“Incurred” Under EAJA Is An Expansive Term, Encompassing Pro Bono Or Derivative Efforts.
Plaintiffs, in Benally v. U.S. Office of Navajo and Hopi Indian Relocation, Case No. 23-3978 (9th Cir. Oct. 1, 2025) (published), obtained a reversal on substantial evidence grounds of an adverse relocation benefits decision (both at the administrative and district court levels) under the Navajo-Hopi Settlement Act. Plaintiffs then moved for a total of about $94,600 in fees and costs under the Equal Access to Justice Act, 28 U.S.C. § 2412 (EAJA).
The Ninth Circuit granted the fee request. Two issues were presented. The first was whether fees were “incurred” under EAJA even though plaintiffs were not responsible for fees and they were paid by the Navajo Nation. That answer was “yes,” the fees were incurred because otherwise plaintiffs would not prosecute these cases if they were exposed to fees—with the entity pragmatically representing plaintiffs having encouragement to vindicate plaintiffs’ interests. The second issue was whether the government was substantially justified in its position. The answer was “no,” because a lack of substantial evidence sealed the fate on this element.