Scarborough v. Principi - Opinion Announcement

Argument of Speaker

Mr. Speaker: The opinion of the Court in No. 02-1657, Scarborough against Principi will be announced by Justice Ginsburg.

Argument of Justice Ginsburg

Mr. Ginsburg: Each party to a lawsuit in the United States ordinarily pays his or her own counsel fees.

The Equal Access to Justice Act or EAJA departs from that general rule.

Under EAJA, a party who wins its suit against the United States maybe awarded attorney’s fees, but the government may defeat a fee award by showing that the position it took in the litigation was substantially justified.

Under EAJA, the party who prevails against the government has 30-days from the court’s final judgment to apply for fees.

EAJA prescribes the contents of the fee application.

Among other things, the applicant must itemize the amount sought.

EAJA further instructs the fee applicant, to allege that the position of the United States was not substantially justified.

We resolve today a matter of time, a question on which the Federal Courts of appeals have divided.

May a fee application filed on time be amended after the 30 day filing period has run, to cure an applicant’s initial oversight in failing to allege that the government’s position in the case lacks substantial justification?

The Court of Appeals for the Federal Circuit answered that question, no, holding a curative amendment impermissible.

We answer, yes, and therefore reverse the Court of Appeal’s judgment.

Petitioner Scarborough sued the Secretary a Veterans Affairs for disability benefits and gained a favorable judgment.

Scarborough’s counsel filed a timely application for fees under EAJA, but initially failed to allege that the position taken by the United States was not substantially justified.

Alerted to the omission, counsel promptly filed a curative amendment, but by then the 30-day deadline had passed.

The amendment came too late the Federal Circuit said, and for that reason it affirmed the dismissal of Scarborough’s fee application, for it said, “Lack of subject-matter jurisdiction”.

The fee application we hold must be entertained.

The question whether Scarborough is time barred from gaining a fee award, we first clarify, does not bear on subject-matter jurisdiction.

Prescriptions on subject-matter jurisdiction described what classes of cases a court is competent to adjudicate.

The EAJA provision at issue is not of that genre, it concerns only a mode of relief counsel fees, awardable in cases undeniably within the court’s adjudicatory authority.

Dispute here is not over whether, but when an EAJA fee applicant must allege the position of the United States was not substantially justified.

Two prior decisions inform our judgment, in Edelman against Lynchburg College, a 2002 decision, we sustained a regulation allowing amendment of a Title VII employment discrimination charge after the filing deadline to supply an initially missing verification of the charge by "oath or affirmation".

The tidy verification we held related back to the timely filed charge.

The year before Edelman and Becker v. Montgomery, we held that a pro se litigant's failure to hand sign a timely filed notice of appeal could be cured after the filing deadline expired.

Like the verification requirement in Edelman and the signature requirement in Becker, the allegation at issue here, serves no notice giving function, the government is well aware from the moment the fee application is filed that to defeat the application on the merits, it will have to prove that its position was substantially justified.

Essentially, the required allegation is a “think twice” pleading prescription designed to dampen the urge to litigate irresponsibly.

The allegation serves also to shift to the government the burden to prove that the position it took in the underlying litigation was substantially justified.

The relation-back principle as our decisions indicate, guides our determination today.

Scarborough's amended application arose out of the occurrence set forth or attempted to be set forth, in his timely-filed original application.

It therefore related back to the original filing and effectively repaired counsel’s initial omission.

Two further points; first, the Doctrine of sovereign immunity does not stand in the way of an EAJA fee recovery.

Once Congress waives sovereign immunity, time limitations generally apply to the government, just as they would apply to private parties.

Second, our decision will not expose the government to any unfair imposition; or showing a prejudice to the government would preclude operation of the relation-back doctrine and EAJA itself has a built-in check.

The statute disallows a fee award when special circumstances make an award unjust.

Justice Thomas has filed a dissenting opinion in which Justice Scalia joins.