also seek 1.75 hours for their legal assistant at $ 60.00 per hour. Duplicating expenses of $ 156.20 are also sought. The total sought in fees and expenses in connection with the appeal is $ 15,845.72.
Since the Court finds that plaintiffs have prevailed on a significant issue for which relief was sought on which the government was not substantially justified, a fee award must follow. However, since defendants were substantially justified with respect to many issues, the Court will reduce the attorney and legal assistant hours requested for the enforcement motions by half. The Court determines that an increase in the cost of living justifies a higher fee than the statutory cap as contemplated by 28 U.S.C. § 2412(d)(2)(A)(ii).
The Court notes that defendants cite no authority for the proposition that the government may prove that its appeal from the enforcement decisions was substantially justified, and thereby requiring a denial of plaintiffs' application for fees in connection with the appeal. The Court reads Commissioner, INS v. Jean, 496 U.S. at 158-60, and Jones v. Lujan, 887 F.2d at 1099-1100, as controlling. If the Court finds, as found above, that the government was not substantially justified in its underlying action or litigation position, any appeal of the underlying action that is affirmed does not require the Court to make a second determination about the government's substantial justification on appeal.
The Court, therefore, will award plaintiffs $ 25,376.49 in attorney and legal assistant fees for their original petition.
In addition, the Court will award all hours sought in connection with the appeal in the amount of $ 15,247. 01.
All duplicating expenses in both petitions will be awarded in the amount of $ 1,356.20. The grand total of the award of fees and expenses is $ 41,979.70.
An appropriate order accompanies this memorandum.
EDITOR'S NOTE: The following court-provided text does not appear at this cite in 799 F. Supp. 148.
July 28, 1992
ORDER - July 28, 1992, Filed
Upon consideration of plaintiffs' petition for an award of attorneys' fees and expenses, defendants' opposition thereto, plaintiffs' reply, plaintiffs' supplemental petition, defendants' opposition thereto, and the entire record of this case, and for the reasons stated in the accompanying memorandum, it is by the Court this 28th day of July, 1992,
ORDERED that plaintiffs' petitions be, and hereby are, granted in part; and it is further
ORDERED that plaintiffs be, and hereby are awarded a sum certain, $ 41,979.70 (forty-one thousand nine hundred seventy-nine dollars and seventy cents) in attorney and legal assistant fees and expenses as calculated in the accompanying memorandum.