I 

112TH CONGRESS 

1ST SESSION 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. 

IN THE HOUSE OF REPRESENTATIVES 

MAY 25, 2011 

Mrs. LUMMIS (for herself, Mr. BISHOP of Utah, Mr. THOMPSON of Pennsylvania, Mr. SIMPSON, Mr. CHAFFETZ, Mr. YOUNG of Alaska, Mr. TIPTON, 

Mr. DENHAM, Mr. CONAWAY, Mr. REHBERG, Mr. COFFMAN of Colorado, 

Mr. FRANKS of Arizona, Mr. NUNES, Mrs. NOEM, Mr. LAMBORN, Mr. 

DUNCAN of Tennessee, Mr. PEARCE, Mr. HERGER, and Mr. FLAKE) introduced the following bill; which was referred to the Committee on the 

Judiciary 

A BILL 

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. 

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


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1 SECTION 1. SHORT TITLE. 

2 This Act may be cited as the ‘‘Government Litigation 

3 Savings Act’’. 

4 SEC. 2. MODIFICATION OF EQUAL ACCESS TO JUSTICE 

5 PROVISIONS. 

6 (a) AGENCY PROCEEDINGS.— 

7 (1) ELIGIBILITY PARTIES; ATTORNEY FEES.— 

8 Section 504 of title 5, United States Code, is 

9 amended— 

10 (A) in subsection (a)(1), by inserting after 

11 ‘‘prevailing party’’ the following: ‘‘who has a di12 rect and personal monetary interest in the adju13 dication, including because of personal injury, 

14 property damage, or unpaid agency disburse15 ment,’’; and 

16 (B) in subsection (b)(1)— 

17 (i) in subparagraph (A)(ii), by strik18 ing ‘‘$125 per hour’’ and all that follows 

19 through ‘‘a higher fee’’ and inserting 

20 ‘‘$175 per hour’’; and 

21 (ii) in subparagraph (B), by striking 

22 ‘‘; except that’’ and all that follows 

23 through ‘‘section 601’’. 

24 (2) REDUCTION OR DENIAL OF AWARDS.—Sec25 tion 504(a)(3) of title 5, United States Code, is 

26 amended in the first sentence— 


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1 (A) by striking ‘‘may reduce the amount to 

2 be awarded, or deny an award,’’ and inserting 

3 ‘‘shall reduce the amount to be awarded, or 

4 deny an award, commensurate with pro bono 

5 hours and related fees and expenses, or’’; 

6 (B) by striking ‘‘unduly and’’; and 

7 (C) by striking ‘‘controversy.’’ and insert8 ing ‘‘controversy or acted in an obdurate, dila9 tory, mendacious, or oppressive manner, or in 

10 bad faith.’’. 

11 (3) LIMITATION ON AWARDS.—Section 504(a) 

12 of title 5, United States Code, is amended by adding 

13 at the end the following: 

14 ‘‘(5) A party may not receive an award of fees and 

15 other expenses under this section— 

16 ‘‘(A) in excess of $200,000 in any single adver17 sary adjudication, or 

18 ‘‘(B) for more than 3 adversary adjudications 

19 initiated in the same calendar year, 

20 unless the adjudicative officer of the agency determines 

21 that an award exceeding such limits is required to avoid 

22 severe and unjust harm to the prevailing party.’’. 

23 (4) REPORTING IN AGENCY ADJUDICATIONS.— 

24 Section 504 of such title is amended— 


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1 (A) in subsection (c)(1), by striking ‘‘, 

2 United States Code’’; and 

3 (B) by striking subsection (e) and insert4 ing the following: 

5 ‘‘(e)(1) The Chairman of the Administrative Con6 ference of the United States shall issue an annual, online 

7 report to the Congress on the amount of fees and other 

8 expenses awarded during the preceding fiscal year pursu9 ant to this section. The report shall describe the number, 

10 nature, and amount of the awards, the nature of and 

11 claims involved in each controversy (including the law 

12 under which the controversy arose), and any other relevant 

13 information that may aid the Congress in evaluating the 

14 scope and impact of such awards. The report shall be 

15 made available to the public online, and contain a search16 able database of the total awards given, and the total num17 ber of applications for the award of fees and other ex18 penses that were filed, defended, and heard, and shall in19 clude, with respect to each such application, the following: 

20 ‘‘(A) The name of the party seeking the award 

21 of fees and other expenses. 

22 ‘‘(B) The agency to which the application for 

23 the award was made. 


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1 ‘‘(C) The names of the administrative law 

2 judges in the adversary adjudication that is the sub3 ject of the application. 

4 ‘‘(D) The disposition of the application, includ5 ing any appeal of action taken on the application. 

6 ‘‘(E) The amount of each award. 

7 ‘‘(F) The hourly rates of expert witnesses stat8 ed in the application that was awarded. 

9 ‘‘(G) With respect to each award of fees and 

10 other expenses, the basis for the finding that the po11 sition of the agency concerned was not substantially 

12 justified. 

13 ‘‘(2)(A) The report under paragraph (1) shall cover 

14 payments of fees and other expenses under this section 

15 that are made pursuant to a settlement agreement, re16 gardless of whether the settlement agreement is otherwise 

17 subject to nondisclosure provisions. 

18 ‘‘(B) The disclosure of fees and other expenses re19 quired under subparagraph (A) does not affect any other 

20 information that is subject to nondisclosure provisions in 

21 the settlement agreement.’’. 

22 (5) ADJUSTMENT OF ATTORNEY FEES.—Sec23 tion 504 of such title is amended by adding at the 

24 end the following: 


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1 ‘‘(g) The Director of the Office of Management and 

2 Budget may adjust the maximum hourly fee set forth in 

3 subsection (b)(1)(A)(ii) for the fiscal year beginning Octo4 ber 1, 2012, and for each fiscal year thereafter, to reflect 

5 changes in the Consumer Price Index, as determined by 

6 the Secretary of Labor.’’. 

7 (b) COURT CASES.— 

8 (1) ELIGIBILITY PARTIES; ATTORNEY FEES; 

9 LIMITATION ON AWARDS.—Section 2412(d) of title 

10 28, United States Code, is amended— 

11 (A) in paragraph (1)— 

12 (i) in subparagraph (A)— 

13 (I) by striking ‘‘in any civil ac14 tion’’ and all that follows through ‘‘ju15 risdiction of that action’’ and insert16 ing ‘‘in the civil action’’; and 

17 (II) by striking ‘‘shall award to a 

18 prevailing party other than the United 

19 States’’ and inserting the following: ‘‘, 

20 in any civil action (other than cases 

21 sounding in tort), including pro22 ceedings for judicial review of agency 

23 action, brought by or against the 

24 United States in any court having ju25 risdiction of that action, shall award 


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1 to a prevailing party who has a direct 

2 and personal monetary interest in the 

3 civil action, including because of per4 sonal injury, property damage, or un5 paid agency disbursement, other than 

6 the United States,’’; and 

7 (ii) by adding at the end the fol8 lowing: 

9 ‘‘(E) An individual or entity may not receive an 

10 award of fees and other expenses under this subsection 

11 in excess of— 

12 ‘‘(i) $200,000 in any single civil action, or 

13 ‘‘(ii) for more than 3 civil actions initiated in 

14 the same calendar year, 

15 unless the presiding judge determines that an award ex16 ceeding such limits is required to avoid severe and unjust 

17 harm to the prevailing party.’’; 

18 (B) in paragraph (2)— 

19 (i) in subparagraph (A)(ii), by strik20 ing ‘‘$125 per hour’’ and all that follows 

21 through ‘‘a higher fee’’ and inserting 

22 ‘‘$175 per hour’’; and 

23 (ii) in subparagraph (B), by striking 

24 ‘‘; except that’’ and all that follows 

25 through ‘‘section 601’’. 


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1 (2) REDUCTION OR DENIAL OF AWARDS.—Sec2 tion 2412(d)(1)(C) of title 28, United States Code, 

3 is amended— 

4 (A) by striking ‘‘, in its discretion, may re5 duce the amount to be awarded pursuant to 

6 this subsection, or deny an award,’’ and insert7 ing ‘‘shall reduce the amount to be awarded 

8 under this subsection, or deny an award, com9 mensurate with pro bono hours and related fees 

10 and expenses, or’’; 

11 (B) by striking ‘‘unduly and’’; and 

12 (C) by striking ‘‘controversy.’’ and insert13 ing ‘‘controversy or acted in an obdurate, dila14 tory, mendacious, or oppressive manner, or in 

15 bad faith.’’. 

16 (3) ADJUSTMENT OF ATTORNEY FEES.—Sec17 tion 2412(d) of title 28, United States Code, is 

18 amended by adding at the end the following: 

19 ‘‘(5) The Director of the Office of Management and 

20 Budget may adjust the maximum hourly fee set forth in 

21 paragraph (2)(A)(ii) for the fiscal year beginning October 

22 1, 2012, and for each fiscal year thereafter, to reflect 

23 changes in the Consumer Price Index, as determined by 

24 the Secretary of Labor.’’. 


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1 (4) REPORTING.—Section 2412(d) of title 28, 

2 United States Code, is further amended by adding 

3 at the end the following: 

4 ‘‘(6)(A) The Chairman of the Administrative Con5 ference of the United States shall issue an annual, online 

6 report to the Congress on the amount of fees and other 

7 expenses awarded during the preceding fiscal year pursu8 ant to this subsection. The report shall describe the num9 ber, nature, and amount of the awards, the nature of and 

10 claims involved in each controversy (including the law 

11 under which the controversy arose), and any other relevant 

12 information that may aid the Congress in evaluating the 

13 scope and impact of such awards. The report shall be 

14 made available to the public online and shall contain a 

15 searchable database of total awards given and the total 

16 number of cases filed, defended, or heard, and shall in17 clude with respect to each such case the following: 

18 ‘‘(i) The name of the party seeking the award 

19 of fees and other expenses in the case. 

20 ‘‘(ii) The district court hearing the case. 

21 ‘‘(iii) The names of the presiding judges in the 

22 case. 

23 ‘‘(iv) The agency involved in the case. 


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1 ‘‘(v) The disposition of the application for fees 

2 and other expenses, including any appeal of action 

3 taken on the application. 

4 ‘‘(vi) The amount of each award. 

5 ‘‘(vii) The hourly rates of expert witnesses stat6 ed in the application that was awarded. 

7 ‘‘(viii) With respect to each award of fees and 

8 other expenses, the basis for the finding that the po9 sition of the agency concerned was not substantially 

10 justified. 

11 ‘‘(B)(i) The report under subparagraph (A) shall 

12 cover payments of fees and other expenses under this sub13 section that are made pursuant to a settlement agreement, 

14 regardless of whether the settlement agreement is other15 wise subject to nondisclosure provisions. 

16 ‘‘(ii) The disclosure of fees and other expenses re17 quired under clause (i) does not affect any other informa18 tion that is subject to nondisclosure provisions in the set19 tlement agreement. 

20 ‘‘(C) The Chairman of the Administrative Conference 

21 shall include in the annual report under subparagraph (A), 

22 for each case in which an award of fees and other expenses 

23 is included in the report— 

24 ‘‘(i) any amounts paid from section 1304 of 

25 title 31 for a judgment in the case; 


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1 ‘‘(ii) the amount of the award of fees and other 

2 expenses; and 

3 ‘‘(iii) the statute under which the plaintiff filed 

4 suit. 

5 ‘‘(D) The Attorney General of the United States shall 

6 provide to the Chairman of the Administrative Conference 

7 of the United States such information as the Chairman 

8 requests to carry out this paragraph.’’. 

9 (c) EFFECTIVE DATE.— 

10 (1) MODIFICATIONS TO PROCEDURES.—The 

11 amendments made by— 

12 (A) paragraphs (1), (2), and (3) of sub13 section (a) shall apply with respect to adversary 

14 adjudications commenced on or after the date 

15 of the enactment of this Act; and 

16 (B) paragraphs (1) and (2) of subsection 

17 (b) shall apply with respect to civil actions com18 menced on or after such date of enactment. 

19 (2) REPORTING.—The amendments made by 

20 paragraphs (4) and (5) of subsection (a) and by 

21 paragraphs (3) and (4) of subsection (b) shall take 

22 effect on the date of the enactment of this Act. 

23 SEC. 3. GAO STUDY. 

24 Not later than 30 days after the date of the enact25 ment of this Act, the Comptroller General shall commence 


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1 an audit of the implementation of the Equal Access to 

2 Justice Act for the years 1995 through the end of the cal3 endar year in which this Act is enacted. The Comptroller 

4 General shall, not later than 1 year after the end of the 

5 calendar year in which this Act is enacted, complete such 

6 audit and submit to the Congress a report on the results 

7 of the audit. 

Æ 


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