A bill to amend section 504 of title 5, United States Code, and section 2412 of title 28, United States Code, with respect to awards of expenses of certain agency and court proceedings, and for other purposes.
PL 99-80 (H.R.2378), enacted 08/05/1985

PUBLIC LAW 99-80—AUG. 5, 1985 
99 STAT. 183 
Public Law 99-80 
99th Congress 
An Act 
To amend section 504 of title 5, United States Code, and section 2412 of title 28, 
^ug 5 19^5 
United States Code, with respect to awards of expenses of certain agency and court 
' ' 
proceedings, and for other purposes. 
[H.R. 2378] 
Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled, 
SECTION 1. AMENDMENTS TO SECTION 504 OF TITLE 5. 
(a) AWARDING OP FEES IN ADVERSARY ADJUDICATIONS.— 
(1) DETERMINATION OF "SUBSTANTIALLY JUSTIFIED".—Subsec-
tion (aXl) of section 504 of title 5, United States Code, is 
amended by adding at the end thereof the following: "Whether 
or not the position of the agency was substantially justified 
shall be determined on the basis of the administrative record, as 
a whole, which is made in the adversary adjudication for which 
fees and other expenses are sought.". 
(2) CLARIFYING AMENDMENT.—Subsection (aXD of such section 
is amended by striking out "as a party to the proceeding". 
(3) DECISION OF AGENCY TO BE FINAL ADMINISTRATIVE DECI-
SION.—Subsection (aX3) of such section is amended by adding at 
the end thereof the following: "The decision of the agency on 
the application for fees and other expenses shall be the final 
administrative decision under this section.". 
fl^) DETERMINATION OF FEES DELAYED IN CASE OF APPEAL.—Sub&BC-
tion (aX2) of section 504 of title 5, United States Code, is amended by 
adding at the end thereof the following: "When the United Stales 
app|eals the underl3dng merits of an adversary adjudication, no 
decision on an application for fees and other expenses in connection 
with that adversary adjudication shall be made under this section 
until a final and unreviewable decision is rendered by the court on 
the appeal or until the underlying merits of the case have been 
finally determined pursuant to the appeal.", 
(c) DEFINITIONS.— 
(1) PARTY.—Paragraph (IXB) of section 504(b) of title 5, United 
States Code, is amended to read as follows: 
"(B) 'party' means a party, as defined in section 551(3) of tliis 
title, who is (i) an individual whose net worth did not exceed 
$2,000,000 at the time the adversary adjudication was initiat(}d, 
or (ii) any owner of an unincorporated business, or any partner-
ship, corporation, association, unit of local government, or 
organization, the net worth of which did not exceed $7,000,000 
at the time the adversary adjudication was initiated, and which 
had not more than 500 employees at the time the adversary 
adjudication was initiated; except that an organization de-
scribed in section 501(cX3) of the Internal Revenue Code of 1954 
(26 U.S.C. 501(cX3)) exempt from taxation under section 501(a) of 
such Code, or a cooperative association as defined in section 
15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may 
99 STAT. 184 
PUBLIC LAW 99-80—AUG. 5, 1985 
be a party regardless of the net worth of such organization or 
cooperative association;". 
(2) ADVERSARY ADJUDICATION.—Paragraph (IXC) of such sec-
tion is amended— 
(A) by inserting "(i)" before "an adjudication under"; 
(B) by inserting before the semicolon at the end thereof 
the following: ", and (ii) any appeal of a decision made 
pursuant to section 6 of the Contract Disputes Act of 1978 
(41 U.S.C. 605) before an agency board of contract appeals 
as provided in section 8 of that Act (41 U.S.C. 607)^'; and 
(C)by striking out "and" at the end thereof. 
(3) POSITION OP THE AGENCY.—Paragraph (1) of such section is 
amended— 
(A) by striking out the period at the end of subparagraph 
(D) and inserting in lieu thereof "; and"; and 
(B) by adding at the end thereof the following: 
"(E) 'position of the agency' means, in addition to the position 
taken by the agency in the adversary adjudication, the action or 
failure to act by the agency upon which the adversary adjudica-
tion is based; except that fees and other expenses may not be 
awarded to a party for any portion of the adversary adjudi-
cation in which the party has unreasonably protracted the 
proceedings.". 
(d) APPEALS OF FEE DETERMINATIONS.—Subsection (cX2) of section 
504 of title 5, United States CJode, is amended to read as follows: 
"(2) If a party other than the United States is dissatisfied with a 
determination of fees and other expenses made under subsection (a), 
that party may, within 30 days after the determination is made, 
appeal the determination to the court of the United States having 
jurisdiction to review the merits of the underlying decision of the 
agency adversary adjudication. The court's determination on any 
appeal heard under this paragraph shall be based solely on the 
factual record made before the agency. The court may modify the 
determination of fees and other expenses only if the court finds that 
the failure to make an award of fees and other expenses, or the 
calculation of the amount of the award, was unsupported by 
substantial evidence.". 
(e) AWARDS PAID FROM AGENCY FUNDS.—Subsection (d) of section 
504 of title 5, United States Code, is amended to read as follows: 
"(d) Fees and other expenses awarded under this subsection shall 
be paid by any agency over which the party prevails from any funds 
made available to the agency by appropriation or otherwise.". 
SEC. 2. AMENDMENTS TO SECTION 2412 OF TITLE 28. 
(a) CLARIFYING AMENDMENTS.—Section 2412 of title 28, United 
States Code, (relating to costs and fees) is amended— 
(1) in subsections (a) and (b) by striking out "or any agency 
and any official of the United States" each place it appears and 
inserting in lieu thereof "or any agency or any official of the 
United States"; and 
(2) in subsection (dXlXA) by inserting ", including proceedings 
for judicial review of agency action," after "in tort)'. 
Q}) DETERMINATION 
OF "SUBSTANTIALLY 
JUSTIFIED".-Section 
2412(dXlXB) of title 28, United States Code, is amended by adding at 
the end thereof the following: "Whether or not the position of the 
United States was substantially justified shall be determined on the 
basis of the record (including the record with respect to the action or 
PUBLIC LAW 99-80—AUG. 5, 1985 
99 STAT. 185 
failure to act by the agency upon which the civil action is b£ised) 
which is made in the civil action for which fees and other expenses 
are sought.". 
(c) DEFINITIONS.— 
(1) Subparagraph (B) of section 2412(dX2) of title 28, United 
States Code, is amended— 
(A) in clause (i) by striking out "$1,000,000" and inseiting 
in Keu thereof "$2,000,000"; and 
(B) by striking out "(ii)" and all that follows through, the 
end of the subparagraph and inserting in lieu thereof the 
following: "or (ii) any owner of an unincorporated business, 
or any partnership, corporation, association, unit of local 
government, or organization, the net worth of which did not 
exceed $7,000,000 at the time the civil action was filed, and 
which had not more than 500 employees at the time the 
civil action was filed; except that an organization described 
in section 501(cX3) of the Internal Revenue Code of 195^1 (26 
U.S.C. 501(cX3)) exempt from taxation under section 501(a) 
of such Code, or a cooperative association as defined in 
section 15(a) of the Agricultural Marketing Act (12 U.S.C. 
1141j(a)), may be a party r^ardless of the net worth of such 
organization or cooperative association;". 
(2) ADDITIONAL DEFiNiTiONS.^Subsection (dX2) of such section 
is amended— 
(A) by striking out the period at the end of subparagraph 
(C) and inserting in lieu thereof a semicolon; and 
(B) by adding at the end thereof the following: 
"(D) 'position of the United States' means, in addition to the 
position taken by the United States in the civil action, the 
action or failure to act by the agenQr upon which the civil action 
is based; except that fees and expenses may not be awarded to a 
party for any portion of the litigation in which the party has 
imreasonably protracted the proceedings; 
"(E) 'civil action brought by or against the United Stsites' 
includes an appeal by a party, other than the United Stsites, 
from a decision of a contracting officer rendered pursuant to a 
disputes clause in a contract with the Government or pursuant 
to the (Contract Disputes Act of 1978; 
4i use 601 note. 
"(F) 'court' includes the United States Claims Court; 
"(G) 'final judgment' means a judgment that is final and not 
appealable, and includes an order of settlement; and 
"(H) 'prevailing party', in the case of eminent domain 
proceedings, means a party who obtains a final judgment (other 
than by settlement), exclusive of interest, the amount of which 
is at least as close to the highest valuation of the prop<3rty 
involved that is attested to at trial on behalf of the prop<3rty 
owner as it is to the highest valuation of the property involved 
that is attested to at trial on behalf of the (Jovernment.". 
(d) PAYMENT OF AWARDS.—Paragraph (4) of section 2412(d) of title 
28, United States Code, is amended to read as follows: 
"(4) Fees and other expenses awarded under this subsection to a 
party shall be paid by any agency over which the party prevails 
from any funds made available to the agency by appropriation or 
otherwise.". 
(e) INTEREST.—Section 2412 of title 28, United States CJode, is 
amended by adding at the end thereof the following: 
99 STAT. 186 
PUBLIC LAW 99-80—AUG. 5, 1985 
28 use 1961. 
28 use 2412 
note. 
Ante, p. 184. 
5 use 504 note. 
5 u s e 504 note. 
5 use prec. 500, 
504 and note; 28 
use 2412 and 
note. 
Effective date. 
5 u s e 500 et seq. 
Infra. 
5 use 504. 
28 use 2412 note. 
"(f) If the United States appeeils an award of costs or fees and 
other expenses made against the United States under this section 
and the award is affirmed in whole or in part, interest shall be paid 
on the amount of the award as affirmed. Such interest shall be 
computed at the rate determined under section 1961(a) of this title, 
and shall run from the date of the award through the day before the 
date of the mandate of affirmance.". 
SEC. 3. AWARDS IN CERTAIN SOCIAL SECURITY PROCEEDINGS. 
Section 206 of the Equal Access to Justice Act is amended— 
(1) by striking out Nothing" and inserting in lieu thereof "(a) 
Except as provided in subsection O
t
>
)
, nothing^*; and 
(2) by adding at the end thereof the following: 
"(b) Section 206(b) of the Social Security Act (42 U.S.C. 406(bXl)) 
shall not prevent an award of fees and other expenses under section 
2412(d) of title 28, United States Code. Section 206(bX2) of the Social 
Security Act shall not apply with respect to any such award but onlv 
if, where the claimant's attorney receives fees for the same work 
under both section 206(b) of that Act and section 2412(d) of title 28, 
United States Code, the claimant's attorney refunds to the claimant 
the amount of the smaller fee.". 
SEC. 4. REPEAL OF LIMITATION ON PAYMENT OF AWARDS. 
Section 207 of the Equal Access to Justice Act (P.L. 96-481) is 
hereby repealed. 
SEC. 5. AWARDS FOR CERTAIN FEES AND OTHER EXPENSES. 
Section 208 of the Eiqual Access to Justice Act is amended by 
adding at the end thereof the following: "Awards may be made for 
fees and other expenses incurred before October 1,1981, in any such 
adversary adjudication or civil action.". 
SEC. 6. TREATMENT OF EXPIRED PROVISIONS OF LAW. 
(a) REVIVAL OP CERTAIN EXPIRED PROVISIONS.—Section 504 of title 
5, United States Code, and the item relating to that section in the 
table of sections of chapter 5 of title 5, United States Code, and 
subsection (d) of section 2412 of title 28, United States (Ilode, shall be 
effective on or after the date of the enactment of this Act as if they 
had not been repealed by sections 203(c) and 204(c) of the Equal 
Access to Justice Act. 
O
t
)
) REPEALS.— 
(1) Section 203(c) of the Equal Access to Justice Act is hereby 
repealed. 
(2) Section 204(c) of the Equal Access to Justice Act is hereby 
repealed. 
5 use 504 note. 
SEC. 7. EFFECTIVE DATE. 
Effective date. 
Ante, p. 184. 
(a) IN GENERAL.—Except as otherwise provided in this section, the 
amendments made by this Act shall apply to cases pending on or 
commenced on or after the date of the enactment of this Act. 
(b) APPUCABIUTY OF AMENDMENTS TO CERTAIN PRIOR CASES.—The 
amendments made by this Act shall apply to any case commenced 
on or after October 1,1984, and finally disposed of before the date of 
the enactment of this Act, except that in any such case, the 30-day 
period referred to in section 504(aX2) of title 5, United States Code, 
or section 2412(dXlXB) of title 28, United States Code, as the case 
may be, shall be deemed to commence on the date of the enactment 
of this Act. 
PUBLIC LAW 99-80—AUG. 5, 1985 
99 STAT. 187 
(c) APPUCABILTTY OF AMENDMENTS TO PRIOR BOARD OF CONTRAITTS 
APPEALS CASES.—Section 504(bXlXCXii) of title 5, United States 
Code, as added by section l(cX2) of this Act, and section 2412(dX2)(E) 
of title 28, United States Code, as added by section 2(cX2) of this Act, 
shall apply to any adversary adjudication pending on or commenced 
on or after October 1,1981, in which applications for fees and other 
expenses were timely filed and were dismissed for lack of 
jurisdiction. 
Approved August 5, 1985. 
LEGISLATIVE HISTORY—H.R. 2378 (S. 1487): 
HOUSE REPORTS: No. 99-120 and Pt. 2 (Comm. on the Judiciary). 
CONGRESSIONAL RECORD, Vol. 131 (1985): 
June 24, considered and passed House. 
July 24, S. 1487 considered and passed Senate; H.R. 2378 considered and passed 
Senate. 
WEEKLY COMPILATION OF PRESIDENTIAL DOCUMENTS, Vol. 21, No. 32 (1985): 
Aug. 5, Presidential statement.