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
the Contract Disputes Act of 1978;
(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 the Contract Disputes Act of 1978, 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.
|