[House Report 113-434]
[From the U.S. Government Publishing Office]


113th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     113-434

======================================================================



 
                OPEN BOOK ON EQUAL ACCESS TO JUSTICE ACT

                                _______
                                

  May 6, 2014.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

   Mr. Goodlatte, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                        [To accompany H.R. 2919]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 2919) to amend titles 5 and 28, United States Code, 
to require annual reports to Congress on, and the maintenance 
of databases on, awards of fees and other expenses to 
prevailing parties in certain administrative proceedings and 
court cases to which the United States is a party, and for 
other purposes, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     1
Background and Need for the Legislation..........................     2
Hearings.........................................................     4
Committee Consideration..........................................     4
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Duplication of Federal Programs..................................     6
Disclosure of Directed Rule Makings..............................     6
Performance Goals and Objectives.................................     6
Advisory on Earmarks.............................................     6
Section-by-Section Analysis......................................     6
Changes in Existing Law Made by the Bill, as Reported............     7

                          Purpose and Summary

    H.R. 2919, the ``Open Book on Equal Access to Justice 
Act,'' reinstates tracking and reporting requirements of 
payments made by the Federal Government under the Equal Access 
to Justice Act (EAJA). The bill requires every Federal agency 
to once again track EAJA payments and tasks the Administrative 
Conference of the United States (ACUS) with compiling the data. 
After compiling the data, the bill requires ACUS to submit an 
annual report to Congress and to establish an online searchable 
database to allow the public access to the data on EAJA 
payments. The current lack of any comprehensive reporting and 
record keeping regarding the actual use of EAJA in courts and 
administrative proceedings makes it difficult, if not 
impossible, for Congress to assess accurately the impact and 
effectiveness of EAJA.

                Background and Need for the Legislation

    Absent a specific statute authorizing fee-shifting, a party 
prevailing in litigation against the Federal Government is not 
entitled to recover attorneys' fees from the United States. 
This is because under the American rule parties to litigation 
must bear their own legal fees.\1\ Although there are limited 
common law exceptions to the American rule, because of the 
doctrine of sovereign immunity these exceptions do not apply to 
the Federal Government without express statutory authorization. 
Despite the American rule, Congress has enacted several fee-
shifting provisions permitting litigants to recover attorneys' 
fees against the United States, including the Endangered 
Species Act and Title VII of the Civil Rights Act of 1964. 
Additionally, Congress enacted EAJA to serve as a general fee-
shifting statute in cases and adversarial administrative 
proceedings in which the United States is a party.
---------------------------------------------------------------------------
    \1\See, e.g., Alyeska Pipelines Serv. Co. v. Wilderness Soc'y, 421 
U.S. 240, 247 (1975) (``In the United States, the prevailing litigant 
typically is not entitled to collect a reasonable attorney's fee from 
the loser.'').
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                   A. THE EQUAL ACCESS TO JUSTICE ACT

    In October 1980, Congress passed, and the President signed 
into law, EAJA\2\ as part of a broader small business 
assistance bill, ``in response to widespread sentiment that 
administrative agencies were burdening small businesses with 
excessive regulation.''\3\ As the Supreme Court has noted, EAJA 
was adopted with the ``specific purpose'' of ``eliminat[ing] 
for the average person the financial disincentive to challenge 
unreasonable governmental actions.''\4\ EAJA was re-enacted and 
made permanent in 1985.\5\
---------------------------------------------------------------------------
    \2\96 P.L. 481, 94 Stat. 2321 (Oct. 21, 1980) (EAJA was originally 
titled the ``Small Business Equal Access to Justice Act'').
    \3\John W. Finley III, ``Unjust Access to the Equal Access to 
Justice Act: A Proposal to Close the Act's Eligibility Loophole for 
Members of Trade Associations,'' 53 Wash. U. J. Urb. & Contemp. L. 243, 
247 (Winter 1998).
    \4\Comm'r v. Jean, 496 U.S. 154, 163 (1990).
    \5\99 P.L. 80, 99 Stat. 183 (Aug. 5, 1985).
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    Civil litigation can become a war of attrition as parties 
strategically try to deplete one another's resources to force a 
settlement. Fundamentally, EAJA recognizes the enormous 
``disparity of resources between individuals, small businesses, 
and other organizations with limited resources and the Federal 
Government.''\6\ Unlike any person or corporation, the Federal 
Government literally has thousands of attorneys at its 
immediate disposal (none of whom bill their time on an hourly 
basis). This imbalance could discourage a citizen from hiring 
counsel to challenge an abusive government policy or could 
induce a citizen to settle a capricious civil or administrative 
enforcement action on unfavorable terms. EAJA ``is meant to 
discourage the Federal Government from using its superior 
litigating resources unreasonably--it is in this respect an 
`anti-bully' law.''\7\ Consequently, EAJA ``probably is the 
most important'' and also ``among the most litigated'' of the 
Federal fee-shifting statutes.\8\
---------------------------------------------------------------------------
    \6\Christopher R. Kelley, ``Attorney's Fee Awards for Unreasonable 
Government Conduct: Notes on the Equal Access to Justice Act,'' 2004 
Ark. L. Notes 65, 66 (2004) (quoting H.R. Rep. No. 99-120, at 4 
(1985)).
    \7\Battles Farm Co. v. Pierce, 806 F.2d 1098, 1101 (D.C. Cir. 
1986).
    \8\Kelley, supra note 6, at 65.
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    EAJA is a one-way fee-shifting statute, allowing the 
recovery of attorneys' fees and costs from the United States in 
certain circumstances. First, EAJA makes the United States 
liable for attorneys' fees to the same extent as any other 
party under a common law or statutory exception to the American 
rule.\9\ Thus, for example, if the United States litigates a 
case in bad faith, then the common law bad faith exception to 
the American rule could be used, pursuant to EAJA, to require 
the United States to pay the prevailing party's attorneys' fees 
and costs. If a party prevails in litigation against the United 
States and is awarded attorneys' fees under a court order or 
settlement under this provision in EAJA, the amounts generally 
are paid from the Treasury Department's Judgment Fund.\10\
---------------------------------------------------------------------------
    \9\See 28 U.S.C. Sec. 2412(b).
    \10\See 31 U.S.C. Sec. 1304. The Judgment Fund is a permanent, 
indefinite appropriation that pays judgments against Federal agencies 
that are not otherwise provided for by other appropriations.
---------------------------------------------------------------------------
    Second, EAJA allows certain parties who prevail against the 
United States in any civil litigation (other than cases 
sounding in tort) or in an administrative adjudication to 
recover attorneys' fees unless the position of the United 
States was ``substantially justified'' or ``special 
circumstances make an award unjust.''\11\ EAJA puts the burden 
on the government to show that its position was substantially 
justified, and the Supreme Court has interpreted EAJA's 
``substantially justified'' standard as equivalent to 
reasonableness.\12\ If attorneys' fees are awarded under this 
provision in EAJA, the funds are to be paid ``from any funds 
made available to the agency by appropriation or 
otherwise.''\13\
---------------------------------------------------------------------------
    \11\See 28 U.S.C. Sec. 2412(d); 5 U.S.C. Sec. 504(a).
    \12\See Pierce v. Underwood, 487 U.S. 552, 565 (1988) (``We are of 
the view, therefore, that as between the two commonly used connotations 
of the word `substantially,' the one most naturally conveyed by the 
phrase before us here is not `justified to a high degree,' but rather 
`justified in substance or in the main'--that is, justified to a degree 
that could satisfy a reasonable person.'').
    \13\5 U.S.C. Sec. 504(d); 28 U.S.C. Sec. 2412(d)(4).
---------------------------------------------------------------------------
    EAJA awards are not available to all prevailing parties in 
litigation and administrative proceedings against the United 
States. Only individuals with a net worth of less than $2 
million, organizations worth less than $7 million with fewer 
than 500 employees, and tax-exempt 501(c)(3) organizations and 
cooperative associations under the Agricultural Marketing Act 
can collect attorneys' fees from the Federal Government under 
EAJA.\14\ Furthermore, attorneys' fees are capped at $125 per 
hour, unless ``a special factor, such as the limited 
availability of qualified attorneys or agents for the 
proceedings involved, justifies a higher fee.''\15\
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    \14\28 U.S.C. Sec. 2412(d)(2)(B); 5 U.S.C. Sec. 504(b)(1)(B).
    \15\5 U.S.C. Sec. 504(b)(1)(A); 28 U.S.C. Sec. 2412(d)(2)(A).
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                B. REPEALED EAJA REPORTING REQUIREMENTS

    From 1981 through 1995, EAJA provided for government-wide 
reporting on payments of attorneys' fees and costs made 
pursuant to EAJA in two annual reports to Congress. One of the 
reports, compiled by ACUS, described administratively awarded 
payments.\16\ The second report described court-awarded 
payments and was issued initially by the Administrative Office 
of the U.S. Courts and later by the Attorney General.\17\ In 
1995, Congress defunded ACUS and repealed the EAJA reporting 
requirements, thereby eliminating the statutory mechanism to 
oversee EAJA expenditures.\18\ ACUS was re-established in 2010, 
but the requirements to report on attorneys' fee payments have 
not been re-enacted. Accordingly, there has been no official 
government-wide accounting of EAJA payments since fiscal year 
1994.
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    \16\28 U.S.C. Sec. 504.
    \17\The reporting requirement was transferred to the Attorney 
General by the Federal Courts Administration Act of 1992, Title V, 
Sec. 502, Pub. L. No. 102-572.
    \18\Federal Reports Elimination and Sunset Act of 1995 (FRESA), 
Pub. L. No. 104-66, Sec. Sec. 1091, 3003. According to ACUS, 
``[s]ection 3003(a)(l) of FRESA, enacted after ACUS ceased operations, 
provides: ``Subject to the provisions of paragraph (2) of this 
subsection and subsection (d), each provision of law requiring the 
submittal to Congress (or any committee of the Congress) of any annual, 
semiannual, or other regular periodic report specified on the list 
described under subsection (c) shall cease to be effective, with 
respect to that requirement, 4 years after the date of the enactment of 
this Act.'' Subsection (c) reads: ``The list referred to under 
subsection (a) is the list prepared by the Clerk of the House of 
Representatives for the first session of the One Hundred Third Congress 
under clause 2 of rule III of the Rules of the House of Representatives 
(House Document No. 103-7).'' That report (at page 153) expressly 
identifies ACUS' annual reporting requirement under 5 U.S.C. 
Sec. 504(e). Thus ACUS' reporting requirement was repealed pursuant to 
FRESA and the related House Document No. 103-7. Section 504(e) of Title 
5 was never amended by (or even mentioned in) section 3003(a)(l) of the 
1995 Act. The editorial notes to Sec. 504, though, do identify that 
section. The requirement that the Attorney General report annually on 
court awards under the Act was also repealed at the same time by 
section 1091 of Pub. L. 104-66.'' Administrative Conference of the 
United States, ``Report of the Chairman on Agency and Court Awards in 
FY 2010 Under the Equal Access to Justice Act'' (2013).
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                           C. THE LEGISLATION

    The Open Book on Equal Access to Justice Act, reinstates 
tracking and reporting requirements of payments made by the 
Federal Government under the Equal Access to Justice Act 
(EAJA). The bill requires every Federal agency to once again 
track EAJA payments and tasks the Administrative Conference of 
the United States (ACUS) with compiling the data. After 
compiling the data, the bill requires ACUS to submit an annual 
report to Congress and to establish an online searchable 
database to allow the public access to the data on EAJA 
payments. The current lack of any comprehensive reporting and 
record keeping regarding the actual use of EAJA in courts and 
administrative proceedings makes it difficult, if not 
impossible, for Congress to assess accurately the impact and 
effectiveness of EAJA.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
2919.

                        Committee Consideration

    On February 5, 2014, the Committee met in open session and 
ordered the bill H.R. 2919 favorably reported, without 
amendment, by voice vote, a quorum being present.

                            Committee Votes

    In compliance with clause 3(b) of rule XIII of the Rules of 
the House of Representatives, the Committee advises that there 
were no recorded votes during the Committee's consideration of 
H.R. 2919.

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of rule XIII of the Rules 
of the House of Representatives, the Committee advises that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 2919, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                 Washington, DC, February 27, 2014.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 2919, the ``Open 
Book on Equal Access to Justice Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Mark 
Grabowicz, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




          H.R. 2919--Open Book on Equal Access to Justice Act.

      As ordered reported by the House Committee on the Judiciary 
                          on February 5, 2014.




    H.R. 2919 would require the Administrative Conference of 
the United States (ACUS) to prepare a report each year on the 
amount of fees and other expenses awarded by Federal courts to 
nonfederal entities when they prevail in a case against the 
United States. The bill also would require the ACUS to create 
an online searchable database containing information about 
cases in which fees and expenses were awarded by courts or 
Federal agencies. The ACUS is an independent agency that 
assists other agencies of the Federal Government in improving 
regulatory and other administrative procedures.
    Based on information from the ACUS, CBO estimates that 
implementing H.R. 2919 would cost about $1 million in fiscal 
year 2015 and less than $500,000 each year thereafter, assuming 
appropriation of the necessary amounts. These funds would cover 
costs for additional ACUS staff, technological upgrades, and 
data collection by Federal agencies. Enacting the bill would 
not affect direct spending or revenues; therefore, pay-as-you-
go procedures do not apply.
    H.R. 2919 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act and 
would not affect the budgets of state, local, or tribal 
governments.
    The CBO staff contact for this estimate is Mark Grabowicz. 
The estimate was approved by Theresa Gullo, Deputy Assistant 
Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 2919 establishes or reauthorizes a 
program of the Federal Government known to be duplicative of 
another Federal program, a program that was included in any 
report from the Government Accountability Office to Congress 
pursuant to section 21 of Public Law 111-139, or a program 
related to a program identified in the most recent Catalog of 
Federal Domestic Assistance.

                  Disclosure of Directed Rule Makings

    The Committee estimates that H.R. 2919 specifically directs 
to be completed no specific rule makings within the meaning of 
5 U.S.C. Sec. 551.

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
rule XIII of the Rules of the House of Representatives, H.R. 
2919, will reinstate tracking and reporting requirements of 
payments made by the Federal Government under the Equal Access 
to Justice Act.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 2919 does not contain any 
congressional earmarks, limited tax benefits, or limited tariff 
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.

                      Section-by-Section Analysis

    The following discussion describes the bill as reported by 
the Committee.
Section 1. Short Title.
    Section 1 provides for the short title of the legislation, 
the ``Open Book on Equal Access to Justice Act.''
Section 2. Modification of Equal Access to Justice Provisions.
    Section 2 makes technical corrections to 5 U.S.C. Sec. 504 
and 28 U.S.C. Sec. 2412 by striking two extraneous references 
to the ``United States Code'' in those sections and, more 
importantly, re-establishes and modifies the EAJA tracking and 
reporting requirements contained in 5 U.S.C. Sec. 504 for EAJA 
awards made as part of agency adjudications and in 28 U.S.C. 
Sec. 2412(d) for EAJA awards made in court cases.
    Specifically, section 2(a) provides that each year, by 
March 31, the Administrative Conference of the United States 
(ACUS) is required to submit a report to Congress on the amount 
of attorneys' fees and other expenses awarded during the 
preceding fiscal year in administrative proceedings. The report 
is to describe the number, nature and amount of the awards, the 
claims involved, and any other information that may aid 
Congress in evaluating the scope and impact of EAJA awards. In 
addition, ACUS is required to make the report and some 
additional data about EAJA awards available online in a 
searchable database. This information includes: the case name 
and number of the adversary adjudication, if available; a 
description of the claims in the adversary adjudication; the 
amount of the award; and the basis for the finding that the 
position of the agency concerned was not substantially 
justified.
    Section 2(b), which applies to EAJA payments in court 
cases, mirrors section 2(a) and provides that ACUS is required 
to provide a report on EAJA payments made in litigated cases to 
Congress each year by March 31. The contents of the report and 
the information that ACUS is to provide online are the same as 
the information required under section 2(a) for administrative 
proceedings.
    Additionally, both section 2(a) and 2(b) require that the 
online database created by ACUS may not reveal any information 
the disclosure of which is prohibited by law or court order. 
Moreover, the heads of Federal agencies are required to provide 
ACUS with the information needed to comply with the bill's 
reporting requirements in a timely manner.
    Finally, section 2(c) makes two clerical amendments to 28 
U.S.C. Sec. 2412 and section 2(d) establishes an effective date 
for the reporting and online database creation requirements.

         Changes in Existing Law Made by the Bill, as Reported

    In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

TITLE 5, UNITED STATES CODE

           *       *       *       *       *       *       *


PART I--THE AGENCIES GENERALLY

           *       *       *       *       *       *       *


                  CHAPTER 5--ADMINISTRATIVE PROCEDURE

SUBCHAPTER I--GENERAL PROVISIONS

           *       *       *       *       *       *       *


Sec. 504. Costs and fees of parties

  (a) * * *

           *       *       *       *       *       *       *

  (c)(1) After consultation with the Chairman of the 
Administrative Conference of the United States, each agency 
shall by rule establish uniform procedures for the submission 
and consideration of applications for an award of fees and 
other expenses. If a court reviews the underlying decision of 
the adversary adjudication, an award for fees and other 
expenses may be made only pursuant to section 2412(d)(3) of 
title 28[, United States Code].

           *       *       *       *       *       *       *

  [(e) 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 
annually to the Congress 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 which may aid the Congress 
in evaluating the scope and impact of such awards. Each agency 
shall provide the Chairman with such information as is 
necessary for the Chairman to comply with the requirements of 
this subsection.]
  (e)(1) The Chairman of the Administrative Conference of the 
United States, after consultation with the Chief Counsel for 
Advocacy of the Small Business Administration, shall report to 
the Congress, not later than March 31 of each year, on the 
amount of fees and other expenses awarded during the preceding 
fiscal year pursuant to this section. The report shall describe 
the number, nature, and amount of the awards, the claims 
involved in the controversy, and any other relevant information 
that may aid the Congress in evaluating the scope and impact of 
such awards. The report shall be made available to the public 
online.
  (2)(A) The report required by paragraph (1) shall account for 
all payments of fees and other expenses awarded under this 
section that are made pursuant to a settlement agreement, 
regardless of whether the settlement agreement is sealed or 
otherwise subject to nondisclosure provisions.
  (B) The disclosure of fees and other expenses required under 
subparagraph (A) does not affect any other information that is 
subject to nondisclosure provisions in the settlement 
agreement.
  (f) The Chairman of the Administrative Conference shall 
create and maintain online a searchable database containing the 
following information with respect to each award of fees and 
other expenses under this section:
          (1) The case name and number of the adversary 
        adjudication, if available, hyperlinked to the case, if 
        available.
          (2) The name of the agency involved in the adversary 
        adjudication.
          (3) A description of the claims in the adversary 
        adjudication.
          (4) The name of each party to whom the award was 
        made.
          (5) The amount of the award.
          (6) The basis for the finding that the position of 
        the agency concerned was not substantially justified.
  (g) The online searchable database described in subsection 
(f) may not reveal any information the disclosure of which is 
prohibited by law or court order.
  (h) The head of each agency shall provide to the Chairman of 
the Administrative Conference in a timely manner all 
information requested by the Chairman to comply with the 
requirements of subsections (e), (f), and (g).
  [(f)] (i) No award may be made under this section for costs, 
fees, or other expenses which may be awarded under section 7430 
of the Internal Revenue Code of 1986.

           *       *       *       *       *       *       *

                              ----------                              


              SECTION 2412 OF TITLE 28, UNITED STATES CODE

Sec. 2412. Costs and fees

  (a) * * *

           *       *       *       *       *       *       *

  (d)(1) * * *

           *       *       *       *       *       *       *

  (3) In awarding fees and other expenses under this subsection 
to a prevailing party in any action for judicial review of an 
adversary adjudication, as defined in subsection (b)(1)(C) of 
section 504 of title 5, [United States Code,] or an adversary 
adjudication subject to chapter 71 of title 41, the court shall 
include in that award fees and other expenses to the same 
extent authorized in subsection (a) of such section, unless the 
court finds that during such adversary adjudication the 
position of the United States was substantially justified, or 
that special circumstances make an award unjust.

           *       *       *       *       *       *       *

  (5)(A) The Chairman of the Administrative Conference of the 
United States shall submit to the Congress, not later than 
March 31 of each year, a report on the amount of fees and other 
expenses awarded during the preceding fiscal year pursuant to 
this subsection. The report shall describe the number, nature, 
and amount of the awards, the claims involved in each 
controversy, and any other relevant information that may aid 
the Congress in evaluating the scope and impact of such awards. 
The report shall be made available to the public online.
  (B)(i) The report required by subparagraph (A) shall account 
for all payments of fees and other expenses awarded under this 
subsection that are made pursuant to a settlement agreement, 
regardless of whether the settlement agreement is sealed or 
otherwise subject to nondisclosure provisions.
  (ii) The disclosure of fees and other expenses required under 
clause (i) does not affect any other information that is 
subject to nondisclosure provisions in the settlement 
agreement.
  (C) The Chairman of the Administrative Conference shall 
include and clearly identify in the annual report under 
subparagraph (A), for each case in which an award of fees and 
other expenses is included in the report--
          (i) any amounts paid from section 1304 of title 31 
        for a judgment in the case;
          (ii) the amount of the award of fees and other 
        expenses; and
          (iii) the statute under which the plaintiff filed 
        suit.
  (6) The Chairman of the Administrative Conference shall 
create and maintain online a searchable database containing the 
following information with respect to each award of fees and 
other expenses under this subsection:
          (A) The case name and number, hyperlinked to the 
        case, if available.
          (B) The name of the agency involved in the case.
          (C) The name of each party to whom the award was 
        made.
          (D) A description of the claims in the case.
          (E) The amount of the award.
          (F) The basis for the finding that the position of 
        the agency concerned was not substantially justified.
  (7) The online searchable database described in paragraph (6) 
may not reveal any information the disclosure of which is 
prohibited by law or court order.
  (8) The head of each agency shall provide to the Chairman of 
the Administrative Conference of the United States in a timely 
manner all information requested by the Chairman to comply with 
the requirements of paragraphs (5), (6), and (7), including the 
Attorney General of the United States and the Director of the 
Administrative Office of the United States Courts.
  (e) The provisions of this section shall not apply to any 
costs, fees, and other expenses in connection with any 
proceeding to which section 7430 of the Internal Revenue Code 
of 1986 applies (determined without regard to subsections (b) 
and (f) of such section). Nothing in the preceding sentence 
shall prevent the awarding under subsection (a) [of section 
2412 of title 28, United States Code,] of this section of costs 
enumerated in section 1920 of [such] this title (as in effect 
on October 1, 1981).

           *       *       *       *       *       *       *


                                  
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