H.R. 1996 (112th): Government Litigation Savings Act

112th Congress, 2011–2013. Text as of May 25, 2011 (Introduced).

Status & Summary | PDF | Source: GPO

I

112th CONGRESS

1st Session

H. R. 1996

IN THE HOUSE OF REPRESENTATIVES

May 25, 2011

(for herself, Mr. Bishop of Utah, Mr. Thompson of Pennsylvania, Mr. Simpson, Mr. Chaffetz, Mr. Young of Alaska, Mr. Tipton, Mr. Denham, Mr. Conaway, Mr. Rehberg, Mr. Coffman of Colorado, Mr. Franks of Arizona, Mr. Nunes, Mrs. Noem, Mr. Lamborn, Mr. Duncan of Tennessee, Mr. Pearce, Mr. Herger, and Mr. Flake) introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

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.

1.

Short title

This Act may be cited as the Government Litigation Savings Act.

2.

Modification of Equal Access to Justice provisions

(a)

Agency proceedings

(1)

Eligibility parties; attorney fees

Section 504 of title 5, United States Code, is amended—

(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,; and

(B)

in subsection (b)(1)—

(i)

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

(ii)

in subparagraph (B), by striking ; except that and all that follows through section 601.

(2)

Reduction or denial of awards

Section 504(a)(3) of title 5, United States Code, is amended in the first sentence—

(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;

(B)

by striking unduly and; and

(C)

by striking controversy. and inserting controversy or acted in an obdurate, dilatory, mendacious, or oppressive manner, or in bad faith..

(3)

Limitation on awards

Section 504(a) of title 5, United States Code, is amended by adding at the end the following:

(5)

A party may not receive an award of fees and other expenses under this section—

(A)

in excess of $200,000 in any single adversary adjudication, or

(B)

for more than 3 adversary adjudications initiated in the same calendar year,

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.

.

(4)

Reporting in agency adjudications

Section 504 of such title is amended—

(A)

in subsection (c)(1), by striking , United States Code; and

(B)

by striking subsection (e) and inserting the following:

(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:

(A)

The name of the party seeking the award of fees and other expenses.

(B)

The agency to which the application for the award was made.

(C)

The names of the administrative law judges in the adversary adjudication that is the subject of the application.

(D)

The disposition of the application, including any appeal of action taken on the application.

(E)

The amount of each award.

(F)

The hourly rates of expert witnesses stated in the application that was awarded.

(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.

(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.

(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.

.

(5)

Adjustment of attorney fees

Section 504 of such title is amended by adding at the end the following:

(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.

.

(b)

Court cases

(1)

Eligibility parties; attorney fees; limitation on awards

Section 2412(d) of title 28, United States Code, is amended—

(A)

in paragraph (1)—

(i)

in subparagraph (A)—

(I)

by striking in any civil action and all that follows through jurisdiction of that action and inserting in the civil action; and

(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,; and

(ii)

by adding at the end the following:

(E)

An individual or entity may not receive an award of fees and other expenses under this subsection in excess of—

(i)

$200,000 in any single civil action, or

(ii)

for more than 3 civil actions initiated in the same calendar year,

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

;

(B)

in paragraph (2)—

(i)

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

(ii)

in subparagraph (B), by striking ; except that and all that follows through section 601.

(2)

Reduction or denial of awards

Section 2412(d)(1)(C) of title 28, United States Code, is amended—

(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;

(B)

by striking unduly and; and

(C)

by striking controversy. and inserting controversy or acted in an obdurate, dilatory, mendacious, or oppressive manner, or in bad faith..

(3)

Adjustment of attorney fees

Section 2412(d) of title 28, United States Code, is amended by adding at the end the following:

(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.

.

(4)

Reporting

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

(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:

(i)

The name of the party seeking the award of fees and other expenses in the case.

(ii)

The district court hearing the case.

(iii)

The names of the presiding judges in the case.

(iv)

The agency involved in the case.

(v)

The disposition of the application for fees and other expenses, including any appeal of action taken on the application.

(vi)

The amount of each award.

(vii)

The hourly rates of expert witnesses stated in the application that was awarded.

(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.

(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.

(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.

(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—

(i)

any amounts paid from section 1304 of title 31 for a judgment in the case;

(ii)

the amount of the award of fees and other expenses; and

(iii)

the statute under which the plaintiff filed suit.

(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.

.

(c)

Effective date

(1)

Modifications to procedures

The amendments made by—

(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; and

(B)

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

(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.

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.