Washington Law Review


Under the Washington Administrative Procedures Act, a party can challenge an agency action in superior court. The Washington Legislature adopted the Equal Access to Justice Act, which provides fees to qualified parties that prevail in judicial reviews of agency actions, to encourage individuals and small businesses to oppose unjust agency actions. The effectiveness of this fee-shifting provision is significantly limited because awards are not authorized when a court decides that the agency action is substantially justified. The legislature should remove this limitation. Where the agency action involves factual determinations or the interpretation of statutes or regulations within the expertise of the challenged agency, the standard for reviewing the underlying agency action (which turns on a determination of reasonableness) makes the substantial-justification limit redundant. Where the agency action involves questions of pure law, the limit thwarts the legislature's goal of encouraging individuals to oppose unjust agency actions for their own and society's benefit.

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