II

104TH CONGRESS

1ST SESSION S. 554

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

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

rates for attorney fees, administrative settlement offers, and for other

purposes.

IN THE SENATE OF THE UNITED STATES

MARCH 14 (legislative day, MARCH 6), 1995

Mr. FEINGOLD 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, hourly rates for attorney fees, 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 1995’’.

6 (b) AWARD OF COSTS AND FEES.—

7 (1) ADMINISTRATIVE PROCEEDINGS.—Section

8 504(a)(2) of title 5, United States Code, is amended
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1 by inserting after ‘‘(2)’’ the following: ‘‘At any time

2 after the commencement of an adversary adjudica3 tion covered by this section, the adjudicative officer

4 may ask a party to declare whether such party in5 tends to seek an award of fees and expenses against

6 the agency should it prevail.’’.

7 (2) JUDICIAL PROCEEDINGS.—Section

8 2412(d)(1)(B) of title 28, United States Code, is

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

10 any time after the commencement of an adversary

11 adjudication covered by this section, the court may

12 ask a party to declare whether such party intends to

13 seek an award of fees and expenses against the

14 agency should it prevail.’’.

15 (c) HOURLY RATE FOR ATTORNEY FEES.—

16 (1) ADMINISTRATIVE PROCEEDINGS.—Section

17 504(b)(1)(A)(ii) of title 5, United States Code, is

18 amended by striking out all beginning with ‘‘$75 per

19 hour’’ and inserting in lieu thereof ‘‘$125 per hour

20 unless the agency determines by regulation that an

21 increase in the cost-of-living based on the date of

22 final disposition justifies a higher fee.);’’.

23 (2) JUDICIAL PROCEEDINGS.—Section

24 2412(d)(2)(A)(ii) of title 28, United States Code, is

25 amended by striking out all beginning with ‘‘$75 per
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1 hour’’ and inserting in lieu thereof ‘‘$125 per hour

2 unless the court determines that an increase in the

3 cost-of-living based on the date of final disposition

4 justifies a higher fee.);’’.

5 (d) OFFERS OF SETTLEMENT.—

6 (1) ADMINISTRATIVE PROCEEDINGS.—Section

7 504 of title 5, United States Code, is amended—

8 (A) by redesignating subsections (e) and

9 (f) as subsections (f) and (g), respectively; and

10 (B) by inserting after subsection (d) the

11 following new subsection:

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

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

14 from which a fee award is sought may serve upon the ap15 plicant an offer of settlement of the claims made in the

16 application. If within 10 days after service of the offer the

17 applicant serves written notice that the offer is accepted,

18 either party may then file the offer and notice of accept19 ance together with proof of service thereof.

20 ‘‘(2) An offer not accepted shall be deemed with21 drawn. The fact that an offer is made but not accepted

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

23 and expenses for the merits of the proceeding finally ob24 tained by the applicant is not more favorable than the

25 offer, the applicant shall not be entitled to receive an
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1 award for attorneys’ fees or other expenses incurred in re2 lation to the application for fees and expenses after the

3 date of the offer.’’.

4 (2) JUDICIAL PROCEEDINGS.—Section 2412 of

5 title 28, United States Code, is amended—

6 (A) by redesignating subsections (e) and

7 (f) as subsections (f) and (g), respectively; and

8 (B) by inserting after subsection (d) the

9 following new subsection:

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

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

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

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

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

15 service of the offer the applicant serves written notice that

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

17 and notice of acceptance together with proof of service

18 thereof.

19 ‘‘(2) An offer not accepted shall be deemed with20 drawn. The fact that an offer is made but not accepted

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

22 and expenses for the merits of the proceeding finally ob23 tained by the applicant is not more favorable than the

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

25 award for attorneys’ fees or other expenses incurred in re-
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1 lation to the application for fees and expenses after the

2 date of the offer.’’.

3 (e) 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 out all

8 beginning with ‘‘, unless the adjudicative offi9 cer’’ through ‘‘expenses are sought’’; and

10 (B) in subsection (a)(2) by striking out

11 ‘‘The party shall also allege that the position of

12 the agency was not substantially justified.’’.

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

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

15 (A) in paragraph (1)(A) by striking out ‘‘,

16 unless the court finds that the position of the

17 United States was substantially justified or that

18 special circumstances make an award unjust’’;

19 (B) in paragraph (1)(B) by striking out

20 ‘‘The party shall also allege that the position of

21 the United States was not substantially justi22 fied. Whether or not the position of the United

23 States was substantially justified shall be deter24 mined on the basis of the record (including the

25 record with respect to the action or failure to
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1 act by the agency upon which the civil action is

2 based) which is made in the civil action for

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

4 (C) in paragraph (3) by striking out ‘‘, un5 less the court finds that during such adversary

6 adjudication the position of the United States

7 was substantially justified, or that special cir8 cumstances make an award unjust’’.

9 (f) REPORTS TO CONGRESS.—

10 (1) ADMINISTRATIVE PROCEEDINGS.—No later

11 than 180 days after the date of the enactment of

12 this Act, the Administrative Conference of the

13 United States shall submit a report to the Con14 gress—

15 (A) providing an analysis of the variations

16 in the frequency of fee awards paid by specific

17 Federal agencies under the provisions of section

18 504 of title 5, United States Code; and

19 (B) including recommendations for extend20 ing the application of such sections to other

21 Federal agencies and administrative proceed22 ings.

23 (2) JUDICIAL PROCEEDINGS.—No later than

24 180 days after the date of the enactment of this Act,
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1 the Department of Justice shall submit a report to

2 the Congress—

3 (A) providing an analysis of the variations

4 in the frequency of fee awards paid by specific

5 Federal districts under the provisions of section

6 2412 of title 28, United States Code; and

7 (B) including recommendations for extend8 ing the application of such sections to other

9 Federal judicial proceedings.

10 (g) EFFECTIVE DATE.—The provisions of this Act

11 and the amendments made by this Act shall take effect

12 30 days after the date of the enactment of this Act and

13 shall apply only to an administrative complaint filed with

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

15 court on or after such date.

Æ