[Congressional Record Volume 163, Number 34 (Monday, February 27, 2017)]
[House]
[Pages H1334-H1336]
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. 1033) to amend titles 5 and 28, United States Code, to
require 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. 1033
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 (h);
(3) by striking subsection (e); and
(4) by inserting after subsection (d) the following:
``(e) The Chairman of the Administrative Conference of the
United States 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.
``(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.
``(f) The online searchable database described in
subsection (e) may not reveal any information the disclosure
of which is prohibited by law or court order.
``(g) The head of each agency shall provide to the Chairman
of the Administrative Conference of the United States, no
later than 60 days following the Chairman's request, all
information requested by the Chairman to comply with the
requirements of subsections (e) and (f).''.
(b) Court Cases.--Section 2412(d) of title 28, United
States Code, is amended by adding at the end the following:
``(5) 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:
``(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.
``(6) The online searchable database described in paragraph
(5) may not reveal any information the disclosure of which is
prohibited by law or court order.
``(7) 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, no
later than 60 days following the Chairman's request, all
information requested by the Chairman to comply with the
requirements of paragraphs (5) and (6).''.
(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) Online databases.--The online databases required by
section 504(e) of title 5, United States Code, and section
2412(d)(5) 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 one year
after the date of the enactment of this Act.
The SPEAKER pro tempore. Pursuant to the rule, the gentleman from
Virginia (Mr. Goodlatte) and the gentleman from Maryland (Mr. Raskin)
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 within which to revise and extend their
remarks and include extraneous materials on H.R. 1033, 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.
I begin by thanking Representative Doug Collins of Georgia and the
Constitution and Civil Justice Subcommittee Ranking Member Steve Cohen
of 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 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.
The Administrative Conference was established 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.
{time} 1715
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 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.
Mr. Speaker, I reserve the balance of my time.
Mr. RASKIN. Mr. Speaker, I yield myself such time as I may consume.
I rise in support of H.R. 1033, the Open Book on Equal Access to
Justice Act.
Mr. Speaker, I want to begin by echoing the praise that the chairman
offered to Mr. Collins and Mr. Cohen for their leadership on this
important legislation which I support for several reasons.
[[Page H1335]]
To begin with, it strengthens the Equal Access to Justice Act, a
crucial law that has helped senior citizens, veterans, the disabled,
and not-for-profit groups vindicate their rights against unreasonable
or arbitrary governmental action.
Now, as the chairman stated, under the so-called American rule,
parties to adjudicative matters typically pay their own litigation
costs, subject to certain statutory exceptions; and 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.
But if the U.S. 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 or
her 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 tax
exempt status, among other factors that are built in to the statute.
Whether these restrictions still make sense is an open question, as
Congress simply does not have the adequate information to assess the
continuing 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, all we have is conjecture and
extrapolation.
Fortunately, H.R. 1033 addresses this problem 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 now, on an annual basis, the agencies required to
reimburse parties for their litigation costs; the claims that first
gave rise to the litigation; and the amount of 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 ongoing implementation of the act and the performance of the
agencies as litigants.
Another reason why I support this legislation 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, like the National Organization of Social Security
Claimants' Representatives and the Paralyzed Veterans of America,
expressed their serious concerns that prior versions of the bill might
``infringe the privacy of vulnerable people who have applied for Social
Security and veterans' benefits.'' These are serious concerns,
especially given the fact that the bill requires the information
collected to be made available to the public and transparent through
posting on the internet.
As currently drafted, however, H.R. 1033 strikes the proper balance
between encouraging transparency and respecting the legitimate privacy
interests of parties that have been raised as an issue in the past. The
bill specifically provides that the annual reports required to be made
publicly available may not reveal any information the disclosure of
which is prohibited by law or court order.
Finally, I support H.R. 1033 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 through the
proper economies. I am particularly pleased that the current version of
this legislation reflects various thoughtful suggestions shared by the
Administrative Conference with our staffs.
Given the excellent work and scholarly analysis that have been the
hallmarks of the Administrative Conference of the United States, 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 very
important legislation.
Like the Administrative Conference, H.R. 1033 requires only a modest
investment that will result in a very valuable return for all
Americans. Accordingly, I urge my colleagues to support this measure,
and 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), the chief sponsor of the
bill, and a member of the Judiciary Committee.
Mr. COLLINS of Georgia. Mr. Speaker, I thank the chairman for
yielding and for his tireless work over the last couple of Congresses
in bringing this to the floor.
Mr. Speaker, I rise today in support of H.R. 1033, 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 through the Equal Access to
Justice Act.
I want to thank all of the original cosponsors of this legislation
for their support, but, in particular, I would like to thank my friend
from Tennessee, Steve Cohen, a member of the Judiciary Committee. These
are the kind of areas where we find agreement, and transparency is one
of those. I want to thank him for his support and also the gentleman
from Maryland as well, for his support of this.
Additionally, there is one former Member I would like to thank, Mr.
Speaker, Congresswoman Cynthia Lummis, for her leadership on an earlier
version of this legislation. She is looking forward to bringing this to
fruition.
Current and past bipartisan support for this legislation demonstrates
a consensus that we need to address this issue, and that Americans
deserve to know how taxpayer funds are being spent. Almost identical
legislation passed both the Judiciary Committee and the full House on a
voice vote in the 114th Congress.
This bill reinstates the needed transparency and accountability
measures to ensure the Equal Access to Justice Act is helping
individuals, retirees, veterans, and small businesses as originally
intended.
Congress originally passed the Equal Access to Justice Act in 1980,
to remove the barrier to justice for those with limited access to
resources it takes to sue the Federal Government and recover attorneys'
fees and costs that go along with those 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 the EAJA, an individual's net worth
must be less than $2 million, or a business or an 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 the citizens in need and
for taxpayers alike.
Payments of the attorneys' fees come from the budget of the agency
whose actions give rise to the underlying 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 these payments made through the Equal
Access to Justice Act in 1995.
Since then, there has been no comprehensive Federal report, and we
are sorely in need of the oversight responsibilities which H.R. 1033
takes the steps to address.
A GAO report indicated that, without any direction to track payments,
most agencies simply don't do it, and Congress and taxpayers are unable
to exercise oversight over these funds. In fact, we have only anecdotal
evidence about how much we are spending on attorneys' fees, the
agencies paying out these fees, and what types of claims are being
recovered. This is simple, commonsense transparency that we are
bringing forward today.
H.R. 1033 requires the Administrative Conference to develop and
implement an online searchable database to facilitate public and
congressional oversight over the Equal Access to Justice Act payments
in both agency adjudications
[[Page H1336]]
and court proceedings. Agencies would be required to provide
information requested by the ACUS for the development of the database,
but, importantly, the ACUS would be required to withhold information
from the database if disclosure is prohibited by law or court order,
the privacy that was just recently mentioned.
The Open Book on Equal Access to Justice Act ensures that agencies
are operating under the watchful public eye and that taxpayer dollars
are being spent properly.
Our Federal Government is too big, in my opinion, and I believe it
needs to be downsized; but until we make that happen, transparency
should be the minimum requirement. That is why H.R. 1033 is important.
It is common sense, plain and simple. When the Federal Government is
spending money, Congress needs to exercise oversight to ensure it is
being done the way the law requires.
For most people who are facing a lawsuit 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. It is only fair
that when the court rules in favor of an American in litigation against
a Federal agency, the American should be permitted to recoup their
legal costs from that Federal agency.
This act gave Americans the power to take on our vast and sprawling
bureaucracy by removing barriers to justice for those with limited
access to resources. However, since the original reporting requirements
were halted by Congress, information on these payments under law is
severely lacking. This tracking will ensure the integrity and the
purpose in which the Congress had set forth.
It is past time we shine 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. 1033 represents a bipartisan agreement that transparency over
payments that were made under the Equal Access to Justice Act needs to
be restored. The Open Book on Equal Access to Justice Act will help
ensure that taxpayer dollars are being spent as intended under this
law. This will bring the transparency and accountability back to a
program where it is sorely needed; and that is just as simple and plain
as it can get. So I would urge my colleagues to support this
legislation.
Mr. RASKIN. Mr. Speaker, the gentleman from Georgia has made a very
powerful argument for a bipartisan push for transparency and
accountability.
I yield such time as he may consume to the distinguished gentleman
from Tennessee (Mr. Cohen).
Mr. COHEN. Mr. Speaker, I appreciate the time, and I appreciate the
kind words that Chairman Goodlatte and my friend, Mr. Collins, have
tossed my way.
We do get along up here, amazingly enough. People think that we all
just fight all the time and we have nothing no common. There are some
big issues that do divide us, and that is why you have competitive
elections with two parties and two different debates. But most folks up
here get along, and are friends, and we do have legislation that we can
work on, and this is one of those places where Mr. Collins and Mr.
Goodlatte and other members of the Judiciary Committee worked with me
and others to bring this bill to the floor.
The Equal Access to Justice Act will allow Americans to recover
attorneys' fees and costs when they win a lawsuit against the Federal
Government. This will enable ordinary citizens, veterans, seniors,
small business owners, advocates for clean air and clean water, et
cetera, to fight unfair or illegal government actions without fear of
having to pay court costs and without fear of having attorneys' fees
that they otherwise might not be able to afford.
The law has been a success. However, in 1995, an important reporting
requirement was removed from the law, and it made it harder for the
public to see how much money the government had awarded. Our bill, H.R.
1033, the Open Book on Equal Access to Justice Act, restores the law's
tracking and reporting requirements of payments awarded so the American
people can have access to this important information. It will do this
by requiring the group called ACUS, an acronym, which we have too many
of up here, but this one is the Administrative Conference of the United
States, a highly respected nonpartisan agency which was greatly
championed by Justice Scalia, to post in an online database the fees
and costs awarded in these cases. The database would also include the
number and nature of the claims involved. The availability of this
information will help keep the public informed and help Congress to
conduct better oversight.
I thank my Judiciary Committee colleague, Doug Collins from Georgia,
for his partnership on the bill. I would like to thank Representatives
Schrader and Collin Peterson for their support for this bill on our
side of the aisle, as well as Jason Chaffetz, Liz Cheney, Paul Gosar,
and Raul Labrador on the Republican side, as well as Chairman
Goodlatte.
And I would like to recall the work of our former colleague,
Congresswoman Cynthia Lummis, who had this bill in the past, and we
worked together to try to make it a bipartisan effort and pass it. She
worked doggedly on the legislation for years, and I know that she will
be pleased that we are building upon her efforts. And while she is no
longer here, she is truly in a better place, Wyoming, I think it is, a
nice place.
I urge the House to pass the Open Book on Equal Access to Justice
Act. And I was pleased the Cats won.
Mr. GOODLATTE. Mr. Speaker, I do not believe I have any speakers
remaining.
I reserve the balance of my time.
Mr. RASKIN. Mr. Speaker, I yield myself the balance of my time.
Mr. Speaker, in closing, I want to recognize my colleagues on both
sides of the aisle.
As Mr. Cohen has pointed out, this legislation has been a model of
bipartisan collaboration, and the work product shows the investment of
both sides in it. So I want to salute everybody for their diligence in
helping to craft this important legislation. The gentlemen from Georgia
(Mr. Collins) and the gentleman from Tennessee (Mr. Cohen), as well as
our former colleague, the gentlewoman from Wyoming, Ms. Lummis, have
cooperatively worked to effectuate a very effective, commonsense bill
that will improve the accountability and the transparency of the
Federal Government. This is a commendable accomplishment.
Accordingly, I would ask all of our colleagues to join us in
supporting this legislation.
Mr. Speaker, I yield back the balance of my time.
Mr. GOODLATTE. Mr. Speaker, I urge my colleagues to support the
legislation.
I yield back the balance of my time.
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. 1033.
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.
____________________