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

112th Congress, 2011–2013. Text as of May 25, 2011 (Reported by House Committee).

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Union Calendar No. 429

112th CONGRESS

2d Session

H. R. 1996

[Report No. 112–594]

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

July 11, 2012

Additional sponsors: Mr. Walden, Mr. Ribble, Mr. Stutzman, Mr. Marchant, Mr. Peterson, Mr. Costa, Mr. Cardoza, Mr. Ross of Florida, Mr. Sam Johnson of Texas, Mr. Smith of Nebraska, Mr. Labrador, Mrs. Hartzler, Ms. Foxx, Mr. Rohrabacher, Mr. Gosar, Mr. Latta, Mr. Luetkemeyer, Mr. McKeon, Mr. Paul, Mr. Jones, Mr. Benishek, Mrs. Adams, Mr. Duffy, Mr. Thornberry, Mr. Calvert, Mr. Gibbs, Mr. Miller of Florida, Mr. Hastings of Washington, Mr. Coble, Mr. Quayle, Mr. Hultgren, Mr. Brady of Texas, Mr. Flores, Mr. Gohmert, Mr. Fleming, Mr. Canseco, Mr. Graves of Georgia, Mr. Neugebauer, Mr. Nunnelee, Mr. Crawford, Mr. McClintock, Mr. Cravaack, Mrs. Myrick, Mr. Duncan of South Carolina, Mrs. Capito, Mr. Berg, Mr. Gardner, and Mr. Westmoreland


July 11, 2012

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed

Strike out all after the enacting clause and insert the part printed in italic

For text of introduced bill, see copy of bill as introduced on May 25, 2011

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

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

(1)

in subsection (a)—

(A)

in paragraph (1)——

(i)

by inserting after the first sentence the following: Fees and other expenses may be awarded under this subsection only to a prevailing party who has a direct and personal interest in the adversary adjudication because of medical costs, property damage, denial of benefits, unpaid disbursement, fees and other expenses incurred in defense of the adjudication, interest in a policy concerning such medical costs, property damage, denial of benefits, unpaid disbursement, or fees and other expenses, or otherwise.; and

(ii)

by adding at the end the following: The agency conducting the adversary adjudication shall make any party against whom the adjudication is brought, at the time the adjudication is commenced, aware of the provisions of this section.; and

(B)

in paragraph (3), in the first sentence—

(i)

by striking may reduce and inserting shall reduce; and

(ii)

by striking unduly and unreasonably and inserting unduly or unreasonably;

(2)

in subsection (b)(1)—

(A)

in subparagraph (A)(ii), by striking $125 per hour and all that follows through the end and inserting $200 per hour.);; and

(B)

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

except that—

(I)

the net worth of a party (other than an individual or a unit of local government) shall include the net worth of any parent entity or subsidiary of that party; and

(II)

for purposes of subclause (I)—

(aa)

a parent entity of a party is an entity that owns or controls the equity or other evidences of ownership in that party; and

(bb)

a subsidiary of a party is an entity the equity or other evidences of ownership in which are owned or controlled by that party;

;

(3)

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

(4)

by striking subsections (e) and (f) and inserting the following:

(e)
(1)

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 that may aid the Congress in evaluating the scope and impact of such awards. Each agency shall provide the Chairman in a timely manner all information necessary for the Chairman to comply with the requirements of this subsection. The report shall be made available to the public online.

(2)
(A)

The report required by paragraph (1) shall account for all payments of fees and other expenses awarded under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to nondisclosure provisions, except that any version of the report made available to the public may not reveal any information the disclosure of which is contrary to the national security of the United States.

(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.

(f)

The Chairman of the Administrative Conference shall create and maintain online a searchable database containing the following information with respect to each award of fees and other expenses under this section:

(1)

The name of each party to whom the award was made.

(2)

The name of each counsel of record representing each party to whom the award was made.

(3)

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

(4)

The name of each counsel of record representing the agency to which the application for the award was made.

(5)

The name of each administrative law judge, and the name of any other agency employee serving in an adjudicative role, in the adversary adjudication that is the subject of the application for the award.

(6)

The amount of the award.

(7)

The names and hourly rates of each expert witness for whose services the award was made under the application.

(8)

The basis for the finding that the position of the agency concerned was not substantially justified.

(g)

The online searchable database described in subsection (f) may not reveal any information the disclosure of which is prohibited by law or court order, or the disclosure of which is contrary to the national security of the United States.

(h)

The Director of the Office of Management and Budget shall 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

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

(1)

by amending paragraph (1)(A) to read as follows:

(A)

Except as otherwise specifically provided by statute, a court, 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 (other than the United States) fees and other expenses, in addition to any costs awarded pursuant to subsection (a), incurred by that party in the civil action, unless the court finds that the position of the United States was substantially justified or that special circumstances make an award unjust. Fees and other expenses may be awarded under this paragraph only to a prevailing party who has a direct and personal interest in the civil action because of medical costs, property damage, denial of benefits, unpaid disbursement, fees and other expenses incurred in defense of the civil action, interest in a policy concerning such medical costs, property damage, denial of benefits, unpaid disbursement, or fees and other expenses, or otherwise.

;

(2)

in paragraph (1)(C)—

(A)

by striking court, in its discretion, may and inserting court shall; and

(B)

by striking unduly and unreasonably and inserting unduly or unreasonably;

(3)

in paragraph (2)—

(A)

in subparagraph (A)(ii), by striking $125 and all that follows through the end and inserting $200 per hour.);;

(B)

in subparagraph (B)(ii), by striking ; except that and all that follows through section 601 of title 5; and inserting

except that—

(I)

the net worth of a party (other than an individual or a unit of local government) shall include the net worth of any parent entity or subsidiary of that party; and

(II)

for purposes of subclause (I)—

(aa)

a parent entity of a party is an entity that owns or controls the equity or other evidences of ownership in that party; and

(bb)

a subsidiary of a party is an entity the equity or other evidences of ownership in which are owned or controlled by that party;

; and

(4)

by adding at the end the following:

(5)

The Director of the Office of Management and Budget shall 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.

(6)
(A)

The Chairman of the Administrative Conference of the United States shall report annually 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 claims involved in each 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 paragraph. The report shall be made available to the public online.

(B)
(i)

The report required by subparagraph (A) shall account for all payments of fees and other expenses awarded under this subsection that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to nondisclosure provisions, except that any version of the report made available to the public may not reveal any information the disclosure of which is contrary to the national security of the United States.

(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 and clearly identify 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.

(7)

The Chairman of the Administrative Conference shall create and maintain online a searchable database containing the following information with respect to each award of fees and other expenses under this subsection:

(A)

The name of each party to whom the award was made.

(B)

The name of each counsel of record representing each party to whom the award was made.

(C)

The agency involved in the case.

(D)

The name of each counsel of record representing the agency involved in the case.

(E)

The name of each judge in the case, and the court in which the case was heard.

(F)

The amount of the award.

(G)

The names and hourly rates of each expert witness for whose services the award was made.

(H)

The basis for the finding that the position of the agency concerned was not substantially justified.

(8)

The online searchable database described in paragraph (7) may not reveal any information the disclosure of which is prohibited by law or court order, or the disclosure of which is contrary to the national security of the United States.

(9)

The Attorney General of the United States shall provide to the Chairman of the Administrative Conference of the United States in a timely manner all information necessary for the Chairman to carry out the Chairman’s responsibilities under this subsection.

.

(c)

Clerical amendment

Section 2412(e) of title 28, United States Code, is amended by striking of section 2412 of title 28, United States Code, and inserting of this section.

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, to the extent practical, 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.

July 11, 2012

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union, and ordered to be printed