- 53 -
incurred in obtaining a fee award) in Commissioner, INS v. Jean,
496 U.S. 154 (1990). As discussed in Part I.B., supra, the Court
in Jean held that fees for fees are recoverable under the EAJA
without a separate showing that the Government’s opposition to
the fee award was not substantially justified. In response to
the Government’s argument that such a holding would have the
effect of allowing “an automatic award of ‘fees for fees’”, id.
at 162, the Court stated:
Because Hensley v. Eckerhart, 461 U.S. 424, 437
(1983), requires the district court to consider the
relationship between the amount of the fee awarded and
the results obtained, fees [claimed] for fee litigation
should be excluded [from the award] to the extent that
the applicant ultimately fails to prevail in such
litigation. For example, if the Government’s challenge
to a requested rate for paralegal time resulted in the
court’s recalculating and reducing the award for
paralegal time from the requested amount, then the
applicant should not receive fees for the time spent
defending the higher rate. [Id. at 163 n.10.]
The Court of Appeals for the Ninth Circuit has expressly held
that “the legal principles for recovering attorney’s fees laid
out in Hensley [citation omitted] apply to requests for fees-on-
fees”. Thompson v. Gomez, 45 F.3d 1365, 1367 (9th Cir. 1995);
see also Atkins v. Apfel, 154 F.3d 986, 990 (9th Cir. 1998).
While it is often difficult to allocate attorney time
between successful and unsuccessful issues and claims, “denial of
a particular form or aspect of relief occasionally may be
attributable to a discrete motion or proceeding, thus allowing
the limited success factor to be measured by hours devoted to
Page: Previous 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 NextLast modified: May 25, 2011