August 5, 1985
I am pleased to be able to approve H.R. 2378, a bill to extend the Equal Access to Justice Act. I
support this important program that helps small businesses and individual citizens fight faulty
government actions by paying attorneys' fees in court cases or adversarial agency proceedings
where the small business or individual citizen has prevailed and where the government action or
position in the litigation was not substantially justified. It was with great regret that I vetoed the
bill to extend this program that passed at the end of the last session of the Congress. I am pleased
that the Congress has corrected the problems I perceived in that bill.
On the important definition of the position of the United States or position of the agency, this bill
would allow the court or the agency to look at the agency action that is the basis of the litigation
or the agency proceeding, in addition to the position taken by the United States in the court or in
the formal agency proceeding, to the extent these differ, in determining whether the position of
the United States was substantially justified. I note that the bill strictly limits the court's or the
agency's fee inquiry to the agency action that is at issue in the litigation or proceeding and does
not permit the examination of any other agency conduct. I note further that the Congress has
specifically instructed the courts to base the fee inquiry on the record made in the litigation or
agency proceeding for which fees are sought and not to engage in additional discovery or
evidentiary proceedings in considering the question of substantial justification. I believe these
changes take care of my concerns that the fee proceeding not become another trial and that fee
proceedings not involve matters not at issue in the principal litigation. It is with these
understandings that I sign this bill.
In addition, it is my understanding in signing this bill that the Congress recognized the important
distinction between the substantial justification standard in the fee proceeding and a court's finding
on the merits that an agency action was arbitrary and capricious or not supported by substantial
evidence. The substantial justification standard is a different standard, and an easier one to meet,
than either the arbitrary and capricious or substantial evidence standard. A separate inquiry is
required to determine whether, notwithstanding the fact that the Government did not prevail, the
Government's position or action was substantially justified. The Equal Access to Justice Act was
never intended to create an automatic fee award every time the Government loses a case. The
current bill is true to that principle.
Note: H.R. 2378, approved August 5, was assigned Public Law No. 99 - 80.