Nebraska § 25-1803 - Award of fees and expenses against state; when authorized.

§ 25-1803. Award of fees and expenses against state; when authorized.

(1) Unless otherwise provided by law, the court having jurisdiction over a civil action brought by the state or an action for judicial review brought against the state pursuant to the Administrative Procedure Act shall award fees and other expenses to the prevailing party unless the prevailing party is the state, except that the court shall not award fees and expenses if it finds that the position of the state was substantially justified.

(2) The court, in its discretion, may reduce the amount to be awarded pursuant to this section, or deny an award, to the extent that the prevailing party, during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy or when an overriding public interest exists which would make an award unjust.

The mere fact that the State has not been successful in an appellate court does not mean its position was not substantially justified. In re Interest of A.A. et al., 308 Neb. 749, 957 N.W.2d 138 (2021).

This section does not waive sovereign immunity regarding attorney fees and expenses incurred to defend against positions taken against particular parties on particular motions within an action that was, as a whole, substantially justified. In re Interest of A.A. et al., 308 Neb. 749, 957 N.W.2d 138 (2021).

A judgment does not become final and appealable until the trial court has ruled upon a pending request for attorney fees made pursuant to state statute. Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920 N.W.2d 268 (2018).

A party seeking fees authorized by state law must make a request for such fees prior to a judgment in the cause. Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920 N.W.2d 268 (2018).

Attorney fees awarded pursuant to this section are generally treated as an element of court costs, and an award of costs in a judgment is considered a part of the judgment. Webb v. Nebraska Dept. of Health & Human Servs., 301 Neb. 810, 920 N.W.2d 268 (2018).

Subsection (1) of this section acts as a limited waiver of the state's sovereign immunity in civil actions brought by the state to the extent that fees and expenses shall be awarded except when the court finds that the position of the State was substantially justified. Action for contempt brought by intervening prospective adoptive parents when Department of Social Services did not comply with unsupervised visitation order issued in an action brought by the department was a suit brought by the State for the purposes of this section. In re Interest of Krystal P. et al., 251 Neb. 320, 557 N.W.2d 26 (1996).

The establishment of "substantial justification" for a position under the provisions of this section is dependent upon the circumstances of each case. For the purposes of this section, a position has substantial justification if it has a reasonable basis both in law and in fact. The unsuccessful pursuit of a position by the State does not, in and of itself, establish that the position was not "substantially justified" so as to entitle the prevailing party to the award of fees and other expenses under the provisions of this section. Meier v. State, 227 Neb. 376, 417 N.W.2d 771 (1988).

Attorney fees may be awarded under this section only in legal and administrative proceedings initiated after July 17, 1982. Drinkwine v. Flebbe, 219 Neb. 291, 363 N.W.2d 152 (1985).