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July 1, 1987

James Edward Antosh, Plaintiff,
Federal Election Commission, Defendant

Charles R. Richey, United States District Judge.

The opinion of the court was delivered by: RICHEY


 On October 1, 1984, plaintiff filed this action challenging defendant's dismissal of his administrative complaint about alleged violations of the Federal Election Campaign Act of 1971. Specifically, plaintiff challenged defendant Federal Election Commission's dismissal of his complaint that the Tom Lantos for Congress Committee and its treasurer violated 2 U.S.C. § 441a(f) by taking contributions from two union political action committees in excess of the $ 5000 limit imposed by the law. Complaint at para. 8(ii). On December 21, 1984, this Court found that defendant Federal Election Commission had ignored "persuasive evidence" in the administrative record about the size of the union contributions, and it remanded the case to the Federal Election Commission for further action in light of this Court's findings. See 599 F. Supp. 850 (D.D.C. 1984).

 On January 18, 1985, plaintiff petitioned this Court for an award of costs and reasonable attorney's fees pursuant to the Equal Access to Justice Act, 28 U.S.C. 2412. The Court denied that motion on April 3, 1985, holding that sovereign immunity barred any such award as plaintiff's lawsuit was filed after that Act expired. On August 8, 1985, President Reagan signed a re-enacted Equal Access to Justice Act into law, and the new Act was made retroactive to the date on which the original Act expired. See Pub. L. 99-80, 7(b). Shortly thereafter, plaintiff renewed his motion for an award of reasonable attorney's fees and costs, pursuant to 28 U.S.C. § 2412(a) and (b).

 Since that time, the Court has received a barrage of filings on the issue of attorney's fees from both plaintiff and defendant, who vigorously opposes plaintiff's motion. In addition to the many legal memoranda, the Court has had the benefit of oral argument on this issue. The Court has carefully considered the papers, the arguments put forward at the hearing, the entire record in this case, and the underlying law, and it finds that it must deny plaintiff's motion.


 The Equal Access to Justice Act allows "a prevailing party in any civil action brought by or against the United States" or its agencies to obtain an award of costs and reasonable attorney's fees in certain circumstances. Id. at 2412(a), (b). Defendant does not, and cannot, suggest that plaintiff is not a "prevailing party;" by virtue of this Court's December 24, 1984, decision, plaintiff has clearly prevailed within the meaning of the Act. Rather, defendant contends that this Court may not grant plaintiff's petition for costs and attorney's fees because it did not have jurisdiction over the underlying lawsuit.

 As defendant never challenged this Court's jurisdiction during the pendency of the underlying suit or in a post-judgment motion pursuant to Fed. R. Civ. P. 60(b), and as defendant never appealed this Court's decision, defendant would ordinarily be foreclosed from challenging subject matter jurisdiction in a subsequent or collateral action. Federated Department Stores, Inc. v. Moitie, 452 U.S. 394, 398, 69 L. Ed. 2d 103, 101 S. Ct. 2424 (1981); Silcox v. United Trucking Service, 687 F.2d 848, 853 (6th Cir. 1982); 18 C.A. Wright, A. Miller, E. H. Cooper, Federal Practice and Procedure : Jurisdiction § 4428 (1981). Consistent with this principle, the Equal Access to Justice Act does not permit an unsuccessful litigant to use its Opposition to a petition for costs and attorney's fees as a vehicle for seeking to invalidate the underlying decision. The Act does, however, force the Court to examine the jurisdictional basis for its decision in order to grant an award of costs and reasonable attorney's fees to the successful party.

 This is mandated by the plain language of the Equal Access to Justice Act. It provides:

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.

 28 U.S.C. § 2412(d)(1)(A)(emphasis added).

 The language of that section makes clear that a court must have "jurisdiction" not only of the petition for attorney's fees; only those courts "having jurisdiction of" the underlying "civil action" may consider whether to award attorney's fees and costs to a prevailing party. Lane v. United States, 727 F.2d 18, 20 (1st Cir.), cert. denied, 469 U.S. 829, 83 L. Ed. 2d 57, 105 S. Ct. 113 (1984). The Court cannot ignore this command to review whether it indeed had jurisdiction when it resolved this lawsuit in plaintiff's favor. See Iselin v. United States, 270 U.S. 245, 250, 251, 70 L. Ed. 566, 46 S. Ct. 248 (1926)(courts must give effect to clear language of particularized statutes); see generally, Frankfurter, Some Reflections on the Reading of Statutes, reprinted in 3 Sutherland Statutory Construction 409, 417 ("A judge . . . must not read [words] out [of a statute] except to avoid patent nonsense or internal contradiction. Legislative words presumably have meaning . . ."). Ordinarily, this review would merely be a matter of form, but defendant has alerted the Court, albeit for the first time, to an alleged lack of jurisdiction, and the Court must now carefully consider whether it did indeed have jurisdiction of the underlying suit. *fn1"

 Article III of the Constitution limits the jurisdiction of the federal courts to those actions in which there is a genuine case or controversy. Synar v. United States, 626 F. Supp. 1374, 1379 (D.D.C.), affirmed sub nom. Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed. 2d 583 (1986). The requirement that litigants have standing to sue is, therefore, jurisdictional, as "principles of standing ensure that one who invokes the power of a federal court satisfies this 'case or controversy' requirement." Id.; see also, e.g., Allen v. Wright, 468 U.S. 737, 751, 82 L. Ed. 2d 556, 104 S. Ct. 3315 (1984); Valley Forge Christian College v. Americans United for Separation of Church and State, Inc., 4 ...

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