28 U.S.C. § 2412 : US Code - Section 2412: Costs and fees

Search 28 U.S.C. § 2412 : US Code - Section 2412: Costs and fees

      (a)(1) Except as otherwise specifically provided by statute, a
    judgment for costs, as enumerated in section 1920 of this title,
    but not including the fees and expenses of attorneys, may be
    awarded to the prevailing party in any civil action brought by or
    against the United States or any agency or any official of the
    United States acting in his or her official capacity in any court
    having jurisdiction of such action. A judgment for costs when taxed
    against the United States shall, in an amount established by
    statute, court rule, or order, be limited to reimbursing in whole
    or in part the prevailing party for the costs incurred by such
    party in the litigation.
      (2) A judgment for costs, when awarded in favor of the United
    States in an action brought by the United States, may include an
    amount equal to the filing fee prescribed under section 1914(a) of
    this title. The preceding sentence shall not be construed as
    requiring the United States to pay any filing fee.
      (b) Unless expressly prohibited by statute, a court may award
    reasonable fees and expenses of attorneys, in addition to the costs
    which may be awarded pursuant to subsection (a), to the prevailing
    party in any civil action brought by or against the United States
    or any agency or any official of the United States acting in his or
    her official capacity in any court having jurisdiction of such
    action. The United States shall be liable for such fees and
    expenses to the same extent that any other party would be liable
    under the common law or under the terms of any statute which
    specifically provides for such an award.
      (c)(1) Any judgment against the United States or any agency and
    any official of the United States acting in his or her official
    capacity for costs pursuant to subsection (a) shall be paid as
    provided in sections 2414 and 2517 of this title and shall be in
    addition to any relief provided in the judgment.
      (2) Any judgment against the United States or any agency and any
    official of the United States acting in his or her official
    capacity for fees and expenses of attorneys pursuant to subsection
    (b) shall be paid as provided in sections 2414 and 2517 of this
    title, except that if the basis for the award is a finding that the
    United States acted in bad faith, then the award shall be paid by
    any agency found to have acted in bad faith and shall be in
    addition to any relief provided in the judgment.
      (d)(1)(A) Except as otherwise specifically provided by statute, a
    court 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 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,
    unless the court finds that the position of the United States was
    substantially justified or that special circumstances make an award
    unjust.
      (B) A party seeking an award of fees and other expenses shall,
    within thirty days of final judgment in the action, submit to the
    court an application for fees and other expenses which shows that
    the party is a prevailing party and is eligible to receive an award
    under this subsection, and the amount sought, including an itemized
    statement from any attorney 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 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.
      (C) The court, in its discretion, may reduce the amount to be
    awarded pursuant to this subsection, or deny an award, to the
    extent that the prevailing party during the course of the
    proceedings engaged in conduct which unduly and unreasonably
    protracted the final resolution of the matter in controversy.
      (D) If, in a civil action brought by the United States or a
    proceeding for judicial review of an adversary adjudication
    described in section 504(a)(4) of title 5, the demand by the United
    States is substantially in excess of the judgment finally obtained
    by the United States and is unreasonable when compared with such
    judgment, under the facts and circumstances of the case, the court
    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 subparagraph shall be paid only as a
    consequence of appropriations provided in advance.
      (2) For the purposes of this subsection - 
        (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 court
      to be necessary for the preparation of the party's case, and
      reasonable attorney fees (The amount of fees awarded under this
      subsection 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
      United States; and (ii) attorney fees shall not be awarded in
      excess of $125 per hour unless the court determines that an
      increase in the cost of living or a special factor, such as the
      limited availability of qualified attorneys for the proceedings
      involved, justifies a higher fee.);
        (B) "party" means (i) an individual whose net worth did not
      exceed $2,000,000 at the time the civil action was filed, 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 civil action was filed, and which had not more than
      500 employees at the time the civil action was filed; 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 (d)(1)(D), a small entity as defined in section 601 of
      title 5;
        (C) "United States" includes any agency and any official of the
      United States acting in his or her official capacity;
        (D) "position of the United States" means, in addition to the
      position taken by the United States in the civil action, the
      action or failure to act by the agency upon which the civil
      action is based; except that fees and expenses may not be awarded
      to a party for any portion of the litigation in which the party
      has unreasonably protracted the proceedings;
        (E) "civil action brought by or against the United States"
      includes an appeal by a party, other than the United States, from
      a decision of a contracting officer rendered pursuant to a
      disputes clause in a contract with the Government or pursuant to
      chapter 71 of title 41;
        (F) "court" includes the United States Court of Federal Claims
      and the United States Court of Appeals for Veterans Claims;
        (G) "final judgment" means a judgment that is final and not
      appealable, and includes an order of settlement;
        (H) "prevailing party", in the case of eminent domain
      proceedings, means a party who obtains a final judgment (other
      than by settlement), exclusive of interest, the amount of which
      is at least as close to the highest valuation of the property
      involved that is attested to at trial on behalf of the property
      owner as it is to the highest valuation of the property involved
      that is attested to at trial on behalf of the Government; and
        (I) "demand" means the express demand of the United States
      which led to the adversary adjudication, but shall not include a
      recitation of the maximum statutory penalty (i) in the complaint,
      or (ii) elsewhere when accompanied by an express demand for a
      lesser amount.

      (3) In awarding fees and other expenses under this subsection to
    a prevailing party in any action for judicial review of an
    adversary adjudication, as defined in subsection (b)(1)(C) of
    section 504 of title 5, United States Code, or an adversary
    adjudication subject to chapter 71 of title 41, the court shall
    include in that award fees and other expenses to the same extent
    authorized in subsection (a) of such section, 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.
      (4) Fees and other expenses awarded under this subsection to a
    party 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 provisions of this section shall not apply to any costs,
    fees, and other expenses in connection with any proceeding to which
    section 7430 of the Internal Revenue Code of 1986 applies
    (determined without regard to subsections (b) and (f) of such
    section). Nothing in the preceding sentence shall prevent the
    awarding under subsection (a) of section 2412 of title 28, United
    States Code, of costs enumerated in section 1920 of such title (as
    in effect on October 1, 1981).
      (f) If the United States appeals an award of costs or fees and
    other expenses made against the United States under this section
    and the award is affirmed in whole or in part, interest shall be
    paid on the amount of the award as affirmed. Such interest shall be
    computed at the rate determined under section 1961(a) of this
    title, and shall run from the date of the award through the day
    before the date of the mandate of affirmance.