Legal Memorandum: Award of Cost and Fees under the EAJA

Issue: Does the Equal Access to Justice Act provide for a prevailing party against the United States to recovery attorney’s fees and costs?

The Equal Access to Justice Act (EAJA) provides for attorney’s fees and costs.  “Except as otherwise specifically provided by statute, a judgment for costs,*FN1 but not including the fees and expenses of attorneys, may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity.”  28 U.S.C. § 2412(a)(1) (emphasis added).  Accordingly, the United States may also seek its costs if it prevails.  Id.  Unless prohibited by statute, “a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailing party in any civil action brought by or against the United States or any agency or any official of the United States acting in his or her official capacity in any court having jurisdiction of such action.”  Id. at subd. (b).  However, the United States is liable only to the extent another party would be liable under the common law.  Id.  Generally, at common law, the American Rule requires parties to bear their own costs unless the (1) the other party acted in bad faith, (2) the prevailing party obtained some “common benefit” for a class, or (3) there was a “common fund” requiring payment.  Sprague v. Heckler, 619 F. Supp. 1289, 1295 (D. Me. 1985) (citing Alyeska Pipeline Service Co. v. Wilderness Society, […]