Justice Manual § 9-117.220

No EAJA award may be charged against the Fund or the Federal participant's Fund allocations without the express written approval of MNF. Requests for approval to charge an EAJA award against the Fund or against Fund allocations must be submitted to MNF in writing.

In non-forfeiture cases, the United States Attorney's Office should follow any procedures established by the Executive Office for United States Attorneys (EOUSA) regarding notification of pending settlements or adverse judgments. The Fund and Fund allocations are not available to fund EAJA awards in non-forfeiture cases. Therefore, AFMLS should not be notified of actions in non-forfeiture cases.

If the government has contested the case and incurred an adverse judgment, a copy of the court order should be provided to all involved agencies immediately to permit their participation in preparation of the request package. The request should be forwarded by the United States Attorney's Office to MNF within 5 business days of the court order. The request should include, as appropriate:

a copy of the court order indicating that the award is being made under 28 U.S.C. § 2412(d) or that the government's position was not substantially justified;

a copy of the seizure warrant and associated affidavit or a copy of the probable cause statement supporting the seizure, if the seizure was cited as a basis for the award;

a copy of any pleadings or answers or a description of any litigative position that was cited as a basis for the award;

a description of any governmental action not referenced above that was cited as a basis for the award; a description of any extenuating factors affecting the seizing agency and the United States Attorney's Office that should be considered;

a list of the agencies involved in the case; and

a joint proposal for allocation of responsibility for the EAJA award among the involved agencies.

If the United States Attorney's Office is proposing to settle an EAJA claim, the materials cited in items (2) through (7) above should be provided to MNF in advance of agreeing to any settlement. This policy is in addition to any other policies governing settlements.

Proposed court orders drafted by the government should be silent as to the source of funds for paying any award. The identification of appropriate sources of funding to pay court judgments is an Executive Branch function and may vary from case to case depending on the facts of the particular case.

In general, responsibility for an EAJA award in a forfeiture case will be allocated equally among the participants, including the United States Attorney's Office. However, this allocation may be modified by MNF, depending on the specific findings made by the court and extenuating circumstances described by the participants. Availability of the Fund to certain participants in a case must not be used to relieve other involved agencies of responsibility for a portion of the award.

Upon approval of the request for authority to pay an EAJA award directly from the Fund, MNF will notify the Asset Forfeiture Management Staff (AFMS), Justice Management Division, and EOUSA that the award may be paid. AFMS will instruct USMS to charge the award directly against the Fund. If the request is to permit use of Fund allocations to pay an EAJA award, the participants will be notified directly by AFMS of the action on the request.

In the case of awards to be paid by the United States Attorneys, AFMS will be responsible for processing the payment.

Questions concerning this policy may be referred to MNF or to Asset Forfeiture Management Staff, Justice Management Division, at 202-616-8000.