[Congressional Record Volume 161, Number 172 (Monday, November 30, 2015)]
[House]
[Pages H8423-H8426]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                OPEN BOOK ON EQUAL ACCESS TO JUSTICE ACT

  Mr. GOODLATTE. Mr. Speaker, I move to suspend the rules and pass the 
bill (H.R. 3279) 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, as amended.
  The Clerk read the title of the bill.
  The text of the bill is as follows:

                               H.R. 3279

       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:
       ``(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 
     through the 6th calendar year beginning after the initial 
     report under this subsection is submitted, 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, during the period beginning on the date 
     the initial report under subsection (e) is submitted and 
     ending one year after the date on which the final report 
     under that subsection is submitted, 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.
       ``(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, as 
     such party is identified in the order or other agency 
     document making the award.
       ``(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 through the 6th calendar year 
     beginning after the initial report under this paragraph is 
     submitted, 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, during the period beginning on the date 
     the initial report under paragraph (5) is submitted and 
     ending one year after the date on which the final report 
     under that paragraph is submitted, 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.
       ``(B) The name of the agency involved in the case.
       ``(C) The name of each party to whom the award was made, as 
     such party is identified in the order or other court document 
     making the award.
       ``(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 (including the Attorney 
     General of the United States) 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).''.
       (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 
Virginia (Mr. Goodlatte) and the gentleman from Puerto Rico (Mr. 
Pierluisi) each will control 20 minutes.
  The Chair recognizes the gentleman from Virginia.


                             General Leave

  Mr. GOODLATTE. Mr. Speaker, I ask unanimous consent that all Members 
may have 5 legislative days in which to revise and extend their remarks 
and to include extraneous material on H.R. 3279 currently under 
consideration.
  The SPEAKER pro tempore. Is there objection to the request of the 
gentleman from Virginia?
  There was no objection.
  Mr. GOODLATTE. Mr. Speaker, I yield myself such time as I may 
consume.

[[Page H8424]]

  I would like to begin by thanking Representative Doug Collins and 
Constitution Ranking Member Steve Cohen 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 amount of taxpayer dollars paid out each year, the Federal 
Government no longer comprehensively keeps track of the amount of fees 
and other expenses awarded pursuant to the Equal Access to Justice Act.
  Nor does the government compile and report on why these fees and 
expenses were paid 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, the agency charged with reporting this basic 
information to Congress.
  The Administrative Conference was reestablished in 2010, but the 
requirements to report on fee and cost payments have not been 
reenacted. Accordingly, there has been no official governmentwide 
accounting of this information since fiscal year 1994--over 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 who seek to challenge Federal actions.
  Congress enacted the Equal Access to Justice Act to provide 
individuals, small businesses, and small nonprofit groups with 
financial incentives to challenge the Federal Government or 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 the awards? Without the data this bill requires the 
Administrative Conference to compile and report, we have nothing more 
than anecdotal evidence as to whether the act is providing some measure 
of relief to the financial disincentive to seeking judicial and 
administrative redress against the Federal Government.
  The legislation we are considering today will end this lack of 
transparency and restore the reporting requirements that were repealed 
in 1995.
  I want to once again thank Representatives Collins and Cohen for 
introducing this bill, and I urge my colleagues to support its passage.
  I reserve the balance of my time.
  Mr. PIERLUISI. Mr. Speaker, I yield myself such time as I may 
consume.
  I rise in support of H.R. 3279, the Open Book on Equal Access to 
Justice Act, as amended. I support this measure for several reasons.
  To begin with, it strengthens the Equal Access to Justice Act, an 
important law that has helped senior citizens, veterans, the disabled, 
and nonprofit organizations vindicate their rights against unreasonable 
government action.
  Under the so-called American rule, parties to adjudicative matters 
typically pay their own litigation costs, subject to certain statutory 
exceptions. One of these exceptions is the Equal Access to Justice Act, 
which allows a party to be reimbursed for litigation costs when he or 
she is victorious against the Federal Government under specified 
conditions.
  For example, if the United States can show that its position was 
``substantially justified'' or that ``special circumstances'' would 
make an award unjust, then the prevailing party is not entitled to be 
reimbursed for his litigation costs. In addition, only certain parties 
are eligible to be reimbursed for their litigation costs under the act, 
based on their net worth or exempt status, among other factors.
  Whether these restrictions still make sense is an open question, as 
Congress simply does not have adequate information to assess the 
effectiveness of the act. This is because there has been no 
comprehensive Federal report on the total amount of fees awarded under 
the act since 1995, and, as a result, there has simply been conjecture.
  Fortunately, H.R. 3279 addresses this shortcoming by requiring annual 
reports on the amount of fees paid under the act to prevailing 
litigants against the government. As a result of this legislation, 
Congress will know on an annual basis the agencies that have been 
required to reimburse parties for their litigation costs, the claims 
giving rise to the litigation, and the amount of the awards made under 
the act, as well as the basis for them. With this information, Congress 
will be in a much better position to assess the implementation of the 
act and the performance of the agencies as litigants.
  Another reason why I support this bill is that it respects the 
privacy interests of the parties who are reimbursed for their 
litigation costs pursuant to the act. Unfortunately, prior versions of 
this legislation were unnecessarily intrusive. Organizations such as 
the National Organization of Social Security Claimants' Representatives 
and the Paralyzed Veterans of America expressed serious concerns that 
these earlier versions of the bill would ``infringe the privacy of 
vulnerable people who have applied for social security and veterans' 
benefits.''
  These are real concerns, especially given the fact that the bill 
requires the information collected be made available to the public 
through the Internet. As currently drafted, however, H.R. 3279 strikes 
the right balance between encouraging transparency while respecting the 
legitimate privacy interests of parties.
  Finally, I support this bill because it recognizes the important role 
that the Administrative Conference of the United States has 
historically played in helping Congress identify inefficiencies among 
the Federal agencies and ways to save taxpayer dollars.
  In addition to requiring the Conference to prepare an annual report 
to Congress detailing the litigation costs reimbursed by the Federal 
Government to parties, the bill also requires the Conference to provide 
``any other relevant information that may aid Congress in evaluating 
the scope and impact of such awards.''
  Given the excellent work and scholarly analysis that have been 
hallmarks of the Conference, I expect its report and its attendant 
findings will be an invaluable aid to Congress.

  As the Judiciary Committee is the authorizing committee for the 
Conference, I encourage our friends on the Appropriations Committee to 
ensure that the Conference has adequate funding to implement this 
important legislation.
  In closing, I want to recognize my colleagues on both sides of the 
aisle for their diligence in helping to craft this bipartisan 
legislation.
  The gentleman from Georgia, Doug Collins, and the gentleman from 
Tennessee, Steve Cohen, as well as the gentlewoman from Wyoming, 
Cynthia Lummis, have cooperatively worked to effectuate a commonsense 
bill that will improve the efficiency and accountability of the Federal 
Government.
  Accordingly, I urge my colleagues to support H.R. 3279.
  I reserve the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I yield such time as he may consume to 
the gentleman from Georgia (Mr. Collins), a member of the Judiciary 
Committee and the chief sponsor of this legislation.
  Mr. COLLINS of Georgia. Mr. Speaker, I thank the chairman for 
yielding and his work in bringing this to the floor, and I appreciate 
it.
  Mr. Speaker, I rise today in support of H.R. 3279, the Open Book on 
Equal Access to Justice Act. I introduced this legislation with a 
bipartisan group of cosponsors to provide additional transparency and 
oversight of taxpayer dollars awarded under the Equal Access to Justice 
Act.
  I want to thank all of the original cosponsors of this legislation 
for their support. In particular, my friend from Tennessee, Steve 
Cohen, a member of the Judiciary Committee, but also a special thank 
you also to Cynthia Lummis from Wyoming, who has been an advocate of 
this legislation. I just want to thank her for her tireless work and 
leadership on this issue as we move forward.

[[Page H8425]]

  H.R. 3279 passed the Judiciary Committee on a voice vote on October 
27, 2015. Almost identical legislation passed both the Judiciary 
Committee and the full House on a voice vote last Congress.
  The bill reinstates needed transparency and accountability measures 
to ensure that the Equal Access to Justice Act is helping individuals, 
retirees, veterans, and small businesses as intended.
  Congress originally passed the Equal Access to Justice Act in 1980 to 
remove a barrier to justice for those with limited access to the 
resources it takes to sue the Federal Government and to recover 
attorneys' fees and costs that go along with such suits. The law was 
written to provide citizens with the opportunity to challenge or defend 
against unreasonable government actions where they otherwise might be 
deterred by large legal expenses.
  To be eligible for payment under EAJA, an individual's net worth must 
be less than $2 million and a business or organization must have a net 
worth of less than $7 million, although the cap does not apply to 
certain tax-exempt organizations.
  The Equal Access to Justice Act was intended to address the David and 
Goliath scenario where wronged citizens have to go to court and face 
the Federal Government's vast financial and legal resources. It is past 
time that we ensure this law is working for citizens in need and for 
taxpayers alike.
  Payments of EAJA attorneys' fees come from the budget of the agency 
whose action gave rise to the claim. While the original Equal Access to 
Justice Act legislation included a requirement to track payments and 
report to Congress annually, Congress and the agencies halted tracking 
and reporting of payments made through the Equal Access to Justice Act 
in 1995.
  A Government Accountability Office report indicated that without any 
direction to track payments, most agencies simply do not do it, and 
Congress and taxpayers are unable to exercise oversight over these 
funds. In fact, we only have anecdotal evidence about how much we are 
spending on attorneys' fees, the agencies paying out on these fees, and 
what types of claims are being covered.
  This is simple, commonsense transparency.
  Since 1995, there has been no comprehensive Federal report on the 
total amount of fees awarded under the Equal Access to Justice Act. We 
are sorely behind on our oversight responsibilities in this area, and 
H.R. 3279 takes steps to address that problem.
  H.R. 3279 requires the Administrative Conference of the United States 
to annually report to Congress on the ``number, nature, and amount of 
the awards, claims involved in the controversy, and any other relevant 
information that may aid the Congress in evaluating the scope and 
impact of such awards.'' This report covers both agency adjudications 
and court proceedings.
  H.R. 3279 also requires the Administrative Conference to develop and 
implement an online searchable database to facilitate public and 
congressional oversight. Agencies would be required to provide 
information requested by the ACUS for the development of the database 
and reports, but, importantly, the ACUS would be required to withhold 
information from the database if disclosure is prohibited by law or 
court order.
  The Open Book on Equal Access to Justice Act ensures that agencies 
are operating under a watchful public eye and that taxpayer dollars are 
being spent properly.
  Our Federal Government is too big, and I believe it needs to be 
downsized; but until we can make that happen, transparency should be a 
minimum requirement. That is why H.R. 3279 is important. It is common 
sense, plain and simple. Where the Federal Government is spending 
money, Congress needs to exercise oversight to ensure it is being done 
the way the law requires.

                              {time}  1645

  For most people who are facing a suit against the Federal Government, 
it is a once-in-a-lifetime challenge and a daunting suit to undertake 
even if they are completely in the right. We need to make sure the law 
is working for them. Allowing plaintiffs to recoup legal costs when 
they sue the Federal Government for reparations they deserve is only 
fair.
  Many Americans do not have the resources to take on our vast and 
sprawling bureaucracy, but the Equal Access to Justice Act gave them 
the power to do so by removing a barrier to justice for those with 
limited access to resources. However, since the original reporting 
requirements were halted by Congress, information on these payments 
made under the law is severely lacking.
  Tracking and reporting payments will help preserve the integrity of 
this law and will help Congress make sure that the law is working 
effectively for the people it was intended to help.
  It is past time that we shine a light on this issue. We owe 
transparency to the taxpayers who are financing the law, and we owe it 
to the citizens--the small businesses, the veterans, and the Social 
Security claimants--who rely on the law.
  H.R. 3279 represents a bipartisan agreement that transparency over 
payments made under the Equal Access to Justice Act needs to be 
restored. The Open Book on Equal Access to Justice Act will help to 
ensure that taxpayer dollars are being spent as intended under this 
law.
  Past support for this legislation demonstrates a consensus that we 
need to address this issue and that Americans deserve to know what 
their government is doing.
  I urge my colleagues to support H.R. 3279.
  Mr. PIERLUISI. Mr. Speaker, I yield back the balance of my time.
  Mr. GOODLATTE. Mr. Speaker, I urge my colleagues to support this 
legislation.
  I yield back the balance of my time.
  Ms. JACKSON LEE. Mr. Speaker, I rise in support of H.R. 3279, the 
``Open Book on Equal Access to Justice Act,'' a bill to amend titles 5 
and 28 of the United States Code to direct the Administrative 
Conference of the United States (ACUS) to prepare an annual report to 
Congress on fees and other expenses awarded to prevailing parties under 
the Equal Access to Justice Act.
  As a senior member of the Judiciary Committee, former municipal judge 
and staunch believer and advocate for equal justice, I support this 
bill because it will provide Congress with valuable insight and 
comprehensive data needed to assess the actual effectiveness of the 
Equal Access to Justice Act (EAJA).
  Specifically, H.R. 3279 will amend the EAJA and the federal judicial 
code to require the Chairman of the Administrative Conference of the 
United States to report to Congress annually on the amount of fees and 
other expenses awarded to prevailing parties other than the United 
States in certain administrative proceedings and civil action court 
cases (excluding tort cases) to which the United States is a party, 
including settlement agreements.
  Pursuant to the EAJA, these litigation fees include the reasonable 
expenses of expert witnesses, the reasonable cost of any study, 
analysis, engineering report, test, or project which is found by the 
agency to be necessary for the preparation of the party's case, and 
reasonable attorney or agent fees.
  If enacted, H.R. 3279 will require the ACUS to provide the number, 
nature, and amount of awards, the claims involved in the controversy, 
as well as any other relevant information that may assist Congress in 
assessing the scope and impact of such fees awarded.
  H.R. 3279 further directs that such information be made available by 
establishing an online searchable database including the name of the 
agency involved, the name of each party to whom the award was made, the 
amount of the award, and the basis for finding that the position of the 
agency concerned was not substantially justified.
  In collecting and providing this data, this bill addresses concerns 
about the implementation of EAJA and whether Congress needs to 
intervene and amend it.
  For more than three decades, however, the EAJA has served as an 
important vehicle to enhance parties' ability to hold government 
agencies accountable for their actions and inactions.
  Simply speaking, the EAJA was designed to help the underdog or those 
with limited resources stand up against government transgressions.
  EAJA allows individuals, small businesses and nonprofits to recover 
critical litigation costs and attorney fees from the federal government 
in cases that may otherwise be financially intimidating or restrictive.
  The EAJA is used to vindicate a variety of federal rights, including 
access to Veterans Affairs and Social Security disability benefits, as 
well as to secure statutory environmental protections.
  The EAJA is an important tool that promotes public involvement in 
laws that have a significant impact on the public health and safety, 
such as the National Environmental Policy Act, Clean Air Act and Clean 
Water Act.

[[Page H8426]]

  EAJA also helps deter government inaction or erroneous conduct and 
encourages all parties, not just those with resources to hire legal 
counsel, to assert their rights.
  Generally, it has been concluded by policy experts that EAJA has been 
cost-effective, applies only to meritorious litigation and that 
existing legal safeguards and the independent discretion of federal 
judges will continue to ensure its prudent application.
  Nonetheless, the good intentions that brought the EAJA into law have 
been overshadowed by re-occurring accounts of misuse by a small 
percentage of large environmental groups.
  A 2011 GAO study (requested by House Republicans) of cases brought 
against EPA found: 1. most environment lawsuits (48%) were brought by 
trade associations and private companies; 2. attorney fees were awarded 
only about eight percent of the time; 3. among environmental 
plaintiffs, the majority of cases were brought by local groups rather 
than national groups; and 4. the average award under the EAJA was only 
about $100,000.
  Thus, while claims of misuse and abuse are largely misplaced, I urge 
my colleagues to support this request for further review and analysis, 
so that we may gain a better understanding and congressional clarity on 
the functional benefits and necessary workings of the EAJA.
  The SPEAKER pro tempore. The question is on the motion offered by the 
gentleman from Virginia (Mr. Goodlatte) that the House suspend the 
rules and pass the bill, H.R. 3279, as amended.
  The question was taken; and (two-thirds being in the affirmative) the 
rules were suspended and the bill, as amended, was passed.
  A motion to reconsider was laid on the table.

                          ____________________