Payment of Attorney Fee Awards Against the United States Under 28 U.S.C. § 2412(b)

Headnotes: 

The United States is liable under 28 U.S.C. § 2412(b) for a court award of attorney fees in civil cases “to the same extent any party would be liable under the common law or under the terms of any statute.” Attorney fees awarded by a court under § 2412(b) are to be paid from the judgment fund, and not from agency appropriations, unless an award is based on a finding of bad faith.

Although the terms of § 207 of the Equal Access to Justice Act, Title II of Pub. L. No. 96-481, 94 Stat. 2325 (1980), prohibit the payment of awards from the judgment fund without a specific congressional appropriation for that purpose, the legislative history of § 207 reveals that Congress only intended § 207 to apply to awards under 5 U.S.C. § 504 and 28 U.S.C. § 2412(d), and not to apply to attorney fee awards under § 2412(b). Thus, § 207 does not bar the Comptroller General from certifying awards of attorney fees under 28 U.S.C. § 2412(b).

Updated July 9, 2014