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May 19, 1983


The opinion of the court was delivered by: LASKER


This is a motion for attorneys' fees under the recently-enacted Equal Access to Justice Act, 28 U.S.C. § 2412 ("EAJA"), which went into effect on October 1, 1981. The EAJA provides, inter alia, that a prevailing party in an action against the United States may recover attorneys' fees unless the position of the government was "substantially justified" or unless the award would be "unjust" due to "special circumstances."

In 1976, the government began an investigation into the payroll tax liabilities of Network Cinema Corporation. Jack Rose, the company's executive vice president for the periods in question, was believed to be "responsible" for the company's payroll tax liabilities under 26 U.S.C. § 6672. Rose appeared at "several district and regional level administrative hearings" in connection with his alleged tax liability. (Affidavit of Jack Rose, P3). At the time, Rose did not have access to the company's records, which were in the hands of the trustee in bankruptcy. However, when the records became available in 1978, Rose sent the government copies of the cancelled checks for the disputed periods, along with an explanation of the accounting system utilized and a schedule specifying which checks were for which periods. (Attached as Exhibit A to Rose Affidavit).

 The government denied Rose's claim for adjustment of assessed penalties, and, in 1979, Rose brought an action for an abatement in the District of New Jersey, Rose v. United States, Civ. No. 79-3595. In May, 1980 the government filed the present action against Rose for collection of the same tax liabilities. *fn1"

 On January 30, 1981, Rose was deposed. At the conclusion of the deposition, the government attorney, Stephen Lyons, "concluded that Mr. Rose was not liable for the taxes in question." (Affidavit of Assistant United States Attorney Stephen Lyons, P6). Immediately after the deposition, Lyons recommended "concession of the New Jersey action based primarily on that deposition," and, a short time later, the United States Attorney for this district was instructed to dismiss the instant action against Rose.

 Rose seeks attorneys' fees under the EAJA. In a prior decision, 549 F. Supp. 830, we ruled that the present action was pending on the effective date of the Act, but that the New Jersey action and the administrative proceedings on that date and, accordingly, that attorneys fees were available under the EAJA only for fees incurred in connection with the present action.

 The government argues that it was "substantially justified" in commencing this action, but that, even if the Court were to rule that the action was not substantially justified, attorneys' fees are available only for work performed subsequent to the effective date of the EAJA. In addition, the government argues that the fees requested are excessive.

 Rose responds: that the government had no basis for bringing the action; that if a suit is pending on the effective date of the EAJA, all fees incurred in connection with the action are compensable; and that the fees requested are reasonable.

 As indicated above, the EAJA provides for an award of attorneys' fees to a party prevailing against the government "unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust." 28 U.S.C. § 2412(d)(1)(A).The government has the burden of establishing that its position was substantially justified. S & H Riggers & Erectors, Inc. v. Occupational Safety & Health Commission, 672 F.2d 426, 430 (5th Cir. 1982). The test of whether the government's position was substantially justified is "essentially one of reasonableness." S & H Riggers, supra, at 430, quoting H.R. Rep. No. 1418, 96th Cong., 2d Sess. 11 (1980), reprinted in 1980 U.S. Code Cong. & Ad. News 4989.

 According to the government attorney responsible for the action, the government decided to dismiss its entire claim against Rose at the conclusion of his deposition. Rose asserts that everything he said at the deposition he had repeatedly told the government prior to their institution of the action. (Rose Affidavit P5).There had been several administrative hearings, and, moreover, the government had had copies of the cancelled checks since 1978.

 The government does not deny that the administrative hearings took place and that, at the hearings, Rose presented all of the same facts that he set forth at the deposition. The government's response is that the deposition "revealed certain matters that were not available in the administrative file" and also gave the Assistant United States Attorney an opportunity to "observe the demeanor of Mr. Rose." (Lyons Affidavit, P6).

 The government does not assert that it learned any new facts at the deposition. It asserts only that certain facts "were not available in the administrative file." (Lyons Affidavit, P6). Whatever that may mean, it does not appear to be attributable to Rose, and, whether it refers to an inadequacy in the administrative filing system or some other recordkeeping problem, it does not constitute "substantial justification."

 As to the government's contention that the deposition afforded an occasion to observe Rose's demeanor, the government had ample opportunity to observe him at the various administrative hearings held prior to the filing of the complaint, and the observation at the deposition would seem to have been of marginal significance.

 Accordingly, we conclude that the government has not carried its burden of demonstrating that it was substantially justified ...

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