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Traditionally, the “American rule” for the award of attorneys’ fees has provided that parties will bear their own attorney costs absent the exceptional circumstances in which the losing party has acted in bad faith or the litigation has provided a substantial public benefit. For successful parties in litigation against the federal government, the doctrine of sovereign immunity has precluded an award of attorneys’ fees even if the “American rule” exceptions were met. Only the express waiver of immunity will allow a fee award for private parties who prevail against the government in judicial or administrative proceedings. Despite the existence of approximately 131 federal statutes authorizing fee awards to successful litigants, statutes waiving the federal government’s sovereign immunity are very limited in both number and scope.

In 1980, Congress took a bold step away from the traditional rule in enacting the Equal Access to Justice Act, 28 U.S.C. § 2412 (hereinafter EAJA). Passed on a three year experimental basis, the new statute provided for an award of fees and costs to parties who prevail against the federal government. Congress generally qualified the circumstances under which fees and expenses can be awarded, limited the parties eligible to receive an award, and imposed guidelines on hourly rates.

In passing this new act, Congress was clearly concerned about the ability of parties of limited resources to “take on” the government in court or in administrative proceedings. Congress expressed an intent to compensate those who successfully challenge unreasonable governmental action with the hopes of curbing unjustified governmental activity. Irrespective of Congress’ good intentions, ambiguities in the statutory language and conflicting legislative history created difficulties for the courts in interpreting the EAJA’s provisions. In 1985, Congress reenacted the Act without a “sunset” provision. In the new version, Congress amended certain provisions of the Act to broaden its application and to clarify the legislators’ intent in response to judicial interpretations of the original EAJA.

Despite the recent admonition of the Supreme Court that a “request for attorneys’ fees should not result in a second major litigation,” the courts have been frequently called on to interpret the often ambiguous language of the EAJA. The U.S. Court of Appeals for the Sixth Circuit has not been spared this difficult chore. While the 1985 amendments have clarified some provisions of the Act and affected some major decisions in the Sixth Circuit, the recent changes have also left other previously settled areas in a state of flux. This article reviews the Sixth Circuit’s EAJA decisions from 1983-1987, focusing upon the areas most frequently subject to judicial interpretation.

Publication Citation

19 U. Toledo L. Rev. 301 (1988).