5 USC § 504 - Costs and fees of parties

(a)

(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. 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) A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section, and the amount sought, including an itemized statement from any attorney, agent, or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the agency was not substantially justified. When the United States appeals the underlying 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.

(3) The adjudicative officer of the agency may reduce the amount to be awarded, or deny an award, to the extent that the party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy. The decision of the adjudicative officer of the agency under this section shall be made a part of the record containing the final decision of the agency and shall include written findings and conclusions and the reason or basis therefor. The decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section.

(4) If, in an adversary adjudication arising from an agency action to enforce a party’s compliance with a statutory or regulatory requirement, the demand by the agency is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with such decision, under the facts and circumstances of the case, the adjudicative officer shall award to the party the fees and other expenses related to defending against the excessive demand, unless the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. Fees and expenses awarded under this paragraph shall be paid only as a consequence of appropriations provided in advance.

(b)

(1) For the purposes of this section—

(A) “fees and other expenses” includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party’s case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that

(i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and

(ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.);

(B) “party” means a party, as defined in section 551 (3) of this title, who is

(i) an individual whose net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated, 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 adversary adjudication was initiated, and which had not more than 500 employees at the time the adversary adjudication was initiated; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501 (c)(3)) 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 regardless of the net worth of such organization or cooperative association or for purposes of subsection (a)(4), a small entity as defined in section 601;

(C) “adversary adjudication” means

(i) an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license,

(ii) any appeal of a decision made pursuant to section 7103 of title 41 before an agency board of contract appeals as provided in section 7105 of title 41,

(iii) any hearing conducted under chapter 38 of title 31, and

(iv) the Religious Freedom Restoration Act of 1993;

(D) “adjudicative officer” means the deciding official, without regard to whether the official is designated as an administrative law judge, a hearing officer or examiner, or otherwise, who presided at the adversary adjudication;

(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 adjudication is based; except that fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably protracted the proceedings; and

(F) “demand” means the express demand of the agency which led to the adversary adjudication, but does not include a recitation by the agency of the maximum statutory penalty

(i) in the administrative complaint, or

(ii) elsewhere when accompanied by an express demand for a lesser amount.

(2) Except as otherwise provided in paragraph (1), the definitions provided in section 551 of this title apply to this section.

(c)

(1) After consultation with the Chairman of the Administrative Conference of the United States, each agency shall by rule establish uniform procedures for the submission and consideration of applications for an award of fees and other expenses. If a court reviews the underlying decision of the adversary adjudication, an award for fees and other expenses may be made only pursuant to section 2412 (d)(3) of title 28, United States Code.

(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.

(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.

(e) The Chairman of the Administrative Conference of the United States, 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 during the preceding fiscal year pursuant to this section. 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. Each agency shall provide the Chairman with such information as is necessary for the Chairman to comply with the requirements of this subsection.

(f) No award may be made under this section for costs, fees, or other expenses which may be awarded under section 7430 of the Internal Revenue Code of 1986.

Source

(Added Pub. L. 96–481, title II, § 203(a)(1), (c),Oct. 21, 1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99–80, §§ 1, 6,Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99–509, title VI, § 6103(c),Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99–514, § 2,Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–647, title VI, § 6239(b),Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103–141, § 4(b),Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104–121, title II, § 231,Mar. 29, 1996, 110 Stat. 862; Pub. L. 111–350, § 5(a)(1),Jan. 4, 2011, 124 Stat. 3841.)

References in Text

The Religious Freedom Restoration Act of 1993, referred to in subsec. (b)(1)(C)(iv), is Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to chapter 21B (§ 2000bb et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under section 2000bb of Title 42 and Tables.

Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (f), is classified to section 7430 of Title 26, Internal Revenue Code.

Amendments

2011—Subsec. (b)(1)(C)(ii). Pub. L. 111–350substituted “section 7103 of title 41” for “section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)” and “section 7105 of title 41” for “section 8 of that Act (41 U.S.C. 607)”.

1996—Subsec. (a)(4). Pub. L. 104–121, § 231(a), added par. (4).

Subsec. (b)(1)(A)(ii). Pub. L. 104–121, § 231(b)(1), substituted “$125” for “$75”.

Subsec. (b)(1)(B). Pub. L. 104–121, § 231(b)(2), inserted before semicolon at end “or for purposes of subsection (a)(4), a small entity as defined in section 601”.

Subsec. (b)(1)(F). Pub. L. 104–121, § 231(b)(3)–(5), added subpar. (F).

1993—Subsec. (b)(1)(C). Pub. L. 103–141added cl. (iv).

1988—Subsec. (f). Pub. L. 100–647added subsec. (f).

1986—Subsec. (b)(1)(B). Pub. L. 99–514substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.

Subsec. (b)(1)(C)(iii). Pub. L. 99–509added cl. (iii).

1985—Subsec. (a)(1). Pub. L. 99–80, § 1(a)(1), (2), struck out “as a party to the proceeding” after “the position of the agency”, and inserted “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.”

Subsec. (a)(2). Pub. L. 99–80, § 1(b), inserted “When the United States appeals the underlying 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.”

Subsec. (a)(3). Pub. L. 99–80, § 1(a)(3), inserted “The decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section.”

Subsec. (b)(1)(B). Pub. L. 99–80, § 1(c)(1), amended subpar. (B) generally. Prior to amendment, subpar. (B) read as follows: “ ‘party’ means a party, as defined in section 551 (3) of this title, which is an individual, partnership, corporation, association, or public or private organization other than an agency, but excludes (i) any individual whose net worth exceeded $1,000,000 at the time the adversary adjudication was initiated, and any sole owner of an unincorporated business, or any partnership, corporation, association, or organization whose net worth exceeded $5,000,000 at the time the adversary adjudication was initiated, except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501 (c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j (a)), may be a party regardless of the net worth of such organization or cooperative association, and (ii) any sole owner of an unincorporated business, or any partnership, corporation, association, or organization, having more than 500 employees at the time the adversary adjudication was initiated;”.

Subsec. (b)(1)(C). Pub. L. 99–80, § 1(c)(2), designated existing provisions of subpar. (C) as cl. (i) thereof by inserting “(i)” before “an adjudication under”, added cl. (ii), and struck out “and” after the semicolon at the end.

Subsec. (b)(1)(D), (E). Pub. L. 99–80, § 1(c)(3), substituted “; and” for the period at end of subpar. (D), and added subpar. (E).

Subsec. (c)(2). Pub. L. 99–80, § 1(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: “A party dissatisfied with the fee determination made under subsection (a) may petition for leave to appeal to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. If the court denies the petition for leave to appeal, no appeal may be taken from the denial. If the court grants the petition, it may modify the determination only if it finds that the failure to make an award, or the calculation of the amount of the award, was an abuse of discretion.”

Subsec. (d). Pub. L. 99–80, § 1(e), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as follows:

“(1) Fees and other expenses awarded under this section may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made pursuant to section 2414 of title 28, United States Code.

“(2) There is authorized to be appropriated to each agency for each of the fiscal years 1982, 1983, and 1984, such sums as may be necessary to pay fees and other expenses awarded under this section in such fiscal years.”

1980—Pub. L. 96–481, § 203(c), which provided for the repeal of this section effective Oct. 1, 1984, was itself repealed and this section was revived by section 6 ofPub. L. 99–80, set out as a note below.

Effective Date of 1996 Amendment

Section 233 ofPub. L. 104–121provided that: “The amendments made by sections 331 and 332 [probably means sections 231 and 232, amending this section and section 2412 of Title 28, Judiciary and Judicial Procedure] shall apply to civil actions and adversary adjudications commenced on or after the date of the enactment of this subtitle [Mar. 29, 1996].”

Effective Date of 1988 Amendment

Amendment by Pub. L. 100–647applicable to proceedings commencing after Nov. 10, 1988, see section 6239(d) ofPub. L. 100–647, set out as a note under section 7430 of Title 26, Internal Revenue Code.

Effective Date of 1986 Amendment

Amendment by Pub. L. 99–509effective Oct. 21, 1986, and applicable to any claim or statement made, presented or submitted on or after such date, see section 6104 ofPub. L. 99–509, set out as an Effective Date note under section 3801 of Title 31, Money and Finance.

Effective Date of 1985 Amendment

Section 7 ofPub. L. 99–80provided that:

“(a) In General.—Except as otherwise provided in this section, the amendments made by this Act [reviving and amending this section and section 2412 (d) of Title 28, Judiciary and Judicial Procedure, and amending and repealing provisions set out as notes under those sections] shall apply to cases pending on or commenced on or after the date of the enactment of this Act [Aug. 5, 1985].

“(b) Applicability 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 [Aug. 5, 1985], except that in any such case, the 30-day period referred to in section 504 (a)(2) of title 5, United States Code, or section 2412 (d)(1)(B) 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.

“(c) Applicability of Amendments to Prior Board of Contracts Appeals Cases.—Section 504 (b)(1)(C)(ii) of title 5, United States Code, as added by section 1(c)(2) of this Act, and section 2412 (d)(2)(E) of title 28, United States Code, as added by section 2(c)(2) 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.”

Effective Date

Section 208 of title II of Pub. L. 96–481, as amended by Pub. L. 99–80, § 5,Aug. 5, 1985, 99 Stat. 186, provided that: “This title and the amendments made by this title [see Short Title note below] shall take effect of [on] October 1, 1981, and shall apply to any adversary adjudication, as defined in section 504 (b)(1)(C) of title 5, United States Code, and any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after, such date. Awards may be made for fees and other expenses incurred before October 1, 1981, in any such adversary adjudication or civil action.”

Section 203(c) ofPub. L. 96–481which provided that effective Oct. 1, 1984, this section is repealed, except that the provisions of this section shall continue to apply through final disposition of any adversary adjudication initiated before the date of repeal, was itself repealed by Pub. L. 99–80, § 6(b)(1),Aug. 5, 1985, 99 Stat. 186.

Short Title

Section 201 of title II of Pub. L. 96–481provided that: “This title [enacting this section, amending section 634 of Title 15, Commerce and Trade, section 2412 of Title 28, Judiciary and Judicial Procedure, Rule 37 of the Federal Rules of Civil Procedure, set out in Title 28 Appendix, and section 1988 of Title 42, The Public Health and Welfare, and enacting provisions set out as notes under this section and section 2412 of Title 28] may be cited as the ‘Equal Access to Justice Act’.”

Termination of Reporting Requirements

For termination, effective May 15, 2000, of provisions in subsec. (e) of this section relating to annual report to Congress on the amount of fees and other expenses, see section 3003 ofPub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Finance, and page 153 of House Document No. 103–7.

Termination of Administrative Conference of United States

For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of this title.

Prohibition on Use of Energy and Water Development Appropriations To Pay Intervening Parties in Regulatory or Adjudicatory Proceedings

Pub. L. 102–377, title V, § 502,Oct. 2, 1992, 106 Stat. 1342, provided that: “None of the funds in this Act or subsequent Energy and Water Development Appropriations Acts shall be used to pay the expenses of, or otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts.”

Revival of Previously Repealed Provisions

Section 6 ofPub. L. 99–80provided that:

“(a) Revival of 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) ofsection 2412 of title 28, United States Code, shall be effective on or after the date of the enactment of this Act [Aug. 5, 1985] as if they had not been repealed by sections 203(c) and 204(c) of the Equal Access to Justice Act [Pub. L. 96–481].

“(b) Repeals.—

“(1) Section 203(c) of the Equal Access to Justice Act [which repealed this section] is hereby repealed.

“(2) Section 204(c) of the Equal Access to Justice Act [which repealed section 2412 (d) of title 28] is hereby repealed.”

Congressional Findings and Purposes

Section 202 of title II of Pub. L. 96–481provided that:

“(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative proceedings.

“(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situations.

“(c) It is the purpose of this title [see Short Title note above]—

“(1) to diminish the deterrent effect of seeking review of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States; and

“(2) to insure the applicability in actions by or against the United States of the common law and statutory exceptions to the ‘American rule’ respecting the award of attorney fees.”

Limitation on Payments

Section 207 of title II of Pub. L. 96–481, which provided that the payment of judgments, fees and other expenses in the same manner as the payment of final judgments as provided in this Act [probably should be “this title”, see Short Title note above] would be effective only to the extent and in such amounts as are provided in advance in appropriation Acts, was repealed by Pub. L. 99–80, § 4,Aug. 5, 1985, 99 Stat. 186.