[Congressional Record Volume 160, Number 67 (Tuesday, May 6, 2014)]
[House]
[Pages H3430-H3433]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                OPEN BOOK ON EQUAL ACCESS TO JUSTICE ACT

  Mr. CHABOT. Madam Speaker, I move to suspend the rules and pass the 
bill (H.R. 2919) to amend titles 5 and 28, United States Code, to 
require annual reports to Congress on, and the maintenance of databases 
on, awards of fees and other expenses to prevailing parties in certain 
administrative proceedings and court cases to which the United States 
is a party, and for other purposes.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 2919

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

     SECTION 1. SHORT TITLE.

       This Act may be cited as the ``Open Book on Equal Access to 
     Justice Act''.

     SEC. 2. MODIFICATION OF EQUAL ACCESS TO JUSTICE PROVISIONS.

       (a) Agency Proceedings.--Section 504 of title 5, United 
     States Code, is amended--
       (1) in subsection (c)(1), by striking ``, United States 
     Code'';
       (2) by redesignating subsection (f) as subsection (i); and
       (3) by striking subsection (e) and inserting the following:

[[Page H3431]]

       ``(e)(1) The Chairman of the Administrative Conference of 
     the United States, after consultation with the Chief Counsel 
     for Advocacy of the Small Business Administration, shall 
     report to the Congress, not later than March 31 of each year, 
     on the amount of fees and other expenses awarded during the 
     preceding fiscal year pursuant to this section. The report 
     shall describe the number, nature, and amount of the awards, 
     the claims involved in the controversy, and any other 
     relevant information that may aid the Congress in evaluating 
     the scope and impact of such awards. The report shall be made 
     available to the public online.
       ``(2)(A) The report required by paragraph (1) shall account 
     for all payments of fees and other expenses awarded under 
     this section that are made pursuant to a settlement 
     agreement, regardless of whether the settlement agreement is 
     sealed or otherwise subject to nondisclosure provisions.
       ``(B) The disclosure of fees and other expenses required 
     under subparagraph (A) does not affect any other information 
     that is subject to nondisclosure provisions in the settlement 
     agreement.
       ``(f) The Chairman of the Administrative Conference shall 
     create and maintain online a searchable database containing 
     the following information with respect to each award of fees 
     and other expenses under this section:
       ``(1) The case name and number of the adversary 
     adjudication, if available, hyperlinked to the case, if 
     available.
       ``(2) The name of the agency involved in the adversary 
     adjudication.
       ``(3) A description of the claims in the adversary 
     adjudication.
       ``(4) The name of each party to whom the award was made.
       ``(5) The amount of the award.
       ``(6) The basis for the finding that the position of the 
     agency concerned was not substantially justified.
       ``(g) The online searchable database described in 
     subsection (f) may not reveal any information the disclosure 
     of which is prohibited by law or court order.
       ``(h) The head of each agency shall provide to the Chairman 
     of the Administrative Conference in a timely manner all 
     information requested by the Chairman to comply with the 
     requirements of subsections (e), (f), and (g).''.
       (b) Court Cases.--Section 2412(d) of title 28, United 
     States Code, is amended by adding at the end the following:
       ``(5)(A) The Chairman of the Administrative Conference of 
     the United States shall submit to the Congress, not later 
     than March 31 of each year, a report on the amount of fees 
     and other expenses awarded during the preceding fiscal year 
     pursuant to this subsection. The report shall describe the 
     number, nature, and amount of the awards, the claims involved 
     in each controversy, and any other relevant information that 
     may aid the Congress in evaluating the scope and impact of 
     such awards. The report shall be made available to the public 
     online.
       ``(B)(i) The report required by subparagraph (A) shall 
     account for all payments of fees and other expenses awarded 
     under this subsection that are made pursuant to a settlement 
     agreement, regardless of whether the settlement agreement is 
     sealed or otherwise subject to nondisclosure provisions.
       ``(ii) The disclosure of fees and other expenses required 
     under clause (i) does not affect any other information that 
     is subject to nondisclosure provisions in the settlement 
     agreement.
       ``(C) The Chairman of the Administrative Conference shall 
     include and clearly identify in the annual report under 
     subparagraph (A), for each case in which an award of fees and 
     other expenses is included in the report--
       ``(i) any amounts paid from section 1304 of title 31 for a 
     judgment in the case;
       ``(ii) the amount of the award of fees and other expenses; 
     and
       ``(iii) the statute under which the plaintiff filed suit.
       ``(6) The Chairman of the Administrative Conference shall 
     create and maintain online a searchable database containing 
     the following information with respect to each award of fees 
     and other expenses under this subsection:
       ``(A) The case name and number, hyperlinked to the case, if 
     available.
       ``(B) The name of the agency involved in the case.
       ``(C) The name of each party to whom the award was made.
       ``(D) A description of the claims in the case.
       ``(E) The amount of the award.
       ``(F) The basis for the finding that the position of the 
     agency concerned was not substantially justified.
       ``(7) The online searchable database described in paragraph 
     (6) may not reveal any information the disclosure of which is 
     prohibited by law or court order.
       ``(8) The head of each agency shall provide to the Chairman 
     of the Administrative Conference of the United States in a 
     timely manner all information requested by the Chairman to 
     comply with the requirements of paragraphs (5), (6), and (7), 
     including the Attorney General of the United States and the 
     Director of the Administrative Office of the United States 
     Courts.''.
       (c) Clerical Amendments.--Section 2412 of title 28, United 
     States Code, is amended--
       (1) in subsection (d)(3), by striking ``United States 
     Code,''; and
       (2) in subsection (e)--
       (A) by striking ``of section 2412 of title 28, United 
     States Code,'' and inserting ``of this section''; and
       (B) by striking ``of such title'' and inserting ``of this 
     title''.
       (d) Effective Date.--
       (1) In general.--The amendments made by subsections (a) and 
     (b) shall first apply with respect to awards of fees and 
     other expenses that are made on or after the date of the 
     enactment of this Act.
       (2) Initial reports.--The first reports required by section 
     504(e) of title 5, United States Code, and section 2412(d)(5) 
     of title 28, United States Code, shall be submitted not later 
     than March 31 of the calendar year following the first 
     calendar year in which a fiscal year begins after the date of 
     the enactment of this Act.
       (3) Online databases.--The online databases required by 
     section 504(f) of title 5, United States Code, and section 
     2412(d)(6) of title 28, United States Code, shall be 
     established as soon as practicable after the date of the 
     enactment of this Act, but in no case later than the date on 
     which the first reports under section 504(e) of title 5, 
     United States Code, and section 2412(d)(5) of title 28, 
     United States Code, are required to be submitted under 
     paragraph (2) of this subsection.

  The SPEAKER pro tempore. Pursuant to the rule, the gentleman from 
Ohio (Mr. Chabot) and the gentleman from Tennessee (Mr. Cohen) each 
will control 20 minutes.
  The Chair recognizes the gentleman from Ohio.


                             General Leave

  Mr. CHABOT. Madam Speaker, I ask unanimous consent that all Members 
may have 5 legislative days within which to revise and extend their 
remarks and include extraneous materials on H.R. 2919, currently under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Ohio?
  There was no objection.
  Mr. CHABOT. Madam Speaker, I yield myself such time as I may consume.
  I would like to begin by thanking Representative Cynthia Lummis and 
the Constitution Subcommittee ranking member again, Mr. Cohen from 
Tennessee, for introducing this important government transparency 
legislation.
  Every year, pursuant to the Equal Access to Justice Act, the Federal 
Government, through settlement or court order, pays millions of dollars 
in legal fees and costs to parties to lawsuits and administrative 
adjudications that involve the Federal Government.
  However, despite the large number of taxpayer dollars paid out each 
year through the Act, the Federal Government no longer comprehensively 
keeps track of the amount of fees and other expenses awarded, why these 
fees and expenses were awarded, and to whom these costs were awarded.
  This is because, in 1995, Congress repealed the Department of 
Justice's reporting requirements and defunded the Administrative 
Conference of the United States, which is the agency charged with 
reporting this basic information to Congress--to us.
  The Administrative Conference was reestablished in 2010, but the 
requirements to report the fee and cost payments have not been 
reenacted. Accordingly, there has been no official governmentwide 
accounting of this information since fiscal year 1994, almost 20 years 
ago.
  This lack of transparency is troubling, given that the Equal Access 
to Justice Act is considered by many to be the most important Federal 
fee-shifting statute. Fundamentally, the Act recognizes that there is 
an enormous disparity of resources between the Federal Government and 
individuals and small businesses that seek to challenge the Federal 
actions.
  Congress enacted the Equal Access to Justice Act to provide 
individuals, small businesses, and small nonprofit groups with 
financial assistance to bring suit against the Federal Government or to 
defend themselves from lawsuits brought by the Federal Government.
  As the Supreme Court has noted, the Act was adopted with the 
``specific purpose . . . of eliminating for the average person the 
financial disincentive to challenge unreasonable governmental 
actions.''
  But how can we know if the Act is working well toward this end if we 
have no data on awards?
  Without the data, this bill requires the Administrative Conference to 
compile and report that we have nothing more than anecdotal evidence as 
to whether the Act is working.
  The legislation we are considering today will end this lack of 
transparency and will restore the reporting

[[Page H3432]]

requirements that were repealed back in 1995.
  I want to, once again, thank Representatives Lummis and Cohen for 
introducing this bill. It is good legislation, and I urge my colleagues 
to support its passage.
  I reserve the balance of my time.
  Mr. COHEN. Madam Speaker, I yield myself such time as I may consume.
  I rise in strong support of H.R. 2919, the Open Book on Equal Access 
to Justice Act, also known as the Longworth 1004 Act.
  This bipartisan legislation makes a modest, but important improvement 
to the Equal Access to Justice Act, also known as EAJA. That Act, which 
was enacted in 1980, allows parties, under certain circumstances, to be 
awarded attorneys' fees and court costs when they prevail in litigation 
against the United States.
  EAJA enables ordinary citizens, such as veterans, senior citizens, 
and advocates for clean air and clean water, to fight unfair or illegal 
government actions without fear of the court costs involved.
  Over the years, the Act has succeeded, but since 1995, when certain 
reporting requirements were eliminated, we have had no reliable data on 
how much money the government has awarded in these proceedings. The 
public has a right to know how taxpayer funds are used, and Congress 
ought to be able to assess the impact and effectiveness of EAJA.

                              {time}  1800

  To address this failing, H.R. 2919 would require the Administrative 
Conference of the United States, or ACUS, a highly respected 
nonpartisan agency, to prepare an annual report for Congress on the 
fees and costs awarded in these cases. The reports would also include 
the number and nature of the claims involved.
  The Conference would also be required to establish a publicly 
accessible, searchable database with this information, as well as the 
case name, the agency involved, and the basis of the award.
  I am very pleased to sponsor this bill along with the gentlewoman 
from Wyoming (Mrs. Lummis), who has done a great job bringing this to 
this floor, shepherding it through to, hopefully, passage and becoming 
law. We have worked on a bipartisan basis to address this issue.
  H.R. 2919 represents a compromise with respect to a broader bill 
related to EAJA which Mrs. Lummis previously introduced. It is an 
excellent example of what happens when there is bipartisan cooperation.
  This legislation will promote greater transparency with respect to 
our government and provide valuable information for Congress and our 
citizens. It exemplifies the bipartisan cooperation we are capable of 
in this Chamber.
  I urge my colleagues to support this bill, and I reserve the balance 
of my time.
  Mr. CHABOT. Madam Speaker, I yield 3 minutes to the gentlewoman from 
Wyoming (Mrs. Lummis).
  Mrs. LUMMIS. Madam Speaker, I rise in strong support of H.R. 2919, 
the Open Book on Equal Access to Justice Act. I want to thank the 
ranking member, Steve Cohen, for joining me in introducing this 
legislation. The gentleman from Tennessee was the person from whom I 
inherited the hallowed halls of Longworth 1004. Our staff shared 
duties, including each other's phone duties when meetings were being 
held in our offices. It was a great partnership and a wonderful 
bipartisan relationship that I have enjoyed ever since coming to 
Congress.
  I deeply thank the gentleman from Tennessee for his friendship. He 
was instrumental in securing bipartisan support for passage of H.R. 
2919 through the Judiciary Committee.
  H.R. 2919 reinstates the tracking and reporting of attorneys fees 
paid out by the Federal Government under the Equal Access to Justice 
Act, also known as EAJA.
  EAJA was first enacted in 1980, with the goal of protecting small 
businesses and other citizens facing unreasonable government action. It 
was meant to address the David and Goliath situation that exists when a 
citizen has to go to court against the Federal Government's vast 
financial and legal resources.
  Consistent with this theme, EAJA was amended in 1985 to facilitate 
its application to Social Security claims. It was again amended in 1992 
to include claims before the Court of Appeals for Veterans Claims.
  EAJA has been subject to numerous reviews and revisions over the 
years to keep it up to date. Its requirement for agencies to track and 
report on attorneys' fees helped inform Congress in its past efforts to 
improve the law. This transparency was also a safeguard for the Federal 
taxpayers who finance the law.
  Prior to 1995, EAJA payments trickled out at a rate of about $3 
million annually. But since tracking and reporting requirements were 
eliminated in 1995, EAJA has operated in the dark.
  As a Government Accountability Office report made clear, most 
agencies do not track payments--and won't--unless Congress gives them 
direction to do so. Madam Speaker, that is why we are here today.
  As the gentleman from Ohio (Mr. Chabot), mentioned, we only have 
anecdotal evidence as to how much we are spending on attorney fees, 
which agencies pay out the fees, and for what types of claims. We need 
transparency to better monitor this law moving forward.
  H.R. 2919 both reinstates transparency and improves it by requiring 
the information be posted online in a searchable database. We owe this 
to the small businesses, veterans, Social Security claimants, and 
others who rely on EAJA for their once-in-a-lifetime court battles with 
the Federal Government. And we owe it to the hardworking taxpayers who 
are financing this law.
  The SPEAKER pro tempore. The time of the gentlewoman has expired.
  Mr. CHABOT. I yield the gentlewoman an additional 30 seconds.
  Mrs. LUMMIS. I deeply appreciate it.
  Madam Speaker, I urge my colleagues to support H.R. 2919.
  Mr. COHEN. Madam Speaker, I yield such time as she may consume to the 
gentlewoman from Wyoming (Mrs. Lummis).
  Mrs. LUMMIS. Madam Speaker, in great appreciation and deference to 
the gentleman on the Judiciary Committee, and especially to my 
cosponsor, Mr. Cohen, I gratefully acknowledge his cosponsorship--he 
supported this bill--and the hard work of the House Judiciary 
Committee.
  Mr. COHEN. Madam Speaker, I yield back the balance of my time.
  Mr. CHABOT. Madam Speaker, I yield 3 minutes to the gentleman from 
Montana (Mr. Daines).
  Mr. DAINES. Madam Speaker, I want to thank the gentlelady from 
Wyoming (Mrs. Lummis), as well as the gentleman from Tennessee (Mr. 
Cohen) for their bipartisan support in this most important bill.
  I rise in strong support of H.R. 2919, the Open Book on Equal Access 
to Justice Act, which increases transparency and works to ensure that 
the Equal Access to Justice Act, or EAJA, does what it was always 
intended to do: protect citizens and small businesses against the 
limited resources of the Federal Government when they have to go to 
court.
  This law was written to give individuals like our veterans, seniors, 
and small businesses a way to dispute unfair treatment by the 
government. However, the original intent of EAJA has been lost in a sea 
of habitual litigation, especially when it involves the management of 
our natural resources and our public lands and projects that bring 
much-needed jobs and tax revenues to local communities. Much of this 
litigation is awarded with millions of hard-earned taxpayer dollars. 
That is unacceptable.

  In Montana, we have seen firsthand the consequences of some of this 
litigation. Montanans rely on healthy forests and rangelands for their 
livelihoods. Loggers, ranchers, miners, outfitters and guides, and 
others, rely on healthy land management to feed their families.
  In recent decades, inflexible Federal policies and unrelenting 
appeals and lawsuits have imposed a huge administrative burden on our 
Federal agencies, limited our mills' access to timber, and ultimately 
resulted in the mismanagement of our forests, leaving our homes and 
businesses at risk for wildfire and crippling job growth in the timber 
industry.
  In Montana, we used to have 30 sawmills. Today, we have just nine. 
Collaborative projects that the Montana

[[Page H3433]]

timber industry and conservation leaders have spent countless hours 
negotiating are sometimes stopped in court. True conservation is on-
the-ground stewardship by hardworking individuals directly reliant on 
the land. It is not done in the courtroom.
  At the very least, the American people ought to know how much of 
their hard-earned tax dollars are going towards these litigants and the 
information that led to their claims against the Federal agency. The 
Open Book on Equal Access to Justice Act will provide that much-needed 
transparency which, hopefully, can limit these lawsuits and help save 
hundreds of American jobs.
  I urge support for H.R. 2919.
  Mr. CHABOT. Madam Speaker, I yield 3 minutes to the gentleman from 
Georgia (Mr. Collins).
  Mr. COLLINS of Georgia. I thank the gentleman from Ohio.
  Madam Speaker, I am proud to rise in support of the Open Book on 
Equal Access to Justice Act, and I thank the gentlelady from Wyoming 
and the gentleman from Tennessee, my friend on the Judiciary Committee, 
for their hard work on this. Also, Mr. Chabot.
  There are a lot of times we get to disagree on things, but this is 
one we can come together and agree on. And that is a good thing for not 
only our committee, it is good for the American people.
  The Equal Access to Justice Act supports one of our Nation's founding 
principles--equal justice under the law--by making our legal system 
more accessible for all Americans.
  Today's bipartisan legislation simply ensures that Equal Access to 
Justice programs observe commonsense reporting and transparency 
requirements. This good government bill will ensure proper oversight of 
this program by providing both Congress and the public the data they 
need to make informed decisions.
  The original Equal Access to Justice Act rightfully included tracking 
and reporting requirements concerning payments made under the authority 
of this law. Taxpayers should not be on the hook for untold amounts of 
attorneys' fees for special interest groups that sue the Federal 
Government to change policy without public input.
  My constituents simply don't believe their hard-earned money should 
go to groups that push their agenda through litigation instead of the 
regular legislative process. Congress has a responsibility to ensure 
that the Federal Government is truly working on behalf of the Americans 
who fund it. The Open Book on Equal Access to Justice Act will help 
ensure that the original law is working as Congress intended.
  With greater transparency through reporting, the American people will 
have greater confidence that their tax dollars are being well spent.
  I would like to thank again the sponsors for offering this. I am 
proud to be an original cosponsor on this.
  Mr. CHABOT. Madam Speaker, having no further speakers, I yield back 
the balance of my time.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Ohio (Mr. Chabot) that the House suspend the rules and 
pass the bill, H.R. 2919.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill was passed.
  A motion to reconsider was laid on the table.

                          ____________________