[Congressional Record (Bound Edition), Volume 163 (2017), Part 3]
[House]
[Pages 3063-3066]
[From the U.S. 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

[[Page 3064]]

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.
  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

[[Page 3065]]

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 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

[[Page 3066]]

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.

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