S 1061 ISCommentsClose CommentsPermalink

112th CONGRESSCommentsClose CommentsPermalink

1st SessionCommentsClose CommentsPermalink

S. 1061CommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

IN THE SENATE OF THE UNITED STATESCommentsClose CommentsPermalink

May 25, 2011CommentsClose CommentsPermalink

Mr. BARRASSO (for himself, Mr. CRAPO, Mr. ENZI, Mr. HELLER, Mr. LEE, Mr. RISCH, Mr. THUNE, and Mr. HATCH) introduced the following bill; which was read twice and referred to the Committee on the JudiciaryCommentsClose CommentsPermalink

A BILLCommentsClose CommentsPermalink

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.CommentsClose CommentsPermalink

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled,CommentsClose CommentsPermalink

SECTION 1. SHORT TITLE.

This Act may be cited as the ‘Government Litigation Savings Act’.CommentsClose CommentsPermalink

SEC. 2. MODIFICATION OF EQUAL ACCESS TO JUSTICE PROVISIONS.

(a) Agency Proceedings-CommentsClose CommentsPermalink





(1) ELIGIBILITY PARTIES; ATTORNEY FEES- Section 504 of title 5, United States Code, is amended--CommentsClose CommentsPermalink





(A) in subsection (a)(1), by inserting after ‘prevailing party’ the following: ‘who has a direct and personal monetary interest in the adjudication, including because of personal injury, property damage, or unpaid agency disbursement,’; andCommentsClose CommentsPermalink





(B) in subsection (b)(1)--CommentsClose CommentsPermalink





(i) in subparagraph (A)(ii), by striking ‘$125 per hour’ and all that follows through ‘a higher fee’ and inserting ‘$175 per hour’; andCommentsClose CommentsPermalink





(ii) in subparagraph (B), by striking ‘; except that’ and all that follows through ‘section 601’.CommentsClose CommentsPermalink





(2) REDUCTION OR DENIAL OF AWARDS- Section 504(a)(3) of title 5, United States Code, is amended in the first sentence--CommentsClose CommentsPermalink





(A) by striking ‘may reduce the amount to be awarded, or deny an award,’ and inserting ‘shall reduce the amount to be awarded, or deny an award, commensurate with pro bono hours and related fees and expenses, or’;CommentsClose CommentsPermalink





(B) by striking ‘unduly and’; andCommentsClose CommentsPermalink





(C) by striking ‘controversy.’ and inserting ‘controversy or acted in an obdurate, dilatory, mendacious, or oppressive manner, or in bad faith.’.CommentsClose CommentsPermalink





(3) LIMITATION ON AWARDS- Section 504(a) of title 5, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(5) A party may not receive an award of fees and other expenses under this section--CommentsClose CommentsPermalink





‘(A) in excess of $200,000 in any single adversary adjudication, orCommentsClose CommentsPermalink





‘(B) for more than 3 adversary adjudications initiated in the same calendar year,CommentsClose CommentsPermalink





unless the adjudicative officer of the agency determines that an award exceeding such limits is required to avoid severe and unjust harm to the prevailing party.’.CommentsClose CommentsPermalink





(4) REPORTING IN AGENCY ADJUDICATIONS- Section 504 of such title is amended--CommentsClose CommentsPermalink





(A) in subsection (c)(1), by striking ‘, United States Code’; andCommentsClose CommentsPermalink





(B) by striking subsection (e) and inserting the following:CommentsClose CommentsPermalink





‘(e)(1) The Chairman of the Administrative Conference of the United States shall issue an annual, online report to the Congress on the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this section. The report shall describe the number, nature, and amount of the awards, the nature of and claims involved in each controversy (including the law under which the controversy arose), and any other relevant information that may aid the Congress in evaluating the scope and impact of such awards. The report shall be made available to the public online, and contain a searchable database of the total awards given, and the total number of applications for the award of fees and other expenses that were filed, defended, and heard, and shall include, with respect to each such application, the following:CommentsClose CommentsPermalink





‘(A) The name of the party seeking the award of fees and other expenses.CommentsClose CommentsPermalink





‘(B) The agency to which the application for the award was made.CommentsClose CommentsPermalink





‘(C) The names of the administrative law judges in the adversary adjudication that is the subject of the application.CommentsClose CommentsPermalink





‘(D) The disposition of the application, including any appeal of action taken on the application.CommentsClose CommentsPermalink





‘(E) The amount of each award.CommentsClose CommentsPermalink





‘(F) The hourly rates of expert witnesses stated in the application that was awarded.CommentsClose CommentsPermalink





‘(G) With respect to each award of fees and other expenses, the basis for the finding that the position of the agency concerned was not substantially justified.CommentsClose CommentsPermalink





‘(2)(A) The report under paragraph (1) shall cover payments of fees and other expenses under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is otherwise subject to nondisclosure provisions.CommentsClose CommentsPermalink





‘(B) The disclosure of fees and other expenses required under subparagraph (A) does not affect any other information that is subject to nondisclosure provisions in the settlement agreement.’.CommentsClose CommentsPermalink





(5) ADJUSTMENT OF ATTORNEY FEES- Section 504 of such title is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(g) The Director of the Office of Management and Budget may adjust the maximum hourly fee set forth in subsection (b)(1)(A)(ii) for the fiscal year beginning October 1, 2012, and for each fiscal year thereafter, to reflect changes in the Consumer Price Index, as determined by the Secretary of Labor.’.CommentsClose CommentsPermalink





(b) Court Cases-CommentsClose CommentsPermalink





(1) ELIGIBILITY PARTIES; ATTORNEY FEES; LIMITATION ON AWARDS- Section 2412(d) of title 28, United States Code, is amended--CommentsClose CommentsPermalink





(A) in paragraph (1)--CommentsClose CommentsPermalink





(i) in subparagraph (A)--CommentsClose CommentsPermalink





(I) by striking ‘in any civil action’ and all that follows through ‘jurisdiction of that action’ and inserting ‘in the civil action’; andCommentsClose CommentsPermalink





(II) by striking ‘shall award to a prevailing party other than the United States’ and inserting the following: ‘, in any civil action (other than cases sounding in tort), including proceedings for judicial review of agency action, brought by or against the United States in any court having jurisdiction of that action, shall award to a prevailing party who has a direct and personal monetary interest in the civil action, including because of personal injury, property damage, or unpaid agency disbursement, other than the United States,’; andCommentsClose CommentsPermalink





(ii) by adding at the end the following:CommentsClose CommentsPermalink





‘(E) An individual or entity may not receive an award of fees and other expenses under this subsection in excess of--CommentsClose CommentsPermalink





‘(i) $200,000 in any single civil action, orCommentsClose CommentsPermalink





‘(ii) for more than 3 civil actions initiated in the same calendar year,CommentsClose CommentsPermalink





unless the presiding judge determines that an award exceeding such limits is required to avoid severe and unjust harm to the prevailing party.’; andCommentsClose CommentsPermalink





(B) in paragraph (2)--CommentsClose CommentsPermalink





(i) in subparagraph (A)(ii), by striking ‘$125 per hour’ and all that follows through ‘a higher fee’ and inserting ‘$175 per hour’; andCommentsClose CommentsPermalink





(ii) in subparagraph (B), by striking ‘; except that’ and all that follows through ‘section 601’.CommentsClose CommentsPermalink





(2) REDUCTION OR DENIAL OF AWARDS- Section 2412(d)(1)(C) of title 28, United States Code, is amended--CommentsClose CommentsPermalink





(A) by striking ‘, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award,’ and inserting ‘shall reduce the amount to be awarded under this subsection, or deny an award, commensurate with pro bono hours and related fees and expenses, or’;CommentsClose CommentsPermalink





(B) by striking ‘unduly and’; andCommentsClose CommentsPermalink





(C) by striking ‘controversy.’ and inserting ‘controversy or acted in an obdurate, dilatory, mendacious, or oppressive manner, or in bad faith.’.CommentsClose CommentsPermalink





(3) ADJUSTMENT OF ATTORNEY FEES- Section 2412(d) of title 28, United States Code, is amended by adding at the end the following:CommentsClose CommentsPermalink





‘(5) The Director of the Office of Management and Budget may adjust the maximum hourly fee set forth in paragraph (2)(A)(ii) for the fiscal year beginning October 1, 2012, and for each fiscal year thereafter, to reflect changes in the Consumer Price Index, as determined by the Secretary of Labor.’.CommentsClose CommentsPermalink





(4) REPORTING- Section 2412(d) of title 28, United States Code, is further amended by adding at the end the following:CommentsClose CommentsPermalink





‘(6)(A) The Chairman of the Administrative Conference of the United States shall issue an annual, online report to the Congress on the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this subsection. The report shall describe the number, nature, and amount of the awards, the nature of and claims involved in each controversy (including the law under which the controversy arose), and any other relevant information that may aid the Congress in evaluating the scope and impact of such awards. The report shall be made available to the public online and shall contain a searchable database of total awards given and the total number of cases filed, defended, or heard, and shall include with respect to each such case the following:CommentsClose CommentsPermalink





‘(i) The name of the party seeking the award of fees and other expenses in the case.CommentsClose CommentsPermalink





‘(ii) The district court hearing the case.CommentsClose CommentsPermalink





‘(iii) The names of the presiding judges in the case.CommentsClose CommentsPermalink





‘(iv) The agency involved in the case.CommentsClose CommentsPermalink





‘(v) The disposition of the application for fees and other expenses, including any appeal of action taken on the application.CommentsClose CommentsPermalink





‘(vi) The amount of each award.CommentsClose CommentsPermalink





‘(vii) The hourly rates of expert witnesses stated in the application that was awarded.CommentsClose CommentsPermalink





‘(viii) With respect to each award of fees and other expenses, the basis for the finding that the position of the agency concerned was not substantially justified.CommentsClose CommentsPermalink





‘(B)(i) The report under subparagraph (A) shall cover payments of fees and other expenses under this subsection that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is otherwise subject to nondisclosure provisions.CommentsClose CommentsPermalink





‘(ii) The disclosure of fees and other expenses required under clause (i) does not affect any other information that is subject to nondisclosure provisions in the settlement agreement.CommentsClose CommentsPermalink





‘(C) The Chairman of the Administrative Conference shall include in the annual report under subparagraph (A), for each case in which an award of fees and other expenses is included in the report--CommentsClose CommentsPermalink





‘(i) any amounts paid from section 1304 of title 31 for a judgment in the case;CommentsClose CommentsPermalink





‘(ii) the amount of the award of fees and other expenses; andCommentsClose CommentsPermalink





‘(iii) the statute under which the plaintiff filed suit.CommentsClose CommentsPermalink





‘(D) The Attorney General of the United States shall provide to the Chairman of the Administrative Conference of the United States such information as the Chairman requests to carry out this paragraph.’.CommentsClose CommentsPermalink





(c) Effective Date-CommentsClose CommentsPermalink





(1) MODIFICATIONS TO PROCEDURES- The amendments made by--CommentsClose CommentsPermalink





(A) paragraphs (1), (2), and (3) of subsection (a) shall apply with respect to adversary adjudications commenced on or after the date of the enactment of this Act; andCommentsClose CommentsPermalink





(B) paragraphs (1) and (2) of subsection (b) shall apply with respect to civil actions commenced on or after such date of enactment.CommentsClose CommentsPermalink





(2) REPORTING- The amendments made by paragraphs (4) and (5) of subsection (a) and by paragraphs (3) and (4) of subsection (b) shall take effect on the date of the enactment of this Act.CommentsClose CommentsPermalink

SEC. 3. GAO STUDY.

Not later than 30 days after the date of the enactment of this Act, the Comptroller General shall commence an audit of the implementation of the Equal Access to Justice Act for the years 1995 through the end of the calendar year in which this Act is enacted. The Comptroller General shall, not later than 1 year after the end of the calendar year in which this Act is enacted, complete such audit and submit to the Congress a report on the results of the audit.CommentsClose CommentsPermalink