Page:United States Reports 502 OCT. TERM 1991.pdf/305

 502us1$12J 08-21-96 15:26:33 PAGES OPINPGT

Cite as: 502 U. S. 129 (1991)

147

Blackmun, J., dissenting

of my offices appeal every adverse decision regardless of the merits,. . . [and] that others refuse to have stipulations”); Note, Applying the Equal Access to Justice Act to Asylum Hearings, 97 Yale L. J. 1459, 1471 (1988) (describing an INS pattern of “vigorous opposition to adjudicated asylum claims, often irrespective of the merits”). Finally, the stakes for the alien involved in deportation proceedings—particularly in asylum cases—are enormous. See, e. g., INS v. Cardoza-Fonseca, 480 U. S. 421, 449 (1987). Under these circumstances, application of the EAJA to deportation proceedings clearly would fulfill the statute’s purposes. The Court states two reasons, however, for recanting on its recent recognition in Hudson that EAJA is to be read “in light of its manifest purpose.” The first is its argument that “the plain language of the statute” compels the Court to deny fees to Ardestani. This argument, as I already have suggested above, is not persuasive, and is in any event less persuasive than the similar argument rejected in Hudson. The additional reason the Court gives for departing from Hudson is the canon of statutory interpretation that waivers of sovereign immunity must be strictly construed. For good reason, this argument has not been accepted in any other EAJA case decided by this Court. The purposes of the canon are to protect the public fisc and to provide breathing space for legitimate Government action that might be deterred by litigation. But these purposes are already fulfilled by the EAJA’s requirement that even prevailing parties may not be awarded fees unless the Government’s position lacked substantial justification. The Report of the Senate Committee on the Judiciary makes clear that this provision was adopted precisely in order to reduce the bill’s cost and to prevent “a ‘chilling effect’ on proper Government enforcement efforts.” S. Rep. No. 96–253, p. 2 (1979). Congress therefore, in effect, already has applied the maxim on which the Court relies. The Court’s reapplication of that