II

107TH CONGRESS

1ST SESSION S. 106

To amend the provisions of titles 5 and 28, United States Code, relating

to equal access to justice, award of reasonable costs and fees, taxpayers’

recovery of costs, fees, and expenses, administrative settlement offers,

and for other purposes.

IN THE SENATE OF THE UNITED STATES

JANUARY 22, 2000

Mr. FEINGOLD (for himself and Mr. HUTCHINSON) introduced the following

bill; which was read twice and referred to the Committee on the Judiciary

A BILL

To amend the provisions of titles 5 and 28, United States

Code, relating to equal access to justice, award of reasonable costs and fees, taxpayers’ recovery of costs, fees,

and expenses, administrative settlement offers, and for

other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,

3 SECTION 1. EQUAL ACCESS TO JUSTICE REFORM.

4 (a) SHORT TITLE.—This Act may be cited as the

5 ‘‘Equal Access to Justice Reform Amendments of 2001’’.

6 (b) AWARD OF COSTS AND FEES.—
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1 (1) ADMINISTRATIVE PROCEEDINGS.—Section

2 504(a)(2) of title 5, United States Code, is amended

3 by inserting after ‘‘(2)’’ the following: ‘‘At any time

4 after the commencement of an adversary adjudica5 tion covered by this section, the adjudicative officer

6 may ask a party to declare whether such party in7 tends to seek an award of fees and expenses against

8 the agency should such party prevail.’’.

9 (2) JUDICIAL PROCEEDINGS.—Section

10 2412(d)(1)(B) of title 28, United States Code, is

11 amended by inserting after ‘‘(B)’’ the following: ‘‘At

12 any time after the commencement of an adversary

13 adjudication covered by this section, the court may

14 ask a party to declare whether such party intends to

15 seek an award of fees and expenses against the

16 agency should such party prevail.’’.

17 (c) PAYMENT FROM AGENCY APPROPRIATIONS.—

18 (1) ADMINISTRATIVE PROCEEDINGS.—Section

19 504(d) of title 5, United States Code, is amended by

20 adding at the end the following: ‘‘Fees and expenses

21 awarded under this subsection may not be paid from

22 the claims and judgments account of the Treasury

23 from funds appropriated pursuant to section 1304 of

24 title 31.’’.
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1 (2) JUDICIAL PROCEEDINGS.—Section

2 2412(d)(4) of title 28, United States Code, is

3 amended by adding at the end the following: ‘‘Fees

4 and expenses awarded under this subsection may not

5 be paid from the claims and judgments account of

6 the Treasury from funds appropriated pursuant to

7 section 1304 of title 31.’’.

8 (d) TAXPAYERS’ RECOVERY OF COSTS, FEES, AND

9 EXPENSES.—

10 (1) ADMINISTRATIVE PROCEEDINGS.—Section

11 504 of title 5, United States Code, is amended by

12 striking subsection (f).

13 (2) JUDICIAL PROCEEDINGS.—Section 2412 of

14 title 28, United States Code, is amended by striking

15 subsection (e).

16 (e) OFFERS OF SETTLEMENT.—

17 (1) ADMINISTRATIVE PROCEEDINGS.—Section

18 504 of title 5, United States Code (as amended by

19 subsection (d) of this section), is amended by adding

20 at the end the following:

21 ‘‘(f)(1) At any time after the filing of an application

22 for fees and other expenses under this section, an agency

23 from which a fee award is sought may serve upon the ap24 plicant an offer of settlement of the claims made in the

25 application. If within 10 days after service of the offer the
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1 applicant serves written notice that the offer is accepted,

2 either party may then file the offer and notice of accept3 ance together with proof of service thereof.

4 ‘‘(2) An offer not accepted shall be deemed with5 drawn. The fact that an offer is made but not accepted

6 shall not preclude a subsequent offer. If any award of fees

7 and expenses for the merits of the proceeding finally ob8 tained by the applicant is not more favorable than the

9 offer, the applicant shall not be entitled to receive an

10 award for attorneys’ fees or other expenses incurred in re11 lation to the application for fees and expenses after the

12 date of the offer.’’.

13 (2) JUDICIAL PROCEEDINGS.—Section 2412 of

14 title 28, United States Code (as amended by sub15 section (d) of this section), is amended by inserting

16 after subsection (d) the following:

17 ‘‘(e)(1) At any time after the filing of an application

18 for fees and other expenses under this section, an agency

19 of the United States from which a fee award is sought

20 may serve upon the applicant an offer of settlement of the

21 claims made in the application. If within 10 days after

22 service of the offer the applicant serves written notice that

23 the offer is accepted, either party may then file the offer

24 and notice of acceptance together with proof of service

25 thereof.
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1 ‘‘(2) An offer not accepted shall be deemed with2 drawn. The fact that an offer is made but not accepted

3 shall not preclude a subsequent offer. If any award of fees

4 and expenses for the merits of the proceeding finally ob5 tained by the applicant is not more favorable than the

6 offer, the applicant shall not be entitled to receive an

7 award for attorneys’ fees or other expenses incurred in re8 lation to the application for fees and expenses after the

9 date of the offer.’’.

10 (f) ELIMINATION OF SUBSTANTIAL JUSTIFICATION

11 STANDARD.—

12 (1) ADMINISTRATIVE PROCEEDINGS.—Section

13 504 of title 5, United States Code, is amended—

14 (A) in subsection (a)(1), by striking all be15 ginning with ‘‘, unless the adjudicative officer’’

16 through ‘‘expenses are sought’’; and

17 (B) in subsection (a)(2), by striking ‘‘The

18 party shall also allege that the position of the

19 agency was not substantially justified.’’.

20 (2) JUDICIAL PROCEEDINGS.—Section 2412(d)

21 of title 28, United States Code, is amended—

22 (A) in paragraph (1)(A), by striking ‘‘, un23 less the court finds that the position of the

24 United States was substantially justified or that

25 special circumstances make an award unjust’’;
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1 (B) in paragraph (1)(B), by striking ‘‘The

2 party shall also allege that the position of the

3 United States was not substantially justified.

4 Whether or not the position of the United

5 States was substantially justified shall be deter6 mined on the basis of the record (including the

7 record with respect to the action or failure to

8 act by the agency upon which the civil action is

9 based) which is made in the civil action for

10 which fees and other expenses are sought.’’; and

11 (C) in paragraph (3), by striking ‘‘, unless

12 the court finds that during such adversary ad13 judication the position of the United States was

14 substantially justified, or that special cir15 cumstances make an award unjust’’.

16 (g) REPORTS TO CONGRESS.—

17 (1) ADMINISTRATIVE PROCEEDINGS.—Not later

18 than 180 days after the date of the enactment of

19 this Act, the Administrative Conference of the

20 United States shall submit a report to Congress—

21 (A) providing an analysis of the variations

22 in the frequency of fee awards paid by specific

23 Federal agencies under the provisions of section

24 504 of title 5, United States Code; and
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1 (B) including recommendations for extend2 ing the application of such sections to other

3 Federal agencies and administrative pro4 ceedings.

5 (2) JUDICIAL PROCEEDINGS.—Not later than

6 180 days after the date of the enactment of this Act,

7 the Department of Justice shall submit a report to

8 Congress—

9 (A) providing an analysis of the variations

10 in the frequency of fee awards paid by specific

11 Federal districts under the provisions of section

12 2412 of title 28, United States Code; and

13 (B) including recommendations for extend14 ing the application of such sections to other

15 Federal judicial proceedings.

16 (h) EFFECTIVE DATE.—The provisions of this Act

17 and the amendments made by this Act shall take effect

18 30 days after the date of the enactment of this Act and

19 shall apply only to an administrative complaint filed with

20 a Federal agency or a civil action filed in a United States

21 court on or after such date.

Æ