By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Litigation Law Firm
The Equal Access to Justice Act (EAJA) (5 U.S.C. § 504; 28 U.S.C. § 2412) provides for the award of attorney fees (up to $125 per hour) and other expenses to eligible individuals and small entities that are parties to litigation against the government. An eligible party may receive an award when it prevails over the government, unless the government’s position was “substantially justified” or special circumstances make an award unjust.
To recover under EAJA, a claimant must show that it is a “prevailing party.” Parties are considered to be prevailing parties when they have been successful on any significant issue in litigation that achieves some of the benefit the parties sought. A party must also show that the lawsuit was a material factor in bringing about the desired result and the outcome was required by law and was not a gratuitous act by the government. Finally, whether a party is a small entity for purposes of EAJA is determined by a unique size standard included in the act. Compliance with the size standard is a threshold requirement for an award of fees under the act.
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