§ 2412. — Costs and fees.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC2412]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART VI--PARTICULAR PROCEEDINGS
CHAPTER 161--UNITED STATES AS PARTY GENERALLY
Sec. 2412. Costs and fees
(a)(1) Except as otherwise specifically provided by statute, a
judgment for costs, as enumerated in section 1920 of this title, but not
including the fees and expenses of attorneys, may be awarded to the
prevailing party in any civil action brought by or against the United
States or any agency or any official of the United States acting in his
or her official capacity in any court having jurisdiction of such
action. A judgment for costs when taxed against the United States shall,
in an amount established by statute, court rule, or order, be limited to
reimbursing in whole or in part the prevailing party for the costs
incurred by such party in the litigation.
(2) A judgment for costs, when awarded in favor of the United States
in an action brought by the United States, may include an amount equal
to the filing fee prescribed under section 1914(a) of this title. The
preceding sentence shall not be construed as requiring the United States
to pay any filing fee.
(b) Unless expressly prohibited by statute, a court may award
reasonable fees and expenses of attorneys, in addition to the costs
which may be awarded pursuant to subsection (a), to the prevailing party
in any civil action brought by or against the United States or any
agency or any official of the United States acting in his or her
official capacity in any court having jurisdiction of such action. The
United States shall be liable for such fees and expenses to the same
extent that any other party would be liable under the common law or
under the terms of any statute which specifically provides for such an
award.
(c)(1) Any judgment against the United States or any agency and any
official of the United States acting in his or her official capacity for
costs pursuant to subsection (a) shall be paid as provided in sections
2414 and 2517 of this title and shall be in addition to any relief
provided in the judgment.
(2) Any judgment against the United States or any agency and any
official of the United States acting in his or her official capacity for
fees and expenses of attorneys pursuant to subsection (b) shall be paid
as provided in sections 2414 and 2517 of this title, except that if the
basis for the award is a finding that the United States acted in bad
faith, then the award shall be paid by any agency found to have acted in
bad faith and shall be in addition to any relief provided in the
judgment.
(d)(1)(A) Except as otherwise specifically provided by statute, a
court shall award to a prevailing party other than the United States
fees and other expenses, in addition to any costs awarded pursuant to
subsection (a), incurred by that party in any civil action (other than
cases sounding in tort), including proceedings for judicial review of
agency action, brought by or against the United States in any court
having jurisdiction of that action, unless the court finds that the
position of the United States was substantially justified or that
special circumstances make an award unjust.
(B) A party seeking an award of fees and other expenses shall,
within thirty days of final judgment in the action, submit to the court
an application for fees and other expenses which shows that the party is
a prevailing party and is eligible to receive an award under this
subsection, and the amount sought, including an itemized statement from
any attorney or expert witness representing or appearing in behalf of
the party stating the actual time expended and the rate at which fees
and other expenses were computed. The party shall also allege that the
position of the United States was not substantially justified. Whether
or not the position of the United States was substantially justified
shall be determined on the basis of the record (including the record
with respect to the action or failure to act by the agency upon which
the civil action is based) which is made in the civil action for which
fees and other expenses are sought.
(C) The court, in its discretion, may reduce the amount to be
awarded pursuant to this subsection, or deny an award, to the extent
that the prevailing party during the course of the proceedings engaged
in conduct which unduly and unreasonably protracted the final resolution
of the matter in controversy.
(D) If, in a civil action brought by the United States or a
proceeding for judicial review of an adversary adjudication described in
section 504(a)(4) of title 5, the demand by the United States is
substantially in excess of the judgment finally obtained by the United
States and is unreasonable when compared with such judgment, under the
facts and circumstances of the case, the court shall award to the party
the fees and other expenses related to defending against the excessive
demand, unless the party has committed a willful violation of law or
otherwise acted in bad faith, or special circumstances make an award
unjust. Fees and expenses awarded under this subparagraph shall be paid
only as a consequence of appropriations provided in advance.
(2) For the purposes of this subsection--
(A) ``fees and other expenses'' includes the reasonable expenses
of expert witnesses, the reasonable cost of any study, analysis,
engineering report, test, or project which is found by the court to
be necessary for the preparation of the party's case, and reasonable
attorney fees (The amount of fees awarded under this subsection
shall be based upon prevailing market rates for the kind and quality
of the services furnished, except that (i) no expert witness shall
be compensated at a rate in excess of the highest rate of
compensation for expert witnesses paid by the United States; and
(ii) attorney fees shall not be awarded in excess of $125 per hour
unless the court determines that an increase in the cost of living
or a special factor, such as the limited availability of qualified
attorneys for the proceedings involved, justifies a higher fee.);
(B) ``party'' means (i) an individual whose net worth did not
exceed $2,000,000 at the time the civil action was filed, or (ii)
any owner of an unincorporated business, or any partnership,
corporation, association, unit of local government, or organization,
the net worth of which did not exceed $7,000,000 at the time the
civil action was filed, and which had not more than 500 employees at
the time the civil action was filed; except that an organization
described in section 501(c)(3) of the Internal Revenue Code of 1986
(26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of
such Code, or a cooperative association as defined in section 15(a)
of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a
party regardless of the net worth of such organization or
cooperative association or for purposes of subsection (d)(1)(D), a
small entity as defined in section 601 of title 5;
(C) ``United States'' includes any agency and any official of
the United States acting in his or her official capacity;
(D) ``position of the United States'' means, in addition to the
position taken by the United States in the civil action, the action
or failure to act by the agency upon which the civil action is
based; except that fees and expenses may not be awarded to a party
for any portion of the litigation in which the party has
unreasonably protracted the proceedings;
(E) ``civil action brought by or against the United States''
includes an appeal by a party, other than the United States, from a
decision of a contracting officer rendered pursuant to a disputes
clause in a contract with the Government or pursuant to the Contract
Disputes Act of 1978;
(F) ``court'' includes the United States Court of Federal Claims
and the United States Court of Appeals for Veterans Claims;
(G) ``final judgment'' means a judgment that is final and not
appealable, and includes an order of settlement;
(H) ``prevailing party'', in the case of eminent domain
proceedings, means a party who obtains a final judgment (other than
by settlement), exclusive of interest, the amount of which is at
least as close to the highest valuation of the property involved
that is attested to at trial on behalf of the property owner as it
is to the highest valuation of the property involved that is
attested to at trial on behalf of the Government; and
(I) ``demand'' means the express demand of the United States
which led to the adversary adjudication, but shall not include a
recitation of the maximum statutory penalty (i) in the complaint, or
(ii) elsewhere when accompanied by an express demand for a lesser
amount.
(3) In awarding fees and other expenses under this subsection to a
prevailing party in any action for judicial review of an adversary
adjudication, as defined in subsection (b)(1)(C) of section 504 of title
5, United States Code, or an adversary adjudication subject to the
Contract Disputes Act of 1978, the court shall include in that award
fees and other expenses to the same extent authorized in subsection (a)
of such section, unless the court finds that during such adversary
adjudication the position of the United States was substantially
justified, or that special circumstances make an award unjust.
(4) Fees and other expenses awarded under this subsection to a party
shall be paid by any agency over which the party prevails from any funds
made available to the agency by appropriation or otherwise.
(e) The provisions of this section shall not apply to any costs,
fees, and other expenses in connection with any proceeding to which
section 7430 of the Internal Revenue Code of 1986 applies (determined
without regard to subsections (b) and (f) of such section). Nothing in
the preceding sentence shall prevent the awarding under subsection (a)
of section 2412 of title 28, United States Code, of costs enumerated in
section 1920 of such title (as in effect on October 1, 1981).
(f) If the United States appeals an award of costs or fees and other
expenses made against the United States under this section and the award
is affirmed in whole or in part, interest shall be paid on the amount of
the award as affirmed. Such interest shall be computed at the rate
determined under section 1961(a) of this title, and shall run from the
date of the award through the day before the date of the mandate of
affirmance.
(June 25, 1948, ch. 646, 62 Stat. 973; Pub. L. 89-507, Sec. 1, July 18,
1966, 80 Stat. 308; Pub. L. 96-481, title II, Sec. 204(a), (c), Oct. 21,
1980, 94 Stat. 2327, 2329; Pub. L. 97-248, title II, Sec. 292(c), Sept.
3, 1982, 96 Stat. 574; Pub. L. 99-80, Secs. 2, 6, Aug. 5, 1985, 99 Stat.
184, 186; Pub. L. 99-514, Sec. 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L.
102-572, title III, Sec. 301(a), title V, Secs. 502(b), 506(a), title
IX, Sec. 902(b)(1), Oct. 29, 1992, 106 Stat. 4511-4513, 4516; Pub. L.
104-66, title I, Sec. 1091(b), Dec. 21, 1995, 109 Stat. 722; Pub. L.
104-121, title II, Sec. 232, Mar. 29, 1996, 110 Stat. 863; Pub. L. 105-
368, title V, Sec. 512(b)(1)(B), Nov. 11, 1998, 112 Stat. 3342.)
Historical and Revision Notes
Based on title 28, U.S.C., 1940 ed., Secs. 258, 931(a) (Mar. 3,
1911, ch. 231, Sec. 152, 36 Stat. 1138; Aug. 2, 1946, ch. 753,
Sec. 410(a), 60 Stat. 843).
Section consolidates the last sentence of section 931(a) of title
28, U.S.C., 1940 ed., with section 258 of said title 28. For other
provisions of said section 931(a), see Distribution Table.
Subsection (a) is new. It follows the well-known common-law rule
that a sovereign is not liable for costs unless specific provision for
such liability is made by law. This is a corollary to the rule that a
sovereign cannot be sued without its consent.
Many enactments of Congress relating to fees and costs contain
specific exceptions as to the liability of the United States. (See, for
example, section 548 of title 28, U.S.C., 1940 ed.) A uniform rule,
embodied in this section, will make such specific exceptions
unnecessary.
Subsection (b) incorporates section 258 of title 28, U.S.C., 1940
ed.
Subsection (c) incorporates the costs provisions of section 931(a)
of title 28, U.S.C., 1940 ed.
Words ``and for summoning the same,'' after ``witnesses,'' were
omitted from subsection (b) as covered by ``those actually incurred for
witnesses.''
Changes were made in phraseology.
References in Text
The Contract Disputes Act of 1978, referred to in subsec. (d)(2)(E),
(3), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as amended, which
is classified principally to chapter 9 (Sec. 601 et seq.) of Title 41,
Public Contracts. For complete classification of this Act to the Code,
see Short Title note set out under section 601 of Title 41 and Tables.
Section 7430 of the Internal Revenue Code of 1986, referred to in
subsec. (e), is classified to section 7430 of Title 26, Internal Revenue
Code.
Amendments
1998--Subsec. (d)(2)(F). Pub. L. 105-368 substituted ``Court of
Appeals for Veterans Claims'' for ``Court of Veterans Appeals''.
1996--Subsec. (d)(1)(D). Pub. L. 104-121, Sec. 232(a), added subpar.
(D).
Subsec. (d)(2)(A)(ii). Pub. L. 104-121, Sec. 232(b)(1), substituted
``$125'' for ``$75''.
Subsec. (d)(2)(B). Pub. L. 104-121, Sec. 232(b)(2), inserted before
semicolon at end ``or for purposes of subsection (d)(1)(D), a small
entity as defined in section 601 of title 5''.
Subsec. (d)(2)(I). Pub. L. 104-121, Sec. 232(b)(3)-(5), added
subpar. (I).
1995--Subsec. (d)(5). Pub. L. 104-66 struck out par. (5) which read
as follows: ``The Attorney General shall report annually to the Congress
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 the
controversy, and any other relevant information which may aid the
Congress in evaluating the scope and impact of such awards.''
1992--Subsec. (a). Pub. L. 102-572, Sec. 301(a), designated existing
provisions as par. (1) and added par. (2).
Subsec. (d)(2)(F). Pub. L. 102-572, Sec. 902(b)(1), substituted
``United States Court of Federal Claims'' for ``United States Claims
Court''.
Pub. L. 102-573, Sec. 506(a), inserted before semicolon at end ``and
the United States Court of Veterans Appeals''.
Subsec. (d)(5). Pub. L. 102-572, Sec. 502(b), substituted ``The
Attorney General shall report annually to the Congress on'' for ``The
Director of the Administrative Office of the United States Courts shall
include in the annual report prepared pursuant to section 604 of this
title,''.
1986--Subsecs. (d)(2)(B), (e). Pub. L. 99-514 substituted ``Internal
Revenue Code of 1986'' for ``Internal Revenue Code of 1954''.
1985--Subsecs. (a), (b). Pub. L. 99-80, Sec. 2(a)(1), substituted
``or any agency or any official of the United States'' for ``or any
agency and any official of the United States''.
Subsec. (d). Pub. L. 99-80, Sec. 6, repealed amendment made by Pub.
L. 96-481, Sec. 204(c), and provided that subsec. (d) was effective on
or after Aug. 5, 1985, as if it had not been repealed by section 204(c).
See 1980 Amendment note and Revival of Previously Repealed Provisions
note below.
Subsec. (d)(1)(A). Pub. L. 99-80, Sec. 2(a)(2), inserted ``,
including proceedings for judicial review of agency actions,'' after
``in tort)''.
Subsec. (d)(1)(B). Pub. L. 99-80, Sec. 2(b), inserted provisions
directing that whether or not the position of the United States was
substantially justified must be determined on the basis of the record
(including the record with respect to the action or failure to act by
the agency upon which the civil action was based) which is made in the
civil action for which fees and other expenses are sought.
Subsec. (d)(2)(B). Pub. L. 99-80, Sec. 2(c)(1), substituted
``$2,000,000'' for ``$1,000,000'' in cl. (i), and substituted ``or (ii)
any owner of an unincorporated business, or any partnership,
corporation, association, unit of local government, or organization, the
net worth of which did not exceed $7,000,000 at the time the civil
action was filed, and which had not more than 500 employees at the time
the civil action was filed; except that an organization described in
section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C.
501(c)(3)) exempt from taxation under section 501(a) of such Code, or a
cooperative association as defined in section 15(a) of the Agricultural
Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net
worth of such organization or cooperative association;'' for ``(ii) a
sole owner of an unincorporated business, or a partnership, corporation,
association, or organization whose net worth did not exceed $5,000,000
at the time the civil action was filed, except that an organization
described in section 501(c)(3) of the Internal Revenue Code of 1954 (26
U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code
and a cooperative association as defined in section 15(a) of the
Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party
regardless of the net worth of such organization or cooperative
association, or (iii) a sole owner of an unincorporated business, or a
partnership, corporation, association, or organization, having not more
than 500 employees at the time the civil action was filed; and''.
Subsec. (d)(2)(D) to (H). Pub. L. 99-80, Sec. 2(c)(2), added
subpars. (D) to (H).
Subsec. (d)(4). Pub. L. 99-80, Sec. 2(d), amended par. (4)
generally. Prior to amendment, par. (4) read as follows:
``(A) Fees and other expenses awarded under this subsection may be
paid by any agency over which the party prevails from any funds made
available to the agency, by appropriation or otherwise, for such
purpose. If not paid by any agency, the fees and other expenses shall be
paid in the same manner as the payment of final judgments is made in
accordance with sections 2414 and 2517 of this title.
``(B) There is authorized to be appropriated to each agency for each
of the fiscal years 1982, 1983, and 1984, such sums as may be necessary
to pay fees and other expenses awarded pursuant to this subsection in
such fiscal years.''
Subsec. (f). Pub. L. 99-80, Sec. 2(e), added subsec. (f).
1982--Subsec. (e). Pub. L. 97-248 added subsec. (e).
1980--Pub. L. 96-481, Sec. 204(a), designated existing provisions as
subsec. (a), struck out provision that payment of a judgment for costs
shall be as provided in section 2414 and section 2517 of this title for
the payment of judgments against the United States, and added subsecs.
(b) to (d). Pub. L. 96-481, Sec. 204(c), repealed subsec. (d) eff. Oct.
1, 1984. See Effective Date of 1980 Amendment note below.
1966--Pub. L. 89-507 empowered a court having jurisdiction to award
judgment for costs, except as otherwise specifically provided by
statute, to the prevailing party in any action brought by or against the
United States or any agency or official of the United States acting in
his official capacity, limited the judgment for costs when taxed against
the Government to reimbursing in whole or in part the prevailing party
for costs incurred by him in the litigation, required the payment of a
judgment for costs to be as provided in section 2414 and section 2517 of
this title for the payment of judgments against the United States and
eliminated provisions which limited the liability of the United States
for fees and costs to those cases in which liability was expressed
provided for by Act of Congress, permitted the district court or the
Court of Claims, in an action under section 1346(a) or 1491 of this
title if the United States put in issue plaintiff's right to recover, to
allow costs to the prevailing party from the time of joining such issue,
and which authorized the allowance of costs to the successful claimant
in an action under section 1346(b) of this title.
Effective Date of 1998 Amendment
Amendment by Pub. L. 105-368 effective on first day of first month
beginning more than 90 days after Nov. 11, 1998, see section 513 of Pub.
L. 105-368, set out as a note under section 7251 of Title 38, Veterans'
Benefits.
Effective Date of 1996 Amendment
Amendment by Pub. L. 104-121 applicable to civil actions and
adversary adjudications commenced on or after Mar. 29, 1996, see section
233 of Pub. L. 104-121, set out as a note under section 504 of Title 5,
Government Organization and Employees.
Effective Date of 1992 Amendment
Section 506(b) of Pub. L. 102-572 provided that: ``The amendment
made by subsection (a) [amending this section] shall apply to any case
pending before the United States Court of Veterans Appeals [now United
States Court of Appeals for Veterans Claims] on the date of the
enactment of this Act [Oct. 29, 1992], to any appeal filed in that court
on or after such date, and to any appeal from that court that is pending
on such date in the United States Court of Appeals for the Federal
Circuit.''
Section 506(d) of Pub. L. 102-572 provided that: ``This section
[amending this section and enacting provisions set out under this
section], and the amendment made by this section, shall take effect on
the date of the enactment of this Act [Oct. 29, 1992].''
Amendment by section 902(b)(1) of Pub. L. 102-572 effective Oct. 29,
1992, see section 911 of Pub. L. 102-572, set out as a note under
section 171 of this title.
Amendment by sections 301(a) and 502(b) of Pub. L. 102-572 effective
Jan. 1, 1993, see section 1101(a) of Pub. L. 102-572, set out as a note
under section 905 of Title 2, The Congress.
Effective Date of 1985 Amendment
Amendment by Pub. L. 99-80 applicable to cases pending on or
commenced on or after Aug. 5, 1985, but with provision for additional
applicability to certain prior cases and to prior board of contracts
appeals cases, see section 7 of Pub. L. 99-80, set out as a note under
section 504 of Title 5, Government Organization and Employees.
Effective Date of 1982 Amendment
Amendment by Pub. L. 97-248 applicable to civil actions or
proceedings commenced after Feb. 28, 1983, see section 292(e)(1) of Pub.
L. 97-248, set out as an Effective Date note under section 7430 of Title
26, Internal Revenue Code.
Effective Date of 1980 Amendment
Amendment by section 204(a) of Pub. L. 96-481 effective Oct. 1,
1981, and applicable to any adversary adjudication, as defined in
section 504(b)(1)(C) of Title 5, Government Organization and Employees,
and any civil action or adversary adjudication described in this section
which is pending on, or commenced on or after, such date, see section
208 of Pub. L. 96-481, set out as an Effective Date note under section
504 of Title 5.
Section 204(c) of Pub. L. 96-481 which provided in part that
effective Oct. 1, 1984, subsec. (d) of this section is repealed, except
that the provisions of subsec. (d) shall continue to apply through final
disposition of any adversary adjudication initiated before the date of
repeal, was repealed by Pub. L. 99-80, Sec. 6(b)(2), Aug. 5, 1985, 99
Stat. 186.
Effective Date of 1966 Amendment
Section 3 of Pub. L. 89-507 provided that: ``These amendments
[amending this section and section 2520 of this title] shall apply only
to judgments entered in actions filed subsequent to the date of
enactment of this Act [July 18, 1966]. These amendments shall not
authorize the reopening or modification of judgments entered prior to
the enactment of this Act.''
Revival of Previously Repealed Provisions
For revival of subsec. (d) of this section effective on or after
Aug. 5, 1985, as if it had not been repealed by section 204(c) of Pub.
L. 96-481, and repeal of section 204(c) of Pub. L. 96-481, see section 6
of Pub. L. 99-80, set out as a note under section 504 of Title 5,
Government Organization and Employees.
Savings Provision
Section 206 of Pub. L. 96-481, as amended by Pub. L. 99-80, Sec. 3,
Aug. 5, 1985, 99 Stat. 186, provided that:
``(a) Except as provided in subsection (b), nothing in section
2412(d) of title 28, United States Code, as added by section 204(a) of
this title, alters, modifies, repeals, invalidates, or supersedes any
other provision of Federal law which authorizes an award of such fees
and other expenses to any party other than the United States that
prevails in any civil action brought by or against the United States.
``(b) Section 206(b) of the Social Security Act (42 U.S.C.
406(b)(1)) shall not prevent an award of fees and other expenses under
section 2412(d) of title 28, United States Code. Section 206(b)(2) of
the Social Security Act shall not apply with respect to any such award
but only if, where the claimant's attorney receives fees for the same
work under both section 206(b) of that Act and section 2412(d) of title
28, United States Code, the claimant's attorney refunds to the claimant
the amount of the smaller fee.''
Authority of Court of Appeals for Veterans Claims to Award Fees Under
Equal Access to Justice Act for Non-attorney Practitioners.
Pub. L. 107-330, title IV, Sec. 403, Dec. 6, 2002, 116 Stat. 2833,
provided that: ``The authority of the United States Court of Appeals for
Veterans Claims to award reasonable fees and expenses of attorneys under
section 2412(d) of title 28, United States Code, shall include authority
to award fees and expenses, in an amount determined appropriate by the
United States Court of Appeals for Veterans Claims, of individuals
admitted to practice before the Court as non-attorney practitioners
under subsection (b) or (c) of Rule 46 of the Rules of Practice and
Procedure of the United States Court of Appeals for Veterans Claims.''
Nonliability of Judicial Officers for Costs
Pub. L. 104-317, title III, Sec. 309(a), Oct. 19, 1996, 110 Stat.
3853, provided that: ``Notwithstanding any other provision of law, no
judicial officer shall be held liable for any costs, including
attorney's fees, in any action brought against such officer for an act
or omission taken in such officer's judicial capacity, unless such
action was clearly in excess of such officer's jurisdiction.''
Fee Agreements
Section 506(c) of Pub. L. 102-572 provided that: ``Section 5904(d)
of title 38, United States Code, shall not prevent an award of fees and
other expenses under section 2412(d) of title 28, United States Code.
Section 5904(d) of title 38, United States Code, shall not apply with
respect to any such award but only if, where the claimant's attorney
receives fees for the same work under both section 5904 of title 38,
United States Code, and section 2412(d) of title 28, United States Code,
the claimant's attorney refunds to the claimant the amount of the
smaller fee.''
Section Referred to in Other Sections
This section is referred to in section 1931 of this title; title 5
section 504; title 10 section 2321; title 11 section 106; title 15
section 2060; title 18 section 293; title 25 section 450m-1; title 26
section 7430; title 31 section 3730; title 41 section 253d; title 42
sections 3612, 3614, 9606.
