Equal Access to Justice Act

5 U.S.C. § 504, 504 note (2012) and 28 U.S.C. § 2412, 2412 note (2012); enacted October 21, 1980, as title II of the Small Business Export Expansion Act of 1980, Pub. L. No. 96-481, 94 Stat. 2325; amended September 3, 1982, by Pub. L. No. 97-248, title II, § 292, 96 Stat. 574; August 5, 1985, by Pub. L. No. 99-80, 99 Stat. 183; October 21, 1986, by Pub. L. No. 99-509, title VI, § 6103(c), 100 Stat. 1948; November 10, 1988, by Pub. L. No. 100-647, title VI, § 6239(b), 102 Stat. 3746; October 29, 1992, by Pub. L. No. 102-572, § 506, 106 Stat. 4506, 4513; November 16, 1993, by Pub. L. No. 103-141, 107 Stat. 1489; December 21, 1995, by Pub. L. 104-66, title I, Sec. 1091(b), 109 Stat. 722; March 29, 1996, by Pub. L. No. 104-121, 110 Stat. 862; Jan. 4, 2011 by Pub. L. No. 111-350, § 5(a)(1), 124 Stat. 3841.

Lead Agencies: Office of the Chief Counsel for Advocacy, U.S. Small Business Administration. The Administrative Conference of the United States (ACUS) was given reporting responsibility for administrative proceedings. Although ACUS was not funded from 1996-2010, since its reopening it has begun reporting again on a voluntary basis. Its report for FY 2010 was released in January 2013. The Administrative Office of the United States Courts was originally given reporting responsibility for judicial proceedings. The Attorney General was substituted in 1992, but this provision (28 U.S.C. § 2412(d)(5)) was deleted in 1995. The ACUS report for FY 2010 does contain data on court decisions.

Overview

Eligibility and Coverage

The Equal Access to Justice Act provides that certain parties who prevail over the federal government in covered litigation are entitled to an award of attorneys’ fees and other expenses unless the government can demonstrate that its position was substantially justified or that special circumstance would make an award unjust. The parties eligible to receive such awards include individuals whose net worth (at the time the adjudication was initiated) is not more than $2 million; businesses, organizations, associations, or units of local government with a net worth of no more than $7 million and with no more than 500 employees; and tax-exempt organizations and agricultural cooperatives with no more than 500 employees, regardless of net worth. This must be shown by adequate affidavits. See Al Ghanim Combined Group Co. Gen. Trad. & Cont. W.L.L. v. United States, 67 Fed. Cl. 494 (Fed. Cl. 2005); see also Tri-State Steel Construction Co. v. Herman, 164 F.3d 973 (6th Cir. 1999) (corporate subsidiary may qualify for recovery under the EAJA, even if it is owned by a parent far too substantial to fit below the net worth limitations). The 1996 Amendments also allow “a small entity” (as defined in the Regulatory Flexibility Act, 5 U.S.C. § 601(6)) to utilize the new “excessive demand” avenue of relief (see discussion below in “showing required”).

The Act covers two groups of proceedings: (1) adversary administrative adjudications, which are defined to include formal hearing proceedings under 5 U.S.C. § 554 (other than licensing and ratemaking proceedings, but including license suspension or revocation proceedings) in which the agency takes a position as a party at the proceeding, government contract appeals adjudicated under the Contract Disputes Act of 1978 (41 U.S.C. §§ 601– 613), administrative civil penalty proceedings under the Program Fraud Civil Remedies Act (31 U.S.C. Chapter 38), and hearings under the Religious Freedom Restoration Act of 1993; and (2) civil court actions other than tort cases (not including tax cases, which are covered by a separate attorneys’ fee provision ). The Act also authorizes the award of attorneys’ fees against the United States in those limited situations in which fees could be awarded against any other party under existing common law and statutory provisions, unless a statute expressly prohibits such an award.

Determining what constitutes an administrative proceeding “under” section 554 has created some controversy, particularly with respect to deportation and other administrative immigration proceedings, which are conducted with procedures equivalent to those required by section 554, even though they are expressly exempted from the Administrative Procedure Act’s requirements. The U.S. Supreme Court resolved this issue, ruling that proceedings must be “subject to” section 554 to fall within the Act’s coverage (and thus that administrative deportation proceedings are not covered). Ardestani v. INS, 502 U.S. 129 (1991). In other contexts, many courts had already reached a similar conclusion. See, e.g., Friends of the Earth v. Reilly, 966 F.2d 690 (D.C. Cir 1992) (EPA proceeding leading to withdrawal of authorization for state hazardous waste program authorization not an adversary adjudication where formal hearing was provided voluntarily under agency regulations rather than required by statute); Dart v. United States, 961 F.2d 284 (D.C. Cir. 1992) (Export Administration Act proceedings not covered by EAJA because exempt from § 554 of APA); St. Louis Fuel & Supply Co. v. FERC, 890 F.2d 446 (D.C. Cir. 1989) (Department of Energy proceedings not covered by EAJA where formal hearing was provided voluntarily); Haire v. United States, 869 F.2d 531 (9th Cir. 1989) (Department of Commerce enforcement proceedings under the Export Administration Act not covered by EAJA because specifically exempted from § 554 by statute); Owens v. Brock, 860 F.2d 1363 (6th Cir. 1988) (Department of Labor proceedings under the Federal Employees Compensation Act not covered by EAJA); Olsen v. Dep’t of Commerce, Census Bureau, 735 F.2d 558 (Fed. Cir. 1984) (Merit Systems Protection Board proceeding concerning employee tenure not covered by EAJA); Smedberg Machine & Tool, Inc. v. Donovan, 730 F.2d 1089 (7th Cir. 1984) (labor certification review at Department of Labor not covered by EAJA). Other courts have found particular adjudications to meet the Ardestani test. Five Points Road Joint Venture v. Johanns, 542 F.3d 1121 (7th Cir. 2008) (adjudications conducted by hearing officers in the USDA’s National Appeals Division are (1) adjudications required by statute, (2) on the record, (3) with an opportunity for an agency hearing, and are thus covered by the EAJA under the Ardestani test); Lane v. USDA, 120 F.3d 106 (8th Cir. 1997) (same), and Collard v. U.S. Department of Interior, 154 F.3d 933 (9th Cir. 1998) (although statute governing extinguishing of mining patent did not expressly call for formal APA adjudication, an APA hearing was constitutionally required; thus under Wong Yang Sung v. McGrath, 339 U.S. 33 (1950), the hearing was governed by § 554 for the APA, making plaintiffs eligible for EAJA reimbursement).

The Supreme Court has significantly narrowed the definition of “prevailing party” in federal fee-shifting statutes. In Buckhannon Board & Care Home, Inc. v. West Virginia Department of Health & Human Resources, 532 U.S. 598, 600 (2001), the Court held that a “party that has failed to secure a judgment on the merits or a court-ordered consent decree, but has nonetheless achieved the desired result because the lawsuit brought about a voluntary change in the defendant’s conduct” is not a “prevailing party” under federal statutes allowing courts to award attorney’s fees and costs to the “prevailing party.” Rather, in rejecting the “catalyst theory,” the Court held that “prevailing party” status requires a “material alteration of the parties’ legal relationship” and a “judicial imprimatur” on the change. Id. at 604–05. Ten circuit courts have found that Buckhannon applies to the EAJA. See Iqbal v. Holder, 693 F.3d 1189, 1193–94 (10th Cir. 2012); Jeroski v. Fed. Mine Safety & Review Comm’n, 697 F.3d 651, 654–55 (7th Cir. 2012); Aronov v. Napolitano, 562 F.3d 84, 89-93 (1st Cir. 2009); Othman v. Chertoff, 309 Fed. Appx. 792, 794 (5th Cir. 2008); Morillo-Cedron v. Dist. Dir. for The U.S. Citizenship & Immigration Servs., 452 F.3d 1254, 1258 (11th Cir. 2006); Goldstein v. Moatz, 445 F.3d 747, 751 (4th Cir. 2006); Marshall v. Comm’r of Soc. Sec., 444 F.3d 837, 840 (6th Cir. 2006); Vacchio v. Ashcroft, 404 F.3d 663, 673 (2d Cir. 2005); Thomas v. NSF, 330 F.3d 486, 492–93 (D.C. Cir. 2003); Brickwood Contractors, Inc. v. United States, 288 F.3d 1371, 1379–83 (Fed. Cir. 2002); Perez-Arellano v. Smith, 279 F.3d 791, 795 (9th Cir. 2002).

Applicability

The Equal Access to Justice Act, as amended in 1985, applies to all covered cases and proceedings pending on, or commenced on or after, August 5, 1985. The original Act, which expired under a sunset provision on September 30, 1984, applied to cases and proceedings commenced between October 1, 1981, and September 30, 1984, as well as those pending on October 1, 1981. The 1996 Amendments are applicable to civil actions and adversary adjudications commenced on or after March 29, 1996.

In 2002, the Supreme Court resolved the question of the possible overlap of the EAJA and the Social Security Act’s attorney fee provisions. Gisbrecht v. Barnhart, 535 U.S. 789 (2002), held that EAJA fees for claimants prevailing in court supplement the fees payable to attorneys out of the claimants’ past-due benefits under § 406(b) of the Social Security Act.

Showing Required

A party seeking an award of fees must submit an application to the court or agency adjudicative officer within 30 days of the final judgment (for civil actions) or final disposition (for administrative adjudications) of the underlying proceeding. The application must demonstrate the party’s eligibility and include itemized statements from attorneys and expert witnesses for whose services an award is sought. The party must also allege that the position of the United States was not substantially justified, but need not provide supporting evidence; based on the Act’s legislative history, the courts have concluded that the federal government bears the burden of showing that its position was substantially justified.

The “position” that must be substantially justified under the Act includes both the government’s litigation position and the underlying government action or failure to act leading up to the litigation. The determination of whether the government’s position was substantially justified is to be made on the record of the proceeding; discovery on that issue is not permitted. To show that its position was substantially justified, the government must demonstrate that it had a reasonable basis in law and fact. Pierce v. Underwood, 487 U.S. 552 (1988); see also Meinhold v. United States Dep’t of Defense, 123 F.3d 1275, 1277 (9th Cir. 1997), modified by 131 F.3d 842 (1997) (providing that the government bears the burden to show that its position was substantially justified). The 1996 amendments also allow a party to collect even if it does not prevail in litigation if the government’s demand is found to be excessive or is unreasonable when compared with the ultimate decision (unless the party has acted willfully or in bad faith or special circumstances make an award unjust). The D.C. Circuit granted a partial fee award under this provision in American Wrecking Corp. v. Secretary of Labor, 364 F.3d 321 (D.C. Cir. 2004), in a case where the agency had sought $126,000 in penalties but was allowed to assess only $7,000.

United States v. Hallmark Construction Co., 200 F.3d 1076, 1080 (7th Cir. 2000) outlined a three-part test for determining whether an agency’s position was substantially justified. The agency’s decision is substantially justified if “its position was grounded in (1) a reasonable basis in truth for the facts alleged; (2) a reasonable basis in law for the theory propounded; and (3) a reasonable connection between the facts alleged and the legal theory advanced” (internal quotation omitted). The test was applied in the EPA’s favor in Bricks, Inc. v. EPA, 426 F.3d 918 (7th Cir. 2005). However, even if the government quickly improved its policies in response to the initiation of litigation, its pre-litigation conduct can be sufficiently “unreasonable” to render “the entire Government position not ‘substantially justified.’” Healey v. Leavitt, 485 F.3d 63, 68 (2d Cir. 2007).

Amount of Awards

Before 1996, the Act allowed the prevailing party to be awarded attorneys’ fees and expenses, including expert witness fees and the cost of studies or tests necessary for case preparation. Under the 1996 Act, attorneys’ fee awards were increased from $75 an hour to $125 an hour. This is the awarded rate unless special factors, such as cost-of-living increases or a shortage of qualified attorneys, justify a higher rate. For administrative proceedings, agencies must make any determination that special factors justify a higher rate by regulation. Some agencies have done so. Higher rates may be authorized on a case-by-case basis in court proceedings, and many courts have used the provision to award higher rates based on cost-of-living increases. See Kerin v. U.S.P.S., 218 F.3d 185 (2d Cir. 2000); Dewalt v. Sullivan, 963 F.2d 27 (3d Cir. 1992); Russell v. Sullivan, 930 F.2d 1443 (9th Cir. 1991); Phillips v. GSA, 924 F.2d 1577 (Fed. Cir. 1991); Johnson v. Sullivan, 919 F.2d 503 (8th Cir. 1990); Trichilo v. Secretary, HHS, 823 F.2d 702 (2d Cir. 1987); Allen v. Bowen, 821 F.2d 963 (3d Cir. 1987); Sierra Club v. Secretary of the Army, 820 F.2d 513 (1st Cir. 1987); Hirschey v. FERC, 777 F.2d 1 (D.C. Cir. 1985); Greenidge v. Barnhart, 2005 WL 357318 (N.D.N.Y. 2005); Former Employees of Tyco Electronics Fiber Optics Division v. U.S. Department of Labor, 350 F. Supp. 2d 1075, 1093 (C.I.T. 2004); United States v. Eleven Vehicles, 937 F. Supp. 1143 (E.D. Pa. 1996); Kimball v. Shalala, 826 F. Supp. 573 (D. Me 1993). But see Sorenson v. Milk, 239 F.3d 1140 (9th Cir. 2001) (cost-of-living increases must be determined based on the rate when the fee is earned, not when judgment is entered); Masonry Masters, Inc. v. Nelson 105 F.3d 708 (D.C. Cir. 1997) (cost-of-living adjustments must be calculated separately for each year services are performed); May v. Sullivan, 936 F.2d 176 (4th Cir. 1991) (affirming denial of upward adjustment); Spencer v. Apfel, 1998 WL 264843 (E.D. La. 1998) (cost-of-living adjustment not automatic).

Rate increases based on other special factors have been less frequent. The Supreme Court has ruled that traditional attorneys’ fee calculation principles, such as lodestar rates or risk multipliers, cannot be used to award rates above the statutory maximum, and that the exception for “limited availability of qualified attorneys” refers to attorneys with specialized knowledge or skills. Pierce v. Underwood, supra. Lower courts have allowed rates above the pre-1996 rate of $75 per hour for specialists in areas such as environmental law, Nat’l Wildlife Federation v. FERC, 870 F.2d 542 (9th Cir. 1989), Portland Audubon Society v. Lujan, 865 F. Supp. 1464 (D. Or 1994); social security law, Pirus v. Bowen, 869 F.2d 536 (9th Cir. 1989) (but see Raines v. Shalala, 44 F.3d 1355 (7th Cir. 1995) (holding that “the area of social security law cannot in itself be considered such a specialized areaof law practice as to warrant , as a general rule, payment in excess ofthe $ 75.00 rate.” and citing the Eighth and Tenth Circuits for support, Stockton v. Shalala, 36 F.3d 49, 50 (8th Cir. 1994), Chynoweth v. Sullivan, 920 F.2d 648, 650 (10th Cir. 1990)); tax law, Howards’ Yellow Cabs, Inc. v. United States, 1998 WL 682485 (W.D.N.C. 1998), and immigration law. Judge Posner has opined that “immigration lawyers who bring relevant expertise to a case, such as knowledge of foreign cultures or of particular, esoteric nooks and crannies of immigration law, in which such expertise is needed to give the alien a fair shot at prevailing” may “pierce” the statutory cap, but immigration lawyers are not “ipso facto entitled to fees above the statutory ceiling.” Muhur v. Ashcroft, 382 F.3d 653, 656 (7th Cir. 2004); see also Nadarajah v. Holder, 569 F.3d 906, 914 (9th Cir. 2009) (awarding enhanced rate to counsel because the case “raised unique issues of statutory and constitutional immigration law in the detention context . . . required knowledge of a large body of historical material concerning immigration detention, detailed treatment of new and relatively obscure statutory provisions governing the detention of people alleged to be threats to national security, and familiarity with the growing body of modern case law concerning prolonged detention in the immigration context.”); Nadler v. INS, 737 F. Supp. 658 (D.D.C. 1989). But see Perales v. Casillas, 950 F.2d 1066, 1078 (5th Cir. 1992) (rejecting expertise in immigration law as a “special factor” under the EAJA); Singh v. INS, 1998 WL 101742 (N.D. Cal. 1998) (immigration law not recognized as a specialty warranting adjustment). The Second Circuit also recently narrowly construed the concept of “specialized expertise,” refusing to grant it to lawyers specializing in the practice of Medicare law. Healey v. Leavitt, 485 F.3d 63 (2d Cir. 2007). The court stated: “[A] case requires ‘specialized expertise’ within the meaning of the EAJA only when it requires some knowledge or skill that cannot be obtained by a competent practicing attorney through routine research or legal experience.” Id. at 70. Indeed, the Healey court also affirmed the district court’s decision to reduce the fee award “given the considerable amount of time plaintiffs devoted to [an] unsuccessful [related] claim. Id. at 72. In adopting a similar if not more cramped construction of “specialized expertise,” the Fifth Circuit has held that “nonlegal or technical abilities” are necessary conditions of “special factor” enhancement. Estate of Cervin v. Comm’r of Internal Revenue, 200 F.3d 351, 355 (5th Cir. 2000). For a rather comprehensive synopsis of the foregoing inter-circuit discordance concerning specialized expertise, see generally Former Employees of BMC Software, Inc. v. U.S. Secretary of Labor, 519 F. Supp. 2d 1291,347–52 (C.I.T. 2007).

The Supreme Court has also ruled that attorneys’ fee awards should ordinarily include fees for the portion of the litigation concerning the fee award itself. In Commissioner, INS v. Jean, 496 U.S. 154 (1990), the Court rejected the argument that a separate determination must be made as to whether the government’s position on the fee issues was substantially justified before fees could be awarded for fee litigation.

Finally, the Supreme Court has held that paralegal fees may be recoverable under the EAJA. In so doing, the Court overruled the Federal Circuit’s characterization of those expenditures as “expenses” (allowable only at cost) and not fees. See Richlin Security Service Co. v. Chertoff, 553 U.S. 571 (2008); see also Role Models Am., Inc. v. Brownlee, 353 F.3d 962, 974 (D.C. Cir. 2004); Hyatt v. Barnhart, 315 F.3d 239, 255 (4th Cir. 2002) (holding that the EAJA authorizes reimbursement for work “performed not only by attorneys but also by persons doing ‘tasks traditionally performed by an attorney and for which the attorney would customarily charge the client,’ regardless of whether a licensed attorney, paralegal, or law clerk performed them”); Jean v. Nelson, 863 F.2d 759, 778 (11th Cir. 1988).

Authority of Agencies and Courts

Ordinarily, awards for administrative proceedings are to be made by the presiding agency (which is usually, but not always, the agency that will have to pay any award) and awards for court cases by the court. The Act provides, however, that where a court reviews the decision on the merits in an adversary adjudication, the court shall make any award for the administrative stage as well as the judicial review stage of the proceeding. In some cases, moreover, the courts may make fee awards for administrative proceedings that are not independently covered by the Equal Access to Justice Act. In Sullivan v. Hudson, 490 U.S. 877 (1989), the Supreme Court ruled that a court could award EAJA fees for the portion of a Social Security disability proceeding occurring after a court remand, even though the proceeding was not “adversarial” within the meaning of the EAJA. In this case, the party seeking fees did not become a prevailing party under the EAJA until completion of the agency proceeding on remand. The remand proceedings were “intimately tied to the resolution of the judicial action and necessary to the attainment of the results Congress sought to promote by providing for fees,” 490 U.S. at 888, and so should be considered an integral part of the “civil action.” In two subsequent cases, however, the Court significantly narrowed the seemingly broad reasoning underlying Hudson, limiting its application to those instances where (1) the district court orders the remand and (2) “the district court action remains pending until completion of the administrative proceedings.” See Melkonyan v. Sullivan, 501 U.S. 89, 96–97, 111 S. Ct. 2157 (1991) (reasoning that Hudson “stands for the proposition that in those cases where the district court retains jurisdiction of the civil action and contemplates entering a final judgment following the completion of administrative proceedings, a claimant may collect EAJA fees for work done at the administrative level”); Shalala v. Schaefer, 509 U.S. 292, 299–300 n.4 (1993) (holding that sentence-four social security remands do not fall within the scope of Hudson because the district court does not retain jurisdiction, and noting that the Court had limited Hudson “to a narrow class of qualifying administrative proceedings where the district court retains jurisdiction of the civil action pending the completion of the administrative proceedings”); see also W. Watersheds Project v. U.S. Dep’t of the Interior, 677 F.3d 922, 927 (9th Cir. 2012). Circuit courts have largely followed Melkonyan and Schaefer’s limiting construction of Hudson in administrative pre- and post-district court litigation contexts. See W. Watersheds Project, 677 F.3d at 929 (holding that pre-litigation administrative grazing-permit proceedings are ineligible for collection of EAJA fees because the proceedings are not adversarial adjudications under 5 U.S.C. § 504(b)(1)(C)); Maritime Mgmt., Inc. v. United States, 242 F.3d 1326, 1336 (11th Cir. 2001) (denying pre-litigation fees incurred during administrative proceedings before the General Accounting Office because Maritime did not seek judicial relief on remand from the district court); Friends of the Boundary Waters Wilderness v. Thomas, 53 F.3d 881, 887 (8th Cir. 1995) (citing Pollgreen v. Morris, 911 F.2d 527, 535–36 (11th Cir. 1990), and Full Gospel, 927 F.2d 628 (D.C. Cir. 1991), in support of the proposition that prelitigation administrative proceedings do not have the “requisite ancillary relationship with the judicial action to permit a reward of fees under Hudson,” forming the basis for its denial of fees for pre-litigation expenses incurred during the Forest Service’s administrative appeals process); Full Gospel Portland Church v. Thornburgh, 927 F.2d 628, 629, 631–33 (D.C. Cir. 1991) (denying fees for post-litigation administrative proceedings before the Immigration and Naturalization Service because the “[p]roceedings under the [Immigration and Nationality Act] lack[ed] the specific features of the SSA proceedings that, in Hudson, demonstrated the ‘intimate tie’ between administrative and judicial proceedings”).

Agency Procedures

The Act requires agencies to adopt procedures for processing applications for awards in administrative proceedings. More than 30 agencies have issued final procedures for handling applications for attorneys’ fee awards in their administrative proceedings. Most of these agencies have generally followed model rules prepared by the Administrative Conference in furtherance of its statutory responsibility to consult with agencies in the development of these procedures. Model Rules for the Implementation of the Equal Access to Justice Act, 51 Fed. Reg. 16,659 (May 6, 1986). Citations to the agencies’ individual rules are included below. The Model Rules, which were once codified at 1 C.F.R. Part 315, can be found at the end of this chapter.

Legislative History

Viewed by Congress both as a small business relief measure and as a regulatory reform bill, the Equal Access to Justice Act was originally passed in 1980 as part of a small business assistance act, to which it was added by amendment on the floor of the Senate. The conference committee accepted the Senate version over a House version of the legislation that did not contain the Equal Access provisions. A substantially identical bill, S. 265, had passed the Senate overwhelmingly in 1979 and had been reported favorably (with a few amendments) by the House Judiciary Committee the day before Senate passage of H.R. 5612. Thus, courts and others interpreting the Act have frequently referred to the congressional reports on S. 265 (cited below) as well as the Conference Report on H.R. 5612. The measure was probably tacked on to H.R. 5612 both to ensure passage before adjournment of the 96th Congress and to forestall a possible presidential veto.

Significant changes from the Senate version made in the House Judiciary Committee (and explained briefly in that Committee’s report on S. 265) include the addition of the 500-employee eligibility requirement, the exemption of certain nonprofit organizations from the net worth eligibility requirements, the limitation of covered administrative proceedings to formal adversary adjudications (and the exclusion thereby of most Social Security administrative proceedings), and assignment of the responsibility for fee determinations in administrative proceedings to agency adjudicative officers.

The Act was the subject of continuing legislative attention, in part because of its three-year sunset provision. A 1982 amendment excluded tax cases from the Act’s coverage and created a separate provision for those cases with different standards and burdens of proof (26 U.S.C. § 7430). A House Judiciary Subcommittee held oversight hearings on the Equal Access to Justice Act in April 1982, and similar hearings were held by the Senate Judiciary Subcommittee in December of that year.

A Senate bill to amend the Act and make it permanent, S. 919, was reported favorably by the Senate Judiciary Committee in August 1984; a similar House bill, H.R. 5470, was passed by both houses of Congress on October 3, 1984. H.R. 5479 included several important changes to the law. In addition to repealing the sunset provision, it added contract appeals board proceedings (and appeals from board decisions) to those covered by the Act, raised the net worth limits on eligibility for fee awards, and specified that the position of the United States that must be substantially justified to avoid an award included its underlying position as well as its litigation position. In addition, it required the payment of awards from agency funds, deleting an earlier statutory provision that permitted awards to be paid from the general judgment fund of the United States when not paid by the agency.

President Reagan vetoed this legislation after Congress had adjourned. The President supported reauthorization of the Act but objected to two provisions of H.R. 5479: one that would require consideration of the government’s underlying position as well as its litigation position, and another that would have required the payment of interest by the United States on awards not paid within 60 days.

Legislation to extend and amend the Act was reintroduced in the 99th Congress, passed by both Houses of Congress (H.R. 2378), and signed by the President August 5, 1985. In a compromise designed to avoid another veto, the final legislation retained the provision requiring consideration of the government’s underlying position, but added a provision that substantial justification determinations are to be made on the record, rather than on the basis of discovery; the provision for the payment of interest was dropped, except where the United States appeals an award of costs or fees in court and the award is later upheld. Two other changes from the 1984 bill appeared in the final legislation. First, while H.R. 5479 would have made the adjudicative officer’s decision on a fee application in an administrative proceeding the final decision of the agency, Pub. L. No. 99-80 gave final authority to the agency itself. Also, because the original Act had expired before passage of the new law, a savings provision was included to cover proceedings both commenced and completed during the gap from October 1, 1984, to August 5, 1985.

The Equal Access to Justice Act has been amended several times since then. In 1986, the amendment clarified that the administrative provisions of the Act do not apply to tax cases, and in 1988, an amendment added civil penalty proceedings under the Program Fraud Civil Remedies Act to the Act’s coverage. In 1992, Congress enacted section 506 of the Federal Courts Administration Act, which made EAJA applicable to the Court of Veterans Appeals (now the Court of Appeals for Veterans Claims), for cases pending as of October 29, 1992, and subsequent cases. In 1993, coverage of administrative proceedings under the Religious Freedom Protection Act was added.

More major changes were made in 1996. In March 1995, Senator Feingold introduced S. 554, the Equal Access to Justice Reform Amendments of 1995. A modified version of S. 554 was subsequently inserted into S. 942, the Small Business Regulatory Fairness Act of 1995, introduced by Senator Bond. The Senate Committee on Small Business held a hearing on this bill on February 28, 1996. The bill was passed by the Senate 100-0 on March 19, 1996. The bill was ultimately incorporated into H.R. 3136, The Contract With America Advancement Act of 1996, Pub. L. No. 104-121, Title III, Subtitle C, 110 Stat. 862. The amendments increased the maximum hourly rate from $75 to $125, allowed for an award of fees even if the party lost in litigation if the government’s demand was deemed excessive, and increased the class of parties entitled to fees.

These amendments were controversial. Supporters expressed concern that the Act as originally enacted was not allowing as many parties to collect as originally intended, and had not provided enough of a brake on unsupportable government litigation. On the other hand, some members expressed the concern that the government is now open to an increased liability every time it chooses to litigate. See discussion in Kramer, Equal Access to Justice Act Amendments of 1996: A New Avenue for Recovering Fees from the Government, 51 Admin. L. Rev. 363, 373–76 (1999). In 2012, this latter concern materialized into a bill when Representative Cynthia Lummis introduced the Government Litigation Savings Act (H.R. 1996), which would, among other things, eliminate the exemption of net-worth limitation for nonprofit organizations, heighten the injury requirement, and expand exceptions to the EAJA for impermissible behavior. While the bill secured 66 co-sponsors and was placed on the “union calendar” in July of 2012, the bill was not put to a vote. In the 113rd Congress she introduced an EAJA reform bill, H.R. 2919, which would require ACUS to systematically monitor EAJA cases and make annual reports to Congress, leading to a database, but no action was taken. However, the idea has attracted bipartisan support in the 114th Congress, see with H.R. 3279 “The Open Book on Equal Access to Justice Act,” and it was incorporated into § 108 of S. 405 (“The Bipartisan Sportsmen’s Act of 2015"), which was placed on the Senate Calendar on February 9, 2015.

Source Note

There is no truly comprehensive, up-to-date source of information on the Equal Access to Justice Act. No publication deals exclusively with Equal Access cases. Monitoring the Federal Government’s Conduct Through Fee Shifting Under the Equal Access to Justice Act—An Inconclusive Experiment, prepared by Harold J. Krent for the Administrative Conference in 1992, offers case analysis as well as insight into how the Act worked in practice up to then; Recommendation 92-5, Streamlining Attorney’s Fee Litigation Under the Equal Access to Justice Act, based in part on Professor Krent’s study, suggested legislative improvements to the Act. Judith Kramer’s 1999 article focusing on the 1996 amendments is still the most up-to-date analysis.

The Bibliography that follows is not intended to be comprehensive, particularly with respect to books and articles about the Act, but to offer a selection of potentially useful publications. Sources before 1985, when the Act was significantly amended, are listed for their background value as well as for their discussion of provisions that remain unchanged. In particular, the preambles to the Conference’s proposed and final rules for agency implementation of the original Act (as well as the 1985 amendments) contain extensive discussion of many questions concerning interpretation of the Equal Access to Justice Act, as does the Justice Department’s 1985 publication, Award of Attorney’s Fees and Other Expenses in Judicial Proceedings Under the Equal Access to Justice Act.

Statistical information on the amount of fees and expenses awarded under the Act in many administrative proceedings and court cases appeared in annual reports (until 1994) by the Chairman of the Administrative Conference of the United States and (until 1992) by the Director of the Administrative Office of the U.S. Courts, respectively. Because these reports depend on the accuracy and completeness of the information provided by the agencies and the courts, they are not necessarily comprehensive.

Bibliography

Legislative History and Congressional Documents

• Hearings on S. 265 Before the Subcomm. on Improvements in Judicial Machinery of the S. Comm. on the Judiciary, 96th Cong., 1st Sess. (1979).
• Report to Accompany S. 265, Senate Comm. on the Judiciary, S. Rep. No. 96-253, 96th Cong., 1st Sess. (1979).
• Report to Accompany S. 265, House Comm. on the Judiciary, H.R. Rep. No. 96-1418, 96th Cong., 2d Sess. (1980).
• S.265, Award of Attorneys’ Fees Against the Federal Government, Hearings before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the House Comm. of the Judiciary, 96th Cong., 2d Sess. (1980).
• Conference Report to Accompany H.R. 5612, Comm. of the Conference, H.R. Rep. No. 96-1434, 96th Cong., 2d Sess. (1980).
• Implementation of the Equal Access to Justice, Hearings Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the H. Comm. on the Judiciary, 97th Cong., 2d Sess. (March 1, April 1, 1982).
• Equal Access to Justice, Hearings Before the Subcomm. on Agency Administration of the S. Comm. on the Judiciary, 97th Cong., 2d Sess. (Dec. 9, 1982).
• S. 919, Reauthorization of the Equal Access to Justice Act, Hearings Before the Subcomm. on Administrative Practice and Procedure of the S. Comm. on the Judiciary, 98th Cong., 1st Sess. (April 14, 1983).
• S. 919, Equal Access to Justice Act, S. 993, Senate Comm. on the Judiciary, S. Rep. No. 98-586, 98th Cong., 2d Sess. (1984) (Aug. 8, 1984).
• Hearings on H.R. 5059 Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the H. Comm. on the Judiciary, 98th Cong., 2d Sess. (March 14, 1984).
• H.R. 5479, Equal Access to Justice Act Amendments, House Comm. on the Judiciary, H.R. Rep. No. 98-992, 98th Cong., 2d Sess. (Sept. 6, 1984).
• H.R. 2223, Equal Access to Justice Act Amendments, Hearings Before the Subcomm. on Courts, Civil Liberties, and the Administration of Justice of the H. Comm. on the Judiciary, 99th Cong., 1st Sess. (1985).
• H.R. 2378, Equal Access to Justice Act Amendments, House Comm. on the Judiciary, H.R. Rep. No. 99-120, 99th Cong., 1st Sess. Part 1 (May 15, 1985), Part 2 (June 13, 1985).
• S. 917 and S. 942: Implementing the White House Conference on Small Business—Recommendations on Regulation and Paperwork, Hearings Before the S. Comm. on Small Business, 104th Cong., 2d. Sess. (Feb. 28, 1996).
• Legislation Relating to Compensation COLA, Court of Veterans Appeals, and Other Matters, Hearing Before the S. Comm. on Veterans’ Affairs, 104th Cong., 2d Sess. (May 23, 1996). (See pages 173–97 for a discussion of EAJA Awards in Court of Veterans Appeals cases.)
• Legislative Hearing on H.R. 435, the “Equal Access to Justice Reform Act of 2005.” Subcomm. on Courts, the Internet, and Intellectual Property, House Committee on the Judiciary, 109th Cong., 2d Sess. (May 23, 2006).
• Open Book on Equal Access to Justice Act, H.R. Rep. No. 113–434 (2014).
• Open Book on Equal Access to Justice Act, H.R. Rep. No. 114–351 (2014).

Administrative Conference Documents

• Draft Model Rules for Implementation of the Equal Access to Justice Act, 46 Fed. Reg. 15,895 (March 10, 1981).
• Model Rules for Agency Implementation of the Equal Access to Justice Act, 46 Fed. Reg. 32,900 (June 25, 1981).
• Report of the Chairman of the Administrative Conference of the United States on Agency Activities Under the Equal Access to Justice Act, October 1, 1989–September 30, 1990 (1991). (See also reports for the fiscal years 1982 through 1989).
• Draft Revised Model Rules for Implementation of the Equal Access to Justice Act, 50 Fed. Reg. 46,250 (Nov. 6, 1985).
• Recommendation 92-5, Streamlining Attorney’s Fee Litigation Under the Equal Access to Justice Act, 57 Fed. Reg. 30,108 (July 8, 1992).
• Model Rules for Implementation of the Equal Access to Justice Act in Agency Proceedings, 1 C.F.R. Part 315 (1993).
• Report of the Chairman on Agency and Court Awards in FY 2010 under the Equal Access to Justice Act (Jan. 9, 2013), available at https://www.acus.gov/sites/default/files/documents/

FY%202010%20EAJA%20Report.pdf.

Other Government Documents

• Administrative Office of the United States Courts, Report by the Director of the Administrative Office of the United States Courts of Requests for Fees and Expenses Under the Equal Access to Justice Act of 1980, July 1, 1991–June 30, 1992, reprinted in Annual Report of the Director of the Administrative Office of the United States Courts 1992, at 92. (See also annual reports for 1982 through 1991.)
• Department of Justice, Office of Legal Policy, Award of Attorneys’ Fees and Other Expenses in Judicial Proceedings Under the Equal Access to Justice Act (Rev. ed. 1985).
• General Accounting Office, Equal Access to Justice Act: Its Use in Selected Agencies, GAO-HEHS-98-58R (2013).
• Small Business Administration, Office of Advocacy, Small Business Attorneys’ Fee Recovery: Report on the Equal Access to Justice Act (1984).
• Small Business Administration, Office of Advocacy, The Equal Access to Justice Act and Small Business—Analysis and Critique (Aug. 10, 2001), available at http://www.sba.gov/advo/laws/eaja01_0810.html.

Books and Articles

• Joel P. Bennett, Winning Attorneys’ Fees from the U.S. Government (Chapter 1) (Law Journal Seminars Press, 1984 (looseleaf, updated periodically).
• D. Greg Blankinship, Washington Equal Access to Justice Act: A Substantial Proposal for Reform, 77 Wash. L. Rev. 169 (2002).
• Hillary Bunker et al., Note, Reforming the Equal Access to Justice Act to Maximize Veterans’ Receipt of Benefits and Increase Efficiency of the Claims Process, 4 Veterans L. Rev. 206 (2012).
• June Carbone, The Misguided Application of Traditional Fee Doctrine to the Equal Access to Justice Act, 26 B.C. L. Rev. 843 (1985).
• D.B. Dobbs, The Market Test for Attorney Fee Awards: Is the Hourly Rate Test Mandatory?, 28 Ariz. L. Rev. 1 (1986).
• James E. Enlow, International Law—Protecting National Security Substantially Justifies U.S. Position and Makes an Award of Fees Under the Equal Access to Justice Act Unjust—Kiareldeen v. Ashcroft, 273 F. 3d 542 (3d Cir. 2001), 26 Suffolk Transnat’l L. Rev. 231 (2002).
• John W. Finley, Note, Unjust Access to the Equal Access to Justice Act: A Proposal to the Act’s Eligibility Loophole for Members of Trade Associations, 53 Wash. U. J. Urb. & Contemp. L. 243 (1998).
• Matthew Fischer, Note, The Equal Access to Justice Act—Are the Bankruptcy Courts Less Equal than Others?, 92 Mich. L. Rev. 2248 (1994).
• Joseph A. Fischetti, Comment, Ratliff v. Astrue: The Collision of the Equal Access Justice Act and the Debt Collection Improvement Act, 40 Seton Hall L. Rev. 723 (2010).
• Louise Hill, An Analysis and Explanation of the Equal Access to Justice Act, 19 Ariz. St. L.J. 229 (1987).
• Louise Hill, Equal Access to Justice Act—Paving the Way for Legislative Change, 36 Case W. Res. L. Rev. 50 (1985–86).
• Thomas W. Holm, Note, Aliens’ Alienation from Justice: The Equal Access to Justice Act Should Apply to Deportation Proceedings, 75 Minn. L. Rev. 1185 (1991).
• Christopher Kelley, Attorney’s Fee Awards for Unreasonable Government Conduct: Notes on the Equal Access to Justice Act, 2004 Ark. L. Notes 437 (2004).
• Jamie H. Kim, Better Access to Justice, Better Access to Attorneys’ Fees–the Procedural Implications of Scarborough v. Principi, 25 J. Nat’l Ass’n Admin. L. Judges 583 (2005).
• Donald J. Kinlin & Michael T. Kavanaugh, A Current Guide to Recovery Under the Equal Access to Justice Act, ABA Section of Public Contract Law (1989).
• Brian Korpics et al., Shifting the Debate: In Defense of the Equal Access to Justice Act, 43 Envtl. L. Rep. News & Analysis 10985 (2013).
• Judith E. Kramer, Equal Access to Justice Act Amendments of 1996: A New Avenue for Recovering Fees from the Government, 51 Admin. L. Rev. 363 (1999).
• Harold J. Krent, Monitoring the Federal Government’s Conduct Through Fee Shifting Under the Equal Access to Justice Act—An Inconclusive Experiment, Report to the Administrative Conference of the U.S. 1992 ACUS 331 (Vol. 1). Portions reprinted in Fee Shifting Under the Equal Access to Justice Act: A Qualified Success, 11 Yale L. & Pol’y Rev. 458 (1993).
• Niki Kuckes, Note, Reenacting the Equal Access to Justice Act: A Proposal for Automatic Attorneys’ Fee Awards, 94 Yale L. J. 1207 (1985).
• Daniel Lee, Sovereign Immunity, Holding the Federal Government Liable for Current Basis Fee Enhancements Requires an Explicit Waiver of Sovereign Immunity from Interest, 66 Geo. Wash. L. Rev. 1066 (1997).
• Alice Miller, Comment, Calling Sierra Club for Help?: Attorney Fees Under the Equal Access to Justice Act and Its Effects on Litigation Involving Large Environmental Groups, 9 Dick. J. Envtl. L. & Pol’y 553 (2001).
• James B. Nobile, Note, Determining Fees for Fees Under the Equal Access to Justice Act: Accomplishing the Act’s Goals, 9 Cardozo L. Rev. 1091 (1988).
• Note, Reforming the Equal Access to Justice Act to Maximize Veterans’ Receipt of Benefits and Increase Efficiency of the Claims Process, 4 Veterans L. Rev. 206 (2012).
• Note, The Equal Access to Justice Act in the Federal Courts, 84 Colum. L. Rev. 1089 (1984).
• Arlene S. Ragozin, Comment, The Waiver of Immunity in the Equal Access to Justice Act: Clarifying Opaque Language, 61 Wash. L. Rev. 217 (1986).
• Robert L. Rossi, Attorneys’ Fees (3d ed. 2001) (West Group) § 10:5.
• Anthony Michael Sabino, “And Unequal Justice for All”—Bankruptcy Court Jurisdiction Under the Equal Access to Justice Act, 22 Mem. St. U. L. Rev. 453 (1992).
• Gregory C. Sisk, A Primer on Awards of Attorney’s Fees against the Federal Government, 25 Ariz. St. L.J. 733 (1993).
• Gregory C. Sisk, The Essentials of the Equal Access to Justice Act: Court Awards of Attorney’s Fees for Unreasonable Government Conduct (Part One), 55 La. L. Rev. 217 (1994); (Part Two), 56 La. L. Rev. 1 (1995).
• Nancy A. Streeff, Note, Gavette v. Office of Personnel Management: The Right to Attorney Fees Under the Equal Access to Justice Act, 36 Am. U. L. Rev. 1013 (1987).
• John J Sullivan, Note, The Equal Access to Justice Act in the Federal Courts, 84 Colum. L. Rev. 1089 (1984).
• Tayler W. Tibbitts, Note, Fee Shifting: Perspective for EAJA Reformers, 28 J.L. & Pol. 371 (2013).

Miscellaneous

• What constitutes “adversary adjudication” by administrative agencies entitling prevailing parties to award of attorneys’ fees under the Equal Access to Justice Act?, 96 ALR Fed. 336.
• Who Is “Party” Entitled to Recover Attorneys’ Fees Under Equal Access to Justice Act (28 U.S.C.A. § 2412(D))?, 107 ALR Fed. 827.
• Who Is “Prevailing Party” so as to Be Entitled to Award of Attorneys’ Fees by Court Under Equal Access to Justice Act (28 U.S.C.A. § 2412(D))?, 105 ALR Fed. 110.
• Recoupment by Pro Se Litigant of Attorney’s Fees Under Equal Access to Justice Act (28 U.S.C.A. § 2412), 107 ALR Fed. 888.
• Award of Attorneys’ Fees in Excess of $75 Per Hour Under Equal Access to Justice Act (EAJA) Provision (28 U.S.C.A. § 2412(D)(2)(A)(ii)) Authorizing Higher Awards—Cases Involving Law Other Than Social Security, 119 ALR Fed. 1.
• Recoupment of Attorney Fees, Under Equal Access to Justice Act (EAJA) (28 U.S.C.A. § 2412), by Litigant Represented by Counsel to Whom No Fee Is Paid by Litigant, 121 ALR Fed. 291.

Agency Regulations

• Agriculture (7 C.F.R. §§ 1.180-1.203)
• Commerce (15 C.F.R. Part 18)
• Commodity Futures Trading Commission (17 C.F.R. Part 148)
• Consumer Product Safety Commission (16 C.F.R. §§ 1025.70-.72)
• Education (34 C.F.R. Part 21)
• Environmental Protection Agency (40 C.F.R. Part 17)
• Federal Communications Commission (47 C.F.R. §§ 1.1501-1.1530)
• Federal Deposit Insurance Corporation (12 C.F.R. §§ 308.169-308.183)
• Federal Labor Relations Authority (5 C.F.R. Part 2430)
• Federal Maritime Commission (46 C.F.R. §§ 502.501-.503)
• Federal Mine Safety and Health Review Commission (29 C.F.R. Part 2704)
• Federal Reserve System (12 C.F.R. §§ 263.100-263.111)
• Federal Trade Commission (16 C.F.R. §§ 3.81-3.83)
• Health and Human Services (45 C.F.R. Part 13)
• Housing and Urban Development (24 C.F.R. Part 14)
• Interior (43 C.F.R. §§ 4.601-4.628)
• International Trade Commission (19 C.F.R. Part 212)
• Justice (28 C.F.R. Part 24)
• Labor (29 C.F.R. Part 16)
• Merit Systems Protection Board (5 C.F.R. 1201.203)
• National Aeronautics and Space Administration (14 C.F.R. Part 1262)
• National Credit Union Administration (12 C.F.R. §§ 747.601-.616)
• National Labor Relations Board (29 C.F.R. §§ 102.143-102.155)
• National Transportation Safety Board (49 C.F.R. Part 826)
• Nuclear Regulatory Commission (10 C.F.R. Part 12)
• Occupational Safety and Health Review Commission (29 C.F.R. Part 2204)
• Office of Government Ethics (5.C.F.R. 2610)
• Postal Service (39 C.F.R. Part 960)
• Securities and Exchange Commission (17 C.F.R. §§ 201.31-201.59)
• Small Business Administration (13 C.F.R. §§ 134.601-134.618)
• State (22 C.F.R. Part 134)
• Transportation (49 C.F.R. Part 6)
  • FAA (14 C.F.R. Part 14)
  • Surface Transportation Board (49 C.F.R. Part 1016)
• Treasury (31 C.F.R. Part 6)
  • Comptroller of the Currency (12 C.F.R. § 19.210)

Statutory Provisions

Equal Access to Justice Act

• 5 U.S.C. § 504. Costs and fees of private parties
• 28 U.S.C. § 2412. Costs and fees