02-1657 Scarborough v. Principi

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Unlike the § 2412(d)(1)(B) prescriptions on what the applicant must show (his “prevailing party” status, “eligib[ility] to receive an award,” and “the amount sought, including an itemized statement”), the required “not substantially justified” allegation imposes no proof burden on the fee applicant, but is simply an allegation or pleading requirement. So understood, the applicant’s pleading burden is akin to Becker’s signature requirement and Edelman’s verification requirement. Like those requirements, EAJA’s ten-word “not substantially justified” allegation is a “think twice” prescription that “stem[s] the urge to litigate irresponsibly,” Edelman, 535 U.S., at 116, 122 S.Ct. 1145; at the same time, the allegation functions to shift the burden to the Government to prove that its position in the underlying litigation “was substantially justified,” § 2412(d)(1)(A). The allegation does not serve an essential notice — giving function; the Government is aware, from the moment a fee application is filed, that to defeat the application on the merits, it will have to prove its position “was substantially justified.” A failure to make the allegation, therefore, should not be fatal where no genuine doubt exists about who is applying for fees, from what judgment, and to which court. Becker, 532 U.S., at 767, 121 S.Ct. 1801. Moreover, because Scarborough’s lawyer’s statutory contingent fee would be reduced dollar for dollar by an EAJA award, see 38 U.S.C. § 5904(d)(1); Fee Agreements, note following 28 U.S.C. § 2412, allowing the curative amendment benefits the complainant directly, and is not fairly described as simply a boon for his counsel.

319 F.3d 1346, reversed and remanded.

Ginsburg, J.; Thomas, J., dissenting.

Local effect:

The issue has not previously been considered by the Seventh Circuit.