Notes on 5 U.S.C. § 504 : US Code - Notes

Search Notes on 5 U.S.C. § 504 : US Code - Notes

(Added Pub. L. 96-481, title II, Sec. 203(a)(1), (c), Oct. 21,
1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99-80, Secs.
1, 6, Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99-509, title VI,
Sec. 6103(c), Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99-514, Sec.
2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100-647, title VI, Sec.
6239(b), Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103-141, Sec. 4(b),
Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104-121, title II, Sec. 231,
Mar. 29, 1996, 110 Stat. 862.)
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 (Sec. 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                            
1996 - Subsec. (a)(4). Pub. L. 104-121, Sec. 231(a), added par.
(4).
Subsec. (b)(1)(A)(ii). Pub. L. 104-121, Sec. 231(b)(1),
substituted "$125" for "$75".
Subsec. (b)(1)(B). Pub. L. 104-121, Sec. 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, Sec. 231(b)(3)-(5), added
subpar. (F).
1993 - Subsec. (b)(1)(C). Pub. L. 103-141 added cl. (iv).
1988 - Subsec. (f). Pub. L. 100-647 added subsec. (f).
1986 - Subsec. (b)(1)(B). Pub. L. 99-514 substituted "Internal
Revenue Code of 1986" for "Internal Revenue Code of 1954".
Subsec. (b)(1)(C)(iii). Pub. L. 99-509 added cl. (iii).
1985 - Subsec. (a)(1). Pub. L. 99-80, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 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, Sec. 1(c)(3), substituted
"; and" for the period at end of subpar. (D), and added subpar.
(E).
Subsec. (c)(2). Pub. L. 99-80, Sec. 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, Sec. 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, Sec. 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 of Pub. L. 99-80, set out as
a note below.
EFFECTIVE DATE OF 1996 AMENDMENT                 
Section 233 of Pub. L. 104-121 provided 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. 100-647 applicable to proceedings commencing
after Nov. 10, 1988, see section 6239(d) of Pub. 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. 99-509 effective Oct. 21, 1986, and
applicable to any claim or statement made, presented or submitted
on or after such date, see section 6104 of Pub. 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 of Pub. L. 99-80 provided 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, Sec. 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) of Pub. L. 96-481 which 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, Sec. 6(b)(1), Aug. 5, 1985,
99 Stat. 186.
SHORT TITLE                            
Section 201 of title II of Pub. L. 96-481 provided 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 of Pub. 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, Sec. 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 of Pub. L. 99-80 provided 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) of section 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. 96-481 provided 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,
Sec. 4, Aug. 5, 1985, 99 Stat. 186.