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
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
federal government’s liability to pay the attorney’s fees of
liable” for attorney’s fees “to the same extent that any other
parties that prevail against the government in litigation or
party would be liable under the common law or under the
administrative proceedings. This In Focus explains the state
terms 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 prevailing party’s attorney’s
Third, 5 U.S.C. § 504 authorizes awards of attorney’s fees
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. Accordingly,
The EAJA provides that fee awards shall be paid by the
unless Congress expressly provides otherwise, the
defendant agency. In practice, however, the Department of
American rule applies to suits in which the United States is
Justice often advances funds and then receives gradual
a party, and each party pays its own fees. Indeed, although
reimbursements from the agency.
the American rule is subject to certain court-created
exceptions in litigation between private parties, courts have
Scope of Application
generally declined to apply those exceptions to the federal
The EAJA’s fee award provisions apply “except as
government.
otherwise specifically provided by statute.” Put another
way, the EAJA does not supersede other, more specific
Congress has waived the federal government’s sovereign
federal laws that allow or restrict fee awards.
immunity in several contexts. Congress recognized that,
even where it has permitted suits against the federal
The Act’s judicial fee award provisions apply only to civil
government, without access to fee awards against the
actions, meaning they do not authorize awards of attorney’s
United States, litigation costs may deter would-be plaintiffs
fees in criminal proceedings. (A separate statutory
from bringing suit. Before enacting the EAJA, Congress
provision, classified as a note to 18 U.S.C. § 3006A, allows
tried to address that concern piecemeal, enacting numerous
a prevailing criminal defendant not represented by a public
fee-shifting statutes that allowed awards of fees against the
defender to recover attorney’s fees and litigation costs
United States only in specific types of cases, such as cases
“where the court finds that the position of the United States
arising under Title VII of the Civil Rights Act or the
was vexatious, frivolous, or in bad faith, unless the court
Freedom of Information Act. With the EAJA, Congress
finds that special circumstances make such an award
went further by more generally allowing fee-shifting in
unjust.”) Section 2412(d) of the Act further excludes cases
cases involving the United States.
sounding in tort. Section 2412(d) applies to suits in “any
court,” which includes the federal district and appellate
The Equal Access to Justice Act
courts, the U.S. Court of Federal Claims, and the U.S. Court
Congress enacted the EAJA temporarily in 1980 before
of Appeals for Veterans Claims. It is unclear whether
reauthorizing the statute permanently in 1985. Motivated in
bankruptcy courts can directly award fees under the Act,
part by a desire to deter government overreach and
but they may recommend that the district court do so.
wrongdoing, the Act significantly departed from the default
American rule by permitting awards of attorney’s fees
The provision related to administrative proceedings applies
against the federal government in several types of judicial
to “adversary adjudication,” including agency proceedings
and administrative proceedings. The statute includes three
under the Administrative Procedure Act and certain other
key provisions. First, 28 U.S.C. § 2412(b) provides that “in
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Attorney’s Fees and the Equal Access to Justice Act: Legal Framework
statutes. Petitions for judicial review of agency action are
The Act also provides that an award of fees must be
included among the civil actions subject to Section 2412(d).
“reasonable.” In Farrar, the Court explained that the degree
of the plaintiff’s success relative to the other goals of the
Eligibility
lawsuit is critical to determining the size of a reasonable
The EAJA permits recovery of fees by both organizations
fee, holding that a plaintiff who prevails in part may
and individuals, but Sections 504 and 2412(d) limit the
nonetheless receive no fees at all.
parties that may receive a fee award. First, those provisions
only allow for one-way fee shifting: “a prevailing party
Considerations for Congress
other than the United States” may receive attorney’s fees,
Commentators have raised concerns related to the EAJA’s
while the federal government may not. Second, only an
cost to the government and whether fee awards are
individual with a net worth of $2 million or less, or the
benefiting appropriate recipients. Proposed measures to
owner of a business or other organization worth $7 million
curb costs include removing the “special factor” exception
or less and with no more than 500 employees may recover
to the fee cap, which some argue has been applied too
an award of attorney’s fees under Sections 504 and 2412(d).
permissively by lower courts. By contrast, the Equal Access
Nonprofits exempt from taxation under Section 501(c)(3) of
to Justice Reform Act, first introduced in 2003, would have
the Internal Revenue Code are not subject to the size and
attempted to “remove existing barriers and inefficiencies in
net worth caps.
EAJA,” including by broadening the definition of
“prevailing party,” raising the net worth caps, and
What Is a Prevailing Party?
eliminating the government’s substantial justification
One of the most often litigated questions under the EAJA is
defense.
when a litigant may be considered a “prevailing party”
entitled to attorney’s fees. In Texas State Teachers
Other commentators allege that EAJA fee awards have
Association v. Garland Independent School District, 489
spurred abusive litigation by nonprofit organizations with
U.S. 782 (1989), the Supreme Court held that a party need
in-house lawyers. They assert that nonprofits may seek
not prevail on all of its claims, or even on the “central
purportedly reasonable fees that exceed their actual labor
issue” in the case, but only on “any significant issue in
costs and use the resulting awards to bring numerous claims
litigation which achieve[d] some of the benefit the parties
based on alleged procedural violations that cause the
sought in bringing the suit.” A party also need not prevail
organizations no tangible injury. Proposed amendments to
after a full trial on the merits. A favorable settlement may
the EAJA including the Government Litigation Savings Act
support a finding that a party prevailed, if embodied in a
of 2011 would have sought to address that concern by
judicially enforceable consent decree. However, absent an
requiring any party seeking a fee award to have “a direct
enforceable agreement, a party is not deemed to have
and personal monetary interest” in the adjudication or civil
prevailed just because a proceeding caused the government
action, “including because of personal injury, property
to alter its behavior.
damage, or unpaid agency disbursement.”
Prevailing party status is a threshold issue determining the
As originally enacted, the EAJA required annual reports to
potential availability of any attorney’s fees under the EAJA.
Congress on the number, nature, and amount of awards of
The prevailing party need not recover substantial monetary
fees under the statute. However, Congress repealed the
damages in order to meet the threshold (though, as
reporting requirement in 1995, meaning that for many years
discussed below, the amount of recovery may influence
there was limited data on EAJA fee awards. The John D.
what constitutes a reasonable fee award). In Farrar v.
Dingell, Jr. Conservation, Management, and Recreation Act
Hobby, 506 U.S. 103 (1992), the Supreme Court held that a
(P.L. 116-9), enacted on March 12, 2019, included an
litigant who received a nominal damages award of one
“Open Book on Equal Access to Justice” section that
dollar had prevailed because such an award “materially
reinstated and updated the reporting requirements. The new
alters the legal relationship between the parties.”
provisions require the Administrative Conference of the
United States (ACUS) to make annual reports to Congress
Limitations on Fees
and to maintain a searchable online database containing
The EAJA caps the rate for recoverable attorney’s fees at
information about each fee award under the EAJA,
$125 per hour (lower than the prevailing rates in some legal
including the amount, the recipient, and the basis for the
markets), subject to exceptions due to cost-of-living
finding that the government’s position was not substantially
increases or the presence of “a special factor, such as the
justified. ACUS has released reports on EAJA awards each
limited availability of qualified attorneys for the
year since FY2019. Among other things, the reports
proceedings involved.” In Pierce v. Underwood, 487 U.S.
indicate that a large majority of fee awards come in cases
552 (1988), the Supreme Court interpreted the “special
involving the Social Security Administration or the
factor” language narrowly. The Court held that it was
Department of Veterans Affairs. Policymakers and
improper to increase fees based on general conditions in the
commentators may consult the ACUS reports as one tool to
legal market. It explained that a departure from the base
evaluate the EAJA’s costs and effectiveness.
rate was warranted only when a case required “attorneys
having some distinctive knowledge or specialized skill
Joanna R. Lampe, Legislative Attorney
needful for the litigation in question,” such as an expertise
in patent law, foreign law, or foreign language.
IF11246


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


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https://crsreports.congress.gov | IF11246 · VERSION 3 · UPDATED

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