MEMORANDUM FOR HEADS OF DEPARTMENTS AND AGENCIES

This memorandum establishes the procedures for determining how to allocate the payment of an award under the Equal Access to Justice Act or the Hyde Amendment when the award involves multiple agencies.

Equal Access to Justice Act. The Equal Access to Justice Act (28 U.S.C. § 2412(d)(A)) authorizes a court to award attorney fees and other litigation expenses to a prevailing party in certain civil actions brought by or against the United States. Such awards are made if the position of the United States was not substantially justified. When an award is made against more than one agency, the agencies shall seek to reach agreement on the allocation. If the agencies cannot agree, the Deputy Attorney General will prepare a report on the dispute for submission to the Director of the Office of Management and Budget (OMB) and the agencies involved. The report will recommend how the award should be allocated. Unless OMB determines otherwise, the recommended allocation will become final within 15 days of its receipt by OMB.

Hyde Amendment. The Hyde Amendment (P.L. 105-119, § 617, 111 Stat. 2440, 2519; 18 U.S.C. § 3006A note) authorizes a court to award attorney fees and other litigation expenses to a prevailing party in certain criminal actions. Such awards are made if the position of the United States was vexatious, frivolous, or in bad faith, unless the court finds that special circumstances make such an award unjust. When an award implicates the conduct of more than one agency, the agencies shall seek to reach agreement on the allocation. If the agencies cannot agree, the Deputy Attorney General and the Deputy-level official(s) for the other agency(ies) will prepare reports on the disputed award for submission to the OMB Director. The reports will recommend how the award should be allocated. OMB will determine the final allocation. Payment of an award by the Department of Justice prior to a final determination by OMB shall not be a factor in that allocation.

This memorandum supersedes OMB Memorandum M-83-18 on the allocation of multi-agency EAJA awards. If your agency has any questions concerning the procedures, please contact OMB's Office of General Counsel, at (202) 395-5044.