26 ELR 10569 | Environmental Law Reporter | copyright © 1996 | All rights reserved

Fee Simple? The 1996 Equal Access to Justice Act Amendments

James M. McElfish Jr.

Editors' Summary: For over 15 years, the Equal Access to Justice Act (EAJA) has required the federal government to pay private parties' attorneys fees and other litigation expenses when they prevail against the government in judicial or administrative adjudicatory actions. In 1996, Congress added new provisions to the EAJA, for the first time requiring awards of fees and expenses to certain nonprevailing "small entities" if the demand by the agency is substantially in excess of, and is unreasonable when compared with, the decision of the adjudicative officer or court. The author first examines the development of the EAJA, culminating with the 1996 amendments. He analyzes how the amendments will affect small businesses, organizations, and governmental units, and describes the amendments' unusual legislative history. The author next discusses several issues that the amendments raise, including the definition of "small entity," the standard for an award of fees and expenses, the kinds of administrative adjudications covered, and the amount of recovery available. Finally, the author examines how the amendments are likely to affect private litigants' and agencies' litigation strategies.

Mr. McElfish is a senior attorney at the Environmental Law Institute (ELI). Jon Zeidler, a law student at Georgetown University and law clerk at ELI, assisted in the research for this Article.

[26 ELR 10569]

Earlier this year, Congress enacted amendments to the Equal Access to Justice Act (EAJA),1 expanding the circumstances under which the federal government must pay the attorneys fees and expenses of private litigants. The 1996 EAJA amendments2 are part of Title II of the Contract With America Advancement Act, signed by President Clinton on March 29, 1996.3 They apply to civil actions and adversary administrative adjudications commenced on or after March 29, 1996.4 Title II is known as the Small Business Regulatory Enforcement Act (SBREFA) and contains a number of provisions benefitting small businesses.5

Although the EAJA amendments were hailed by their sponsors as a boon to small businesses and other small entities, they are far from simple. They present complex issues of interpretation for the courts and administrative agency adjudicators, significantly expand the universe of potential fee claimants, and offer agencies a number of opportunities to adopt strategies to avoid payments.

Background

The EAJA

The EAJA was enacted in 1980 and reenacted with amendments in 1985.6 The EAJA requires the federal government to pay private parties' attorneys fees and other litigation expenses in administrative or civil cases when the private party prevails against the government and the administrative adjudicatory officer or the court finds that the position of [26 ELR 10570] the government was not "substantially justified."7 Recovery of fees and expenses under the EAJA is limited to individuals whose net worth does not exceed $ 2 million and to businesses, associations, organizations, or units of local government whose net worth does not exceed $ 7 million and who have fewer than 500 employees.8 The EAJA thus provides an incentive for the federal government to take special care in its actions and litigation positions affecting individuals and small entities with limited resources; and it defrays the litigation costs of such individuals and entities in cases where the government's position was not justified.

Before the 1996 amendments, the EAJA did not authorize payment of private parties' fees and expenses in cases when the government prevailed. Although the courts have made it clear that a private party need not prevail on all issues in order to be entitled to an award of fees and expenses, courts take a careful look at the array of claims and the significance of the result achieved in awarding fees to a partially prevailing party.9 A party must prevail on a substantial issue and achieve at least some of the substantive relief it sought in order to be considered eligible for a fee award under the prevailing party standard.

There are no reported cases of successful EAJA claims by defendants for fees where the government sought an injunction or penalties and wasawarded a smaller penalty or less comprehensive injunction than it sought. However, in 1996, the U.S. Court of Appeals for the Ninth Circuit upheld an award of costs (other than attorneys fees) in such a case where the penalty recovered was about 7 percent of the government's demand.10 The claim was not under § 2412(d) of the EAJA, but under § 2412(a), a related provision that also required the court to find that the defendant company was a "prevailing party."11 The company did not seek attorneys fees directly under EAJA § 2412(d), probably because it could not meet the net worth or employee limitations; or possibly because the government could show that its position was "substantially justified." In a case predating the 1980 EAJA, the Eighth Circuit denied "prevailing party" status to a company seeking its litigation costs under § 2412 (1970) where Occupational Safety and Health Act penalties were reduced from $ 35,442 to $ 620.12

In fact, it may be quite difficult for a party to show that it has "prevailed," or to overcome the government's showing that its position was "substantially justified," where the party has been adjudged liable, but simply for a lesser penalty or remedy than that sought by the government.

The 1996 EAJA Amendments

In the new legislation, Congress for the first time required awards of fees and expenses to certain nonprevailing parties engaged in administrative adjudications or civil litigation with the federal government. Specifically, while retaining the existing EAJA provisions for prevailing parties, Congress added new subsections to both 5 U.S.C. § 504 (governing the award of fees and expenses in administrative adjudications) and 28 U.S.C. § 2412 (governing the award of fees and expenses in federal court). The stated intent of the new provisions is "to make Federal regulatorsmore accountable for their enforcement actions by providing small entities with a meaningful opportunity for redress of excessive enforcement activities."13

The new § 504(a)(4) provides that in an "adversary adjudication arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement" a "small entity" shall be awarded its attorneys fees and other expenses if "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."14 New § 2412(d)(1)(D) provides that 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," discussed above, a "small entity" shall be awarded its attorneys fees and other expenses if "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."15

"Demand" is defined in both sections as "the express demand" of the agency or of the United States "which led to the adversary adjudication," but expressly does 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."16 Exceptions to the [26 ELR 10571] award of fees and expenses are provided if "the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust."17 The amendments do not limit recovery to entities meeting the same net worth and employee tests contained in the existing EAJA, but instead authorize recovery under the new provisions by any "small entity as defined in section 601 of title 5."18 This reference incorporates the definition found in the Regulatory Flexibility Act of 1980, a law which prescribes how governmental agencies are to evaluate the impact of proposed regulations on small businesses and other small organizations.19 Section 601(6) defines "small entity" as having "the same meaning" as "small business," "small organization" and "small governmental jurisdiction" as defined in the same section.

Small Business. Section 601(3) does not itself define "small business," but in turn incorporates yet another definition from yet another statute. It provides that "small business" has

the same meaning as the term "small business concern" under section 3 of the Small Business Act, unless an agency, after consultation with the Office of Advocacy of the Small Business Administration and after opportunity for public comment, establishes one or more definitions of such term which are appropriate to the activities of the agency and publishes such definitions in the Federal Register.20

Section 3 of the Small Business Act provides that a small business concern is one that is "independently owned and operated and is not dominant in its field of operations" and authorizes the Small Business Administration (SBA) to provide "detailed definitions or standards" using "number of employees, dollar volume of business, net worth, net income, a combination thereof, or other appropriate factors."21 The SBA has promulgated these regulations at 13 C.F.R. Part 121, classifying businesses by Standard Industrial Classification codes and using either number of employees or annual receipts, or in a few cases, both, to determine what is a "small business concern" in each category. Small businesses can have as many as 1,500 employees and as much as $ 25 million in annual receipts, depending on the industry type.

Small Organization. Section 601(4) of the Regulatory Flexibility Act defines "small organization" as:

any not-for-profit enterprise which is independently owned and operated and is not dominant in its field, unless an agency establishes, after opportunity for public comment, one or more definitions of such term which are appropriate to the activities of the agency and publishes such definition(s) in the Federal Register.22

Small Governmental Jurisdiction. Section 601(5) defines "small governmental jurisdiction" as units of local government, special districts, or school districts, with a population under 50,000. It also allows an agency to establish, after opportunity for public comment and publication in the Federal Register, "one or more definitions of such term which are appropriate to the activities of the agency and which are based on such factors as location in rural or sparsely populated areas or limited revenues due to the population of such jurisdiction."23

Apart from the creation of a new basis for recovery of fees and expenses, the other noteworthy amendment to the EAJA was the increase of the attorneys fee cap from $ 75 per hour, where it was set in 1980, to $ 125 per hour. This increase is not limited to the new sections of the EAJA, but applies to the entire statute.24 The increase, while meaningful, is not as significant as it might first appear. The EAJA has always allowed courts and adjudicative officers to award fee increases above the cap based on "the cost of living."25 Most courts have adopted an approach based on adjustments using the consumer price index for the years in which the fees were incurred. Recent reported cases indicate that the adjusted figure for $ 75 (in 1980) is approaching $ 125 in any event.26 However, not all courts have seen fit to award the cost of living increase, or computed the adjustment in the same way.27 Thus, the congressional enactment of a new fee cap figure should simplify matters, at least for the near term.

Legislative History

Although the amendments grew out of the ongoing congressional discussion on regulatory reform, they emerged very rapidly. In fact, there was no formal consideration of most of the provisions by any congressional committee, and no committee reports were ever prepared. Floor debate was minimal and little of it focused on the EAJA portions of the SBREFA. Nevertheless, there were changes in the EAJA-related language during the evolution of the bill that may affect the way in which courts and agencies interpret it.

The bill originated in the Senate. On March 15, 1996, Sens. Christopher Bond (R-Mo.) and Dale Bumpers (D-Ark.), the chair and ranking minority member of the Committee on Small Business, presented a bipartisan regulatory reform bill in the form of a "managers' substitute" for S. 942, a bill that had been marked up by the Committee two weeks earlier.28 The EAJA provisions of the managers' [26 ELR 10572] substitute, with some modifications, became the basis for the final legislation.

Before the manager's substitute, S. 942 as marked up by the Committee on Small Business initially took the approach of authorizing fee awards to both prevailing and nonprevailing parties by simply redefining "prevailing party" to include:

a small entity with respect to claims in an adversary adjudication brought by an agency (1) that the small entity has raised a successful defense to, or (2) with respect to which the decision of the adjudicative officer is substantially less than that sought by the agency in the adversary adjudication, provided that such small entity has not committed a willful violation of the law or otherwise acted in bad faith ….

and by providing that:

the position of the agency, including any citation, assessment, fine, penalty or demand for settlement sought by the agency, is "substantially justified" only if the agency demonstrates that such position does not substantially exceed the decision of the adjudicative officer in the adversary adjudication, and the position of the agency is consistent with agency policy.29

The managers' substitute, unveiled March 15, 1996,30 took a different approach. Gone was any attempt to redefine "prevailing party" and "substantially justified." Instead, the existing provisions for recovery by prevailing parties under the EAJA were left intact, while an entirely new cause of action was added. The substitute bill provided that in "an adversary adjudication brought by an agency" or a "civil action brought by the United States," the agency or court shall award attorneys fees and other expenses "to a party or a small entity, as defined in [5 U.S.C.] section 601" if the decision of the adjudicative officer or judgment finally obtained by the United States is "disproportionately less favorable to "the agency or United States than an "express demand" by the agency or the United States.31

The bill did not define "express demand" other than to state that the term did not include a "recitation of the maximum statutory penalty (A) in the complaint or (B) elsewhere when accompanied by an express demand for a lesser amount."32 The bill created exceptions to the payment requirement for cases in which the party "has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award of attorney's fees unjust."33

Because the Committee on Small Business had not prepared a report on the managers' substitute (or on the original S. 942, for that matter), Senator Bond inserted into the Congressional Record a "statement of the legislative history" prepared by his staff and Senator Bumpers' staff "on behalf of the Committee."34 The bill, which contained a broad range of small business regulatory reform provisions, passed 100-0 on March 19.

On March 28, the Senate-passed S. 942 was incorporated with some changes into H.R. 3136, a bill pending on the floor of the House to raise the debt limit, to give the President a line item veto, to provide for 60-day congressional review and override of agency rulemaking, and to raise the earnings limit on social security recipients.35 The House version of the EAJA provisions became the final language of the law. That bill was passed by the House and then by the Senate on March 28 and was signed by the President on March 29.36 Because there was no committee consideration of the bill in the House or in the Senate and no conference report on the final legislation, Senator Bond again inserted a "statement" of "legislative history" into the Congressional Record on March 29, and Rep. Henry Hyde (R-Ill.) inserted a similar, but revised and expanded, statement on April 19.37

The SBREFA has several differences with the EAJA provisions of S. 942. First, it provides fee awards for administrative actions only "in an adversary adjudication arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement" rather than for "any adjudication brought by an agency," as in S. 942. Second, the law provides fees in civil actions not only for any civil action brought by the United States, but also for proceedings "for judicial review of an agency adjudication described in section 504(a)(4) of title 5"—judicial review of administrative adjudicatory actions "to enforce a party's compliance with a statutory or regulatory requirement." Third, the test for fees and expenses was made two-fold: [26 ELR 10573] that the demand must have been "substantially in excess" of the final decision and that it also have been "unreasonable when compared with such decision, under the facts and circumstances of the case." Fourth, the award is only for "the fees and other expenses related to defending against the excessive demand" rather than all fees and expenses. Finally, the law limits payment of the fees and expenses to "appropriations provided in advance," a provision intended to ensure that the bill not violate the requirements of the Budget Act; thus, payments must come out of existing agency appropriations for discretionary functions.38

Issues Created by the Legislation

What Is a "Small Entity"?

Under the EAJA as it existed prior to the 1996 amendments and in its provisions unaffected by those amendments, a prevailing "party" must be an individual with a net worth not exceeding $ 2 million; or a small business, organization, or unit of local government with a net worth not exceeding $ 7 million and with no more than 500 employees; or a nonprofit charitable organization or a agricultural cooperative with not more than 500 employees. But the 1996 EAJA amendments allow a wider, and somewhat unpredictable, array of nonprevailing claimants to obtain fees and expenses. The amendments incorporate the definition of "small entity" from the Regulatory Flexibility Act. That Act in turn incorporates definitions from the Small Business Act.39 Both Acts ultimately rely on definitions established by regulation rather than statute, and both specifically allow individual agencies to make exceptions by adopting their own definitions.40

There was no discussion on the reason for this approach—of legislation by incorporation—either in floor statements or in the "statements of legislative history" inserted by the sponsors. The summary statement filed by Representative Hyde nearly three weeks after the legislation was enacted says that the definition was adopted "to ensure consistency of coverage" between the EAJA amendments and the Small Business Act.41 But this is no explanation at all, because these laws serve very different purposes. The "small entity" terminology was probably included because much of the rest of the SBREFA dealt with enforcement of the Regulatory Flexibility Act. Congress' use of this borrowed term, however, vastly expands the universe of potential fee claimants in all three types of "small entities": businesses, organizations, and governmental jurisdictions.

Small businesses covered by the SBA definitions as incorporated by the EAJA amendments can be very large indeed in comparison with standard EAJA "prevailing parties." For example, mining companies with 500 employees are "small business concerns" regardless of their net worth or annual receipts. Likewise, explosives manufacturers and electrometallurgical operations with 750 employees, computer manufacturers with 1,000 employees, and petroleum refiners with 1,500 employees qualify. Some businesses with annual receipts of up to $ 25 million qualify regardless of the number of their employees. Financial institutions with up to $ 100 million in assets qualify.42 Agencies are allowed to deviate from the SBA standards, but only after first proposing their alternative standard for SBA review and then publishing it for public comment in the Federal Register; and the agencies, like the SBA, must base their standards on businesses' average annual revenues and number of employees.43

Small organizations (defined as "not-for-profit" organizations) that are allowed to recover their fees and expenses under the 1996 EAJA amendments can also be much larger than the standard EAJA prevailing parties. Under the EAJA provisions for prevailing parties, all not-for-profits were subject to the 500-employee limit, and many were also subject to the $ 7 million net worth test.44 The employee limitation (as well as the net worth limitation for non-501(c)(3) organizations) has, until now, prevented tens of thousands of large not-for-profit organizations such as universities, nonprofit hospitals, mutual insurance companies, and major not-for-profit research institutes and government defense contractors from taking advantage of the EAJA.45 The 1996 amendments, however, allow any not-for-profit enterprise that is not "dominant in its field" to claim fees and expenses under the new nonprevailing party provisions.46

This means that for the first time, some very large organizations can have their fees paid regardless of their size or employment status. This change is significant because there are well over one million tax-exempt organizations in the United States, not counting churches and related religious organizations,47 and many not-for-profit organizations that have not obtained—or sought—federal tax-exempt [26 ELR 10574] status.48 In legislating by incorporating definitions from other statutes, Congress did not discuss this expansion of groups entitled to fees or expenses at all. The consequences could be significant.

Because of the new definition, political action committees, labor unions, trade associations, mutual insurance companies, universities, not-for-profit hospitals, Blue Cross/Blue Shield, and many other not-for-profit organizations including major business enterprises such as Comsat, Battelle, and the substantial not-for-profit defense establishment, are among the beneficiaries of the 1996 EAJA amendments. For example, trade associations were usually not entitled to fees under the prior EAJA, because their members' net worth and employment are usually attributed to them.49 The new provision, however, allows any non-dominant not-for-profit entity to recover its fees and expenses, regardless of its size. Other kinds of associations will also benefit, including associations that are subject to government regulation. The recent Securities and Exchange Commission enforcement action against the National Association of Securities Dealers Automated Quotations (or NASDAQ), for example, implicates this provision; likewise, governmental actions such as those taken in recent years to restructure the Teamsters Union could expose the government to fee claims if the government is less successful than its demands. Federal Election Commission actions may also be far more difficult because of the possibility that litigants may claim entitlements to fees. In the environmental field, actions against hospitals for unlawful disposal of low-level radioactive waste, actions against university laboratories or power plants for unlawful discharges and emissions, and actions against not-for-profit organizations for unlawful disposal of polychlorinated biphenyls or improper asbestos abatement, to suggest only a few, all expose the government to potential liability for the fees of much larger and more sophisticated enterprises than the previous EAJA.

The 1996 EAJA amendments are also a boon to local governmental units. Under the preamendment EAJA, most local governments failed the net worth test.50 But under the amendments, local governmental units (including special districts) with a population of up to 50,000 can recover fees and expenses. In the environmental arena alone, consider what this change means for governmental action to halt violations by municipal incinerators, enforce the Safe Drinking Water Act (SDWA), enforce the Federal Water Pollution Control Act (FWPCA) against publicly owned treatment works, and halt discharges from combined sewers. Nearly 70 million Americans live in incorporated cities and towns under 50,000.51 Many special purpose districts, such as drainage districts and soil and water conservation districts fall below the 50,000 cutoff as well. Thus, the enforcement of environmental laws against municipalities and other governmental subdivisions may be more difficult because of these amendments.52

Initially, the 1996 amendments will expand the universe of potential claimants—among small businesses, not-for-profits of whatever size, and local government units. However, for each of these groups, the statute allows government agencies to develop new definitions and new cutoffs "appropriate to the activities of the agency."53 Thus, in order to determine what entities are eligible to take advantage of the EAJA amendments, ultimately a regulatory, rather than a statutory, definition controls. Regulatory agencies may, in fact, elect to limit their EAJA exposure by promulgating relevant definitions in their administrative adjudication regulations. Such limits may also be adopted by appropriate agencies (including the U.S. Department of Justice (DOJ)) for federal civil litigation purposes. Similarly, the SBA could promulgate regulations for small businesses that establish a different threshold for EAJA purposes than for most other purposes.54 Congress, in legislating by reference, ultimately has left it up to the regulatory agencies to work out any necessary relief for themselves.

What Is the Standard for an Award of Fees and Expenses?

The SBREFA amendments to the EAJA did not change the existing requirements for recovery by prevailing parties; they simply added a new opportunity for recovery by nonprevailing parties, with different requirements. The 1996 amendments establish a two-part standard for the award of fees and expenses: First, the government demand must be "substantially in excess" of the relief awarded; and second, the demand must be "unreasonable when compared with" the relief awarded.55

In establishing a two-part standard, Congress chose not to adopt the Senate bill's one-part standard, which had combined the two inquiries. The Senate would have required merely that the award be "disproportionately less favorable" to the government than the demand. The two-part standard ultimately enacted appears to require first a straightforward comparison of the demand and the award to determine whether one substantially exceeds the other. If there is no substantial difference, that should be the end of the inquiry. If there is such a difference, the court (or [26 ELR 10575] adjudicative officer) is then charged with determining whether the disparity is "unreasonable … under the facts and circumstances of the case."56

This new two-part standard resembles the two-part standard in the EAJA's prevailing-party provisions. Under those provisions, a party must show that it is a "prevailing party." If it is not, that is the end of the inquiry. If it is, then the inquiry moves to the second stage—whether the government's position was "substantially justified."57

Because it did not intend to pay the attorneys fees of all litigants with the government, Congress needed some basis under the 1996 amendments for defining the threshold for recovery. Under the SBREFA, achieving a favorable result—one substantially less onerous than the government's demand—serves as the functional equivalent of "prevailing" under the preexisting EAJA. While this determination can be somewhat complex even in standard EAJA cases, it is relatively mechanical; and so, too, may be the comparison of demand with result under the 1996 amendments. The second part of the test, like that in the preexisting EAJA, is more difficult and subjective. Determining what is "unreasonable … under the facts and circumstances of the case" is a lot like determining what is "substantially justified."58 Consequently, the two-part test of the amendments may operate much like the prior two-part test.

If the courts base their approach on the preexisting EAJA, the burden of proof on the two parts of the test will be divided. Under prior EAJA case law, the private party seeking to recover its fees and expenses had to prove that it has prevailed, while the government in turn had to show that its position was substantially justified.59 The rationale for this allocation of burden is that the government is in the best position to justify its position, while the private litigant would have a harder time proving the negative—that there was no basis for the government's position. Similar considerations counsel the same allocation under the 1996 amendments. The government is in a better position to identify what made its demand reasonable than a private litigant is to demonstrate its unreasonability.

Given the new two-part test, what do "substantially in excess" and "unreasonable" mean in practice? Congress, in its rapid consideration of this law, gave courts and agencies little guidance. It would appear, however, that "substantially" as used in the first part of the test means more than "somewhat" or "to a discernable degree." In Pierce v. Underwood, the U.S. Supreme Court noted that the term "substantially" typically has two quite distinct meanings. It can mean either (1) "considerable in amount' … large, … to a high degree" or (2) simply having a "reasonable basis," as in the "substantial evidence" test under the Administrative Procedure Act.60 The Court ruled that the latter meaning—the lower threshold—applied to the "substantially justified" test of the EAJA. Unfortunately, Congress used the same word in the new EAJA amendments to modify "in excess." In the amendments, it appears from the context that the first meaning—the higher threshold—must apply. Congress appeared to be concerned with identifying a meaningful disparity between the governmental demand and the litigation outcome. Had this not been the case, use of the term "in excess" without a modifier would have sufficiently expressed the meaning; thus, an interpretation of the amendments that would allow a low threshold does not appear to capture the congressional concern. The term "substantially in excess" would appear to require a large difference, not just an identifiable difference.61

Virtually the only cases in which something like a dollar comparison occurred under the prior EAJA were eminent domain actions. There, Congress made it easy by enacting specific amendments in 1985. The condemnee is a prevailing party if the amount finally awarded is closer to the "highest valuation … attested to at trial on behalf of the property owner" than it is to the "highest valuation … that is attested to at trial on behalf of the Government."62

Interestingly, this formula for eminent domain cases was adopted by Congress in 1985 because the courts had experiences great difficulty in determining when a condemnee was a prevailing party under the 1980 EAJA. Two circuits had adopted the rule that the condemnee is a prevailing party only if he or she wins "far more than the government had offered," or an award "substantially greater than the government's deposit."63 Two others had ruled that any award in excess of the government's offer entitled the condemnee to prevailing-party status.64 Commenting on the "substantially greater" rule that two of the circuits had adopted—in language that sounds remarkably apt with respect to the 1996 EAJA amendments—the Sixth Circuit predicted: "District courts will have difficulty in deciding whether a plaintiff won 'substantially' or 'far' more than the government offered. Inconsistent adjudications will certainly be the result of such an indeterminate rule and, consequently, [26 ELR 10576] needless appeals will follow."65 Unfortunately, Congress' solution to the eminent domain problem in 1985 did not keep it from creating in 1996 a whole new problem in a different set of EAJA cases.

"Unreasonable … under the facts and circumstances of the case" is also not defined in the new law, but here there may be a real analogy with the "substantially justified" test of the prior EAJA. There the government is charged with proving that its position had "a reasonable basis both in law and fact."66 In sum, the second parts of these two different EAJA two-part tests may be identical. The government will need to make clear the totality of circumstances that supported its making the demand at issue.

One unresolved question is how the availability of the new avenue for relief with its new tests will affect the existing EAJA. It is possible to imagine a case in which an old-fashioned "prevailing party" might try to recover its fees and expenses under the new law as well as the old, pleading both causes of action. And of course prevailing parties who are ineligible under the prior EAJA because of net worth or employee limits may seek to use the new law. Is it easier to prove "substantially in excess" and "unreasonable" than "prevailing" and not "substantially justified"? As discussed above, the second part of each two-part test is virtually the same. But what about the first part? If a governmental agency seeks a $ 10,000 penalty and is awarded no penalty, is this "substantially in excess" of the result? Does it matter if $ 10,000 is a fairly low penalty in the larger scheme of things? Or do we jump directly to the second test in hopes that we can avoid the first? These issues will clearly create gainful employment for governmental and nongovernmental lawyers alike for the next several years—along with the rising generation of federal judicial clerks.

Some things are likely to stay much the same. The denial of fees when "special circumstances make an award unjust" was an exception copied from the prior EAJA. "Bad faith" and "willful violation of the law," while new, are precisely the kinds of special circumstances courts looked to in the past. And judicial review of fee awards under the 1996 amendments is likely to follow the existing approach of reviewing trial judge decisions using an "abuse of discretion" standard, for the same reasons that standard was adopted for the existing EAJA.67

What Kinds of Administrative Adjudications Are Covered by the Law?

The amendments are quite clear as to their applicability to civil actions. Any civil action brought by the United States is subject to the amendments. Thus, in cases involving injunctions, civil penalties, natural resource damages, and other forms of relief, the government must take into consideration its potential liability for attorneys fees.

The amendments' coverage of administrative adjudications is more complex. The law clearly does not apply to all agency adjudications. "Adversary adjudication" is defined in § 504 of the existing EAJA as "an adjudication under section 554" of title 5 of the U.S. Code, but excluding rate cases and license grants and renewals.68 This definition should apply to the 1996 amendments of § 504. There are a significant number of adjudications conducted by the U.S. Environmental Protection Agency (EPA) that do not fall within this EAJA definition. For example, administrative orders and penalty assessments under the underground injection provisions of the SDWA are subject to an administrative hearing which, by law, "shall not be subject to section 554 … of title 5."69 The same exclusion applies to "class I civil penalties" under the FWPCA.70

Moreover, apart from the preexisting definitional limitation, the 1996 amendments to § 504(a) specifically state that they apply only to an "adversary adjudication arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement."71 What "enforce a party's compliance" means will require elaboration by the agencies. Initially, discussion within the federal agencies appears to concern whether and to what extent adjudications arising from administrative orders for compliance or performance are covered by the new legislation.72 Other questions concern whether "cleanup" orders or permit revocations are covered. But despite the focus on these issues—where there is undeniable ambiguity—there is even a legitimate question whether many civil penalties actions are covered by the amendments.

In answering these questions, there is little to go on apart from the language of the statute itself. Of particular note is the EAJA's weak "legislative history"—virtually all of which was created after the fact. For example, the April 19 Representative Hyde statement is the most comprehensive explanation of the bill, but cannot be relied on to explain what may have been on the minds of the legislators when they voted more than two weeks earlier. The following discussion makes use of these explanatory materials, as well as the contemporaneous floor statements of the legislators, but the best guide is the law itself and the changes made by the legislators during the consideration of the two bills.

Administrative Civil Penalty. Although some of the discussion on the floor of the House and Senate concerned civil [26 ELR 10577] penalties,73 the legislation itself does not explicitly state that penalties are a "demand" that can give rise to a fee claim. The original version of S. 942 considered by the Senate Committee on Small Business expressly listed "any citation, assessment, fine, penalty, or demand for settlement." But S. 942 as passed, H.R. 3136, and the SBREFA used the term "demand" and were silent on what the term encompassed, except to exclude from the term "demand" recitations of "the maximum statutory penalty (i) in the [administrative] complaint, or (ii) elsewhere when accompanied by an express demand for a lesser amount."74 The fact that the law excludes certain penalty recitations strongly implies that administrative and judicial civil penalty actions are within the bill's purview, and indeed that is the view of the law's congressional sponsors.75

But deciding that penalty demands in administrative proceedings are not excluded from the bill does not end the inquiry. Both the original S. 942 and the version of S. 942 passed by the Senate on March 19 applied to any "adversary adjudication brought by an agency."76 But H.R. 3136, which became the final law, limits recovery under the administrative proceedings section to an "adversary adjudication arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement."77 The addition of this modifying language must be given effect. It is a formulation that does not encompass agency actions where "compliance" is not at issue.

Many administrative penalty actions do not, in fact, involve the enforcement of compliance, but rather the collection of sanctions for past episodes of noncompliance. Some federal statutes and agency regulations have made this distinction explicit. For example, FWPCA § 309(g) administrative penalties are assessed by the EPA Administrator or the Secretary of the Army.78 But the penalty action deals only with the penalty; there is no action to compel or enforce "compliance."79 Compliance is enforced by a "compliance order" or civil action.80 Indeed, the U.S. Army Corps of Engineers' (the Corps') regulations provide that once the Corps decides to proceed with an administrative civil penalty, "it shall not subsequently pursue judicial action."81 Similarly, administrative civil penalties under the Emergency Planning and Community Right-To-Know Act (EP-CRA) are assessed and lead to administrative proceedings that do not include actions to compel compliance.82 Indeed, in typical EPCRA cases, the facility has already come into compliance by filing the necessary reports and the only remaining issue is the amount of the penalty.83

Some statutes allow agencies to choose among agency actions to enforce compliance, to assess a civil penalty, or to do both. For example, the Resource Conservation and Recovery Act (RCRA) gives the EPA this choice in § 3008(a).84 EPA's Consolidated Rules of Practice identify a broad array of statutes under which the agency may assess administrative civil penalties and where the ensuing adjudication is not about enforcing compliance with the statute but about the administrative civil penalty.85 Unless the penalty is joined with a compliance order, administrative penalty proceedings should be exempt from the EAJA amendments.86 Where the agency is not seeking compliance, but rather payment of a civil penalty, the resulting adjudication of the assessment is not an "agency action to enforce a party's compliance."87

This reading of the law gives meaning to the clause added by the House, is supported by the plain language of the statute, and is not contradicted by anything in the legislative history. Indeed, it gives effect both to the changes made in the bill during its consideration by Congress, and to the[26 ELR 10578] differences between the language Congress used to amend 5 U.S.C. § 504(a) and the language it used to amend 28 U.S.C. § 1214(d). Moreover, because the EAJA is a waiver of sovereign immunity, it must be strictly construed in favor of the government.88 Waivers must be clear and unequivocal.89 Thus, construing the amendments to exclude administrative penalty actions that are not aimed at securing a party's compliance is not only a permissible reading given the text of the amendments, but may be compelled as a matter of law. Finally, whether or not this is the only possible reading of the amendments, it is clearly a supportable construction. Thus, an agency that asserts and maintains this construction should be entitled to deference under the Chevron doctrine.90

Compliance Orders and Corrective Action. There has been some discussion within the federal agencies about the extent to which "demand" includes administrative demands for compliance, and (in the environmental field) for environmental corrective action.91 Given the plain language of the amendments, it is clear that compliance order adjudications are included. They are undoubtedly adjudications arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement. The sponsors of the legislation also viewed the EAJA amendments as applying to administrative demands for injunctive relief:

The test for recovering attorneys fees is whether the agency or government demand … is substantially in excess of the final outcome of the case so as to be unreasonable when compared to the final outcome (whether a fine, injunctive relief or damages) under the facts and circumstances of the case.92

Administrative corrective action orders, however, present a more complex situation than compliance orders.93 For example, "corrective action" orders under RCRA § 3008(h) may not be within the EAJA amendments. In general, these orders are issued to private parties not because of any lack of compliance with a regulation or statute, nor to enforce compliance with such requirements. Rather, they are issued in cases where the EPA Administrator deems an action "necessary to protect human health or the environment" when there has been "a release of hazardous waste" from a regulated "interim status" facility.94 With some exceptions, there is often no "statutory or regulatory requirement" with which a party's "compliance" is being sought in a § 3008(h) order; the order is issued based simply on the threat to health or the environment.95

In contrast, corrective action orders involving underground storage tanks under RCRA § 9003(h) almost always will be within the scope of the EAJA amendments. This is because orders for corrective action with respect to underground storage tanks are issued to compel compliance with corrective action requirements spelled out in the regulations.96

Permit Revocation or Suspension. Whether or not administrative suspensions and revocations of permits fall within the EAJA amendments is uncertain. On the one hand, these could be viewed as actions to enforce compliance with permit conditions—actions where returning to compliance eliminates the basis for the revocation. (This is unlike the administrative civil penalty situation, in which a return to compliance does not obviate the need to pay a penalty.) On the other hand, permit actions could be regarded primarily as ways of eliminating a license to continue a particular form of conduct inimical to the environment or a license that was obtained by misrepresentation. Indeed, a number of regulatory provisions specifically provide for the revocation of permits on the grounds that the permitted activity endangers human health or the environment, or that the permit failed to disclose all relevant facts or misrepresented facts material to the permit's issuance, quite apart from any compliance issues.97 It would appear that in at least these circumstances, the EAJA amendments would not apply.

However, when the permit is proposed for suspension or revocation based on noncompliance with permit requirements, the situation is less clear. It may depend on whether the agency's action is intended to be a means of obtaining compliance or is a simple consequence of noncompliance that has rendered the permit holder unworthy or unfit to continue to enjoy the benefits of the permit, whether or not [26 ELR 10579] it subsequently comes into compliance. For example, a permit "suspension" on grounds of noncompliance may generally be regarded as an action subject to the EAJA amendments since it is designed to enforce a party's compliance with regulatory requirements; the suspension is lifted when compliance returns. In contrast, a permit "revocation" may be either regarded as an agency action to enforce compliance, or as a mere withdrawal of the privilege to operate based on past conduct demonstrating an unwillingness to operate in compliance—a consequence of non-compliance rather than an attempt to enforce compliance.98

This view is reinforced if one views a permit revocation not as a "demand" by the agency to the permittee, but rather as an action taken by the agency. However, where a permit revocation or suspension is accompanied by a demand for on-the-ground remediation and compliance activities, it may well be subject to the EAJA amendments.

How Is the Amount of the Recovery to Be Determined?

Under the "prevailing party" EAJA, courts look to the overall outcome obtained by the fee claimant and can award fees even on portions of claims that did not succeed if they contributed to the claimant's success.99 Where the underlying claims are sufficiently distinct, however, the prevailing party is entitled to fees only for those claims on which it succeeded.100 This approach has made fee awards relatively straightforward under the previous law. Hours reasonably spent on successful claims (or on unsuccessful theories or claims that contributed to the overall success of the prevailing party) were all compensable.

Under the 1996 EAJA amendments, however, it will rarely be possible to apply this simple approach. The amendments specifically provide that the adjudicative officer or the court "shall award to the party the fees and other expenses related to defending against the excessive demand."101 This means that fees and expenses not related to defending against the excessive demand are not awardable. But how can fees be parsed in this manner?

Suppose, for example, that in a civil action the government seeks a civil penalty of $ 100,000, but the judge or the jury ultimately awards only $ 25,000. What portion of the defendants' legal expenses are properly compensable? Are expenses associated with attempting to show that no violation occurred compensable or not, given that liability was, in fact, found? What about expenses associated with attempting to show that if there was a violation it was unintentional and caused no harm? What about expenses associated with attempting to show that the proper penalty should be no more than $ 5,000—a position clearly not accepted by the finder of fact? It may well be impossible to disaggregate these issues. Yet the simple expedient used in most prior EAJA cases—awarding 100 percent of requested fees where the issues cannot be disaggregated—while appropriate for a "revailing party," is clearly not appropriate for a party that in fact lost a part of the case and was adjudged legally liable.

The only comment on this point comes in the after-the-fact summary of the amendments inserted into the Congressional Record by Representative Hyde more than three weeks after their enactment:

The Committee [sic] does not intend by this provision to compensate a party for fees and costs which it would have been [sic] expended even had the government demand been reasonable under the circumstances. The amount of the award which a party may recover under this section is limited to the proportion of attorneys' fees and costs attributable to the excessive demand. Thus, for example, if the ultimate decision of the administrative law judge or the judgment of the court is twenty percent of the relevant government demand, the defendant might be entitled to eighty percent of fees and costs. The ultimate determination of the amount of fees and costs to be awarded is to be made by the administrative law judge or the court, based on the facts and circumstances of each case.102

While this statement suggests at least one possible approach, it has dubious reliability as legislative history. It clearly does not reflect anything that Congress discussed, or apparently even considered, prior to enactment of the amendments. Moreover, a proportional approach might lead to fee awards that do not closely reflect actual litigation expenditures. It may be that 80 percent of the private party's legal expenses were devoted to attempting to prove that the violation never occurred, or to unsuccessful motions for summary judgment, or to discovery unrelated to the penalty issue. Thus, the Hyde formulation is unlikely to be adopted by the courts. However, it does provide a reference point, and it does reflect to some degree the fact that when the stakes are higher, proportionally more money is spent by defendants on all issues.

Difficult as it is, the civil penalty scenario is perhaps the easiest of the many situations likely to confront courts and administrative agencies under the 1996 amendments. More difficult will be cases in which the government seeks injunctive relief and corrective action. For example, suppose that the government attempts to compel the defendant to excavate and incinerate contaminated soils and to install a wastewater treatment facility and perform certain periodic monitoring, but is only partially successful in the litigation, obtaining an order for just some of the work. The defendant may well characterize the work ordered as relatively inexpensive [26 ELR 10580] and the governmental demand as extremely expensive in order to recoup its attorneys fees. How is a court to decide whether or not the defendant is entitled to fees-especially if there was no testimony at trial on the costs of the respective remedies, or if the testimony on these costs was sharply conflicting? Even worse would be a case where the remedy issue was settled on the courthouse steps prior to the taking of any testimony on costs.

Must the court conduct a battle of the estimates for remedies that were included in the government's "demand" but were not ordered? Should the government be allowed post-verdict discovery to determine exactly how much the defendant is spending on the remedy that actually was ordered? And even if relevant figures can be developed for both sides, are they to come before the court as written evidentiary submittals? post-trial hearings with cross-examination of estimators, or in some other form? There is no precedent for any of this in the prior EAJA.103 It seems that such proceedings are likely to result in the "second major litigation" the Supreme Court has counseled against.104

It is probable that courts and agencies will attempt to disaggregate fees by allocating them to particular issues. It will, therefore, be to private litigants' advantage to maintain contemporaneous records linking work to financial liability and penalty reduction to the greatest extent possible, and for governmental lawyers to attempt to have issues such as liability and remedy considered separately.

Implications for Agencies and Private Litigants

Perhaps the best prediction of the effect of the amendments was made by a California member of Congress who opposed the bill on the floor of the House: "Because we have not had enough time to examine it, it is going to be fairly clear from some of the cryptic language that is used that they are going to create a nest egg for attorneys."105

However, a number of strategic approaches can already be identified. For example, it would appear that government agencies should, to the extent possible, divide their administrative claims where there is concern that the EAJA amendments might come into play.

First, by dividing activities to "enforce a party's compiance" from other activities such as assessment of a civil penalty or the performance of RCRA corrective action, agencies may be able to avoid the applicability of EAJA § 504(a)(4) altogether in the latter actions. In particular, making judicious decisions to seek only a civil penalty administratively could be of substantial benefit to EPA. If a compliance order were needed, it could be sought later, or pursued judicially.

Second, although actions involving joint consideration of compliance orders and penalties in administrative adjudications are subject to EAJA § 504(a)(4), it may be possible to reduce agencies' financial exposures by bifurcating the liability and penalty issues. This approach might enable an agency to reduce the potential amount of any fees that might be awarded if the private party defendant either prevails on liability,106 or loses on liability but gets a substantially reduced penalty. In the latter instance, the fees payable would presumably relate only (or mostly) to the penalty phase.

Strategies to limit agency exposure may be quite important because awards come out of the annual appropriations of the agency that are used for its ongoing discretionary operations and activities. Thus, a substantial unexpected fee award may have the effect of crippling important program activities of an agency. Agencies will need to think strategically about their procedures in cases where these amendments may come into play.

Indeed, it may be important for agencies to promulgate regulations assuring that they can take full advantage of the "enforce … compliance" limitation on adversary adjudications. Regulations, or at least consistent guidance on the issue, may help an agency receive deference under Chevron if it wants to assert that a given agency action is not in fact an action to enforce a party's compliance. In order to assure governmentwide consistency on this point, it may be desirable for the DOJ to prepare guidance for the agencies.

Another liability-limiting technique for agencies may be to use permit revocations judiciously. In doing so, agencies will need to be clear that the action is not being taken to bring an entity into compliance, but is the withdrawal of a license or privilege to operate. If this approach is to be successful, remedial actions and compliance activities will need to be sought later, and separately, in a civil action after the permit has been successfully revoked.

Even within the terms of the amendments there are opportunities for strategically structuring demands. EPA has already recognized the importance of demonstrating the reasonability of its demands through pre-filing information requests and other approaches, such as adjusting the penalty as information becomes available.107 The statutory language that excludes from the definition of "demand" a demand for the maximum statutory penalty "elsewhere [than in the complaint] when accompanied by an express demand for a lesser amount"108 is evidently intended to discourage agencies from making settlement offers that adhere to the statutory maximum, by eliminating the blanket exemption for such demands that applies when they are made "in the complaint." However, in the summaries of the legislation inserted in the Congressional Record by Senator Bond and [26 ELR 10581] Representative Hyde after passage, the legislators disclaim any intention to suggest that such a statement would be "per se a demand" but rather that this "would depend on the circumstances."109

Creating the circumstances that will justify a given demand as not "unreasonable" will be an important task for both the agencies and the DOJ to pursue in their prelitigation discussions. Moreover, assuring that settlement discussions either do or do not become matters of evidence for post-trial fee litigation is an issue that should occupy both government and private attorneys. Entering into such discussions without any understanding at all on the point may be fraught with peril for either side.

While some of these approaches to administrative actions may work to limit agencies' liability, others may not. The statute is complex and uncertain enough to allow for a number of competing interpretations. Accordingly, agencies that do not establish firm positions early run the risk of being taken by surprise by adverse administrative decisions, or by judicial review of such decisions. Similarly, a consistent approach by the DOJ in the federal courts will be quite important.

Perhaps the biggest opportunity to limit governmental exposure under the amendments is to take advantage of the opportunity afforded under both the Regulatory Flexibility Act and the Small Business Act to redefine "small entity" for purposes of the EAJA amendments. It is apparent that Congress gave no consideration whatsoever to the implications of its use of these borrowed definitions in the amendments. Agencies, and possibly the DOJ, need not simply accept the definitions that are currently embodied in the regulations. Indeed, a redefinition of "small entity" could again assure that the EAJA amendments (like the prevailing-party provisions of the preexisting EAJA) truly serve only those interests that are small and cannot reasonably be expected to litigate effectively with the federal government. While regulatory redefinitions would undoubtedly be subject to judicial review under the new SBREFA, the basis for limiting the scope of the amendments' coverage in certain sectors is readily apparent and justifiable.

While federal agencies examine their options under the new law, it is apparent that private litigants will enjoy significant opportunities to shape the way in which the law is interpreted. On the administrative adjudication side, it will be to private parties' advantage to portray many agency actions as actions to enforce compliance. And, in general, private parties will also want to compel agencies to make their "demands" as clear as possible—asking for such demands both informally and through motions designed to assure that they know exactly, and have on record, what the agency or United States is seeking. These efforts will exert a downward pressure, for once something is identified as a "demand," it sets the benchmark against which the adjudicated result is to be measured.

Because it remains unclear whether it is the first demand, the last demand, or some other demand dominating the proof at trial that is the benchmark, it will be to the private litigant's advantage to get a demand on record as early as possible and work the government downward from there. The amendments say "the express demand of the [agency/United States] which led to the adversary adjudication."110 This implies a demand received by the private party prior to the party's request for an administrative hearing, or an agency or government demand that is recited in the complaint. However, demands in the complaint are excluded if they merely recite the statutory maximum, so perhaps the relevant demand will be a formal or informal demand made in the pre-filing period. And if the only position advanced by the government in a given case is the plea for the statutory maximum in the complaint, the "demand" for purposes of the EAJA may well be the amount actually sought at trial, or recited by the government in response to a motion for clarification or bill of particulars.

Conclusion

Interpreting laws is difficult enough when there are hearings and committee reports. But when legislation to benefit a popular group sails through Congress in short order, it falls to the lawyers to pick up the pieces. These EAJA amendments will present substantial new opportunities for creativity by judges, agencies, and litigants. Whether they will improve agency decisionmaking or enforcement decisions remains an open question.

1. 5 U.S.C. § 504, ELR STAT. ADMIN. PROC. § 504; 28 U.S.C. § 2412, ELR STAT. ADMIN. PROC. § 2412.

2. Pub. L. No. 104-121, 110 Stat. 862-64 (1996), 5 U.S.C. § 504, ELR STAT. ADMIN. PROC. § 504; 28 U.S.C. § 2412(d), ELR STAT. ADMIN. PROC. § 2412.

3. Pub. L. No. 104-121, 110 Stat. 847 (1996).

4. Id. § 233.

5. In addition to the EAJA amendments, these include the establishment of a small business regulatory ombudsman at the Small Business Administration, the establishment of regional "regulatory fairness boards," a requirement that federal agencies prepare plain language compliance guides to assist small businesses, a requirement that agencies establish policies for the waiver of certain civil penalties for small businesses, and creation of a right to judicial review of small business regulatory flexibility analyses under the Regulatory FlexibilityAct.

6. Pub. L. No. 96-481, 94 Stat. 2325, 2327 (1980); revived & amended Pub. L. No. 99-80, 99 Stat. 183, 186 (1985); 5 U.S.C. § 504, ELR STAT. ADMIN. PROC. § 504; 28 U.S.C. § 2412(d), ELR STAT. ADMIN. PROC. § 2412(d).

7. Fees and expenses may also be denied to a prevailing party if "special circumstances make an award unjust." 5 U.S.C. § 504(a)(1), ELR STAT. ADMIN. PROC. § 504(a)(1); 28 U.S.C. § 2412(d)(1)(A), ELR STAT. ADMIN. PROC. § 2412(d)(1)(A).

8. 5 U.S.C. § 504(b)(1)(B), ELR STAT. ADMIN. PROC. § 504(b)(1)(B); 28 U.S.C. § 2412(d)(2)(B), ELR STAT. ADMIN. PROC. § 2412(d)(2)(B). Nonprofit organizations and agricultural cooperative associations are subject only to the employee test, not to the net worth test.

9. Southern Oregon Citizens Against Toxic Sprays, Inc. v. Clark, 720 F.2d 1475, 14 ELR 20061 (9th Cir. 1983), cert. denied, 469 U.S. 1028 (1984); Naekel v. Department of Transp., 884 F.2d 1378 (Fed. Cir. 1989); Hickory Neighborhood Defense League v. Skinner, 736 F. Supp. 672 (W.D.N.C. 1990).

10. United States v. Trident Seafoods Corp., 92 F.3d 855, 26 ELR 21511 (9th Cir. 1996). The United States brought a civil action against a seafood processor for asbestos abatement violations, seeking maximum statutory civil penalties and offering to settle for $ 346,000; the company made an offer of judgment under Fed. R. Civ. P. 68 for $ 50,000. Eventually, the company prevailed at trial on four claims, while the government was granted summary judgment on the fifth and awarded a civil penalty of $ 25,000. The court of appeals upheld an award of costs to the defendant as a prevailing party under 28 U.S.C. § 2412(a), but denied attorneys fees under Rule 68, holding that the "costs" awardable under Rule 68 did not include attorneys fees where the underlying statute (the Clean Air Act) did not provide for awards of attorneys fees unless the government's action was unreasonable.

11. 28 U.S.C. § 2412(a), ELR STAT. ADMIN. PROC. § 2412(a), was enacted in 1966, before the enactment of the EAJA. It provides for the award of "costs" against the government when a private party prevails in a civil action.

12. Beall Constr. Co. v. Occupational Safety & Health Review Comm'n, 507 F.2d 1041, 1047-48 (8th Cir. 1974): "Petitioner succeeded in obtaining reductions or even dismissal of some alleged citations but could not be said to be a 'prevailing party' in view of the Commission's findings and our affirmance of those findings. Accordingly, Petitioner is not entitled to judgment for costs or attorneys' fees."

13. Small Business Regulatory Enforcement Act (SBREFA) § 203(7), 110 Stat. 858 (1996).

14. 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4).

15. 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D).

16. 5 U.S.C. § 504(b)(1)(F), ELR STAT. ADMIN. PROC. § 504(b)(1)(F); 28 U.S.C. § 2412(d)(2)(I), ELR STAT. ADMIN. PROC. § 2412(d)(2)(I).

17. 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4); 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D).

18. 5 U.S.C. § 504(b)(1)(B), ELR STAT. ADMIN. PROC. § 504(b)(1)(B); 28 U.S.C. § 2412(d)(2)(B), ELR STAT. ADMIN. PROC. § 2412(d)(2)(B).

19. 5 U.S.C. §§ 601-612.

20. Id. § 601(3).

21. Id. § 632.

22. Id. § 601(4).

23. Id. § 601(5).

24. 5 U.S.C. § 504(b)(1)(A), ELR STAT. ADMIN. PROC. § 504(b)(1)(A); 28 U.S.C. § 2412(d)(2)(A), ELR STAT. ADMIN. PROC. § 2412(d)(2)(A).

25. Id. The law has also allowed for an increase based on a "special factor" such as the limited availability of qualified attorneys for the matter at issue. Id.

26. See, e.g., Rother v. Shalala, 869 F. Supp. 899 (D. Kan. 1994) ($ 120.90 per hour).

27. See, e.g., Hall v. Shalala, 50 F.3d 367, reh'g denied, 62 F.3d 390 (5th Cir. 1995) (upholding denial of $ 111 per hour based on cost of living adjustment and awarding $ 75 statutory cap).

28. S. 942, 104th Cong., 2d Sess. (1996). "The Managers' amendment incorporates dozens of changes, some quite significant, in either language or policy from the bill reported by the committee … 2 weeks ago." 142 CONG. REC. S2155 (daily ed. Mar. 15, 1996) (statement of Sen. Bumpers).

29. S. 942, 104th Cong., 2d Sess. § 301 (1996) (amending 5 U.S.C. § 504), reprinted at 142 CONG. REC. S2149-50 (daily ed. Mar. 15, 1996) (committee markup). The same language was used for S. 942's corresponding amendments to 28 U.S.C. § 2412 except that "civil action brought by the United States," "position of the United States," and "value of the final judgment in the action" were substituted for "adversary adjudication brought by an agency," "position of the agency," and "decision of the adjudicative officer." Id. § 302. The EAJA portions of S. 942 were derived in part from a bill authored by Senator Feingold, S. 554, 104th Cong., 1st Sess. (1995), which would have awarded fees and expenses to any prevailing party whether or not the position of the government was substantially justified.

30. The managers' substitute was not even available in final form on March 15 when it was presented and accepted by voice vote. 142 CONG. REC. S2168 (daily ed. Mar. 15, 1996) (voice vote). See id. S2151 (daily ed. Mar. 15, 1996) (remarks of Sen. Bond) ("We will be presenting a managers' amendment very shortly, when they complete drafting all of the good ideas that came in."). See also 142 CONG. REC. S2311 (daily ed. Mar. 19, 1996) (remarks of Sen. Glenn) (commenting that even members of the Committee on Small Business did not see the managers' "proposed language" until late on March 14).

31. S. 942, 104th Cong., 2d Sess. § 301-302 (1996).

32. Id.

33. Id.

34. 142 CONG. REC. S2157-59 (daily ed. Mar. 15, 1996). The bill passed by the Senate included not only the EAJA amendments but also provisions to assist small businesses in dealing with federal agencies, creation of a small business and agriculture regulatory enforcement ombudsman and regional regulatory fairness boards at the SBA provisions to allow waivers of some penalties for small businesses, and judicial review of small business analyses under the Regulatory Flexibility Act.

35. The provisions were substituted for Title III of the bill by Rep. Hyde (R-Ill.). The small business and EAJA provisions were shown to minority members for the first time on the evening of March 27, and attached to the bill scheduled for vote on March 28. 142 CONG. REC. H3008 (daily ed. Mar. 28, 1996) (remarks of Rep. Becerra), Id. at H3015 (remarks of Rep. Conyers).

36. Although the small business and EAJA provisions were Title III of the House bill, they became Title II of Pub. L. No. 104-121 because the rule under which the bill was considered in the House provided for the separation of the bill after passage to allow the line item veto title to be enrolled as a separate bill.

37. 142 CONG. REC. S3242-45 (daily ed. Mar. 29, 1996); 142 CONG. REC. E571-74 (daily ed. Apr. 19, 1996).

38. 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4); 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D).

39. 5 U.S.C. § 504(b)(1)(B), ELR STAT. ADMIN. PROC. § 504(b)(1)(B); 28 U.S.C. § 2412(d)(2)(B), ELR STAT. ADMIN. PROC. § 2412(d)(2)(B), incorporating 5 U.S.C. § 601; 5 U.S.C. § 601(3), incorporating 15 U.S.C. § 632.

40. See 5 U.S.C. § 601(3)-(5) (allowing agencies to promulgate their own definitions of "small business concern," "small organization," and "small governmental jurisdiction"); 15 U.S.C. § 632(a)(2)(C) (allowing agencies to promulgate their own definitions of "small business concern").

41. 142 CONG. REC. E573 (daily ed. Apr. 19, 1996) (summary of the SBREFA by Rep. Hyde).

42. See generally 13 C.F.R. pt. 121 (1996).

43. 5 U.S.C. § 601; 15 U.S.C. § 632(a); 13 C.F.R. § 121.902 (1996). Presumably, the rulemaking establishing an alternative definition may be subject to review under the Regulatory Flexibility Act, depending on its significance, and may then be subject to litigation under the new SBREFA provisions allowing small entities to challenge such analyses. 5 U.S.C. §§ 601-603.

44. The EAJA's exemption from the net worth test applies only to agricultural cooperatives and to charitable organizations that are tax exempt under § 501(c)(3) of the Internal Revenue Code. Thus, many not-for-profit organizations, trade associations, not-for-profit businesses, and other organizations that are tax exempt under other provisions of the Internal Revenue Code have been subject to the net worth test. 5 U.S.C. § 504(b)(1)(B), ELR STAT. ADMIN. PROC. § 504(b)(1)(B); 28 U.S.C. § 2412(d)(2)(B), ELR STAT. ADMIN. PROC. § 2412(d)(2)(B).

45. See, e.g., American Academy of Pediatrics v. Heckler, 594 F. Supp. 69 (D.D.C. 1984) (nonprofit hospital not entitled to recover under the EAJA, because it has more than 500 employees).

46. The legislative history of the Regulatory Flexibility Act indicates that the "dominant in its field" language is to be interpreted "liberally" in favor of the not-for-profit entity. S. REP. NO. 878, 96th Cong., 2d Sess. 15 (1996), reprinted in 1980 U.S.C.C.A.N. 2788, 2802.

47. See BRUCE R. HOPKINS, THE LAW OF TAX-EXEMPT ORGANIZATIONS 26-27 (6th ed. 1992). By 1990, the tax-exempt sector constituted more than 10 percent of the entire U.S. economy. Tax Report, WALL ST. J., Feb. 1, 1995, at 1.

48. The categories of federally recognized tax-exempt organizations (a subset of the not-for-profit sector) are set forth at 26 U.S.C. § 501.

49. National Truck Equip. Ass'n v. National Highway Traffic Safety Admin., 972 F.2d 669 (6th Cir. 1992).

50. E.g., City of Brunswick v. United States, 849 F.2d 501 (11th Cir. 1988), cert. denied, 489 U.S. 1053 (1989).

51. U.S. DEPARTMENT OF COMMERCE, BUREAU OF THE CENSUS, STATISTICAL ABSTRACT OF THE UNITED STATES, tbl. 45 (1995).

52. It is not clear whether Native American tribes can take advantage of the new EAJA thresholds. Congress interpreted the prior EAJA prevailing-party provision for "units of local government" as including Native American tribes. H.R. REP. NO. 120 Part 1, 99th Cong., 1st Sess. 14 (1985), reprinted in 1985 U.S.C.C.A.N. 143. But the 1996 EAJA amendment-incorporated term "small governmental jurisdiction" in 5 U.S.C. § 601 specifically lists "cities, counties, towns, townships, villages, school districts, [and] special districts" without mentioning Native American tribes. Cf. 42 U.S.C. § 6903, ELR STAT. RCRA § 1004 (RCRA definition of "municipality" specifically lists Native American tribes). Because the new definition applied by the 1996 EAJA amendments lists numerous governmental units without listing Native American tribes, it may be more difficult to interpret it as covering tribes than the more general language in the unamended portions of the EAJA.

53. 5 U.S.C. § 601(3)-(5).

54. "The Administrator may specify detailed definitions or standards by which a business concern may be determined to be a small business concern for purposes of this chapter or any other Act." 15 U.S.C. § 632(a)(2)(A) (emphasis added).

55. 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4); 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D).

56. Id.

57. 5 U.S.C. § 504(a)(1), ELR STAT. ADMIN. PROC. § 504(a)(1); 28 U.S.C. § 2412(d)(1)(A), ELR STAT. ADMIN. PROC. § 2412(d)(1)(A).

58. The Supreme Court has held that the prior EAJA standard of "substantially justified" means "justified to a degree that could satisfy a reasonable person … [having a] reasonable basis both in law and fact." Pierce v. Underwood, 487 U.S. 552, 565 (1988) (citations omitted) (emphasis added).

59. Russell v. Sullivan, 930 F.2d 1443, 1445 (9th Cir. 1991); Green v. Bowen, 877 F.2d 204, 207 (2d Cir. 1989); Abernathy v. Clarke, 857 F.2d 237, 238 (4th Cir. 1988).

60. 487 U.S. 552, 564-65 (1988). Administrative Procedure Act, 5 U.S.C. §§ 500-596, ELR STAT. ADMIN. PROC. §§ 500-596.

61. In the only illustration of the concept to appear anywhere in the legislative history, Senator Bumpers said on the floor of the Senate: "So, if the Government sought $ 1 million to settle the case, and the judge or jury awarded, for example, $ 1,000 or $ 5,000, the defendant should be able to recover his fees." 142 CONG. REC. S2156 (daily ed. Mar. 15, 1996) (statement of Sen. Bumpers). A few moments earlier, Senator Bumpers had compared a government suit for $ 1 million to an award of $ 10,000 or even $ 50,000" saying that the small business person "can sue" for attorneys fees. Id. at S2155. Although one should not make too much out of minor distinctions in language spoken on the floor, especially when there is no colloquy among legislators to clarify the issue, it is possible (although probably not advisable) to read Senator Bumpers' remarks as suggesting that an award as small as 0.1-0.5 percent of the demand is likely to always require payment of fees, while an award as small as 1-5 percent of the demand would give rise to a possible claim for fees.

62. 28 U.S.C. § 2412(d)(2)(H), ELR STAT. ADMIN. PROC. § 2412(d)(2)(H).

63. United States v. 329.73 Acres of Land, 704 F.2d 800, 809 (5th Cir. 1983) (en banc) ("far more"); United States v. 101.80 Acres of Land, 716 F.2d 714, 723 (9th Cir. 1983) ("substantially greater").

64. United States v. 640.00 Acres of Land, 756 F.2d 842, 847-48 (11th Cir. 1985); United States v. 341.45 Acres of Land, 751 F.2d 924, 938 (8th Cir. 1984). The Sixth Circuit adopted the same rule for determination of "prevailing party" in any tax case in which taxpayers had successfully asserted more of a casualty loss than the Internal Revenue Service had recognized. Kreimes v. Department of Treasury, 764 F.2d 1186 (6th Cir. 1985).

65. Kreimes, 764 F.2d at 1190.

66. Pierce v. Underwood, 487 U.S. 552 (1988).

67. Id. at 558-63.

68. 5 U.S.C. § 504(b)(1)(C), ELR STAT. ADMIN. PROC. § 504(b)(1)(C). (EPA's Robert Kinney called this § 504 definition to my attention in this context.) The definition specifically excludes rate cases and license grants and renewals even though they are subject to § 554. The EAJA definition also includes as "adversary adjudications" certain adjudications under specified laws, such as the Contract Disputes Act, the Program Fraud Civil Remedies Act, and the Religious Freedom Restoration Act. Id.

69. 42 U.S.C. § 300h-2(c)(3)(A), ELR STAT. SDWA § 1423(c)(3)(A). Thus, even some administrative actions that are taken to enforce compliance are excluded from the EAJA amendments' coverage.

70. 33 U.S.C. § 1319(g)(2)(A), ELR STAT. FWPCA § 309(g)(2)(A) ("such hearing shall not be subject to section 554 … of title 5").

71. 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4). The amendments also apply to judicial review of agency adjudications under this limitation. 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D).

72. See, e.g., U.S. EPA, OFFICE OF REGULATORY ENFORCEMENT, INTERIM GUIDANCE ON ADMINISTRATIVE AND CIVIL JUDICIAL ENFORCEMENT FOLLOWING RECENT AMENDMENTS TO THE EQUAL ACCESS TO JUSTICE ACT (1996) (available from the ELR Document Service, ELR Order No. AD-3019).

73. Senator Bond discussed the existing EAJA as covering fines and penalties, but complained that existing standards are too strict and that S. 942 will "level the playing field … so that when the agency makes a demand it is going to have to be in proportion to what the violation is worth." 142 CONG. REC. S2154 (daily ed. Mar. 15, 1996) (statement of Sen. Bond). Compare statement of Senator Bumpers, id. at S2155-56. The "statement of legislative history" on the managers' substitute for S. 942 also says that the bill compares demand and outcome "whether a fine, injunctive relief or damages." Id. at S2159. Representative Hyde's statement explaining H.R. 3136, supra n.41, stated that the EAJA amendments "make it easier for small businesses to recover their attorneys fees, if they have been subjected to excessive and unsustainable proposed penalties." 142 CONG. REC. H3000 (daily ed. Mar. 28, 1996) (statement of Rep. Hyde).

74. Compare 5 U.S.C. § 504(b)(1)(F), ELR STAT. ADMIN. PROC. § 504(b)(1)(F) and 28 U.S.C. § 2412(d)(2)(I), ELR STAT. ADMIN. PROC. § 2412(d)(2)(I).

75. "The Act amends the Equal Access to Justice Act to assist eligible small businesses in recovering their attorneys fees and expenses in certain instances when unreasonable agency demands for fines or civil penalties in enforcement actions are not sustained by the court or by an administrative law judge." 142 CONG. REC. S3244 (daily ed. Mar. 29, 1996) (summary of the SBREFA by Sen. Bond).

76. S. 942, 104th Cong., 2d Sess. § 301 (1996), reprinted at 142 CONG. REC. S2318 (daily ed. Mar. 19, 1996).

77. 5 U.S.C. § 504(a)(4), ELR STAT. ADMIN. PROC. § 504(a)(4) (emphasis added). The revised language accomplished two things: first, it included administrative adjudications that were initiated by defendants (S. 942 had included only adjudications "brought by" agencies); and second, it limited the array of adjudications covered.

78. Class I penalties up to $ 25,000 ($ 10,000 per violation). Class II penalties up to $ 125,000 ($ 10,000 per day of violation). 33 U.S.C. § 1319(g), ELR STAT. FWPCA § 309(g).

79. Id. § 1319(g)(7), ELR STAT. FWPCA § 309(g)(7).

80. "The Administrator shall issue an order requiring such person to comply with such condition or limitation or shall bring a civil action." Id. § 1319(a), ELR STAT. FWPCA § 309(a). "The Secretary shall issue an order requiring such person to comply with such condition or limitation or the Secretary shall bring a civil action." Id. § 1344(s), ELR STAT. FWPCA § 404(s)(1).

81. 33 C.F.R. § 326.2(a)(2)(1996).

82. 42 U.S.C. § 11045, ELR STAT. EPCRA § 325.

83. E.g., In re Mobil Oil Corp., ELR ADMIN. MAT. II 40273 (EPA EAB Sept. 29, 1994) (penalty assessed for EPCRA reporting violation).

84. "The Administrator may issue an order assessing a civil penalty for any past or current violation, requiring compliance immediately or within a specified time period, or both." 42 U.S.C. § 6928(a), ELR STAT. RCRA § 3008(a).

85. See 40 C.F.R. § 22.01 (1996) (including various administrative civil penalty assessments under the Federal Insecticide, Fungicide, and Rodenticide Act; the Clean Air Act, the Marine Sanctuaries Act; RCRA; the Toxic Substances Control Act; the FWPCA; the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA); EPCRA; and the Safe Drinking Water Act).

86. The 1996 EAJA amendments clearly apply to administrative adjudication actions seeking to compel a party to come into compliance with statutory and regulatory obligations. This language is undoubtedly broad enough to include agency claims when both compliance and imposition of a penalty are being sought in the same administrative action.

87. Likewise, where a private party seeks judicial review of such an administrative civil penalty action, the EAJA amendments do not apply. 28 U.S.C. § 2412(d)(1)(D), ELR STAT. ADMIN. PROC. § 2412(d)(1)(D), covers judicial review of administrative adjudications "described in § 504(a)(4) of title 5," not judicial review of other administrative adjudications.

88. "Waivers of immunity must be 'construed in favor of the sovereign,' McMahon v. United States, 342 U.S. 25, 27 (1951), and not 'enlarged … beyond what the language requires.' Eastern Transp. Co. v. United States, 272 U.S. 675, 686 (1927)." Ruckelshaus v. Sierra Club, 463 U.S. 680, 685-86, 13 ELR 20664, 20665-66 (1983).

89. Department of Energy v. Ohio, 503 U.S. 607, 22 ELR 20804 (1992).

90. Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 14 ELR 20507 (1984). However, such deference may be reduced if federal agencies take inconsistent positions on the construction of the law. The DOJ could probably help assure a consistent approach by issuing guidance to the agencies.

91. These include corrective action orders under RCRA § 3008(h) (RCRA "interim status" facilities) and § 9003(h) (underground storage tanks), 42 U.S.C. §§ 6928, 6991b, ELR STAT. RCRA §§ 3008(h), 9003.

92. 142 CONG. REC. S3244 (daily ed. Mar. 29, 1996) (summary of the SBREFA by Sen. Bond); 142 CONG. REC. E573 (daily ed. Apr. 19, 1996) (summary of the SBREFA by Rep. Hyde). "A written demand by the government for performance or payment qualifies under this section regardless of form" including a "fine, penalty notice, demand letter, or citation." Id. (emphasis added).

93. Note, for example, that "corrective action" orders under RCRA § 7003, 42 U.S.C. § 6973, ELR STAT. RCRA § 7003, and CERCLA § 106, 42 U.S.C. § 9606, ELR STAT. CERCLA § 106, are not reviewed or enforced through administrative processes. The United States must enforce these orders in court, and, as noted above, the EAJA amendments apply to any civil action brought by the United States.

94. 42 U.S.C. § 6928(h), ELR STAT. RCRA § 3008(h).

95. However, RCRA § 3008(h)(2) does provide for corrective action orders that revoke interim status. Id. This is an action that may implicate enforcement of compliance obligations. See discussion of permit suspensions and revocations, infra. Moreover, § 3008(h)(2) and § 3008(a) make it clear that noncompliance with the corrective action order itself may lead to an administrative or civil action, which may result in an adjudication subject to the new EAJA amendments. The distinction may well be that adjudications of § 3008(h) orders under 40 C.F.R. Part 24 are exempt from the new EAJA amendments, while such adjudications under 40 C.F.R. Part 22 may be covered by them. (Administrative adjudications of corrective action orders are conducted under 40 C.F.R. Part 24, unless such orders are coupled with claims for compliance or civil penalties, in which case they are conducted under 40 C.F.R. Part 22.)

96. RCRA § 9003(h)(4) cross-references § 9003(c)(4) (corrective action regulations). Subsection (h)(4) also references subsection (h)(1)(A), which allows corrective action orders to "protect human health and the environment" before the effective date of regulations; however, such regulations are in effect for most underground storage tanks. 42 U.S.C. § 6991b(h)(1), (4), ELR STAT. RCRA § 9003(h)(1), (4).

97. See, e.g., 40 C.F.R. § 122.64 (1996) (national pollutant discharge elimination system permits); id. § 270.43 (1996) (RCRA permits); 33 C.F.R. §§ 325.7, 326.4(d)(3) (1996) (FWPCA § 404 permits).

98. This distinction may be illustrated in the Surface Mining Control and Reclamation Act of 1977 (SMCRA), 30 U.S.C. §§ 1201-1328, ELR STAT. SMCRA § 101-908. Under SMCRA § 201(c)(1), the Department of the Interior (DOI) may revoke a coal mining permit "for failure to comply with any of the provisions of [the Act] or any rules or regulations adopted pursuant thereto." Id. § 1202(c)(1), ELR STAT. SMCRA § 201(c)(1). This is basically a provision designed to bring an operator back into compliance with the law. But the DOI may also revoke a permit under SMCRA § 521(a)(4) if it finds that a permittee has committed a "pattern of violations" due to "unwarranted failure" or willful behavior. Id. § 1271(a)(4), ELR STAT. SMCRA § 521(a)(4). The latter provision does not seek compliance; rather, it removes the privilege to operate based on the permittee's record.

99. Naekel v. Department of Transp., 884 F.2d 1378 (Fed. Cir. 1989); Society for Good Will to Retarded Children, Inc. v. Cuomo, 103 F.R.D. 169 (S.D.N.Y. 1984).

100. Groves v. Heckler, 599 F. Supp. 830 (M.D. Pa. 1984).

101. 5 U.S.C. § 504(a), ELR STAT. ADMIN. PROC. § 504(a); 28 U.S.C. § 2412(d)(1), ELR STAT. ADMIN. PROC. § 2412(d)(1).

102. 142 CONG. REC. E573 (daily ed. Apr. 19, 1996) (summary of the SBREFA by Rep. Hyde). This remarkable explanatory paragraph did not exist in the substantially similar summary of the bill placed in the Congressional Record by Senator Bond on March 29, the day after the bill was passed, but was inserted in the later Hyde statement between two paragraphs drawn almost verbatim from the March 29 summary. Compare 142 CONG. REC. S3244 (daily ed. Mar. 29, 1996) (summary of the SBREFA by Sen. Bond).

103. The statutory formulation imposed by Congress on prior EAJA eminent domain cases avoided this problem by requiring the court to use the values testified to at trial; this made comparisons simple and required no new evidence nor the development of a new record. 28 U.S.C. § 2412(d)(2)(H), ELR STAT. ADMIN. PROC. § 2412(d)(2)(H). Indeed, because the only issue litigated in eminent domain cases is the valuation of the property, there was no need for the court to determine the divisibility of fees based on issues or portions of the case won.

104. Hensley v. Eckerhart, 461 U.S. 424, 437 (1983).

105. 142 CONG. REC. H3009 (daily ed. Mar. 28, 1996) (statement of Rep. Becerra).

106. Indeed, the agency might argue that in such a claim the private party must actually use the "prevailing party" provisions of EAJA § 504(a), providing the government with the opportunity to show that its position was "substantially justified." Even if the private party can use the new provisions, however, it will have less to show in the way of "demand" if the claim has been bifurcated (especially if the government agency has only recited the statutory maximum at that phase of the case).

107. U.S. EPA, OFFICE OF REGULATORY ENFORCEMENT, INTERIM GUIDANCE ON ADMINISTRATIVE AND CIVIL JUDICIAL ENFORCEMENT FOLLOWING RECENT AMENDMENTS TO THE EQUAL ACCESS TO JUSTICE ACT (1996) (available from the ELR Document Service, ELR Order No. AD-3019).

108. Compare 5 U.S.C. § 504(b)(1)(F), ELR STAT. ADMIN. PROC. § 504(b)(1)(F) and 28 U.S.C. § 2412(d)(2)(I), ELR STAT. ADMIN. PROC. § 2412(d)(2)(1).

109. 142 CONG. REC. E573 (daily ed. Apr. 19, 1996) (summary of the SBREFA by Rep. Hyde). 142 CONG. REC. S3244 (daily ed. Mar. 29, 1996) (summary of the SBREFA by Sen. Bond).

110. Compare 5 U.S.C. § 504(b)(1)(F), ELR STAT. ADMIN. PROC. § 504(b)(1)(F) and 28 U.S.C. § 2412(d)(2)(I), ELR STAT. ADMIN. PROC. § 2412(d)(2)(I).

26 ELR 10569 | Environmental Law Reporter | copyright © 1996 | All rights reserved