*

Honorable Arthur L. Alarcón, Senior U.S. Circuit Judge for the Ninth Circuit, sitting by

designation. 

 1

In 1992, John W. Jones, Jr. was the probate judge for Dallas County. W.D. Nichols was the

Sheriff of Dallas County and Roy Moore was a member of the Dallas County Commission. John

T. Lide is the white candidate who contested the vote count for District 2 in the November 1992

general election. The other defendants listed in the original action did not apply for attorneys'

fee reimbursement under the EAJA. 

United States Court of Appeals,

Eleventh Circuit.

No. 96-7016.

UNITED STATES of America, Plaintiff-Appellant,

Curtis Williams, Intervenor-Plaintiff,

v.

John W. JONES, Jr., W.D. Nichols, Roy Moore, In his official capacity as member of the Dallas

County Commission, John Lide, Defendants-Appellees,

W.A. Kynard, Gwendolyn Mock Shaw, Eskine Minor, In his official capacity as member of the

Dallas County Commission, Perry Varner, In his official capacity as member of the Dallas County

Commission, Curtis Williams, In his official capacity as member of the Dallas County Commission,

et al., Defendants.

Oct. 29, 1997.

Appeal from the United States District Court for the Southern District of Alabama. (No. 93-0745-

CB-M), Charles R. Butler, Judge.

Before ANDERSON and COX, Circuit Judges, and ALARCÓN*

, Senior Circuit Judge.

ALARCÓN, Senior Circuit Judge:

The United States appeals from the district court's order granting John W. Jones Jr., W.D.

Nichols, John T. Lide, and Roy Moore (collectively "the Defendants")1 attorneys' fees, costs, and

expenses under the Equal Access to Justice Act (collectively "EAJA fees"). The district court based

the award of EAJA fees on its determination that the United States' claim that the conduct of the

defendants violated the Fourteenth and Fifteenth Amendments was not substantially justified. The

United States contends that the district court erred in awarding EAJA fees because the evidence in

the record demonstrates that it had a reasonable basis to believe that the Defendants violated the

Fourteenth and Fifteenth Amendments. The United States further argues that, because the district
2

court concluded the claim filed pursuant to the Voting Rights Act was substantially justified, it erred

in awarding EAJA fees in view of the fact that "both claims involved the same factual bases, and

the legal issues were intertwined." Appellant's Brief at 23. We affirm because we conclude that

where related legal theories are intertwined in a complaint that relies on the same facts, a district

court does not abuse its discretion when it orders the United States to reimburse a prevailing

defendant for all the work performed in presenting the defense, if, after viewing the case as a whole,

the court determines that one of the legal theories was not substantially justified.

I

Almost twenty years ago, the United States initiated litigation challenging the method

employed by Dallas County for the election of persons to the Dallas County Commission. In the

first action filed on October 19, 1978, the United States alleged that the "at-large election of County

Commission members unconstitutionally dilute[s] or cancel[s] the voting strength of the black

population in violation of the Fourteenth and Fifteenth Amendments to the United States

Constitution and in violation of Section 2 of the Voting Rights Act of 1965, 42 U.S.C. §§ 1971,

1973." United States v. Dallas County Comm'n, 548 F.Supp. 875, 877 (S.D.Ala.1982). The district

court held that the United States "failed to meet its burden of proof to establish that the at-large

election of members of the county governing body of Dallas County, Alabama is violative of Section

2 of the Voting Rights Act of 1965, 42 U.S.C. § 1973, as amended, or 42 U.S.C. § 1971(a)(1)." Id.

at 916. This court vacated the district court's judgment because it concluded that some of its

findings were clearly erroneous. The matter was remanded for reconsideration in light of this court's

opinion. United States v. Dallas County Comm'n, 739 F.2d 1529, 1541 (11th Cir.1984).

After conducting an evidentiary hearing upon remand, the district court held that "the at-large

election scheme utilized in the election of members for the Dallas County Commission violated

Section 2 of the Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973." United States v. Dallas

County Comm'n, 636 F.Supp. 704, 710 (S.D.Ala.1986). After conducting another hearing in which

several redistricting plans were reviewed, the district court mandated that the Dallas Commission
 2

This court ordered the district court to adopt a redistricting plan drafted by Dr. Allan J.

Lichtman. Dr. Lichtman's plan,

"consists of five single-member districts, two of which contain black voter

majorities of 72.4-percent and 70-percent; two white voter majority districts of

65-percent and 64-percent; and finally a fifth swing district containing a black

voter majority of 61.3-percent."

United States v. Dallas County Comm'n. 850 F.2d at 1441. 

3

adopt a plan that would divide the county into two predominantly black and two predominantly

white single-member districts, with the probate judge, to be elected at-large, serving as chairman

ex officio of the Commission. United States v. Dallas County Comm'n, 671 F.Supp. 1337, 1339-40

(S.D.Ala.1987).

The United States appealed from that portion of the district court's judgment that included

the probate judge as a voting member of the Dallas County Commission. In reversing the judgment,

this court held that the inclusion of the probate judge as a voting member violated Section 2 of the

Voting Rights Act of 1965, as amended, 42 U.S.C. § 1973. The district court was instructed to

direct the Dallas County Commission to create a single-member fifth "swing district" consisting of

a black population of at least 61.3 %.2 United States v. Dallas County Comm'n, 850 F.2d 1430, 1432

(11th Cir.1988) (citing United States v. Dallas County Comm'n, 850 F.2d 1433, 1440-42 (11th

Cir.1988)).

On December 27, 1988, Dallas County conducted a special election for the office of county

commissioner in which the county was divided into five single-member districts. Three black and

two white persons were elected to the Dallas County Commission.

On March 19, 1990, the United States and the Dallas County Commission filed a joint

motion requesting a declaration regarding whether the term of office for the commissioners elected

in the 1988 special election was for two or four years. Interpreting an Alabama statute that required

the election for the Dallas County Commission be held in 1990, the district court held that the term

of office for the commissioners elected at the 1988 special election was two years, and, therefore,

an election in 1990 would be required for a full four-year term. United States v. Dallas County
 3

The redistricting plan created five single-member districts. The percentage of blacks in

District 1 was 82.4%. The percentage of blacks in district 2 was 65.4%. District 3 contained

76.7% black voters. District 4 had 69% white voters. The percentage of whites in District 5 was

66.2%. District 2 was the "swing district" in this plan. United States v. Jones, 846 F.Supp. 955,

957 (S.D.Ala.1994). 

 4The Voting Rights Act provides that

Whenever a State or political subdivision ... shall enact or seek to administer any

voting qualification or prerequisite to voting, or standard, practice, or procedure

with respect to voting different from that in force or effect ... such State or

subdivision may institute an action in the United States District Court for the

District of Columbia for a declaratory judgment that such qualification,

prerequisite, standard, practice, or procedure does not have the purpose and will

not have the effect of denying or abridging the right to vote on account of race or

color ... Provided, That such qualification, prerequisite, standard, practice, or

procedure may be enforced without such proceeding if the qualification,

prerequisite, standard, practice, or procedure has been submitted by the chief legal

officer or other appropriate official of such State or subdivision to the Attorney

General and the Attorney General has not interposed an objection within sixty

days after such submission, or upon good cause shown, to facilitate an expedited

approval within sixty days after such submission, the Attorney General has

affirmatively indicated that such objection will not be made.

42 U.S.C. § 1973c. 

4

Comm'n, 904 F.2d 26, 27 (11th Cir.1990). In its appeal to this court, the United States argued that

the term of office for the commissioners elected in 1988 should be four years. This court agreed and

held that the term of office for the commissioners elected in 1988 was four years. Id. at 28.

II

On March 20, 1992, the Dallas County Commission adopted a redistricting plan to be used

for the primary and general elections. The plan provided for three single-member districts with

black majorities, and two with white majorities.3

 The redistricting plan was submitted to the

Attorney General pursuant to 42 U.S.C. § 1973c.4 The redistricting plan was approved by the

Attorney General on May 12, 1992.

Pursuant to Alabama law, the Board of Registrars ("Board") has the duty of compiling and

certifying the list of voters to the probate judge. In accordance with Alabama law, the Board

submitted the list of persons eligible to vote in the 1992 primary and general election for the office

of Dallas County Commissioner to Judge Jones, the Dallas County probate judge. Ala.Code § 17-4-
 5

The redistricting plan called for a black majority of 65.4%. The misallocation of white voters

reduced the black voting population of District 2 to 65%. This number was greater than the

61.3% swing district ordered by the court in United States v. Dallas County Comm.'n, 850 F.2d

at 1441. 

5

129. Two members of the Board were black, and one was white. Judge Jones published the list of

qualified voters certified by the Board.

On May 20, 1992, eight days after the Attorney General approved the redistricting plan,

Judge Jones and the chairman of the Board of Registrars appeared before the Commission to express

their concern regarding whether there would be sufficient time to notify those electors whose district

had been changed by the redistricting plan approved by the Attorney General of the United States.

The Commission agreed to use county employees to assist in the identification of the residents

whose districts had been changed. One county employee volunteered to go door-to-door to notify

voters of the changes in the configuration of the districts.

It is undisputed that errors were made in the voter lists compiled by the Board for the five

districts. For example, the predominantly white residents of the Pine Forest subdivision were

erroneously permitted to vote in District 2, although the approved redistricting plan assigned them

to District 5.5

The primary election was held on June 2, 1997. John Lide, who is white and D.L. Pope, the

incumbent commissioner for District 2, who is black, received the highest number of votes on the

Democratic party ballot. Neither won a majority of the votes. Mr. Lide won the Democratic Party

nomination by 300 votes in a run-off election. Shortly after the primary election, Mr. Pope accused

Edgar A. Vancil, the only white member of the Board of Registrars, of placing additional white

voters in District 2. The Commission took no action to investigate Mr. Pope's allegation.

In August 1992, Curtis Williams, a black man, qualified to be on the ballot for the November

3, 1992 general election as an independent candidate for the position of commissioner for District

2. His opponent was Mr. Lide. The initial tally of the votes cast in District 2 showed that Mr.

Williams defeated Mr. Lide by four votes. Judge Jones, however, refused to certify Mr. Williams
 6

Under Alabama law, if an elector's name is not on the voter's list, he or she cannot vote

unless he or she votes a challenged ballot. Ala.Code § 17-4-127. "If a challenged elector

subscribes to the oath and properly identifies himself, his ballot must be received and counted as

if he had not been challenged." Hawkins v. Persons, 484 So.2d 1072, 1073 (Ala.1986). 

6

as the winner because one poll watcher reported that the vote totals for his polling site were incorrect

because of the failure to include challenged ballots.6

On November 6, 1992, Mr. Williams filed a petition for a writ of mandamus in the Circuit

Court of Dallas County in which he sought an order directing Judge Jones and his co-defendants to

canvass and certify the returns from the general election. The court granted the petition on

November 13, 1992. Relying on Reed v. City of Montgomery, 376 So.2d 708, 711 (Ala.1979), the

Dallas County Circuit Court held that under Alabama law the duty of the probate judge and the

Board of Registrars was confined to adding up the votes, without conducting an inquiry into fraud

or irregularity. Williams v. Jones, No. CV-92-365, slip op. at 3 (Ala.App. Nov. 3, 1992).

On November 17, 1992, Mr. Lide filed an action in state court contesting the election results.

Mr. Lide contended that the vote total was inaccurate because it did not include twenty-six

challenged ballots cast in the commissioner contest for District 2. On April 8, 1993, the Dallas

County circuit court held that Mr. Lide had won the election by ten votes. The Alabama Supreme

Court affirmed the decision on October 8, 1993. Williams v. Lide, 628 So.2d 531 (Ala.1993). Mr.

Lide took office on October 26, 1993.

III

The United States filed this action in the district court on September 10, 1993. The United

States alleged in its complaint that the Defendants violated section 2 of the Voting Rights Act, 42

U.S.C.1973, and the Fourteenth and Fifteenth Amendments to the United States Constitution by

permitting more than fifty white voters who did not reside in District 2 to vote in that district. The

complaint also alleges that,

[b]ecause voting patterns in Dallas County are racially polarized, the defendants actions

deprive black voters of District 2 of an equal opportunity to participate effectively in the

political process and to elect their preferred candidate to the county commission.
7

On March 15, 1994, the district court entered judgment against the United States on each

claim. United States v. Jones, 846 F.Supp. 955, 955-67 (S.D.Ala.1994). The court held that the

United States had failed to prove a violation of section 2 of the Voting Rights Act or the Fourteenth

or Fifteenth Amendments. Id. at 956. The court ruled that because "the defendants' actions in

allowing the 52 out-of-district voters to cast ballots in District 2 were unwitting errors, and a mistake

cannot be intentionally discriminatory, the court necessarily finds, that there is no constitutional

claim." Id. at 963-64. The district court also determined that the inadvertent assignment of voters

to the wrong district did not constitute a violation of the Voting Rights Act. Id. at 966.

The United States appealed from that portion of the judgment that denied its claim for relief

under the Voting Rights Act. No appeal was taken from the determination that it had failed to prove

a deprivation of rights preserved by the Fourteenth and Fifteenth Amendments.

After reviewing the record for clear error, this court concluded that "the misallocation of

voters was not the result of any deliberate act by defendants." United States v. Jones, 57 F.3d 1020,

1023 (11th Cir.1995). We summarized the evidence in the record as follows:

Under the redistricting plan, residents along the eastern border of District 2 who lived

outside Selma city limits were to vote in District 2. Most of the challenged voters lived in

the Pine Forest subdivision and were included in District 2 because of a years-old incorrect

map which showed all of Pine Forest to be outside Selma's city limits. Others lived on the

odd-numbered side of Wright Drive and were erroneously included in District 2 because of

the peculiar way residences on the street are numbered. The remaining contested voters also

lived just outside the District 2 line and their inclusion in District 2 resulted from similar

errors. In light of these facts, we agree with the district court's conclusion that the

misallocation were "run-of-the-mill mistakes" and "are no more than the type of errors one

would expect in the normal course of any election, and especially in the circumstances

surrounding the necessity of the Board of Registrars focusing in a very short time on

relocating some 2,000 to 3,000 voters in the new District 2 alone."

Id. (quoting United States v. Jones, 846 F.Supp. 955, 959, 963 (S.D.Ala.1994)). In affirming the

judgment, we observed that "Section 2 of the Voting Rights Act does not provide a forum for

garden-variety election disputes such as this." Id. at 1025. The Defendants filed a motion in this

court for EAJA fees incurred in defending the district court's judgment. The request was denied on

September 28, 1995.

IV
 7

Section 2412(d)(1)(A) provides in pertinent part:

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. 

8

Mr. Lide and Mr. Moore filed a motion in the district court on August 4, 1995, pursuant to

28 U.S.C. § 2412(d)(1)(A)7 for EAJA fees incurred in the defense of this action in the proceedings

conducted in the district court. Judge Jones and Sheriff Nichols filed a similar motion on August

7, 1995. The Defendants argued that they were entitled to EAJA fees because neither the

constitutional nor the statutory claims were substantially justified. The United States did not file

an opposition to these motions.

The district court awarded EAJA fees in the amount of $21,168.75 to Mr. Lide and Mr.

Moore, and $41,703.74 to Judge Jones and Sheriff Nichols. In addition, the court awarded fees,

costs, and expenses. In its December 7, 1995 order, the court held that "[t]he Government bears the

burden of showing all of its positions were substantially justified under the EAJA to avoid

responsibility for defendants' attorneys' fees and expenses." (emphasis added).

After receiving notice of the court's December 7, 1995 order, the United States filed a motion

for reconsideration and an opposition to the Defendants' request for EAJA fees. The United States

explained that the failure to file a timely opposition was due to the fact that the trial attorneys did

not receive a copy of the Defendants' motions. The district court granted the motion for

reconsideration.

On August 6, 1996, the district court issued a new order granting the Defendants' motions

for fees. The district court found that the Voting Rights Act claim was substantially justified. The

court based this conclusion on the fact that, by directing a majority of their brief to an argument that

the constitutional claim was not substantially justified, "the defendants apparently concede that the

Government's position as to the Voting Rights Act was substantially justified." The court also stated
9

that "the Eleventh Circuit implicitly found that the government's position in its Voting Rights Act

claim ... had a reasonable basis in law and fact and was therefore substantially justified."

The district court also found, however, that the constitutional claim was not substantially

justified. The court held that, because the United States had failed to prove that all of its positions

in this action were substantially justified, the United States must reimburse Mr. Lide and Mr. Moore

in the amount of $22,822.55, and Judge Jones and Sheriff Nichols in the amount of $50,213.19. The

district court based its ruling on the finding that the Voting Rights Act claim and the constitutional

claim involved the same factual bases, and the legal issues asserted by the United States were

intertwined. The United States has timely appealed the award of fees pursuant to the EAJA.

V

The United States seeks reversal of the order granting EAJA fees to Judge Jones, Sheriff

Nichols, Mr. Lide, and Mr. Moore on the following grounds:

1. The district court abused its discretion in concluding that the United States' claim that the

Defendants violated the Fourteenth and Fifteenth Amendments was not substantially justified.

2. In its September 28, 1995 order denying the Defendants' motion for EAJA fees incurred

in responding to the appeal filed by the United States, this court implicitly determined that the

Voting Rights Act claim was substantially justified.

3. The district court erred in making separate and independent assessments as to whether the

United States' statutory and constitutional claims were substantially justified, instead of examining

the reasonableness of its position in pursuing the litigation as a whole. We discuss each of these

contentions in separate sections.

A. THE CONSTITUTIONAL CLAIM WAS NOT SUBSTANTIALLY JUSTIFIED.

 The United States contends that it presented sufficient evidence to demonstrate that there

was a reasonable basis for its position that the Defendants discriminated against the black voters by

permitting more than fifty white persons who did not reside in District 2 to vote in that district in
10

the November 1992 election. The district court concluded that "there was no reasonable basis in law

and fact for the constitutional claims advanced by the government."

The Supreme Court has instructed that the question whether the position of the United States

was not substantially justified is reviewed for abuse of discretion. Pierce v. Underwood, 487 U.S.

552, 557-563, 108 S.Ct. 2541, 2545-46, 101 L.Ed.2d 490 (1988). The Court reasoned that a trial

court is better positioned than an appellate court to decide whether there was a reasonable basis for

the prosecution of a civil action by the United States. Id. at 559-60, 108 S.Ct. at 2547-48. Where

the question turns on the evidence presented to support the allegations in the complaint, "the district

court may have insights not conveyed by the record into such matters as whether particular evidence

was worthy of being relied upon, or whether critical facts could easily have been verified by the

Government." Id.

 "The government's position is substantially justified under the EAJA when it is "justified

to a degree that would satisfy a reasonable person'—i.e. when it has a reasonable basis in both law

and fact." United States v. Douglas, 55 F.3d 584, at 588 (11th Cir.1995) (quoting Pierce, 487 U.S.

at 565, 108 S.Ct. at 2550). "The government bears the burden of showing that its position was

substantially justified." City of Brunswick, Ga. v. United States, 849 F.2d 501, 504 (11th Cir.1988).

We begin our analysis of the question whether the United States' constitutional claim was

substantially justified by examining the complaint. The complaint alleges that "[i]n the November

1992 elections, defendants election officials permitted more than fifty (50) white voters who do not

reside in District 2 to cast ballots in the District 2 County Commission election." In a later passage,

the complaint alleges that "[b]ecause voting patterns in Dallas County are racially polarized, the

defendants' actions deprive black voters of District 2 in Dallas County of an equal opportunity to

participate effectively in the political process and to elect their preferred candidate to the county

commissioner." The complaint than asserts that "[t]he defendants' actions were undertaken for the

purpose and with the effect of discriminating against black voters in Dallas County." In the next

paragraph, the complaint sets forth the legal conclusion that "[t]he defendants' actions violate
11

Section 2 of the Voting Rights Act, 42 U.S.C.1973, and the Fourteenth and Fifteenth Amendments

to the United States Constitution."

No facts are alleged in the complaint to support the conclusion that the Defendants' purpose

in permitting white non-residents to vote in District 2 was to discriminate against black candidates.

At trial, Edgar A. Vancil testified that "[t]he misunderstanding about the voters in the Pine Forest

Subdivision was based on the use of the Board of Registrars of a commercially produced map of the

City of Selma, known as the "Merchant's Map' (Gov't. Ex. 48), which erroneously showed all of the

Pine Forest Subdivision to be just outside of Selma's southwest city limit, and thus properly included

in District 2." United States v. Jones, 846 F.Supp. 955, 959 (S.D.Ala.1994). This error was not

discovered until after the November 1992 election. Persons residing in the Pine Forest Subdivision

had been erroneously placed in the wrong voter registration list for years prior to the 1992 election.

Id. This error was also reflected in the 1992 registration list approved by the Board of Registrars,

which had a black majority. Mr. Vancil's testimony was not disputed or rebutted by the United

States.

The United States points to the fact that Judge Jones was a long-time friend of Mr. Lide, and

attended campaign fund raisers during his campaign for commissioner, as evidence of a purpose to

discriminate. The fact that a white elected county official knows other white candidates for political

office in a county of 48,000 persons does not support an inference of intentional discrimination

against blacks in publishing the voter registration list prepared by a Board of Registrars with a black

majority.

The United States also argues that the failure of the Defendants to take any corrective steps

after Commissioner D.L. Pope complained that white voters had impermissibly cast ballots in the

June primary election is proof of a motive to discriminate. This assertion ignores evidence produced

at trial through the testimony of Perry Varner, the County Commissioner for District 3. Varner, a

black man, testified that the three black members of the five-person commission voted in favor of

the redistricting plan for the June primary. The two white members voted against the plan. Mr.
12

Varner also testified that he did not report Mr. Pope's complaint to the United States Department of

Justice because "I personally thought he was angry because he was in the run-off and did not win

it right off." Jones, 846 F.Supp. at 961.

We are persuaded from our review of the record, and the district court's August 6, 1996

order, that the district court did not abuse its discretion in determining that the United States'

constitutional claim was not substantially justified.

B. THIS COURT'S DENIAL OF EAJA FEES ON APPEAL IS NOT DISPOSITIVE

 In its motion for reconsideration of the December 8, 1995 order granting EAJA fees to the

Defendants, the United States argued inter alia that reconsideration was needed "to conform this

court's ruling with the Eleventh Circuit Court of Appeals' denial of these defendants' motion for

EAJA fees incurred in the appeal of this case." The United States further maintained that "[t]he

Eleventh Circuit's denial of attorneys' fees and expenses is an implicit determination that the claims

and positions asserted by the United States were "substantially justified' or that "special

circumstances' militated against an award of attorneys' fees against the United States." In its

opposition to the Defendants' request for EAJA fees incurred on appeal, the United States requested

that the motion be denied either on the ground that its position regarding the statutory claim was

substantially justified, or that special circumstances were present which would make such an award

unjust.

This court's order regarding the Defendants' request for EAJA fees states succinctly:

"Appellee Ed Vancil's motion for attorneys' fees is denied. Appellees John Lide and Roy Moore's

motion for attorneys fees and expenses is denied. Appellees John W. Jones, Sr. and W.D. Nichols'

motion for attorneys' fees and expenses is denied."

This court did not explain the basis for the exercise of its discretion to deny the motion for

EAJA fees. It did not indicate whether it believed that the United States' appeal of the judgment on

its Voting Rights Act claim was substantially justified, or whether it concluded that special

circumstances existed that would render such an award unjust. As noted above, the district court,
 8

In this respect, the district court stated: "In any event, the Court believes that the Eleventh

Circuit implicitly found that the Government's position in its Voting Rights Act claim (i.e., that

the defendants' failure to act to correct the improper assignment of voters constituted a voting

"standard practice, or procedure' which violated the Act) had a reasonable basis in law and fact

and was therefore substantially justified." 

13

however, construed this court's order as an implicit finding that the statutory claim of the United

States was substantially justified.8

Because the United States asserted alternative arguments for denying the motion for EAJA

fees, we disagree with the district court's conclusion that this court's order can be construed as an

implicit determination that EAJA fees should not be awarded because the appellate position of the

United States was substantially justified. It is just as plausible to speculate that this court denied the

Defendants' request because it believed that special circumstances existed in this case that would

make an award of EAJA fees unjust.

Moreover, this court's order denying EAJA fees incurred in the appeal of the statutory claim

cannot be construed as establishing the law of the case regarding the question whether the claims

presented to the district court were substantially justified. This court explained the doctrine of the

law of the case in In re Justice Oaks II, Ltd., 898 F.2d 1544 (11th Cir.1990), in the following words:

This is a "rule of practice under which a rule of law enunciated by a federal court not only

establishes a precedent for subsequent cases under the doctrine of stare decisis, but [also]

establishes the law which other courts owing obedience to it must, and which it itself will,

normally apply to the same issues in subsequent proceedings in the same case."

Id. at 1550 n. 3 (quoting Morrow v. Dillard, 580 F.2d 1284, 1289 (5th Cir.1978 )) quoting 1B J.

Moore's Federal Practice ¶ 0.404[1] (2d ed.1974) (footnotes omitted (emphasis in original)). In its

summary denial of the motion for EAJA fees, this court did not purport to enunciate a principle of

law binding on the district court, nor did it attempt to announce the law of the circuit. The question

whether the position of the United States during the trial of this matter was substantially justified

was not presented to this court in the Defendants' request for expenses incurred in defending against

the United States' appeal.
14

We reject the argument of the United States "that this Court's denial of EAJA fees on the

Section 2 appeal established that the government's position on that issue was substantially justified."

Appellant's Brief at 18.

C. EAJA FEES MAY BE AWARDED BASED ON A REVIEW OF THE UNITED STATES'

POSITION IN THE CASE AS A WHOLE

 The United States contends that the district court erred as a matter of law in holding that "the

government cannot avoid responsibility for EAJA attorneys' fees and expenses unless it

demonstrates that all of its positions were substantially justified." The question whether the district

court correctly interpreted section 2412(d)(1)(A) and controlling legal precedent is subject to de

novo review. See Dysert v. United States Secretary of Labor, 105 F.3d 607, 609 (11th Cir.1997)

("The proper interpretation of a statute is a question of law that the court will review de novo on

appeal."). See also United States v. Rubin, 97 F.3d 373, 375 (9th Cir.1996) ("Interpretation of the

EAJA is a question of law reviewable de novo.").

The United States argues that "the district court should not have made separate and

independent assessments as to whether the United States' statutory and constitutional claims were

substantially justified." The district court relied on this court's decision in Myers v. Sullivan, 916

F.2d 659 (11th Cir. 1990) in support of its holding that the United States cannot escape

responsibility for the payment of fees under EAJA unless it demonstrates that all of its positions

were substantially justified. In Myers, this court stated:

If the district court concludes that the government's positions were substantially

justified—i.e., all of the government's arguments possessed a "reasonable basis both in law

and fact," Jean v. Nelson, 863 F.2d at 767, quoting Pierce v. Underwood, 487 U.S. at 565,

108 S.Ct. at 2550—then, notwithstanding the fact that the claimant ultimately prevailed in

the litigation, the claimant is not entitled to receive attorney's fees.

Id. at 667 (emphasis added). This court's decision in Myers was compelled by 28 U.S.C. §

2412(d)(1)(A), which provides that a prevailing party may be awarded EAJA fees in a civil action,

other than cases sounding in tort, in which the United States is a party "unless the court finds the

position of the United States was substantially justified or that special circumstances make an award

unjust." Accordingly, the district court did not err in concluding that the United States cannot
 9

The Defendants argue that in Myers v. Sullivan, 916 F.2d 659 (11th Cir.1990), a decision

filed by this court after Jean was published, this court reiterated the principle that "[u]nless the

government can establish that all of its positions were substantially justified, the claimant is

entitled to attorneys' fees." Id. at 666 n. 5. In Myers, however, the issue before the district court

was whether the defendants' motions for attorneys' fees were timely filed. Therefore, the

language quoted above from Myers was dictum. Myers does not resolve the question whether

the law of this circuit as reflected in Haitian Refugee Center is consistent with current Supreme

Court precedent. 

15

escape responsibility for paying EAJA fees unless all its claims were substantially justified. The

United States may be required to pay EAJA fees to a prevailing party for the work on any claim that

was not substantially justified. See Hensley v. Eckerhart, 461 U.S. 424, 440, 103 S.Ct. 1933, 1943,

76 L.Ed.2d 40 (1983) ("[W]here the plaintiff achieved only limited success, the district court should

award only that amount of fees that is reasonable in relation to the result obtained").

 In this matter, the claims filed by the United States were based on the same facts and the

legal issues were related. In Haitian Refugee Center v. Meese, 791 F.2d 1489 (11th Cir.1986), this

court held that where the position of the United States is substantially justified only as to some

counts, but is not justified as to the remaining causes of action, if each claim involves the same

factual bases, and the issues are intertwined, "the attorneys should be fully compensated for their

work on the case as a whole." Id. at 1500 (citing Hensley v. Eckerhart, 461 U.S. 424, 435, 103 S.Ct.

1933, 1940, 76 L.Ed.2d 40 (1983)). Here, the United States has properly conceded that "both claims

involved the same factual bases, and the legal issues were intertwined." Appellant's Brief at 23.

Thus, under the law of the circuit, as reflected in Haitian Refugee Center, we are compelled to

affirm the district court's award of EAJA fees.

The United States asserts that we can no longer follow this court's decision in Haitian

Refugee Center because of the Supreme Court's subsequent decision in INS v. Jean, 496 U.S. 154,

110 S.Ct. 2316, 110 L.Ed.2d 134 (1990).9

 We disagree. The Supreme Court's decision in Jean did

not overrule Hensley. Instead, as we explain below, the Court reaffirmed the views it expressed in

Hensley. Haitian Refugee Center faithfully applied the factors that should be considered,as

described in Hensley, in determining whether to award a fee to a prevailing party.
16

In the Jean case, the district court awarded EAJA fees to plaintiffs as prevailing parties in

a class action challenging the policies and practices of the INS in conducting exclusion proceedings

because it concluded that the United States' trial position was not substantially justified. Id. at 156,

110 S.Ct. at 2317-18. This court upheld the district court's findings that the plaintiffs had prevailed

on the merits of their claim and that the position of the United States was not substantially justified.

Jean v. Nelson, 863 F.2d 759, 768-69 (11th Cir.1988). This court remanded, however, for a

determination of the question whether the position of the United States regarding the proper fee to

be awarded was substantially justified. Id. at 779-80.

The Supreme Court granted certiorari. The Court characterized the issue before it as narrow,

namely, "whether the District Court must make a second finding of no "substantial justification'

before awarding respondents any fees for the fee litigation." Jean, 496 U.S. at 157, 110 S.Ct. at

2318. The United States argued in Jean that "unless the court finds that their position in the fee

litigation itself was not substantially justified, fees for any litigation about fees are not recoverable."

Id. In replying to this argument, the respondents contended that "fee litigation is a component part

of an integrated case and ... if the statutory prerequisites for an award of fees for prevailing in the

case are satisfied, the award presumptively encompasses services for fee litigation." Id.

The Court held that the fact that the EAJA refers to the position of the United States in the

singular "although it may encompass both the [INS's] prelitigation conduct and the Department of

Justice's subsequent litigation positions, buttresses the conclusion that only one threshold

determination for the entire civil action is to be made." Id. at 159, 110 S.Ct. at 2319. The Court

explained its holding as follows: "Any given civil action can have numerous phases. While the

parties' postures on individual matters may be more or less justified, the EAJA—like other

fee-shifting statutes—favors treating a case as an inclusive whole, rather than as atomized

line-items." Id. at 161-62, 110 S.Ct. at 2320.

In summarizing its views, the Court concluded its decision with the following words: "The

purpose and legislative history of the statute reinforce our conclusion that Congress intended the
17

EAJA to cover the cost of all phases of successful civil litigation addressed by the statute." Id. at

166, 110 S.Ct. at 2323.

In this matter, the district court awarded EAJA fees regarding a single phase of the litigation

i.e. the merits of the United States' complaint that the Defendants had deprived the black citizens of

District 2 "of an equal opportunity to participate effectively in the political process and to elect their

preferred candidate to the county commission" in violation of the Equal Protection Clause and the

Voting Rights Act of 1965. No question has been presented to this court regarding whether a

separate finding of substantial justification should have been made prior to any award of EAJA fees

for the work performed in litigating the motion for EAJA fees, and the motion for reconsideration

of the December 7, 1995 order. The question we must address is whether a district court may award

EAJA fees to a prevailing party if it determines, from viewing the case as an inclusive whole, as

required by Jean, Id. at 161-62, 110 S.Ct. at 2320-21, that the overall position of the United States

was not substantially justified, although one of the legal theories it asserted was substantially

justified.

Critical to a resolution of this question is the fact that the posture of a defendant in a civil

trial differs significantly from that of the plaintiff. The plaintiff is the master of the complaint. The

plaintiff selects the claims that will be alleged in the complaint. Some may be substantially justified,

others may not. The plaintiff may abandon some claims by an appropriate motion, or may offer no

proof at trial to meet its burden of producing evidence in support of an element of a cause of action.

By issuing a summons, the plaintiff can force the defendant to appear in court involuntarily

to mount a defense to each of the causes of action pleaded in the complaint. To avoid an adverse

judgment, the defendant must disprove each allegation, whether justified or unjustified, because

"absent official notice that it was meritless, the allegation would not disprove itself." Alphin v.

National Transp. Safety Bd., 839 F.2d 817, 822 (D.C.Cir.1988). Where, as here, the factual bases

are the same, and the legal issues are intertwined, the defendant must fight each claim with the same

trial preparation and legal research. When the defendant is the prevailing party on each intertwined
18

claim, and one claim is substantially justified, but the other is not, it would be unfair not to

reimburse defendants for the EAJA fees needed to combat the whole case presented by the United

States. We hold therefore that the district court did not abuse its discretion in awarding EAJA fees

for all the work required to defend against each of the United States' claims.

Our view that the district court did not abuse its discretion in awarding EAJA fees to a

prevailing defendant where the United States has filed a complaint that relies on a common core of

facts and related legal theories is supported by the Supreme Court's reasoning in Hensley v.

Eckerhart, 461 U.S. 424, 103 S.Ct. 1933, 76 L.Ed.2d 40 (1983). In Hensley, the plaintiffs filed a

three-count complaint. The district court concluded that plaintiffs had prevailed on some but not

all of its claims. The district court refused to eliminate from the award the time spent in

unsuccessful claims. Id. at 428, 103 S.Ct. at 1936-37.

The Supreme Court held that a plaintiff should not be awarded EAJA fees for work in an

unsuccessful claim that is not related to the claims in which he or she prevailed. The Court also

instructed, however, that a district court should award full compensation for the defense of claims

that involve a common core of facts or related legal theories even if a party seeking an award of

EAJA fees did not prevail on every contention raised in the action. Id. at 434-35, 103 S.Ct. at 1939-

40. The Court explained its holding as follows:

In some cases a plaintiff may present in one lawsuit distinctly different claims for

relief that are based on different facts and legal theories. In such a suit, even where the

claims are brought against the same defendants—often an institution and its officers, as in

this case—counsel's work on one claim will be unrelated to his work on another claim.

Accordingly, work on an unsuccessful claim cannot be deemed to have been "expended in

pursuit of the ultimate result achieved." Davis v. County of Los Angeles, 8 E.P.D., at 5049.

The congressional intent to limit awards to prevailing parties requires that these unrelated

claims be treated as if they had been raised in separate lawsuits, and therefore no fee may

be awarded for services on the unsuccessful claim.

It may well be that cases involving such unrelated claims are unlikely to arise with

great frequency. Many civil rights cases will present only a single claim. In other cases the

plaintiff's claims for relief will involve a common core of facts or will be based on related

legal theories. Much of counsel's time will be devoted generally to the litigation as a whole,

making it difficult to divide the hours expended on a claim-by-claim basis. Such a lawsuit

cannot be viewed as a series of discrete claims. Instead the district court should focus on the

significance of the overall relief obtained by the plaintiff in relation to the hours reasonably

expended on the litigation.
19

Where a plaintiff has obtained excellent results, his attorney should recover a fully

compensatory fee. Normally this will encompass all hours reasonably expended on the

litigation, and indeed in some cases of exceptional success an enhanced award may be

justified. In these circumstances the fee award should not be reduced simply because the

plaintiff failed to prevail on every contention raised in the lawsuit. See Davis v. County of

Los Angeles, supra, at 5049. Litigants in good faith may raise alternative legal grounds for

a desired outcome, and the court's rejection of or failure to reach certain grounds is not a

sufficient reason for reducing a fee. The result is what matters.

Id.

Thus under Hensley, a plaintiff who has prevailed against the United States on one claim

may recover for all the hours reasonably expended on the litigation even though he or she failed to

prevail on other claims involving a common core of facts or related legal theories. We see no

principled basis for reaching a different result when it is the defendant who is seeking EAJA fees

for work performed in defending against claims that are factually or legally intertwined.

In the instant matter, the Defendants prevailed on each of the claims filed by the United

States. Additionally, the United States' claims involved the same factual basis, and the legal issues

were closely related. The fact that the district court found that the statutory claim was substantially

justified would not be a sufficient reason for reducing the fee award for the time counsel devoted

to defending against each of the related claims.

As noted previously, the district court relied on this court's decision in Haitian Refugee

Center v. Meese as authority for its determination that it had the authority to reimburse the

Defendants for all the EAJA fees incurred in defending against the claims filed by the United States.

In Haitian Refugee Center, this court based its decision on the rationale set forth in Hensley

regarding the awarding of EAJA fees where the complaint contains multiple counts involving the

same factual bases or related legal issues. This court stated in Haitian Refugee Center: "In such

cases the "lawsuit cannot be viewed as a series of discrete claims' and the attorneys should be fully

compensated for their work in the case as a whole." 791 F.2d at 1500 quoting Hensley v. Eckerhart,

461 U.S. at 434, 103 S.Ct. at 1939-40.

The Court did not overrule Hensley in Jean. To the contrary, the Court stated: "[O]nce a

private litigant has met the multiple conditions for eligibility for EAJA fees, the district court's task
20

of determining that fee is reasonable is essentially the same as that described in Hensley." Jean, 496

U.S. at 161, 110 S.Ct. at 2320. Hensley describes the duty of a district court when faced with a

request for EAJA fees by a party that prevailed on some of its claims, but did not prevail on the

others. Jean involves a discrete issue, i.e., must the district court make a second determination of

reasonable justification for the position of the United States at the "fees for fees" phase of the case.

Thus, Jean has no application to the question presented in this case. Accordingly, we are compelled

to apply the Court's reasoning in Hensley to the instant case.

 The United States maintains that the district court erred "by separately examining the

government's Section 2 and constitutional claims in addressing the Defendants' request for attorneys'

fee under the EAJA." Appellant's opening brief at 31-32. The United States primarily relies on

United States v. Rubin, 97 F.3d 373 (9th Cir.1996) and Hanover Potato Products, Inc. v. Shalala,

989 F.2d 123 (3rd Cir.1993) as authority for this proposition. Neither case supports the United

States' argument. The United States has also cited a number of other cases that have applied or cited

the Jean case. We do not discuss them here because none of them are relevant to the duty of a trial

court regarding the award of EAJA fees when the factual bases for the claims of the United States

are the same and the real issues are related.

In United States v. Rubin, 97 F.3d 373 (9th Cir.1996), the district court denied EAJA fees

to the prevailing defendant in an action to enforce an administrative summons. The district court

found that the United States' attempt to compel production of documents of which it had duplicates

was not substantially justified. Id. at 375. The district court refused to award any EAJA fees based

on its finding that the United States was substantially justified in seeking production of other

documents that were not in its possession. Id. Relying on Jean, the Ninth Circuit concluded that "the

district court did not abuse its discretion either in treating the case as a whole or in determining that

the position of the government was, as a whole, substantially justified." Id. at 376. In Rubin, as in

the matter before this court, the district court separately examined the positions asserted by the

United States to determine whether they were substantially justified.
21

In Hanover Potato Products, Inc. v. Shalala, 989 F.2d 123 (3rd Cir.1993), the district court

found one argument presented by the United States substantially justified its position and denied

EAJA fees. The district court did not consider whether the other defenses asserted by the United

States were substantially justified. Id. at 128-31. In reversing the denial of EAJA fees, the Third

Circuit held that "a district court must evaluate every significant argument made by an agency as

part of its EAJA fee evaluation, to determine if the argument is substantially justified. This is

necessary to permit us to review a district court's decision and determine whether, as a whole, the

Government's position was substantially justified." Id. at 131. Thus, contrary to the position of the

United States in this appeal that it is error for the district court to assess each argument asserted by

the United States in support of its claim or claims, in the Third Circuit, a district court must make

a separate finding regarding the substantial justification for each separate defense asserted by the

United States.

As required by Hensley, the district court in this matter declined to view the claims filed by

the United States as discrete claims because they are predicated on the same facts and the legal

issues are intertwined. After reviewing the work of defense counsel in the case as a whole, the court

declined to limit the award of EAJA fees to the attorney hours expended in defending against the

constitutional claim because of its finding that the statutory claim was justified. The district court

did not err in reimbursing the Defendants for the work entailed in defending against both claims.

CONCLUSION

This is a very troubling case. Over four years ago, the United States filed this action against

Dallas County public officials accusing them of purposefully discriminating against black voters in

order to deny them the opportunity to elect their preferred candidate for the office of commissioner

of District 2 in the 1992 general election. The evidence at trial showed, however, that the error in

assigning over 50 white voters to District 2 resulted from mistakes in a map that had been used by

election officials for many years. A properly conducted investigation would have quickly revealed

that there was no basis for the claim that the Defendants were guilty of purposeful discrimination
22

against black voters. Furthermore, the record shows that the 1992 voter registration list was

prepared by the Board of Registrars which had three black members and two white members.

In this appeal, we affirm the district court's order awarding EAJA fees to the Defendants

because the position of the United States, when viewed as a whole, was not substantially justified.

Unfortunately, we cannot restore the reputation of the persons wrongfully branded by the United

States as public officials who deliberately deprived their fellow citizens of their voting rights. We

also lack the power to remedy the damage done to race relations in Dallas County by the unfounded

accusations of purposeful discrimination made by the United States.

We can only hope that in the future the decision makers in the United States Department of

Justice will be more sensitive to the impact on racial harmony that can result from the filing of a

claim of purposeful discrimination. The filing of an action charging a person with depriving a

fellow citizen of a fundamental constitutional right without conducting a proper investigation of its

truth is unconscionable. After reviewing the proceedings in this case, we are left with the conviction

that the complaint was filed without first examining the accuracy of the map that was the source of

the mistakes that were made in compiling the voter registration list. Hopefully, we will not again

be faced with reviewing a case as carelessly instigated as this one.

AFFIRMED.