June 10, 2019
Attorney’s Fees and the Equal Access to Justice Act:
Legal Framework
In 1980, Congress enacted the Equal Access to Justice Act
any civil action brought by or against the United States” or
(the EAJA, or the Act) and significantly expanded the
any U.S agency or official, the government “shall be liable”
federal government’s liability to pay the attorney’s fees of
for attorney’s fees “to the same extent that any other party
parties that prevail against the government in litigation or
would be liable under the common law or under the terms
administrative proceedings. This In Focus explains the state
of any statute which specifically provides for such an
of the law before the EAJA was enacted, outlines the
award.” Section 2412(b) thus expands any existing statutory
government’s liability for attorney’s fees under the EAJA,
and court-created exceptions to the American rule to apply
and briefly discusses relevant congressional considerations
to the federal government as they would to a private party.
concerning the EAJA.
Second, 28 U.S.C. § 2412(d) requires a court to award
Immunity and the American Rule
attorney’s fees and costs to a party prevailing against the
Absent express action by Congress, the U.S. government is
United States in a civil action, “unless the court finds that
not liable for opponents’ attorney’s fees for two reasons.
the position of the United States was substantially justified
First, the default rule in the United States, known as the
or that special circumstances make an award unjust.” The
“American rule,” provides that each party pays its own
Supreme Court has interpreted the substantial justification
litigation costs, regardless of the outcome of a case. (The
standard to require the government to prove that its
alternative regime, known as the “English rule,” provides
litigating position was reasonable in both fact and law.
that the losing party pays the winner’s attorney’s fees.)
Third, 5 U.S.C. § 504 authorizes awards of attorney’s fees
Second, the government enjoys sovereign immunity,
in proceedings before an administrative agency on the same
meaning that it may not be sued—and therefore may not be
terms as Section 2412(d).
required by a court to pay another party’s attorney’s fees—
unless it expressly waives its immunity.
The EAJA provides that fee awards shall be paid by the
defendant agency. In practice, however, the Department of
Congress has waived the federal government’s sovereign
Justice often advances funds and then receives gradual
immunity in many contexts. Unless Congress expressly
reimbursements from the agency.
provides otherwise, however, the American rule applies to
suits where the United States is a party, and each party pays
Scope of Application
its own fees. Indeed, although the American rule is subject
The EAJA’s fee award provisions apply “except as
to certain court-created exceptions in litigation between
otherwise specifically provided by statute.” Put another
private parties, courts have generally declined to apply
way, the EAJA does not supersede other, more specific
those exceptions to the federal government.
federal laws that allow or restrict fee awards.
Even in contexts where Congress has permitted suits
The Act’s judicial fee award provisions apply only to civil
against the federal government, without access to fee
actions, meaning they do not authorize awards of attorney’s
awards against the United States, litigation costs may deter
fees in criminal proceedings. Section 2412(d) further
would-be plaintiffs from bringing suit. Before enacting the
excludes cases sounding in tort. Section 2412(d) applies to
EAJA, Congress tried to address that concern piecemeal,
suits in “any court,” which includes the federal district and
enacting numerous fee-shifting statutes that allowed awards
appellate courts, the U.S. Court of Federal Claims, and the
of fees against the United States only in specific types of
U.S. Court of Appeals for Veterans Claims. It is unclear
cases, such as cases arising under Title VII of the Civil
whether bankruptcy courts can award fees under the Act,
Rights Act or the Freedom of Information Act. With the
but they may recommend that the district court do so.
EAJA, Congress went further by more generally allowing
fee-shifting in cases involving the United States.
The provision related to administrative proceedings applies
to “adversary adjudication,” including agency proceedings
The Equal Access to Justice Act
under the Administrative Procedure Act and certain other
Congress enacted the EAJA temporarily in 1980 before
statutes. Petitions for judicial review of agency action are
reauthorizing the statute permanently in 1985. Motivated in
included among the civil actions subject to Section 2412(d).
part by a desire to deter government overreach and
wrongdoing, the Act significantly departed from the default
Eligibility
American rule by permitting awards of attorney’s fees
The EAJA permits recovery of fees by both organizations
against the federal government in many types of judicial
and individuals, but Sections 504 and 2412(d) limit the
and administrative proceedings. The statute includes three
parties that may receive a fee award. First, those provisions
key provisions. First, 28 U.S.C. § 2412(b) provides that “in
only allow for one-way fee shifting: “a prevailing party
https://crsreports.congress.gov

---

Attorney’s Fees and the Equal Access to Justice Act: Legal Framework
other than the United States” may receive attorney’s fees,
plaintiff who prevails in part may nonetheless receive no
while the government may not. Second, only an individual
fees at all.
with a net worth of $2 million or less, or the owner of a
business or other organization worth $7 million or less and
Considerations for Congress
with no more than 500 employees may recover an award of
Commentators have raised concerns related to the EAJA’s
attorney’s fees under Sections 504 and 2412(d). Nonprofits
cost and whether fee awards are benefiting appropriate
exempt from taxation under Section 501(c)(3) of the
recipients. Proposed measures to curb costs include
Internal Revenue Code are not subject to the size and net
removing the “special factor” exception to the fee cap,
worth caps.
which some argue has been applied too permissively by
lower courts. By contrast, the Equal Access to Justice
Limitations on Fees
Reform Act, first introduced in 2003, would have attempted
The EAJA caps the rate for recoverable attorney’s fees at
to “remove existing barriers and inefficiencies in EAJA,”
$125 per hour (lower than the prevailing rates in many legal
including by broadening the definition of “prevailing
markets), subject to exceptions due to cost of living
party,” raising the net worth caps, and eliminating the
increases or the presence of “a special factor, such as the
government’s substantial justification defense.
limited availability of qualified attorneys for the
proceedings involved.” In Pierce v. Underwood, 487 U.S.
Other commentators allege that EAJA fee awards have
552 (1988), the Supreme Court interpreted the “special
spurred abusive litigation by nonprofit organizations with
factor” language narrowly. The Court held that it was
in-house lawyers. They assert that nonprofits may seek
improper to increase fees based on general conditions in the
purportedly reasonable fees that exceed their actual labor
legal market. A departure from the base rate was warranted
costs and use the resulting awards to bring numerous claims
only when a case required “attorneys having some
based on alleged procedural violations that cause the
distinctive knowledge or specialized skill needful for the
organizations no tangible injury. Proposed amendments to
litigation in question,” such as an expertise in patent law,
the EAJA including the Government Litigation Savings Act
foreign law, or foreign language.
of 2011 would have sought to address that concern by
requiring any party seeking a fee award to have “a direct
What Is A Prevailing Party?
and personal monetary interest” in the adjudication or civil
One of the most often litigated questions under the EAJA is
action, “including because of personal injury, property
when a litigant may be considered a “prevailing party”
damage, or unpaid agency disbursement.”
entitled to attorney’s fees. In Texas State Teachers
Association v. Garland Independent School District, 489
Concerns about the EAJA’s costs and the destination of fee
U.S. 782 (1989), the Supreme Court held that a party need
awards are difficult to evaluate because there is little recent
not prevail on all of its claims, or even on the “central
data on EAJA fee awards. As originally enacted, the EAJA
issue” in the case, but only on “any significant issue in
required annual reports to Congress on the number, nature,
litigation which achieve[d] some of the benefit the parties
and amount of awards of fees under the statute. However,
sought in bringing the suit.” A party also need not prevail
Congress repealed the reporting requirement in 1995. The
after a full trial on the merits. A favorable settlement may
John D. Dingell, Jr. Conservation, Management, and
support a finding that a party prevailed, if embodied in a
Recreation Act (P.L. 116-9), enacted on March 12, 2019,
judicially enforceable consent decree. However, absent an
included an “Open Book on Equal Access to Justice”
enforceable agreement, a party is not deemed to have
section that reinstated and updated the reporting
prevailed just because a proceeding caused the government
requirements. The new provisions require the
to alter its behavior.
Administrative Conference of the United States to make
annual reports to Congress and to maintain a searchable
Prevailing party status is a threshold issue determining the
online database containing information about each fee
potential availability of any attorney’s fees under the EAJA.
award under the EAJA, including the amount, the recipient,
It is unnecessary that the prevailing party recover
and the basis for the finding that the government’s position
substantial monetary damages. In Farrar v. Hobby, 506
was not substantially justified. Once the new reporting
U.S. 103 (1992), the Court held that a litigant who received
requirements take effect, Congress may potentially be better
a nominal damages award of one dollar had prevailed
equipped to evaluate whether further reforms of the EAJA
because such an award “materially alters the legal
are warranted.
relationship between the parties.” However, the Act also
provides that an award of fees must be “reasonable.” In
Joanna R. Lampe, Legislative Attorney
Farrar, the Court explained that the degree of the plaintiff’s
success relative to the other goals of the lawsuit is critical to
IF11246
determining the size of a reasonable fee, holding that a

https://crsreports.congress.gov

---

Attorney’s Fees and the Equal Access to Justice Act: Legal Framework



Disclaimer
This document was prepared by the Congressional Research Service (CRS). CRS serves as nonpartisan shared staff to
congressional committees and Members of Congress. It operates solely at the behest of and under the direction of Congress.
Information in a CRS Report should not be relied upon for purposes other than public understanding of information that has
been provided by CRS to Members of Congress in connection with CRS’s institutional role. CRS Reports, as a work of the
United States Government, are not subject to copyright protection in the United States. Any CRS Report may be
reproduced and distributed in its entirety without permission from CRS. However, as a CRS Report may include
copyrighted images or material from a third party, you may need to obtain the permission of the copyright holder if you
wish to copy or otherwise use copyrighted material.

https://crsreports.congress.gov | IF11246 · VERSION 1 · NEW

---