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Union of Concerned Scientists v. NRC

ELR Citation: 18 ELR 20573
Nos. Nos. 85-1757, 86-1219, 840 F.2d 957/(D.C. Cir., 03/04/1988) Attorney fees award aff'd

The court holds that plaintiffs are entitled to attorney fees under the Equal Access to Justice Act (EAJA). Plaintiffs challenged the Nuclear Regulatory Commission's (NRC's) "backfit" rule, which the court vacated in an earlier ruling. The court holds that plaintiffs were the prevailing party, since they contended that the rule was invalid, while NRC insisted that it was valid in all respects. It does not matter that the court did not uphold all of plaintiffs' challenges to the backfit rule. The court also holds that NRC's position was not substantially justified within the meaning of the EAJA. The court allows an enhancement of EAJA's $75 per hour maximum for cost of living increases.

The dissent would hold that plaintiffs are not the prevailing party and that NRC's position was substantially justified. The dissent asserts that while the court's earlier decision to remand the case to the agency secures a clarification of the challenged rule, the government prevailed on the most important issue and the resulting clarification was based on a view of the law that plaintiffs ardently oppose. Therefore, plaintiffs should receive no attorney fees, or only fees apportioned to the narrow area of their argument where the agency's resistance was not substantially justified.

[The court's ruling on the merits is published at 17 ELR 21233.]

Counsel for Petitioners
Diane Curran, Andrea Ferster, Ellyn R. Weiss
Harmon & Wilmot
3rd Floor, 1029 Vermont Ave. NW, Washington DC 20005
(202) 783-9100

Counsel for Respondents
G. Paul Bollwerk III, Sr. Attorney
U.S. Nuclear Regulatory Commission
1717 H St. NW, Washington DC 20006
(202) 492-7000

Before: MIKVA, EDWARDS, and WILLIAMS, Circuit Judges.