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Fee Simple? The 1996 Equal Access to Justice Act Amendments

November 1996

Citation: 26 ELR 10569

Issue: 11

Author: James M. McElfish Jr.

Editors' Summary: For over 15 years, the Equal Access to Justice Act (EAJA) has required the federal government to pay private parties' attorneys fees and other litigation expenses when they prevail against the government in judicial or administrative adjudicatory actions. In 1996, Congress added new provisions to the EAJA, for the first time requiring awards of fees and expenses to certain nonprevailing "small entities" if the demand by the agency is substantially in excess of, and is unreasonable when compared with, the decision of the adjudicative officer or court. The author first examines the development of the EAJA, culminating with the 1996 amendments. He analyzes how the amendments will affect small businesses, organizations, and governmental units, and describes the amendments' unusual legislative history. The author next discusses several issues that the amendments raise, including the definition of "small entity," the standard for an award of fees and expenses, the kinds of administrative adjudications covered, and the amount of recovery available. Finally, the author examines how the amendments are likely to affect private litigants' and agencies' litigation strategies.

Mr. McElfish is a senior attorney at the Environmental Law Institute (ELI). Jon Zeidler, a law student at Georgetown University and law clerk at ELI, assisted in the research for this Article.

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