[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1613 Introduced in Senate (IS)]







105th CONGRESS
  2d Session
                                S. 1613

       To reform the regulatory process, and for other purposes.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            February 5, 1998

 Mr. Feingold introduced the following bill; which was read twice and 
               referred to the Committee on the Judiciary

_______________________________________________________________________

                                 A BILL


 
       To reform the regulatory process, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. EQUAL ACCESS TO JUSTICE REFORM.

    (a) Short Title.--This Act may be cited as the ``Equal Access to 
Justice Reform Amendments of 1998''.
    (b) Award of Costs and Fees.--
            (1) Administrative proceedings.--Section 504(a)(2) of title 
        5, United States Code, is amended by inserting after ``(2)'' 
        the following: ``At any time after the commencement of an 
        adversary adjudication covered by this section, the 
        adjudicative officer may ask a party to declare whether such 
        party intends to seek an award of fees and expenses against the 
        agency should such party prevail.''.
            (2) Judicial proceedings.--Section 2412(d)(1)(B) of title 
        28, United States Code, is amended by inserting after ``(B)'' 
        the following: ``At any time after the commencement of an 
        adversary adjudication covered by this section, the court may 
        ask a party to declare whether such party intends to seek an 
        award of fees and expenses against the agency should such party 
        prevail.''.
    (c) Hourly Rate for Attorney Fees.--
            (1) Administrative proceedings.--Section 504(b)(1)(A)(ii) 
        of title 5, United States Code, is amended by striking all 
        beginning with ``$125 per hour'' and inserting ``$125 per hour 
        unless the agency determines by regulation that an increase in 
        the cost-of-living based on the date of final disposition 
        justifies a higher fee);''.
            (2) Judicial proceedings.--Section 2412(d)(2)(A)(ii) of 
        title 28, United States Code, is amended by striking all 
        beginning with ``$125 per hour'' and inserting ``$125 per hour 
        unless the court determines that an increase in the cost-of-
        living based on the date of final disposition justifies a 
        higher fee);''.
    (d) Payment From Agency Appropriations.--
            (1) Administrative proceedings.--Section 504(d) of title 5, 
        United States Code, is amended by adding at the end the 
        following: ``Fees and expenses awarded under this subsection 
        may not be paid from the claims and judgments account of the 
        Treasury from funds appropriated pursuant to section 1304 of 
        title 31.''.
            (2) Judicial proceedings.--Section 2412(d)(4) of title 28, 
        United States Code, is amended by adding at the end the 
        following: ``Fees and expenses awarded under this subsection 
        may not be paid from the claims and judgments account of the 
        Treasury from funds appropriated pursuant to section 1304 of 
        title 31.''.
    (e) Offers of Settlement.--
            (1) Administrative proceedings.--Section 504 of title 5, 
        United States Code, is amended--
                    (A) by redesignating subsections (e) and (f) as 
                subsections (f) and (g), respectively; and
                    (B) by inserting after subsection (d) the following 
                new subsection:
    ``(e)(1) At any time after the filing of an application for fees 
and other expenses under this section, an agency from which a fee award 
is sought may serve upon the applicant an offer of settlement of the 
claims made in the application. If within 10 days after service of the 
offer the applicant serves written notice that the offer is accepted, 
either party may then file the offer and notice of acceptance together 
with proof of service thereof.
    ``(2) An offer not accepted shall be deemed withdrawn. The fact 
that an offer is made but not accepted shall not preclude a subsequent 
offer. If any award of fees and expenses for the merits of the 
proceeding finally obtained by the applicant is not more favorable than 
the offer, the applicant shall not be entitled to receive an award for 
attorneys' fees or other expenses incurred in relation to the 
application for fees and expenses after the date of the offer.''.
            (2) Judicial proceedings.--Section 2412 of title 28, United 
        States Code, is amended--
                    (A) by redesignating subsections (e) and (f) as 
                subsections (f) and (g), respectively; and
                    (B) by inserting after subsection (d) the following 
                new subsection:
    ``(e)(1) At any time after the filing of an application for fees 
and other expenses under this section, an agency of the United States 
from which a fee award is sought may serve upon the applicant an offer 
of settlement of the claims made in the application. If within 10 days 
after service of the offer the applicant serves written notice that the 
offer is accepted, either party may then file the offer and notice of 
acceptance together with proof of service thereof.
    ``(2) An offer not accepted shall be deemed withdrawn. The fact 
that an offer is made but not accepted shall not preclude a subsequent 
offer. If any award of fees and expenses for the merits of the 
proceeding finally obtained by the applicant is not more favorable than 
the offer, the applicant shall not be entitled to receive an award for 
attorneys' fees or other expenses incurred in relation to the 
application for fees and expenses after the date of the offer.''.
    (f) Elimination of Substantial Justification Standard.--
            (1) Administrative proceedings.--Section 504 of title 5, 
        United States Code, is amended--
                    (A) in subsection (a)(1), by striking all beginning 
                with ``, unless the adjudicative officer'' through 
                ``expenses are sought''; and
                    (B) in subsection (a)(2), by striking ``The party 
                shall also allege that the position of the agency was 
                not substantially justified.''.
            (2) Judicial proceedings.--Section 2412(d) of title 28, 
        United States Code, is amended--
                    (A) in paragraph (1)(A), by striking ``, unless the 
                court finds that the position of the United States was 
                substantially justified or that special circumstances 
                make an award unjust'';
                    (B) in paragraph (1)(B), by striking ``The party 
                shall also allege that the position of the United 
                States was not substantially justified. Whether or not 
                the position of the United States was substantially 
                justified shall be determined on the basis of the 
                record (including the record with respect to the action 
                or failure to act by the agency upon which the civil 
                action is based) which is made in the civil action for 
                which fees and other expenses are sought.''; and
                    (C) in paragraph (3), by striking ``, unless the 
                court finds that during such adversary adjudication the 
                position of the United States was substantially 
                justified, or that special circumstances make an award 
                unjust''.
    (g) Reports to Congress.--
            (1) Administrative proceedings.--No later than 180 days 
        after the date of the enactment of this Act, the Administrative 
        Conference of the United States shall submit a report to 
        Congress--
                    (A) providing an analysis of the variations in the 
                frequency of fee awards paid by specific Federal 
                agencies under the provisions of section 504 of title 
                5, United States Code; and
                    (B) including recommendations for extending the 
                application of such sections to other Federal agencies 
                and administrative proceedings.
            (2) Judicial proceedings.--No later than 180 days after the 
        date of the enactment of this Act, the Department of Justice 
        shall submit a report to Congress--
                    (A) providing an analysis of the variations in the 
                frequency of fee awards paid by specific Federal 
                districts under the provisions of section 2412 of title 
                28, United States Code; and
                    (B) including recommendations for extending the 
                application of such sections to other Federal judicial 
                proceedings.
    (h) Effective Date.--The provisions of this Act and the amendments 
made by this Act shall take effect 30 days after the date of the 
enactment of this Act and shall apply only to an administrative 
complaint filed with a Federal agency or a civil action filed in a 
United States court on or after such date.
                                 <all>