The Equal Access to Justice Act (EAJA)[i] provides for the award of attorney fees and other expenses to eligible individuals and small entities who are parties to certain adversary adjudications in administrative proceedings.  An eligible party may receive an award when the party prevails over the government, unless the government’s position was substantially justified or special circumstances make an award unjust.  Fee provided under the EAJA is limited to $125 per hour.  The EAJA applies to adversary adjudications pending or commenced on or after August 5, 1985.

To recover fee under the EAJA, a claimant must show that s/he is a prevailing party.  Prevailing party is one who achieves the benefits s/he sought.  To obtain fee under the EAJA a party must also show that:

• the lawsuit was a material factor in bringing about the desired result;
• the outcome was required by law; and
• decision was not a gratuitous act by the government.

If, in adversary adjudication arising from an agency action the demand by the agency is found substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with the decision, the adjudicative officer shall award to the party the fees and other expenses against the excessive demand.  To claim award under the EAJA party need not have committed a willful violation of law or otherwise acted in bad faith.  Award granted should not be unjust in any circumstances.  Fees and expenses awarded shall be paid only as a consequence of appropriations provided in advance.[ii]

Fees and other expenses under the EAJA include:

• the reasonable expenses of expert witnesses:
• the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party’s case; and
• reasonable attorney’s or agent fees.[iii]

Every party other than an agency who participated in adversary adjudication can recover attorney’s fee and agent fee.  Party represented by a non attorney is also permitted under the EAJA to recover fee.  Award provided under the EAJA is mandatory and the agency has no discretion to deny attorney fee provided s/he complies all the requirements under the EAJA.

However certain state laws also authorizes the recovery of reasonable attorney fees.  N.D. Cent. Code § 28-32-50(1) requires an award of reasonable attorney fees and costs to a prevailing claimant if an administrative agency has acted without substantial justification.  N.D. Cent. Code § 28-32-50(1) sets forth a two-part test which must be met in order to properly award attorney fees: first, the non administrative party must prevail, and second, the agency must have acted without substantial justification.[iv]

[i] 5 U.S.C. § 504; 28 U.S.C. § 2412

[ii] 5 U.S.C.A. § 504(a)(4)

[iii] 5 U.S.C.A. § 504(b)(1)(A)

[iv] 5 U.S.C.A. § 504(b)(1)(A), Tedford v. Workforce Safety & Ins., 2007 ND 142 (N.D. 2007).