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Attorney’s Fee Awards for Unreasonable Government Conduct: Notes on the Equal Access to Justice Act

By · October 15, 2004 · 2004 Ark. L. Notes 437
In categories: Archive

The “American Rule” of attorney’s fees ordinarily requires each party to pay its own fees in the absence of express statutory authority to the contrary. When one of the parties is the federal government this rule is bolstered by the government’s sovereign immunity. Yet even if the federal government has waived its sovereign immunity and consented to be sued, a general waiver of sovereign immunity is not to be “construed to extend to attorney’s fees unless Congress has clearly indicated that it should.”

In about 200 statutes Congress has clearly put aside the American Rule and waived the federal government’s sovereign immunity to permit the award of attorney’s fees to prevailing parties other than the federal government. Nearly all of these statutes apply only to particular statutory causes of action, for often they were enacted in tandem with the creation of the right of action to which they apply. For example, private parties who “substantially prevail” in actions brought under the Freedom of Information Act may recover their reasonable attorney fees.

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