dissenting:
The majority reaches a result here that I believe undermines an act of Congress with an entirely salutary purpose: leveling the playing field between the average citizen and a government with vast litigation resources. The Equal Access to Justice Act (“EAJA”) aims to insure that the government does not take unjustified positions when it hauls a citizen into court and, if it does, that the citizen can recover attorney’s fees.
The record before us contains a district court finding that the United States Customs Service took an unjustified position when it sought to compel the production of documents it already possessed. The question here is whether that finding is trumped by the district court’s other finding that the government was substantially justified in seeking the production of the remaining documents. In other words, if the government takes an unjustified position as to part of its litigation posture, can it avoid fee shifting (which would clearly be called for if no other issue were involved) by taking a justified position with respect to other issues?
The majority feels that Commissioner, I.N.S. v. Jean, 496 U.S. 154, 110 S.Ct. 2316, 110 L.Ed.2d 134 (1990), compels an answer in the affirmative. I respectfully disagree. In Jean, the Supreme Court explained that the “narrow” issue was “whether the prevailing party is ineligible for fees for the services rendered during [a fee] proceeding unless the government’s position in the fee litigation itself is not ‘substantially justified.’ ” Id. at 156, 110 S.Ct. at 2317. The Supreme Court concluded that a prevailing party is not ineligible for fees simply because the government’s position in the fee proceeding was substantially justified.
I read Jean to suggest that a case should not be considered in cabined phases (pre-litigation, litigation, fee proceeding) in deciding whether fees are warranted. Its rationale, in part, is that to do so would not further the purpose of the EAJA: “to eliminate for the average person the financial disincentive to challenge unreasonable governmental actions.” Id. at 163, 110 S.Ct. at 2321. As the Supreme Court explained, “[i]f the Government could impose the cost of fee litigation on prevailing parties by asserting a ‘substantially justified’ defense to fee applications, the financial deterrent that the EAJA aims to eliminate would be resurrected.” Id. at 164, 110 S.Ct. at 2322.
The issue in this case is quite distinct from that facing the Supreme Court in Jean, and the rationale for not partitioning proceedings into phases supports the practice of awarding partial fees where the government has advanced multiple positions during litigation, some of which are not substantially justified. Permitting the award of fees under such circumstances would further the purpose of encouraging citizens to challenge unreasonable governmental action by eliminating the financial disincentive to challenge unreasonable governmental action when it is intertwined with reasonable conduct on the government’s part.
Further, although the Supreme Court found that Congress’ use of the word “position” in the singular suggests that federal courts are to make “one threshold determination for the entire civil action,” id. at 159,110 S.Ct. at 2319, it is clear from the EAJA’s legislative history, upon which the Supreme Court relied, that Congress was only concerned that litigation not be considered in phases in determining whether a fee award is warranted. Specifically, the EAJA’s legislative history indicates that Congress intended *377“to provide for attorney fees when an unjustifiable agency action forces litigation, and the agency then tries to avoid such liability by reasonable behavior during litigation.” Id. at 159 n. 7, 110 S.Ct. at 2319 n. 7 (quoting H.R.Rep. No. 98-992, pp. 9,13 (1984)).
Had Congress intended that fees be awarded only when the government’s overall litigation position is not substantially justified, or when its substantially justified litigation positions on particular issues are outweighed by its unjustified positions on other issues, it could have easily said so. As the Third Circuit noted in Goldhaber v. Foley, 698 F.2d 193, 196-97 (3rd Cir.1983):
Those references to “position” ... not being directed to the problem we face here, are of little assistance in determining what is embraced within a finding of “substantial justification” when two or more independently dispositive claims are asserted by a plaintiff. It is apparent ... that neither the Act by its terms nor its legislative history appears to contemplate multiple positions of the government.
Looking, therefore, to the underlying purpose of the [EAJA], ... this purpose requires that the words “the position of the United States” must be understood to refer to the government’s defense against each of the plaintiffs claims presented before the trial court. In so holding, we are guided by the Act’s governing principle that the United States should pay those expenses which are incurred when the government presses unreasonable positions during litigation....
[It would be] incongruous to deny fees to a prevailing party who identifies and defeats one unreasonable government position simply because the government has substantial justification for defending a second claim in the same action.
Although the Third Circuit retreated from its position in Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123, 131 (3rd Cir.1993), decided after Jean, I believe the Third Circuit had it right in Goldhaber and should not have retreated from its position in Hanover.
In sum, we are dealing with a statute whose very purpose is to compensate deserving litigants who face government agencies found to have taken an unreasonable position. The legislative history of the EAJA teaches us that Congress did not want the government to be able to take an unreasonable position, discover the unreasonableness of its position, and then avoid having to pay attorney’s fees by behaving reasonably during the rest of the litigation. I do not believe Jean changes that.