Equal Access to Justice Act
| Author | Environmental Law Reporter |
| Pages | 33-36 |
Equal Access to Justice Act
§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 adminis-
trative 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 adjudica-
tion, 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 appear-
ing 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 deci-
sion is rendered by the court on the appeal or until the underlying
merits of the case have been finally determined pursuant to the ap-
peal.
(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 contro-
versy. 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 con-
clusions and the reason or basis therefor. The decision of the agency
on the application for fees and other expenses shall be the final ad-
ministrative 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 re-
quirement, 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 de-
mand, 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 ex-
penses 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 fac-
tor, 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 partner-
ship, corporation, association, unit of local government, or orga-
nization, 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 coopera-
tive association or for purposes of subsection (a)(4), a small en-
tity 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 adjudica-
tion for the purpose of establishing or fixing a rate or for the pur-
pose of granting or renewing a license, (ii) any appeal of a deci-
sion made pursuant to section 6 of the Contract Disputes Act of
1978 (41 U.S.C. 605) before an agency board of contract appeals
as provided in section 8 of that Act (41 U.S.C. 607), (iii) any
hearing conducted under chapter 38 of title 31, and (iv) the Reli-
gious 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 pre-
sided 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 adjudica-
tion 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 recita-
tion by the agency of the maximum statutory penalty (i) in the ad-
ministrative 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 applica-
tions for an award of fees and other expenses. If a court reviews the un-
derlying decision of the adversary adjudication, an award for fees and
other expenses may be made only pursuant to section 2412(d)(3) of ti-
tle 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 fac-
tual record made before the agency. The court may modify the de-
termination of fees and other expenses only if the court finds that
the failure to make an award of fees and other expenses, or the cal-
culation of the amount of the award, was unsupported by substan-
tial 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.
33
ADMINISTRATIVEPROCEDURE 5 U.S.C. §504
To continue reading
Request your trial