[House Report 113-434]
[From the U.S. Government Publishing Office]
113th Congress Report
HOUSE OF REPRESENTATIVES
2d Session 113-434
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OPEN BOOK ON EQUAL ACCESS TO JUSTICE ACT
_______
May 6, 2014.--Committed to the Committee of the Whole House on the
State of the Union and ordered to be printed
_______
Mr. Goodlatte, from the Committee on the Judiciary, submitted the
following
R E P O R T
[To accompany H.R. 2919]
[Including cost estimate of the Congressional Budget Office]
The Committee on the Judiciary, to whom was referred the
bill (H.R. 2919) to amend titles 5 and 28, United States Code,
to require annual reports to Congress on, and the maintenance
of databases on, awards of fees and other expenses to
prevailing parties in certain administrative proceedings and
court cases to which the United States is a party, and for
other purposes, having considered the same, reports favorably
thereon without amendment and recommends that the bill do pass.
CONTENTS
Page
Purpose and Summary.............................................. 1
Background and Need for the Legislation.......................... 2
Hearings......................................................... 4
Committee Consideration.......................................... 4
Committee Votes.................................................. 5
Committee Oversight Findings..................................... 5
New Budget Authority and Tax Expenditures........................ 5
Congressional Budget Office Cost Estimate........................ 5
Duplication of Federal Programs.................................. 6
Disclosure of Directed Rule Makings.............................. 6
Performance Goals and Objectives................................. 6
Advisory on Earmarks............................................. 6
Section-by-Section Analysis...................................... 6
Changes in Existing Law Made by the Bill, as Reported............ 7
Purpose and Summary
H.R. 2919, the ``Open Book on Equal Access to Justice
Act,'' reinstates tracking and reporting requirements of
payments made by the Federal Government under the Equal Access
to Justice Act (EAJA). The bill requires every Federal agency
to once again track EAJA payments and tasks the Administrative
Conference of the United States (ACUS) with compiling the data.
After compiling the data, the bill requires ACUS to submit an
annual report to Congress and to establish an online searchable
database to allow the public access to the data on EAJA
payments. The current lack of any comprehensive reporting and
record keeping regarding the actual use of EAJA in courts and
administrative proceedings makes it difficult, if not
impossible, for Congress to assess accurately the impact and
effectiveness of EAJA.
Background and Need for the Legislation
Absent a specific statute authorizing fee-shifting, a party
prevailing in litigation against the Federal Government is not
entitled to recover attorneys' fees from the United States.
This is because under the American rule parties to litigation
must bear their own legal fees.\1\ Although there are limited
common law exceptions to the American rule, because of the
doctrine of sovereign immunity these exceptions do not apply to
the Federal Government without express statutory authorization.
Despite the American rule, Congress has enacted several fee-
shifting provisions permitting litigants to recover attorneys'
fees against the United States, including the Endangered
Species Act and Title VII of the Civil Rights Act of 1964.
Additionally, Congress enacted EAJA to serve as a general fee-
shifting statute in cases and adversarial administrative
proceedings in which the United States is a party.
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\1\See, e.g., Alyeska Pipelines Serv. Co. v. Wilderness Soc'y, 421
U.S. 240, 247 (1975) (``In the United States, the prevailing litigant
typically is not entitled to collect a reasonable attorney's fee from
the loser.'').
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A. THE EQUAL ACCESS TO JUSTICE ACT
In October 1980, Congress passed, and the President signed
into law, EAJA\2\ as part of a broader small business
assistance bill, ``in response to widespread sentiment that
administrative agencies were burdening small businesses with
excessive regulation.''\3\ As the Supreme Court has noted, EAJA
was adopted with the ``specific purpose'' of ``eliminat[ing]
for the average person the financial disincentive to challenge
unreasonable governmental actions.''\4\ EAJA was re-enacted and
made permanent in 1985.\5\
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\2\96 P.L. 481, 94 Stat. 2321 (Oct. 21, 1980) (EAJA was originally
titled the ``Small Business Equal Access to Justice Act'').
\3\John W. Finley III, ``Unjust Access to the Equal Access to
Justice Act: A Proposal to Close the Act's Eligibility Loophole for
Members of Trade Associations,'' 53 Wash. U. J. Urb. & Contemp. L. 243,
247 (Winter 1998).
\4\Comm'r v. Jean, 496 U.S. 154, 163 (1990).
\5\99 P.L. 80, 99 Stat. 183 (Aug. 5, 1985).
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Civil litigation can become a war of attrition as parties
strategically try to deplete one another's resources to force a
settlement. Fundamentally, EAJA recognizes the enormous
``disparity of resources between individuals, small businesses,
and other organizations with limited resources and the Federal
Government.''\6\ Unlike any person or corporation, the Federal
Government literally has thousands of attorneys at its
immediate disposal (none of whom bill their time on an hourly
basis). This imbalance could discourage a citizen from hiring
counsel to challenge an abusive government policy or could
induce a citizen to settle a capricious civil or administrative
enforcement action on unfavorable terms. EAJA ``is meant to
discourage the Federal Government from using its superior
litigating resources unreasonably--it is in this respect an
`anti-bully' law.''\7\ Consequently, EAJA ``probably is the
most important'' and also ``among the most litigated'' of the
Federal fee-shifting statutes.\8\
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\6\Christopher R. Kelley, ``Attorney's Fee Awards for Unreasonable
Government Conduct: Notes on the Equal Access to Justice Act,'' 2004
Ark. L. Notes 65, 66 (2004) (quoting H.R. Rep. No. 99-120, at 4
(1985)).
\7\Battles Farm Co. v. Pierce, 806 F.2d 1098, 1101 (D.C. Cir.
1986).
\8\Kelley, supra note 6, at 65.
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EAJA is a one-way fee-shifting statute, allowing the
recovery of attorneys' fees and costs from the United States in
certain circumstances. First, EAJA makes the United States
liable for attorneys' fees to the same extent as any other
party under a common law or statutory exception to the American
rule.\9\ Thus, for example, if the United States litigates a
case in bad faith, then the common law bad faith exception to
the American rule could be used, pursuant to EAJA, to require
the United States to pay the prevailing party's attorneys' fees
and costs. If a party prevails in litigation against the United
States and is awarded attorneys' fees under a court order or
settlement under this provision in EAJA, the amounts generally
are paid from the Treasury Department's Judgment Fund.\10\
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\9\See 28 U.S.C. Sec. 2412(b).
\10\See 31 U.S.C. Sec. 1304. The Judgment Fund is a permanent,
indefinite appropriation that pays judgments against Federal agencies
that are not otherwise provided for by other appropriations.
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Second, EAJA allows certain parties who prevail against the
United States in any civil litigation (other than cases
sounding in tort) or in an administrative adjudication to
recover attorneys' fees unless the position of the United
States was ``substantially justified'' or ``special
circumstances make an award unjust.''\11\ EAJA puts the burden
on the government to show that its position was substantially
justified, and the Supreme Court has interpreted EAJA's
``substantially justified'' standard as equivalent to
reasonableness.\12\ If attorneys' fees are awarded under this
provision in EAJA, the funds are to be paid ``from any funds
made available to the agency by appropriation or
otherwise.''\13\
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\11\See 28 U.S.C. Sec. 2412(d); 5 U.S.C. Sec. 504(a).
\12\See Pierce v. Underwood, 487 U.S. 552, 565 (1988) (``We are of
the view, therefore, that as between the two commonly used connotations
of the word `substantially,' the one most naturally conveyed by the
phrase before us here is not `justified to a high degree,' but rather
`justified in substance or in the main'--that is, justified to a degree
that could satisfy a reasonable person.'').
\13\5 U.S.C. Sec. 504(d); 28 U.S.C. Sec. 2412(d)(4).
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EAJA awards are not available to all prevailing parties in
litigation and administrative proceedings against the United
States. Only individuals with a net worth of less than $2
million, organizations worth less than $7 million with fewer
than 500 employees, and tax-exempt 501(c)(3) organizations and
cooperative associations under the Agricultural Marketing Act
can collect attorneys' fees from the Federal Government under
EAJA.\14\ Furthermore, attorneys' fees are capped at $125 per
hour, unless ``a special factor, such as the limited
availability of qualified attorneys or agents for the
proceedings involved, justifies a higher fee.''\15\
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\14\28 U.S.C. Sec. 2412(d)(2)(B); 5 U.S.C. Sec. 504(b)(1)(B).
\15\5 U.S.C. Sec. 504(b)(1)(A); 28 U.S.C. Sec. 2412(d)(2)(A).
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B. REPEALED EAJA REPORTING REQUIREMENTS
From 1981 through 1995, EAJA provided for government-wide
reporting on payments of attorneys' fees and costs made
pursuant to EAJA in two annual reports to Congress. One of the
reports, compiled by ACUS, described administratively awarded
payments.\16\ The second report described court-awarded
payments and was issued initially by the Administrative Office
of the U.S. Courts and later by the Attorney General.\17\ In
1995, Congress defunded ACUS and repealed the EAJA reporting
requirements, thereby eliminating the statutory mechanism to
oversee EAJA expenditures.\18\ ACUS was re-established in 2010,
but the requirements to report on attorneys' fee payments have
not been re-enacted. Accordingly, there has been no official
government-wide accounting of EAJA payments since fiscal year
1994.
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\16\28 U.S.C. Sec. 504.
\17\The reporting requirement was transferred to the Attorney
General by the Federal Courts Administration Act of 1992, Title V,
Sec. 502, Pub. L. No. 102-572.
\18\Federal Reports Elimination and Sunset Act of 1995 (FRESA),
Pub. L. No. 104-66, Sec. Sec. 1091, 3003. According to ACUS,
``[s]ection 3003(a)(l) of FRESA, enacted after ACUS ceased operations,
provides: ``Subject to the provisions of paragraph (2) of this
subsection and subsection (d), each provision of law requiring the
submittal to Congress (or any committee of the Congress) of any annual,
semiannual, or other regular periodic report specified on the list
described under subsection (c) shall cease to be effective, with
respect to that requirement, 4 years after the date of the enactment of
this Act.'' Subsection (c) reads: ``The list referred to under
subsection (a) is the list prepared by the Clerk of the House of
Representatives for the first session of the One Hundred Third Congress
under clause 2 of rule III of the Rules of the House of Representatives
(House Document No. 103-7).'' That report (at page 153) expressly
identifies ACUS' annual reporting requirement under 5 U.S.C.
Sec. 504(e). Thus ACUS' reporting requirement was repealed pursuant to
FRESA and the related House Document No. 103-7. Section 504(e) of Title
5 was never amended by (or even mentioned in) section 3003(a)(l) of the
1995 Act. The editorial notes to Sec. 504, though, do identify that
section. The requirement that the Attorney General report annually on
court awards under the Act was also repealed at the same time by
section 1091 of Pub. L. 104-66.'' Administrative Conference of the
United States, ``Report of the Chairman on Agency and Court Awards in
FY 2010 Under the Equal Access to Justice Act'' (2013).
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C. THE LEGISLATION
The Open Book on Equal Access to Justice Act, reinstates
tracking and reporting requirements of payments made by the
Federal Government under the Equal Access to Justice Act
(EAJA). The bill requires every Federal agency to once again
track EAJA payments and tasks the Administrative Conference of
the United States (ACUS) with compiling the data. After
compiling the data, the bill requires ACUS to submit an annual
report to Congress and to establish an online searchable
database to allow the public access to the data on EAJA
payments. The current lack of any comprehensive reporting and
record keeping regarding the actual use of EAJA in courts and
administrative proceedings makes it difficult, if not
impossible, for Congress to assess accurately the impact and
effectiveness of EAJA.
Hearings
The Committee on the Judiciary held no hearings on H.R.
2919.
Committee Consideration
On February 5, 2014, the Committee met in open session and
ordered the bill H.R. 2919 favorably reported, without
amendment, by voice vote, a quorum being present.
Committee Votes
In compliance with clause 3(b) of rule XIII of the Rules of
the House of Representatives, the Committee advises that there
were no recorded votes during the Committee's consideration of
H.R. 2919.
Committee Oversight Findings
In compliance with clause 3(c)(1) of rule XIII of the Rules
of the House of Representatives, the Committee advises that the
findings and recommendations of the Committee, based on
oversight activities under clause 2(b)(1) of rule X of the
Rules of the House of Representatives, are incorporated in the
descriptive portions of this report.
New Budget Authority and Tax Expenditures
Clause 3(c)(2) of rule XIII of the Rules of the House of
Representatives is inapplicable because this legislation does
not provide new budgetary authority or increased tax
expenditures.
Congressional Budget Office Cost Estimate
In compliance with clause 3(c)(3) of rule XIII of the Rules
of the House of Representatives, the Committee sets forth, with
respect to the bill, H.R. 2919, the following estimate and
comparison prepared by the Director of the Congressional Budget
Office under section 402 of the Congressional Budget Act of
1974:
U.S. Congress,
Congressional Budget Office,
Washington, DC, February 27, 2014.
Hon. Bob Goodlatte, Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
Dear Mr. Chairman: The Congressional Budget Office has
prepared the enclosed cost estimate for H.R. 2919, the ``Open
Book on Equal Access to Justice Act.''
If you wish further details on this estimate, we will be
pleased to provide them. The CBO staff contact is Mark
Grabowicz, who can be reached at 226-2860.
Sincerely,
Douglas W. Elmendorf,
Director.
Enclosure
cc:
Honorable John Conyers, Jr.
Ranking Member
H.R. 2919--Open Book on Equal Access to Justice Act.
As ordered reported by the House Committee on the Judiciary
on February 5, 2014.
H.R. 2919 would require the Administrative Conference of
the United States (ACUS) to prepare a report each year on the
amount of fees and other expenses awarded by Federal courts to
nonfederal entities when they prevail in a case against the
United States. The bill also would require the ACUS to create
an online searchable database containing information about
cases in which fees and expenses were awarded by courts or
Federal agencies. The ACUS is an independent agency that
assists other agencies of the Federal Government in improving
regulatory and other administrative procedures.
Based on information from the ACUS, CBO estimates that
implementing H.R. 2919 would cost about $1 million in fiscal
year 2015 and less than $500,000 each year thereafter, assuming
appropriation of the necessary amounts. These funds would cover
costs for additional ACUS staff, technological upgrades, and
data collection by Federal agencies. Enacting the bill would
not affect direct spending or revenues; therefore, pay-as-you-
go procedures do not apply.
H.R. 2919 contains no intergovernmental or private-sector
mandates as defined in the Unfunded Mandates Reform Act and
would not affect the budgets of state, local, or tribal
governments.
The CBO staff contact for this estimate is Mark Grabowicz.
The estimate was approved by Theresa Gullo, Deputy Assistant
Director for Budget Analysis.
Duplication of Federal Programs
No provision of H.R. 2919 establishes or reauthorizes a
program of the Federal Government known to be duplicative of
another Federal program, a program that was included in any
report from the Government Accountability Office to Congress
pursuant to section 21 of Public Law 111-139, or a program
related to a program identified in the most recent Catalog of
Federal Domestic Assistance.
Disclosure of Directed Rule Makings
The Committee estimates that H.R. 2919 specifically directs
to be completed no specific rule makings within the meaning of
5 U.S.C. Sec. 551.
Performance Goals and Objectives
The Committee states that pursuant to clause 3(c)(4) of
rule XIII of the Rules of the House of Representatives, H.R.
2919, will reinstate tracking and reporting requirements of
payments made by the Federal Government under the Equal Access
to Justice Act.
Advisory on Earmarks
In accordance with clause 9 of rule XXI of the Rules of the
House of Representatives, H.R. 2919 does not contain any
congressional earmarks, limited tax benefits, or limited tariff
benefits as defined in clause 9(e), 9(f), or 9(g) of Rule XXI.
Section-by-Section Analysis
The following discussion describes the bill as reported by
the Committee.
Section 1. Short Title.
Section 1 provides for the short title of the legislation,
the ``Open Book on Equal Access to Justice Act.''
Section 2. Modification of Equal Access to Justice Provisions.
Section 2 makes technical corrections to 5 U.S.C. Sec. 504
and 28 U.S.C. Sec. 2412 by striking two extraneous references
to the ``United States Code'' in those sections and, more
importantly, re-establishes and modifies the EAJA tracking and
reporting requirements contained in 5 U.S.C. Sec. 504 for EAJA
awards made as part of agency adjudications and in 28 U.S.C.
Sec. 2412(d) for EAJA awards made in court cases.
Specifically, section 2(a) provides that each year, by
March 31, the Administrative Conference of the United States
(ACUS) is required to submit a report to Congress on the amount
of attorneys' fees and other expenses awarded during the
preceding fiscal year in administrative proceedings. The report
is to describe the number, nature and amount of the awards, the
claims involved, and any other information that may aid
Congress in evaluating the scope and impact of EAJA awards. In
addition, ACUS is required to make the report and some
additional data about EAJA awards available online in a
searchable database. This information includes: the case name
and number of the adversary adjudication, if available; a
description of the claims in the adversary adjudication; the
amount of the award; and the basis for the finding that the
position of the agency concerned was not substantially
justified.
Section 2(b), which applies to EAJA payments in court
cases, mirrors section 2(a) and provides that ACUS is required
to provide a report on EAJA payments made in litigated cases to
Congress each year by March 31. The contents of the report and
the information that ACUS is to provide online are the same as
the information required under section 2(a) for administrative
proceedings.
Additionally, both section 2(a) and 2(b) require that the
online database created by ACUS may not reveal any information
the disclosure of which is prohibited by law or court order.
Moreover, the heads of Federal agencies are required to provide
ACUS with the information needed to comply with the bill's
reporting requirements in a timely manner.
Finally, section 2(c) makes two clerical amendments to 28
U.S.C. Sec. 2412 and section 2(d) establishes an effective date
for the reporting and online database creation requirements.
Changes in Existing Law Made by the Bill, as Reported
In compliance with clause 3(e) of rule XIII of the Rules of
the House of Representatives, changes in existing law made by
the bill, as reported, are shown as follows (existing law
proposed to be omitted is enclosed in black brackets, new
matter is printed in italics, existing law in which no change
is proposed is shown in roman):
TITLE 5, UNITED STATES CODE
* * * * * * *
PART I--THE AGENCIES GENERALLY
* * * * * * *
CHAPTER 5--ADMINISTRATIVE PROCEDURE
SUBCHAPTER I--GENERAL PROVISIONS
* * * * * * *
Sec. 504. Costs and fees of parties
(a) * * *
* * * * * * *
(c)(1) After 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. If a court reviews the underlying decision of
the adversary adjudication, an award for fees and other
expenses may be made only pursuant to section 2412(d)(3) of
title 28[, United States Code].
* * * * * * *
[(e) The Chairman of the Administrative Conference of the
United States, after consultation with the Chief Counsel for
Advocacy of the Small Business Administration, shall report
annually to the Congress on the amount of fees and other
expenses awarded during the preceding fiscal year pursuant to
this section. The report shall describe the number, nature, and
amount of the awards, the claims involved in the controversy,
and any other relevant information which may aid the Congress
in evaluating the scope and impact of such awards. Each agency
shall provide the Chairman with such information as is
necessary for the Chairman to comply with the requirements of
this subsection.]
(e)(1) The Chairman of the Administrative Conference of the
United States, after consultation with the Chief Counsel for
Advocacy of the Small Business Administration, shall report to
the Congress, not later than March 31 of each year, on the
amount of fees and other expenses awarded during the preceding
fiscal year pursuant to this section. The report shall describe
the number, nature, and amount of the awards, the claims
involved in the controversy, and any other relevant information
that may aid the Congress in evaluating the scope and impact of
such awards. The report shall be made available to the public
online.
(2)(A) The report required by paragraph (1) shall account for
all payments of fees and other expenses awarded under this
section that are made pursuant to a settlement agreement,
regardless of whether the settlement agreement is sealed or
otherwise subject to nondisclosure provisions.
(B) The disclosure of fees and other expenses required under
subparagraph (A) does not affect any other information that is
subject to nondisclosure provisions in the settlement
agreement.
(f) The Chairman of the Administrative Conference shall
create and maintain online a searchable database containing the
following information with respect to each award of fees and
other expenses under this section:
(1) The case name and number of the adversary
adjudication, if available, hyperlinked to the case, if
available.
(2) The name of the agency involved in the adversary
adjudication.
(3) A description of the claims in the adversary
adjudication.
(4) The name of each party to whom the award was
made.
(5) The amount of the award.
(6) The basis for the finding that the position of
the agency concerned was not substantially justified.
(g) The online searchable database described in subsection
(f) may not reveal any information the disclosure of which is
prohibited by law or court order.
(h) The head of each agency shall provide to the Chairman of
the Administrative Conference in a timely manner all
information requested by the Chairman to comply with the
requirements of subsections (e), (f), and (g).
[(f)] (i) No award may be made under this section for costs,
fees, or other expenses which may be awarded under section 7430
of the Internal Revenue Code of 1986.
* * * * * * *
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SECTION 2412 OF TITLE 28, UNITED STATES CODE
Sec. 2412. Costs and fees
(a) * * *
* * * * * * *
(d)(1) * * *
* * * * * * *
(3) In awarding fees and other expenses under this subsection
to a prevailing party in any action for judicial review of an
adversary adjudication, as defined in subsection (b)(1)(C) of
section 504 of title 5, [United States Code,] or an adversary
adjudication subject to chapter 71 of title 41, the court shall
include in that award fees and other expenses to the same
extent authorized in subsection (a) of such section, unless the
court finds that during such adversary adjudication the
position of the United States was substantially justified, or
that special circumstances make an award unjust.
* * * * * * *
(5)(A) The Chairman of the Administrative Conference of the
United States shall submit to the Congress, not later than
March 31 of each year, a report on the amount of fees and other
expenses awarded during the preceding fiscal year pursuant to
this subsection. The report shall describe the number, nature,
and amount of the awards, the claims involved in each
controversy, and any other relevant information that may aid
the Congress in evaluating the scope and impact of such awards.
The report shall be made available to the public online.
(B)(i) The report required by subparagraph (A) shall account
for all payments of fees and other expenses awarded under this
subsection that are made pursuant to a settlement agreement,
regardless of whether the settlement agreement is sealed or
otherwise subject to nondisclosure provisions.
(ii) The disclosure of fees and other expenses required under
clause (i) does not affect any other information that is
subject to nondisclosure provisions in the settlement
agreement.
(C) The Chairman of the Administrative Conference shall
include and clearly identify in the annual report under
subparagraph (A), for each case in which an award of fees and
other expenses is included in the report--
(i) any amounts paid from section 1304 of title 31
for a judgment in the case;
(ii) the amount of the award of fees and other
expenses; and
(iii) the statute under which the plaintiff filed
suit.
(6) The Chairman of the Administrative Conference shall
create and maintain online a searchable database containing the
following information with respect to each award of fees and
other expenses under this subsection:
(A) The case name and number, hyperlinked to the
case, if available.
(B) The name of the agency involved in the case.
(C) The name of each party to whom the award was
made.
(D) A description of the claims in the case.
(E) The amount of the award.
(F) The basis for the finding that the position of
the agency concerned was not substantially justified.
(7) The online searchable database described in paragraph (6)
may not reveal any information the disclosure of which is
prohibited by law or court order.
(8) The head of each agency shall provide to the Chairman of
the Administrative Conference of the United States in a timely
manner all information requested by the Chairman to comply with
the requirements of paragraphs (5), (6), and (7), including the
Attorney General of the United States and the Director of the
Administrative Office of the United States Courts.
(e) The provisions of this section shall not apply to any
costs, fees, and other expenses in connection with any
proceeding to which section 7430 of the Internal Revenue Code
of 1986 applies (determined without regard to subsections (b)
and (f) of such section). Nothing in the preceding sentence
shall prevent the awarding under subsection (a) [of section
2412 of title 28, United States Code,] of this section of costs
enumerated in section 1920 of [such] this title (as in effect
on October 1, 1981).
* * * * * * *