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JGR/Legal Fees Reform Act (1 of 3)
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Ronald Reagan Presidential Library
Digital Library Collections
This is a PDF of a folder from our textual collections.
Collection: Roberts, John G.: Files
Folder Title: JGR/Legal Fees Reform Act
(1 of 3)
Box: 31
To see more digitized collections visit:
https://reaganlibrary.gov/archives/digital-library
To see all Ronald Reagan Presidential Library inventories visit:
https://reaganlibrary.gov/document-collection
Contact a reference archivist at: [email protected]
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WITHDRAWAL SHEET
Ronald Reagan Library
DOCUMENT
NO. AND TYPE
SUBJECT/TITLE
DATE
RESTRICTION
1. memo
Roberts to Fred F. Fielding, re Justice draft bill (partial)
12/13/83
P5
2. memo
Fielding to Richard G. Darman, re fee cap bill
9/21/83
3. memo
Roberts to Fielding, re Justice draft bill (partial of page 2)
9/29/83
CCB
12/14/00
COLLECTION:
ROBERTS, JOHN G.: Files
dlb
FILE FOLDER:
Legal Fees Reform Act [1 of 3] OA 12663
3/4/96
RESTRICTION CODES
Presidential Records Act [44 U.S.C. 2204(a)]
Freedom of Information Act [6 U.S.C. 552(b)]
P-1 National security classified information ((a)(1) of the PRA).
F-1 National security classified information ((b)(1) of the FOIA].
P-2 Relating to appointment to Federal office [(a)(2) of the PRA].
F-2 Release could disclose internal personnel rules and practices of an agency [(b)(2) of the
P-3 Release would violate a Federal statute [(a)(3) of the PRA].
FOIA].
P-4 Release would disclose trade secrets or confidential commercial or financial
F-3 Release would violate a Federal statute l(b)(3) of the FOIA].
information [(a)(4) of the PRA).
F-4 Release would disclose trade secrets or confidential commercial or financial information
P-5 Release would disclose confidential advice between the President and his advisors, or
[(b)(4) of the FOIA).
between such advisore [(a)(5) of the PRA.
F-6 Release would constitute a clearly unwarranted invasion of personal privacy [(B)(6) of
P-6 Release would constitute a clearly unwarrented invasion of personal privacy [(a)(6) of
the FOIA]
the PRAI.
F-7 Release would disclose information compiled for law enforcement purposes [(b)(7) of
the FOIA).
C.
Closed in accordance with restrictions contained in donor's deed of gift.
F-8 Release would disclose information concerning the regulation of financial institutions
[(b)(8) of the FOIA).
F-9 Release would disclose geological or geophysical information concerning wells [(b)(9) of
the FOIA].
THE WHITE HOUSE
WASHINGTON
December 13, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Justice Draft Bill, "The Legal Fees
Reform Act"
OMB has asked for comments by close of business December 14
on the above-referenced proposed bill. This bill would set
a $75/hour ceiling on attorneys fees awarded under fee-
shifting statutes to parties prevailing against the United
States or state and local governments, and double the rates
paid to criminal defense attorneys under the Criminal
Justice Act. The bill was first circulated by OMB for
comments on September 16. By memorandum dated September 19
we advised OMB that we had no legal objection. By memo-
randum dated September 21 you recommended to Darman that the
Administration "focus very sharply on the issue of whether
we should go forward with this at this time." You were
concerned that the bill would be portrayed as a means of
inhibiting the delivery of legal services to the poor,
minorities, etc., and accordingly would not get a fair
hearing.
On November 15 Robert McConnell provided us with a copy of
the proposed bill as submitted to OMB for clearance. I
reviewed the provisions of the bill in a memorandum to you
dated November 17. The version of the bill which OMB has
now circulated and proposes to clear by the end of the week
is essentially identical to the version sent to you by
McConnell. There have been no substantive changes.
I have no legal objection to the proposed bill, section-by-
section analysis, and Speaker letter. I do not know if you
are still interested in pursuing the policy/strategy con-
cerns expressed in your September 21 memorandum to Darman.
We should discuss.
Attachment
THE WHITE HOUSE
WASHINGTON
September 21, 1983
MEMORANDUM FOR RICHARD G. DARMAN
ASSISTANT TO THE PRESIDENT
AND DEPUTY TO THE CHIEF OF STAFF
FROM:
FRED F. FIELDING
COUNSEL TO THE PRESIDENT
SUBJECT:
Fee Cap Bill
Upon further reflection on this subject, although I have no
objection to it from a legal standpoint, I think we should focus
very sharply on the issue of whether we should go forward with
this at this time. Although this bill is a "fee cap bill", I am
increasingly concerned that it will be viewed and portrayed as
yet another example of the Administration trying to use legal
devices to inhibit the opportunity for the delivery of legal
services to the poor, aged and minorities. Therefore, the bill
will never really get any kind of fair airing.
FFF:kkk
FFFielding
Subj.
Chron.
THE WHITE HOUSE
WASHINGTON
November 17, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
A Legislative Proposal "To Provide
for Comprehensive Reforms in Compensation
of Attorneys, Pursuant to Federal Statute
in Civil and Criminal Proceedings Against
U.S. and Against State and Local
Governments"
Assistant Attorney General McConnell has sent you a copy of
a package he sent to OMB Director Stockman for clearance.
The package contains Justice's proposed "Legal Fees Reform
Act, a section-by-section analysis, and a draft letter to
the Speaker. Our office has reviewed the substance of this
proposal before and noted no legal objection to it (copies
of pertinent memoranda attached). The bill would:
limit award of attorneys fees against the
United States or state and local governments to
truly "prevailing" parties, and then only for time
devoted to issues on which the party prevailed
set a ceiling on such attorneys fees of $75 per hour
permit courts to reduce or deny attorneys fees for a
variety of reasons (unreasonable prolonging of
litigation, fees unreasonably exceed monetary
recovery, fees exceed hourly salary of the attorney,
etc.)
reduce the amount of attorneys fees by 25% of any
monetary award (on the theory that litigation costs
should be at least partially paid from damages
obtained)
double the rate of compensation for attorneys for
indigent defendants under the Criminal Justice Act
establish uniform procedures for applying for
attorneys fees from governments
clarify and limit the circumstances under which
attorneys fees may be awarded when a case is settled
or becomes moot due to a policy change
The letter to the Speaker explicitly links support for
increased fees for Criminal Justice Act attorneys with the
limitations on fee awards against governments in other
cases. The letter reviews the abuses that have developed in
this area, and justifies the $75 cap as (1) the same rate as
set in the Equal Access to Justice Act, 28 U.S.C.
§ 2412 (d) (1) and (3), and (2) more commensurate with com-
pensation paid government attorneys. The latter comparison
is considered appropriate since fees are shifted to govern-
ments in these cases on the theory that the prevailing
plaintiff was acting as a "private attorney general.' If
this theory is correct, he should be compensated roughly the
same as attorneys who work for the real Attorney General,
i.e. government lawyers.
I have reviewed the proposed bill, section-by-section
analysis, and Speaker letter, and have no objection to them.
They are not significantly different from those we approved
in September. OMB has not yet formally requested our views,
but I wanted to alert you to McConnell's transmittal in case
you received any inquiries about it.
Attachment
THE WHITE HOUSE
WASHINGTON
September 20, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Basis for $75 Fee Cap
According to Justice, the $75 fee cap was chosen to bring
the attorneys fees paid to private litigants more closely in
line with the rates of government lawyers, plus overhead and
profit. Private litigants recover fees on the theory that
they are acting as "private attorneys general" and, so the
argument goes, should be compensated in a manner similar to
those working for the real Attorney General, i.e., Justice
Department attorneys. The figure is, of course, no more
than a rough guess, and in any event is a maximum, not an
actual amount to be used in all cases.
THE WHITE HOUSE
WASHINGTON
September 19, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Justice Draft Bill, "The Legal Fees
Reform Act"
fees is viv in bais DrJ's Dr ? to
OMB has asked for our views by close of business,
September 20, on the above-referenced draft bill. The bill,
which the Administration will only support as a package,
seeks to limit the award of attorneys fees to litigants
against the United States and state and local government in
civil cases while at the same time increasing the rate of
pay to criminal defense attorneys under the Criminal Justice
Act.
Section 4 of the draft bill would limit the award of
attorneys fees to prevailing parties, and define
"prevailing" more narrowly than have several judicial
decisions. Section 4 would also permit attorneys fees to be
awarded only for hours devoted to points on which the party
eventually prevailed.
Section 5 of the act establishes a maximum hourly rate for
attorneys fees awards in civil cases of $75.00 per hour, the
same rate set in the Equal Access to Justice Act. The
section goes on to list several factors that should be taken
into acount in reducing awards, including, for example, the
fact that the calculated fee unreasonably exceeds the amount
of any recovery. In addition, if the litigant obtained a
monetary recovery from the government, the amount of the fee
is to be reduced by 25 percent of the award. This is on the
theory that some portion of amounts recovered should be used
to offset fees, as in normal civil litigation. Section 5
also doubles the allowable rate under the Criminal Justice
Act for defense attorneys in criminal cases. The limit for
courtroom hours is raised from $30.00 to $60.00, and for
other hours from $20.00 to $40.00.
Section 6 of the bill establishes procedures for those
applying for award of attorneys fees against the government.
Section 7 specifies that attorneys fees may only be awarded
when a case has become moot due to a policy change if the
litigation was a material factor in bringing about the
THE WHITE HOUSE
WASHINGTON
September 19, 1983
MEMORANDUM FOR FRED F. FIELDING
FROM:
JOHN G. ROBERTS
SUBJECT:
Justice Draft Bill, "The Legal Fees
Reform Act"
OMB has asked for our views by close of business,
September 20, on the above-referenced draft bill. The bill,
which the Administration will only support as a package,
seeks to limit the award of attorneys fees to litigants
against the United States and state and local government in
civil cases while at the same time increasing the rate of
pay to criminal defense attorneys under the Criminal Justice
Act.
Section 4 of the draft bill would limit the award of
attorneys fees to prevailing parties, and define
"prevailing" more narrowly than have several judicial
decisions. Section 4 would also permit attorneys fees to be
awarded only for hours devoted to points on which the party
eventually prevailed.
Section 5 of the act establishes a maximum hourly rate for
attorneys fees awards in civil cases of $75.00 per hour, the
same rate set in the Equal Access to Justice Act. The
section goes on to list several factors that should be taken
into acount in reducing awards, including, for example, the
fact that the calculated fee unreasonably exceeds the amount
of any recovery. In addition, if the litigant obtained a
monetary recovery from the government, the amount of the fee
is to be reduced by 25 percent of the award. This is on the
theory that some portion of amounts recovered should be used
to offset fees, as in normal civil litigation. Section 5
also doubles the allowable rate under the Criminal Justice
Act for defense attorneys in criminal cases. The limit for
courtroom hours is raised from $30.00 to $60.00, and for
other hours from $20.00 to $40.00.
Section 6 of the bill establishes procedures for those
applying for award of attorneys fees against the government.
Section 7 specifies that attorneys fees may only be awarded
when a case has become moot due to a policy change if the
litigation was a material factor in bringing about the
policy change. Section 7 also provides that if a litigant
has rejected a settlement offer, and does not exceed that
offer in any eventual recovery, no attorneys fees may be
awarded.
Finally, section 8 requires the Comptroller General to file
an annual report with Congress concerning amounts spent by
the federal, state and local governments on attorneys fees
for opposing parties. The package submitted by OMB also
contains a draft letter to the speaker, summarizing the
provisions of the draft bill.
I have reviewed the draft bill, the section-by-section
analysis, and the draft speaker letter. I have no legal
objections. This legislation will, of course, be opposed
by the self-styled public interest bar, but the abuses that
have arisen in the award of attorneys fees against the
government clearly demand remedial action. Linking
limitations on civil fee awards to a long overdue increase
in the maximum amounts awardable to Criminal Justice Act
attorneys strikes me as good strategy.
Attachment
THE WHITE HOUSE
WASHINGTON
September 19, 1983
MEMORANDUM FOR JAMES C. MURR
ASSISTANT DIRECTOR FOR LEGISLATIVE AFFAIRS
OFFICE OF MANAGEMENT AND BUDGET
FROM:
FRED F. FIELDING
Orig. signed by FFF.
COUNSEL TO THE PRESIDENT
SUBJECT:
Justice Draft Bill, "The Legal Fees
Reform Act"
Counsel's Office has reviewed the above-referenced draft
bill, and finds no objection to it from a legal perspective.
FFF: JGR:aea 9/19/83
CC: FFFielding
JGRoberts
Subj.
Chron
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
o * OUTGOING
H INTERNAL
I * INCOMING
Date Correspondence
Received (YY/MM/DD)
/
/
Name of Correspondent: James C. MURR
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Justice draft bill 11 The Legal Fees
Reform act."
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOIL
ORIGINATOR 83,09,16
/
/
Referral Note:
CNATIS
A
83,09,16
5 83,0920
Referral Note:
CDB
/ /
/
/
-
Referral Note:
/
/
/
/
-
Referral Note:
/
/
/
I
-
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A - . Appropriate Action
I * Info Copy Only/No Action Necessary
A - Answered
C Completed
C Comment/Recommendation
R. Direct Reply w/Copy
B - Non-Special Referral
S Suspended
D Draft Response
S. For Signature
F - Furnish Fact Sheet
X- Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
OFFICE OF MANAGEMENT AND BUDGET
WASHINGTON, D.C. 20503
LEGISLATIVE REFERRAL MEMORANDUM
TO:
LEGISLATIVE LIAISON OFFICER
SPECIAL
See Distribution Attached
SUBJECT:
Justice draft bill, "The Legal Fees Reform Act".
The Office of Management and Budget requests the views of your
agency on the above subject before advising on its relationship
=c the program of the President, in accordance with OMB Circular
A-19.
Please provide US with your views no later than COB Tuesday
September 20, 1983.
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office.
James UCM C. Muri for
Assistant Director for
Legislative Reference
Enclosure
cc: F. Fielding
R. Greene
T. Lenard
M. Uhlmann
P. Szervo
DISTRIBUTION LIST
Department of Agriculture
Department of Commerce
Department of Education
Department of Defense
Department of Justice
Department of Labor
Department of Health and Human Services
Department of Housing and Urban Development
Department of State
Department of the Treasury
Department of Transportation
Department of the Interior
Department of Energy
Veterans Administration
Environmental Protection Agency
Small Business Administration
Securities and Exchange Commission
Office of Personnel Management
Federal Trade Commission
General Services Administration
Merit Systems Protection Board
Interstate Commerce Commission
Administrative Office of the United States Courts
Federal Communications Commission
184413
ID #
CU
WHITE HOUSE
T2007
CORRESPONDENCE TRACKING WORKSHEET
OUTGOING
Th
I
INTERNAL
1. I INCOMING
Date Correspondence
Received (YY/MM/DD)
/
1
Name of Correspondent: Robert A. McConnell
MI Mall Report
User Codes: (A)
(B)
(C)
Subject: a legislative proposal TO provide for comprehensive
reforms in compensation of attoineys, pursuant to
federal Statute in civil and criminal proceedings
against U.S. and against State Marter local governments
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/A gency
(Staff Name)
Code
Y/MM/DD
Response
Code
YY/MM/DD
CULLOLL
ORIGINATOR DD 83,11,15
Referral Note:
CNAT / 8
Referral! Note:
Referral Note:
the
and
Referral Note:
white
/
Referral Note
ACTION CODES:
DISPOSITION CODES:
A
Appropriate Action
1. info Copy Only/No Action Necessary,
a Answered
C Completed
C Comment/Recommendation
R Direct Reply w/Copy
a Not Special Referral
B Suspended
ID Draft Response
S For Signature
F Furnish Fact Sheet
X Unterim Reply
to be used as Enclosure
FOR OUTBOING CORRESP ONDENCE:
Type of Response: unitials of Signer
Code
AS
Completion Date Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record 10 Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
#5181
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
184413
NOV 14 1983
Honorable David A. Stockman
Director, Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Stockman:
Enclosed are copies of a proposed communication to be transmitted
to the Congress relative to: a legislative proposal, "To provide
for comprehensive reforms in compensation of attorneys,
pursuant to federal statute, in civil and criminal pro-
ceedings against the United States, and against state and
local governments."
Please advise this office as to the relationship of the proposed commu-
nication to the Program of the President.
Sincerely,
(Signed) Robert A. McConnell
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
To coordinate clearance, please contact Jack Perkins,
633-2113, OLA.
OLA-6A
REV 12-23-76
DOJ
NOV 14 IS
ID #
CU
WHITE HOUSE
CORRESPONDENCE TRACKING WORKSHEET
0 OUTGOING
John
H INTERNAL
I INCOMING
Date Correspondence
Received (YY/MM/DD)
/ /
Name of Correspondent:
James C. MURR
MI Mail Report
User Codes: (A)
(B)
(C)
Subject: Justice draft bill The Legal Fees Reform
act"
ROUTE TO:
ACTION
DISPOSITION
Tracking
Type
Completion
Action
Date
of
Date
Office/Agency
(Staff Name)
Code
YY/MM/DD
Response
Code
YY/MM/DD
CUHOLL
ORIGINATOR
/
/
/
/
Referral Note:
CUATIB
D
/ /
S 83/12/16
Referral Note:
/ /
/
/
I
Referral Note:
/ /
/
/
-
Referral Note:
/ /
/ /
I
Referral Note:
ACTION CODES:
DISPOSITION CODES:
A * Appropriate Action
1. * Info Copy Only/No Action Necessary
A Answered
C Completed
C Comment/Recommendation
R Direct Reply w/Copy
B - - Non-Special Referral
S Suspended
D - Draft Response
S For Signature
F Furnish Fact Sheet
X Interim Reply
to be used as Enclosure
FOR OUTGOING CORRESPONDENCE:
Type of Response = Initials of Signer
Code = "A"
Completion Date = Date of Outgoing
Comments:
Keep this worksheet attached to the original incoming letter.
Send all routing updates to Central Reference (Room 75, OEOB).
Always return completed correspondence record to Central Files.
Refer questions about the correspondence tracking system to Central Reference, ext. 2590.
5/81
EXECUTIVE OFFICE OF THE PRESIDENT
Cruin
OFFICE OF MANAGEMENT AND BUDGET
SPECIAL
WASHINGTON, D.C. 20503
December 9, 1983
LEGISLATIVE REFERRAL MEMORANDUM
TO:
LEGISLATIVE LIAISON OFFICER
SEE DISTRIBUTION
SUBJECT: Justice draft bill, "The Legal Fees Reform Act"
The attached draft bill has been revised by Justice in response
to agency comments provided during an earlier review. We plan to
clear this legislation no later than Friday, December 16, 1983.
If you have suggested changes please advise us by COB Wednesday,
December 14, 1983.
Direct your questions to Branden Blum (395-3802), the legislative
attorney in this office or Rick Irby (395-5600) in the General
Counsel's office.
James
Assistant Director for
Legislative Reference
Enclosures
CC: F. Fielding
R. Greene
T. Lenard
M. Uhlmann
P. Szervo
K. Wilson
03 :t] Hd 6- 030 3861
DISTRIBUTION:
Department of Health and Human Services
Department of the Treasury
Department of Housing and Urban Development
Department of Energy
Veterans Administration
Small Business Administration
Environmental Protection Agency
Department of State
Department of the Interior
Department of Agriculture
General Services Administration
Department of Commerce
Department of Education
Department of Defense
Department of Labor
Department of Transportation
Department of Justice
Securities and Exchange Commission
Office of Personnel Management
Federal Trade Commission
Merit Systems Protection Board
Interstate Commerce Commission
Administrative Office of the United States Courts
Federal Communications Commission
ASSISTANT ATTORNEY GENERAL
OFFICE OF LEGISLATIVE AFFAIRS
Department of Justice
Washington, D.C. 20530
184413 am
NOV 14 1983
Honorable David A. Stockman
Director, Office of Management
and Budget
Washington, D.C. 20503
Dear Mr. Stockman:
Enclosed are copies of a proposed communication to be transmitted
to the Congress relative to: a legislative proposal, "To provide
for comprehensive reforms in compensation of attorneys,
pursuant to federal statute, in civil and criminal pro-
ceedings against the United States, and against state and
local governments."
Please advise this office as to the relationship of the proposed commu-
nication to the Program of the President.
Sincerely,
(Signed) Robert A. McConnell
Robert A. McConnell
Assistant Attorney General
Office of Legislative Affairs
To coordinate clearance, please contact Jack Perkins,
633-2113, OLA.
OLA-6A
REV 12-23-76
DOJ
NOV 14 ET
DRAFT
Office of the Attorney General
3 JUSTITYA
Washington, B. C. 20530
The Honorable Thomas P. O'Neill, Jr.
Speaker of the House of Representatives
Washington, D.C. 20515
Dear Mr. Speaker:
Enclosed for your consideration and appropriate reference is
a legislative proposal "To provide for comprehensive reforms in
compensation of attorneys, pursuant to federal statute, in civil
and criminal proceedings against the United States, and against
state and local governments." "
The proposal establishes standards and procedures for awards
of attorneys' fees in civil judicial and administrative pro-
ceedings against the United States, states, and local governments
in cases where federal statutes allow such awards, and eliminates
excessive awards in such cases. The proposal also provides for a
significant increase in the hourly rate of compensation to attor-
neys who represent indigent criminal defendants in proceedings
under the Criminal Justice Act, 18 U.S.C. §§ 3006A (d) (1) and (2).
The Administration supports the proposed legislation as a
package, and will not support an increase in compensation to
criminal defense attorneys without a corresponding reduction of
- 2 -
currently excessive awards of attorneys' fees in civil
proceedings.
Background
Numerous federal statutes provide that parties to civil
suits and administrative proceedings against the United States,
states, or local governments may, in appropriate circumstances,
recover "reasonable attorneys' fees" from government defendants.
These fee-shifting statutes, for the most part, provide little or
no guidance as to when an award of attorneys' fees is
appropriate, or as to what constitutes a reasonable award. As a
consequence, courts have reached conflicting interpretations of
these statutes, and in some cases have made awards of attorneys'
fees that greatly exceed the relief obtained by the parties in
the proceeding, and have used "multipliers" and "bonuses" to
double, and even triple, normal commercial hourly rates. In
addition, courts have regularly awarded attorneys' fees against
government defendants at rates in excess of $100 per hour, with
the result that attorneys are oversubsidized at the expense of
federal, state, and local taxpayers. These developments have
fueled litigation over attorneys' fee awards that frequently
overshadows the case on the merits, and have created a cottage
industry for legal practitioners and publishers who hold
themselves out as experts on how to obtain large awards of
attorneys' fees against government defendants.
- 3 -
While civil attorneys have increasingly used federal fee-
shifting statutes as a means of obtaining excessive awards
against federal, state, and local government defendants, defense
attorneys for indigent criminal defendants have been limited to
maximum compensation of $30 per hour for time in court and $20
per hour for time out of court under provisions of the Criminal
Justice Act that have not been changed since 1970.
The Proposed Legislation
The legislative proposal establishes a number of important
guidelines for awards of attorneys' fees in civil judicial and
administrative proceedings against federal, state, and local
government defendants, and fashions an equitable compensation
scheme for defense attorneys under the Criminal Justice Act. The
salient features of the proposal are summarized below.
1. Level of the Fee Cap. The bill would set the maxi-
mum rate for attorney compensation in civil judicial and admini-
strative proceedings under all federal fee shifting statutes at
$75 per hour, which is the same rate established in the recently-
enacted Equal Access to Justice Act, 28 U.S.C. SS 2412 (d) (1) and
(a) (3) and 5 U.S.C. S 504 (b) (1) The bill would, in all cases
under federal fee-shifting statutes, eliminate bonuses and multi-
pliers that courts have used excessively to escalate awards of
attorneys' fees.
- 4 -
Because private attorneys in cases under federal fee-
shifting statutes are, in essence, doing "government legal work,"
it is inappropriate for the compensation taxpayers pay to
"private attorneys general" who sue the government significantly
to exceed the compensation paid to the "public attorneys
general" who defend the government. The proposed legislation
would compensate private attorneys at a level commensurate with
that of their government counterparts, and would provide for a
reasonable profit sufficient to attract competent counsel in
fee-shifting cases.
2. Awards to Prevailing Parties. The bill would allow
recovery of attorneys' fees only when a party has prevailed on
the merits of its complaint, or, in accordance with existing case
law, where the suit is concluded by settlement agreement. In
addition, the bill would allow recovery of attorneys' fees only
for work performed on issues in the case on which the party pre-
vailed, and only to the extent the work performed was not exces-
sive, redundant, or otherwise unnecessary.
3. Reduction of Fee Awards. The bill would specify
several bases for reducing or denying fee awards that otherwise
would be allowed under federal fee-shifting statutes. Reduction
of the award would be appropriate, for example, in cases where a
party has unreasonably protracted the litigation; where no bona
fide attorney-client relationship is found to exist; where the
award is excessive in comparison to the monetary results achieved
- 5 -
in the litigation; or where the services provided were excessive
with regard to the nature of the controversy. The bill would
also provide for reduction of the fee award when it unreasonably
exceeds the hourly salary of a salaried attorney. As a
guideline, the proposal would require special scrutiny of awards
at rates exceeding an amount double an attorney's hourly salary.
Allowance of twice the hourly salary should cover normal overhead
expenses and allow for a reasonable profit in most cases. The
provision would not require courts to limit awards to an amount
twice the attorneys' hourly salary, but is designed to ensure
that courts carefully review awards to salaried attorneys so as
to avoid conferring windfalls at the expense of taxpayers.
4. Money Damages Cases. The bill would provide that
in any case where a party recovers a money judgment against a
federal, state, or local government, 25% of the judgment shall be
applied to the party's legal fees. This provision would not
apply to suits under certain provisions of the Equal Access to
Justice Act that allow attorneys' fees only when the government's
position is found not to be substantially justified. In order to
prevent inconsistent adjudications under the Tax Code, this
provision also would not apply to suits for recovery of disputed
taxes under 26 U.S.C. § 7430.
5. Criminal Justice Act Compensation Levels. The
bill would double the hourly rate of compensation for defense
- 6 -
attorneys under the Criminal Justice Act. Thus, the level of
compensation for Criminal Justice Act attorneys would be
increased from $30 per hour for time in court and $20 per hour
for out-of-court time to $60 and $40, respectively. The dif-
ference between the $75 maximum hourly rate for civil attorneys
and the $60 maximum rate for criminal defense attorneys is justi-
fied because criminal defense attorneys, unlike those in civil
fee-shifting cases, are compensated whether they win or not. The
maximum amounts payable to criminal defense lawyers for specific
proceedings also would be doubled.
6. Procedural Guidelines. The bill would establish
certain procedural requirements for processing of attorneys' fee
applications under federal fee-shifting statutes, and would
require courts and agencies to develop additional guidelines.
Conclusion
The Administration urges prompt and favorable consideration
of the proposed legislation, enactment of which would establish
much-needed guidelines for awards of attorneys' fees in civil
cases against federal, state, and local government defendants,
and would ensure that Criminal Justice Act attorneys are compen-
sated at a level commensurate with that of their colleagues in
civil cases.
Sincerely,
William French Smith
Attorney General
A BILL
DRAFT
To provide for comprehensive reforms in compensation of attorneys
pursuant to federal statute in civil, criminal, and
administrative proceedings in which the United States is a party,
and in civil proceedings involving state and local governments.
Be it enacted by the Senate and House of Representatives of
the United States of America in Congress Assembled, That this
Act may be cited as "The Legal Fees Reform Act."
SEC. 2. Findings and Purposes
(a) Congress hereby finds and declares that
(1) Many Federal statutes authorize awards of
attorneys' fees to be made to parties who prevail against
the United States, or against state or local governments, in
judicial and administrative proceedings;
(2) The failure to provide standards to guide courts
and administrative bodies in awarding such fees has led to
inconsistent interpretions of these federal civil
fee-shifting statutes, and in many instances to excessive
awards of attorneys' fees under them;
(3) It is inappropriate for the federal government to
impose on state and local governments the statutory
requirement to pay awards of attorneys' fees without
providing standards by which to make such awards;
- 2 -
(4) The limitation of $75 per hour recently prescribed
by Congress for civil judicial and administrative
proceedings under the Equal Access to Justice Act provides a
reasonable and appropriate maximum hourly rate for the award
of attorneys' fees against the United States, or against
state or local governments, in judicial or administrative
proceedings;
(5) It is inappropriate for awards of attorneys' fees
to be made to parties who have not prevailed on the merits
of their complaint against the United States, or against
state or local governments, in judicial or administrative
proceedings;
(6) It is appropriate that parties in judicial or
administrative proceedings against the United States, or
against state or local governments, pay a reasonable portion
of their attorneys' fees when monetary awards are recovered;
(7) Statutory provisions are necessary to control the
circumstances and conditions under which awards of
attorneys' fees and related expenses or costs may be made
against the United States, or against state or local
governments, in judicial or administrative proceedings; and
(8) There is a need to increase the level of
compensation for attorneys who defend indigent defendants in
federal criminal proceedings under the Criminal Justice Act,
18 U.S.C. § 3006A, which has not been amended since 1970.
(b) It is the purpose of this Act--
(1) To establish a uniform hourly rate that shall be
the maximum compensation authorized to be awarded against
- 3 -
the United States, or against state or local governments, in
judicial or administrative proceedings to which any federal
fee-shifting statute applies;
(2) To require that awards of attorneys' fees against
the United States, or against state or local governments, in
judicial or administrative proceedings to which any federal
fee-shifting statute applies be made only to parties who
have prevailed in the proceedings;
(3) To prescribe standards for the awarding of
attorneys' fees and related expenses or costs against the
United States, or against state or local governments, in
judicial or administrative proceedings to which any federal
fee-shifting statute applies; and
(4) To increase the maximum hourly rate of
compensation payable to attorneys in federal criminal
proceedings under the Criminal Justice Act.
SEC. 3. Definitions
For the purpose of this Act--
(1) "Attorneys' fees" means fees attributable to
professional legal services performed by a person, or
persons, licensed to practice law (but shall not include
services by pro se claimants), or to services by enrolled
tax practitioners with respect to proceedings before the
United States Tax Court, plus overhead expenses, as defined
in this Act, but does not include related expenses;
(2) "Fee-shifting statute" means any federal statute
that provides for recovery by a party of attorneys' fees or
- 4 -
related expenses against the United States, or against a
state or local government;
(3) "Overhead expenses", except in extraordinary
circumstances, shall include, but not be limited to, rent or
mortgage payments, maintenance (including heating and
cooling costs), furniture and supplies, reporters,
treatises, and other books, secretarial and other clerical
and librarian time (including computer word processing
expenses), telephone services and calls, and mailing
expenses;
(4) "Related expenses" means those expenses that may
be awarded pursuant to a federal law, and which are actually
incurred by the attorney in connection with judicial or
administrative proceedings, but does not include attorneys'
fees or overhead expenses, as defined in this Act, or costs
enumerated in section 1920 of title 28, United States Code;
(5) "Party" means, for purposes of judicial
proceedings, a party as defined by Rule 17 of the Federal
Rules of Civil Procedure, or, for purposes of administrative
proceedings, a party as defined in section 551 (3) of Title
5, United States Code, which is an individual, partnership,
corporation, association, unincorporated business, estate or
public or private organization other than an agency. The
term "party" does not include the United States, or any
state or local government, except when a state or local
government opposes the United States in a judicial or
administrative proceeding;
- 5 -
(6) "Judicial proceeding" means a civil proceeding in
any court or under the jurisdiction of a judicial officer,
in which a party may under federal statute be awarded
attorneys' fees or related expenses;
(7) "Administrative proceeding" means any proceeding,
other than a judicial proceeding, in which a party may by
statute be awarded attorneys' fees or related expenses;
(8) "Administrative officer" means the official (s) or
person (s) authorized by statute or regulation to decide the
substantive issues being considered in an administrative
proceeding, or the official (s) or person (s) designated by
the head of the agency as the administrative officer (s) for
the purpose of this Act;
(9) "Prevail on the merits" means succeeding on
significant issues in the controversy and obtaining
significant relief in connection with those issues, and may
include, where the party is a defendant in a suit by the
government, obtaining the dismissal of the complaint;
(10) "Decision on the merits" means a final judgment by
the court, within the meaning of Rules 54-58 of the Federal
Rules of Civil Procedure, in which a party establishes
entitlement to relief on the merits of the claim or claims
brought in the proceeding, and includes a dismissal with
prejudice or a dismissal pursuant to a settlement agreement;
(11) "United States" means the United States, or any
agency of the United States, or any official of the United
States acting in his or her official capacity;
- 6 -
(12) "State" means any state government, or any agency
of the state government, or any official of the state
government acting in his or her official capacity, and
includes the territories and the District of Columbia; and
(13) "Local government" means any county, city, town,
municipality, municipal corporation, school board, or other
political subdivision created by a state, or any agency of
such entity, or any official of such entity acting in his or
her official capacity.
SEC. 4. Scope and Application; Relationship to Other Laws
(a) The provisions of this Act --
(1) apply to the award of attorneys' fees and related
expenses authorized, pursuant to any federal fee-shifting
statute, to be made against the United States, or against
state or local governments, in any judicial or
administrative proceeding, and
(2) establish minimum criteria and requirements for
the award of attorneys' fees and related expenses to which
this Act applies.
(b) Notwithstanding any other provision of law, no award of
attorneys' fees or related expenses shall be made against the
United States, or against state or local governments, in any
judicial or administrative proceeding, except as expressly
authorized by federal statute (other than this Act), and in
accordance with the provisions of this Act. No such award shall
exceed the amount determined under the provisions of this Act.
- 7 -
(c) The provisions of any applicable federal fee-shifting
statute that establish criteria or requirements in addition to
those provided in this Act for the award of attorneys' fees and
related expenses in such proceedings, or that otherwise limit
awards of attorneys' fees in such proceedings, shall apply in
addition to the provisions of this Act. Where an award of
attorneys' fees is authorized both under a federal fee-shifting
statute and under the common law, such award shall be made in
accordance with the provisions of the applicable federal fee-
shifting statute and with the provisions of this Act.
(d) Nothing in this Act shall be interpreted--
(1) to create any right to an award of attorneys' fees
or related expenses against the United States, or against
state or local governments in any judicial or administrative
proceeding, or
(2) to provide authority for any court or
administrative officer to make such an award of attorneys'
fees or related expenses in such proceeding.
(e) Awards of attorneys' fees and related expenses
otherwise authorized under section 504 of title 5 of the United
States Code or section 2412 (d) of title 28 of the United States
Code (the Equal Access to Justice Act) shall be made in
accordance with the provisions of this Act, except that
subsections (a), (b) (4), (b) (5), and (c) of section 6 of this Act
shall not apply.
(f) The provisions of this Act, except the amendment made
by section 6 (d) of this Act, shall not apply to compensation of
- 8 -
attorneys in federal criminal proceedings, or in civil habeas
proceedings under the Criminal Justice Act.
SEC. 5. Allowance of Attorneys' Fees
A party otherwise eligible to receive attorneys' fees and
related expenses to which this Act applies must establish that --
(1) The party has prevailed on the merits against the
United States, or against a state or local government;
(2) The attorneys' fees and related expenses for which
the award is sought--
(A) resulted from work performed in connection
with issues upon which the party prevailed, and
(B) such work was necessary to resolve the
controversy;
(3) The application for attorneys' fees and related
expenses is made in accordance with Section 7 of this Act;
(4) The attorneys' fees sought are not in excess of
the amount permitted under section 6 (a) of this Act; and
(5) The attorneys' fees sought are for services that
are not excessive, redundant, or otherwise unnecessary.
SEC. 6. Amount of Attorneys' Fees
(a) No award of attorneys' fees against the United States,
or against a state or local government, to which this Act applies
shall exceed $75 per hour. Bonuses or multipliers shall not be
used in calculating awards of attorneys' fees.
- 9 -
(b) The court or administrative officer of an agency may
reduce or deny the amount of attorneys' fees and related expenses
otherwise allowable, based on a finding that--
(1) the prevailing party, during the course of the
proceeding, engaged in conduct that unreasonably protracted
the final resolution of the controversy;
(2) there is no bona fide attorney-client relationship
with an identified client;
(3) the amount of attorneys' fees otherwise authorized
to be awarded unreasonably exceeds the hourly salary of the
attorney representing the party;
(4) the time and legal services provided were
excessive with regard to the nature of the controversy;
(5) the amount of attorneys' fees otherwise authorized
to be awarded unreasonably exceeds the monetary result or
injunctive relief achieved in the proceeding; or
(6) a reduction or denial of the amount of attorneys'
fees would otherwise be appropriate under the applicable
fee-shifting statute.
Courts and administrative officers shall exercise their
discretion in determining the amount of any reduction of an award
under this subsection.
(c) The monetary judgment awarded in any judicial or
administrative proceeding shall be reduced (but not by more than
25% thereof) by the amount of attorneys' fees otherwise
authorized to be made against the United States, or against state
or local governments. This subsection shall not apply to awards
of attorneys' fees--
- 10 -
(1) as provided in section 4 (e) of this Act;
(2) pursuant to section 7430 of the Internal Revenue
Code; or
(3) where undue hardship would result.
(d) Subsection (d) of Section 3006A of Title 18, United
States Code, is amended--
(1) by striking out "$30" in paragraph (1) and
inserting in lieu thereof "$60";
(2) by striking out "$20" in paragraph (1) and
inserting in lieu thereof "$40";
(3) by striking out the words ", or such other hourly
rate, fixed by the Judicial Council of the Circuit, not to
exceed the minimum hourly scale established by a bar
association for similar services rendered in the district"
in paragraph (1) ;
(4) by striking out "$1000" each place it appears in
paragraph (2) and inserting in lieu thereof "$2000";
(5) by striking out "$400" in paragraph (2) and
inserting in lieu thereof "$800"; and
(6) by striking out "$250" in paragraph (2) and
inserting in lieu thereof "$500".
SEC. 7. Timely Applications and Procedures
(a) In any judicial or administrative proceeding to which
this Act applies, a party may seek an award of attorneys' fees
and related expenses only within thirty days after either a
decision on the merits by the court or the entry by an
administrative officer of an agency of a final decision in an
- 11 -
administrative proceeding. The party seeking an award of
attorneys' fees shall submit to the court or agency such
information as may be required by the court or administrative
officer of the agency.
(b) Courts and agencies shall develop procedures, not
inconsistent with this Act, for filing of applications for awards
of attorneys' fees, which shall provide guidance as to what
information should be required to be submitted pursuant to
subsection (a) of this section, when such information should be
submitted, and when determinations should be made concerning
awards of attorneys' fees and related expenses. In no event
shall an award of attorneys' fees and related expenses be made
prior to entry of a decision on the merits by the court or entry
by an administrative officer of a final decision of an
administrative proceeding.
SEC. 8. Mootness and Settlement Defenses
No award of attorneys' .fees and related expenses subject to
the provisions of this Act may be made--
(1) where the government demonstrates that--
(A) the claims have become moot due to a change
in government policy, and
(B) the pendency of the judicial or
administrative proceeding was not a material factor in
such change in policy; or
(2) for services performed subsequent to the time a
written offer of settlement is made to a party, if the offer
- 12 -
is not accepted and a court or administrative officer finds
that--
(A) the relief finally obtained by the party is
not more favorable to the party than the offer of
settlement, and
(B) the failure of the party to accept the offer
of settlement was not reasonable at the time such
failure occurred.
SEC. 9. Comptroller General Report
The Comptroller General of the United States shall submit on
April 1 of each year a report to the President and the Congress
on the amount of attorneys' fees and related expenses awarded
during the preceding fiscal year against the United States, or
against state or local governments, in judicial and
administrative proceedings to which this Act applies. The courts
and each agency shall provide the Comptroller General with such
information as is necessary to comply with the requirements of
this section.
SEC. 10. Effective Date
The provisions of this Act shall apply to any award of
attorneys' fees and related expenses incurred subsequent to the
enactment of this Act, including those incurred after such date
in actions commenced prior to such enactment.
Section by Section Analysis
Section 2 -- Findings and Purposes
Numerous federal statutes provide that parties to civil
suits and administrative proceedings against the United States,
states, or local governments may, in appropriate circumstances,
recover "reasonable attorneys' fees" from government defendants.
These statutes have put a great burden on the courts because, for
the most part, Congress has provided little or no guidance as to
when an award of attorneys' fees is appropriate, or as to what
constitutes a reasonable award. As a consequence, courts have
reached conflicting interpretations of these statutes - in some
cases using "multipliers" and "bonuses" to double, and even
triple, the normal hourly rates of the prevailing party's
attorney. The resulting uncertainty and litigation over attor-
neys' fee awards frequently overshadows the case on the merits,
and has led to the creation of a cottage industry for attorneys'
fee litigators.
The problems evident in this area are in some respects
even more serious with respect to the states and localities.
Recent decisions of the Supreme Court have expanded greatly the
liability of states and local governments to suits under various
Federal statutes, and correspondingly to awards of attorneys'
fees. As the liability of the states and localities has greatly
expanded in recent years, the obligation of Congress to define
more clearly the circumstances and extent to which they should be
- 2 -
held liable for attorneys' fees under Federal statutes has also
grown.
The purpose of the bill is to have Congress provide
greater guidance to the courts and federal agencies for the award
of attorneys' fees pursuant to federal statute, and to reduce the
current uncertainties and disparities reflected in the present
decisions. The bill is not intended to deny fees to attorneys
for prevailing parties; only to set common standards and
procedures that would apply to all awards of attorneys' fees
against the United States, and against state and local
governments.
Another important purpose of the bill is to provide for
greater balance bewteen the high hourly rates of compensation for
private attorneys' who sue the government in civil litigation and
the much lower hourly rates of compensation for attorneys who
represent indigent criminal defendants in proceedings under the
Criminal Justice Act, 18 U.S.C. § 3006A (d) (1) & (2). In contrast
to hourly rates of over $200 (including multipliers) in some
civil attorneys' fee awards, criminal defense attorneys have
received the same rates of $20 and $30 per hour since 1970. The
bill would double the current hourly rates under the CJA.
With respect to civil judicial and administrative
proceedings, the bill is intended to provide guidance in the
calculation of fee awards, and to limit the hourly rate of
compensation to $75 per hour, which is the same rate established
in the recently-enacted Equal Access to Justice Act, 28 U.S.C.
§ 2412 (d) (1) and (d) (3) and 5 U.S.C. § 504 (b). The bill would
eliminate the use of bonuses and multipliers.
- 3 -
The bill is also intended to limit the recovery of
attorneys' fees to those cases in which a party has prevailed on
the merits of the complaint, and only for work performed on
issues in the case on which the party prevailed. The bill also
specifies several discretionary bases for reducing or denying fee
awards that otherwise would be allowed under federal fee-shifting
statutes -- for example, where a party's conduct unreasonably
protracted the litigation; or the requested fee award unreason-
ably exceeds the hourly salary of a salaried attorney - and
provides, in any case where a party recovers a money judgment
against a federal, state, or local government, for 25% of the
judgment to be applied to the party's legal fees. 1/
Section 3 -- Definitions
Section 3 defines the terms used in the bill. "Attor-
neys' fees" are defined as fees attributable to professional
legal services performed by a person, or persons, licensed to
practice law, including enrolled tax practitioners who practice
before the United States Tax Court. This definition is intended
to limit awards to licensed practitioners, and not to allow
awards to non-licensed, pro se claimants or law students. 2/ The
1/ This 25% reduction would not apply to suits under certain
provisions of the Equal Access to Justice Act, to suits for
recovery of disputed taxes under 26 U.S.C. $ 7430, or where undue
hardship would result.
2/ Most courts have ruled that pro se litigants generally are
ineligible for attorneys' fees awards. See Cofield V. City of
Atlanta, 648 F.2d 986 (5th Cir. 1981) ; Owens - El V. Robinson,
- 4 -
definition is intended to cover all awards of fees that in fact
reflect compensation of attorneys, however denominated, including
those designated as "costs" by the court or administrative
agency. 3/ "Attorneys' fees" includes "overhead expenses" but
does not include "related expenses."
Expenses to be included as "overhead expenses" should
be considered as such except in extraordinary circumstances. The
list of overhead expenses is not exhaustive, and other
appropriate expenses may be included as "overhead expenses." The
list is intended to preclude considering these expenses as
"related expenses," except in extraordinary circumstances.
498 F. Supp. 877 (W.D. Pa. 1980) ; Crooker V. Department of
Justice, 632 F.2d 916, 922 (1st Cir. 1980) and Burke V. Depart-
ment of Justice, 559 F.2d 1182 (10th Cir. 1977), aff'g mem. 432
F. Supp. 251 (D. Kan. 1976). The D.C. Circuit, however, has
awarded attorneys' fees under the FOIA to pro se prisoners and to
law students who received 12 hours of course credit. See Crooker
V. Department of Treasury, 663 F.2d 140 (D.C. Cir. 1980); Jordan
V. Department of Justice, No. 81-1380 (D.C. Cir. Oct. 5, 1982).
The definition of "attorney," however, is not intended to affect
judicial interpretations regarding whether individual statutes
authorize awards of attorneys' fees to licensed attorneys
appearing pro se. For example in White V. Arlen Realty &
Development Corp., 614 F.2d 387 (4th Cir.) (per curiam), cert.
denied, 447 U.S. 923 (1980), the Fourth Circuit denied an award
of attorneys' fees to a plaintiff-attorney under the Truth-in-
Lending Act.
3/ Generally, courts have followed the principle that
attorneys' fees are not costs, but are separate, with attorneys'
fees awards authorized by various fee-shifting statutes and costs
authorized by 28 U.S.C. §§ 2412 (a) and 1920. However, some
statutes, such as Title VII of the Civil Rights Act and 42 U.S.C.
§ 1988, have been interpreted to make attorneys' fees part of
costs. See Delta Air Lines V. August, 450 U.S. 346 (1981) (Title
VII). If left unaddressed, parties could attempt to circumvent
the $75 fee limitation and other provisions in this bill
regarding attorneys' fees by seeking attorneys' fees as costs
under these statutes.
- 5 -
"Related expenses" are those expenses that may be
awarded pursuant to federal statute, are not "overhead expenses,"
and are actually incurred by the attorney as a result of judicial
or administrative proceedings. "Related expenses" does not
include "attorneys' fees." This definition is not intended to
affect case law under Title VII and 42 U.S.C. $ 1988 which, in
some instances, has authorized awards of costs beyond those
specified in 28 U.S.C. $ 1920 to include such items as lodging
and travel expenses. See, e.g., Northcross V. Board of Edu-
cation, 611 F.2d 624, 639 (6th Cir. 1979), cert. denied, 447 U.S.
911 (1980). However, as noted, the definition of overhead
expenses precludes considering the items enumerated there as
"related expenses." The definition also excludes costs
enumerated in 28 U.S.C. $ 1920, and the bill is not intended to
affect the allocation of costs enumerated in that section.
Courts and administrative officers may include as
"related expenses" actual costs incurred for the services of
paralegals and law clerks who assist attorneys in representing
their clients.
The definitions of "decision on the merits" and
"prevail on the merits" are discussed in connection with the
provisions of section 5 (1) of the bill, which requires that a
party seeking an award of attorneys' fees must prevail on the
merits.
Section 4 -- Scope and Application; Relationship to Other Laws
Subsection (a) provides that the provisions of this
bill are intended to apply to all awards of attorneys' fees
- 6 -
against the United States, or any state or local government, and
to establish minimum criteria for such awards. In this way, this
bill will provide greater uniformity and order for the scores of
attorneys' fee statutes that authorize awards of attorneys' fees
and related expenses against the federal, state, and local
governments.
Subsection (b) provides the general rule that,
notwithstanding any other provision of law, the provisions of
this bill would apply to, and modify, all federal fee-shifting
statutes, including the Equal Access to Justice Act, 5 U.S.C. §
504 and 28 U.S.C. § 2412 (b) and (d). No award of attorneys' fees
and related expenses would be able to exceed the amounts
determined under the bill.
Subsection (c) provides that the criteria for the
awards of attorneys' fees and related expenses established by
this bill would not supersede more restrictive criteria contained
in other statutes for making such awards. The provisions of this
bill establish minimum criteria to be applied for determining and
awarding attorneys' fees and related expenses or costs in judi-
cial and administrative proceedings against the United States or
against state or local governments. 4/
Subsection (d) provides that nothing in the bill shall
be interpreted to create any right to an award of attorneys' fees
4/ For example, 5 U.S.C. $ 7701 (g) (1) provides that attorneys'
fees may be awarded if (1) the party has prevailed; and (2) the
award of attorneys' fees would be "warranted in the interest of
Justice
II The second of these two criteria, which is not
contained in the bill, would continue to apply.
- 7 -
or related expenses. Any right to such an award derives solely
from the provisions of other laws.
The bill does not affect the award of attorneys' fees
against the government in cases such as those under the Federal
Tort Claims Act, 28 U.S.C. §§ 2671-2680, or cases involving
National Service Life Insurance or United States Government Life
Insurance, under 38 U.S.C. $ 784. Those statutes are not federal
fee-shifting statutes, because the attorneys' fees are paid from
the prevailing party's total award of damages or proceeds and are
not a separate award entered against the government.
Subsection (e) provides that, although the bill
generally would apply to awards under the Equal Access to Justice
Act, the provisions of section 6 (a) (establishing a limitation of
$75 per hour for attorneys' fees) and section 6 (c) (reduction of
fee awards in money damages cases) of the bill would not apply to
awards made under 5 U.S.C. $ 504 (a) (1) and 28 U.S.C.
§ 2412 (d) (1) (A) & (d) (3). Those sections of the EAJA provide
that awards of attorneys' fees may be made unless the government
proves that its position in the litigation was substantially
justified. In addition, the factors listed for reduction of fee
awards in paragraphs (4) and (5) of section 6 (b) of the bill
would not apply under those provision of the EAJA. 5/ The
language and legislative history of these provisions of the EAJA
5/ These discretionary factors authorize a reduction of the
attorneys' fee award based on findings that the time and legal
services were excessive with regard to the nature of the
controversy, or that the amount sought unreasonable exceeds the
monetary result or injunctive relief achieved.
- 8 -
reflect Congress's intent to award attorneys' fees to prevailing
parties who meet the qualifications of that Act, unless the
government's position was "substantially justified" or "special
circumstances" would make an award of attorneys' fees unjust.
The purpose of this subsection is to assure that the special
characteristics of the EAJA in this respect will not be affected
by this bill. The exceptions described in this subsection would
not apply to attorneys' fee awards under 28 U.S.C. $ 2412 (b), a
preexisting provision which was amended by the EAJA.
Subsection (f) provides that the provisions of the bill
shall not apply in federal criminal proceedings or civil habeas
corpus proceedings in the federal courts, except for the
provision in section 6 (d) of the bill which would double the
allowable amounts of attorneys' fees under the Criminal Justice
Act, 18 U.S.C. $ 3006A.
Section 5 - Allowance of Attorneys' Fees
Section 5 of the bill establishes the prerequisites to
an award of attorneys' fees and related expenses against the
United States, or against state or local governments, in any
civil judicial or administrative proceeding to which a federal
fee-shifting statute applies. The party seeking such awards must
establish, and the court or administrative officer must
determine, (1) that the party prevailed on the merits of its
complaint in the proceeding; (2) that the work for which the
award is sought was performed in connection with issues on which
the party prevailed and was necessary to resolve the controversy;
(3) that the application is submitted in compliance with the
- 9 -
procedural requirements of Section 7; (4) that the attorneys'
fees sought do not exceed amounts authorized under Section 6; and
(5) that the services for which attorneys' fees are sought are
not excessive, redundant, or otherwise unnecessary.
As set forth in section 4 (c) of the bill, the require-
ments of this section for awards of attorneys' fees, including
the requirement that a party "prevail," are not intended to
supersede other additional requirements established by law, such
as those under 5 U.S.C. § 7701 (g) (1) (where an award to a pre-
vailing party must be "warranted in the interest of Justice.").
Nothing in this section is intended to change the
burden of proof for determinations of "substantial justification"
in applications for fee awards under the Equal Access to Justice
Act, 5 U.S.C. $ 504 (a) (1) and 28 U.S.C. § 2412 (d) (1) (A) & (d) (3).
The burden remains on the government to prove "substantial justi-
fication" in connection with such applications.
Prevail on the Merits. Paragraph (1) would preclude
awards of attorneys' fees and related expenses against the United
States and against state and local governments unless the party
seeking the award prevailed on the merits of its complaint. The
definition of "prevail on the merits" focuses on whether the
party was successful on significant issues in the controversy and
obtained significant relief in connection with these issues.
This is intended to be a more flexible standard than some
formulations of this term. Cf. Taylor V. Sterrett, 640 F.2d 663,
669 (5th Cir. 1981) (a prevailing party for attorneys' fees
purposes "has been successful on the central issue" in the case,
and has "acquired the primary relief sought"). The relief sought
- 10 -
need not be "central," but must be significant in terms of the
result sought by the party. In this respect, the bill reflects
the first part of the test enunciated by the Supreme Court in
Hensley V. Eckerhart, 103 S. Ct. 1933 (1983) ("plaintiffs may be
considered prevailing parties for attorneys' fees purposes if
they succeed on any significant issue in litigation which
achieves some of the benefit the parties sought in bringing the
suit") (emphasis added).
This bill differs, however, from the second part of the
Hensley formulation. The language of Hensley is subject to
misreading, as the district court did in Laffey V. Northwest
Airlines, Inc., No. 2111-70 (D.D.C. July 29, 1983), which found
that the plaintiffs to be prevailing parties for all purposes
even though they in fact failed to achieve the results sought in
important respects.
The purpose of the bill is to state more precisely that
the relief obtained by the party must be significant, not merely
"some of the benefit" the party sought. The relief obtained
should be significant in terms of the result sought by the party
in bringing the suit. Cf. Hensley V. Eckerhart, 103 S. Ct. at
1943 ("A reduced fee award is appropriate if the relief, however
significant, is limited in comparison to the scope of the
litigation as a whole").
The requirement to show that the party has prevailed on
the merits would also apply to statutes, such as the Clean Air
- 11 -
Act, that authorize the award of attorneys' fees "when appropri-
ate. 01 6/
This paragraph provides that the party must prevail in
a "decision on the merits" of a court or a final disposition by
an agency in an administrative proceeding. The Federal Rules of
Civil Procedure generally define a final judgment as any order
from which an appeal lies, including dismissals and default and
summary judgments, and final judgments entered on less than all
pending claims pursuant to Rule 54 (b). The definition of
"decision on the merits" is limited to those final judgments in
which the party establishes entitlement to relief on the merits.
Thus, an award of attorneys' fees would not be appropriate for a
party who has prevailed only on a motion for preliminary
injunction or for a temporary restraining order, where the merits
of the suit have not been resolved. However, the definition
would permit the award of attorneys' fees where the party
defending against a suit brought by the government obtains the
dismissal of a groundless complaint. 7/
6/ The Supreme Court in Ruckelshaus V. Sierra Club, 51 U.S.L.W.
5132, 5136 (U.S. July 1, 1983) (No. 82-242), held that the
claimant must demonstrate that it enjoyed "some degree of success
on the merits" in order to receive attorneys' fees under the
Clean Air Act, which provides for such fees "when appropriate."
7/ See H.R. Conf. Rep. No. 96-1434, 96th Cong., 2d Sess. 21-22
(1980). See also United States ex rel. Heydt V. Citizens State
Bank, 668 F.2d 444, 447 (8th Cir. 1982) (organization which
successfully opposed IRS summons in order to protect the
confidentiality of its members was a prevailing party under the
EAJA; however, no attorneys' fees were awarded because the IRS
position was substantially justified).
- 12 -
The bill would not preclude so-called "interim awards"
of attorneys' fees where the text or legislative history of an
applicable fee-shifting statute indicates that Congress has
authorized them, but such awards should be made only "to a party
who has established his entitlement to some relief on the merits
of his claims, either in the trial court or on appeal." Hanrahan
V. Hampton, 446 U.S. 754, 757 (1980) (per curiam). In Hanrahan,
the Supreme Court noted that the legislative history of 42 U.S.C.
§ 1988 cited, as examples of appropriate circumstances for
interim fee awards, two cases 8/ in which the "party to whom the
fees were awarded had established the liability of the opposing
party, although final remedial orders had not been entered." Id.
at 757. The Court found that the plaintiffs had not prevailed on
the merits of any of their claims and reversed the award of
attorneys' fees. Id. at 758. Further, the Court ruled that
attorneys' fees are not to be awarded for nondispositive rulings
regarding matters of discovery, evidence, or procedure. Id. at
759. See also Smith V. University of North Carolina, 632 F.2d
316, 350-51 (4th Cir. 1980).
Paragraph (1) is not intended to modify existing case
law providing that attorneys' fees may be awarded in cases where
the litigation is terminated by settlement agreement, as long as
the party seeking fees has prevailed on the merits of the relief
8/ Bradley V. Richmond School Board., 416 U.S. 696 (1974) and
Mills v. Electric Auto-Lite Co., 396 U.S. 375 (1970), are cited
in the legislative history of the Civil Rights Attorney's Fees
Awards Act of 1976. S. Rep. No. 94-1011, 94th Cong., 2d Sess. 2,
and H.R. Rep. No. 94-1558, 94th Cong., 2d Sess. 6 (1976).
- 13 -
sought. 9/ Nor is the provision intended to preclude discussions
between the parties of attorneys' fees, or the waiver thereof,
before the decision on the merits by a court or the final dispo-
sition by an administrative officer, or to prevent the government
from discussing liability for attorneys' fees in conjunction with
liability on the merits as part of a settlement agreement, or
from including in a settlement agreement provisions for
attorneys' fees and related expenses or costs.
Necessary Work on Prevailing Issues. Under paragraph
(2), a prevailing party seeking an award of attorneys' fees and
related expenses against the United States, or against state or
local governments, must show that the work for which fees are
sought was performed in connection with issues, substantive or
procedural, upon which the party prevailed, and was necessary to
the resolution of the controversy. 10/ This provision is not
intended to preclude awards of attorneys' fees and related
9/ See, e.g., Ward V. Schweiker, 562 F. Supp. 1173 (W.D. Mo.
1983)
As the court stressed in Parker V. Matthews, 411 F. Supp. 1059,
1054 (D.D.C. 1976), aff'd, 561 F.2d 320 (D.C. Cir. 1977), the
settlement should be carefully scrutinized to determine if an
award of attorneys' fees is justified:
[W] hether to award attorneys' fees where there has
been a settlement of a Title VII lawsuit must be determined
by a close scrutiny of the totality of the circumstances
surrounding the settlement, focusing particularly on the
necessity for bringing the action and whether the party is
the successful party with respect to the central issue --
discrimination.
10/ See Henslev V. Eckerhart, supra, 103 S. Ct. at 1940 ("[W]ork
on an unsuccessful claim cannot be deemed to have been 'expended
in pursuit of the ultimate result achieved.'
[T] herefore no
fee may be awarded for services on the unsuccessful claim. ").
- 14 -
expenses where a party's pleadings contain meritorious alter-
native grounds for relief based on the same facts, on which a
court or administrative officer did not rule because the party
prevailed on other grounds. In such instances, awards of
attorneys' fees and related expenses may include amounts
attributable to time expended on such alternative pleadings, if
the court or administrative officer determines that the alter-
native pleadings were reasonably directed to the resolution of
the merits of the controversy. Awards of attorneys' fees and
related expenses are not to be made in cases where the specific
statutory provisions construed in the case do not provide for the
award of attorneys' fees, 11/ nor for work in connection with
issues that are rejected by the court or administrative officer. 12/
Other showings. Paragraphs (3) and (4) require that
the application for awards of attorneys' fees and related
expenses be made in accordance with the provisions of this Act.
Paragraph (5) requires the party seeking attorneys' fees to
11/ See Smith V. Cumberland School District, 703 F.2d 4 (1st
Cir. 1983) (reversing district court's award of attorneys' fees
where case was grounded on the Education for All Handicapped
Children Act, which does not provide for the award of attorneys'
fees, even though the plaintiff included allegations based on
section 504 of the Rehabilitation Act of 1973 and 42 U.S.C.
§ 1983, which the courts did not reach), cert. granted sub nom.
Smith V. Robinson, 52 U.S.L.W. 3342 (U.S. Oct. 31, 1983) (No.
82-2120).
12/ This requirement would, inter alia, preclude awards of
attorneys' fees "where the fee-triggering statute plays no role
but that of allowing attorney fees." Tatro V. Texas, 516 F.
Supp. 968, 984 (N.D. Tex. 1981), aff'd, 703 F.2d 823 (5th Cir.
1983).
- 15 -
establish that the services for which fees are sought were not
"excessive, redundant, or otherwise unnecessary." 13/ Because
intervenors are "parties" for the purposes of this bill, they may
receive awards of attorneys' fees if they meet the requirements
of the applicable fee-shifting statute and this bill, including
the showing required by this paragraph.
Section 6 -- Amount of Attorneys' Fees
Civil Fee-Shifting Statutes
Paragraph 5 (a) (1) establishes a maximum hourly rate of
$75 for attorneys' fees awards against the United States, states,
and local governments under federal fee-shifting statutes. 14/
This provision shall not apply to awards under the Equal Access
to Justice Act, 5 U.S.C. $ 504 (a) (1) and 28 U.S.C. $ 2412 (d) (1) (A)
and (d) (3), because the EAJA has its own limit of $75 per hour,
13/ See Hensley V. Eckerhart, supra, 103 S. Ct. at 1940.
14/ In determining the total award of attorneys' fees, courts
and administrative officers should continue the practice of
determining the number of hours reasonably expended in the
proceeding, multiplied by a reasonable hourly rate not exceeding
$75. In deciding whether the hours claimed were "reasonably
expended" under any fee shifting statute, the Supreme Court has
admonished that "[h]ours that are not properly billed to one's
client also are not properly billed to one's adversary pursuant
to statutory authority." Hensley V. Eckerhart, supra, 103 S. Ct.
at 1940, citing Copeland V. Marshall, 641 F.2d 880, 891 (D.C.
Cir. 1980) (en banc). In arriving at the total fee award, the
factors set forth in section 6 (b) and those identified by the
Supreme Court in Hensley V. Eckerhart, supra, 103 S. Ct. at
1940-41.
- 16 -
subject to specified exceptions. 15/ In calculating the amount
of any award of fees, multipliers or bonuses shall not be used.
The $75 per hour limit in subsection (a) is intended to
assure that fees paid to private counsel in fee-shifting cases
are brought more in line with the salaries of attorneys who
represent the government in these cases, while allowing for
reasonable overhead. This is appropriate, because many federal
fee-shifting statutes are premised on the theory that groups or
individuals who sue the government for the public benefit are
acting as "private attorneys general." Attorneys' fees fees paid
by taxpayers to these "private attorneys general" should be
commensurate with the salaries paid by taxpayers to federal
"public attorneys general."
It is emphasized that this subsection establishes only
a maximum hourly rate of compensation. Courts should give due
consideration to the fees normally received by the attorney for
similar work and other relevant factors. Attorneys' fees may be
awarded at hourly rates less than the maximum established by this
bill.
Subsection (b) provides that courts or administrative
officers may reduce or deny awards of attorneys' fees and related
expenses against the United States, or against state or local
15/ The provisions of the Equal Access to Justice Act, unlike
other fee-shifting statutes, predicate awards of attorneys' fees
not only upon a finding that the party prevailed, but also that
the government was not substantially justified in its position.
In light of the latter requirement and the EAJA's existing fee
limitation provision, it is unnecessary to apply the general fee
limitation of this bill to the EAJA.
- 17 -
governments, where it is determined that (1) the prevailing party
unreasonably protracted the final resolution of the controversy;
(2) there is no bona fide attorney-client relationship with an
identified client; (3) the attorneys' fee unreasonably exceeds
the hourly salary of a salaried attorney; (4) the time and legal
services provided were excessive with regard to the nature of the
controversy; (5) that the attorneys' fee award otherwise
allowable would unreasonably exceed the monetary result or
injunctive relief achieved in the proceeding; or (6) the award
would otherwise be unjust or inappropriate. The amount of any
reductions pursuant to this subsection shall be at the discretion
of the court or administrative officer. The fourth and fifth
factors would not apply to awards under 5 U.S.C. § 504 and
28 U.S.C. § 2412 (d) of the Equal Access to Justice Act. This
exception is intended to maintain the status quo in the inter-
pretation of the "special circumstances" provision of the EAJA,
and not to affect the courts' construction of that provision of
that term in the context of fee awards under the EAJA.
Paragraph (1) is patterned on the Equal Access to Jus-
tice Act, 28 U.S.C. § 2412 (d) (1) (C) and 5 U.S.C. § 504 (a) (3).
Paragraphs (2) and (4) are similar to provisions for determining
reasonable attorneys' fees in the Alaska Native Claims Settlement
Act, 43 U.S.C. § 1619 (d) (2) Paragraph (4) is derived from
Hughes V. Repko, 578 F.2d 483 (3d Cir. 1978), where the district
court was directed to determine whether it was reasonably
necessary to spend the number of hours claimed by the attorneys
in order to perform the legal services for which compensation was
sought.
- 18 -
Paragraph (3) would provide that the court or admini-
strative officer may consider, as a basis for reducing a fee
award otherwise allowable, whether the award would unreasonably
exceed the hourly salary of the party's attorney. This provision
is intended to apply to all attorneys who are paid on a salaried
basis, including in-house counsel and associates in a law firm.
As a general guideline, an application for an award may be
regarded as unreasonably excessive under paragraph (3) if it is
more than twice the attorney's hourly salary. Twice the
attorney's hourly salary should, in general, provide reasonable
compensation and cover normal overhead expenses. The bill does
not require that awards be limited to 200% of an attorney's
hourly salary in all cases, but is intended to encourage courts
and administrative officers carefully to review applications for
awards that would exceed that level, and to reduce awards that
would confer windfalls on attorneys.
Paragraph (5) is intended to address the anomalous
result where attorneys receive far greater benefit from the liti-
gation than their clients, such as in cases where $100,000 is
awarded in attorneys' fees for a $20,000 judgment, or where
$22,000 in attorneys' fees is awarded for only a $500 award to
each of three clients. In other cases, the injunctive relief
actually achieved in the case might be so limited that it does
not warrant the amount of attorneys' fees otherwise allowable.
Cf. Hensley V. Eckerhart, supra, 103 S. Ct. at 1941 (The award of
full attorneys' fees to a party who has achieved only partial or
limited success would be "an excessive amount"). In determining
whether reduction of an award is appropriate, courts or
- 19 -
administrative officers should consider both the monetary
judgment achieved and any significant injunctive or other
equitable relief obtained by the parties in the proceeding.
Paragraph (6) provides that the bases for reducing an
award of attorneys' fees that are listed in this subsection are
not meant to be exclusive, and courts and administrative officers
should continue to consider other factors that are appropriate
under existing law. See Hensley V. Eckerhart, supra, 103 S. Ct.
at 1940-41. The legislative history of the Civil Rights
Attorney's Fees Award Act of 1976, 42 U.S.C. $ 1988, provides
that "special circumstances" are to be considered by courts in
awarding attorneys' fees. Nothing in this bill is intended to
preclude consideration of such "special circumstances" to reduce
the amount of fee awards against the government.
Finally, nothing in this bill is intended to overturn
cases such as Christianburg Garment Co. V. Equal Employment
Opportunity Commission, 434 U.S. 412, 421 (1978), where
plaintiffs were required to pay the defendant's attorneys' fees
because the plaintiffs' claim was found to be "frivolous, unrea-
sonable or without foundation, even though not brought in subjec-
tive bad faith."
Subsection (c) provides that, whenever a monetary
judgment is awarded against the United States, or against a state
or local government, the judgment shall be reduced (but not more
than 25%) by the amount of attorneys' fees allowed in the pro-
ceeding. The rationale for this offset is not to reduce the
attorneys' compensation, but to provide that a prevailing party
should pay part of its legal expenses from any monetary award
- 20 -
recovered in a judicial or agency proceeding. This provision
would not apply to attorneys' fee awards under the Equal Access
to Justice Act, 5 U.S.C. § 504 (a) (1) and 28 U.S.C. $ 2412 (d) (1) (A)
& (d) (3), where fee awards are available only where the govern-
ment's position was not substantially justified. It also would
not apply to awards in cases brought for recovery of disputed tax
payments under 26 U.S.C. $ 7430, in order to avoid inconsistent
adjudications under the Internal Revenue Code. 16/ Finally, the
provision would not apply where the reduction otherwise would
result in undue hardship to the party in the circumstances of the
case. This last exception is not intended to be routinely used,
but in circumstances where a reduction of the judgment recovered
by the party would clearly be unjust.
The 25% reduction in monetary awards to be applied
toward attorneys' fees is similar to the provisions of the
Federal Tort Claims Act, 28 U.S.C. S 2678, and section 206 of the
Social Security Act, 42 U.S.C. $ 406, which provide for compen-
sation of attorneys from any monetary awards recovered by the
parties.
16/ Inconsistent adjudications could result because the tax laws
permit taxpayers who contest many government tax claims either:
(1) to pay the contested taxes and sue for a refund in a district
court or in the Claims Court, or (2) to bring suit, without
payment, in the Tax Court. A taxpayer who sued in the District
or Claims Court and won would receive a monetary award. Presum-
ably, 25% of this amount would otherwise be applied to reduce any
attorneys' fees award. However, a taxpayer who sued in the Tax
Court and won would not receive a monetary award but, instead,
simply a determination that no liability existed. Thus, the 25%
reduction would hinge entirely upon the taxpayer's choice of
forum, an anomalous result that would otherwise channel many more
cases to the already overburdened Tax Court.
- 21 -
Criminal Justice Act Fees
Subsection (d) would amend the Criminal Justice Act, 18
U.S.C. $ 3006A(d), to double the compensation rates for defense
attorneys in criminal proceedings. The Act's current maximum
compensation rates -- which were last amended in 1970 -- of $30
per hour for time expended in court and $20 per hour for time
expended out of court would be increased to $60 and $40, respec-
tively. The Act would also double the maximum total compensation
to $2,000 per attorney for felony cases, $800 per attorney for
misdemeanor cases, and $500 per attorney for post-trial and pro-
bation revocation proceedings. The difference in the maximum
hourly rate for Criminal Justice Act attorneys and attorneys in
civil fee-shifting cases is appropriate because Criminal Justice
Act attorneys, unlike those in fee-shifting cases, are com-
pensated whether they win or not.
The bill also would delete the provision in 18 U.S.C.
$ 3006A (d) (1) that authorizes, as an alternative to the stated
hourly rates, compensation at "such other hourly rate, fixed by
the Judicial Council of the Circuit, not to exceed the minimum
hourly scale established by a bar association for similar
services rendered in the district." The intent of the bill is to
create a maximum hourly rate for all attorneys who represent
parties under the Criminal Justice Act. 17/ However, the rates
established in $ 3006A are maximums, and the Judicial Council of
17/ It should be noted that fee schedules set by bar associa-
tions have been held to violate the antitrust laws. Goldfarb V.
Virginia State Bar Ass'n, 421 U.S. 773 (1975).
- 22 -
the Circuit may, where appropriate, set a lower rate of
compensation, consistent with guidance from the Judicial
Conference of the United States.
Section 7 - Timely Applications and Procedures
Subsection (a) establishes a jurisdictional requirement
that a party seeking an award of attorneys' fees and related ex-
penses submit an application for such award within 30 days of a
final decision on the merits by a court or the entry of a final
disposition by an administrative officer. A final decision on
the merits is defined as the entry of judgment under the Federal
Rules of Civil Procedure, and includes a dismissal of the suit
and a dismissal pursuant to a settlement agreement. Parties may
not be awarded attorneys' fees and related expenses or costs by
an administrative officer after the 30 day time limit.
This requirement is consistent with the jurisdictional
time for filing fee applications pursuant to the Equal Access to
Justice Act, and is responsive to the Supreme Court's recent
observation that courts can adopt procedural rules setting
reasonable time limits for applications for attorneys' fee
awards. White V. New Hampshire Department of Employment
Security, 455 U.S. 445 (1982). 18/ Subsection (a) also requires
18/ As noted by the Supreme Court in White, courts currently
differ with respect to the time in which attorneys' fees awards
must be sought. Id., 455 U.S. at 450 n.9. Before White, some
courts allowed only 10 days from the time of entry of judgment
for filing of fee applications under Fed. R. Civ. P. 59 (e); other
circuits have imposed no time constraints. The Eighth Circuit
- 23 -
the party seeking an award to submit such information as may be
required by the court or administrative officer.
Subsection (b) directs courts and agencies to provide
guidance to parties regarding the information required to be
filed. Courts and agencies should, at the least, require
submission of the following information: a statement of the
basis of the claim for attorneys' fees; a statement that
attorneys' fees are awardable under applicable law; a statement
of the amount sought; a copy of any written fee agreement; and an
itemized accounting of the hours expended and the specific tasks
performed by the attorney in the proceedings. 19/ Further,
courts and administrative officers should require the submission
of information to assist them in making the findings under sec-
tion 6 (b) of this bill, with respect to the reduction of awards
of attorneys' fees. Subsection (b) further requires courts and
agencies to establish procedures regarding the timing of applica-
tions for attorneys' fees and supporting information, and the
timing of judicial and agency rulings on these applications. 20/
has recommended a rule for filing attorneys' fee requests within
21 days after entry of judgment. See Obin V. District 9, Int'l
Ass'n of Machinists, 651 F.2d 574, 583 (8th Cir. 1981).
19/ A requirement for this type of information is consistent
with the District of Columbia Circuit's ruling in National Ass'n
of Concerned Veterans V. Secretary of Defense, 675 F.2d 1319
(D.C. Cir. 1982), which required detailed documentation by a
party seeking an award of attorneys' fees.
20/ For example, in some cases fee applications can be resolved
immediately following a decision on the merits in the proceeding
in order to permit a simultaneous appeal of the merits and of the
fee award. This would prevent piecemeal appeals, and might be
- 24 -
To ensure that courts are consistent in issuing
requirements for submission of information for fee applications,
the bill anticipates that the Judicial Conference of the United
States would prescribe guidelines for courts to follow in
establishing these requirements. These guidelines would not
supersede any requirements for submission of information required
by law in conjunction with attorneys' fees applications. The
bill also anticipates that agencies, when establishing require-
ments for submission of information in conjunction with fee
applications, will follow the guidelines established by the
courts.
Section 7 (b) requires that these guidelines provide
that attorneys' fees may be awarded only upon final judgments.
The meaning of final judgment, including dismissals and so-called
"interim awards" in the circumstances outlined by the Supreme
Court in Hanrahan V. Hampton, supra, are discussed in connection
with section 5 (1) of the bill.
Section 8 -- Mootness and Settlement Defenses
Under existing law, a party will be held to be a
prevailing party and entitled to recover attorneys' fees and
appropriate where no disagreement existed over the calculation of
the award or where the determination required complete familiar-
ity with the record. See White, supra, 455 U.S. at 454. In
other cases, however, it might be preferable to defer attorneys'
fees issues until all appeals on the merits have been completed
and a final judgment has been entered. This might be appropriate
in cases where the determination of attorneys' fees is difficult
and likely to consume more time than the appeal on the merits.
- 25 -
related expenses or costs even if the claim has been mooted, if
it is found that the suit was a "catalyst" for the change of
policy that rendered the claim moot. See, e.g., Maher V. Gagne,
448 U.S. 122, 129-30 (1980). Subsection (a) would codify the
standard by which pending litigation is determined to have been
such a catalyst by requiring that the litigation be a "material
factor" in the policy change. This is the standard that is
currently being applied by most courts. See, e.g., Morrison V.
Ayoob, 627 F.2d 669 (3d Cir. 1980), cert. denied, 449 U.S. 1102
(1981). This provision would ensure that courts do not place
undue emphasis on chronology -- that is, the fact that the
plaintiff's case was pending when the government changed the
policy that mooted the suit. Under this provision, governments
would be encouraged to carry out planned policy reforms without
fear of incurring liability for fees in pending suits, but would
still be liable for attorneys' fees unless the government could
prove that the suit actually was not a "material factor" in the
policy change.
Subsection (b) would deny awards of attorneys' fees and
related expenses for services performed after a written offer of
settlement by the United States, or by state or local
governments, if the party refuses the offer but is ultimately
able to do no better when the case goes to trial. This would
provide an incentive to governments to make reasonable settlement
offers, and encourage parties to give serious consideration to
- 26 -
such offers. 21/ This provision would not apply, if, at the time
the settlement offer was made, the party's refusal to accept the
offer was reasonable. The ten-day requirement and other proce-
dural provisions of Rule 68 of the Federal Rules of Civil Proce-
dure should provide guidance to courts and administrative offi-
cers in determining whether the failure of the party to accept
the offer was reasonable.
Section 9 -- Comptroller General Report
Section 9 requires the Comptroller General of the United
States to submit an annual report to the President and the
21/ Current federal fee-shifting statutes often provide little
incentive for parties to settle cases early in the litigation.
With respect to cases under 42 U.S.C. S. 1988, see Fioretti and
Convery, Attorney's Fees Under The Civil Rights Act -- A Time for
Change, 16 J. Mar. L. Rev. 261, 277-78 (1983) :
"Aside from the 'prevailing party' issue, the present
application of $ 1988 results in a lack of incentive for
plaintiff's attorneys to enter into pretrial settlements.
The more hours the attorney spends on the case, the higher
his potential fee award. The motivation then is not to
settle, but to proceed to trial, where the hourly rates are
even higher.
* * *
"Nor is such a result in the plaintiff's best interests.
The purpose of the Civil Rights Act as a whole is to protect
those who have suffered a constitutional tort. It naturally
follows that if an early settlement is possible, the
plaintiff, the protected party under the Act, should be
compensated swiftly. However, a plaintiff's attorney, who
during the early phase of the litigation has spent
relatively few hours in preparation, may lack incentive to
settle until compensable hours have reached a significant
level. Thus, the overriding goal of the Civil Rights Act is
thwarted and litigation is encouraged. The already crowded
courts are further congested, so that the taxpayer suffers
as well."
- 27 -
Congress on the amount of attorneys' fees and related expenses or
costs awarded against the United States or against state and lo-
cal governments under federal fee-shifting statutes in judicial
and administrative proceedings. To assist the Comptroller
General, courts and agencies should provide whatever information
is needed. In preparing this report, the Comptroller General
should use the reports prepared under the Equal Access to Justice
Act by the Director of the Administrative Office of the United
States Courts and the Chairman of the Administrative Conference
of the United States, respectively, under 28 U.S.C. § 2412 (d) (5)
and 5 U.S.C. § 504 (e).
Section 10 -- Effective Date
Section 10 applies the provisions of the bill to any award
of attorneys' fees and related expenses incurred subsequent to
the enactment of the bill. Further, the provisions of the bill
apply to actions commenced prior to enactment, but only for
attorneys' fees and related expenses incurred after that date.