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July 27, 1987

Representative Mike Synar, et. al., Plaintiffs,
United States of America, Defendant; National Treasury Employees Union, Plaintiff, v. United States of America, Defendant

The opinion of the court was delivered by: GASCH


 The Court has before it applications for attorneys' fees and costs in the above-captioned cases, popularly known as the "Gramm-Rudman" litigation. Plaintiffs in the consolidated cases contend that they are due reasonable attorneys' fees for their role in litigating the constitutionality of the Balanced Budget and Emergency Deficit Control Act of 1985 (the "Gramm-Rudman-Hollings Act"), 2 U.S.C. § 901 et seq. (1985 Supp.). The fee applications here reviewed are controlled by the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d) (1985 Supp.).


 Within hours following the President's signing of the Act, Congressman Synar filed a complaint seeking declaratory relief that the Act was unconstitutional. Shortly thereafter, the National Treasury Employees Union ("NTEU") filed an identical suit. *fn2" The two actions were consolidated and heard before a special three-judge panel provided for under the terms of the Gramm-Rudman-Hollings Act. See 2 U.S.C. § 922.

 The plaintiffs in the Gramm-Rudman litigation presented their challenge to the Act on two grounds: that the Act constituted an unlawful delegation of legislative power by Congress to the President and other government officials and that the powers assigned to the Comptroller General, a member of the legislative branch, constitutionally must be assigned to executive branch officials. The position of defendant United States on motion for summary judgment was (1) the congressional plaintiffs must be dismissed for lack of standing, (2) the Act did not unconstitutionally delegate legislative authority, and (3) the role of the Comptroller General in the automatic deficit reduction process unconstitutionally violated the principle of separation of powers.

 In a per curiam decision, the District Court concluded that both NTEU and the congressional plaintiffs had standing to challenge the Act. Synar v. United States, 626 F. Supp. 1374, 1381-82 (D.D.C. 1986). In its holding on the merits, the District Court found that the Act unconstitutionally granted executive powers to the Comptroller General, an officer of the legislative branch and removable by Congress. Id. at 1403. The three-judge panel rejected plaintiffs' argument of unlawful delegation. Id. at 1390-91. Upon expedited review to the Supreme Court pursuant to 2 U.S.C. § 922(b) and (c), the District Court was affirmed. Bowsher v. Synar, 478 U.S. 714, 106 S. Ct. 3181, 92 L. Ed. 2d 583 (1986). The Supreme Court did not reach the delegation issue. Instead, it affirmed the lower court's decision on the basis of its separation of powers ruling.

 The congressional plaintiffs and NTEU have now moved the Court for an award of attorneys' fees for their role in challenging the constitutionality of the Gramm-Rudman Act. Counsel for the congressional plaintiffs claims entitlement under the EAJA to an award of $ 52,000.00; NTEU has applied for a total fee award of $ 59,938.88. See Plaintiffs' Applications for Attorneys' Fees (filed July 31, 1986).


 Under the well established "American Rule," each party in a lawsuit ordinarily bears its own attorney's fees. The Supreme Court has reaffirmed the viability of this rule where no express statutory authorization exists to the contrary. See Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 44 L. Ed. 2d 141, 95 S. Ct. 1612 (1975). The Equal Access to Justice Act represents one example where a statute provides for the award of attorney's fees, under certain conditions. The pertinent language of the statute is as follows:

(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, 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).

 It is clear from the face of this statute that a private party applying for attorney's fees under the EAJA must clear three hurdles: (1) the applicant must be the "prevailing party"; (2) the position of the United States must fail to be "substantially justified"; and (3) no "special circumstances" exist to prevent an unjust fee award. It is the government's burden to prove that its position was "substantially justified" or that a "special circumstance" precludes a fee award. Spencer v. National Labor Relations Board, 229 U.S. App. D.C. 225, 712 F.2d 539, 557 (D.C. Cir. 1983), cert. denied, 466 U.S. 936, 104 S. Ct. 1908, 80 L. Ed. 2d ...

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