Equal Access to Justice Act

In 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." 28 U. S. C. §2412(d)(1)(A). 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"; and (3) a statement of "the amount sought, including an itemized statement from any attorney ... stating the actual time expended and the rate" charged. Section 2412(d)(1)(B)'s second sentence further requires the applicant to "allege that the position of the United States was not substantially justified." Scarborough v. Principi, 124 S. Ct. 1856 (2004).

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. 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.

An applicant for attorney's fees under the EAJA must file an application within thirty days of the final judgment in the civil action. 28 U.S.C. § 2412 (d) (1) (B). Scarborough, 124 S. Ct. 1856 (2004). However, an EAJA application may be filed until thirty days after a judgment becomes “not appealable.” 28 U.S.C. §§ 2412 (d) (1) (B) and (d) (2) (G). In some instances when an agency of the United States is a party in this case, a notice of appeal may be filed within 60 days of entry of the judgment. Fed. R. App. P. 4 (a) (1). Shalala v. Schaefer, 509 U.S. 292 (1993). See Melkonyan v. Sullivan, 501 U.S. 89 (1991).

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