[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.
____________________