II
109th CONGRESS
1st Session
S. 2017
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.
Short title
This Act may be cited as the
Equal Access to Justice Reform Act of
2005
.
Findings and statement of purpose
Findings
The Congress finds that—
the Equal Access to Justice Act
(Public Law
96–481; 94 Stat. 2325 et seq.) (in this section referred to as
EAJA
) was intended to make the justice system more accessible to
individuals of modest means, small businesses, and nonprofit organizations (in
this section collectively referred to as small parties
) through
limited recovery of their attorneys' fees when they prevail in disputes with
the Federal Government; and
although EAJA has succeeded, at modest cost, in improving access to the justice system for small parties, EAJA retains formidable barriers to attorneys’ fees recovery (even for small parties that completely prevail against the Government), as well as inefficient and costly mechanisms for determining the fees recovery.
Purpose
It is, therefore, the purpose of this Act to remove existing barriers and inefficiencies in EAJA in order to—
equalize the level of accountability to Federal law among governments in the United States;
discourage marginal Federal enforcement actions directed at small parties;
reduce the practice of paying EAJA liabilities from the General Treasury, to ensure that Federal agencies properly consider the financial consequences of their actions and subsequent impact on the Federal budget;
refine and improve Federal policies through adjudication;
promote a fair and cost-effective process for prompt settlement and payment of attorneys’ fees claims; and
provide a fairer opportunity for full participation by small businesses in the free enterprise system, further increasing the economic vitality of the Nation.
Compliance policy
In complying with the statement of congressional policy expressed in this section, each Federal agency, to the maximum extent practicable, should—
avoid unjustified enforcement actions directed at small parties covered by EAJA;
encourage settlement of justified enforcement actions directed at small parties covered by EAJA; and
minimize impediments to prompt resolution and payment of reasonable attorneys’ fees to prevailing small parties covered by EAJA.
Reporting and technical assistance by office of advocacy
Functions of office of advocacy
Section 202 of Public Law 94–305 (15 U.S.C. 634b) is amended—
in paragraph (3), by inserting before the
semicolon at the end the following: and for ensuring that the justice
system remains accessible to small businesses for the resolution of disputes
with the Federal Government
; and
by striking paragraph (11) and inserting the following:
advise, cooperate with, and consult with the President and Attorney General with respect to section 303(b) of the Small Business Economic Policy Act of 1980 (15 U.S.C. 631b(b)) and section 504(e) of title 5, United States Code; and
.
Duties of office of advocacy
Section 203 of Public Law 94–305 (15 U.S.C. 634c) is amended—
in paragraph (2), by inserting before the
semicolon at the end the following: , including the resolution of
disputes with the Federal Government and the role of procedures established by
the Equal Access to Justice Act (Public Law 96–481; 94 Stat. 2325) in
such disputes
; and
in paragraph (3), by inserting after
the Small Business Act
the following: , including those related to the Equal Access to Justice
Act,
.
Reports to Congress
In general
Not later than 180 days after the date of enactment of this Act, the Attorney General, in cooperation with the Chief Counsel for Advocacy of the Small Business Administration, shall transmit to the congressional committees specified in paragraph (2) a report containing—
an analysis of the effectiveness of the
Equal Access to Justice Act (Public Law 96–481; 94 Stat. 2325) (in
this paragraph referred to as EAJA
) in achieving its purpose to
ease the burden upon small businesses and other small parties covered by EAJA
of engaging in dispute resolution with the Federal Government,
including—
the relative awareness of EAJA in the small business community;
the relative awareness of EAJA’s requirements among Federal agencies;
the extent and quality of rules and regulations adopted by each Federal agency for processing, resolving, and paying attorneys’ fees claims under EAJA;
the extent to which each Federal agency claims any exemptions in whole or in part from EAJA’s coverage;
the frequency or degree of use of EAJA’s procedures by prevailing small businesses; and
an analysis of the costs and benefits of EAJA generally;
an analysis of the variations in the frequency and amounts of fee awards paid by specific Federal agencies and within specific Federal circuits and districts under section 504 of title 5, United States Code, and section 2412 of title 28, United States Code, including the number and total dollar amount of all claims filed with, and all claims processed, settled, litigated, and paid by, each agency under EAJA; and
recommendations for congressional oversight or legislative changes with respect to EAJA, including any recommendations for promulgation or amendment of regulations issued under EAJA by specific Federal agencies.
Specified committees
The congressional committees referred to in paragraph (1) are the following:
The Committee on the Judiciary and the Committee on Small Business of the House of Representatives.
The Committee on the Judiciary and the Committee on Small Business and Entrepreneurship of the Senate.
Report on small business and competition
Section 303 of the Small Business Economic Policy Act of 1980 (15 U.S.C. 631b) is amended—
in subsection (a), by striking paragraph (5) and inserting the following:
recommend a program for carrying out the policy declared in section 302 (including a policy to ensure that the justice system remains accessible to small business enterprises for the resolution of disputes with the Federal Government), together with such recommendations for legislation as the President may deem necessary or desirable.
;
in subsection (b)—
by striking (b)
and
inserting (b)(1)
; and
by adding at the end the following:
The President, after consultation with the Chief Counsel for Advocacy of the Small Business Administration and the Attorney General, shall transmit simultaneously as an appendix to such annual report, a report that describes, by agency and department—
the total number of claims filed, processed, settled, and litigated by small business concerns under section 504 of title 5, United States Code, and section 2412 of title 28, United States Code (originally enacted pursuant to the Equal Access to Justice Act (Public Law 96–481; 94 Stat. 2325));
the total dollar amount of all outstanding awards and settlements to small business concerns under such sections;
the total dollar amount of all claims paid to small business concerns under such sections;
the underlying legal claims involved in each controversy with small business concerns under such sections; and
any other relevant information that the President determines may aid Congress in evaluating the impact on small business concerns of such sections.
Each agency shall provide the President with such information as is necessary for the President to comply with the requirements of this subsection.
; and
in subsection (d)—
by striking (d)
and
inserting (d)(1)
; and
by adding at the end the following:
All reports concerning the Equal Access to Justice Act (Public Law 96–481; 94 Stat. 2325), or the congressional policy to ensure that the justice system remains accessible to small business enterprises for the resolution of disputes with the Federal Government, shall be transmitted to the following congressional committees:
The Committee on the Judiciary and the Committee on Small Business of the House of Representatives.
The Committee on the Judiciary and the Committee on Small Business and Entrepreneurship of the Senate.
.
Equal access for small parties in civil and administrative proceedings
Elimination of substantial justification standard
Administrative proceedings
Section 504 of title 5, United States Code, is amended—
in subsection (a)(1), by striking ,
unless the adjudicative officer
and all that follows through the period
at the end and inserting a period; and
in subsection (a)(2), by striking
The party shall also allege that the position of the agency was not
substantially justified.
.
Judicial proceedings
Section 2412 of title 28, United States Code, is amended—
in subsection (d)(1)(A), by striking
, unless the court
and all that follows through the period at
the end and inserting a period;
in subsection (d)(1)(B), by striking
The party shall also allege
and all that follows through the
period at the end and inserting a period; and
in subsection (d)(3), by striking ,
unless the court
and all that follows through the period at the end and
inserting a period.
Eligibility of small businesses for fee award
Administrative proceedings
In general
Section
504(b)(1)(B)(ii) of title 5, United States Code, is amended by
striking $7,000,000
and inserting
$10,000,000
.
Adjustment in net worth limitation
Section 504(b) of title 5, United States Code, is amended by adding at the end the following:
Beginning on January 1 of the 5th year following the date of enactment of this paragraph, and on January 1 every 5 years thereafter, the dollar amount under paragraph (1)(B)(ii) shall be adjusted by the Producer Price Index as determined by the Secretary of the Treasury, in collaboration with the Bureau of Labor Statistics.
.
Judicial proceedings
In general
Section
2412(d)(2)(B)(ii) of title 28, United States Code, is amended
by striking $7,000,000
and inserting
$10,000,000
.
Adjustment in net worth limitation
Section 2412(d) of title 28, United States Code, is amended by adding at the end the following:
Beginning on January 1 of the 5th year following the date of enactment of this paragraph, and on January 1 every 5 years thereafter, the dollar amount under paragraph (2)(B)(ii) shall be adjusted by the Producer Price Index as determined by the Secretary of the Treasury, in collaboration with the Bureau of Labor Statistics.
.
Elimination of rate cap
Administrative proceedings
Section 504(b)(1)(A) of title 5, United States Code, is amended—
by striking (i)
; and
by striking by the agency
involved
and all that follows through a higher fee
and
inserting by the agency involved
.
Judicial proceedings
Section 2412(d)(2)(A) of title 28, United States Code, is amended—
by striking (i)
; and
by striking by the United
States
and all that follows through a higher fee
and
inserting by the United States
.
Offers of settlement
Administrative proceedings
Section 504(a) of title 5, United States Code, as amended by this section, is further amended by adding at the end the following:
At any time after an agency receives an application submitted under paragraph (2), the agency may serve upon the applicant a written offer of settlement of the claims made in the application. If within 10 business days after such service the applicant serves written notice that the offer is accepted, either the agency or the applicant may then file the offer and notice of acceptance together with proof of service thereof.
An offer not accepted within the time allowed shall be deemed withdrawn. The fact that an offer is made but not accepted shall not preclude a subsequent offer. If any award of fees and expenses for the merits of the proceeding finally obtained by the applicant is not more favorable than the offer, the applicant shall not be entitled to receive an award for fees or other expenses incurred (in relation to the application for fees and expenses) after the date of the offer.
.
Judicial proceedings
Section 2412(d)(1) of title 28, United States Code, as amended by this section, is further amended by adding at the end the following:
At any time after an agency receives an application submitted under subparagraph (B), the agency may serve upon the applicant a written offer of settlement of the claims made in the application. If within 10 business days after such service the applicant serves written notice that the offer is accepted, either the agency or the applicant may then file the offer and notice of acceptance together with proof of service thereof.
An offer not accepted within the time allowed shall be deemed withdrawn. The fact that an offer is made but not accepted shall not preclude a subsequent offer. If any award of fees and expenses for the merits of the proceeding finally obtained by the applicant is not more favorable than the offer, the applicant shall not be entitled to receive an award for fees or other expenses incurred (in relation to the application for fees and expenses) after the date of the offer.
.
Declaration of intent to seek fee award
Administrative proceedings
Section 504(a)(2) of
title 5, United States Code, as amended by this section, is further amended by
inserting before the first sentence the following: At any time after the
commencement of an adversary adjudication, the adjudicative officer may (and if
requested by a party shall) require a party to declare whether such party
intends to seek an award of fees and expenses against the agency should such
party prevail.
.
Judicial proceedings
Section
2412(d)(1)(B) of title 28, United States Code, as amended by
this section, is further amended by inserting before the first sentence the
following: At any time after the commencement of an adversary
adjudication, as defined in subsection (b)(1)(C) of
section
504 of title 5, United States Code, the court may (and if
requested by a party shall) require a party to declare whether such party
intends to seek an award of fees and expenses against the agency should such
party prevail.
.
Payment of attorneys’ Fees from agency appropriations
Administrative proceedings
Section 504(d) of title 5, United States Code, is amended to read as follows:
Fees and other expenses awarded under this section shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.
Fees and expenses awarded under this section may not be paid from the claims and judgments account of the Treasury from funds appropriated pursuant to section 1304 of title 31.
Paragraph (2) shall not apply to the National Labor Relations Board, the Occupational Safety and Health Administration, the Mine Safety and Health Administration, or the Equal Employment Opportunity Commission.
.
Judicial proceedings
Section 2412(d)(4) of title 28, United States Code, is amended to read as follows:
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.
Fees and expenses awarded under this section may not be paid from the claims and judgments account of the Treasury from funds appropriated pursuant to section 1304 of title 31.
Subparagraph (B) shall not apply to the National Labor Relations Board, the Occupational Safety and Health Administration, the Mine Safety and Health Administration, or the Equal Employment Opportunity Commission.
.
Eligibility of taxpayers for fee award
Administrative proceedings
Section 504 of title 5, United States Code, as amended by this section, is further amended by striking subsection (f).
Judicial proceedings
Section 2412 of title 28, United States Code, as amended by this section, is further amended by striking subsection (e) and redesignating subsection (f) as subsection (e).
Conforming amendment relating to reporting requirement under Small Business Act
Section 504(e) of title 5, United States Code, is amended to read as follows:
The Attorney General, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall report annually to the Congress on the amount of fees and other expenses awarded to individuals during the preceding fiscal year pursuant to this section and section 2412 of title 28. The report shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information which may aid the Congress in evaluating the scope and impact of such awards for individuals engaged in disputes with Federal agencies. Each agency shall provide the Attorney General with such information as is necessary for the Attorney General to comply with the requirements of this subsection.
A requirement that the President report annually on proceedings affecting small business concerns under this section and under section 2412 of title 28 is provided in section 303(b) of the Small Business Economic Policy Act of 1980 (15 U.S.C. 631b(b)).
.
Applicability
The provisions of this section and the amendments made by this section shall apply to any proceeding pending on, or commenced on or after, the effective date of this Act.
Definition of prevailing party in EAJA cases
Title 5
Section 504(b)(1) of title 5, United States Code, is amended by adding at the end the following:
prevailing party
includes,
in addition to a party who prevails through a judicial or administrative
judgment or order, a party whose pursuit of a nonfrivolous claim or defense was
a catalyst for a voluntary or unilateral change in position by the opposing
party that provides any significant part of the relief
sought.
.
Title 28
Section 2412 of title 28, United States Code, is amended—
in subsection (d)(2)(H), by inserting after
means
the following: , subject to subsection
(g),
; and
by adding at the end the following:
For the purposes of this section, the term prevailing party includes, in addition to a party who prevails through a judicial or administrative judgment or order, a party whose pursuit of a nonfrivolous claim or defense was a catalyst for a voluntary or unilateral change in position by the opposing party that provides any significant part of the relief sought.
.
Effective date
The provisions of this Act and the amendments made by this Act shall take effect 30 days after the date of the enactment of this Act.