Revised Model Rules for Implementation of the Equal Access to Justice Act, 38934-38937 [2019-16768]

Agencies

• Administrative Conference of the United States

[Federal Register Volume 84, Number 153 (Thursday, August 8, 2019)]
[Notices]
[Pages 38934-38937]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16768]


-----------------------------------------------------------------------

ADMINISTRATIVE CONFERENCE OF THE UNITED STATES


Revised Model Rules for Implementation of the Equal Access to 
Justice Act

AGENCY: Administrative Conference of the United States.

ACTION: Notice of availability; Revised Model Rules for Implementation 
of the Equal Access to Justice Act.

-----------------------------------------------------------------------

SUMMARY: The Office of the Chairman of the Administrative Conference of 
the United States is issuing these Revised Model Rules for 
Implementation of the Equal Access to Justice Act. These Revised Model 
Rules update the uniform procedures for the submission and 
consideration of applications for attorney fees under the Equal Access 
to Justice Act that were last issued in 1986. These Revised Model Rules 
reflect, among other things, amendments to the Act made by the Small 
Business Regulatory Enforcement Fairness Act and evolving adjudicative 
practices. They are designed to assist Federal agencies in adopting or 
modifying their own regulations for implementation of the Act.

FOR FURTHER INFORMATION CONTACT: Alexandria Tindall Webb, Attorney 
Advisor, Administrative Conference of the United States, Suite 706 
South, 1120 20th Street NW, Washington, DC 20036; Telephone 202-480-
2080.

SUPPLEMENTARY INFORMATION: The Administrative Conference Act, 5 U.S.C. 
591-596, established the Administrative Conference of the United 
States. The Conference studies the efficiency, adequacy, and fairness 
of the administrative procedures used by Federal agencies and makes 
recommendations to agencies, the President, Congress, and the Judicial 
Conference of the United States for procedural improvements (5 U.S.C. 
594(1)). For further information about the Conference and its 
activities, see www.acus.gov.
    The Equal Access to Justice Act (EAJA), first enacted in 1980, 
authorizes the award of attorney fees and other expenses to eligible 
parties who prevail against the Federal government in judicial 
proceedings and certain adversarial agency adjudicative proceedings, 
where the position of the government is not substantially justified.\1\ 
In the case of certain adversarial agency adjudications, ``[a]fter 
consultation with the Chairman of the Administrative Conference of the 
United States, each agency shall by rule establish uniform procedures 
for the submission and consideration of applications for an award of 
fees and other expenses.'' \2\ In furtherance of this statutory 
obligation, the Conference Chairman in 1981 issued a set of Model Rules 
for agencies to use when adopting rules for the consideration of 
applications for EAJA awards in agency adjudications.\3\ The Conference 
Chairman issued a revised set of Model Rules in 1986.\4\ Many agencies 
have since promulgated EAJA rules that are substantially based upon 
these Model Rules.\5\
---------------------------------------------------------------------------

    \1\ 5 U.S.C. 504; 28 U.S.C. 2412.
    \2\ 5 U.S.C. 504(c)(1).
    \3\ Admin. Conf. of the U.S., Equal Access to Justice Act: 
Agency Implementation, 46 FR 32,900 (June 25, 1981).
    \4\ Admin. Conf. of the U.S., Model Rules for Implementation of 
the Equal Access to Justice Act, 51 FR 16,659 (May 6, 1986) 
(previously codified at 1 C.F.R pt. 315).
    \5\ See, e.g., Equal Access to Justice Act Implementation Rule, 
79 FR 7,569 (Consumer Fin. Prot. Bureau Feb. 10, 2014) (codified as 
amended at 12 CFR pt. 1071); Equal Access to Justice Rules, 54 FR 
53,050 (Sec. Exch. Comm'n Dec. 27, 1989) (codified as amended at 17 
CFR pt. 200-01); Procedural Rules Implementing Equal Access to 
Justice Act, 51 FR 36,223 (Nat'l Labor Relations Bd. Oct. 9, 1986) 
(codified as amended at 29 CFR pt. 102); Procedural Rules; 
Miscellaneous Revisions and Corrections, 50 FR 53,302 (Fed. Trade 
Comm'n Dec. 31, 1985) (codified as amended at 16 CFR pt. 0-5).
---------------------------------------------------------------------------

    The Office of the Chairman is issuing these Revised Model Rules to 
replace the 1981 and 1986 Model Rules. They include revisions made to 
reflect changes in law and in practice during the intervening thirty 
years and to promote greater accuracy and clarity. These rules were set 
forth in an appendix to Conference Recommendation 2019-4, Revised Model 
Rules for Implementation of the Equal Access to Justice Act. 
Recommendation 2019-4 is published elsewhere in this issue of the 
Federal Register.
    Unlike the 1981 and 1986 versions, these Revised Model Rules will 
not be published in the Code of Federal Regulations (CFR). The Federal 
Register Act requires codification of agency documents of general 
applicability and legal effect in the CFR.\6\ However, these model 
rules are publishing in the Notices section of this issue of the 
Federal Register with the same intended effect of encouraging agencies 
to set out and implement these model rules as part of their own EAJA 
rules. Because these model rules are publishing in the Notices section, 
they will use a different numbering scheme than in past years. Agencies 
may use a different numbering system than what appears in the Revised 
Model Rules
---------------------------------------------------------------------------

    \6\ 44 U.S.C. 1510
---------------------------------------------------------------------------

    The most significant revision to the 1986 Model Rules is the 
elimination of much of the former Subpart A. This change was 
implemented because its provisions largely addressed substantive 
matters beyond the Conference's statutory charge. Some provisions of 
former Subpart A remain and were moved to other parts of the Revised 
Model Rules for the purpose of improved clarity. A new definitions 
section comprises Part 2 in the current revision. Additional changes 
were made to comport with the requirements of the Small Business 
Regulatory Enforcement Fairness Act, which was enacted in 1996.
    The Revised Model Rules adopted by the Conference's Assembly as an 
Appendix to Recommendation 2019-4, and now issued by the Office of the 
Chairman, were initially drafted by a special ad hoc committee that 
held public meetings to address revision of the Model Rules. The 
materials related to the meetings, including the agendas, the 1981 and 
1986 Model Rules, and draft versions of the Revised Model Rules, can be 
accessed via a dedicated web page on the Conference's website at 
https://www.acus.gov/research-projects/revised-model-rules-implementation-equal-access-justice-act.
    Agencies are encouraged to use these Revised Model Rules when 
drafting or revising their EAJA rules pertaining to adjudications in 
order to promote the uniformity of procedure contemplated by EAJA. The 
Office of the Chairman's expectations of how agencies can fulfill the 
statutory requirement of consultation with the ACUS Chairman are as 
follows. Agencies that publish proposed rules for comment should notify 
the Office of the Chairman of their publication by email to 
[email protected], using ``Model EAJA Rules Consultation'' in the subject 
line. The

[[Page 38935]]

Office of the Chairman will then provide any suggestions by reply 
email. Agencies that intend to publish final rules without a public 
comment period should send a draft to the Office of the Chairman for 
review and comment before publication if their rules depart 
significantly from these Revised Model Rules; the Office of the 
Chairman will expedite this review to the extent possible.

    Dated: August 1, 2019.
Shawne C. McGibbon,
General Counsel.

Appendix to Conference Recommendation 2019-4,

Revised Model Rules for Implementation of the Equal Access to Justice 
Act

Part 1--Scope of These Rules

Sec.  1.01 Scope of these rules.

Part 2--Definitions

    Sec.  2.01 Definitions.

Part 3--EAJA Applications

    Sec.  3.01 Application requirements.
    Sec.  3.02 Net worth exhibit.
    Sec.  3.03 Documentation of fees and expenses.

Part 4--Procedures for Considering Applications

    Sec.  4.01 Filing and service of documents.
    Sec.  4.02 Answer to application.
    Sec.  4.03 Reply.
    Sec.  4.04 Settlement.
    Sec.  4.05 Further proceedings.
    Sec.  4.06 Decision.
    Sec.  4.07 Agency review.
    Sec.  4.08 Judicial review.
    Sec.  4.09 Stay of decision concerning award.
    Sec.  4.10 Payment of award.

Part 1--Scope of These Rules

Sec.  1.01 Scope of These Rules

    The Equal Access to Justice Act, 5 U.S.C. 504 (called ``EAJA'' in 
this part), provides for the award of attorney fees and other expenses 
to eligible individuals and entities that are parties to certain 
administrative proceedings (called ``adversary adjudications'') before 
this agency. An eligible party may receive an award when it prevails 
over an agency, unless the agency's position was substantially 
justified or special circumstances make an award unjust. Alternatively, 
an eligible party, even if not a prevailing party, may receive an award 
under 5 U.S.C. 504(a)(4) when it successfully defends against an 
excessive demand made by an agency.

Part 2--Definitions

Sec.  2.01 Definitions

    For the purposes of these rules:
    (a) Adjudicative officer means the official, whether the official 
is designated as an administrative law judge or otherwise, that 
presided over the hearing at the adversary adjudication or the official 
that presides over an EAJA proceeding.
    (b) Adversary adjudication means (i) an adjudication under 5 U.S.C. 
554 in which the position of the United States is represented by 
counsel or otherwise, but excludes an adjudication for the purpose of 
establishing or fixing a rate or for the purpose of granting or 
renewing a license, (ii) any appeal of a decision made pursuant to 41 
U.S.C. 7103 before an agency board of contract appeals as provided in 
41 U.S.C. 7105, (iii) any hearing conducted under 31 U.S.C. 3801 et 
seq., and (iv) the Religious Freedom Restoration Act of 1993.\1\
---------------------------------------------------------------------------

    \1\ The language that appears under subsection 315.201(b)(iv) 
was drawn directly from the Equal Access to Justice Act. 5 U.S.C. 
504. The statute does not identify what adjudications involving the 
Religious Freedom Restoration Act of 1993 are covered.
---------------------------------------------------------------------------

    (c) Demand means the express demand of the agency which led to the 
adversary adjudication, but does not include a recitation by the agency 
of the maximum statutory penalty (i) in the administrative complaint, 
or (ii) elsewhere when accompanied by an express demand for a lesser 
amount.
    (d) Excessive demand means a demand by an agency, in an adversary 
adjudication arising from an agency action to enforce a party's 
compliance with a statutory requirement, that 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.
    (e) Final disposition means the date on which a decision or order 
disposing of the merits of the proceeding or any other complete 
resolution of the proceeding, such as a settlement or voluntary 
dismissal, become final and unappealable, both within the agency and to 
the courts.
    (f) Party means a party, as defined in 5 U.S.C. 551(3), that is (i) 
an individual whose net worth did not exceed $2,000,000 at the time the 
adversary adjudication was initiated, or (ii) any owner of an 
unincorporated business, or any partnership, corporation, association, 
unit of local government, or organization, the net worth of which did 
not exceed $7,000,000 at the time the adversary adjudication was 
initiated, and which had not more than 500 employees at the time the 
adversary adjudication was initiated; except that an organization 
described in section 501(c)(3) of the Internal Revenue Code of 1986 
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, may be a party regardless of the net worth of such 
organization or cooperative association. For purposes of 5 U.S.C. 
504(a)(4), ``party'' also includes a small entity as defined in 5 
U.S.C. 601.
    (g) Position of the agency means, in addition to the position taken 
by the agency in the adversary adjudication, the action or failure to 
act by the agency upon which the adversary adjudication is based, 
except that fees and other expenses may not be awarded to a party for 
any portion of the adversary adjudication in which the party has 
unreasonably protracted the proceedings.

Part 3--EAJA Applications

Sec.  3.01 Application Requirements

    (a) A party seeking an award under EAJA shall file an application 
with the agency that conducted the adversarial adjudication within 30 
days after the agency's final disposition of the adversary 
adjudication.
    (b) The application shall identify the applicant and the proceeding 
for which an award is sought. The application shall show that the 
applicant has prevailed and identify the position of the agency or 
agencies that the applicant alleges was not substantially justified; 
or, if the applicant has not prevailed, shall show that the agency's 
demand was substantially in excess of the decision of the adjudicative 
officer and was unreasonable when compared with that decision under the 
facts and circumstances of that case. The application shall also 
identify the agency position(s) in the proceeding that the applicant 
alleges was (were) not substantially justified or the agency's demand 
that is alleged to be excessive and unreasonable. Unless the applicant 
is an individual, the application shall also state the number of 
employees of the applicant and describe briefly the type and purpose of 
its organization or business.
    (c) The application shall also show that the applicant meets the 
definition of ``party'' in 5 U.S.C. 504(b)(1)(B), including adequate 
documentation of its net worth, as set forth in section 315.302.
    (d) The application shall state the amount of fees and expenses for 
which an award is sought, subject to the requirements and limitations 
as set forth in 5 U.S.C. 504(b)(1)(A), with adequate

[[Page 38936]]

documentation as set forth in section 315.303.
    (e) The application shall be signed by the applicant or an 
authorized officer or attorney of the applicant. It shall also contain 
or be accompanied by a written verification under penalty of perjury 
that the information provided in the application is true and correct.

Sec.  3.02 Net Worth Exhibit

    (a) Each applicant except a qualified tax-exempt organization, 
cooperative association, or, in the case of an application for an award 
related to an allegedly excessive demand by the agency, a small entity 
as that term is defined by 5 U.S.C. 601, shall provide with its 
application a detailed exhibit showing the net worth of the applicant 
is as represented in the statement required by section 315.301(c) when 
the proceeding was initiated. The exhibit may be in any form convenient 
to the applicant that provides full disclosure of the applicant's 
assets and liabilities and is sufficient to determine whether the 
applicant qualifies under the standards provided in section 315.201(e). 
An adjudicative officer presiding over an EAJA proceeding may require 
an applicant to file additional information to determine its 
eligibility for an award.
    (b) Ordinarily, the net worth exhibit will be included in the 
public record of the proceeding. However, an applicant that objects to 
public disclosure of information in any portion of the exhibit and 
believes there are legal grounds for withholding it from disclosure may 
request that the documents be filed under seal or otherwise be treated 
as confidential, pursuant to [insert cross-reference to appropriate 
agency rules governing such requests].

Sec.  3.03 Documentation of Fees and Expenses

    The application shall be accompanied by adequate documentation of 
the fees and other expenses incurred after initiation of the adversary 
adjudication, including, but not limited to, the reasonable cost of any 
study, analysis, engineering report, test, or project. With respect to 
a claim for fees and expenses involving an excessive demand by the 
agency, the application shall be accompanied by adequate documentation 
of such fees and expenses incurred after initiation of the adversary 
adjudication for which an award is sought attributable to the portion 
of the demand alleged to be excessive and unreasonable. A separate 
itemized statement shall be submitted for each professional firm or 
individual whose services are covered by the application, showing the 
hours spent in connection with the proceeding by each individual, a 
description of the specific services performed, the rate at which each 
fee has been computed, any expenses for which reimbursement is sought, 
the total amount claimed, and the total amount paid or payable by the 
applicant or by any other person or entity for the services provided. 
An adjudicative officer presiding over an EAJA proceeding may require 
the applicant to provide vouchers, receipts, or other substantiation 
for any expenses claimed.

Part 4--Procedures for Considering Applications

Sec.  4.01 Filing and Service of Documents

    Any application for an award, or any accompanying documentation 
related to an application, shall be filed and served on all parties to 
the proceeding in the same manner as other pleadings in the proceeding, 
except, as provided in section 315.302(b), for confidential financial 
information.

Sec.  4.02 Answer to Application

    (a) Within 30 days after service of an application, counsel 
representing the agency against which an award is sought may file an 
answer to the application. Unless agency counsel requests an extension 
of time for filing or files a statement of intent to negotiate under 
paragraph (b) of this section, failure to file an answer within the 30-
day period may be treated as a consent to the award requested.
    (b) If agency counsel and the applicant believe that the issues in 
the fee application can be settled, they may jointly file a statement 
of their intent to negotiate a settlement. The filing of this statement 
shall extend the time for filing an answer for an additional 30 days, 
and further extensions may be granted by the adjudicative officer 
presiding over an EAJA proceeding upon request by agency counsel and 
the applicant.
    (c) The answer shall explain in detail any objections to the award 
requested and identify the facts relied upon in support of agency 
counsel's position. If the answer is based on any alleged facts not 
already in the record of the proceeding, agency counsel shall include 
with the answer either supporting affidavits or a request for further 
proceedings under section 315.405.

Sec.  4.03 Reply

    Within 15 days after service of an answer, the applicant may file a 
reply. If the reply is based on any alleged facts not already in the 
record of the proceeding, the applicant shall include with the reply 
either supporting affidavits or a request for further proceedings under 
section 315.405.

Sec.  4.04 Settlement

    The applicant and agency counsel may agree on a proposed settlement 
of the award before final action on the application, either in 
connection with a settlement of the underlying adversary adjudication, 
or after the adversary adjudication has been concluded, in accordance 
with the agency's standard settlement procedure. If a prevailing party 
and agency counsel agree on a proposed settlement of an award before an 
application has been filed, the application shall be filed with the 
proposed settlement. If a proposed settlement of an underlying 
proceeding provides that each side shall bear its own expenses and the 
settlement is accepted, no application may be filed.

Sec.  4.05 Further Proceedings

    (a) Ordinarily, the determination of an award will be made on the 
basis of the written record. However, on request of either the 
applicant or agency counsel, or on his or her own initiative, the 
adjudicative officer presiding over an EAJA proceeding may, if 
necessary for a full and fair decision on the application, order the 
filing of additional written submissions; hold oral argument; or allow 
for discovery or hold an evidentiary hearing, but only as to issues 
other than whether the agency's position was substantially justified 
(such as those involving the applicant's eligibility or substantiation 
of fees and expenses). Any written submissions shall be made, oral 
argument held, discovery conducted, and evidentiary hearing held as 
promptly as possible so as not to delay a decision on the application 
for fees. Whether or not the position of the agency was substantially 
justified shall be determined on the basis of the administrative 
record, as a whole, which is made in the adversary adjudication for 
which fees and other expenses are sought.
    (b) A request for further proceedings under this section shall 
specifically identify the information sought or the disputed issues and 
shall explain why the additional proceedings are necessary to resolve 
the issues.

Sec.  4.06 Decision

    The adjudicative officer presiding over an EAJA proceeding shall 
issue an [initial or recommended] \2\ decision on

[[Page 38937]]

the application within [60 days] after the time for filing a reply, or 
when further proceedings are held, within [60 days] after completion of 
such proceedings.
---------------------------------------------------------------------------

    \2\ Brackets such as these indicate that an agency is to use its 
discretion to determine what language or time frame is most 
appropriate.
---------------------------------------------------------------------------

    (a) For an application involving a prevailing party. The decision 
on the application shall include written findings and conclusions on 
the applicant's eligibility and status as a prevailing party and an 
explanation of the reasons for any difference between the amount 
requested and the amount awarded. The decision shall also include, if 
applicable, findings on whether the agency's position was substantially 
justified, whether the applicant unduly protracted the proceedings, or 
whether special circumstances make an award unjust.
    (b) For an application involving an allegedly excessive agency 
demand. The decision on the application shall include written findings 
and conclusions on the applicant's eligibility and an explanation of 
the reasons why the agency's demand was or was not determined to be 
substantially in excess of the underlying decision of the adjudicative 
officer and was or was not unreasonable when compared with that 
decision. That determination shall be based upon all the facts and 
circumstances of the case. The decision on the application shall also 
include, if at issue, findings on whether the applicant has committed a 
willful violation of law or otherwise acted in bad faith, or whether 
special circumstances make an award unjust.
    (c) Awards. An adjudicative officer presiding over an EAJA 
proceeding may reduce the amount to be awarded, or deny any award, to 
the extent that the party during the course of the proceedings engaged 
in conduct which unduly and unreasonably protracted the final 
resolution of the matter in controversy.

Sec.  4.07 Agency Review

    Either the applicant or agency counsel may seek review of the 
decision of the adjudicative officer on the fee application, or the 
agency may decide to review the decision on its own initiative, in 
accordance with [insert cross-reference to agency's regular review 
procedures].

Sec.  4.08 Judicial Review

    Judicial review of final agency decisions on awards may be sought 
as provided in 5 U.S.C. 504(c)(2).

Sec.  4.09 Stay of Decision Concerning Award

    Any proceedings on an application for fees under these rules shall 
be automatically stayed until the agency's final disposition of the 
decision on which the application is based and either the time period 
for seeking judicial review expires, or if review has been sought, 
until final disposition is made by a court and no further judicial 
review is available.

Sec.  4.10 Payment of Award

    An applicant seeking payment of an award shall submit to the 
[comptroller or other disbursing official] of the paying agency a copy 
of the agency's final decision granting the award, accompanied by a 
certification that the applicant will not seek review of the decision 
in the United States courts. [Include here address for submissions at 
specific agency.] The agency will pay the amount awarded to the 
applicant within [60 days].
[FR Doc. 2019-16768 Filed 8-7-19; 8:45 am]
 BILLING CODE 6110-01-P