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55 La. L. Rev. 217 (1994-1995)
The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part One)

handle is hein.journals/louilr55 and id is 231 raw text is: The Essentials of the Equal Access to Justice Act: Court Awards of Attorney's Fees for Unreasonable Government Conduct (Part One)* Gregory C. Sisk** TABLE OF CONTENTS I. Introduction, Background, and Overview ................... 220 A. Introduction .................................... 220 B. Background on the Equal Access to Justice Act ........... 222 1. Legislative History of the EAJA ................... 222 2. Summary of the EAJA .......................... 223 3. Purposes of the EAJA .......................... 225 C. Overview ...................................... 227 H. The Scope of EAJA Subsection (d) ....................... 229 A. Application to Any Civil Action..................... 229 1. The Breadth of the Civil Action Provision ........... 229 2. Limitation to Judicial Proceedings .................. 231 B. Jurisdiction to Award EAJA Fees ..................... 234 1. The Broad Reference in Paragraph (d)(1)(A) to Any Court Could be Understood to Cover Non-Article III Tribunals Including Bankruptcy Courts ...................... 235 2. The Definition in Paragraph (d)(2)(F) of Court as Including the Court of Federal Claims and the Court of Copyright 1994, by LOUISIANA LAW REVIEW. Copyright 1994, by GREGORY C. SISK. * This is part one of a two-part article providing a survey and critical commentary on the provisions of and case law interpreting Subsection 2412(d) of the Equal Access to Justice Act (EAJA), 28 U.S.C. § 2412(d). Part two of this article, which will be published in a future issue of the Louisiana Law Review, will address the standards for entitlement to a fee award under the EAJA, the measurement of a fee award, and the procedures for applying for a fee award. Hereinafter, citations to sections within part two of this article will be styled: See generally infra section forthcoming. ** Associate Professor of Law, Drake University. I wish to thank those who generously contributed their time and expertise in reviewing an earlier draft of this article, including my Drake colleagues Martin Begleiter, Matthew Dort, and Daniel Bogart, Harold Krent at Chicago-Kent, and Jay Bybee at Louisiana State. Although the piece has profited from their thoughtful comments, the views expressed are my own and I am responsible for any errors that remain. I also want to recognize my research assistants and students who participated in this comprehensive study, including Lisa Smith for her compilation of a summary of cases, Alex Galyon for his contribution of ideas through an independent study project, and Donald McArthur for editorial assistance. Finally, I gratefully acknowledge Dean David Walker and the Board of Governors of the Drake University Law School Endowment Trust for the award of a research stipend that supported the completion of this project.

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