Page:Baker Botts L.L.P. v. ASARCO LLC.pdf/20

140 party in any civil action … brought by or against the United States.” Id., at 158 (quoting 28 U. S. C. §2412(d)(1)(A) (1988 ed.)). The provision did not mention fee-defense workbut the Court nonetheless held that such work was compensable. See Jean, supra, at 160–166. I would do the same here.

The majority focuses on particular words that appear in the Equal Access to Justice Act: “fees,” “prevailing party,” and “civil action.” See. But neither the term “fees” nor the phrase “prevailing party” relates specifically to fee-defense work. And even assuming that the phrase “civil action” is more easily read to cover fee litigation than the phrase “actual, necessary services,” that difference here is beside the point. I find the necessary authority in the words “reasonable compensation,” not the words “actual, necessary services.” In order to ensure that each professional is paid reasonably for compensable services, a court must have the discretion to authorize pay reflecting fee-defense work.

The majority asserts that by interpreting the phrase “reasonable compensation,” I have effectively “excise[d] the phrase ‘for actual, necessary services rendered’ from the statute.” But the majority misunderstands my views. The statute permits compensation for fee-defense work as a part of compensation for the underlying services. Thus, where fee-defense work is not necessary to ensure reasonable compensation for some underlying service, then under my reading of the statute, a court should not consider that work when calculating compensation.

Indeed, to the extent that the majority bases its decision on the specific words of §330(a), its argument seems weak. The majority disregards direct statutory evidence that Congress intended to give courts the authority to account for reasonable fee-litigation costs. Section 330(a)(6) states that “[a]ny compensation awarded for the preparation of a fee application shall be based on the level and skill reasonably required to prepare the application.” This provision does not