Robert M. Athey, et al. v. United States

“The United States shall be liable for such fees and expenses to the same extent that any other party would be liable under the common law….” Section 2412(b) of the Equal Access to Justice Act (EAJA) “essentially strips the government of its cloak of immunity with respect to costs and fees and requires it to litigate under the same professional standards applicable to a private litigant.” Mortenson v. United States, 996 F.2d177, 1180-1181 (Fed. Cir. 1991); see also Gavette v. OPM, 808 F.2d 1456, 1466 (Fed. Cir. 1986) (en banc). The legislative history is clear that Congress enacted section 2412(b) so that the United States may be held liable for payment of plaintiffs’ costs and attorney when the government must pay monetary damages to a “common fund.” As held in Gavette, at 1466, the statute “expanded” the ancient American Rule under common law. The Question Presented is: Did a panel of the Federal Circuit err by entirely exempting the United States as a matter of law from liability for such fees and costs pursuant to the American Rule despite the explicit wording of the statute and the precedent of Gavette and Mortenson that Congress had “expanded” the common law in 2412(b) to shift liability for attorney fees and costs to the United States, subject to the reasonable discretion of the trial court?