[House Report 114-351]
[From the U.S. Government Publishing Office]


114th Congress   }                                     {        Report
                        HOUSE OF REPRESENTATIVES
 1st Session     }                                     {       114-351

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



 
                OPEN BOOK ON EQUAL ACCESS TO JUSTICE ACT

                                _______
                                

 November 30, 2015.--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. 3279]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred 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, having considered the same, reports favorably 
thereon without amendment and recommends that the bill do pass.

                                CONTENTS

                                                                   Page

Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     5
Committee Consideration..........................................     5
Committee Votes..................................................     5
Committee Oversight Findings.....................................     5
New Budget Authority and Tax Expenditures........................     5
Congressional Budget Office Cost Estimate........................     5
Duplication of Federal Programs..................................     7
Disclosure of Directed Rule Makings..............................     7
Performance Goals and Objectives.................................     7
Advisory on Earmarks.............................................     7
Section-by-Section Analysis......................................     7
Changes in Existing Law Made by the Bill, as Reported............     8

                          Purpose and Summary

    H.R. 3279, 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 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 annual 
reports 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, the doctrine of 
sovereign immunity prevents these exceptions from applying to 
the Federal Government without express statutory authorization. 
Several Acts of Congress contain 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, EAJA serves 
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\
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    \2\Pub. L. No. 96-481, 94 Stat. 2321 (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\Pub. L. No. 99-80, 99 Stat. 183 (1985).
---------------------------------------------------------------------------
    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\ 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 that permits 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, pursuant to EAJA, if the United 
States litigates a case in bad faith, the common law bad faith 
exception to the American rule could be used 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\
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    \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 that 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\28 U.S.C. Sec. 2412(d)(4); 5 U.S.C. Sec. 504(d).
---------------------------------------------------------------------------
    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\
---------------------------------------------------------------------------
    \14\28 U.S.C. Sec. 2412(d)(2)(B); 5 U.S.C. Sec. 504(b)(1)(B).
    \15\28 U.S.C. Sec. 2412(d)(2)(A); 5 U.S.C. Sec. 504(b)(1)(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 repealed the EAJA reporting requirements, 
thereby eliminating the statutory mechanism to oversee EAJA 
expenditures.\18\ Accordingly, there has been no official, 
government-wide accounting of EAJA payments since fiscal year 
1994.
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    \16\5 U.S.C. Sec. 504(e).
    \17\The reporting requirement was transferred to the Attorney 
General by the Federal Courts Administration Act of 1992, Pub. L. No. 
102-572, Title V, Sec. 502 (1992).
    \18\Federal Reports Elimination and Sunset Act of 1995 (FRESA), 
Pub. L. No. 104-66, Sec. Sec. 1091, 3003, 109 Stat. 707 (1995). 
According to ACUS, section 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).
C. The Legislation
    H.R. 3279 reinstates the repealed tracking and reporting 
requirements for EAJA awards. The bill directs ACUS to provide 
Congress with two annual reports on the amount of fees and 
other expenses awarded during the preceding fiscal year 
pursuant to EAJA. One report will provide information on EAJA 
awards related to adversary agency adjudications and the second 
will report on awards made to prevailing parties in civil 
actions against the United States. The reports will describe 
the number, nature, and amount of the awards, the claims 
involved in the controversy, and any other relevant information 
that may aid Congress in evaluating the scope and impact of 
such awards.
    In addition to the reports, H.R. 3279 requires ACUS to 
create and maintain an online searchable database containing 
information with respect to EAJA awards. The online database 
will contain information including the case name and number, a 
description of the claims at issue, the amount of the award, 
and the basis for the finding that the position of the agency 
concerned was not substantially justified.
    H.R. 3279 provides that the online database shall not 
include any information the disclosure of which is prohibited 
by law or court order. Moreover, the Committee recognizes that 
these requirements will apply to court cases and agency 
proceedings in which publicly available court or agency 
documents may contain details regarding the healthcare 
information of a party applying for fees and costs pursuant to 
EAJA. In preparing information for inclusion in the database to 
describe claims and the basis for finding that the position of 
the agency concerned was not substantially justified, ACUS must 
take appropriate measures to ensure that individual-specific 
healthcare information, such as an individual's diagnoses and 
treatments, is not contained in the database.
    The reporting requirements in H.R. 3279 apply to EAJA 
awards made after the date of enactment of the legislation and 
the online database is to be established as soon as practicable 
after the date of enactment.

                                Hearings

    The Committee on the Judiciary held no hearings on H.R. 
3279.

                        Committee Consideration

    On October 27, 2015, the Committee met in open session and 
ordered the bill H.R. 3279 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. 3279.

                      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. 3279, 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, November 4, 2015.
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. 3279, 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,
                                                Keith Hall,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member




          H.R. 3279--Open Book on Equal Access to Justice Act.

      As ordered reported by the House Committee on the Judiciary 
                          on October 27, 2015.




    H.R. 3279 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. 3279 would cost about $1 million in fiscal 
year 2016 and less than $500,000 each year thereafter, assuming 
appropriation of the necessary amounts. Those funds would cover 
costs for additional ACUS staff, technological upgrades, and 
data collection by Federal agencies.
    Because enacting the bill would not affect direct spending 
or revenues, pay-as-you-go procedures do not apply. CBO also 
estimates that enacting H.R. 3279 would not increase net direct 
spending or on-budget deficits in any of the four consecutive 
10-year periods beginning in 2026.
    H.R. 3279 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 H. Samuel Papenfuss, Deputy 
Assistant Director for Budget Analysis.

                    Duplication of Federal Programs

    No provision of H.R. 3279 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. 3279 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. 
3279, 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. 3279 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 Act 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 
significantly, 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 that were 
contained in 28 U.S.C. Sec. 2412(d) for EAJA awards related to 
civil actions against the United States.
    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 create an online searchable 
database with information about EAJA awards. 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 sections 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, and 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)(1) An agency that conducts an adversary adjudication 
shall award, to a prevailing party other than the United 
States, fees and other expenses incurred by that party in 
connection with that proceeding, unless the adjudicative 
officer of the agency finds that the position of the agency was 
substantially justified or that special circumstances make an 
award unjust. Whether or not the position of the agency was 
substantially justified shall be determined on the basis of the 
administrative record, as a whole, which is made in the 
adversary adjudication for which fees and other expenses are 
sought.
    (2) A party seeking an award of fees and other expenses 
shall, within thirty days of a final disposition in the 
adversary adjudication, submit to the agency an application 
which shows that the party is a prevailing party and is 
eligible to receive an award under this section, and the amount 
sought, including an itemized statement from any attorney, 
agent, or expert witness representing or appearing in behalf of 
the party stating the actual time expended and the rate at 
which fees and other expenses were computed. The party shall 
also allege that the position of the agency was not 
substantially justified. When the United States appeals the 
underlying merits of an adversary adjudication, no decision on 
an application for fees and other expenses in connection with 
that adversary adjudication shall be made under this section 
until a final and unreviewable decision is rendered by the 
court on the appeal or until the underlying merits of the case 
have been finally determined pursuant to the appeal.
    (3) The adjudicative officer of the agency may reduce the 
amount to be awarded, or deny an award, to the extent that the 
party during the course of the proceedings engaged in conduct 
which unduly and unreasonably protracted the final resolution 
of the matter in controversy. The decision of the adjudicative 
officer of the agency under this section shall be made a part 
of the record containing the final decision of the agency and 
shall include written findings and conclusions and the reason 
or basis therefor. The decision of the agency on the 
application for fees and other expenses shall be the final 
administrative decision under this section.
    (4) If, in an adversary adjudication arising from an agency 
action to enforce a party's compliance with a statutory or 
regulatory requirement, the demand by the agency is 
substantially in excess of the decision of the adjudicative 
officer and is unreasonable when compared with such decision, 
under the facts and circumstances of the case, the adjudicative 
officer shall award to the party the fees and other expenses 
related to defending against the excessive demand, unless the 
party has committed a willful violation of law or otherwise 
acted in bad faith, or special circumstances make an award 
unjust. Fees and expenses awarded under this paragraph shall be 
paid only as a consequence of appropriations provided in 
advance.
    (b)(1) For the purposes of this section--
            (A) ``fees and other expenses'' includes 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 (The amount of fees awarded 
        under this section shall be based upon prevailing 
        market rates for the kind and quality of the services 
        furnished, except that (i) no expert witness shall be 
        compensated at a rate in excess of the highest rate of 
        compensation for expert witnesses paid by the agency 
        involved, and (ii) attorney or agent fees shall not be 
        awarded in excess of $125 per hour unless the agency 
        determines by regulation that an increase in the cost 
        of living or a special factor, such as the limited 
        availability of qualified attorneys or agents for the 
        proceedings involved, justifies a higher fee.);
            (B) ``party'' means a party, as defined in section 
        551(3) of this title, who is (i) an individual whose 
        net worth did not exceed $2,000,000 at the time the 
        adversary adjudication was initiated, or (ii) any owner 
        of an unincorporated business, or any partnership, 
        corporation, association, unit of local government, or 
        organization, the net worth of which did not exceed 
        $7,000,000 at the time the adversary adjudication was 
        initiated, and which had not more than 500 employees at 
        the time the adversary adjudication was initiated; 
        except that an organization described in section 
        501(c)(3) of the Internal Revenue Code of 1986 (26 
        U.S.C. 501(c)(3)) exempt from taxation under section 
        501(a) of such Code, or a cooperative association as 
        defined in section 15(a) of the Agricultural Marketing 
        Act (12 U.S.C. 1141j(a)), may be a party regardless of 
        the net worth of such organization or cooperative 
        association or for purposes of subsection (a)(4), a 
        small entity as defined in section 601;
            (C) ``adversary adjudication'' means (i) an 
        adjudication under section 554 of this title in which 
        the position of the United States is represented by 
        counsel or otherwise, but excludes an adjudication for 
        the purpose of establishing or fixing a rate or for the 
        purpose of granting or renewing a license, (ii) any 
        appeal of a decision made pursuant to section 7103 of 
        title 41 before an agency board of contract appeals as 
        provided in section 7105 of title 41, (iii) any hearing 
        conducted under chapter 38 of title 31, and (iv) the 
        Religious Freedom Restoration Act of 1993;
            (D) ``adjudicative officer'' means the deciding 
        official, without regard to whether the official is 
        designated as an administrative law judge, a hearing 
        officer or examiner, or otherwise, who presided at the 
        adversary adjudication;
            (E) ``position of the agency'' means, in addition 
        to the position taken by the agency in the adversary 
        adjudication, the action or failure to act by the 
        agency upon which the adversary adjudication is based; 
        except that fees and other expenses may not be awarded 
        to a party for any portion of the adversary 
        adjudication in which the party has unreasonably 
        protracted the proceedings; and
            (F) ``demand'' means the express demand of the 
        agency which led to the adversary adjudication, but 
        does not include a recitation by the agency of the 
        maximum statutory penalty (i) in the administrative 
        complaint, or (ii) elsewhere when accompanied by an 
        express demand for a lesser amount.
    (2) Except as otherwise provided in paragraph (1), the 
definitions provided in section 551 of this title apply to this 
section.
    (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].
    (2) If a party other than the United States is dissatisfied 
with a determination of fees and other expenses made under 
subsection (a), that party may, within 30 days after the 
determination is made, appeal the determination to the court of 
the United States having jurisdiction to review the merits of 
the underlying decision of the agency adversary adjudication. 
The court's determination on any appeal heard under this 
paragraph shall be based solely on the factual record made 
before the agency. The court may modify the determination of 
fees and other expenses only if the court finds that the 
failure to make an award of fees and other expenses, or the 
calculation of the amount of the award, was unsupported by 
substantial evidence.
    (d) Fees and other expenses awarded under this subsection 
shall be paid by any agency over which the party prevails from 
any funds made available to the agency by appropriation or 
otherwise.
    [(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.
            (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).
    [(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.

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                      TITLE 28, UNITED STATES CODE



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PART VI--PARTICULAR PROCEEDINGS

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CHAPTER 161--UNITED STATES AS PARTY GENERALLY

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Sec. 2412. Costs and fees

    (a)(1) Except as otherwise specifically provided by 
statute, a judgment for costs, as enumerated in section 1920 of 
this title, but not including the fees and expenses of 
attorneys, may be awarded to the prevailing party in any civil 
action brought by or against the United States or any agency or 
any official of the United States acting in his or her official 
capacity in any court having jurisdiction of such action. A 
judgment for costs when taxed against the United States shall, 
in an amount established by statute, court rule, or order, be 
limited to reimbursing in whole or in part the prevailing party 
for the costs incurred by such party in the litigation.
            (2) A judgment for costs, when awarded in favor of 
        the United States in an action brought by the United 
        States, may include an amount equal to the filing fee 
        prescribed under section 1914(a) of this title. The 
        preceding sentence shall not be construed as requiring 
        the United States to pay any filing fee.
    (b) Unless expressly prohibited by statute, a court may 
award reasonable fees and expenses of attorneys, in addition to 
the costs which may be awarded pursuant to subsection (a), to 
the prevailing party in any civil action brought by or against 
the United States or any agency or any official of the United 
States acting in his or her official capacity in any court 
having jurisdiction of such action. The United States shall be 
liable for such fees and expenses to the same extent that any 
other party would be liable under the common law or under the 
terms of any statute which specifically provides for such an 
award.
    (c)(1) Any judgment against the United States or any agency 
and any official of the United States acting in his or her 
official capacity for costs pursuant to subsection (a) shall be 
paid as provided in sections 2414 and 2517 of this title and 
shall be in addition to any relief provided in the judgment.
    (2) Any judgment against the United States or any agency 
and any official of the United States acting in his or her 
official capacity for fees and expenses of attorneys pursuant 
to subsection (b) shall be paid as provided in sections 2414 
and 2517 of this title, except that if the basis for the award 
is a finding that the United States acted in bad faith, then 
the award shall be paid by any agency found to have acted in 
bad faith and shall be in addition to any relief provided in 
the judgment.
    (d)(1)(A) Except as otherwise specifically provided by 
statute, a court shall award to a prevailing party other than 
the United States fees and other expenses, in addition to any 
costs awarded pursuant to subsection (a), incurred by that 
party in any civil action (other than cases sounding in tort), 
including proceedings for judicial review of agency action, 
brought by or against the United States in any court having 
jurisdiction of that action, unless the court finds that the 
position of the United States was substantially justified or 
that special circumstances make an award unjust.
    (B) A party seeking an award of fees and other expenses 
shall, within thirty days of final judgment in the action, 
submit to the court an application for fees and other expenses 
which shows that the party is a prevailing party and is 
eligible to receive an award under this subsection, and the 
amount sought, including an itemized statement from any 
attorney or expert witness representing or appearing in behalf 
of the party stating the actual time expended and the rate at 
which fees and other expenses were computed. The party shall 
also allege that the position of the United States was not 
substantially justified. Whether or not the position of the 
United States was substantially justified shall be determined 
on the basis of the record (including the record with respect 
to the action or failure to act by the agency upon which the 
civil action is based) which is made in the civil action for 
which fees and other expenses are sought.
    (C) The court, in its discretion, may reduce the amount to 
be awarded pursuant to this subsection, or deny an award, to 
the extent that the prevailing party during the course of the 
proceedings engaged in conduct which unduly and unreasonably 
protracted the final resolution of the matter in controversy.
    (D) If, in a civil action brought by the United States or a 
proceeding for judicial review of an adversary adjudication 
described in section 504(a)(4) of title 5, the demand by the 
United States is substantially in excess of the judgment 
finally obtained by the United States and is unreasonable when 
compared with such judgment, under the facts and circumstances 
of the case, the court shall award to the party the fees and 
other expenses related to defending against the excessive 
demand, unless the party has committed a willful violation of 
law or otherwise acted in bad faith, or special circumstances 
make an award unjust. Fees and expenses awarded under this 
subparagraph shall be paid only as a consequence of 
appropriations provided in advance.
    (2) For the purposes of this subsection--
            (A) ``fees and other expenses'' includes the 
        reasonable expenses of expert witnesses, the reasonable 
        cost of any study, analysis, engineering report, test, 
        or project which is found by the court to be necessary 
        for the preparation of the party's case, and reasonable 
        attorney fees (The amount of fees awarded under this 
        subsection shall be based upon prevailing market rates 
        for the kind and quality of the services furnished, 
        except that (i) no expert witness shall be compensated 
        at a rate in excess of the highest rate of compensation 
        for expert witnesses paid by the United States; and 
        (ii) attorney fees shall not be awarded in excess of 
        $125 per hour unless the court determines that an 
        increase in the cost of living or a special factor, 
        such as the limited availability of qualified attorneys 
        for the proceedings involved, justifies a higher fee.);
            (B) ``party'' means (i) an individual whose net 
        worth did not exceed $2,000,000 at the time the civil 
        action was filed, or (ii) any owner of an 
        unincorporated business, or any partnership, 
        corporation, association, unit of local government, or 
        organization, the net worth of which did not exceed 
        $7,000,000 at the time the civil action was filed, and 
        which had not more than 500 employees at the time the 
        civil action was filed; except that an organization 
        described in section 501(c)(3) of the Internal Revenue 
        Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation 
        under section 501(a) of such Code, or a cooperative 
        association as defined in section 15(a) of the 
        Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be 
        a party regardless of the net worth of such 
        organization or cooperative association or for purposes 
        of subsection (d)(1)(D), a small entity as defined in 
        section 601 of title 5;
            (C) ``United States'' includes any agency and any 
        official of the United States acting in his or her 
        official capacity;
            (D) ``position of the United States'' means, in 
        addition to the position taken by the United States in 
        the civil action, the action or failure to act by the 
        agency upon which the civil action is based; except 
        that fees and expenses may not be awarded to a party 
        for any portion of the litigation in which the party 
        has unreasonably protracted the proceedings;
            (E) ``civil action brought by or against the United 
        States'' includes an appeal by a party, other than the 
        United States, from a decision of a contracting officer 
        rendered pursuant to a disputes clause in a contract 
        with the Government or pursuant to chapter 71 of title 
        41;
            (F) ``court'' includes the United States Court of 
        Federal Claims and the United States Court of Appeals 
        for Veterans Claims;
            (G) ``final judgment'' means a judgment that is 
        final and not appealable, and includes an order of 
        settlement;
            (H) ``prevailing party'', in the case of eminent 
        domain proceedings, means a party who obtains a final 
        judgment (other than by settlement), exclusive of 
        interest, the amount of which is at least as close to 
        the highest valuation of the property involved that is 
        attested to at trial on behalf of the property owner as 
        it is to the highest valuation of the property involved 
        that is attested to at trial on behalf of the 
        Government; and
            (I) ``demand'' means the express demand of the 
        United States which led to the adversary adjudication, 
        but shall not include a recitation of the maximum 
        statutory penalty (i) in the complaint, or (ii) 
        elsewhere when accompanied by an express demand for a 
        lesser amount.
    (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.
    (4) Fees and other expenses awarded under this subsection 
to a party shall be paid by any agency over which the party 
prevails from any funds made available to the agency by 
appropriation or otherwise.
    (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.
            (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).
    (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 title] of this title (as in 
effect on October 1, 1981).
    (f) If the United States appeals an award of costs or fees 
and other expenses made against the United States under this 
section and the award is affirmed in whole or in part, interest 
shall be paid on the amount of the award as affirmed. Such 
interest shall be computed at the rate determined under section 
1961(a) of this title, and shall run from the date of the award 
through the day before the date of the mandate of affirmance.

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