Under the Equal Access to Justice Act (EAJA), certain plaintiffs who prevail in cases brought against the government can obtain an award of attorney fees if the government’s position was not substantially justified. In this case, a court had denied a plaintiff who had prevailed in a lawsuit against the government attorney fees under EAJA because the application for fees filed by his attorney did not state that the government’s position was not substantially justified. In the lower court, the government had successfully argued that the requirement that the party seeking fees allege lack of substantial justification in the initial fee application was “jurisdictional” and that the application could not later be amended to claim that the government’s position was not substantially justified.
Because the lower court’s decision conflicted with other federal appellate decisions and several decisions of the U.S. Supreme Court, we persuaded the Supreme Court to grant a petition for certiorari and to review the case on the merits. We served as principal counsel for the petitioner in the Supreme Court.
On May 3, 2004, the Supreme Court decided the case in favor of our client. See 541 U.S. 401. The Court agreed with us that the requirement that a fee application allege lack of substantial justification was not jurisdictional and that an application may be amended after the time limit for filing it to make the necessary allegation.