Awards of Attorneys' Fees by Federal Courts and Federal Agencies

Book excerpt: In the United States, the general rule, which derives from common law, is that each side in a legal proceeding pays for its own attorney. There are many exceptions, however, in which federal courts, and occasionally federal agencies, may order the losing party to pay the attorneys' fees of the prevailing party. The major common law exception authorises federal courts (not agencies) to order a losing party that acts in bad faith to pay the prevailing party's fees. There are also roughly two hundred statutory exceptions, which were generally enacted to encourage private litigation to implement public policy. Awards of attorneys' fees are often designed to help to equalise contests between private individual plaintiffs and corporate or governmental defendants. Thus, attorneys' fees provisions are most often found in civil rights, environmental protection, and consumer protection statutes. In addition, the Equal Access to Justice Act (EAJA) makes the United States liable for attorneys' fees of up to $125 per hour in many court cases and administrative proceedings that it loses (and some that it wins) and fails to prove that its position was substantially justified. EAJA does not apply in tax cases, but a similar statute, 26 U.S.C. § 7430, does. Most Supreme Court decisions involving attorneys' fees have interpreted civil rights statutes, and this book focuses on these statutes. It also discusses awards of costs other than attorneys' fees in federal courts, how courts compute the amount of attorneys' fees to be awarded, statutory limitations on attorneys' fees, and other subjects. In addition, it sets forth the language of all federal attorneys' fees provisions, and includes a bibliography of congressional committee reports and hearings concerning attorneys' fees. In 1997, Congress enacted a statute allowing awards of attorneys' fees to some prevailing criminal defendants.