II

105TH CONGRESS

2D SESSION S. 1613

To reform the regulatory process, and for other purposes.

IN THE SENATE OF THE UNITED STATES

FEBRUARY 5, 1998

Mr. FEINGOLD introduced the following bill; which was read twice and

referred to the Committee on the Judiciary

A BILL

To reform the regulatory process, 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 1998’’.

6 (b) AWARD OF COSTS AND FEES.—

7 (1) ADMINISTRATIVE PROCEEDINGS.—Section

8 504(a)(2) of title 5, United States Code, is amended

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

10 after the commencement of an adversary adjudica11 tion covered by this section, the adjudicative officer

12 may ask a party to declare whether such party in-
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1 tends to seek an award of fees and expenses against

2 the agency should such party prevail.’’.

3 (2) JUDICIAL PROCEEDINGS.—Section

4 2412(d)(1)(B) of title 28, United States Code, is

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

6 any time after the commencement of an adversary

7 adjudication covered by this section, the court may

8 ask a party to declare whether such party intends to

9 seek an award of fees and expenses against the

10 agency should such party prevail.’’.

11 (c) HOURLY RATE FOR ATTORNEY FEES.—

12 (1) ADMINISTRATIVE PROCEEDINGS.—Section

13 504(b)(1)(A)(ii) of title 5, United States Code, is

14 amended by striking all beginning with ‘‘$125 per

15 hour’’ and inserting ‘‘$125 per hour unless the agen16 cy determines by regulation that an increase in the

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

18 justifies a higher fee);’’.

19 (2) JUDICIAL PROCEEDINGS.—Section

20 2412(d)(2)(A)(ii) of title 28, United States Code, is

21 amended by striking all beginning with ‘‘$125 per

22 hour’’ and inserting ‘‘$125 per hour unless the court

23 determines that an increase in the cost-of-living

24 based on the date of final disposition justifies a

25 higher fee);’’.
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1 (d) PAYMENT FROM AGENCY APPROPRIATIONS.—

2 (1) ADMINISTRATIVE PROCEEDINGS.—Section

3 504(d) of title 5, United States Code, is amended by

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

5 awarded under this subsection may not be paid from

6 the claims and judgments account of the Treasury

7 from funds appropriated pursuant to section 1304 of

8 title 31.’’.

9 (2) JUDICIAL PROCEEDINGS.—Section

10 2412(d)(4) of title 28, United States Code, is

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

12 and expenses awarded under this subsection may not

13 be paid from the claims and judgments account of

14 the Treasury from funds appropriated pursuant to

15 section 1304 of title 31.’’.

16 (e) OFFERS OF SETTLEMENT.—

17 (1) ADMINISTRATIVE PROCEEDINGS.—Section

18 504 of title 5, United States Code, is amended—

19 (A) by redesignating subsections (e) and

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

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

22 following new subsection:

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

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

25 from which a fee award is sought may serve upon the ap-
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1 plicant an offer of settlement of the claims made in the

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

3 applicant serves written notice that the offer is accepted,

4 either party may then file the offer and notice of accept5 ance together with proof of service thereof.

6 ‘‘(2) An offer not accepted shall be deemed with7 drawn. The fact that an offer is made but not accepted

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

9 and expenses for the merits of the proceeding finally ob10 tained by the applicant is not more favorable than the

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

12 award for attorneys’ fees or other expenses incurred in re13 lation to the application for fees and expenses after the

14 date of the offer.’’.

15 (2) JUDICIAL PROCEEDINGS.—Section 2412 of

16 title 28, United States Code, is amended—

17 (A) by redesignating subsections (e) and

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

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

20 following new subsection:

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

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

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

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

25 claims made in the application. If within 10 days after
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1 service of the offer the applicant serves written notice that

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

3 and notice of acceptance together with proof of service

4 thereof.

5 ‘‘(2) An offer not accepted shall be deemed with6 drawn. The fact that an offer is made but not accepted

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

8 and expenses for the merits of the proceeding finally ob9 tained by the applicant is not more favorable than the

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

11 award for attorneys’ fees or other expenses incurred in re12 lation to the application for fees and expenses after the

13 date of the offer.’’.

14 (f) ELIMINATION OF SUBSTANTIAL JUSTIFICATION

15 STANDARD.—

16 (1) ADMINISTRATIVE PROCEEDINGS.—Section

17 504 of title 5, United States Code, is amended—

18 (A) in subsection (a)(1), by striking all be19 ginning with ‘‘, unless the adjudicative officer’’

20 through ‘‘expenses are sought’’; and

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

22 party shall also allege that the position of the

23 agency was not substantially justified.’’.

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

25 of title 28, United States Code, is amended—
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1 (A) in paragraph (1)(A), by striking ‘‘, un2 less the court finds that the position of the

3 United States was substantially justified or that

4 special circumstances make an award unjust’’;

5 (B) in paragraph (1)(B), by striking ‘‘The

6 party shall also allege that the position of the

7 United States was not substantially justified.

8 Whether or not the position of the United

9 States was substantially justified shall be deter10 mined on the basis of the record (including the

11 record with respect to the action or failure to

12 act by the agency upon which the civil action is

13 based) which is made in the civil action for

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

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

16 the court finds that during such adversary ad17 judication the position of the United States was

18 substantially justified, or that special cir19 cumstances make an award unjust’’.

20 (g) REPORTS TO CONGRESS.—

21 (1) ADMINISTRATIVE PROCEEDINGS.—No later

22 than 180 days after the date of the enactment of

23 this Act, the Administrative Conference of the

24 United States shall submit a report to Congress—
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1 (A) providing an analysis of the variations

2 in the frequency of fee awards paid by specific

3 Federal agencies under the provisions of section

4 504 of title 5, United States Code; and

5 (B) including recommendations for extend6 ing the application of such sections to other

7 Federal agencies and administrative proceed8 ings.

9 (2) JUDICIAL PROCEEDINGS.—No later than

10 180 days after the date of the enactment of this Act,

11 the Department of Justice shall submit a report to

12 Congress—

13 (A) providing an analysis of the variations

14 in the frequency of fee awards paid by specific

15 Federal districts under the provisions of section

16 2412 of title 28, United States Code; and

17 (B) including recommendations for extend18 ing the application of such sections to other

19 Federal judicial proceedings.

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

21 and the amendments made by this Act shall take effect

22 30 days after the date of the enactment of this Act and

23 shall apply only to an administrative complaint filed with
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1 a Federal agency or a civil action filed in a United States

2 court on or after such date.

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