487 U. S. 552
June 27, 1988
A law allowed citizens to recover attorneys fees against the government if the government’s position was not “substantially justified.” The attorneys fees awarded would be capped at $75 per hour, but that could be adjusted upward based on “special factors.” A lower court found for citizens who were suing the Department of Housing and Urban Development. The court found that HUD’s position was not substantially justified, and awarded large attorneys fees, ballooned greatly by “special factors.”
Scalia wrote the majority opinion, and Kennedy did not participate. It concluded 6-2 that lower courts findings that government positions were not “substantially justified” should be reviewed under an abuse of discretion standard. It concluded 5-3 that “substantially justified” meant that the position was basically reasonable, plausible, and arguable. It concluded 6-2 that the lower court did not abuse discretion in finding that the government’s position was not substantially justified. And it concluded 5-3 that the “special factors” cited by the lower court were not quite special enough, and it vacated the greatly ballooned award of attorneys fees. In the 6-2 parts, Scalia was joined by Rehnquist, Brennan, Marshall, Blackmun, and Stevens. In the 5-3 parts, he was joined by Rehquist, White, Stevens, and O’Connor.
To very briefly summarize, Scalia felt that abuse of discretion was better than allowing de novo review because of how weird the legal question of substantial justification was. He defined “substantially justified” by looking at how the word ‘substantial’ was used in other legal contexts. He noted that HUD’s string of losses in lower courts, together with some tough legal criticisms of HUD’s position, foreclosed any possibility that the lower court judge abused his discretion. Finally, he thought the lower court’s expansive reading of “special factors” was so broad as to virtually eliminate the $75 limit.
Brennan, joined by Marshall and Blackmun, though Scalia was too forgiving to the government in how it defined “substantially justified.” To Brennan, the government’s position had to be more than just reasonable – there had to be some true force and persuasion to the government’s position. He also felt Scalia was not recognizing enough “special factors,” and that things like the difficulty of the litigation should be reflected in an upward adjusted fee. White, joined by O’Connor, contended that questions of law were always reviewed de novo, and that questions of whether a government’s legal position was “substantially justified” ought to be no different. He further contended that, under a de novo standard, he would find enough justification for HUD’s position to absolve them of the duty to pay attorneys fees.