which § 2412(d) is compared, focus on the litigationposition of the losing party, not their position in theirunderlying, challenged conduct.10 This does not mean thatthe reasonableness of the agency position which underlies thelitigation is irrelevant. As the district court in Alspachpointed out, there may be many cases where the "Governmentaction in administrative or judicial enforcementproceedings . . . is the litigation posture." Alspach, 527F. Supp. at 228 (emphasis original).

As applied to a decision on the merits under the standardsset out in § 706(2)(A), we believe the inquiry required by theEAJA is twofold. Where the government's litigation positiondepends on a defense of the agency's application of anundisputed legal standard to the facts of a given case, afinding that the agency's action was arbitrary, capricious, oran abuse of discretion, is determinative of the privateparties' right to fees under the EAJA. This is so becausewherever the government's litigation position is simply adefense of the agency's interpretation of factual matters, the"reasonableness" of agency's action and the litigation positionare precisely the same. If the agency's interpretation of thefacts is arbitrary, then so is the government's decision todefend the agency's interpretation.

There is a second possibility, however, even under thenarrow review standards of § 706(2)(A): that the agency actionmust be set aside because it is "otherwise not in accordancewith law." See also § 706(2)(C). Where the government's legalposition hinges on a disputed interpretation of the governinglaw, the fact that the agency decision was set aside is notdispositive. It is certainly possible for the government toargue a reasonable, though erroneous, interpretation ofcontrolling laws or regulations. This is precisely the type ofsituation where the legislative history indicates thegovernment's position may be deemed "substantially justified."See H.Rep. No. 1418, supra at 14, U.S.Code Cong. & Admin.Newsat 4993. Thus, where the government's position on questions oflaw has been found to be in error, the fact that an agencydecision has been set aside under the standards of the APAshould not be dispositive on the question of the government'sliability for fees.

Where the dispute is essentially over the governing legalstandard, one additional question need be considered beforethe government's position may be deemed substantiallyjustified. Assuming the government's "reasonable" thougherroneous interpretation of law were correct, would the agencyaction have been sustained? This is but another way of sayingthat the government's interpretation of lawmust be controlling on the underlying dispute. It will not dofor the government to put forward a "reasonable" legalinterpretation which, even if adopted, would not save theagency action. In such a case the arbitrariness of theunderlying action exists independently of the purporteddispute over legal standards.11

Applying this framework to the facts in Grand Boulevard, itis apparent that the government's position was substantiallyjustified. The sole issue on which plaintiffs prevailed waspurely a question of HUD's legal obligations to review theCommunity Development Block Grant (CDBG) application under thegoals and objectives of national housing policy as establishedin the Housing and Community Development Act of 1978, 42 U.S.C. § 5313note (1976), and the CDBG statute,42 U.S.C. § 5304(a)(4)(C)(i).12 There was no dispute with respect tothe only issue on which plaintiff prevailed on any underlyingfacts. The government contended, based on its view ofapplicable law and regulations, that its review of the CDBGapplication was limited, that the application of federalhousing policy was to be addressed by the CDBG applicant andnot HUD, and HUD was legally obligated to approve projectswhich eliminate slums or blighted areas, see 24 C.F.R. § 570(1980). Our statement of the scope of the remedy and theformulation of relief on the merits indicate that our decisionwas based purely on an interpretation of the governing law.After quoting a decision by Judge. Crowley on a similarquestion, we stated

[w]e agree with Judge Crowley that plaintiffs are not entitled to any guarantee of replacement housing in their neighborhood. Nor are they entitled to a guarantee of the preservation of all sound housing. They are not entitled to prevent the much needed housing opportunities offered by Paul G. Stewart Phase IV.

Judge Crowley also stated, however, that a reasonable opportunity for relocation in the neighborhood is a "requirement" not merely an objective. [Mejia v. HUD, 518 F. Supp. 935 (N.D.Ill. 1981)] We have found that HUD is also bound by the housing policy expressed in § 1441(a)(c) [sic] and § 5313.

The statutes relied on by plaintiffs do not require the City to forego a viable urban renewal project such as [Phase IV] in order to avoid displacing neighborhood residents. Nor do these statutes require the City to preserve all sound housing. These statutes do, however, require HUD to use its power to disburse, withhold and condition CDBG funding so as to discourage the wholesale displacement and destruction of neighborhoods.

HUD's unconditional approval of the City's CDBG application in 1978 and 1979 was an abdication of this responsibility. We stress again that plaintiffs are entitled to no guarantee that housing objectives will be obtained. . . .

The "commensurate" relief in this case is for HUD to require the City to review its plan for slum clearance in the 41st and King area to determine what means exist, if any, for the preservation of sound housing in that area, and to minimize the displacement of residents. We stress again that the City is required only to consider those means which would be consistent with the revitalization proposed for the area.

Slip op. at 19-21.

We quote at length from our decision on the merits inGrand Boulevard to make it clear that it did not involve afinding that development of the Phase IV project would becontrary to law or that HUD's ultimate acceptance of the City'sCDBG application would constitute an abuse of discretion, oreven that plaintiffs are entitled to preservation of thehousing at issue or replacement housing within the community.The sole issue on which plaintiffs prevailed was HUD'sobligation under the law to require consideration of certainaspects of national housing policy not contained in the City'sCDBG application. Whether HUD's position was "substantiallyjustified" therefore depends on whether there exists areasonable basis for its argument that such consideration wasnot required. We conclude that there was.

HUD's reliance on the truncated review procedure and itslimited function under the CDBG statute, see 42 U.S.C. § 5304(a),(f), 5403(c), the desire to minimize "front-end reviewof local development programs", see S.Rep. No. 963, 93d Cong.2dSess., reprinted in [1974] U.S.Code Cong. & Admin. News 4273,4324, and the fact that a primary purpose of the CDBG programis to eliminate slum and blighted areas combine to provide areasonable basis for its position in this lawsuit. See slip.op. at 15-17 & n. 6. At least one court has accepted HUD'sposition, albeit we believe erroneously. See Hernandez v.Pierce, 512 F. Supp. 1154 (S.D. N.Y. 1981). While we rejectedthat argument in Grand Boulevard because the expressions ofpolicy we refer to "are not precatory and action taken withoutconsideration of Congressional statements of policy or inconflict with them will not stand", citing United States v.Winthrop Towers, 628 F.2d 1028, 1035 (7th Cir. 1980), we cannotsay that the position of the United States was unreasonable orthe type of action Congress intended to discourage in passingthe EAJA. For that reason, plaintiffs' motion for fees under28 U.S.C. § 2412(d) is denied in Grand Boulevard ImprovementAssociation v. City of Chicago, No. 80 C 4760.13

Applying the same framework to Coleman, we conclude that thegovernment's position in that case was not substantiallyjustified. Plaintiffs succeeded in their attempt to enjoin thesale of South Shore Beach Apartments on two grounds: HUD'sdecision to reduce the deed restriction prohibiting theconversion of the building to condominiums from twenty to tenyears and HUD's decision to limit § 8 subsidies to elderlyresidents were found to be abuses of discretion. Neitherdecision involved any disputed interpretation of law relied onby the agency; rather, both decisions were simply made by theagency without support in the record.

Kalish's brief statement on the deed restriction fails both parts of the Overton Park [v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971)] test. Kalish failed to consider all the relevant factors, and the record indicates that the factors he did consider were discussed in a sketchy and conclusory manner rather than in some reasoned fashion. The Chicago area staff, after careful consideration of the question, has concluded that the statutory mandates of HUD, as well as HUD's duty to minimize displacement under24 C.F.R. § 290.20 (1981), required that a twenty year restriction on condominium conversion be placed in the deed. Kalish made no considered attempt to explain why this conclusion was erroneous. Accordingly, this court holds that the decision to reduce the restriction from twenty to ten years was arbitrary and capricious, and must be set aside.

Coleman, slip op. at 26.

There is literally nothing in the record which indicates how HUD arrived at its conclusion that it would set aside only seven units for non-elderly tenants. The record contains no data regarding the ages of those tenants eligible for § 8 assistance, nor does it contain any statement explaining how the figure seven was reached. On the record presently before the court, it is impossible to determine whether HUD's allocation for non-elderly tenants was insufficient, and subjected those tenants to an unacceptable risk of displacement in violation of 24 C.F.R. §§ 290.20, 886.301 (1981). Moreover, the court cannot determine whether the age restriction is at odds with § 8 itself. . . .

Id. at 27-28.

The government attempted to offer a plausible explanationfor the administrative action by proffering additional factsto support HUD's determinations which were not contained inthe administrative record. But, as we held in the opinion onthe merits, "agency action may only be sustained on therationale offered by the agency at the time the action istaken." Id. at 32 n. 20; see also id. at 19. The principle thatagency decisions must be supported by evidence in the "record"and that the reviewing court is limited to consideration of thereasons for a decision asserted by the agency at the time ofthe decision is well settled. See id. at 10-13, 19. Where thegovernment offers post-hoc rationalizations for unexplainedagency decisions which, even if they were believed, could notsave the agency action, we do not believe that position isreasonable.

This is a case where private persons, confronted withunexplained agency actions, challenged the agency in court andwon. The issues upon which plaintiff prevailed did not, unlikeGrand Boulevard, involve any disputed interpretations of law.This is just the type of case where Congress expressed a desireto make the government liable for fees so as to discourage thedefense by the government of arbitrary agency actions. Thegovernment's position in Coleman was not substantiallyjustified.14

The government nevertheless argues that it should not beliable for that portion of the attorneys' fees attributable toissues which were decided adversely to the plaintiff. Thegovernment correctly points out that several grounds urged bythe plaintiffs in attacking the proposed sale of South Shorewere rejected. Among the issues raised by a plaintiff uponwhich the government prevailed was the adequacy of the noticeof the proposed sale, see Coleman, slip op. at 14-17, thesufficiency of HUD's explanation for rejecting the sale of thebuilding as a cooperative, id. at 17-21, the impact of HUD'sfailure to conduct an income survey, id. at 21-23, and thesufficiency of HUD's displacement analysis and conclusions, 23-25.

The EAJA does not indicate the scope of recovery that shouldbe granted to a prevailing party who has not succeeded on allissues raised in the case. We have canvassed the legislativehistory and find no guidance on this question. We do know,however, that the determination of whetherplaintiffs qualify as a prevailing party under the meaning ofthe statute is to be guided by the existing case law under theCivil Rights Attorney's Fees Act, 42 U.S.C. § 1988. See H.Rep.No. 1418, supra at 11, U.S.Code Cong. & Admin.News at 4990 ("Itis the committee's intention that the interpretation of[prevailing party] be consistent with the law that hasdeveloped under existing statutes."). Under thesecircumstances, absent any indication to the contrary in thelegislative history, we think it appropriate to look to thosesame cases to determine the standard to be used in awardingfees where a private party has prevailed on only some of theissues litigated.

There is a substantial body of case law in this circuitunder § 1988 on the question of the scope of recovery whereplaintiff's victory on the merits is less than complete. InSyvock v. Milwaukee Boiler Manufacturing Co., 665 F.2d 149 (7thCir. 1981), the court attempted to reconcile the potentiallyconflicting case law. Compare Sherkow v. Wisconsin Departmentof Public Instruction, 630 F.2d 498 (7th Cir. 1980) andNorth-cross v. Board of Education, 611 F.2d 624 (6th Cir. 1979)with Busche v. Burkee, 649 F.2d 509 (7th Cir. 1981) and Muscarev. Quinn, 614 F.2d 577 (7th Cir. 1980). The plaintiff in Syvocksuccessfully litigated his claim against defendant for agediscrimination in employment in violation of 29 U.S.C. § 623-634(1976), but lost on the issues of the employer'swillfulness and mitigation of damages. Syvock, 665 F.2d at 162.The district court reduced the award of attorney's feesaccordingly, relying on the opinion in Muscare v. Quinn,614 F.2d 577 (7th Cir. 1980). The court of appeals reversed,finding the district court's reliance on Muscare misplaced. Thecentral factor identified by the court in determining whetherplaintiff is entitled to all or only a portion of hisattorney's fees is whether plaintiff "essentially succeeded" onhis claim. The standard is drawn largely from the decision ofthe Third Circuit in Hughes v. Repko, 578 F.2d 483, 487 (3dCir. 1978):

[A] prevailing party on a particular claim is one who fairly can be found by the district court to have essentially succeeded on such claim, as "claim" is used in Fed.R.Civ.P. 10(b). We say "essentially succeeded" because in many cases a party may prevail on his basic claim but not all aspects thereof.

After quoting the above language the Syvock court held:

Just as the plaintiffs Hughes "essentially succeeded" in their section 1982 claim against Mrs. Repko, plaintiff Syvock "essentially succeeded" in his ADEA suit against Milwaukee Boiler. Syvock's failure to prevail on the question of willfulness and mitigation of damages should no more diminish his award than did the Hughes' failure to succeed on the punitive damage issue or their contention that the attorney's fees issue was a jury question.

665 F.2d at 164.

What distinguishes Syvock and Hughes from Muscare, where thecourt held only a partial award of fees was warranted, is theabsence of an independent claim resting on a separate basiswhere plaintiff was unsuccessful. In Muscare plaintiffchallenged the constitutionality of a grooming regulation ofthe Chicago Fire Department and claimed that his disciplinaryhearing violated his procedural due process rights. The courtupheld the grooming regulation but found for plaintiff on theadequacy of the process afforded. Syvock, 665 F.2d at 163.Similarly in Busche v. Burkee, where an award of full fees wasreversed, plaintiff presented three separate claims of allegedconstitutional violations and prevailed on only one. Thecritical distinction between the cases is that

[t]he two [claims] on which he failed to prevail were not mere aspects of a larger claim that affected the amount of damages he was due for the claim on which he did succeed. They were independent claims, as was the challenge to the constitutionality of the grooming regulation in Muscare, on which he did not succeed.

Syvock, 665 F.2d at 165 (emphasis original).

The distinction drawn by the court of appeals rests on anidentification ofwhether the "claims" presented by plaintiffs are separate anddistinct factual matters or merely different methods ofattacking the same underlying conduct. The focus is notwhether the plaintiffs prevailed on each legal theory, butwhether they "essentially succeeded" in their claim againstthe underlying conduct by examining not whether the plaintiffsprevailed on each legal theory, but rather whether they"essentially succeeded" in their claim against the underlyingconduct. The focus on claims with an independent factual baseis supported by the citation to the "separate transaction oroccurrence" language of Fed. R.Civ.P. 10(b); See alsoFed.R.Civ.P. 13(a) (compulsory counterclaims); Fed.R.Civ.P.15(c) (relation back of amendments). The test of whether aclaim involves a "separate transaction or occurrence" dependson the factual relationship and evidentiary foundation of oneor more "claims". See generally 3 J. Moore, Moore's FederalPractice ¶¶ 13.13, 15.15 at 13-297 to 310, 15-198 to 208(1982). Where the evidence indicates there is but a singleclaim, and plaintiffs argue one or more legal theories, thefact that they prevail on only some of the theories should notbe used to reduce the amount of their fee award.15

The application of this test to the Coleman case is not easy.Plaintiffs attacked HUD's sale of South Shore on severaldifferent grounds and "prevailed" on two of them.16 But weare nevertheless convinced that under the framework adopted bythe court of appeals plaintiffs have essentially succeeded on asingle claim and therefore are entitled to recover all feesreasonably incurred in their effort to have the sale set aside.The factual basis for the entirety of plaintiff's attack iscontained in a single administrative "record."17 Theevidence relevant to each of plaintiffs' claims substantiallyoverlapped and, of course, all of the claims concerned the saleof a single piece of property. Moreover, while plaintiffs'arguments depended in part on different regulations, eachargument was tied to a single overriding theme — that HUDfailed to consider the objectives of national housing policy asidentified in applicable laws in deciding what to do with SouthShore. Finally, the ultimate relief plaintiff obtained —enjoining the sale of South Shore — is substantially the sameas plaintiff would have been entitled to had they prevailed ontheir other theories in the case. That fact,while not dispositive, is indicative of the fact the attack onthe sale of South Shore was but a single claim upon whichplaintiff "essentially succeeded." The result of that victoryis that the displacement of tenants which may have resultedbut for plaintiffs' victory has been substantiallyreduced.18 We believe that Coleman involved one transactionor occurrence and that plaintiffs have essentially succeeded intheir attack on HUD's disposition of the South Shore BeachApartments and therefore are entitled to all fees reasonablyexpended in this litigation.

Defendants' final line of attack is that the amount of timecounsel spent in preparing this case and the fees charged arenot reasonable. We reject that contention. The total amountclaimed by counsel for preparing the case, the discovery anddocument review, and briefing and arguing the motions forsummary judgment is $28,466.00, spread over the work of threeattorneys. The rate charged is $75.00 per hour for two of theattorneys and $65.00 for the third. Given the nature andcomplexity of the issues involved here and the high quality ofthe submissions of plaintiffs' counsel we find both the amountof time spent and rate of compensation charged to be fair andreasonable. We do not share the view of the United States thata total of 60 hours spent preparing and briefing a detailedsummary judgment motion based on a sketchy and frequentlyinadequate administrative record is "excessive." Nor do wefind the time spent by counsel reviewing and preparing thecase in conference or meeting with clients to be unreasonable.We agree with plaintiffs' citation to the statement inUnemployed Workers Organizing Committee v. Batterton,477 F. Supp. 509, 515 (D.Md. 1979) that

[a]lthough the detail of [counsel's] time log does reveal some non-legal functions within his total billing, the overall presentation appears to be both fair and reasonable, given the nature and extent of his involvement in this case. It is not the function of the courts, in reviewing fees, to second guess every minute detail of time spent by an attorney in working on a case.

In summary, we hold that plaintiffs in Grand BoulevardImprovement Association v. HUD, No. 80 C 4760, are not entitledto fees pursuant to the Equal Access to Justice Act as thegovernment's position in that action was substantiallyjustified. We hold that plaintiffs in Coleman v. HUD, No. 81 C1284, are entitled to attorneys fees under the Equal Access toJustice Act in the amount of $28,466.00. Accordingly, in No. 81C 1284, judgment will enter in favor of plaintiffs and againstthe United States of America in the amount of $28,466.00 withinstructions that it be paid directly to plaintiffs' counsel,the Legal Assistance Foundation of Illinois.

1. In Mitchell the court refused to infer a consent to besued on the part of the government in the Indian ClaimsCommission Act, 28 U.S.C. § 1505 (1976) merely by virtue of thefact that the government assumed a trust relationship inmanaging certain lands and property interests owned by theIndians. See 445 U.S. at 542-546, 100 S.Ct. at 1353-1355. InTestan, the court held that the Tucker Act, 28 U.S.C. § 1491(1976), creating the Court of Claims, was merely jurisdictionaland created no substantive rights constituting a waiver ofsovereign immunity in particular cases, 424 U.S. at 397-98, 96S.Ct. at 952-53, and that the Classification Act, 5 U.S.C. § 5101-5115(1976) could not be read to imply a consent to besued for backpay. Id. at 399-406, 96 S.Ct. at 953-957. Inneither case was the Court confronted with a statute, such asthe one in the case at bar, which contains an express waiver ofsovereign immunity.

2. The remand to the district court was for the purpose ofdetermining whether the KKK falls within the financialeligibility limitations of the statute,28 U.S.C. § 2412(d)(2)(B), and for consideration of whether thegovernment's position was "substantially justified." Id., 679F.2d at 68.

3. Defendant contends that we should reject plaintiffs'claim for pre-effective date services on the basis of the"three-part rationale" advanced by the Court of Claims inBrookfield Construction Co. v. United States, 661 F.2d 159(Ct.Cl. 1981). In Brookfield the court held that the ContractDisputes Act, 41 U.S.C. § 601-613 did not permit an award ofpre-effective date interest. After canvassing the language ofthe statute the court stated that the provision permittingawards of interest "has a definite aura of ambiguity and is not`plain' on its face in plaintiff's favor." 661 F.2d at 163. Theambiguity was resolved against permitting pre-Act interestbecause such awards were contrary to purposes of the Act andwould impose a large liability not anticipated when the Act waspassed. Id. at 163-166.

The short answer to defendant's argument is that the EAJAcontains no such ambiguity in its language. Moreover, even ifwe were to follow the approach outlined in Brookfield ourdiscussion infra indicates that an award of attorney's fees inthe case as a whole rather than a portion of a case doesfurther the policies embodied in the EAJA and does not imposeunanticipated liability on the government. Contra Allen v.United States, 547 F. Supp. 357 (N.D.Ill. 1982). In sharpcontrast to the Contract Disputes Act, where the CongressionalBudget Office concluded that "it appears that no additionalcost to the government would be incurred as a result ofenactment of this bill", Brookfield, 661 F.2d at 164 & n. 10,quoting S.Rep. 95-1118, 95th Cong., 2d Sess., reprinted in[1978] U.S.Code Cong. & Admin.News 5235, 5270, the CBOestimated a first year cost under the EAJA of close to $100million. See n. 6, infra.

4. In Commodity Futures Trading Commission v. Rosenthal &Co., 537 F. Supp. 1094 (N.D.Ill. 1982), Judge Shadur of thiscourt expressed the view in dicta that while the reading wegive the statute is a reasonable one, it is not the only one.According to Judge Shadur the interpretation we adopt

could be reached if the effective date provision contained only its last clause, the one stating the Act "shall apply to . . . any civil action . . . pending on" October 1, 1981. It thus might be said to treat the earlier clause ("This Title and the amendments made by this Title . . . shall take effect on October 1, 1981 . . .") as surplusage. Under familiar rules of construction statutes are to be read, if possible, to give meaning to all their provisions. [citation omitted) And one rational reading of the "take effect" clause would be to apply it to the "fees . . . incurred" language of the Act, so that the allowance would extend only to "fees . . . incurred" after the Act "shall take effect on October 1, 1981."

Id. at 1096 (emphasis original).

We doubt whether Congress can reasonably be said to haveintended that the language of the Act be parsed with suchdetail; the courts in Wolverton and Photo Data were satisfiedthat the language says that the Act shall apply to pendingcases and contains no qualifications. But even if it isappropriate to engage in such an analysis, the reasoning inRosenthal & Co. is deficient in two respects.

The solution identified by Judge Shadur does not correct theproblem addressed; it simply renders the second clause of theeffective date provision surplusage. If Congress had intendedthe Act only to apply prospectively it could have simplystated the Act was to "take effect" October 1, 1981 and applyto fees incurred after that time. There is no need whatsoeverto include the "pending case" language; such cases wouldnaturally be included for that percentage of the fees incurredafter October 1. Thus, the reading suggested does not giveeffect to all sections of the statute, it simply makes achoice about what language to ignore.

But there is an alternative reason for including bothphrases which is consistent with the result we reach here andwas recognized in Underwood v. Pierce, supra, at 260:

In Bradley v. School Board of City of Richmond, [416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476 (1973)], the Supreme Court approved an award of attorneys' fees for work performed before the effective date of the Educational Acts Amendments of 1972, 20 U.S.C. § 1617, which provided for fees in connection with school desegregation cases. Again, in Hutto v. Finney, 437 U.S. 678 [98 S.Ct. 2565, 57 L.Ed.2d 522] (1978), the Court approved attorneys' fees awarded for work done before the effective date of the Civil Rights Attorney's Fees Awards Act. See also Corpus v. Estelle, 605 F.2d 175, 179 n. 8 (5th Cir. 1979), cert. denied, 445 U.S. 919, 100 S.Ct. 1284, 63 L.Ed.2d 605 (1980); David v. Travisono, 621 F.2d 464 (1st Cir. 1980). Because the attorneys' fees statutes involved in those cases and the Equal Access to Justice Act address similar concerns, this court concludes that the rationale of [those cases] applies here and the [plaintiff], if eligible to receive fees, is entitled to be compensated for all work done on the instant litigation.

The EAJA has more in common with the statute construed inBradley and Hutto than its general purpose. In Bradley theCourt held that the attorney's fees provision applied topre-effective date services even though the statute saidnothing about whether the Act covered pending cases. See 416U.S. at 710-21, 94 S.Ct. at 2015-21. Thus, simply giving theAct an effective date might not, as Judge Shadur suggested,answer the question whether it applied to services performedbefore that date. In Hutto, however, the legislative historyattempted to make clear that "in accordance with applicabledecisions of the Supreme Court, the bill is intended to applyto all cases pending on the date of enactment. . . ." Hutto v.Finney, 437 U.S. 695 n. 23, 98 S.Ct. 2575 n. 23. In light ofthat language the Court awarded fees for the entirety of thepending case. In light of the presumption that Congress isfamiliar with pertinent case law, which is more than justifiedin this instance given the repeated references in thelegislative history of the EAJA to the Civil Rights Act'sattorney's fees statute, it would appear that Congress followedits effective date provision with the "pending case" languageprecisely to avoid the problem addressed in Bradley and placeexpressly in the statute what was only in the legislativehistory of § 1988 of the Civil Rights Act as interpreted inHutto. Accord Underwood v. Pierce, slip op. at 16-17 n. 7. Thisview is confirmed by the House Report: "Section 7 makes theeffective date of the Act and amendments October 1, 1981. Itclarifies that it shall apply to . . . civil action pending on,or commenced on or after, such date." H.Rep. 96-1418, supra at19, 4998-99 (emphasis added).

5. HUD contends that because a primary purpose of the EAJAwas to reduce the deterrence to contesting unreasonableactions by the government posed by the expense of litigation,see H.Rep. 96-1418, supra at 5-6, 4984-85, it follows that feeswere not intended for work performed prior to the Act'seffective date, since such work was not "encouraged". by thewaiver of sovereign immunity. The argument, however, proves toomuch. If Congress had desired to waive sovereign immunity onlyfor those cases initiated with the hope of recovering fees, itwould have limited the waiver to cases initiated after October1, 1981. Instead, it chose to expressly include cases pendingon that date, regardless of when they were initiated, despitethe fact that all such pending cases were brought, bydefinition, prior to the passage of the Act — many before itwas even drafted.

6. The cost estimates were $92 million for 1982, $109million for 1983, and $129 million for 1984. See H.Rep.96-1418, supra at 21, 5000. It should be noted that the Officeof Management and Budget ("OMB") provided a substantiallyhigher cost estimate for the initial year — $205 million. Thedifference is attributable to "OMB's assumptions of higherawards, substantial increases in cases terminated resultingfrom enactment of this bill, and an assumption that additionallitigating personnel would be required by the government." 24, 5003.

7. At several points the Committee reports refer to thegovernment or agency "action" which suggests a focus on theunderlying agency conduct. See H.Rep. 96-1418, supra at 5, 9,10, 18, 4984, 4987, 4988, 4997. There are two explanations forthis. First, the report seems to use the term "action"interchangeably to refer to agency conduct and the litigationposition in a civil case, see id. at 9, 4987 ("In cases ofcivil actions brought by or against the United States . . .")and 18, 4997 ("Under subsection 2412(d)(1)(A) a party otherthan the United States who prevails in certain civilactions . . ."). Second, as we point out above, particularlywhere describing the standard in 5 U.S.C. § 504, relating toagency awards of fees in enforcement proceedings, the agency'sunderlying action and its litigation position are one in thesame. See Alspach, 527 F. Supp. at 228.

8. While this description is contained in the sectionapplying to the standard for "adversary adjudications" under5 U.S.C. § 504, it also applies to cases decided pursuant to §2412(d). See H. Rep. 96-1418, supra 18, 4997 ("The samestandard which is applied in adversary adjudications underSection 3(a) of this bill, is also applied to fee awards incivil actions under this subsection.").

9. As indicated supra, in addition to the experimentalstandard employed in § 2412(d), Congress also subjected theUnited States to fees where it acts in bad faith, or plaintiffsatisfies the common benefit or common fund test normallyapplied to private parties. § 2412(b).

10. Both the "bad faith" exception and Fed.R. Civ.P.37(a)(4) refer to position of the losing party in thelitigation. See F.D. Rich Co. v. Industrial Lumber Co.,417 U.S. 116, 128-30, 94 S.Ct. 2157, 2164-2166, 40 L.Ed.2d 703(1974) (discussing American rule on attorney's fees); Perssonv. Faestel Investments, Inc., 88 F.R.D. 668 (N.D.Ill. 1980)(Rule 37 refers to the position of the party in opposing motionfor discovery).

While we recognize that Congress cited Rule 37(a)(4) as thesource for the substantially justified language, H.Rep.96-1418, supra at 18, 4997, we reject defendant's attempt toapply a "no genuine dispute" or "frivolousness" standard to theEAJA. The legislative history, canvassed in detail above, couldnot be clearer in rejecting such a standard. See id. at 14,4993 (rejecting the standard proposed by the Department ofJustice as too "restrictive").

11. In the instant case it is clear that were thegovernment correct in its interpretation of the CDBG andrelated statutes the agency's action in approving the City'sCDBG application for Phase IV would not have been set asideunder § 706(2)(A). See slip op. at 21-24, 27-31, 31-35. Seenote 12, infra.

12. Plaintiffs also contend that HUD's approval of thePhase IV project violated the requirements of Section 8 of theHousing Act of 1937, 42 U.S.C. § 1437f (1976 & Supp. III & IV,1979 & 1980), the National Environmental Policy Act (NEPA),42 U.S.C. § 4321 et seq. (1976), and the Uniform Relocation andReal Property Acquisition Act of 1970, 42 U.S.C. § 4630 (1976).On each of those issues summary judgment was awarded to thegovernment. See slip op. at 27-40. Nevertheless it is clear,and defendant does not dispute, that under the applicabledefinition plaintiff is a "prevailing party." See H.Rep.96-1418, supra at 11, 4990; Bradley v. School Board of theCity of Richmond, 416 U.S. 696, 94 S.Ct. 2006, 40 L.Ed.2d 476(1974).

13. The government also contends that plaintiffs are notentitled to fees for that portion of their legal work which isattributable to issues upon which the government prevailed, orthat portion of the fees relating to plaintiffs' unsuccessfulclaims against the State and private defendants. In light ofour conclusion that the government's position wassubstantially justified, our subsequent discussion inColeman on these issues does not apply to Grand Boulevard.

14. The government, in arguing the fees question, does notoffer a defense of its position on the § 8 or length of thedeed restriction issues. Rather, it argues that since thegovernment prevailed on several other issues, its position was"substantially justified." The argument misinterprets theproper application of the standard. We discuss separately,infra, the question of whether plaintiffs are entitled tocompensation for work performed on issues upon which they didnot prevail. But where plaintiffs clearly prevailed on theaction as a whole, and, as in Grand Boulevard, the governmentdoes not dispute that plaintiffs are "prevailing parties," thesubstantially justified test must be applied first to theposition of the government on the issues where plaintiff won —assuming the victory was of sufficient magnitude to qualifyplaintiffs as prevailing parties. The fact that the governmentposition was successful on some issues is not enough to blockan award of fees where plaintiffs are prevailing parties andthe position of the government on the issues where plaintiffprevailed was unreasonable.

15. This approach is consistent with result reached and thetest applied by the court in Muscare. Plaintiff's claim thatthe grooming regulation was unconstitutional and his challengeto the procedures used in his disciplinary hearing werecompletely separate claims supported by wholely independentevidentiary and legal considerations.

16. While it is true that the government prevailed on theother issues raised by plaintiff, HUD's attempt to use thosevictories in arguing that plaintiff should not receivecompensation for all of their effort in contesting the sale ofSouth Shore is slightly disingenuous. On the issue of theadequacy of the notice of the proposed sale we agreed withplaintiff that the notice was legally defective but held thatthe defect was insufficient to set the sale aside becauseplaintiff had failed to demonstrate that the defect infectedthe agency decision making process or prejudice their right toparticipate in that process. Slip op. at 16. We also agreedwith plaintiffs that HUD's on the record reasons for rejectingthe cooperative option favored by plaintiffs was inadequatebut held that too was insufficient to set aside the salebecause the record reasons for rejecting the condominiumoption applied with equal force to cooperatives, id. at 19-21.Thus, while the government ultimately prevailed on thoseissues, the necessity for litigating the question was caused bythe inadequacy of the record created by defendants.

We note that were we to apply the standard enunciated by theSixth Circuit in Northcross, 611 F.2d at 636, that "[s]o longas the party has prevailed on the case as a whole the districtcourts are to allow compensation for hours expended onunsuccessful research or litigation unless the positionsasserted are in bad faith", plaintiffs would clearly beentitled to all of fees incurred in pursuing this litigation.While perhaps reconcilable on its facts with the decisionsreached by this circuit, the broad language of the standardappears to be at odds with the formulation adopted in Syvock.

17. We note, as our opinion on the merits indicates, the"record" put together by HUD was less than adequate in severalrespects. Moreover, many of the documents which clearly shouldhave been part of the administrative record for purposes ofreview were uncovered and presented by plaintiffs rather thandefendant.

18. The government contends that plaintiffs' victory isillusory because all they achieved was having the caseremanded to the agency for development of a proper recordindicating the reasons for the agency's decision. As weindicate in our discussion of Grand Boulevard, where theremand is necessitated by a reasonable but erroneousinterpretation of law by the agency, that fact may be entitledto some weight in determining if the government's position wassubstantially justified. However, where reversal of the agencyaction is necessitated by a "failure to explain administrativeaction [so] as to frustrate effective judicial review",Camp v. Pitts, 411 U.S. 138, 142-43, 93 S.Ct. 1241, 1244, 36L.Ed.2d 106 (1973), a remand for further proceedings isgenerally the only relief available to the plaintiffs. See slipop. at 28. That fact can hardly be relied on by the governmentas a grounds for derogating the relief obtained by plaintiffs.

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