U.S. Argues Court of Appeals Has No Authority to Award EAJA Fees

The U.S. government argued to the Ninth Circuit recently that a federal Court of Appeals does not have the authority to award attorneys’ fees to a prevailing party under the Equal Access to Justice Act (EAJA)

Attorneys for the U.S. Government often make novel arguments which others might hesitate to put forth for fear of invoking the wrath of the court. However, in an argument which is novel even by the standards of government lawyers, the government argued to the Ninth Circuit recently that a federal Court of Appeals does not have the authority to award attorneys’ fees to a prevailing party under the Equal Access to Justice Act (EAJA). How can this be? Federal appellate courts in various circuits have been awarding EAJA fees over the years without any question as to their authority. The government’s argument was that only a “court” can award EAJA fees and a Court of Appeals is not a “court” within the meaning of the statute. Not surprisingly, the Ninth Circuit concluded that it is a “court” for EAJA and other purposes and thus is authorized under the statute to award fees. Orn v. Astrue, ___F.3d ___ (9th Cir. 2008).

The government based its argument on the Supreme Court’s statement in Pierce v. Underwood, 487 U.S. 552, 559 (1988) that “the determination [of eligibility for EAJA fees] is for the district court to make.” The government also cited several Ninth Circuit decisions which also referred to the authority of the “district court.” The Ninth Circuit, in its decision, noted that the authority of the Court of Appeals to make a fee award was not at issue in any of the cited cases, that none of the cited cases referred to the district court authority as exclusive and that the Supreme Court and the Ninth Circuit made reference to the “district court” simply because that is where the application for fees happened to have been made.

In support of its decision, the Ninth Circuit in Orn referred to the language of the statute and the holding of the Supreme Court in Hanrahan v. Hampton, 446 U.S. 754, 755-56 (1980) that the similar language of 42 U.S.C. § 1988 authorized an appellate court to award fees. In addition, the court noted numerous instances in which federal appellate courts had awarded fees under the EAJA and other statutes without challenge to their authority. The court also noted the Circuit Rules which authorize the court to consider fee applications and took note of the position of the Second Circuit that “an application for appellate fees under EAJA should…always be presented to the court of appeals.” McCarthy v. Bowen, 824 F.2d 182 (2nd Cir. 1987). For further information, contact Gerald McIntyre in NSCLC’s Los Angeles office.