The opinion of the court was delivered by: DEBEVOISE
The nature of this action and my findings of fact and conclusions of law are set forth in my September 28 opinion, 571 F. Supp. 1104. They need not be repeated here. For present purposes suffice it to say: First, I concluded that under the circumstances of this case the deposition testimony upon which the government relied was inadmissible except for very limited purposes. Second, I held that upon exclusion of that testimony the government had failed to establish by evidence that was clear, unequivocal and convincing that defendant had participated in the slaughter of more than 2,000 Jewish residents of the Lithuanian village of Kedainiai in August of 1941. Third, I held that although defendant made repeated misrepresentations as to four matters in his application for a visa and for naturalization, this did not constitute illegal procurement or procurement by concealment of a material fact or by wilful misrepresentation under 8 U.S.C. Section 1451(a) as interpreted and applied by the United States Supreme Court.
Having prevailed on the merits, defendant is entitled to costs under 28 U.S.C. Section 2412(a).
In part, defendant bases his application for attorney's fees and costs in addition to those allowed under Section 2412(a) on Rule 37(d), which authorizes a court to impose attorney's fees upon a party or his attorney who failed to comply with discovery obligations. At this late date I do not intend, nor do I think I am authorized or required, to review all the charges and countercharges regarding the conduct of discovery in this case. If there were delinquencies in that regard, the time to have sought imposition of a penalty was when the improper conduct occurred. Then the judge who was hearing the case would have been in a position to evaluate the situation and make an appropriate disposition. Rule 37(d) was not intended to permit a party after conclusion of a case to reopen and reargue matters long buried and forgotten.
Thus the basis for any fee award must be under 28 U.S.C. Section 2412(d)(1)(A) which provides:
Except as otherwise specifically provided by statute, a court shall award to a prevailing party other than the United States fees and other expenses in addition to any costs awarded pursuant to subsection (a), incurred by that party in any civil action (other than cases sounding in tort) brought by or against the United States in any court having jurisdiction of that action, unless the Court finds that the position of the United States was substantially justified or that special circumstances make an award unjust.
Defendant is a prevailing party and as such is entitled to attorney's fees unless the government carries its burden of establishing that its position was substantially justified. Dougherty v. Lehman, 711 F.2d 555 (3d Cir.1983). Thus not every prevailing party is entitled to an award of attorney's fees -- only those who are parties to a case in which the government's position was not substantially justified. To determine whether the government's position was substantially justified the trial court must look to the record in the case, the factors and reasoning found in the Court's opinion, the relevant documents filed at each stage of the proceedings, actions taken by the government after legal proceedings had commenced and affidavits filed in connection with the fee application. Dougherty supra at 562.
As stated in Dougherty at 564, for the government to show that its position had a reasonable basis in both law and fact it must:
Second, the government must show that there exists a reasonable basis in law for the theory which it propounds. This is not to say the government need demonstrate that there is a substantial probability that the legal theory advanced by it will succeed. See House Reports, supra, at 11, 1980 U.S. Code Cong. & Ad.News, 4490.
Finally, the government must show that the facts alleged will reasonably support the legal theories advanced. Thus, having met these requirements, if the government's legal theory as applied to the facts reasonably supports the Secretary's position, even though the government may not have ultimately prevailed, then the government will have proven that the 'position of the United States was substantially justified'."
I conclude that the government has met these three criteria and has established a reasonable ...