The opinion of the court was delivered by: GASCH
This case is now before the Court on plaintiffs' application for attorneys' fees under the Equal Access to Justice Act [the Act], 28 U.S.C. §§ 2412(b) & (d). The exact amount of attorneys' fees is not presently at issue because the parties have agreed to limit themselves to presentation of five preliminary questions: (1) whether plaintiffs have met the general requirements for fees under § 2412(b) or (d); (2) whether an award of fees in this case would be an improper retroactive application of the Act; (3) whether plaintiffs can recover fees for the Globe I case before Judge Oberdorfer; (4) whether plaintiffs can recover fees for issues upon which they did not prevail; and (5) whether plaintiffs can recover for their tort claims. Although each of these issues can be disposed of briefly, some background discussion of the Act must first be presented.
The Act consists of two pertinent provisions:
(b) Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys . . . to the prevailing party in any civil action brought by or against the United States or any agency and any official of the United States acting in his or her official capacity in any court having jurisdiction of such action. The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award . . . .
(d)(1)(A) Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses . . . incurred by that party in any civil action (other than cases sounding in tort) 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 . . . .
(2) For the purposes of this subsection . . .
(B) "party" means (i) an individual whose net worth did not exceed $1,000,000 at the time the civil action was filed, (ii) a sole owner of an unincorporated business, or a partnership, corporation, association, or organization whose net worth did not exceed $5,000,000.
28 U.S.C. §§ 2412(b) & (d).
Subsection (b) waives sovereign immunity so that the United States becomes liable for attorney fees in civil litigation to the same extent that a private party would be. See H.R.Rep. No. 96-1418, 96th Cong., 2d Sess. 6, reprinted in  U.S.Code Cong. & Ad.News 4984, 4984 [hereinafter "House Report"]; H.R.Conf.Rep. No. 96-1434, 96th Cong., 2d Sess. 21, reprinted in  U.S.Code Cong. & Ad.News 5003, 5010 [hereinafter "Conference Report"]. In other words, the three exceptions -- the bad faith exception, the common fund exception, and the common benefit exception -- to the so-called "American Rule" of no attorneys' fees now apply equally to the government and private litigants. House Report, supra, at 9, reprinted in  U.S.Code Cong. & Ad.News 4987.
Subsection (d) is a broad ranging change in prior law, for now any qualifying
party in litigation with the government shall be given reasonable fees (not to exceed $75/hour), unless the position of the government was substantially justified or if circumstances make the award unjust. The Act was passed on October 1, 1980, and applies to civil actions "which are pending on, or commenced on or after Oct. 1, 1981." Pub.L. 96-481, § 202, 94 Stat. 2325 (1980) (codified at 5 U.S.C. § 504 note).
The Act was enacted as a part of Congress' concern that the heavy cost of litigation against the government was having disastrous consequences on small businesses. See 126 Cong.Rec. H10,215-31 (daily ed. October 1, 1980) (remarks of Reps. Kastenmeier, Smith, Moakley, McDade, Heckler). The Act was added as a floor amendment to the Senate version of amendments to the Small Business Act. See 126 Cong.Rec. S13,686 (daily ed. Sept. 26, 1980). A similar bill had been reported out of the House Judiciary Committee on the previous day. At conference, the ...