Washington Law Review


This Comment first summarizes the relevant statutes and key judicial opinions in the section 2412(b) controversy. It then analyzes the disputed text, the impact of alternative textual interpretations on the EAJA as a whole, congressional intent as revealed by the Act's legislative history, and the potential limitations created by the doctrine of sovereign immunity. This Comment argues that the text of the Act creates a presumption that section 2412(b) imposes liability for attorneys' fees on the United States when the government commits an act which would impose such liability on another party. None of the other factors analyzed rebut the presumption; rather, they tend to support it. This Comment concludes that the minority solution to the section 2412(b) puzzle is correct but lacks a rationale applicable across the circuits and the broad range of federal fee-shifting provisions. It therefore offers guidelines for insuring that future interpretations of the waiver provision in relation to other federal fee-shifting statutes neither constrict nor expand the intended scope of section 2412(b).

First Page