The Litigation Reimbursement Act changes two fee regimes. For criminal cases, it directs courts to award reasonable attorneys’ fees and other litigation expenses to a prevailing party (other than the United States) in any case that proceeds to trial and ends with a judge or jury verdict that is not a conviction.
For civil suits against the United States, it amends the Equal Access to Justice Act (28 U.S.C. §2412) to replace discretionary “may be awarded” language in subsections (a) and (b) with mandatory “shall be awarded.”
The bill makes fee awards a presumptive cost of losing against the government in a wider set of circumstances. That raises immediate budgetary exposure for the Department of Justice and federal agencies, creates new litigation over what qualifies as a compensable expense and a “verdict that is not a conviction,” and changes incentives for prosecutors, defense counsel, and civil litigants when deciding whether to try cases, dismiss charges, or settle.
At a Glance
What It Does
The bill amends the 1998 appropriations note codified at 18 U.S.C. 3006A note to require (not permit) courts to award reasonable attorney’s fees and other litigation expenses to any non‑government prevailing party after a trial that results in a verdict that is not a conviction. It also amends 28 U.S.C. §2412(a) and (b) to change fee awards under EAJA from discretionary (“may”) to mandatory (“shall”) where the statute otherwise applies.
Who It Affects
Directly affected parties include defendants tried in federal criminal courts who are not convicted, private plaintiffs who prevail in civil actions against the United States under EAJA, defense counsel who seek fee recovery, the Department of Justice and federal agencies that will face increased fee exposure, and federal courts that will adjudicate a new wave of fee applications.
Why It Matters
By turning permissive fee rules into mandatory ones, the bill shifts litigation costs onto the federal government in more cases, alters the risk calculus driving plea bargaining and prosecutorial charging decisions, and is likely to generate follow‑on litigation over the scope of recoverable expenses and the meaning of statutory exceptions preserved elsewhere in the statutes.
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What This Bill Actually Does
The bill rewrites how fee recovery works against the United States in two distinct settings. In criminal cases the existing, narrow discretionary hook — which allowed fee awards only where the government’s position was “vexatious, frivolous, or in bad faith” — is removed and replaced with a categorical requirement: if a criminal matter goes to trial and the judge or jury returns a verdict that is not a conviction, the court shall award reasonable attorneys’ fees and other litigation expenses to the prevailing party other than the United States.
The amendment also updates the statutory trigger so the rule applies to matters pending on or after enactment.
For civil litigation, the bill alters the language of the Equal Access to Justice Act by changing “may be awarded” to “shall be awarded” in two primary subsections. The rest of EAJA’s text remains, so familiar limits and exceptions within the statute (for example, the court’s ability to find the government’s position substantially justified) remain in the statutory text — but the shift from permissive to mandatory will prompt judges and litigants to litigate the contours of those exceptions and whether “shall” limits judicial discretion.Practically, the changes create predictable winners and losers: acquitted defendants and prevailing civil plaintiffs gain a stronger path to fee recovery; the federal government and taxpayers face heavier exposure.
They also create operational questions: how courts will define “other litigation expenses,” whether routine pretrial dismissals or plea withdrawals qualify, and how fee applications will be structured. Those questions will produce follow‑on litigation and likely require agency budget adjustments and new DOJ guidance on charge screening and plea practice.Finally, the change in incentives is important.
Because the criminal provision applies only to trials that end with a verdict that is not a conviction, prosecutors might be more likely to dismiss charges before trial to avoid mandatory payments; conversely, defense counsel may be more willing to push marginal cases to trial to secure fee recovery. Both dynamics could alter caseflow and resource allocation in U.S. Attorneys’ offices and federal courts.
The Five Things You Need to Know
The criminal‑fee rule applies only to cases that proceed to trial and yield a judge’s or jury’s verdict that is not a conviction; pretrial dismissals and plea dispositions are not covered by that trigger.
The statute requires courts to award a prevailing party ‘‘other than the United States’’ reasonable attorneys’ fees and ‘‘other litigation expenses’’ after a non‑conviction verdict; it eliminates the prior requirement that the government’s position be vexatious, frivolous, or in bad faith.
The bill amends 28 U.S.C. §2412(a) and (b) — the core EAJA subsections — by replacing ‘may be awarded’ with ‘shall be awarded,’ making fee awards mandatory where the rest of the statute authorizes them.
The amendments are effective for cases pending on or after enactment; the bill updates an existing appropriations note’s applicability from fiscal year 1998 to fiscal year 2026 and changes the trigger to the act’s enactment date.
The criminal provision still limits recoveries to parties other than the United States, which means private defendants and civil plaintiffs can recover against the government but the government cannot use the provision to obtain reciprocal fees from private parties.
Section-by-Section Breakdown
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Short title
Names the statute the ‘‘Litigation Reimbursement Act.’' This is a housekeeping clause with no operational effect other than giving readers and courts a reference name for the new rules and any implementing guidance or litigation that follows.
Mandatory fee awards after non‑conviction trials (amendment to 18 U.S.C. 3006A note)
This provision replaces the discretionary standard that required a finding of vexatious, frivolous, or bad‑faith government conduct with a mandatory entitlement: if a criminal case goes to trial and the judge or jury returns a verdict that is not a conviction, the court must award reasonable attorney’s fees and other litigation expenses to the prevailing non‑government party. Practically, this creates a bright‑line trigger for recovery (trial + non‑conviction verdict) but leaves room for dispute over what counts as a recoverable ‘‘other litigation expense,’’ how to calculate ‘reasonable’ fees, and whether certain outcomes (e.g., hung juries, mistrials, conditional dismissals) meet the statutory trigger.
Mandatory EAJA awards in civil cases (amendment to 28 U.S.C. §2412)
The bill swaps ‘may’ for ‘shall’ in subsection (a) and (b) of §2412, converting a court’s option into a statutory command where EAJA otherwise authorizes recovery. Because the remainder of EAJA — including language about the government’s substantial justification and any statutory caps or procedural requirements — remains in place, the change raises interpretive questions about whether courts retain meaningful discretion under the statute’s exceptions and how aggressively courts will award fees where the government loses.
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Every bill creates winners and losers. Here's who stands to gain and who bears the cost.
Who Benefits
- Defendants acquitted at trial — they gain an automatic path to recover reasonable attorneys’ fees and litigation costs for trials ending without convictions, improving compensation for the costs of defending themselves.
- Prevailing civil plaintiffs against the United States under EAJA — by converting ‘may’ to ‘shall,’ the bill strengthens recovery prospects for private parties who successfully sue federal agencies, increasing their net expected recovery.
- Defense lawyers and firms representing non‑government parties — fee awards make full compensation more likely, improving attorneys’ incentives to accept meritorious federal criminal and civil defense matters.
- Public‑interest litigants and nonprofits that win suits against the government — mandatory EAJA awards lower the financial risk of bringing meritorious challenges and may expand access to counsel for certain claims.
Who Bears the Cost
- The Department of Justice and federal agencies — they will face larger and more frequent fee and expense awards, increasing litigation budgets and potentially affecting agency program funding.
- Taxpayers — fee and expense payouts come from public funds; higher predictable awards will increase fiscal exposure and could require supplemental appropriations or reallocation within agency budgets.
- United States Attorneys and prosecutors — the new cost structure changes the stakes of taking a case to trial and could pressure offices to alter charging, plea bargaining, and dismissal practices to manage exposure.
- Federal courts and clerks’ offices — more mandatory fee awards will produce higher volumes of fee petitions, contested fee hearings, and related procedural work, increasing administrative burdens and judicial time.
Key Issues
The Core Tension
The central tension is between compensating parties who successfully defend against the government — deterring weak or abusive prosecutions and making defendants whole — and avoiding a system that shifts large, uncertain costs to taxpayers and changes prosecutorial incentives in ways that could reduce dismissals, increase strategic pleading, or spur unnecessary trials. The bill favors individual compensation and deterrence at the potential price of higher public litigation costs and altered prosecutorial behavior.
The bill creates a clear policy objective — shift certain litigation costs onto the government — but leaves several important lines blurry. The statutory trigger for criminal fee recovery is narrow (trial plus non‑conviction verdict), which both limits and complicates outcomes: prosecutors can avoid the mandatory award by dismissing before trial, but a dismissal without a verdict leaves an acquitted defendant without the new statutory remedy.
That creates an incentive for earlier dismissals that may avoid awards but also deny defendants a formal acquittal, and creates the risk that defense counsel will litigate to verdict primarily to obtain fees rather than for vindication alone.
The change from discretionary to mandatory language in EAJA will prompt litigation over how much discretion the courts retain under the statute’s existing exceptions (for example, findings that the government’s position was substantially justified). Courts will have to resolve whether ‘shall’ requires awards unless a narrow, explicitly stated statutory exception applies, or whether courts retain equitable authority to deny fees in special circumstances.
Additionally, what counts as ‘‘other litigation expenses’’ for criminal defendants is undefined: will courts include expert fees, travel, forensic costs, or investigative expenses, and will caps or documentation requirements follow EAJA practice or develop anew? Those interpretive battles will determine how costly the new rule is in practice.
Finally, the bill shifts financial risk toward the government without creating new administrative processes or funding lines to manage the change. DOJ will likely issue internal guidance and may adjust charging practices, and Congress may face follow‑on appropriations pressures.
The combination of budgetary exposure, incentive effects on charging/plea practices, and interpretive uncertainty about recoverable categories of costs means implementation will be contested and uneven across jurisdictions.
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