[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Notices]
[Pages 38934-38937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16768]
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ADMINISTRATIVE CONFERENCE OF THE UNITED STATES
Revised Model Rules for Implementation of the Equal Access to
Justice Act
AGENCY: Administrative Conference of the United States.
ACTION: Notice of availability; Revised Model Rules for Implementation
of the Equal Access to Justice Act.
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SUMMARY: The Office of the Chairman of the Administrative Conference of
the United States is issuing these Revised Model Rules for
Implementation of the Equal Access to Justice Act. These Revised Model
Rules update the uniform procedures for the submission and
consideration of applications for attorney fees under the Equal Access
to Justice Act that were last issued in 1986. These Revised Model Rules
reflect, among other things, amendments to the Act made by the Small
Business Regulatory Enforcement Fairness Act and evolving adjudicative
practices. They are designed to assist Federal agencies in adopting or
modifying their own regulations for implementation of the Act.
FOR FURTHER INFORMATION CONTACT: Alexandria Tindall Webb, Attorney
Advisor, Administrative Conference of the United States, Suite 706
South, 1120 20th Street NW, Washington, DC 20036; Telephone 202-480-
2080.
SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C.
591-596, established the Administrative Conference of the United
States. The Conference studies the efficiency, adequacy, and fairness
of the administrative procedures used by Federal agencies and makes
recommendations to agencies, the President, Congress, and the Judicial
Conference of the United States for procedural improvements (5 U.S.C.
594(1)). For further information about the Conference and its
activities, see www.acus.gov.
The Equal Access to Justice Act (EAJA), first enacted in 1980,
authorizes the award of attorney fees and other expenses to eligible
parties who prevail against the Federal government in judicial
proceedings and certain adversarial agency adjudicative proceedings,
where the position of the government is not substantially justified.\1\
In the case of certain adversarial agency adjudications, ``[a]fter
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.'' \2\ In furtherance of this statutory
obligation, the Conference Chairman in 1981 issued a set of Model Rules
for agencies to use when adopting rules for the consideration of
applications for EAJA awards in agency adjudications.\3\ The Conference
Chairman issued a revised set of Model Rules in 1986.\4\ Many agencies
have since promulgated EAJA rules that are substantially based upon
these Model Rules.\5\
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\1\ 5 U.S.C. 504; 28 U.S.C. 2412.
\2\ 5 U.S.C. 504(c)(1).
\3\ Admin. Conf. of the U.S., Equal Access to Justice Act:
Agency Implementation, 46 FR 32,900 (June 25, 1981).
\4\ Admin. Conf. of the U.S., Model Rules for Implementation of
the Equal Access to Justice Act, 51 FR 16,659 (May 6, 1986)
(previously codified at 1 C.F.R pt. 315).
\5\ See, e.g., Equal Access to Justice Act Implementation Rule,
79 FR 7,569 (Consumer Fin. Prot. Bureau Feb. 10, 2014) (codified as
amended at 12 CFR pt. 1071); Equal Access to Justice Rules, 54 FR
53,050 (Sec. Exch. Comm'n Dec. 27, 1989) (codified as amended at 17
CFR pt. 200-01); Procedural Rules Implementing Equal Access to
Justice Act, 51 FR 36,223 (Nat'l Labor Relations Bd. Oct. 9, 1986)
(codified as amended at 29 CFR pt. 102); Procedural Rules;
Miscellaneous Revisions and Corrections, 50 FR 53,302 (Fed. Trade
Comm'n Dec. 31, 1985) (codified as amended at 16 CFR pt. 0-5).
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The Office of the Chairman is issuing these Revised Model Rules to
replace the 1981 and 1986 Model Rules. They include revisions made to
reflect changes in law and in practice during the intervening thirty
years and to promote greater accuracy and clarity. These rules were set
forth in an appendix to Conference Recommendation 2019-4, Revised Model
Rules for Implementation of the Equal Access to Justice Act.
Recommendation 2019-4 is published elsewhere in this issue of the
Federal Register.
Unlike the 1981 and 1986 versions, these Revised Model Rules will
not be published in the Code of Federal Regulations (CFR). The Federal
Register Act requires codification of agency documents of general
applicability and legal effect in the CFR.\6\ However, these model
rules are publishing in the Notices section of this issue of the
Federal Register with the same intended effect of encouraging agencies
to set out and implement these model rules as part of their own EAJA
rules. Because these model rules are publishing in the Notices section,
they will use a different numbering scheme than in past years. Agencies
may use a different numbering system than what appears in the Revised
Model Rules
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\6\ 44 U.S.C. 1510
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The most significant revision to the 1986 Model Rules is the
elimination of much of the former Subpart A. This change was
implemented because its provisions largely addressed substantive
matters beyond the Conference's statutory charge. Some provisions of
former Subpart A remain and were moved to other parts of the Revised
Model Rules for the purpose of improved clarity. A new definitions
section comprises Part 2 in the current revision. Additional changes
were made to comport with the requirements of the Small Business
Regulatory Enforcement Fairness Act, which was enacted in 1996.
The Revised Model Rules adopted by the Conference's Assembly as an
Appendix to Recommendation 2019-4, and now issued by the Office of the
Chairman, were initially drafted by a special ad hoc committee that
held public meetings to address revision of the Model Rules. The
materials related to the meetings, including the agendas, the 1981 and
1986 Model Rules, and draft versions of the Revised Model Rules, can be
accessed via a dedicated web page on the Conference's website at
https://www.acus.gov/research-projects/revised-model-rules-implementation-equal-access-justice-act.
Agencies are encouraged to use these Revised Model Rules when
drafting or revising their EAJA rules pertaining to adjudications in
order to promote the uniformity of procedure contemplated by EAJA. The
Office of the Chairman's expectations of how agencies can fulfill the
statutory requirement of consultation with the ACUS Chairman are as
follows. Agencies that publish proposed rules for comment should notify
the Office of the Chairman of their publication by email to
[email protected], using ``Model EAJA Rules Consultation'' in the subject
line. The
[[Page 38935]]
Office of the Chairman will then provide any suggestions by reply
email. Agencies that intend to publish final rules without a public
comment period should send a draft to the Office of the Chairman for
review and comment before publication if their rules depart
significantly from these Revised Model Rules; the Office of the
Chairman will expedite this review to the extent possible.
Dated: August 1, 2019.
Shawne C. McGibbon,
General Counsel.
Appendix to Conference Recommendation 2019-4,
Revised Model Rules for Implementation of the Equal Access to Justice
Act
Part 1--Scope of These Rules
Sec. 1.01 Scope of these rules.
Part 2--Definitions
Sec. 2.01 Definitions.
Part 3--EAJA Applications
Sec. 3.01 Application requirements.
Sec. 3.02 Net worth exhibit.
Sec. 3.03 Documentation of fees and expenses.
Part 4--Procedures for Considering Applications
Sec. 4.01 Filing and service of documents.
Sec. 4.02 Answer to application.
Sec. 4.03 Reply.
Sec. 4.04 Settlement.
Sec. 4.05 Further proceedings.
Sec. 4.06 Decision.
Sec. 4.07 Agency review.
Sec. 4.08 Judicial review.
Sec. 4.09 Stay of decision concerning award.
Sec. 4.10 Payment of award.
Part 1--Scope of These Rules
Sec. 1.01 Scope of These Rules
The Equal Access to Justice Act, 5 U.S.C. 504 (called ``EAJA'' in
this part), provides for the award of attorney fees and other expenses
to eligible individuals and entities that are parties to certain
administrative proceedings (called ``adversary adjudications'') before
this agency. An eligible party may receive an award when it prevails
over an agency, unless the agency's position was substantially
justified or special circumstances make an award unjust. Alternatively,
an eligible party, even if not a prevailing party, may receive an award
under 5 U.S.C. 504(a)(4) when it successfully defends against an
excessive demand made by an agency.
Part 2--Definitions
Sec. 2.01 Definitions
For the purposes of these rules:
(a) Adjudicative officer means the official, whether the official
is designated as an administrative law judge or otherwise, that
presided over the hearing at the adversary adjudication or the official
that presides over an EAJA proceeding.
(b) Adversary adjudication means (i) an adjudication under 5 U.S.C.
554 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 41
U.S.C. 7103 before an agency board of contract appeals as provided in
41 U.S.C. 7105, (iii) any hearing conducted under 31 U.S.C. 3801 et
seq., and (iv) the Religious Freedom Restoration Act of 1993.\1\
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\1\ The language that appears under subsection 315.201(b)(iv)
was drawn directly from the Equal Access to Justice Act. 5 U.S.C.
504. The statute does not identify what adjudications involving the
Religious Freedom Restoration Act of 1993 are covered.
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(c) 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.
(d) Excessive demand means a demand by an agency, in an adversary
adjudication arising from an agency action to enforce a party's
compliance with a statutory requirement, that 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.
(e) Final disposition means the date on which a decision or order
disposing of the merits of the proceeding or any other complete
resolution of the proceeding, such as a settlement or voluntary
dismissal, become final and unappealable, both within the agency and to
the courts.
(f) Party means a party, as defined in 5 U.S.C. 551(3), that 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
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, may be a party regardless of the net worth of such
organization or cooperative association. For purposes of 5 U.S.C.
504(a)(4), ``party'' also includes a small entity as defined in 5
U.S.C. 601.
(g) 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.
Part 3--EAJA Applications
Sec. 3.01 Application Requirements
(a) A party seeking an award under EAJA shall file an application
with the agency that conducted the adversarial adjudication within 30
days after the agency's final disposition of the adversary
adjudication.
(b) The application shall identify the applicant and the proceeding
for which an award is sought. The application shall show that the
applicant has prevailed and identify the position of the agency or
agencies that the applicant alleges was not substantially justified;
or, if the applicant has not prevailed, shall show that the agency's
demand was substantially in excess of the decision of the adjudicative
officer and was unreasonable when compared with that decision under the
facts and circumstances of that case. The application shall also
identify the agency position(s) in the proceeding that the applicant
alleges was (were) not substantially justified or the agency's demand
that is alleged to be excessive and unreasonable. Unless the applicant
is an individual, the application shall also state the number of
employees of the applicant and describe briefly the type and purpose of
its organization or business.
(c) The application shall also show that the applicant meets the
definition of ``party'' in 5 U.S.C. 504(b)(1)(B), including adequate
documentation of its net worth, as set forth in section 315.302.
(d) The application shall state the amount of fees and expenses for
which an award is sought, subject to the requirements and limitations
as set forth in 5 U.S.C. 504(b)(1)(A), with adequate
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documentation as set forth in section 315.303.
(e) The application shall be signed by the applicant or an
authorized officer or attorney of the applicant. It shall also contain
or be accompanied by a written verification under penalty of perjury
that the information provided in the application is true and correct.
Sec. 3.02 Net Worth Exhibit
(a) Each applicant except a qualified tax-exempt organization,
cooperative association, or, in the case of an application for an award
related to an allegedly excessive demand by the agency, a small entity
as that term is defined by 5 U.S.C. 601, shall provide with its
application a detailed exhibit showing the net worth of the applicant
is as represented in the statement required by section 315.301(c) when
the proceeding was initiated. The exhibit may be in any form convenient
to the applicant that provides full disclosure of the applicant's
assets and liabilities and is sufficient to determine whether the
applicant qualifies under the standards provided in section 315.201(e).
An adjudicative officer presiding over an EAJA proceeding may require
an applicant to file additional information to determine its
eligibility for an award.
(b) Ordinarily, the net worth exhibit will be included in the
public record of the proceeding. However, an applicant that objects to
public disclosure of information in any portion of the exhibit and
believes there are legal grounds for withholding it from disclosure may
request that the documents be filed under seal or otherwise be treated
as confidential, pursuant to [insert cross-reference to appropriate
agency rules governing such requests].
Sec. 3.03 Documentation of Fees and Expenses
The application shall be accompanied by adequate documentation of
the fees and other expenses incurred after initiation of the adversary
adjudication, including, but not limited to, the reasonable cost of any
study, analysis, engineering report, test, or project. With respect to
a claim for fees and expenses involving an excessive demand by the
agency, the application shall be accompanied by adequate documentation
of such fees and expenses incurred after initiation of the adversary
adjudication for which an award is sought attributable to the portion
of the demand alleged to be excessive and unreasonable. A separate
itemized statement shall be submitted for each professional firm or
individual whose services are covered by the application, showing the
hours spent in connection with the proceeding by each individual, a
description of the specific services performed, the rate at which each
fee has been computed, any expenses for which reimbursement is sought,
the total amount claimed, and the total amount paid or payable by the
applicant or by any other person or entity for the services provided.
An adjudicative officer presiding over an EAJA proceeding may require
the applicant to provide vouchers, receipts, or other substantiation
for any expenses claimed.
Part 4--Procedures for Considering Applications
Sec. 4.01 Filing and Service of Documents
Any application for an award, or any accompanying documentation
related to an application, shall be filed and served on all parties to
the proceeding in the same manner as other pleadings in the proceeding,
except, as provided in section 315.302(b), for confidential financial
information.
Sec. 4.02 Answer to Application
(a) Within 30 days after service of an application, counsel
representing the agency against which an award is sought may file an
answer to the application. Unless agency counsel requests an extension
of time for filing or files a statement of intent to negotiate under
paragraph (b) of this section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
(b) If agency counsel and the applicant believe that the issues in
the fee application can be settled, they may jointly file a statement
of their intent to negotiate a settlement. The filing of this statement
shall extend the time for filing an answer for an additional 30 days,
and further extensions may be granted by the adjudicative officer
presiding over an EAJA proceeding upon request by agency counsel and
the applicant.
(c) The answer shall explain in detail any objections to the award
requested and identify the facts relied upon in support of agency
counsel's position. If the answer is based on any alleged facts not
already in the record of the proceeding, agency counsel shall include
with the answer either supporting affidavits or a request for further
proceedings under section 315.405.
Sec. 4.03 Reply
Within 15 days after service of an answer, the applicant may file a
reply. If the reply is based on any alleged facts not already in the
record of the proceeding, the applicant shall include with the reply
either supporting affidavits or a request for further proceedings under
section 315.405.
Sec. 4.04 Settlement
The applicant and agency counsel may agree on a proposed settlement
of the award before final action on the application, either in
connection with a settlement of the underlying adversary adjudication,
or after the adversary adjudication has been concluded, in accordance
with the agency's standard settlement procedure. If a prevailing party
and agency counsel agree on a proposed settlement of an award before an
application has been filed, the application shall be filed with the
proposed settlement. If a proposed settlement of an underlying
proceeding provides that each side shall bear its own expenses and the
settlement is accepted, no application may be filed.
Sec. 4.05 Further Proceedings
(a) Ordinarily, the determination of an award will be made on the
basis of the written record. However, on request of either the
applicant or agency counsel, or on his or her own initiative, the
adjudicative officer presiding over an EAJA proceeding may, if
necessary for a full and fair decision on the application, order the
filing of additional written submissions; hold oral argument; or allow
for discovery or hold an evidentiary hearing, but only as to issues
other than whether the agency's position was substantially justified
(such as those involving the applicant's eligibility or substantiation
of fees and expenses). Any written submissions shall be made, oral
argument held, discovery conducted, and evidentiary hearing held as
promptly as possible so as not to delay a decision on the application
for fees. 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.
(b) A request for further proceedings under this section shall
specifically identify the information sought or the disputed issues and
shall explain why the additional proceedings are necessary to resolve
the issues.
Sec. 4.06 Decision
The adjudicative officer presiding over an EAJA proceeding shall
issue an [initial or recommended] \2\ decision on
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the application within [60 days] after the time for filing a reply, or
when further proceedings are held, within [60 days] after completion of
such proceedings.
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\2\ Brackets such as these indicate that an agency is to use its
discretion to determine what language or time frame is most
appropriate.
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(a) For an application involving a prevailing party. The decision
on the application shall include written findings and conclusions on
the applicant's eligibility and status as a prevailing party and an
explanation of the reasons for any difference between the amount
requested and the amount awarded. The decision shall also include, if
applicable, findings on whether the agency's position was substantially
justified, whether the applicant unduly protracted the proceedings, or
whether special circumstances make an award unjust.
(b) For an application involving an allegedly excessive agency
demand. The decision on the application shall include written findings
and conclusions on the applicant's eligibility and an explanation of
the reasons why the agency's demand was or was not determined to be
substantially in excess of the underlying decision of the adjudicative
officer and was or was not unreasonable when compared with that
decision. That determination shall be based upon all the facts and
circumstances of the case. The decision on the application shall also
include, if at issue, findings on whether the applicant has committed a
willful violation of law or otherwise acted in bad faith, or whether
special circumstances make an award unjust.
(c) Awards. An adjudicative officer presiding over an EAJA
proceeding may reduce the amount to be awarded, or deny any 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.
Sec. 4.07 Agency Review
Either the applicant or agency counsel may seek review of the
decision of the adjudicative officer on the fee application, or the
agency may decide to review the decision on its own initiative, in
accordance with [insert cross-reference to agency's regular review
procedures].
Sec. 4.08 Judicial Review
Judicial review of final agency decisions on awards may be sought
as provided in 5 U.S.C. 504(c)(2).
Sec. 4.09 Stay of Decision Concerning Award
Any proceedings on an application for fees under these rules shall
be automatically stayed until the agency's final disposition of the
decision on which the application is based and either the time period
for seeking judicial review expires, or if review has been sought,
until final disposition is made by a court and no further judicial
review is available.
Sec. 4.10 Payment of Award
An applicant seeking payment of an award shall submit to the
[comptroller or other disbursing official] of the paying agency a copy
of the agency's final decision granting the award, accompanied by a
certification that the applicant will not seek review of the decision
in the United States courts. [Include here address for submissions at
specific agency.] The agency will pay the amount awarded to the
applicant within [60 days].
[FR Doc. 2019-16768 Filed 8-7-19; 8:45 am]
BILLING CODE 6110-01-P