What Is The Equal Access To Justice Act

Symbol of JusticeIn the United States of America, the Equal Access to Justice Act (EAJA) authorizes the payment of attorney’s fees to a prevailing party in an action against the United States absent a showing by the government that its position in the underlying litigation “was substantially justified.”  Section 2412(d)(1)(B) sets a deadline of 30 days after final judgment for the filing of a fee application and directs that the application include:

1.  a showing that the applicant is a “prevailing party”;
2. a showing that the applicant is “eligible to receive an award”;
3. a statement of “the amount sought, including an itemized statement from any attorney, stating the actual time expended and the rate” charged.

On October 23, 2013, Representative Bob Goodlatte of Virginia introduced the Innovation Act, which provides for fee shifting between private parties under the same standard used for awarding fees in the Equal Access to Justice Act. This bill was cosponsored by Rep. Peter DeFazio of Oregon. It was passed by the House on December 5, 2013, but was never passed by the United States Senate.[1] The bill was reintroduced in the 114th United States Congress in February 2015 by its original sponsor, Rep. Bob Goodlatte (R, VA-6), and by June 9, 2015, it had accumulated 26 cosponsors.

The Time For Filing An Application Under The EAJA

An applicant for attorney’s fees under the EAJA must file an application within thirty days of the final judgment in the civil action and a party must meet the threshold requirement of having a net worth not in excess of $7,000,000 for any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization. Or, $2,000,000 at the time the action was filed for an individual.

What Is The Substantial Justification and Special Circumstances When Filing Under The EAJA

Heads or TailsThe court must determine whether the position of the United States was substantially justified or . . . special circumstances make an award unjust.” The government has the burden of proving its action is substantially justified or that circumstances make an award of attorney’s fees unjust.  The strong deterrents to contesting Government action that currently exists require that the burden of proof rest with the Government.

The United States Court of Appeals for the Seventh Circuit has described the substantial justification standard as requiring that the government show that 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.

Congress’s inclusion in the EAJA of the substantial justification standard manifests its intent not to permit a prevailing party to automatically recover fees.  

As the Cummings court observed, “these two standards of review “are used at different stages and involve different tests.”  A court at the EAJA stage must take a fresh look at the case from an EAJA perspective, and reach a judgment independent from the ultimate merits decision. Thus, the government’s position may be substantially justified even if its decision was not supported by substantial evidence.

EAJA by Lowell BaierIn Pierce v. Underwood, 487 U.S. 552 (1988), the Supreme Court held that the government’s position is substantially justified if it is “justified to a degree that could satisfy a reasonable person,” that is, “if it has a reasonable basis in law and fact.” The Pierce Court rejected the position that substantial justification requires more than mere reasonableness.

“Substantially justified” does not mean “justified to a high degree,” but rather has been said to be satisfied if there is a “genuine dispute,” or if reasonable people could differ as to the appropriateness of the contested action.  Thus, a loss on the merits does not equate with a lack of substantial justification. “Obviously, the fact that one other court agreed or disagreed with the Government does not establish whether its position was substantially justified. Conceivably, the Government could take a position that is not substantially justified, yet win; even more likely, it could take a position that is substantially justified, yet lose.  Thus, a court’s statement in its merits decision that a government agency did not have a “rational ground” for denying benefits does not imply a lack of substantial justification for the agency’s position.  As the Seventh Circuit explained in Kolman, its statement that the agency did not have a rational ground for its decision was a reference to the test for invalidating agency action; at the EAJA stage, the test is “whether the agency had a rational ground for thinking it had a rational ground for its action.”

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What Are Reasonable Fees Under The EAJA

The applicant for EAJA fees has the burden of proving that the fees requested are reasonable.  The standards which it sets out are applicable generally to attorney’s fee cases.

Amount of Fees

Your Tax DollarsAttorney fees shall not be awarded in excess of $125.00 per hour unless the court determines that an increase in the cost of living or other special factors justifies a higher fee.  The movant bears the burden of producing satisfactory evidence of the prevailing market rate for the kind and quality of legal services rendered.  Applicants for EAJA who claim and provide proof of inflation may be awarded attorney fees at an hourly fee in excess of $125.00 for work beginning after 1996 due to inflation. Failure to adjust the statutory cap for inflation might be considered an abuse of discretion. Google Sierra Club versus Secretary of the Army.  Some costs may be compensated by the EAJA, including federal court filing fee.

Payment of Fees to Litigant and Payment of Government Debts

In Astrue v. Ratliff, 130 S. Ct. 2521 (June 14, 2010) the Supreme Court unanimously held that an EAJA award is payable to the litigant, not his or her attorney, and is subject to offset to satisfy a pre-existing debt that the litigant owes to the United States.

Proposed EAJA Amendments

The Open Book on Equal Access to Justice Act (H.R. 2919; 113th Congress) was introduced into the United States House of Representatives on August 1, 2013.  The bill would amend the Equal Access to Justice Act by requiring the Administrative Conference of the United States (ACUS) to prepare a report each year on the amount of fees and other expenses awarded by federal courts to nonfederal entities when they prevail in a case against the United States.