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Awards of Attorneys' Fees by Federal Courts and Federal Agencies Order Code 94-970 Awards of Attorneys’ Fees by Federal Courts and Federal Agencies Updated June 20, 2008 Henry Cohen Legislative Attorney American Law Division Awards of Attorneys’ Fees by Federal Courts and Federal Agencies Summary In the United States, the general rule, which derives from common law, is that each side in a legal proceeding pays for its own attorney. There are many exceptions, however, in which federal courts, and occasionally federal agencies, may order the losing party to pay the attorneys’ fees of the prevailing party. The major common law exception authorizes federal courts (not agencies) to order a losing party that acts in bad faith to pay the prevailing party’s fees. There are also roughly two hundred statutory exceptions, which were generally enacted to encourage private litigation to implement public policy. Awards of attorneys’ fees are often designed to help to equalize contests between private individual plaintiffs and corporate or governmental defendants. Thus, attorneys’ fees provisions are most often found in civil rights, environmental protection, and consumer protection statutes. In addition, the Equal Access to Justice Act (EAJA) makes the United States liable for attorneys’ fees of up to $125 per hour in many court cases and administrative proceedings that it loses (and some that it wins) and fails to prove that its position was substantially justified. EAJA does not apply in tax cases, but a similar statute, 26 U.S.C. § 7430, does. Most Supreme Court decisions involving attorneys’ fees have interpreted civil rights statutes, and this report focuses on these statutes. It also discusses awards of costs other than attorneys’ fees in federal courts, how courts compute the amount of attorneys’ fees to be awarded, statutory limitations on attorneys’ fees, and other subjects. In addition, it sets forth the language of all federal attorneys’ fees provisions, and includes a bibliography of congressional committee reports and hearings concerning attorneys’ fees. In 1997, Congress enacted a statute allowing awards of attorneys’ fees to some prevailing criminal defendants. Contents I. Introduction: The American Rule and its Exceptions .....................1 II. Common Law Exceptions to the American Rule .......................2 Common Benefit Doctrine.......................................3 Bad Faith Exception............................................4 Private Attorney General Doctrine.................................5 III. The Equal Access to Justice Act ...................................6 IV. The Dual Standard: Prevailing Plaintiffs and Prevailing Defendants ......12 V. The Concept of Prevailing Party ...................................14 VI. Awards of Attorneys’ Fees Incurred in Administrative Proceedings ......19 Awards of Attorneys’ Fees by Administrative Agencies...............23 VII. Awards of Attorneys’ Fees in Civil Rights Cases ....................25 Civil Rights Act of 1964, Title II: Public Accommodations ............25 Civil Rights Act of 1964, Title III: Public Facilities ..................26 Civil Rights Act of 1964, Title VII: Equal Employment Opportunities ...26 Fair Housing Act .............................................27 Fair Labor Standards Act.......................................28 Age Discrimination in Employment Act of 1967 ....................28 Equal Credit Opportunity Act ...................................29 Voting Rights Act of 1965 ......................................29 Civil Service Reform Act of 1978 ................................29 Age Discrimination Act of 1975 .................................30 Civil Rights of Institutionalized Persons Act ........................30 Rehabilitation Act of 1973 ......................................32 Individuals with Disabilities Education Act ........................32 Americans with Disabilities Act of 1990 ...........................33 Civil Rights Attorney’s Fees Awards Act of 1976 ...................33 42 U.S.C. § 1981 .........................................35 42 U.S.C. § 1981a ........................................35 42 U.S.C. § 1982 .........................................35 42 U.S.C. § 1983 .........................................35 42 U.S.C. § 1985 .........................................37 42 U.S.C. § 1986 .........................................37 Title IX of P.L. 92-318 .....................................37 Religious Freedom Restoration Act of 1993 ....................38 The Religious Land Use and Institutionalized Persons Act of 2000 .............................................38 Civil Rights Act of 1964, Title VI: Federally Assisted Programs ....39 Violence Against Women Act of 1994 ........................39 VIII. Awards of Attorneys’ Fees in Tax Cases ..........................39 IX. Awards of Attorneys’ Fees Against the States........................41 Awards of Attorneys’ Fees Against State Judges ....................45 X. Awards of Costs in Federal Courts.................................46 Awards of Costs For and Against the United States ..................48 XI. Determining a Reasonable Attorneys’ Fee ..........................48 XII. Rule 68 of the Federal Rules of Civil Procedure .....................54 XIII. Negotiated Fee Waivers .......................................57 XIV. Statutory Limitations on Attorneys’ Fees ..........................58 XV. Funding of Participants in Federal Agency Proceedings ...............59 XVI. Some Arguments For And Against The American Rule ..............61 XVII. Awards of Attorneys’ Fees to Prevailing Criminal Defendants ........62 Federal Statutes That Authorize Awards of Attorneys’ Fees ...............64 Bibliography of Congressional Publications...........................115 Committee Prints and Reports ..................................115 Committee Hearings .........................................117 Awards of Attorneys’ Fees by Federal Courts and Federal Agencies I. Introduction: The American Rule and its Exceptions “In the United States, the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline Service Co. v. Wilderness Society, 421 U.S. 240, 247 (1975). This is known as the “American rule” (as opposed to the English rule, which routinely permits fee-shifting) and derives from court-made law. It has, however, numerous statutory exceptions (listed at the back of this report) some, if not most, of which Congress enacted in order to encourage private litigation to implement public policy. Id. at 263. Under these exceptions, a federal court (and sometimes a federal agency) may order the losing party to a lawsuit to pay the winning party’s attorneys’ fees. Although “attorney’s fees generally are not a recoverable cost of litigation ‘absent explicit congressional authorization,’ ... [t]he absence of specific reference to attorney’s fees is not dispositive if the statute otherwise evinces an intent to provide for such fees.”1 Fee-shifting has been proposed, not only to encourage lawsuits, but to discourage them, especially tort suits. The English “loser pays” rule was included in tort reform legislation proposed by the Bush Administration in 1992, and in “The Common Sense Legal Reforms Act,” which is part of the “Contract With America” proposed by the Republican House Members in 1994.2 The American rule has two major common law exceptions (instances when federal courts may award attorneys’ fees without statutory authorization): the common benefit doctrine and the bad faith doctrine.3 These derive from the historic 1 Key Tronic Corp. v. United States, 511 U.S. 809, 814-815 (1994) (holding that the phrase “any other necessary costs of response incurred by any other person” in § 107 of the Comprehensive Environmental Response, Compensation, and Liability Act, 42 U.S.C. § 9607, does not include attorneys’ fees). 2 See, CRS Report 92-237, Attorneys’ Fees: The Bush Administration Proposal to Adopt the English Rule by Henry Cohen (archived, available from author); CRS Report 95-27, Common Sense Legal Reforms Act of 1995: Title I — Civil Justice Reform (Attorneys’ Fees, Products Liability, Etc.), by Henry Cohen (archived, available from author). The Attorney Accountability Act of 1995, H.R. 988, 104th Cong., which grew out of the Common Sense Legal Reforms Act of 1995 (which was part of the House Republicans’ “Contract With America”), passed the House. It would have required, among other things, the payment of attorneys’ fees in connection with rejected settlement offers in diversity cases. 3 The Supreme Court has noted a third exception: “a court may assess attorney’s fees as a (continued...) CRS-2 authority of the courts “to do equity in a particular situation.”4 This authority has been called the “supervisory” or “inherent” power of the federal courts.5 Federal courts may use this inherent power even in diversity cases, which are cases arising under state law that are brought in federal court pursuant to 28 U.S.C. § 1332 when the parties are citizens of different states and the amount in controversy exceeds $50,000. Chambers v. NASCO, Inc., 501 U.S. 32 (1991). In Alyeska, the Court had written that, “in the ordinary diversity case where the state law does not run counter to a valid federal statute or rule of court, and usually it will not, state law denying the right to attorney’s fees or giving right thereto, which reflects a substantial policy of the state, should be followed.” 421 U.S. at 259 n.31. In Chambers, the Court explained that this limitation “applies only to fee-shifting rules
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