Fee Shifting Under the Equal Access to Justice Act- A Qualified Success

Congress first waived the government's general immunity from attorney-fee awards by passing the Equal Access to Justice Act ("EAJA" or the "Act") in 1980. The Act was reenacted in 1985. By authorizing courts to award attorney's fees to private parties of modest means who prevail in litigation against the United States, Congress presumably sought to achieve three interconnected goals: to provide an incentive for private parties to contest government overreaching, to deter subsequent government wrongdoing, and to provide more complete compensation for citizens injured by government action. The United States pays almost two thousand EAJA awards in a typical year, and its exposure extends to the thousands more cases each year in which private parties prevail against the government in litigation before both courts and agencies.

Thus, taxpayers currently underwrite millions of dollars in EAJA fees each year to encourage monitoring and deterrence of government wrongdoing.