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DOUGLAS v. BAKER

December 18, 1992

MILAGROS DOUGLAS and SARA DOUGLAS, Plaintiffs,
v.
JAMES BAKER III, Secretary of State, Defendant.



The opinion of the court was delivered by: OLIVER GASCH

 This matter is before the Court on plaintiffs' motion for attorney's fees under the Equal Access to Justice Act ("EAJA"), 28 U.S.C. § 2412(d), *fn1" the government's opposition, and the numerous replies and counter-replies which have been filed pursuant thereto. On April 24, 1991, this Court granted plaintiffs' motion for a declaration that they are citizens of the United States; however, the Court denied plaintiffs' request for a writ of mandamus compelling the government to issue passports to plaintiffs. There is no dispute that plaintiffs have prevailed on the central issue in this case, namely, whether they are United States citizens. *fn2" However, the government contends that plaintiffs' counsel is not entitled to an award of attorney's fees under the EAJA because the government's decision not to issue plaintiffs passports was "substantially justified," as was its decision to defend its action in court. The government also maintains that the fees and expenses demanded by plaintiffs, which total $ 36,297.50, are excessive. For the reasons set forth below, the Court finds that the government's position was not substantially justified. However, the Court agrees with the government that the attorney's fees that have been demanded by plaintiffs are excessive.

 DISCUSSION

 I. Whether Attorney's Fees Are Appropriate Under the EAJA.

 The EAJA provides that a court "shall" award attorney's fees to a prevailing party, other than the United States,

 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). Defendant concedes that plaintiffs have prevailed in the underlying lawsuit. What the Court must determine is whether the government's position was "substantially justified."

 The government bears the burden of proving that its position was "substantially justified." The government will carry its burden if it can establish that it was "justified to a degree that it could satisfy a reasonable person." Pierce v. Underwood, 487 U.S. 552, 565 (1988). Put another way, the government must prove that its position had a reasonable basis both in law and in fact. Id. The analysis is bifurcated: the Court must determine not only whether the government was substantially justified in its litigation position, but also whether it was substantially justified in the action or omission that gave rise to the litigation. 28 U.S.C. § 2412(d)(2)(D). As this Court has explained, "there needs to be a good reason for the [government's] action and a good reason for fighting about it." National Law Center on Homelessness and Poverty v. United States Dept. of Veterans Affairs, 799 F. Supp. 148, 156 (D.D.C. 1992).

 In the case under consideration, the Court finds that neither the government's litigation position nor its initial decision not to give plaintiffs passports was "substantially justified." The government argues that its denial of plaintiffs' passport applications was reasonable because plaintiffs' only proof of their father's presence in the United States *fn3" was the submission of two affidavits which asserted plaintiffs' father's presence in the United States Virgin Islands between the years 1915 and 1935. Opposition To Motion For Attorneys' [sic] Fees at 2 (hereinafter "Opposition"). In the government's view, it was reasonable for the American Embassy in the Dominican Republic to question the credibility of these affidavits given the Embassy's experience with these matters. Opposition at 2-3. The implication is that because the Embassy receives a constant deluge of passport applications, it cannot accept all of the documents in support of the applications at face value.

 Even more unreasonable than the Embassy's decision to deny plaintiffs' passport applications was the government's decision to drag this matter into protracted litigation. In a case such as this where there is substantial evidence of plaintiffs' United States citizenship and scant, if any, evidence against their citizenship, it is patently unreasonable for the government to elect to put up a fight. The Court is aware that there are many cases where the government will lose at trial but its position will, nonetheless, be substantially justified. See Pierce v. Underwood, 487 U.S. at 569. The instant case is not such a case. In summary, the Court finds that the government's position was justified neither in law nor in fact, and, therefore, plaintiffs' counsel is entitled to be paid for his representation.

 II. Amount of the Award.

 A. The Rate of Pay.

 The EAJA imposes a presumptive cap on the rate at which an attorney may be compensated. ...


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