Justice Manual § 9-117.210

Notwithstanding the legal availability of the Assets Forfeiture Fund for EAJA awards, the Department limits by policy the cases in which Fund monies may be used for such awards. The Congress enacted the EAJA for specific public policy reasons. It would be inappropriate for the Fund to be used in a manner that completely ignored or negated the public policy basis for the EAJA. In an attempt to balance the competing interests involved, the following three tier policy is established:

The Fund will fund the EAJA award in any case in which the actions of the Federal participants were clearly consistent with current law and Department policy. This includes those cases in which:

The Money Laundering, Narcotics and Forfeiture Section (MNF), Criminal Division, is involved in planning a specific case or program initiative and the participating agency was executing the planned initiative in good faith;

The Federal participants were executing their responsibilities in consonance with current law and Department policy but the court creates a novel reason or basis for overturning a case that could not be anticipated;

Similar "no fault" cases. Once approved, the EAJA awards in these cases will be paid by the Fund against the case related expenses category;

The Fund allocations of the federal participant will be available to fund awards where the agency personnel were acting in good faith but it is not clear that their actions were consistent with existing law and Department policy. Once approved, the funds are to be taken from the case related expenses category. If there are insufficient funds available to cover the award, then the shortfall may be made up by funds available for other categories of expense. A request for reallocation will be approved for this purpose. Total allocations will not be increased to make up for the payment of the award; and

In any case in which the court finds bad faith or an intentional disregard for existing law or Department policy by the federal participants, the Fund will not be available, either directly or indirectly, to fund the EAJA award.