Prohibits payment of fees and expenses awarded in such proceedings from appropriated funds of the Treasury's claims and judgements account.
Deletes provisions barring taxpayer recovery of costs, fees, or other expenses awarded under the Internal Revenue Code.
Specifies that: (1) at any time after the filing of an application for fees and other expenses an agency may offer a settlement of the claims made (and, if within ten days, the applicant accepts, either party may file the offer and notice of acceptance); (2) an offer not accepted shall be deemed withdrawn (but shall not preclude a subsequent offer); and (3) if any award finally obtained by the applicant is not more favorable than the offer, the applicant shall not be entitled to receive an award for attorney's fees or other expenses incurred in relation to the application for fees and expenses after the date of the offer.
Deletes requirements that a court find or a party allege that the position of the agency or of the United States was or was not substantially justified.
Requires the Administrative Conference of the United States and the Department of Justice to report to the Congress on fee awards paid by Federal districts and agencies.
[Congressional Bills 106th Congress]
[From the U.S. Government Publishing Office]
[S. 2907 Introduced in Senate (IS)]
106th CONGRESS
2d Session
S. 2907
To amend the provisions of titles 5 and 28, United States Code,
relating to equal access to justice, award of reasonable costs and
fees, taxpayers' recovery of costs, fees, and expenses, administrative
settlement offers, and for other purposes.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
July 21, 2000
Mr. Feingold (for himself and Mr. Hutchinson) 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, taxpayers' recovery of costs, fees, and expenses, administrative
settlement offers, and for other purposes.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. EQUAL ACCESS TO JUSTICE REFORM.
(a) Short Title.--This Act may be cited as the ``Equal Access to
Justice Reform Amendments of 2000''.
(b) Award of Costs and Fees.--
(1) Administrative proceedings.--Section 504(a)(2) of title
5, United States Code, is amended by inserting after ``(2)''
the following: ``At any time after the commencement of an
adversary adjudication covered by this section, the
adjudicative officer may ask a party to declare whether such
party intends to seek an award of fees and expenses against the
agency should such party prevail.''.
(2) Judicial proceedings.--Section 2412(d)(1)(B) of title
28, United States Code, is amended by inserting after ``(B)''
the following: ``At any time after the commencement of an
adversary adjudication covered by this section, the court may
ask a party to declare whether such party intends to seek an
award of fees and expenses against the agency should such party
prevail.''.
(c) Payment From Agency Appropriations.--
(1) Administrative proceedings.--Section 504(d) of title 5,
United States Code, is amended by adding at the end the
following: ``Fees and expenses awarded under this subsection
may not be paid from the claims and judgments account of the
Treasury from funds appropriated pursuant to section 1304 of
title 31.''.
(2) Judicial proceedings.--Section 2412(d)(4) of title 28,
United States Code, is amended by adding at the end the
following: ``Fees and expenses awarded under this subsection
may not be paid from the claims and judgments account of the
Treasury from funds appropriated pursuant to section 1304 of
title 31.''.
(d) Taxpayers' Recovery of Costs, Fees, and Expenses.--
(1) Administrative proceedings.--Section 504 of title 5,
United States Code, is amended by striking subsection (f).
(2) Judicial proceedings.--Section 2412 of title 28, United
States Code, is amended by striking subsection (e).
(e) Offers of Settlement.--
(1) Administrative proceedings.--Section 504 of title 5,
United States Code (as amended by subsection (d) of this
section), is amended by adding at the end the following:
``(f)(1) At any time after the filing of an application for fees
and other expenses under this section, an agency from which a fee award
is sought may serve upon the applicant an offer of settlement of the
claims made in the application. If within 10 days after service of the
offer the applicant serves written notice that the offer is accepted,
either party may then file the offer and notice of acceptance together
with proof of service thereof.
``(2) An offer not accepted 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
attorneys' fees or other expenses incurred in relation to the
application for fees and expenses after the date of the offer.''.
(2) Judicial proceedings.--Section 2412 of title 28, United
States Code (as amended by subsection (d) of this section), is
amended by inserting after subsection (d) the following:
``(e)(1) At any time after the filing of an application for fees
and other expenses under this section, an agency of the United States
from which a fee award is sought may serve upon the applicant an offer
of settlement of the claims made in the application. If within 10 days
after service of the offer the applicant serves written notice that the
offer is accepted, either party may then file the offer and notice of
acceptance together with proof of service thereof.
``(2) An offer not accepted 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
attorneys' fees or other expenses incurred in relation to the
application for fees and expenses after the date of the offer.''.
(f) Elimination of Substantial Justification Standard.--
(1) Administrative proceedings.--Section 504 of title 5,
United States Code, is amended--
(A) in subsection (a)(1), by striking all beginning
with ``, unless the adjudicative officer'' through
``expenses are sought''; and
(B) in subsection (a)(2), by striking ``The party
shall also allege that the position of the agency was
not substantially justified.''.
(2) Judicial proceedings.--Section 2412(d) of title 28,
United States Code, is amended--
(A) in paragraph (1)(A), by striking ``, unless the
court finds that the position of the United States was
substantially justified or that special circumstances
make an award unjust'';
(B) in paragraph (1)(B), by striking ``The party
shall also allege that the position of the United
States was not substantially justified. 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 failure to act by the agency upon which the civil
action is based) which is made in the civil action for
which fees and other expenses are sought.''; and
(C) in paragraph (3), by striking ``, unless the
court finds that during such adversary adjudication the
position of the United States was substantially
justified, or that special circumstances make an award
unjust''.
(g) Reports to Congress.--
(1) Administrative proceedings.--Not later than 180 days
after the date of the enactment of this Act, the Administrative
Conference of the United States shall submit a report to
Congress--
(A) providing an analysis of the variations in the
frequency of fee awards paid by specific Federal
agencies under the provisions of section 504 of title
5, United States Code; and
(B) including recommendations for extending the
application of such sections to other Federal agencies
and administrative proceedings.
(2) Judicial proceedings.--Not later than 180 days after
the date of the enactment of this Act, the Department of
Justice shall submit a report to Congress--
(A) providing an analysis of the variations in the
frequency of fee awards paid by specific Federal
districts under the provisions of section 2412 of title
28, United States Code; and
(B) including recommendations for extending the
application of such sections to other Federal judicial
proceedings.
(h) 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 and shall apply only to an administrative
complaint filed with a Federal agency or a civil action filed in a
United States court on or after such date.
<all>
Introduced in Senate
Sponsor introductory remarks on measure. (CR S7451-7452)
Read twice and referred to the Committee on the Judiciary. (text of measure as introduced: CR S7452)
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