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1 1 (May 2, 2023)

handle is hein.crs/govelmh0001 and id is 1 raw text is: Congressional Research Service Informing the IegisI9tive debate since 1914 Updated May 2, 2023 Attorney's Fees and the Equal Access to Justice Act: Legal Framework In 1980, Congress enacted the Equal Access to Justice Act (the EAJA, or the Act) and significantly expanded the federal government's liability to pay the attorney's fees of parties that prevail against the government in litigation or administrative proceedings. This In Focus explains the state of the law before the EAJA was enacted, outlines the government's liability for attorney's fees under the EAJA, and briefly discusses relevant congressional considerations concerning the EAJA. Immunity and the American Rule Absent express action by Congress, the U.S. government is not liable for opponents' attorney's fees for two reasons. First, the default rule in the United States, known as the American rule, provides that each party pays its own litigation costs, regardless of the outcome of a case. (The alternative regime, known as the English rule, provides that the losing party pays the prevailing party's attorney's fees.) Second, the government enjoys sovereign immunity, meaning that it may not be sued-and therefore may not be required by a court to pay another party's attorney's fees- unless it expressly waives its immunity. Accordingly, unless Congress expressly provides otherwise, the American rule applies to suits in which the United States is a party, and each party pays its own fees. Indeed, although the American rule is subject to certain court-created exceptions in litigation between private parties, courts have generally declined to apply those exceptions to the federal government. Congress has waived the federal government's sovereign immunity in several contexts. Congress recognized that, even where it has permitted suits against the federal government, without access to fee awards against the United States, litigation costs may deter would-be plaintiffs from bringing suit. Before enacting the EAJA, Congress tried to address that concern piecemeal, enacting numerous fee-shifting statutes that allowed awards of fees against the United States only in specific types of cases, such as cases arising under Title VII of the Civil Rights Act or the Freedom of Information Act. With the EAJA, Congress went further by more generally allowing fee-shifting in cases involving the United States. The Equal Access to Justke Act Congress enacted the EAJA temporarily in 1980 before reauthorizing the statute permanently in 1985. Motivated in part by a desire to deter government overreach and wrongdoing, the Act significantly departed from the default American rule by permitting awards of attorney's fees against the federal government in several types of judicial and administrative proceedings. The statute includes three key provisions. First, 28 U.S.C. § 2412(b) provides that in any civil action brought by or against the United States or any U.S. agency or official, the government shall be liable for attorney's fees to the same extent that any other party would be liable under the common law or under the terms of any statute which specifically provides for such an award. Section 2412(b) thus expands any existing statutory and court-created exceptions to the American rule to apply to the federal government as they would to a private party. Second, 28 U.S.C. § 2412(d) requires a court to award attorney's fees and costs to a party prevailing against the United States in a civil action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. The Supreme Court has interpreted the substantial justification standard to require the government to prove that its litigating position was reasonable in both fact and law. Third, 5 U.S.C. § 504 authorizes awards of attorney's fees in proceedings before an administrative agency on the same terms as Section 2412(d). The EAJA provides that fee awards shall be paid by the defendant agency. In practice, however, the Department of Justice often advances funds and then receives gradual reimbursements from the agency. Scope of Application The EAJA's fee award provisions apply except as otherwise specifically provided by statute. Put another way, the EAJA does not supersede other, more specific federal laws that allow or restrict fee awards. The Act's judicial fee award provisions apply only to civil actions, meaning they do not authorize awards of attorney's fees in criminal proceedings. (A separate statutory provision, classified as a note to 18 U.S.C. § 3006A, allows a prevailing criminal defendant not represented by a public defender to recover attorney's fees and litigation costs where the court finds that the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust.) Section 2412(d) of the Act further excludes cases sounding in tort. Section 2412(d) applies to suits in any court, which includes the federal district and appellate courts, the U.S. Court of Federal Claims, and the U.S. Court of Appeals for Veterans Claims. It is unclear whether bankruptcy courts can directly award fees under the Act, but they may recommend that the district court do so. The provision related to administrative proceedings applies to adversary adjudication, including agency proceedings under the Administrative Procedure Act and certain other

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