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[House Report 112-594]
[From the U.S. Government Publishing Office]

112th Congress                                                   Report
                        HOUSE OF REPRESENTATIVES
 2d Session                                                     112-594

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

 
                   GOVERNMENT LITIGATION SAVINGS ACT

                                _______
                                

 July 11, 2012.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

Mr. Smith of Texas, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 1996]

      [Including cost estimate of the Congressional Budget Office]

    The Committee on the Judiciary, to whom was referred the 
bill (H.R. 1996) to amend titles 5 and 28, United States Code, 
with respect to the award of fees and other expenses in cases 
brought against agencies of the United States, to require the 
Administrative Conference of the United States to compile, and 
make publically available, certain data relating to the Equal 
Access to Justice Act, and for other purposes, having 
considered the same, reports favorably thereon with an 
amendment and recommends that the bill as amended do pass.

                                CONTENTS

                                                                   Page
The Amendment....................................................     2
Purpose and Summary..............................................     4
Background and Need for the Legislation..........................     4
Hearings.........................................................     9
Committee Consideration..........................................    10
Committee Votes..................................................    10
Committee Oversight Findings.....................................    13
New Budget Authority and Tax Expenditures........................    13
Congressional Budget Office Cost Estimate........................    13
Performance Goals and Objectives.................................    16
Advisory on Earmarks.............................................    16
Section-by-Section Analysis......................................    16
Changes in Existing Law Made by the Bill, as Reported............    19
Dissenting Views.................................................    25

                             The Amendment

    The amendment is as follows:
  Strike all after the enacting clause and insert the 
following:

SECTION 1. SHORT TITLE.

  This Act may be cited as the ``Government Litigation Savings Act''.

SEC. 2. MODIFICATION OF EQUAL ACCESS TO JUSTICE PROVISIONS.

  (a) Agency Proceedings.--Section 504 of title 5, United States Code, 
is amended--
          (1) in subsection (a)--
                  (A) in paragraph (1)----
                          (i) by inserting after the first sentence the 
                        following: ``Fees and other expenses may be 
                        awarded under this subsection only to a 
                        prevailing party who has a direct and personal 
                        interest in the adversary adjudication because 
                        of medical costs, property damage, denial of 
                        benefits, unpaid disbursement, fees and other 
                        expenses incurred in defense of the 
                        adjudication, interest in a policy concerning 
                        such medical costs, property damage, denial of 
                        benefits, unpaid disbursement, or fees and 
                        other expenses, or otherwise.''; and
                          (ii) by adding at the end the following: 
                        ``The agency conducting the adversary 
                        adjudication shall make any party against whom 
                        the adjudication is brought, at the time the 
                        adjudication is commenced, aware of the 
                        provisions of this section.''; and
                  (B) in paragraph (3), in the first sentence--
                          (i) by striking ``may reduce'' and inserting 
                        ``shall reduce''; and
                          (ii) by striking ``unduly and unreasonably'' 
                        and inserting ``unduly or unreasonably'';
          (2) in subsection (b)(1)--
                  (A) in subparagraph (A)(ii), by striking ``$125 per 
                hour'' and all that follows through the end and 
                inserting ``$200 per hour.);''; and
                  (B) in subparagraph (B)(ii), by striking ``; except 
                that'' and all that follows through ``section 601;'' 
                and inserting ``except that--
                  ``(I) the net worth of a party (other than an 
                individual or a unit of local government) shall include 
                the net worth of any parent entity or subsidiary of 
                that party; and
                  ``(II) for purposes of subclause (I)--
                          ``(aa) a `parent entity' of a party is an 
                        entity that owns or controls the equity or 
                        other evidences of ownership in that party; and
                          ``(bb) a `subsidiary' of a party is an entity 
                        the equity or other evidences of ownership in 
                        which are owned or controlled by that party;'';
          (3) in subsection (c)(1), by striking ``, United States 
        Code''; and
          (4) by striking subsections (e) and (f) and inserting the 
        following:
  ``(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 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 that may aid the 
Congress in evaluating the scope and impact of such awards. Each agency 
shall provide the Chairman in a timely manner all information necessary 
for the Chairman to comply with the requirements of this subsection. 
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, except that any version of the report made available to the 
public may not reveal any information the disclosure of which is 
contrary to the national security of the United States.
  ``(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 name of each party to whom the award was made.
          ``(2) The name of each counsel of record representing each 
        party to whom the award was made.
          ``(3) The agency to which the application for the award was 
        made.
          ``(4) The name of each counsel of record representing the 
        agency to which the application for the award was made.
          ``(5) The name of each administrative law judge, and the name 
        of any other agency employee serving in an adjudicative role, 
        in the adversary adjudication that is the subject of the 
        application for the award.
          ``(6) The amount of the award.
          ``(7) The names and hourly rates of each expert witness for 
        whose services the award was made under the application.
          ``(8) 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, or the disclosure of which is contrary to the national 
security of the United States.
  ``(h) The Director of the Office of Management and Budget shall 
adjust the maximum hourly fee set forth in subsection (b)(1)(A)(ii) for 
the fiscal year beginning October 1, 2012, and for each fiscal year 
thereafter, to reflect changes in the Consumer Price Index, as 
determined by the Secretary of Labor.''.
  (b) Court Cases.--Section 2412(d) of title 28, United States Code, is 
amended--
          (1) by amending paragraph (1)(A) to read as follows: ``(A) 
        Except as otherwise specifically provided by statute, a court, 
        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, 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 the civil action, unless the court 
        finds that the position of the United States was substantially 
        justified or that special circumstances make an award unjust. 
        Fees and other expenses may be awarded under this paragraph 
        only to a prevailing party who has a direct and personal 
        interest in the civil action because of medical costs, property 
        damage, denial of benefits, unpaid disbursement, fees and other 
        expenses incurred in defense of the civil action, interest in a 
        policy concerning such medical costs, property damage, denial 
        of benefits, unpaid disbursement, or fees and other expenses, 
        or otherwise.'';
          (2) in paragraph (1)(C)--
                  (A) by striking ``court, in its discretion, may'' and 
                inserting ``court shall''; and
                  (B) by striking ``unduly and unreasonably'' and 
                inserting ``unduly or unreasonably'';
          (3) in paragraph (2)--
                  (A) in subparagraph (A)(ii), by striking ``$125'' and 
                all that follows through the end and inserting ``$200 
                per hour.);'';
                  (B) in subparagraph (B)(ii), by striking ``; except 
                that'' and all that follows through ``section 601 of 
                title 5;'' and inserting ``except that--
                  ``(I) the net worth of a party (other than an 
                individual or a unit of local government) shall include 
                the net worth of any parent entity or subsidiary of 
                that party; and
                  ``(II) for purposes of subclause (I)--
                          ``(aa) a `parent entity' of a party is an 
                        entity that owns or controls the equity or 
                        other evidences of ownership in that party; and
                          ``(bb) a `subsidiary' of a party is an entity 
                        the equity or other evidences of ownership in 
                        which are owned or controlled by that party;''; 
                        and
          (4) by adding at the end the following:
  ``(5) The Director of the Office of Management and Budget shall 
adjust the maximum hourly fee set forth in paragraph (2)(A)(ii) for the 
fiscal year beginning October 1, 2012, and for each fiscal year 
thereafter, to reflect changes in the Consumer Price Index, as 
determined by the Secretary of Labor.
  ``(6)(A) The Chairman of the Administrative Conference of the United 
States shall report annually to the Congress 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 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 paragraph. 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, except that any version of the report made 
available to the public may not reveal any information the disclosure 
of which is contrary to the national security of the United States.
  ``(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.
  ``(7) 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 name of each party to whom the award was made.
          ``(B) The name of each counsel of record representing each 
        party to whom the award was made.
          ``(C) The agency involved in the case.
          ``(D) The name of each counsel of record representing the 
        agency involved in the case.
          ``(E) The name of each judge in the case, and the court in 
        which the case was heard.
          ``(F) The amount of the award.
          ``(G) The names and hourly rates of each expert witness for 
        whose services the award was made.
          ``(H) The basis for the finding that the position of the 
        agency concerned was not substantially justified.
  ``(8) The online searchable database described in paragraph (7) may 
not reveal any information the disclosure of which is prohibited by law 
or court order, or the disclosure of which is contrary to the national 
security of the United States.
  ``(9) 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 necessary for the Chairman to carry out 
the Chairman's responsibilities under this subsection.''.
  (c) Clerical Amendment.--Section 2412(e) of title 28, United States 
Code, is amended by striking ``of section 2412 of title 28, United 
States Code,'' and inserting ``of this section''.

SEC. 3. GAO STUDY.

  Not later than 30 days after the date of the enactment of this Act, 
the Comptroller General shall commence an audit of the implementation 
of the Equal Access to Justice Act for the years 1995 through the end 
of the calendar year in which this Act is enacted. The Comptroller 
General shall, to the extent practical, not later than 1 year after the 
end of the calendar year in which this Act is enacted, complete such 
audit and submit to the Congress a report on the results of the audit.

                          Purpose and Summary

    H.R. 1996, the ``Government Litigation Savings Act,'' 
revises provisions of the Equal Access to Justice Act (``the 
EAJA'' or ``the Act'') relating to the award of attorney's fees 
and costs to prevailing parties in agency proceedings and civil 
actions against the Federal Government. The bill instaurates 
the Act's annual reporting requirements, which have not been 
fulfilled since Fiscal Year 1994, and makes other needed 
reforms to protect taxpayer dollars while ensuring that the 
EAJA is serving all legitimate beneficiaries.

                Background and Need for the Legislation

A. The American Rule and Sovereign Immunity
    Absent a specific statute authorizing fee-shifting, in the 
United States a party prevailing in litigation typically is not 
entitled to recover attorney's fees from the losing party.\1\ 
This is known as the American Rule, in contrast with the 
English Rule, which routinely allows fee-shifting between 
litigants. There are limited common law exceptions to the 
American Rule, such as the bad faith doctrine, which holds that 
``a Federal court may award counsel fees to a successful party 
when his opponent has acted in bad faith, vexatiously, 
wantonly, or for oppressive reasons.''\2\ Owing to the doctrine 
of sovereign immunity, however, these common law exceptions 
traditionally were inapplicable in litigation against the 
United States. Sovereign immunity prevents the United States 
from being sued or forced to pay out funds without its consent, 
which Congress can give in the form of a statute expressly 
waiving sovereign immunity for a particular purpose.\3\ Section 
2412 of Title 28, U.S. Code, formerly codified the rule that 
attorney's fees and costs were not recoverable from the United 
States.
---------------------------------------------------------------------------
    \1\See 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.'').
    \2\Hall v. Cole, 412 U.S. 1, 5 (1973) (citations omitted).
    \3\See, e.g., United States v. Chem. Found., Inc., 272 U.S. 1, 20 
(1926).
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    The 1960's and 1970's witnessed a dramatic increase in 
``public interest law'' and lawsuits filed by citizen activists 
challenging governmental decisions. Courts partly enabled this 
by developing the ``private attorney general doctrine,'' which 
allowed a plaintiff to ``be awarded attorneys' fees when 
[through litigation] he has effectuated a strong Congressional 
policy which has benefited a large class of people, and where 
further the necessity and financial burden of private 
enforcement are such as to make the award essential.''\4\ The 
Supreme Court, however, cut back sharply on this trend in 
Alyeska Pipeline, holding that a specific statute authorizing 
fee-shifting was required before a court could award attorney's 
fees.\5\
---------------------------------------------------------------------------
    \4\La Raza Unida v. Volpe, 57 F.R.D. 94, 98 (N.D. Cal. 1972).
    \5\See 421 U.S. at 263.
---------------------------------------------------------------------------
    Congress has waived the United States' sovereign immunity 
for attorney's fees in particular causes of action. ``In about 
200 statutes Congress has clearly put aside the American Rule 
and waived the Federal Government's sovereign immunity to 
permit the award of attorney's fees to prevailing parties other 
than the Federal Government.''\6\ Examples include the Civil 
Rights Acts of 1964 and 1968; the Voting Rights Act of 1975; 
the Organized Crime Control Act; the Freedom of Information 
Act; the Consumer Product Safety Act; and, the Civil Rights 
Attorneys Fees Awards Act of 1976.\7\
---------------------------------------------------------------------------
    \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, 65 (2004).
    \7\See Equal Access to Justice Act, S. Rep. No. 96-253, at 4 (1979) 
(citing statutes).
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B. The Equal Access to Justice Act
    In October 1980, Congress passed and the President signed 
the EAJA\8\ (originally entitled the ``Small Business Equal 
Access to Justice Act,'' and re-enacted permanently in 1985\9\) 
as part of a broader small business assistance bill, ``in 
response to widespread sentiment that administrative agencies 
were burdening small businesses with excessive 
regulation.''\10\ The Supreme Court has noted that the EAJA was 
adopted with the ``specific purpose'' of ``eliminat[ing] for 
the average person the financial disincentive to challenge 
unreasonable governmental actions.''\11\
---------------------------------------------------------------------------
    \8\96 P.L. 481, 94 Stat. 2321 (Oct. 21, 1980). See generally Lowell 
E. Baier, Reforming the Equal Access to Justice Act, 38 J. Legis. 1 
(2012) (thorough discussion of the EAJA's legislative history and 
legislative suggestions to restore its original purpose of protecting 
ordinary citizens and small businesses from excessive or unreasonable 
government policies and enforcement actions).
    \9\99 P.L. 80, 99 Stat. 183 (Aug. 5, 1985).
    \10\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).
    \11\Comm'r v. Jean, 496 U.S. 154, 163 (1990).
---------------------------------------------------------------------------
    Civil litigation can become a war of attrition as parties 
strategically try to deplete one another's resources to force a 
settlement. Fundamentally, the EAJA recognizes the enormous 
``disparity of resources between individuals, small businesses, 
and other organizations with limited resources and the Federal 
Government.''\12\ Unlike any person or corporation, the Federal 
Government literally has thousands of attorneys at its 
immediate disposal, none of whom bills on an hourly basis. This 
could discourage a citizen from hiring counsel to challenge an 
abusive government policy or could induce a citizen to settle 
on unfavorable terms a capricious civil or administrative 
enforcement action. The EAJA ``is meant to discourage the 
Federal Government from using its superior litigating resources 
unreasonably--it is in this respect an `anti-bully' law.''\13\ 
Consequently, the EAJA ``probably is the most important'' and 
also ``among the most litigated'' of the Federal fee-shifting 
statutes.\14\
---------------------------------------------------------------------------
    \12\Kelley, note 6 supra, at 66 (quoting Equal Access to Justice 
Act Amendments, H.R. Rep. No. 99-120, at 4 (1985)).
    \13\Battles Farm Co. v. Pierce, 806 F.2d 1098, 1101 (D.C. Cir. 
1986).
    \14\Kelley, note 6 supra, at 65.
---------------------------------------------------------------------------
    The EAJA is a one-way fee-shifting statute, allowing the 
recovery of attorney's fees and costs from the United States in 
certain circumstances. First, the EAJA makes the United States 
liable for attorney's fees to the same extent as any other 
party under a common law or statutory exception to the American 
Rule.\15\ Thus, for example, if the United States litigates a 
case in bad faith, then the bad faith exception could be used 
to require the United States to pay the prevailing party's 
attorney's fees and costs. Second, the EAJA allows certain 
parties who prevail against the United States in any 
administrative adjudication or in any civil litigation (not 
just on certain claims brought under particular statutes) to 
recover attorney's fees if the position of the United States 
was not ``substantially justified,'' unless ``special 
circumstances make an award unjust.''\16\
---------------------------------------------------------------------------
    \15\See 28 U.S.C. Sec. 2412(b).
    \16\See 5 U.S.C. Sec. 504(a); 28 U.S.C. Sec. 2412(d).
---------------------------------------------------------------------------
    The EAJA puts the burden on the government to show that its 
position was substantially justified, and the Supreme Court has 
interpreted the EAJA's ``substantially justified'' standard as 
equivalent to reasonableness.\17\ Only individuals with a net 
worth of less than $2 million, or organizations worth less than 
$7 million (except for tax-exempt 501(c)(3) organizations and 
cooperative associations under the Agricultural Marketing Act) 
and with fewer than 500 employees, can collect attorney's fees 
from the Federal Government under the EAJA.\18\ Further, 
attorney's 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.''\19\ An award under the EAJA may be paid ``from any funds 
made available to the agency by appropriation or 
otherwise.''\20\
---------------------------------------------------------------------------
    \17\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.'').
    \18\5 U.S.C. Sec. 504(b)(1)(B); 28 U.S.C. Sec. 2412(d)(2)(B).
    \19\5 U.S.C. Sec. 504(b)(1)(A); 28 U.S.C. Sec. 2412(d)(2)(A); see 
also Pierce, 487 U.S. at 572 (holding that the special factor exception 
in the EAJA ``refers to attorneys having some distinctive knowledge or 
specialized skill needful for the litigation in question--as opposed to 
an extraordinary level of the general lawyerly knowledge and ability 
useful in all litigation. Examples of the former would be an 
identifiable practice specialty such as patent law, or knowledge of 
foreign law or language.'').
    \20\5 U.S.C. Sec. 504(d); 28 U.S.C. Sec. 2412(d)(4).
---------------------------------------------------------------------------
    No reports have been made documenting EAJA payments 
government-wide since FY1994. The EAJA requires the 
Administrative Conference of the United States (``ACUS'' or 
``the Conference'') to report annually to Congress regarding 
fees paid out in administrative actions under Section 504. But 
ACUS was defunded in 1995 and lay dormant until it was re-
appropriated in 2009. Its last report under Section 504 covered 
FY1994, although the Conference is now fully operational and is 
preparing a report for FY2010. The EAJA originally charged the 
Administrative Office of the U.S. Courts, changed to the 
Attorney General in 1992,\21\ with filing a similar annual 
report under Section 2412, but that reporting requirement was 
repealed altogether in 1995.\22\
---------------------------------------------------------------------------
    \21\Federal Courts Administration Act of 1992, 102 P.L. 572, 
Sec. 502(B) (Oct. 29, 1992).
    \22\Federal Reports Elimination and Sunset Act of 1995, 104 P.L. 
66, Sec. 1091(b) (Dec. 21, 1995).
---------------------------------------------------------------------------
C. Necessary Reforms to the EAJA
    The Subcommittee on Courts, Commercial and Administrative 
Law held a hearing on H.R. 1996, the ``Government Litigation 
Savings Act,'' on October 11, 2011.\23\ Testimony was received 
from Lowell Baier, President Emeritus of the Boone & Crockett 
Club and 2008 Field & Stream magazine Conservationist of the 
Year; Jeffrey Axelrad, Professorial Lecturer in Law at The 
George Washington University Law School and former Director of 
the U.S. Department of Justice Torts Branch (1978-2003); 
Jennifer Ellis, rancher and Chairman of the Western Legacy 
Alliance; and, Brian Wolfman, Visiting Professor at Georgetown 
University Law Center and Co-Director of the Institute for 
Public Representation.
---------------------------------------------------------------------------
    \23\Government Litigation Savings Act: Hearing before the Subcomm. 
on Courts, Commercial and Administrative Law of the H. Comm. on the 
Judiciary, 112th Cong. (Oct. 11, 2011).
---------------------------------------------------------------------------
            i. Increasing transparency
    To be sure, the EAJA has not lived up to initial cost 
projections, which were astronomical. The DOJ believed allowing 
the American Rule's common law exceptions to apply against the 
Federal Government would cost $250 million per year.\24\ The 
CBO proffered the somewhat more modest estimate of $108 million 
in the first year, rising to $137 million by FY1982.\25\ From 
FY1982 to FY1994, the last year for which reliable data is 
available, GAO reported that $34 million was paid out under the 
EAJA to 6,200 applicants.\26\ The majority of these were small 
payments made in Social Security and veteran's benefits cases. 
But no comprehensive, reliable data is available since FY1995. 
The GAO has published three reports regarding EAJA payments 
made by particular agencies during this ``blackout'' period, 
but none is government-wide.\27\ For its most recent report, 
only 10 of the 75 bureaus and agencies that GAO contacted 
within the U.S. Departments of Agriculture and the Interior 
could provide any data on EAJA payments for FY2000 to FY 2010. 
This ongoing, near-total lack of transparency is a glaring 
shortcoming of the current EAJA regime.
---------------------------------------------------------------------------
    \24\The Awarding of Attorneys' Fees in Federal Courts: Hearings 
before the Subcomm. on Courts, Civil Liberties, and the Administration 
of Justice of the H. Comm. on the Judiciary, 95th Cong., at 73 (Apr. 
26, 1978) (Statement of Paul Nejelski, Deputy Assistant Attorney 
General).
    \25\S. Rep. No. 96-253, note 7 supra, at 10.
    \26\See United States General Accounting Office, Equal Access to 
Justice Act: Its Use in Selected Agencies, at 3 (GAO/HEHS-98-58-R Jan. 
14, 1998).
    \27\See id.; United States Government Accountability Office, 
Environmental Litigation: Cases Against the EPA and Associated Costs 
over Time (GAO-11-650 Aug. 1, 2011); United States Government 
Accountability Office, Limited Data Available on USDA and Interior 
Attorney Fee Claims and Payments (GAO-12-417R Apr. 12, 2012).
---------------------------------------------------------------------------
            ii. Accounting for inflation and protecting taxpayer 
                    dollars
    At the hearing, all witnesses (including Professor Wolfman) 
broadly agreed that the annual reporting requirement should be 
reinstated\28\ and that the cap on attorney's fees and costs 
should be raised.\29\ The $125 hourly cap was last increased in 
1996, from $75;\30\ the inflation-adjusted 2011 equivalent 
would be around $180.\31\ The Subcommittee heard testimony that 
the ``special factor'' exception has overtaken the hourly cap 
and that courts regularly award attorney's fees far in excess 
of the cap.\32\ The majority of witnesses urged eliminating the 
``special factor'' exception altogether. Professor Wolfman 
allowed that if the cap were raised to $250 per hour, with an 
automatic mechanism to adjust it annually, then the special 
factor exception could be eliminated.\33\ At the hearing, 
Professor Wolfman objected to requiring courts to reduce 
attorney's fees awarded under the EAJA ``commensurate with pro 
bono hours,''\34\ and to limiting EAJA awards to $200,000 per 
case or three cases annually.\35\
---------------------------------------------------------------------------
    \28\See Government Litigation Savings Act, note 23 supra, at 41-43 
(Testimony of Jeffrey Axelrad); 50-51 (Testimony of Lowell Baier); 62-
63 (Testimony of Jennifer Ellis); 96 (Testimony of Brian Wolfman).
    \29\See id. at 34 (Testimony of Jeffrey Axelrad); 50 (Testimony of 
Lowell Baier); 60 (Testimony of Jennifer Ellis). Cf. id. at 91 
(Testimony of Brian Wolfman).
    \30\Contract with America Advancement Act of 1996, 104 P.L. 121, 
Sec. 232(b) (Mar. 29, 1996).
    \31\Government Litigation Savings Act, note 23 supra, at 77-78 
(Testimony of Brian Wolfman).
    \32\See id. at 39-40 (Testimony of Jeffrey Axelrad), 60-61 
(Testimony of Jennifer Ellis); see also Ctr. for Food Safety v. 
Vilsack, 08-cv-00484-JSW, Dkt. No. 648, Report and Recommendations re: 
Plaintiffs' Motion for Attorneys' Fees (N.D. Cal. Oct. 13, 2011) 
(approving hourly rates of $650, $385, $450, and $410 for environmental 
attorneys under EAJA's special factor exception).
    \33\See Government Litigation Savings Act, note 23 supra, at 101-02 
(``I think if we were at $250 an hour and we had a reasonable inflation 
adjuster . . . And if you had a mandatory inflation adjuster, I am with 
you on this.'').
    \34\Id. at 86-91.
    \35\Id. at 92-95.
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            iii. Clarifying eligibility
    Certain 501(c)(3) organizations routinely receive large 
awards under the EAJA. This is based on reliable (although, due 
to the annual reporting blackout since FY1994, not 
comprehensive) evidence, including the GAO's August 2011 
report.\36\ The GAO report revealed that EarthJustice received 
32%--$4.6 million--of attorney's fees paid by the EPA during 
the period of time studied. The Natural Resources Defense 
Council and the Sierra Club combined to take another 41%.\37\ 
Another recent study found that the U.S. Forest Service paid 
EAJA awards in 149 instances over a 7-year period (1999-2005), 
totaling over $6 million in attorney's fees and costs.\38\ 
Eighty three of these involved environmental organizations, 
accounting for approximately 70% of the EAJA award dollars.\39\
---------------------------------------------------------------------------
    \36\See Environmental Litigation, note 27 supra.
    \37\See Ron Arnold, ``Fed pays Big Green to sue the government,'' 
Wash. Examiner, Aug. 31, 2011, at 29.
    \38\Michael J. Mortimer & Robert W. Malmsheimer, The Equal Access 
to Justice Act and US Forest Service Land Management: Incentives to 
Litigate?, 109 J. Forestry 352, 354-55 (2011).
    \39\Id.
---------------------------------------------------------------------------
    For example, in Center for Food Safety v. Vilsack, a case 
challenging the adequacy of an environmental review, the Center 
for Food Safety was awarded more than $2.6 million in 
attorney's fees,\40\ with its lead counsel compensated at a 
rate of $650 per hour and assisting attorneys at $385 to $450 
per hour.\41\ The court specifically cited the attorneys' 
specialized knowledge in and experience with environmental 
issues as the ``special factor'' meriting fees in excess of the 
EAJA's statutory rate.\42\
---------------------------------------------------------------------------
    \40\Ctr. for Food Safety v. Vilsack, No. 08-cv-00484-JSW, Dkt. No. 
656, Order Adopting Report and Recommendations (N.D. Cal. Dec. 15, 
2011); see also id., appeal docketed, No. 12-15323 (9th Cir. Feb. 17, 
2012).
    \41\See Report and Recommendations, note 32 supra.
    \42\Id. at 14-18.
---------------------------------------------------------------------------
    The Subcommittee heard extensive testimony on the issue of 
eligibility for EAJA awards. Mr. Baier testified that the 
EAJA's legislative history shows it was meant to protect 
``private individuals and small businesses'' from unreasonable 
regulatory and civil enforcement by the Federal Government.\43\ 
Of the more than 200 other fee-shifting statutes, the EAJA is 
the only one that makes a special exception for 501(c)(3) 
corporations.\44\ By reviewing court filings for cases marked 
``closed'' between September 1, 2009, and August 31, 2010, Mr. 
Baier found that twenty environmental organizations collected 
$5.8 million in EAJA payments under Section 2412 in this 1-year 
period alone.\45\ This figure does not include other EAJA 
payments that may have been made to such groups in 
administrative proceedings under Section 504. Mr. Baier 
specifically suggested that the law be improved so that ``[i]n 
calculating the net worth of the litigant the net worth of all 
parent entities and wholly owned subsidiaries should be 
included, in order to prevent the use of small ephemeral or 
shell organizations to circumvent the net worth eligibility 
requirement.''\46\
---------------------------------------------------------------------------
    \43\See Government Litigation Savings Act, note 23 supra, at 49.
    \44\See id. at 48 (Testimony of Lowell Baier).
    \45\Id. at 52.
    \46\See id. at 49.
---------------------------------------------------------------------------
    Mr. Baier and Ms. Ellis also argued that EAJA awards should 
be available only for cases challenging the substance of a 
governmental policy or decision, rather than challenges to the 
decision-making process.\47\ As Ms. Ellis put it, ``I have 
always understood that people can push their agendas in court. 
I just disagree with using my tax dollars to do it.''\48\
---------------------------------------------------------------------------
    \47\See id. at 48-49 (Testimony of Lowell Baier); 59-61 (Testimony 
of Jennifer Ellis).
    \48\Id. at 55.
---------------------------------------------------------------------------

                                Hearings

    The Subcommittee on Courts, Commercial and Administrative 
Law held a legislative hearing on H.R. 1996, the ``Government 
Litigation Savings Act,'' on October 11, 2011. Testimony was 
received from Lowell Baier, President Emeritus of the Boone & 
Crockett Club and 2008 Field & Stream magazine Conservationist 
of the Year; Jeffrey Axelrad, Professorial Lecturer in Law at 
The George Washington University Law School and former Director 
of the U.S. Department of Justice Torts Branch (1978-2003); 
Jennifer Ellis, rancher and Chairman of the Western Legacy 
Alliance; and, Brian Wolfman, Visiting Professor at Georgetown 
University Law Center and Co-Director of the Institute for 
Public Representation.

                        Committee Consideration

    On November 17, 2011, the Committee met in open session and 
ordered the bill H.R. 1996 favorably reported, with an 
amendment in the nature of a substitute from Mr. Coble, by a 
rollcall vote of 19 to 14, 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 the 
following rollcall votes occurred during the Committee's 
consideration of H.R. 1996.
    1. Amendment #3, offered by Mr. Scott, to strike the 
attorney's fee cap and instead provide for ``reasonable'' 
attorney's fees; to preserve the net worth exemption for 
501(c)(3) corporations; and to strike the requirement that a 
party's net worth shall include the net worth of a parent 
entity or subsidiary of that party. Amendment not agreed to by 
vote of 14 to 18.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................                              X
Mr. Sensenbrenner, Jr...........................................                              X
Mr. Coble.......................................................                              X
Mr. Gallegly....................................................                              X
Mr. Goodlatte...................................................                              X
Mr. Lungren.....................................................
Mr. Chabot......................................................                              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................                              X
Mr. King........................................................                              X
Mr. Franks......................................................                              X
Mr. Gohmert.....................................................                              X
Mr. Jordan......................................................                              X
Mr. Poe.........................................................
Mr. Chaffetz....................................................                              X
Mr. Griffin.....................................................                              X
Mr. Marino......................................................                              X
Mr. Gowdy.......................................................
Mr. Ross........................................................                              X
Ms. Adams.......................................................                              X
Mr. Quayle......................................................                              X
Mr. Amodei......................................................                              X
Mr. Conyers, Jr., Ranking Member................................              X
Mr. Berman......................................................              X
Mr. Nadler......................................................              X
Mr. Scott.......................................................              X
Mr. Watt........................................................              X
Ms. Lofgren.....................................................              X
Ms. Jackson Lee.................................................              X
Ms. Waters......................................................
Mr. Cohen.......................................................              X
Mr. Johnson.....................................................              X
Mr. Pierluisi...................................................              X
Mr. Quigley.....................................................              X
Ms. Chu.........................................................              X
Mr. Deutch......................................................              X
Ms. Sanchez.....................................................              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             14              18
----------------------------------------------------------------------------------------------------------------

    2. Motion by Mr. Sensenbrenner to Table the Appeal of the 
Ruling of the Chair. The chairman ruled that it was not in 
order to consider further amendments following the committee's 
adoption of an amendment in the nature of a substitute that by 
unanimous consent was considered the base text for purposes of 
markup. Ms. Jackson Lee appealed this ruling, and Mr. 
Sensenbrenner moved to table Ms. Jackson Lee's motion.\49\ 
Motion agreed to by vote of 19 to 13.
---------------------------------------------------------------------------
    \49\Despite the record vote occurring on the motion to table, the 
Committee notes that a ruling by the Chair that it is not in order to 
offer an amendment following a Committee's adoption of an amendment in 
the nature of a substitute which by unanimous consent was considered 
the base text for purposes of markup is not subject to appeal.

                                                 ROLLCALL NO. 2
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................
Mr. Chabot......................................................              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Amodei......................................................              X
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................
Ms. Chu.........................................................                              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................                              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             19              13
----------------------------------------------------------------------------------------------------------------

    3. Motion to report H.R. 1996, as amended, favorably to the 
House. Motion agreed to by vote of 19 to 14.

                                                 ROLLCALL NO. 3
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Smith, Chairman.............................................              X
Mr. Sensenbrenner, Jr...........................................              X
Mr. Coble.......................................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Lungren.....................................................
Mr. Chabot......................................................              X
Mr. Issa........................................................
Mr. Pence.......................................................
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Jordan......................................................              X
Mr. Poe.........................................................              X
Mr. Chaffetz....................................................              X
Mr. Griffin.....................................................              X
Mr. Marino......................................................              X
Mr. Gowdy.......................................................
Mr. Ross........................................................              X
Ms. Adams.......................................................              X
Mr. Quayle......................................................              X
Mr. Amodei......................................................              X
Mr. Conyers, Jr., Ranking Member................................                              X
Mr. Berman......................................................                              X
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................                              X
Ms. Waters......................................................                              X
Mr. Cohen.......................................................                              X
Mr. Johnson.....................................................                              X
Mr. Pierluisi...................................................                              X
Mr. Quigley.....................................................
Ms. Chu.........................................................                              X
Mr. Deutch......................................................                              X
Ms. Sanchez.....................................................                              X
(Vacant)........................................................
                                                                 -----------------------------------------------
    Total.......................................................             19              14
----------------------------------------------------------------------------------------------------------------

                      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. 1996, 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, June 26, 2012.
Hon. Lamar Smith, 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. 1996, the 
``Government Litigation Savings Act.''
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contacts are Martin von 
Gnechten and Matthew Pickford, who can be reached at 226-2860.
            Sincerely,
                                      Douglas W. Elmendorf,
                                                  Director.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member

         H.R. 1996--Government Litigation Savings Act.

  As ordered reported by the House Committee on the Judiciary 
                     on November 17, 2011.

                                SUMMARY

    H.R. 1996 would make several amendments to the Equal Access 
to Justice Act (EAJA), which allows plaintiffs to recover 
attorneys' fees and other costs from the Federal Government 
when they prevail in a case against the government. 
Specifically, the legislation would increase the cap on hourly 
attorney rates, restrict who is eligible to receive EAJA 
awards, and impose new reporting requirements on the 
Administrative Conference of the United States (ACUS).
    Based on information from affected Federal agencies, CBO 
estimates that implementing H.R. 1996 would cost about $95 
million over the 2013-2017 period, assuming appropriation of 
the necessary amounts. Enacting the legislation also could 
affect direct spending by agencies not funded through annual 
appropriations; therefore, pay-as-you-go procedures apply. CBO 
estimates, however, that any net increase in spending by those 
agencies would not be significant. Enacting the bill would not 
affect revenues.
    H.R. 1996 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would not affect the budgets of State, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 1996 is shown in the 
following table. The costs of this legislation fall within 
budget functions 750 (administration of justice), 800 (general 
government), and all other budget functions from which EAJA 
claims are paid.

                                     By Fiscal Year, in Millions of Dollars
----------------------------------------------------------------------------------------------------------------
                                                        2013     2014     2015     2016     2017    2013-   2017
----------------------------------------------------------------------------------------------------------------
CHANGES IN SPENDING SUBJECT TO APPROPRIATION

Estimated Authorization Level                             21       18       18       19       19           95

Estimated Outlays                                         20       19       18       19       19           95
----------------------------------------------------------------------------------------------------------------

                           BASIS OF ESTIMATE

    CBO estimates that implementing H.R. 1996 would cost $95 
million over the 2013-2017 period. That amount includes 
increased payments to reimburse attorneys' fees and the 
estimated costs of carrying out new reporting and auditing 
requirements by Federal agencies. For this estimate, CBO 
assumes that the bill will be enacted by the end of 2012, that 
the necessary amounts will be appropriated each year, and that 
spending will follow historical patterns for EAJA payments and 
litigation against the Federal Government.
Increased Payments for Attorneys' Fees
    Generally, in the United States, parties involved in 
litigation pay their own attorneys' fees. However, under EAJA, 
parties that sue the Federal Government and prevail are 
entitled to repayment of attorneys' fees, subject to certain 
conditions. In general, EAJA allows smaller groups with limited 
resources to pursue claims against the Federal Government. 
Based on information provided by the affected agencies, CBO 
estimates that payments of attorneys' fees under EAJA from 
agencies' appropriations have totaled around $40 million 
annually in recent years.
    Under EAJA, plaintiffs who successfully bring a civil 
action against the Federal Government through a statute that 
lacks what is known as a ``fee-shifting provision'' for 
attorneys' fees are entitled to repayment of attorneys' fees 
from the defendant agency's appropriation. Fee-shifting 
provisions require that payments to plaintiffs be paid through 
the Treasury's Judgment Fund. This legislation would affect 
only payments that are made from an agency's appropriation.
    H.R. 1996 would make several changes that CBO estimates 
would increase discretionary spending for that subset of EAJA 
payments. Specifically, the bill would raise the cap for 
attorneys' fees, payable from agency appropriations, from $125 
per hour to $200 per hour; it would prohibit reimbursements 
above the cap for special factors, such as cost-of-living 
adjustments as allowed under current law; and it would require 
the Office of Management and Budget to adjust the hourly cap to 
reflect changes in the Consumer Price Index. Based on 
information provided by the Departments of Justice (DOJ) and 
Veterans Affairs, the Environmental Protection Agency, the 
Social Security Administration, and various private-sector 
entities, CBO estimates that those changes would have a net 
cost of about $17 million annually, predominantly from 
increasing the cap on attorneys' fees for cases involving the 
Social Security Administration and the Department of Veterans 
Affairs.
    The bill also would restrict the class of parties eligible 
for repayment and require judges to reduce awards in specified 
situations. Based on information provided by the affected 
agencies, CBO projects that those provisions would not have a 
significant impact on caseload or awards of attorneys' fees. 
The majority of cases that would be affected by the legislation 
currently meet the eligibility restrictions for plaintiffs 
required under the legislation.
Auditing and Reporting Requirements
    The legislation also would require the ACUS to annually 
report EAJA fee payments made by all government agencies and to 
maintain an online searchable database of such payments. In 
addition, the Government Accountability Office (GAO) would be 
required to audit all EAJA payments since 1995. CBO estimates 
that those provisions would cost about $10 million over the 
2013-2017 period.

                      PAY-AS-YOU-GO CONSIDERATIONS

    The Statutory Pay-As-You-Go Act of 2010 establishes budget-
reporting and enforcement procedures for legislation affecting 
direct spending or revenues. Enacting H.R. 1996 could affect 
direct spending by agencies not funded through the 
appropriation process, but CBO estimates that such effects 
would not be significant in any year.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 1996 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would not affect the budgets of 
State, local, or tribal governments.

                         ESTIMATE PREPARED BY:

Federal Costs: Martin von Gnechten and Matthew Pickford
Impact on State, Local, and Tribal Governments: Elizabeth Cove 
    Delisle
Impact on the Private Sector: Paige Piper/Bach

                         ESTIMATE APPROVED BY:

Theresa Gullo
Deputy Assistant Director for Budget Analysis

                    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. 
1996 as amended will instaurate the annual reporting 
requirements of the Equal Access to Justice Act, and make other 
needed reforms to the EAJA.

                          Advisory on Earmarks

    In accordance with clause 9 of rule XXI of the Rules of the 
House of Representatives, H.R. 1996 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. This section designates the bill as 
the ``Government Litigation Savings Act.''
    Section 2: Modification of Equal Access to Justice 
Provisions. This section makes several amendments to the Equal 
Access to Justice Act, at 5 U.S.C. Sec. 504 and 28 U.S.C. 
Sec. 2412.
    Section 2(a) amends 5 U.S.C. Sec. 504 regarding EAJA 
payments made in administrative adjudications. Section 
2(a)(1)(A)(i) requires EAJA filers to show a ``direct and 
personal interest'' in the action to be eligible for an award 
of attorney's fees and costs. Types of such a ``direct and 
personal interest'' are medical costs, property damage, denial 
of benefits, unpaid disbursement, fees and costs incurred in 
defense of an adjudication, or a policy interest concerning 
such a direct and personal interest. In this respect the bill 
draws upon language suggested by the National Organization of 
Veterans' Advocates to ensure that the EAJA continues to 
protect everyone whom it was meant to protect.\50\
---------------------------------------------------------------------------
    \50\See Government Litigation Savings Act, note 23 supra, at 117-
18.
---------------------------------------------------------------------------
    Section 2(a)(1)(A)(ii) requires agencies to apprise parties 
to an adjudication of the provisions of Section 504, to 
discourage someone without counsel from settling a vexatious 
adjudication for lack of resources to pay an attorney. 
Responding to concerns expressed at the legislative hearing 
that parties may increase their attorney's fees by prolonging 
the litigation,\51\ Section 2(a)(1)(B) requires a reduction in 
the award if a party has ``unduly or unreasonably protracted 
the final resolution of the matter in controversy.''
---------------------------------------------------------------------------
    \51\See id. at 61 (Testimony of Jennifer Ellis).
---------------------------------------------------------------------------
    Section 2(a)(2) raises the hourly cap to $200 and 
eliminates the special factor exception. Section 2(a)(4) 
requires the Director of the Office of Management and Budget to 
adjust the cap annually according to the Consumer Price Index. 
Professor Wolfman specifically objected to giving the Director 
any discretion in this regard, and urged that the annual 
inflation adjustment should be mandatory.\52\ The bill directly 
addresses this point. Consistent with other of Professor 
Wolfman's concerns expressed at the Subcommittee hearing, the 
bill does not require courts to discount pro bono hours from an 
EAJA award, or impose an annual limit on the number or amount 
of awards a party can receive.
---------------------------------------------------------------------------
    \52\See id. at 91-92, 102.
---------------------------------------------------------------------------
    Section 2(a)(2)(B) of the bill would eliminate the net 
worth exemption for 501(c)(3)s and for farm co-ops. The 
National Council of Farmer Cooperatives has endorsed the 
Bill,\53\ and the Committee is unaware that any farm co-op has 
ever benefitted from this exemption. To close this loophole 
once and for all, at Section 2(a)(2)(B) the bill specifies that 
a corporation's net worth includes resources available to the 
corporation from a parent or subsidiary. Section 2(a)(3) makes 
a clerical amendment to the U.S. Code.
---------------------------------------------------------------------------
    \53\Id. at 126.
---------------------------------------------------------------------------
    Section 2(a)(4) expands the reporting requirement for the 
Administrative Conference of the United States under Section 
504. The Conference is required to report to Congress annually, 
and a copy of the report will be published online. The public 
version of the report should redact information contrary to the 
national security of the United States, and should not reveal 
information that is sealed or subject to a nondisclosure 
agreement. The public, unredacted version of the report, 
however, should account for payments made in sealed cases. The 
Conference will maintain an online searchable database of 
payments made under this Section. The online database may not 
reveal any information the disclosure of which is contrary to 
the national security of the United States or the disclosure of 
which is prohibited by law or court order. Thus, the report 
will account for payments made in sealed cases without 
disclosing any other information from such sealed cases, but no 
information about sealed cases, including payments, should be 
available in the online database. The agencies must promptly 
provide the ACUS Chairman with all necessary information to 
fulfill this reporting requirement.
    Section 2(b) makes analogous changes to 28 U.S.C. 
Sec. 2412, regarding EAJA payments made by agencies in civil 
lawsuits. Section 2(b)(1) requires EAJA filers to show a 
``direct and personal interest'' in the civil case to be 
eligible for an award of attorney's fees and costs. Types of 
such a ``direct and personal interest'' are medical costs, 
property damage, denial of benefits, unpaid disbursement, fees 
and costs incurred in defense of a case, or a policy interest 
concerning such a direct and personal interest.
    This is consistent with the EAJA's original purpose of 
awarding attorney's fees and costs to private individuals and 
small businesses that have been personally and unreasonably 
wronged by the Federal Government. Fundamentally, a plaintiff's 
eligibility for an EAJA award should be narrower than his or 
her standing to sue. Under the bill, to receive an EAJA award a 
party must have a particular kind of ``direct and personal 
interest'' in the case. An organization may be eligible for an 
award under the EAJA if the organization itself, as an entity, 
has a ``direct and personal interest'' of the type listed in 
the bill. Although an organization may have standing to sue on 
behalf of one of its members, an organization should not 
receive an EAJA award in such a case. Rather, one of the 
organization's members who has standing and who has a ``direct 
and personal interest'' in the governmental policy or decision 
of the type described in the bill, would have to bring the suit 
to be eligible for an EAJA award. A ``direct and personal 
interest'' does not include a case predicated on an alleged 
failure in the government's decision-making process, such as 
allegedly failing to follow the Administrative Procedure Act or 
an alleged deficiency in conducting a regulatory flexibility or 
environmental impact analysis. A party may receive an EAJA 
award only if the governmental policy or decision resulting 
from this decision-making process affects the party's ``direct 
and personal interest'' of the type listed in the bill. This 
should limit EAJA awards to cases challenging the substance of 
a governmental policy or decision that directly and personally 
affects the party's interest of the type listed in the bill, 
rather than challenges related to the procedure the government 
should follow to make a policy or decision.
    This is consistent with the plain language of Sections 504 
and 2412, which do not allow attorney's fees to be awarded if 
the government's ``position'' was ``substantially justified.'' 
This language was intended to limit all EAJA payments as a 
cost-control mechanism, and it indicates that awards should be 
made only in cases challenging an actual governmental decision, 
not an alleged flaw in the decision-making process. Section 
2(b) makes this limitation more explicit.
    Section 2(b)(2) requires courts and agencies to reduce the 
award if a party has ``unduly or unreasonably protracted the 
final resolution of the matter in controversy.'' Section 
2(b)(3) raises the hourly cap on attorney's fees to $200 per 
hour; eliminates the ``special faction'' exception to the cap; 
and, removes the net worth exemptions for 501(c)(3)s and farm 
co-ops. As in Section 2(a)(2)(B), under Section 2(b)(3) all 
funds available to a corporation count toward its net worth, 
including funds of a parent or subsidiary. Section 2(b)(4) 
requires the OMB Director annually to adjust for inflation the 
hourly cap on attorney's fees.
    Like the Section 504 reporting requirements, Section 
2(b)(4) charges ACUS with reporting annually to Congress 
regarding payments made under Section 2412, and requires 
agencies and the Attorney General to support ACUS in meeting 
this responsibility. (The Attorney General formerly was 
required to make this annual report, but that requirement was 
repealed in 1995.) The Attorney General also must make 
available to ACUS information about EAJA payments made from the 
Judgment Fund, and in its report ACUS should clearly identify 
all such payments as originating from the Judgment Fund. The 
Conference is willing and able to assume these 
responsibilities. Section 2(c) makes a clerical amendment to 
the U.S. Code.
    Section 3. GAO Study. Section 3 requires the GAO to audit 
EAJA payments over the last 15 years, when no annual reports 
regarding EAJA payments were conducted. Given that during this 
period of time EAJA payments were not documented systematically 
and many of the relevant files are not electronic, conducting a 
truly comprehensive audit would cause the GAO to incur 
tremendous expenses. The bill requires the GAO to provide 
Congress with as much information as practical regarding EAJA 
payments made during the ``blackout'' period.

         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)(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. Fees and other expenses may be awarded under this 
subsection only to a prevailing party who has a direct and 
personal interest in the adversary adjudication because of 
medical costs, property damage, denial of benefits, unpaid 
disbursement, fees and other expenses incurred in defense of 
the adjudication, interest in a policy concerning such medical 
costs, property damage, denial of benefits, unpaid 
disbursement, or fees and other expenses, or otherwise. 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. The agency conducting 
the adversary adjudication shall make any party against whom 
the adjudication is brought, at the time the adjudication is 
commenced, aware of the provisions of this section.

           *       *       *       *       *       *       *

    (3) The adjudicative officer of the agency [may reduce] 
shall 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] unduly or 
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.
    (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.);] $200 
        per hour.);
            (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;] except that--
                    (I) the net worth of a party (other than an 
                individual or a unit of local government) shall 
                include the net worth of any parent entity or 
                subsidiary of that party; and
                    (II) for purposes of subclause (I)--
                            (aa) a ``parent entity'' of a party 
                        is an entity that owns or controls the 
                        equity or other evidences of ownership 
                        in that party; and
                            (bb) a ``subsidiary'' of a party is 
                        an entity the equity or other evidences 
                        of ownership in which are owned or 
                        controlled by that party;

           *       *       *       *       *       *       *

    (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.
    [(f) 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.]
    (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 
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 that may aid the Congress in 
evaluating the scope and impact of such awards. Each agency 
shall provide the Chairman in a timely manner all information 
necessary for the Chairman to comply with the requirements of 
this subsection. 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, except that any 
version of the report made available to the public may not 
reveal any information the disclosure of which is contrary to 
the national security of the United States.
    (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 name of each party to whom the award was 
        made.
            (2) The name of each counsel of record representing 
        each party to whom the award was made.
            (3) The agency to which the application for the 
        award was made.
            (4) The name of each counsel of record representing 
        the agency to which the application for the award was 
        made.
            (5) The name of each administrative law judge, and 
        the name of any other agency employee serving in an 
        adjudicative role, in the adversary adjudication that 
        is the subject of the application for the award.
            (6) The amount of the award.
            (7) The names and hourly rates of each expert 
        witness for whose services the award was made under the 
        application.
            (8) 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, or the disclosure of which is 
contrary to the national security of the United States.
    (h) The Director of the Office of Management and Budget 
shall adjust the maximum hourly fee set forth in subsection 
(b)(1)(A)(ii) for the fiscal year beginning October 1, 2012, 
and for each fiscal year thereafter, to reflect changes in the 
Consumer Price Index, as determined by the Secretary of Labor.

           *       *       *       *       *       *       *

                              ----------                              

              SECTION 2412 OF TITLE 28, UNITED STATES CODE

Sec. 2412. Costs and fees

    (a) * * *

           *       *       *       *       *       *       *

    (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.] (A) Except as 
otherwise specifically provided by statute, a court, 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, 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 the civil action, unless the court finds that the 
position of the United States was substantially justified or 
that special circumstances make an award unjust. Fees and other 
expenses may be awarded under this paragraph only to a 
prevailing party who has a direct and personal interest in the 
civil action because of medical costs, property damage, denial 
of benefits, unpaid disbursement, fees and other expenses 
incurred in defense of the civil action, interest in a policy 
concerning such medical costs, property damage, denial of 
benefits, unpaid disbursement, or fees and other expenses, or 
otherwise.

           *       *       *       *       *       *       *

    (C) The [court, in its discretion, may ] court shall 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] unduly or unreasonably protracted the final 
resolution of the matter in controversy.

           *       *       *       *       *       *       *

    (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.);] $200 per hour.);
            (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;] except that--
                    (I) the net worth of a party (other than an 
                individual or a unit of local government) shall 
                include the net worth of any parent entity or 
                subsidiary of that party; and
                    (II) for purposes of subclause (I)--
                            (aa) a ``parent entity'' of a party 
                        is an entity that owns or controls the 
                        equity or other evidences of ownership 
                        in that party; and
                            (bb) a ``subsidiary'' of a party is 
                        an entity the equity or other evidences 
                        of ownership in which are owned or 
                        controlled by that party;

           *       *       *       *       *       *       *

    (5) The Director of the Office of Management and Budget 
shall adjust the maximum hourly fee set forth in paragraph 
(2)(A)(ii) for the fiscal year beginning October 1, 2012, and 
for each fiscal year thereafter, to reflect changes in the 
Consumer Price Index, as determined by the Secretary of Labor.
    (6)(A) The Chairman of the Administrative Conference of the 
United States shall report annually to the Congress 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 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 paragraph. 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, except 
that any version of the report made available to the public may 
not reveal any information the disclosure of which is contrary 
to the national security of the United States.
    (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.
    (7) 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 name of each party to whom the award was 
        made.
            (B) The name of each counsel of record representing 
        each party to whom the award was made.
            (C) The agency involved in the case.
            (D) The name of each counsel of record representing 
        the agency involved in the case.
            (E) The name of each judge in the case, and the 
        court in which the case was heard.
            (F) The amount of the award.
            (G) The names and hourly rates of each expert 
        witness for whose services the award was made.
            (H) The basis for the finding that the position of 
        the agency concerned was not substantially justified.
    (8) The online searchable database described in paragraph 
(7) may not reveal any information the disclosure of which is 
prohibited by law or court order, or the disclosure of which is 
contrary to the national security of the United States.
    (9) 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 necessary for the 
Chairman to carry out the Chairman's responsibilities under 
this subsection.
    (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 (as in effect on 
October 1, 1981).

           *       *       *       *       *       *       *

                            Dissenting Views

                              INTRODUCTION

    H.R. 1996, the ``Government Litigation Savings Act,'' would 
prohibit certain groups and individuals seeking to protect 
important rights and interests threatened by governmental 
action from recovering attorneys' fees under the Equal Access 
to Justice Act (EAJA).\1\ The bill accomplishes this objective 
in several respects. First, the bill requires a plaintiff to 
have a direct and personal interest in his or her claim for 
relief, and thus would deny attorneys' fees for some claims 
which are currently eligible for fee recovery. Second, H.R. 
1996 would cap the attorneys' fee rate at $200 per hour, a rate 
that may be inadequate to obtain legal representation in 
certain legal markets or for complex litigation. Third, the 
bill prevents fee recovery for many non-profit groups. Taken as 
a whole, these changes threaten to undermine the ability of 
various groups to obtain legal representation. In essence, H.R. 
1996 has a single objective: to prevent access to justice for 
some individuals, small businesses, and non-profit 
organizations by eliminating their eligibility to recover their 
legal fees and expenses when they challenge government action.
---------------------------------------------------------------------------
    \1\Pub. L. No. 96-481, title II, 94 Stat. 2321, 2325 (1980) 
(codified as amended at 5 U.S.C. Sec. 504, 28 U.S.C. Sec. 2412). EAJA 
became permanent in 1985. Pub. L. No. 99-80, 99 Stat. 183 (1985).
---------------------------------------------------------------------------
    Citing these problems and other concerns presented by the 
bill, Access for All, Alliance for Justice, American Civil 
Liberties Union, American Association for Justice, Center for 
Biological Diversity, Center for Food Safety, Center for Law & 
Social Policy, Defenders of Wildlife, Earthjustice, Endangered 
Species Coalition, Equal Justice Society, Law Foundation of 
Silicon Valley, Legal Aid Service of Broward County, Oregon 
Wild, People for the American Way, National Consumer Law 
Center, National Senior Citizens Law Center, National 
Disability Rights Network, National Employment Lawyers 
Association, National Fair Housing Alliance, National Legal Aid 
& Defender Association, National Health Law Program, National 
Treasury Employees Union, Natural Resources Defense Council, 
Oceana, Public Citizen, Rocky Mountain Wild, Sargent Shriver 
National Center on Poverty Law, Sierra Club, Western 
Environmental Law Center, and WildEarth Guardians oppose H.R. 
1996.\2\
---------------------------------------------------------------------------
    \2\Letter Opposing the ``Government Litigation Savings Act'' (H.R. 
1996) (Nov. 16, 2011), available at http://
democrats.judiciary.house.gov/sites/democrats.judiciary.house.gov/
files/RnIGroups
111116.pdf; Letter from Collen M. Kelley, National President of the 
National Treasury Employees Union to Representative Howard Coble, Chair 
of the Subcommittee on Courts, Commercial and Administrative Law and 
Representative Steve Cohen, Ranking Member of the Subcommittee on 
Courts, Commercial and Administrative Law (Nov. 29, 2011), available at 
http://democrats.judiciary.house.gov/sites/
democrats.judiciary.house.gov/files/NTEU111129.pdf.
---------------------------------------------------------------------------
    For these reasons, and those discussed below, we 
respectfully dissent and urge our colleagues to reject this 
unnecessary and flawed legislation.

                    THE EQUAL ACCESS TO JUSTICE ACT

    Enacted in 1980, EAJA provides for the award of fees and 
expenses to certain litigants who prevail against the United 
States in adversary adjudications or civil actions. Congress 
expressly found that EAJA was necessary because ``certain 
individuals, partnerships, corporations, and labor and other 
organizations may be deterred from seeking review of, or 
defending against, unreasonable governmental action because of 
the expense involved in securing the vindication of their 
rights in civil actions and in administrative proceedings.''\3\ 
Congress also wanted EAJA to be based on ``the premise that a 
party who chooses to litigate an issue against the government 
is not only representing his or her own vested interest but is 
also refining and formulating public policy. . . . Where 
parties are serving a public purpose, it is unfair to ask them 
to finance through their tax dollars unreasonable government 
action and also bear the costs of vindicating their 
rights.''\4\
---------------------------------------------------------------------------
    \3\Pub. L. No. 96-481, Sec. 202(a), 94 Stat. 2325 (1980).
    \4\H.R. Rep. No. 96-1418, reprinted in 1980 U.S.C.C.A.N. 4984, 
4988-89 (1980) (emphasis added).
---------------------------------------------------------------------------
    When EAJA was reenacted on a permanent basis in 1985, 
President Reagan expressed strong support for the legislation. 
He said:

        I am pleased to be able to approve H.R. 2378, a bill to 
        extend the Equal Access to Justice Act. I support this 
        important program that helps small businesses and 
        individual citizens fight faulty government actions by 
        paying attorneys' fees in court cases or adversarial 
        agency proceedings where the small business or 
        individual citizen has prevailed and where the 
        government action or position in the litigation was not 
        substantially justified.\5\
---------------------------------------------------------------------------
    \5\President's Statement on Signing the Bill Extending the Equal 
Access to Justice Act (Aug. 5, 1985), available at http://
www.presidency.ucsb.edu/ws/index.php?pid=38973#axzz1a1eqZfZq.

    When no other fee-shifting statute applies, a party 
prevailing against the United States is entitled to an award of 
fees and expenses under EAJA. Unlike other fee shifting 
statutes,\6\ however, EAJA does not automatically award fees 
and expenses. If the United States can show that its position 
was ``substantially justified'' or when special circumstances 
would make an award unjust, then fees and expenses are not 
awarded.\7\ ``This is a powerful defense, and dozens upon 
dozens of cases (and many more unreported cases) deny winning 
plaintiffs EAJA fees on substantial-justification grounds.''\8\
---------------------------------------------------------------------------
    \6\See, e.g., 42 U.S.C. Sec. 1988; 42 U.S.C. Sec. 2000e-5(k).
    \7\5 U.S.C. Sec. 504(a)(1); 28 U.S.C. Sec. 2412(d)(1)(A). The term 
``substantially justified'' has been interpreted to mean ``justified to 
a degree that could satisfy a reasonable person.'' Pierce v. Underwood, 
487 U.S. 552, 565 (1988).
    \8\The Government Litigation Savings Act: Hearing on H.R. 1996 
Before the Subcomm. on Commercial and Admin. Law of the H. Comm. on the 
Judiciary, 112th Cong. 76 (2011) [hereinafter H.R. 1996 Hearing] 
(written statement of Brian Wolfman, Visiting Associate Professor of 
Law and Co-Director of the Institute for Public Representation at 
Georgetown University Law Center).
---------------------------------------------------------------------------
    EAJA caps attorneys' fees at $125 per hour, unless the 
court or administrative agency 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.''\9\ Most other fee-shifting 
statutes award fees at market rates.\10\
---------------------------------------------------------------------------
    \9\5 U.S.C. Sec. 504(b)(1)(A); 28 U.S.C. Sec. 2412(d)(2)(A).
    \10\Most attorneys' fees awards under other statutes are 
calculated, for example, by multiplying the number of hours spent in 
the adjudication or case by the hourly market rate. See Blum v. 
Stenson, 465 U.S. 886 (1984); Hensley v. Eckerhart, 461 U.S. 424 
(1983).
---------------------------------------------------------------------------
    A fee award may be reduced or denied when the party seeking 
it has caused undue delay.\11\ When fees and costs are awarded, 
the funds are paid ``from any funds made available to the 
agency by appropriation or otherwise.''\12\
---------------------------------------------------------------------------
    \11\5 U.S.C. Sec. 504(a)(3); 28 U.S.C. Sec. 2412(d)(1)(C).
    \12\5 U.S.C. Sec. 504(d); 28 U.S.C. Sec. 2412(d)(2)(A).
---------------------------------------------------------------------------
    An individual is eligible for an award if his or her net 
worth is not more than $2 million, while sole proprietors, 
corporations, partnerships, local governmental units, and 
public or private organizations with a net worth of not more 
than $7 million and having not more than 500 employees are 
eligible.\13\ Regardless of net worth, tax-exempt organizations 
under 26 U.S.C. Sec. 501(c)(3) and agricultural cooperatives 
under 12 U.S.C. Sec. 1141j(a) with not more than 500 employees 
are also eligible.\14\
---------------------------------------------------------------------------
    \13\5 U.S.C. Sec. 504(b)(1)(B); 28 U.S.C. Sec. 2412(d)(2)(B).
    \14\Id.
---------------------------------------------------------------------------
    For a period of time, the Administrative Conference of the 
United States (ACUS) was directed to report annually to 
Congress on the amount of attorneys' fees and expenses awarded 
in agency adjudications under the Act to help Congress evaluate 
the scope and impact of EAJA. The report provided information 
about individual awards and the proceedings in which they were 
made.\15\ That directive ended in 1998,\16\ although by then, 
ACUS had ceased operations.
---------------------------------------------------------------------------
    \15\Report of the Chairman of the Administrative Conference of the 
United States on Agency Activity under the Equal Access to Justice Act, 
Oct. 1, 1993-Sept. 30, 1994 2 (1995) (citing 5 U.S.C. Sec. 504(e)).
    \16\Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 
104-66, title III, Sec. 3003, 109 Stat. 734 (1995).
---------------------------------------------------------------------------

                DESCRIPTION AND BACKGROUND OF H.R. 1996

    On May 25, 2011, Representative Cynthia Lummis (R-WY) 
introduced H.R 1996. H.R. 1996 substantially expands a bill 
that Representative Lummis introduced in the last Congress.\17\ 
This prior legislation, H.R. 4717, required ACUS and the 
Attorney General to issue annually online reports on the amount 
of fees and costs awarded under EAJA, the history of the 
proceedings, and the parties involved in those controversies. 
It also required a GAO audit of EAJA awards for the years since 
1995.
---------------------------------------------------------------------------
    \17\H.R. 4717, 111th Cong. (2010).
---------------------------------------------------------------------------
    In contrast, H.R. 1996 is much more comprehensive than its 
predecessor. In addition to the reporting requirements, H.R. 
1996 includes several problematic provisions based on 
unsupported criticisms of EAJA.
    H.R. 1996 contains two principal provisions that could 
prevent access to justice for individuals, small businesses, 
and non-profit organizations. Those provisions include:

         La requirement that claimants demonstrate a 
        ``direct and personal interest'' in the action to be 
        eligible to recoup attorneys' fees and expenses.\18\ 
        Under current law, EAJA does not include such limiting 
        language. As a result of this amendment, the awarding 
        of fees and expenses in challenges in which plaintiffs 
        are presently eligible could be barred.
---------------------------------------------------------------------------
    \18\H.R. 1996, Sec. 2(a)(1)(A)(i).

         La cap on attorneys' fees at $200 per 
        hour.\19\ Under current law, a judge or adjudicator may 
        adjust the attorneys' fee rate under EAJA based on 
        special circumstances, such as the complexity of the 
        case. This amendment could hinder the ability of 
        certain parties to obtain competent legal 
        representation.
---------------------------------------------------------------------------
    \19\H.R. 1996, Sec. 2(a)(2).

Taken together, these two provisions will significantly impact 
the ability of individuals, small businesses, and non-profit 
organizations to recoup their legal fees and expenses when they 
are vindicating their rights against Federal governmental 
actions. A more detailed section-by-section analysis of the 
reported legislation follows:
    Section 1. Short Title. Section 1 sets forth the bill's 
short title as the ``Government Litigation Savings Act.''
    Section 2. Modification of Equal Access to Justice 
Provisions. Section 2(a)(1) amends 5 U.S.C. Sec. 504, which 
governs the awarding of fees and costs in administrative 
adjudications. Section 2(a)(1) narrows the category of who is 
eligible to receive EAJA awards. As amended, section 504(a)(1) 
requires that a prevailing party, in order to receive an award 
of fees and expenses, must have a ``direct and personal 
interest in the adversary adjudication because of medical 
costs, property damage, denial of benefits, unpaid 
disbursement, fees and other expenses incurred in defense of 
the adjudication, interest in a policy concerning such medical 
costs, property damage, denial of benefits, unpaid 
disbursement, or fees and other expenses, or otherwise.'' This 
revision will disqualify currently eligible parties. This 
subsection also amends section 504(a)(3) to require, as opposed 
to the current law's permissive standard, the adjudicator to 
reduce awards based on an unduly or unreasonable party.
    Section 2(a)(2) amends section 504(b)(1)(A) to increase the 
hourly fee award from $125 to $200, but it also prevents the 
awarding of higher fees under certain circumstances.\20\ The 
cap may hinder a party's ability to obtain legal representation 
in high cost legal markets or when complex litigation is 
expected. This subsection also requires in section 504(b)(1)(B) 
the adjudicator to determine the net worth of a party's 
eligibility to meet the net worth exclusion, and to include in 
its calculation the net worth of subsidiaries and parent 
companies. This provision is intended to bar more groups from 
being eligible to recover attorneys' fees under EAJA.
---------------------------------------------------------------------------
    \20\The Government Litigation Savings Act: Markup of H.R. 1996 
Before the H. Comm. on the Judiciary, 112th Cong. 20 (2011) 
[hereinafter H.R. 1996 Markup] (statement of Representative Howard 
Coble, Chair of the Subcommittee on Courts, Commercial and 
Administrative Law of the Committee on the Judiciary) (``The 
[manager's] amendment raises the cap of hourly fees to $200 and 
eliminates the special factor exemption which the subcommittee learned 
courts are interpreting very loosely.'').
---------------------------------------------------------------------------
    Section 2(a)(4) requires ACUS to submit a detailed report 
to Congress, and publish an annual, publicly-available online 
report of the amount of fees and costs awarded under EAJA. The 
report is intended to provide a record that tracks how much the 
government pays in fees and costs to parties in adjudication 
against the government. The last substantial government report 
on EAJA fees was conducted in 1995.\21\ This subsection also 
requires the Office of Management and Budget (OMB) to adjust 
annually the fee cap to reflect changes in the Consumer Price 
Index.\22\
---------------------------------------------------------------------------
    \21\ACUS report, supra, note 15.
    \22\H.R. 1996 Markup, supra, note 20 (statement of Subcommittee 
Chair Coble) (``. . . the [manager's] amendment replaces the word `may' 
with the word `shall' and requires the Director [of the OMB] to make 
this adjustment every year following the Consumer Price Index.'')
---------------------------------------------------------------------------
    Section 2(b)(1) amends 28 U.S.C. Sec. 2412, which governs 
the awarding of fees and costs when the United States 
Government is a party in a Federal court. The subsection 
narrows the category of who is eligible to receive EAJA awards 
by requiring that in section 2412(d)(1)(A), for a prevailing 
party to receive an award of fees and expenses, the party must 
have a ``direct and personal interest in the civil action 
because of medical costs, property damage, denial of benefits, 
unpaid disbursement, fees and other expenses incurred in 
defense of the civil action, interest in a policy concerning 
such medical costs, property damage, denial of benefits, unpaid 
disbursement, or fees and other expenses, or otherwise.'' This 
language mirrors the language proposed in Section 2(a)(1).
    Section 2(b)(2) amends section 2412(d)(1)(C) to require, as 
opposed to the current law's permissive standard, the court to 
reduce awards based on an unduly or unreasonable party. Section 
2(b)(3) amends section 2412(d)(2)(A) and (B) in identical 
fashion as section 2(a)(2) of the bill. Section 2(b)(4) amends 
28 U.S.C. Sec. 2412 to require the OMB to adjust annually the 
fee cap to reflect changes in the Consumer Price Index. Section 
2(b)(4) also amends 28 U.S.C. Sec. 2412 to require ACUS to 
submit a detailed report to Congress, and publish an annual, 
publicly-available online report of the amount of fees and 
costs awarded under EAJA. The purpose of the report is to 
provide a record of how much the government pays in fees and 
costs to plaintiffs who sue the government in court.
    Section 3. GAO Study. Section 3 requires the Comptroller 
General to begin an audit of the implementation of the Equal 
Access to Justice Act since 1995 through the end of the 
calendar year in which H.R. 1996 is enacted.

                        CONCERNS WITH H.R. 1996

I. H.R. 1996 LACKS ANY EVIDENTIARY SUPPORT WARRANTING THE AMENDMENT OF 
                                  EAJA

    H.R. 1996 amends EAJA to restrict eligibility for awards in 
the absence of any evidentiary support warranting such 
amendment. While supporters of H.R. 1996 contend that fees and 
expenses awarded under EAJA are astronomical and too common, 
the facts are to the contrary.
    First, EAJA has a very high threshold with respect to 
potential claimants. Under EAJA, a party may recover fees from 
the government only if the party is the prevailing party and 
the government cannot prove that its position was 
``substantially justified.''\23\ This standard is not required 
in typical fee-shifting statutes and ensures that prevailing 
plaintiffs do not automatically recover legal costs.\24\ The 
threshold would seem to contain the prevalence of EAJA awards.
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    \23\5 U.S.C. Sec. 504(a)(1); 28 U.S.C. Sec. 2412(d)(1)(A).
    \24\H.R. 1996 Hearing, supra note 8, at 76 (written statement of 
Wolfman).
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    Second, there is no official data on the total amount of 
fees and expenses awarded under EAJA. Since 1995, the Federal 
Government has not prepared a comprehensive report on such 
amounts.\25\ Neither has there been a report detailing to whom 
and in what types of challenges courts and adjudicators have 
awarded fees and expenses under EAJA since then. As 
Representative Lummis, the sponsor of the legislation, 
acknowledged for the Subcommittee's legislative hearing, ``it 
is this lack of transparency that [H.R. 1996] seeks in part to 
correct.''\26\
---------------------------------------------------------------------------
    \25\Id. at 2 (statement of Subcommittee Chair Coble) (``The bottom 
line is, there has been no government-wide accounting of EAJA payments. 
. . . We don't know how much money is going out the door, we don't know 
if the EAJA is helping those for whom it was created to help. . . .'') 
Although the GAO has published additional reports focusing on EAJA 
awards in certain agencies, see, e.g., U.S. Gen. Accounting Office, 
Equal Access to Justice Act: Its Use in Selected Agencies (GAO/HEHS-98-
58-R, Jan. 14, 1998), there is no comprehensive data since the 1995 
ACUS report, supra, note 15.
    \26\H.R. 1996 Hearing, supra note 8, at 23 (written statement of 
Representative Cynthia Lummis). ``Since [1995], the Congress and the 
country have been in the dark of the costs of EAJA, which is why [H.R. 
1996] reinstates the reporting requirement beginning with an audit of 
prior reported years.'' Id. at 45 (testimony of Lowell Baier, President 
Emeritus of the Boone and Crockett Club).
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    An audit and annual reporting of EAJA, as required in H.R. 
1996, would help Congress determine how the Act has been 
implemented, and thus, whether there is any need for Congress 
to amend it. The value of Congress having concrete data on the 
awards of fees and expenses under EAJA cannot be understated. 
As one academic testified, ``The ability of Congress to perform 
its oversight of EAJA depends on the availability of 
information concerning agency payments predicated on the act. 
Currently this information is largely unavailable.''\27\ In 
fact, ``[i]n order for Congress to evaluate the success or 
failure of [EAJA] historic data must be gathered.''\28\
---------------------------------------------------------------------------
    \27\Id. at 34 (testimony of George Washington University Law School 
Professor Jeffrey Axelrad).
    \28\Id. at 63 (written statement of Jennifer Ellis, Chair of the 
Western Legacy Alliance).
---------------------------------------------------------------------------
    Still, proponents of H.R. 1996 urge Congress to substitute 
estimates of the amount of fees and expenses awarded under EAJA 
for actual data, presumably because they do not approve of some 
of the awards going to certain groups. Some assert that over 
the last decade, more than $37 million has been awarded under 
EAJA, which they acknowledge is an estimate.\29\ Another 
proponent contends that even though ``there has been no 
accounting of this money . . . the smallest of estimates 
[places it] in the hundreds of millions of dollars.''\30\ 
Others cite anecdotal evidence or informal research purportedly 
showing that millions of dollars were awarded under EAJA in 
support of lawsuits that a handful of environmental groups 
filed.\31\ Still others claim, without having any supportive 
data, that EAJA purportedly incentivizes and finances frequent 
and unnecessary environmental protection litigation.\32\ These 
estimates far exceed the $34.1 million that the General 
Accounting Office calculated had been awarded during the fiscal 
years 1982 to 1994.\33\ And these assertions also do not 
reflect the typical types of recipients who had received awards 
from 1980 to 1994, which were mostly veterans and Social 
Security recipients.\34\ Congress can and should wait for more 
credible reports.
---------------------------------------------------------------------------
    \29\Id. at 123 (letter from various groups supporting H.R. 1996 to 
Howard Coble, Chair of the Subcommittee on Courts, Commercial and 
Administrative Law, and Steve Cohen, Ranking Member of the Subcommittee 
on Courts, Commercial and Administrative Law) (Oct. 11, 2011).
    \30\Karen Budd-Falen, Americans for Prosperity--Oregon, Attorneys 
Fees Reform Passes the U.S. House Judiciary Committee, available at 
http://www.americansforprosperity.org/112111-attorneys-fees-reform-
passes-us-house-judiciary-committee.
    \31\See, e.g., Richard Pollock, Activist `Green' Lawyers Billing 
U.S. Millions in Fraudulent Attorney Fees (Mar. 4, 2010), available at 
https://westernlegacyalliance.org/eaja-abuse-home-page/activist-green-
lawyers-billing-u-s-millions-in-fraudulent-attorney-fees.
    \32\H.R. 1996 Markup, supra, note 20, at 15 (statement of 
Representative Lamar Smith, Chair of the Committee on the Judiciary) 
(``Certain frequent litigants . . . are financing their lawsuits with 
large awards of attorney's fees paid under the act.''); Id. at 20 
(Statement of Subcommittee Chair Coble) (``Certain ideologically 
oriented [groups] have used the act to finance ideological oftentimes 
and policy-driven litigation against the Federal Government.'').
    \33\U.S. Gen. Accounting Office, Equal Access to Justice Act: Its 
Use in Selected Agencies 4 (GAO/HEHS-98-58-R, Jan. 14, 1998).
    \34\H.R. 1996 Markup, supra, note 20, at 14 (statement of Committee 
Chair Smith) (``The annual reports filed from 1980 to 1994 showed that 
most awards under the act were modest sums paid to veterans and Social 
Security recipients.'').
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    Unfortunately, however, supporters of H.R. 1996 do not want 
Congress to wait for more credible information. Notwithstanding 
the lack of such evidence, proponents of H.R. 1996 want 
Congress first to substantively change EAJA, and then to 
collect concrete data,\35\ which they believe undoubtedly will 
support the changes. ``When reporting requirements were dropped 
we believe that the ATM card type use of the EAJA began. 
Without proof positive of this phenomenon, rhetoric and 
supposition will rule over the debate regarding reform. This 
critical component will lend undeniable proof for substantive 
and equitable reforms of EAJA.''\36\ As one witness testified 
at the Subcommittee hearing, ``I find it odd people are 
complaining about a paucity of data, but they are willing to 
change the substantive law of EAJA without having the data. 
That puts the cart before the horse.''\37\
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    \35\H.R. 1996 Hearing, supra note 8, at 96-97 (written statement of 
Wolfman).
    \36\Id. at 63 (written statement of Ellis).
    \37\Id. at 94 (testimony of Wolfman).
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    H.R. 1996 clearly does put the cart before the horse. 
Nevertheless, the Majority is determined to push legislation 
based on anecdotal evidence that will substantively undermine 
the ability of individuals, small businesses, and certain non-
profits to challenge government action.

    II. H.R. 1996 WILL MAKE IT MORE DIFFICULT FOR SMALL BUSINESSES, 
 INDIVIDUALS, AND NON-PROFIT ORGANIZATIONS TO FIND LEGAL REPRESENTATION

    H.R. 1996 will make it significantly more difficult for 
small businesses, individuals, and non-profits to secure 
competent legal representation in their challenges against the 
Federal Government. This legislation needlessly caps the fee 
rate at which parties may recoup their legal fees. Capping the 
fee rate ``will make it difficult for plaintiffs to find 
lawyers willing to challenge unreasonable government actions in 
some instances.''\38\
---------------------------------------------------------------------------
    \38\Id. at 92 (written statement of Wolfman).
---------------------------------------------------------------------------
    Under EAJA, plaintiffs can recover attorneys' fees at a 
rate of $125 per hour if the government does not prove it was 
``substantially justified'' in bringing or defending the 
action.\39\ While some courts have adjusted upward the cap for 
cost of living purposes, the rate is still less than half of 
the amount most private attorneys' charge.\40\ In very limited 
circumstances, plaintiffs may recover attorneys' fees in excess 
of the statutory rate if they show that the attorney possessed 
specialized knowledge and skills developed through a practice 
area, which were needed in the litigation and not available 
elsewhere at the statutory rate.\41\
---------------------------------------------------------------------------
    \39\See 28 U.S.C. Sec. 2412(d)(2)(A).
    \40\See Thangaraja v. Gonzales, 428 F.3d 870, 876-77 (9th Cir. 
2005).
    \41\See Love v. Reilly, 924 F.2d 1492, 1496 (9th Cir. 1991).
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    As stated earlier, EAJA is unlike most other fee-shifting 
statutes for two reasons. Under EAJA, prevailing parties do not 
recover their attorneys' fees at market rates.\42\ Further, 
EAJA awards are not automatic because the United States can 
still show that it was ``substantially justified'' in bringing 
or defending the case.\43\ Because of these two differences, 
``in light of EAJA's below-market rates, neither litigants nor 
lawyers would bring marginal cases'' in the expectation of 
receiving EAJA fees.\44\
---------------------------------------------------------------------------
    \42\H.R. 1996 Hearing, supra note 8, at 76 (written statement of 
Wolfman).
    \43\Id. at 75.
    \44\Id. at 79.
---------------------------------------------------------------------------
    H.R. 1996 sets a new rate at $200 per hour, which is an 
increase of $75 from current law, but it eliminates the 
possibility of upward adjustment.\45\ Because even $200 would 
be insufficient to hire a ``good lawyer'' in Idaho,\46\ capping 
the fee rate at $200 across the entire country may have the 
effect of ``dissuading small businesses from having the 
opportunity to go to court and get their attorneys fees 
paid.''\47\ Further, ``[b]y eliminating the possibility of 
increased fees for specialization, [H.R. 1996] creates yet 
another hurdle that will make it more difficult to find 
competent legal representation to enforce complex environmental 
laws.''\48\
---------------------------------------------------------------------------
    \45\H.R. 1996, 112th Cong. Sec. 2(a)(2), 2(b)(3) (2011).
    \46\H.R. 1996 Hearing, supra note 8, at 98 (2011) (testimony of 
Ellis) (``. . . I have to hire an intervening attorney that usually 
costs, for a good one right now, $400 an hour.'').
    \47\Id. at 25 (statement of Representative Steve Cohen, Ranking 
Member of the Subcommittee on Courts, Commercial and Administrative Law 
of the Committee on the Judiciary).
    \48\Id. at 21 (written statement of John Conyers, Jr., Ranking 
Member of the Committee on the Judiciary).
---------------------------------------------------------------------------
    Representatives Bobby Scott (D-VA) and Hank Johnson (D-GA) 
offered an amendment at the full committee markup to amend the 
attorneys' fee rate in the bill from the arbitrary $200 per 
hour to a ``reasonable attorneys' fee'' rate, which would 
mirror most other fee-shifting statutes.\49\ As Representative 
Scott noted, by imposing the arbitrary cap, for example, in a 
complex case, ``you could have the anomaly of one side being 
able to afford an attorney at the going rate for that kind of 
case, and the other side is stuck with this arbitrary 
limit.''\50\ Thus, the arbitrary cap ``is not fair to our 
veterans and senior citizens who may not be able to bring an 
attorney willing to take their case with such a cap.''\51\ The 
judge or adjudicator, who is more familiar with the complexity 
of the case and the local legal market, could better determine 
the appropriate attorneys' fee rate. If the award is 
inappropriate, the appellate court can always revisit it.\52\ 
Unfortunately for our veterans, senior citizens, small 
businesses, and others who EAJA was intended to benefit, the 
amendment was defeated 14 to 18.
---------------------------------------------------------------------------
    \49\H.R. 1996 Markup, supra, note 20, at 33 (statement of 
Representative Jerrold Nadler) (``Of the 200-plus fee-shifting 
statutes, between 150 and 160 of them use reasonable attorney's fees as 
their standard, as the amendment would seek to do.'').
    \50\H.R. 1996 Markup, supra, note 20, at 27 (statement of 
Representative Bobby Scott).
    \51\Id. at 29 (statement of Representative Hank Johnson).
    \52\See id. at 33 (statement of Representative Nadler).
---------------------------------------------------------------------------
    By capping the rate at which parties may recoup their 
attorneys' fees, H.R. 1996 will make it more difficult for many 
to obtain legal representation.

                               CONCLUSION

    H.R. 1996 is irresponsible legislation that will have a 
devastating impact on access to justice for individuals, small 
businesses, and non-profit organizations. It amends the Equal 
Access to Justice Act without definitive data that the Act 
needs or should be amended. For all of these reasons, we 
respectfully dissent.

                                   John Conyers, Jr.
                                   Howard L. Berman.
                                   Jerrold Nadler.
                                   Robert C. ``Bobby'' Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Henry C. ``Hank'' Johnson, Jr.
                                   Judy Chu.
                                   Ted Deutch.

                                  
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