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January 12, 1989

JOHN R. BLOCK, Secretary of Agriculture, United States Department of Agriculture, Defendant

The opinion of the court was delivered by: TROUTMAN


 Presently before us in the above-captioned case is plaintiffs' counsel's Motion for an Award of Fees and Costs under the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412. Plaintiff seeks a total of $ 39,570.68 which represents $ 32,805.14 for fees associated with the litigation, $ 2,985.60 for expenses and $ 3,779.94 for preparation of the instant fee petition.

 The Secretary opposes the Motion on the grounds that: (1) two (2) of the original plaintiffs, who were subsequently dismissed but continued to pay seventy percent (70%) of the requested fees and costs, were not "prevailing part[ies]" within the meaning of the EAJA; (2) the remaining parties did not prevail on every issue argued at the permanent injunction hearing; therefore, the government's position was substantially justified on those issues; (3) the hourly rate that plaintiffs' attorney charged for his time exceeds the amount allowed under the EAJA; (4) many of the costs, which plaintiffs seek to recover, are not recoverable under the EAJA and (5) plaintiffs cannot recover for the time spent and costs incurred in preparing the supplemental fee petition filed on May 6, 1988. All of the above, the Secretary argues, significantly reduces the $ 39,570.68 requested by plaintiffs' counsel in his motion.

 I. Prevailing Party

 On July 17, 1986, this Court signed an Order which permanently enjoined the Secretary from implementing changes that would alter the size of two (2) milk marketing areas. Lehigh Valley Farmers, et al. v. Block, 640 F. Supp. 1497 (E.D. Pa. 1986), aff'd, 829 F.2d 409 (3d Cir. 1987). In that Order, this Court also dismissed two (2) of the plaintiffs, Guers Dairy, Inc., and Valley Farms, Inc., for failure to exhaust formal administrative remedies. Id. at 1500. These two corporations had paid seventy percent (70%) of the attorney's fees and costs until they were dismissed, and they continued to do so until the end of litigation.

 Plaintiffs' counsel argues that the dismissal of these corporations has little to do with the amount of fees and costs that should be awarded. Plaintiffs' counsel states that "whether Valley Farms and Guers have an equitable subrogated interest in any recovery obtained by Farmers Cooperative Dairy should not be of concern to the government any more than repayment of a bank loan or other financing arrangement would be." (See Supplemental Memorandum in Support of the Equal Access to Justice Act Petition of Plaintiffs, p.5). It is interesting to note that this is a different position from the one taken by plaintiffs in their original Memorandum filed on January 25, 1988. In that document, the plaintiffs state that their "status as prevailing parties could not be more clearly established." (See Memorandum of Plaintiffs in Support of Motion for Equal Access to Justice Act Fees and Costs, p.3). It is detrimental to the plaintiffs' case that they cannot provide the Court with cases to support either position.

 It is unfortunate that this Court could not find any cases to firmly support either argument offered by the parties. However, this Court is swayed by the logic of the Secretary's position, and this Court has an indication that the Third Circuit would agree with it.

 A party to an action is deemed prevailing if it has received all the relief that it requested. Natural Resources Defense Council v. U.S.E.P.A., 703 F.2d 700, 704 n.5 (3d Cir. 1983). See also Tressler v. Heckler, 748 F.2d 146, 149 (3d Cir. 1984). In this case, Valley Farms, Inc., and Guers Diary, Inc., were not parties to the action when this Court permanently enjoined the government from implementing the changes to the milk marketing areas. They were not and are not in a position to request any relief from this Court. The fact that the remaining plaintiffs received the relief requested does nothing to change the fact that Valley Farms, Inc., and Guers Diary, Inc., have no rights under the EAJA. Plaintiffs are entitled to recover the attorney's fees and expenses paid only by "prevailing part[ies]". Thus, plaintiffs may recover only thirty percent (30%) of the amount ultimately determined to be compensable.

 II. Substantial Justification

 The EAJA provides for the award of attorney's fees and costs "unless the court finds that the position of the United States was substantially justified." 28 U.S.C. § 2412(d)(1)(A). "Substantially justified" has been defined to mean "justified to a degree that would satisfy a reasonable person." Pierce v. Underwood, et al., 487 U.S. 552, 108 S. Ct. 2541, 101 L. Ed. 2d 490, 504 (1988). This definition is no different from the "reasonable basis both in law and fact" formulation adopted by the Third Circuit. Id. at 505, Citizens Council of Delaware County v. Brinegar, 741 F.2d 584, 593 (3d Cir. 1984). The test, therefore, is "essentially one of reasonableness. Dougherty v. Lehman, 711 F.2d 555, 561 (3d Cir. 1983).

 The Secretary argues that the award of attorney's fees and costs should be reduced because plaintiffs advanced two legal theories on which they did not prevail. The first was the government's alleged reliance on non-record evidence in reaching its decision to alter the size of the milk marketing areas. The second was whether the Court could review certain certifications made by the government pursuant to the Regulatory Flexibility Act, 5 U.S.C. §§ 601-612. This Court did not reach the first issue and held that it could not review the second. As a result of the court's decision, the Secretary argues that his position as to these two issues was substantially justified.

 The Secretary states that his arguments are supported by the Third Circuit's holding in Goldhaber v. Foley, 698 F.2d 193 (3d Cir. 1983). In that case, the Plaintiff offered two legal theories in support of its requested relief. The court held for the plaintiff on only one of those theories and proportionately reduced plaintiff's requested award for fees and costs. The Secretary requests that this Court do the same. The Secretary, however, fails to note a subsequent Third Circuit case which stated that "the [district] court was ...

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