services rendered throughout this litigation.
ARE THERE "SPECIAL CIRCUMSTANCES"?
The Equal Access to Justice Act provides that the government should not be held liable where "special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A). The legislative history of the Act instructs that "(t)his "safety valve' helps to insure that the Government is not deterred from advancing in good faith the novel but credible extensions and interpretations of the law that often underlie vigorous enforcement efforts. It also gives the court discretion to deny awards where equitable considerations dictate an award should not be made." House Report at 11 (4990).
The government argues since this is the only litigation which challenged the constitutionality of the alien-spouse regulations, it was reasonable, if not obligatory, for the government to assert all pertinent defenses. The government contends its arguments were "thus novel, credible and as yet untested." Defendants' Opposition to Plaintiff's Motion for Attorneys' Fees, March 23, 1982 at 13.
Since Mrs. Nunes-Correia brought the only litigation challenging the constitutionality of the alien-spouse regulations, of course the government's arguments were as yet untested. But the argument that the alien-spouse regulations were rationally related to a legitimate governmental interest was hardly a novel theory. And it certainly does not follow that because the government's argument was untested, it was necessarily worthy of credit. On the contrary, the number of unchallenged regulations which can reasonably be defended is likely to be smaller than the number of regulations which have already withstood some judicial scrutiny. The "special circumstances safety valve" does not create a different, less rigorous standard of review for all cases of first impression. It merely preserves government efforts to present creative legal interpretations, which though not yet commonly accepted, still merit the court's careful examination.
The government next points out that since judgment for Mrs. Nunes-Correia was entered orally from the bench in July 1981, only the passage of time from July 1981 until entry of the court's November 9, 1981 order renders this action amenable to the Act's provisions. The government suggests that the peculiar timing of the summary judgment order in this case is the type of special circumstance that makes a fee award unjust. See Matthews v. United States, 526 F. Supp. 993, 1009 (M.D.Ga.1981).
While the court acknowledges that Mrs. Nunes-Correia's eligibility for a fee award under the Act is in some ways fortuitous, the court does not accept the government's suggestion. Cases on appeal are "pending" for the purposes of the Equal Access to Justice Act. See Bradley v. School Board, 416 U.S. 696, 94 S. Ct. 2006, 40 L. Ed. 2d 476 (1973). The government filed a notice of appeal in this case on January 8, 1982, and did not move to dismiss its appeal until April 16, 1982. Even had the court filed its summary judgment order in July, the government's five-month resort to the appeal process would have extended the pendency of this litigation beyond October 1, 1981. Thus the lapse of time between the court's oral and written rulings was harmless and does not render a fee award unjust. There are no special circumstances which defeat a fee award in this case.
Accordingly, it is this 14th day of July 1982,
ORDERED that Mrs. Nunes-Correia's request for reasonable attorneys' fees and expenses pursuant to 28 U.S.C. § 2412(d)(1)(A) is GRANTED.