Funding of Attorney Fee Awards Against the United States Under Rule 37


Attorney fee awards may be imposed against the United States for abuse of discovery under Rule 37 of the Federal Rules of Civil Procedure, by virtue of the general waiver of sovereign immunity in 28 U.S.C. § 2412(b) (Supp. V 1981), which was intended to make the United States and private litigants equally liable for a fee award based on the common law or on an applicable fee-shifting statute.

Rule 37 by itself could not provide sufficient authority for a court to award attorney fees against the United States; the requisite waiver of sovereign immunity cannot be accomplished by a courtmade rule, but only by explicit legislative action.

A judgment awarding attorney fees against the United States under authority of 28 U.S.C. § 2412(b) is ordinarily paid from the judgment fund. See 28 U.S.C. § 2412(c)(2). However, where a fee award is based on a finding of bad faith on the part of a government agency, as is the case here, it must be paid from the agency's general appropriation.

Updated July 9, 2014