CIT Holds That Attorneys' Fees Not Awardable for Phases of LItigation in Which Claimant Was Opposed Solely by Third Parties

Per Jazz Photo Corp. v. U.S., --- F.Supp.2d ----, 2008 WL 5492105 (CIT Dec. 2, 2008

It is inappropriate to award attorneys' fees against the government for those phases of litigation in which the claimant was opposed solely by third parties. See Judicial Watch, Inc. v. United States Dep't of Commerce, 470 F.3d 363, 373 (D.C.Cir.2006) (providing instructive reasoning on EAJA with regard to claimant's litigation disputes with third parties); see also Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir.1991) (applying EAJA and concluding that “where plaintiffs are litigating an issue and are opposed only by private defendants, a fee award against the government would be ‘manifestly unfair and contrary to historic fee-shifting principles.’" (quoting Avoyelles Sportsmen's League v. Marsh, 786 F.2d 631, 636 (5th Cir.1986)). The court determines that the position taken by the government with regard to Fuji at the appellate level was not in opposition to plaintiff.

. . .

The primary purpose of EAJA is to eliminate legal expense as a barrier to challenges of “unreasonable government action.” See Ellis, 711 F.2d. at 1576. Because EAJA contemplates deterring only unreasonable positions taken by the government, the court agrees with the reasoning in Judicial Watch, Inc. and Love and concludes that it is improper to grant an EAJA award where a non-governmental party litigated the issue and the government took no position.