Funding of Attorney Fee Awards Under the Equal Access to Justice Act

Under the Equal Access to Justice Act, the authority and responsibility of an agency adjudicative officer or judge to make an award of attorney fees against the United States does not depend upon the availability of appropriated funds to pay the award. If no appropriated funds are available to pay an award, it remains an obligation of the United States until sufficient funds are appropriated.

Section 207 of the Equal Access to Justice Act precludes payment of a fee award against the United States from the judgment fund without some additional legislative action However, under the funding provision of the Act, an agency’s unrestricted general appropriation is available to pay such awards.

Congress intended agencies to bear the major burden of paying fee awards under the Act from their own general appropriation, so as to encourage more responsible agency behavior, and an agency thus has only limited discretion to decline to pay such awards.