II 

109TH CONGRESS 

1ST SESSION S. 2017 

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

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

administrative settlement offers, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

NOVEMBER 16, 2005 

Mr. FEINGOLD (for himself and Ms. SNOWE) 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, and 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. SHORT TITLE. 

4 This Act may be cited as the ‘‘Equal Access to Jus5 tice Reform Act of 2005’’. 

6 SEC. 2. FINDINGS AND STATEMENT OF PURPOSE. 

7 (a) FINDINGS.—The Congress finds that— 
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1 (1) the Equal Access to Justice Act (Public 

2 Law 96–481; 94 Stat. 2325 et seq.) (in this section 

3 referred to as ‘‘EAJA’’) was intended to make the 

4 justice system more accessible to individuals of mod5 est means, small businesses, and nonprofit organiza6 tions (in this section collectively referred to as 

7 ‘‘small parties’’) through limited recovery of their at8 torneys’ fees when they prevail in disputes with the 

9 Federal Government; and 

10 (2) although EAJA has succeeded, at modest 

11 cost, in improving access to the justice system for 

12 small parties, EAJA retains formidable barriers to 

13 attorneys’ fees recovery (even for small parties that 

14 completely prevail against the Government), as well 

15 as inefficient and costly mechanisms for determining 

16 the fees recovery. 

17 (b) PURPOSE.—It is, therefore, the purpose of this 

18 Act to remove existing barriers and inefficiencies in EAJA 

19 in order to— 

20 (1) equalize the level of accountability to Fed21 eral law among governments in the United States; 

22 (2) discourage marginal Federal enforcement 

23 actions directed at small parties; 

24 (3) reduce the practice of paying EAJA liabil25 ities from the General Treasury, to ensure that Fed-
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1 eral agencies properly consider the financial con2 sequences of their actions and subsequent impact on 

3 the Federal budget; 

4 (4) refine and improve Federal policies through 

5 adjudication; 

6 (5) promote a fair and cost-effective process for 

7 prompt settlement and payment of attorneys’ fees 

8 claims; and 

9 (6) provide a fairer opportunity for full partici10 pation by small businesses in the free enterprise sys11 tem, further increasing the economic vitality of the 

12 Nation. 

13 (c) COMPLIANCE POLICY.—In complying with the 

14 statement of congressional policy expressed in this section, 

15 each Federal agency, to the maximum extent practicable, 

16 should— 

17 (1) avoid unjustified enforcement actions di18 rected at small parties covered by EAJA; 

19 (2) encourage settlement of justified enforce20 ment actions directed at small parties covered by 

21 EAJA; and 

22 (3) minimize impediments to prompt resolution 

23 and payment of reasonable attorneys’ fees to pre24 vailing small parties covered by EAJA. 
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1 SEC. 3. REPORTING AND TECHNICAL ASSISTANCE BY OF2 FICE OF ADVOCACY. 

3 (a) FUNCTIONS OF OFFICE OF ADVOCACY.—Section 

4 202 of Public Law 94–305 (15 U.S.C. 634b) is amend5 ed— 

6 (1) in paragraph (3), by inserting before the 

7 semicolon at the end the following: ‘‘and for ensur8 ing that the justice system remains accessible to 

9 small businesses for the resolution of disputes with 

10 the Federal Government’’; and 

11 (2) by striking paragraph (11) and inserting 

12 the following: 

13 ‘‘(11) advise, cooperate with, and consult with 

14 the President and Attorney General with respect to 

15 section 303(b) of the Small Business Economic Pol16 icy Act of 1980 (15 U.S.C. 631b(b)) and section 

17 504(e) of title 5, United States Code; and’’. 

18 (b) DUTIES OF OFFICE OF ADVOCACY.—Section 203 

19 of Public Law 94–305 (15 U.S.C. 634c) is amended— 

20 (1) in paragraph (2), by inserting before the 

21 semicolon at the end the following: ‘‘, including the 

22 resolution of disputes with the Federal Government 

23 and the role of procedures established by the Equal 

24 Access to Justice Act (Public Law 96–481; 94 Stat. 

25 2325) in such disputes’’; and 
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1 (2) in paragraph (3), by inserting after ‘‘the 

2 Small Business Act’’ the following: ‘‘, including 

3 those related to the Equal Access to Justice Act,’’. 

4 (c) REPORTS TO CONGRESS.— 

5 (1) IN GENERAL.—Not later than 180 days 

6 after the date of enactment of this Act, the Attorney 

7 General, in cooperation with the Chief Counsel for 

8 Advocacy of the Small Business Administration, 

9 shall transmit to the congressional committees speci10 fied in paragraph (2) a report containing— 

11 (A) an analysis of the effectiveness of the 

12 Equal Access to Justice Act (Public Law 96– 

13 481; 94 Stat. 2325) (in this paragraph referred 

14 to as ‘‘EAJA’’) in achieving its purpose to ease 

15 the burden upon small businesses and other 

16 small parties covered by EAJA of engaging in 

17 dispute resolution with the Federal Govern18 ment, including— 

19 (i) the relative awareness of EAJA in 

20 the small business community; 

21 (ii) the relative awareness of EAJA’s 

22 requirements among Federal agencies; 

23 (iii) the extent and quality of rules 

24 and regulations adopted by each Federal 
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1 agency for processing, resolving, and pay2 ing attorneys’ fees claims under EAJA; 

3 (iv) the extent to which each Federal 

4 agency claims any exemptions in whole or 

5 in part from EAJA’s coverage; 

6 (v) the frequency or degree of use of 

7 EAJA’s procedures by prevailing small 

8 businesses; and 

9 (vi) an analysis of the costs and bene10 fits of EAJA generally; 

11 (B) an analysis of the variations in the fre12 quency and amounts of fee awards paid by spe13 cific Federal agencies and within specific Fed14 eral circuits and districts under section 504 of 

15 title 5, United States Code, and section 2412 of 

16 title 28, United States Code, including the 

17 number and total dollar amount of all claims 

18 filed with, and all claims processed, settled, liti19 gated, and paid by, each agency under EAJA; 

20 and 

21 (C) recommendations for congressional 

22 oversight or legislative changes with respect to 

23 EAJA, including any recommendations for pro24 mulgation or amendment of regulations issued 

25 under EAJA by specific Federal agencies. 
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1 (2) SPECIFIED COMMITTEES.—The congres2 sional committees referred to in paragraph (1) are 

3 the following: 

4 (A) The Committee on the Judiciary and 

5 the Committee on Small Business of the House 

6 of Representatives. 

7 (B) The Committee on the Judiciary and 

8 the Committee on Small Business and Entre9 preneurship of the Senate. 

10 (3) REPORT ON SMALL BUSINESS AND COM11 PETITION.—Section 303 of the Small Business Eco12 nomic Policy Act of 1980 (15 U.S.C. 631b) is 

13 amended— 

14 (A) in subsection (a), by striking para15 graph (5) and inserting the following: 

16 ‘‘(5) recommend a program for carrying out the 

17 policy declared in section 302 (including a policy to 

18 ensure that the justice system remains accessible to 

19 small business enterprises for the resolution of dis20 putes with the Federal Government), together with 

21 such recommendations for legislation as the Presi22 dent may deem necessary or desirable.’’; 

23 (B) in subsection (b)— 

24 (i) by striking ‘‘(b)’’ and inserting 

25 ‘‘(b)(1)’’; and 
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1 (ii) by adding at the end the fol2 lowing: 

3 ‘‘(2) The President, after consultation with the Chief 

4 Counsel for Advocacy of the Small Business Administra5 tion and the Attorney General, shall transmit simulta6 neously as an appendix to such annual report, a report 

7 that describes, by agency and department— 

8 ‘‘(A) the total number of claims filed, proc9 essed, settled, and litigated by small business con10 cerns under section 504 of title 5, United States 

11 Code, and section 2412 of title 28, United States 

12 Code (originally enacted pursuant to the Equal Ac13 cess to Justice Act (Public Law 96–481; 94 Stat. 

14 2325)); 

15 ‘‘(B) the total dollar amount of all outstanding 

16 awards and settlements to small business concerns 

17 under such sections; 

18 ‘‘(C) the total dollar amount of all claims paid 

19 to small business concerns under such sections; 

20 ‘‘(D) the underlying legal claims involved in 

21 each controversy with small business concerns under 

22 such sections; and 

23 ‘‘(E) any other relevant information that the 

24 President determines may aid Congress in evalu-
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1 ating the impact on small business concerns of such 

2 sections. 

3 ‘‘(3) Each agency shall provide the President with 

4 such information as is necessary for the President to com5 ply with the requirements of this subsection.’’; and 

6 (C) in subsection (d)— 

7 (i) by striking ‘‘(d)’’ and inserting 

8 ‘‘(d)(1)’’; and 

9 (ii) by adding at the end the fol10 lowing: 

11 ‘‘(2) All reports concerning the Equal Access to Jus12 tice Act (Public Law 96–481; 94 Stat. 2325), or the con13 gressional policy to ensure that the justice system remains 

14 accessible to small business enterprises for the resolution 

15 of disputes with the Federal Government, shall be trans16 mitted to the following congressional committees: 

17 ‘‘(A) The Committee on the Judiciary and the 

18 Committee on Small Business of the House of Rep19 resentatives. 

20 ‘‘(B) The Committee on the Judiciary and the 

21 Committee on Small Business and Entrepreneurship 

22 of the Senate.’’. 
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1 SEC. 4. EQUAL ACCESS FOR SMALL PARTIES IN CIVIL AND 

2 ADMINISTRATIVE PROCEEDINGS. 

3 (a) ELIMINATION OF SUBSTANTIAL JUSTIFICATION

4 STANDARD.— 

5 (1) ADMINISTRATIVE PROCEEDINGS.—Section 

6 504 of title 5, United States Code, is amended— 

7 (A) in subsection (a)(1), by striking ‘‘, un8 less the adjudicative officer’’ and all that fol9 lows through the period at the end and insert10 ing a period; and 

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

12 party shall also allege that the position of the 

13 agency was not substantially justified.’’. 

14 (2) JUDICIAL PROCEEDINGS.—Section 2412 of 

15 title 28, United States Code, is amended— 

16 (A) in subsection (d)(1)(A), by striking ‘‘, 

17 unless the court’’ and all that follows through 

18 the period at the end and inserting a period; 

19 (B) in subsection (d)(1)(B), by striking 

20 ‘‘The party shall also allege’’ and all that fol21 lows through the period at the end and insert22 ing a period; and 

23 (C) in subsection (d)(3), by striking ‘‘, un24 less the court’’ and all that follows through the 

25 period at the end and inserting a period. 
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1 (b) ELIGIBILITY OF SMALL BUSINESSES FOR FEE

2 AWARD.— 

3 (1) ADMINISTRATIVE PROCEEDINGS.— 

4 (A) IN GENERAL.—Section 

5 504(b)(1)(B)(ii) of title 5, United States Code, 

6 is amended by striking ‘‘$7,000,000’’ and in7 serting ‘‘$10,000,000’’. 

8 (B) ADJUSTMENT IN NET WORTH LIMITA9 TION.—Section 504(b) of title 5, United States 

10 Code, is amended by adding at the end the fol11 lowing: 

12 ‘‘(3) Beginning on January 1 of the 5th year 

13 following the date of enactment of this paragraph, 

14 and on January 1 every 5 years thereafter, the dol15 lar amount under paragraph (1)(B)(ii) shall be ad16 justed by the Producer Price Index as determined by 

17 the Secretary of the Treasury, in collaboration with 

18 the Bureau of Labor Statistics.’’. 

19 (2) JUDICIAL PROCEEDINGS.— 

20 (A) IN GENERAL.—Section 

21 2412(d)(2)(B)(ii) of title 28, United States 

22 Code, is amended by striking ‘‘$7,000,000’’ and 

23 inserting ‘‘$10,000,000’’. 

24 (B) ADJUSTMENT IN NET WORTH LIMITA25 TION.—Section 2412(d) of title 28, United 
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1 States Code, is amended by adding at the end 

2 the following: 

3 ‘‘(5) Beginning on January 1 of the 5th year 

4 following the date of enactment of this paragraph, 

5 and on January 1 every 5 years thereafter, the dol6 lar amount under paragraph (2)(B)(ii) shall be ad7 justed by the Producer Price Index as determined by 

8 the Secretary of the Treasury, in collaboration with 

9 the Bureau of Labor Statistics.’’. 

10 (c) ELIMINATION OF RATE CAP.— 

11 (1) ADMINISTRATIVE PROCEEDINGS.—Section 

12 504(b)(1)(A) of title 5, United States Code, is 

13 amended— 

14 (A) by striking ‘‘(i)’’; and 

15 (B) by striking ‘‘by the agency involved’’ 

16 and all that follows through ‘‘a higher fee’’ and 

17 inserting ‘‘by the agency involved’’. 

18 (2) JUDICIAL PROCEEDINGS.—Section 

19 2412(d)(2)(A) of title 28, United States Code, is 

20 amended— 

21 (A) by striking ‘‘(i)’’; and 

22 (B) by striking ‘‘by the United States’’ and 

23 all that follows through ‘‘a higher fee’’ and in24 serting ‘‘by the United States’’. 

25 (d) OFFERS OF SETTLEMENT.— 
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1 (1) ADMINISTRATIVE PROCEEDINGS.—Section 

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

3 by this section, is further amended by adding at the 

4 end the following: 

5 ‘‘(5)(A) At any time after an agency receives an ap6 plication submitted under paragraph (2), the agency may 

7 serve upon the applicant a written offer of settlement of 

8 the claims made in the application. If within 10 business 

9 days after such service the applicant serves written notice 

10 that the offer is accepted, either the agency or the appli11 cant may then file the offer and notice of acceptance to12 gether with proof of service thereof. 

13 ‘‘(B) An offer not accepted within the time allowed 

14 shall be deemed withdrawn. The fact that an offer is made 

15 but not accepted shall not preclude a subsequent offer. If 

16 any award of fees and expenses for the merits of the pro17 ceeding finally obtained by the applicant is not more favor18 able than the offer, the applicant shall not be entitled to 

19 receive an award for fees or other expenses incurred (in 

20 relation to the application for fees and expenses) after the 

21 date of the offer.’’. 

22 (2) JUDICIAL PROCEEDINGS.—Section 

23 2412(d)(1) of title 28, United States Code, as 

24 amended by this section, is further amended by add25 ing at the end the following: 
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1 ‘‘(E)(i) At any time after an agency receives an appli2 cation submitted under subparagraph (B), the agency may 

3 serve upon the applicant a written offer of settlement of 

4 the claims made in the application. If within 10 business 

5 days after such service the applicant serves written notice 

6 that the offer is accepted, either the agency or the appli7 cant may then file the offer and notice of acceptance to8 gether with proof of service thereof. 

9 ‘‘(ii) An offer not accepted within the time allowed 

10 shall be deemed withdrawn. The fact that an offer is made 

11 but not accepted shall not preclude a subsequent offer. If 

12 any award of fees and expenses for the merits of the pro13 ceeding finally obtained by the applicant is not more favor14 able than the offer, the applicant shall not be entitled to 

15 receive an award for fees or other expenses incurred (in 

16 relation to the application for fees and expenses) after the 

17 date of the offer.’’. 

18 (e) DECLARATION OF INTENT TO SEEK FEE

19 AWARD.— 

20 (1) ADMINISTRATIVE PROCEEDINGS.—Section 

21 504(a)(2) of title 5, United States Code, as amended 

22 by this section, is further amended by inserting be23 fore the first sentence the following: ‘‘At any time 

24 after the commencement of an adversary adjudica25 tion, the adjudicative officer may (and if requested 
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1 by a party shall) require a party to declare whether 

2 such party intends to seek an award of fees and ex3 penses against the agency should such party pre4 vail.’’. 

5 (2) JUDICIAL PROCEEDINGS.—Section 

6 2412(d)(1)(B) of title 28, United States Code, as 

7 amended by this section, is further amended by in8 serting before the first sentence the following: ‘‘At 

9 any time after the commencement of an adversary 

10 adjudication, as defined in subsection (b)(1)(C) of 

11 section 504 of title 5, United States Code, the court 

12 may (and if requested by a party shall) require a 

13 party to declare whether such party intends to seek 

14 an award of fees and expenses against the agency 

15 should such party prevail.’’. 

16 (f) PAYMENT OF ATTORNEYS’ FEES FROM AGENCY

17 APPROPRIATIONS.— 

18 (1) ADMINISTRATIVE PROCEEDINGS.—Section 

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

20 read as follows: 

21 ‘‘(d)(1) Fees and other expenses awarded under this 

22 section shall be paid by any agency over which the party 

23 prevails from any funds made available to the agency by 

24 appropriation or otherwise. 
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1 ‘‘(2) Fees and expenses awarded under this section 

2 may not be paid from the claims and judgments account 

3 of the Treasury from funds appropriated pursuant to sec4 tion 1304 of title 31. 

5 ‘‘(3) Paragraph (2) shall not apply to the National 

6 Labor Relations Board, the Occupational Safety and 

7 Health Administration, the Mine Safety and Health Ad8 ministration, or the Equal Employment Opportunity Com9 mission.’’. 

10 (2) JUDICIAL PROCEEDINGS.—Section 

11 2412(d)(4) of title 28, United States Code, is 

12 amended to read as follows: 

13 ‘‘(4)(A) Fees and other expenses awarded under this 

14 subsection shall be paid by any agency over which the 

15 party prevails from any funds made available to the agen16 cy by appropriation or otherwise. 

17 ‘‘(B) Fees and expenses awarded under this section 

18 may not be paid from the claims and judgments account 

19 of the Treasury from funds appropriated pursuant to sec20 tion 1304 of title 31. 

21 ‘‘(C) Subparagraph (B) shall not apply to the Na22 tional Labor Relations Board, the Occupational Safety 

23 and Health Administration, the Mine Safety and Health 

24 Administration, or the Equal Employment Opportunity 

25 Commission.’’. 
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1 (g) ELIGIBILITY OF TAXPAYERS FOR FEE AWARD.— 

2 (1) ADMINISTRATIVE PROCEEDINGS.—Section 

3 504 of title 5, United States Code, as amended by 

4 this section, is further amended by striking sub5 section (f). 

6 (2) JUDICIAL PROCEEDINGS.—Section 2412 of 

7 title 28, United States Code, as amended by this 

8 section, is further amended by striking subsection 

9 (e) and redesignating subsection (f) as subsection 

10 (e). 

11 (h) CONFORMING AMENDMENT RELATING TO RE12 PORTING REQUIREMENT UNDER SMALL BUSINESS

13 ACT.—Section 504(e) of title 5, United States Code, is 

14 amended to read as follows: 

15 ‘‘(e)(1) The Attorney General, after consultation with 

16 the Chief Counsel for Advocacy of the Small Business Ad17 ministration, shall report annually to the Congress on the 

18 amount of fees and other expenses awarded to individuals 

19 during the preceding fiscal year pursuant to this section 

20 and section 2412 of title 28. The report shall describe the 

21 number, nature, and amount of the awards, the claims in22 volved in the controversy, and any other relevant informa23 tion which may aid the Congress in evaluating the scope 

24 and impact of such awards for individuals engaged in dis25 putes with Federal agencies. Each agency shall provide the 
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1 Attorney General with such information as is necessary 

2 for the Attorney General to comply with the requirements 

3 of this subsection. 

4 ‘‘(2) A requirement that the President report annu5 ally on proceedings affecting small business concerns 

6 under this section and under section 2412 of title 28 is 

7 provided in section 303(b) of the Small Business Eco8 nomic Policy Act of 1980 (15 U.S.C. 631b(b)).’’. 

9 (i) APPLICABILITY.—The provisions of this section 

10 and the amendments made by this section shall apply to 

11 any proceeding pending on, or commenced on or after, the 

12 effective date of this Act. 

13 SEC. 5. DEFINITION OF PREVAILING PARTY IN EAJA CASES. 

14 (a) TITLE 5.—Section 504(b)(1) of title 5, United 

15 States Code, is amended by adding at the end the fol16 lowing: 

17 ‘‘(G) ‘prevailing party’ includes, in addition to 

18 a party who prevails through a judicial or adminis19 trative judgment or order, a party whose pursuit of 

20 a nonfrivolous claim or defense was a catalyst for a 

21 voluntary or unilateral change in position by the op22 posing party that provides any significant part of 

23 the relief sought.’’. 

24 (b) TITLE 28.—Section 2412 of title 28, United 

25 States Code, is amended— 
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1 (1) in subsection (d)(2)(H), by inserting after 

2 ‘‘means’’ the following: ‘‘, subject to subsection 

3 (g),’’; and 

4 (2) by adding at the end the following: 

5 ‘‘(g) For the purposes of this section, the term ‘pre6 vailing party’ includes, in addition to a party who prevails 

7 through a judicial or administrative judgment or order, 

8 a party whose pursuit of a nonfrivolous claim or defense 

9 was a catalyst for a voluntary or unilateral change in posi10 tion by the opposing party that provides any significant 

11 part of the relief sought.’’. 

12 SEC. 6. EFFECTIVE DATE. 

13 The provisions of this Act and the amendments made 

14 by this Act shall take effect 30 days after the date of the 

15 enactment of this Act. 

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