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8000 - Miscellaneous Statutes and Regulations


ADMINISTRATIVE PROCEDURE

TITLE 5.—GOVERNMENT ORGANIZATION AND EMPLOYEES

Part I.—THE AGENCIES GENERALLY

CHAPTER 5.—ADMINISTRATIVE PROCEDURE

SUBCHAPTER I.—GENERAL PROVISIONS

Sec.

SUBCHAPTER II.—ADMINISTRATIVE PROCEDURE

SUBCHAPTER I.—GENERAL PROVISIONS

§ 500.  Administrative practice; general provisions.

(a)  For the purpose of this section--

(1)  "agency" has the meaning given it by section 551 of this title; and

(2)  "State" means a State, a territory or possession of the United States including a Commonwealth, or the District of Columbia.

(b)  An individual who is a member in good standing of the bar of the highest court of a State may represent a person before an agency on filing with the agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.

(c)  An individual who is duly qualified to practice as a certified public accountant in a State may represent a person before the Internal Revenue Service of the Treasury Department on filing with that agency a written declaration that he is currently qualified as provided by this subsection and is authorized to represent the particular person in whose behalf he acts.

(d)  This section does not--

(1)  grant or deny to an individual who is not qualified as provided by subsection (b) or (c) of this section the right to appear for or represent a person before an agency or in an agency proceeding;

(2)  authorize or limit the discipline, including disbarment, of individuals who appear in a representative capacity before an agency;

(3)  authorize an individual who is a former employee of an agency to represent a person before an agency when the representation is prohibited by statute or regulation; or

(4)  prevent an agency from requiring a power of attorney as a condition to the settlement of a controversy involving the payment of money.

(e)  Subsections (b)-(d) of this section do not apply to practice before the Patent Office with respect to patent matters that continue to be covered by chapter 3 (sections 31-33) of title 35.

(f)  When a participant in a matter before an agency is represented by an individual qualified under subsection (b) or (c) of this section, a notice or other written communication required or permitted to be given the participant in the matter shall be given to the representative in addition to any other service specifically required by statute. When a participant is represented by more than one such qualified representative, service on any one of the representatives is sufficient.

[Codified to 5 U.S.C. 500]

[Source:  Section 500 of the Act of September 6, 1966 (Pub. L. No. 89-554), as added by section 1(1)(A) of the Act of September 11, 1967 (Pub. L. No. 90-83; 81 Stat 195), effective September 11, 1967]

§ 501.  Advertising practice; restrictions.

An individual, firm, or corporation practicing before an agency of the United States may not use the name of a Member of either House of Congress or of an individual in the service of the United States in advertising the business.

[Codified to 5 U.S.C. 501]

[Source:  Section 501 of the Act of September 6, 1966 (Pub. L. No. 89-554; 80 Stat. 381), effective September 6, 1966]

§ 502.  Administrative practice; Reserves and National Guardsmen.

Membership in a reserve component of the armed forces or in the National Guard does not prevent an individual from practicing his civilian profession or occupation before, or in connection with, an agency of the United States.

[Codified to 5 U.S.C. 502]

[Source:  Section 502 of the Act of September 6, 1966 (Pub. L. No. 89-554; 80 Stat. 381), effective September 6, 1966]

§ 503.  Witness fees and allowances.

(a)  For the purpose of this section, "agency" has the meaning given it by section 5721 of this title.

(b)  A witness is entitled to the fees and allowances allowed by statute for witnesses in the courts of the United States when--

(1)  he is subpenaed under section 304(a) of this title; or

(2)  he is subpenaed to and appears at a hearing before an agency authorized by law to hold hearings and subpena witnesses to attend the hearings.

[Codified to 5 U.S.C. 503]

[Source:  Section 503 of the Act of September 6, 1966 (Pub. L. No. 89-554; 80 Stat. 381), effective September 6, 1966]

§ 504.  Costs and fees of parties

(a)(1) An agency that conducts an adversary adjudication shall award, to a prevailing party other than the United States, fees and other expenses incurred by that party in connection with that proceeding, unless the adjudicative officer of the agency finds that the position of the agency was substantially justified or that special circumstances make an award unjust. Whether or not the position of the agency was substantially justified shall be determined on the basis of the administrative record, as a whole, which is made in the adversary adjudication for which fees and other expenses are sought.

(2)  A party seeking an award of fees and other expenses shall, within thirty days of a final disposition in the adversary adjudication, submit to the agency an application which shows that the party is a prevailing party and is eligible to receive an award under this section, and the amount sought, including an itemized statement from any attorney, agent, or expert witness representing or appearing in behalf of the party stating the actual time expended and the rate at which fees and other expenses were computed. The party shall also allege that the position of the agency was not substantially justified. When the United States appeals the underlying merits of an adversary adjudication, no decision on an application for fees and other expenses in connection with that adversary adjudication shall be made under this section until a final and unreviewable decision is rendered by the court on the appeal or until the underlying merits of the case have been finally determined pursuant to the appeal.

(3)  The adjudicative officer of the agency may reduce the amount to be awarded, or deny an award, to the extent that the party during the course of the proceedings engaged in conduct which unduly and unreasonably protracted the final resolution of the matter in controversy. The decision of the adjudicative officer of the agency under this section shall be made a part of the record containing the final decision of the agency and shall include written findings and conclusions and the reason or basis therefor. The decision of the agency on the application for fees and other expenses shall be the final administrative decision under this section.

(4)  If, in an adversary adjudication arising from an agency action to enforce a party's compliance with a statutory or regulatory requirement, the demand by the agency is substantially in excess of the decision of the adjudicative officer and is unreasonable when compared with such decision, under the facts and circumstances of the case, the adjudicative officer shall award to the party the fees and other expenses related to defending against the excessive demand, unless the party has committed a willful violation of law or otherwise acted in bad faith, or special circumstances make an award unjust. Fees and expenses awarded under this paragraph shall be paid only as a consequence of appropriations provided in advance.

(b)(1)  For the purposes of this section--

(A)  "fees and other expenses" includes the reasonable expenses of expert witnesses, the reasonable cost of any study, analysis, engineering report, test, or project which is found by the agency to be necessary for the preparation of the party's case, and reasonable attorney or agent fees (The amount of fees awarded under this section shall be based upon prevailing market rates for the kind and quality of the services furnished, except that (i) no expert witness shall be compensated at a rate in excess of the highest rate of compensation for expert witnesses paid by the agency involved, and (ii) attorney or agent fees shall not be awarded in excess of $125 per hour unless the agency determines by regulation that an increase in the cost of living or a special factor, such as the limited availability of qualified attorneys or agents for the proceedings involved, justifies a higher fee.);

(B)  "party" means a party, as defined in section 551(3) of this title, who is (i) an individual whose net worth did not exceed $2,000,000 at the time the adversary adjudication was initiated, or (ii) any owner of an unincorporated business, or any partnership, corporation, association, unit of local government, or organization, the net worth of which did not exceed $7,000,000 at the time the adversary adjudication was initiated, and which had not more than 500 employees at the time the adversary adjudication was initiated; except that an organization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association or for purposes of subsection (a)(4), a small entity as defined in section 601;

(C)  "adversary adjudication" means (i) an adjudication under section 554 of this title in which the position of the United States is represented by counsel or otherwise, but excludes an adjudication for the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license, (ii) any appeal of a decision made pursuant to section 7103 of title 41 before an agency board of contract appeals as provided in section 7105 of title 41, (iii) any hearing conducted under chapter 38 of title 31, and (iv) the Religious Freedom Restoration Act of 1993;

(D)  "adjudicative officer" means the deciding official, without regard to whether the official is designated as an administrative law judge, a hearing officer or examiner, or otherwise, who presided at the adversary adjudication;

(E)  "position of the agency" means, in addition to the position taken by the agency in the adversary adjudication, the action or failure to act by the agency upon which the adversary adjudication is based; except that fees and other expenses may not be awarded to a party for any portion of the adversary adjudication in which the party has unreasonably protracted the proceedings; and

(F)  "demand" means the express demand of the agency which led to the adversary adjudication, but does not include a recitation by the agency of the maximum statutory penalty (i) in the administrative complaint, or (ii) elsewhere when accompanied by an express demand for a lesser amount.

(2)  Except as otherwise provided in paragraph (1), the definitions provided in section 551 of this title apply to this section.

(c)(1)  After consultation with the Chairman of the Administrative Conference of the United States, each agency shall by rule establish uniform procedures for the submission and consideration of applications for an award of fees and other expenses. If a court reviews the underlying decision of the adversary adjudication, an award for fees and other expenses may be made only pursuant to section 2412(d)(3) of title 28, United States Code.

(2)  If a party other than the United States is dissatisfied with a determination of fees and other expenses made under subsection (a), that party may, within 30 days after the determination is made, appeal the determination to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. The court's determination on any appeal heard under this paragraph shall be based solely on the factual record made before the agency. The court may modify the determination of fees and other expenses only if the court finds that the failure to make an award of fees and other expenses, or the calculation of the amount of the award, was unsupported by substantial evidence.

(d)(1)  Fees and other expenses awarded under this subsection shall be paid by any agency over which the party prevails from any funds made available to the agency by appropriation or otherwise.

(2)  There is authorized to be appropriated to each agency for each of the fiscal years 1982, 1983, and 1984, such sums as may be necessary to pay fees and other expenses awarded under this section in such fiscal years.

(e)  The Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Administration, shall report annually to the Congress on the amount of fees and other expenses awarded during the preceding fiscal year pursuant to this section. The report shall describe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information which may aid the Congress in evaluating the scope and impact of such awards. Each agency shall provide the Chairman with such information as is necessary for the Chairman to comply with the requirements of this subsection.

(f)  No award may be made under this section for costs, fees, or other expenses which may be awarded under section 7430 of the Internal Revenue Code of 1986.

[Codified to 5 U.S.C. 504]

[Source: Section 504 of the Act of September 6, 1966 (Pub. L. No. 89-554), as added by section 203(a)(1) of title II of the Act of October 21, 1980, effective October 1, 1981, as amended by section 1 of the Act of August 5, 1985 (Pub. L. No. 99--80; 99 Stat. 183--184), effective August 5, 1985; section 6103(c) of title XI of the Act of October 21, 1986 (Pub. L. No. 99--509), effective October 21, 1986; section 6239(b) of title VI of the Act of November 10, 1988 (Pub. L. No. 100--647; 102 Stat. 3746), effective November 10, 1988; section 4(b) of the Act of November 16, 1993 (Pub. L. No. 103--141), effective November 16, 1993; section 231 of title II of the Act of March 24, 1996 (Pub. L. No. 104-121; 110 Stat. 862, effective March 29, 1996; section 5(a)(1) of the Act of January 4, 2011 (Pub. L. No. 111--350; 124 Stat. 3841), effective January 4, 2011]

NOTES

Treatment of expired provisions of law.  Section 6(a) of the Act of August 5, 1985 (Pub. L. No. 99-80; 99 Stat. 186) provides as follows:

(a)  REVIVAL OF CERTAIN EXPIRED PROVISIONS.--Section 504 of title 5, United States Code, and the item relating to that section in the table of sections of chapter 5 of title 5, United States Code, and subsection (d) of section 2412 of title 28, United States Code, shall be effective on or after the date of the enactment of this Act as if they had not been repealed by sections 203(c) and 204(c) of the Equal Access to Justice Act.

Effective date.  Section 7 of the Act of August 5, 1985 (Pub. L. No. 99-80; 99 Stat. 186-187) provides as follows:

SEC. 7. EFFECTIVE DATE.

(a)  IN GENERAL.--Except as otherwise provided in this section, the amendments made by this Act shall apply to cases pending on or commenced on or after the date of the enactment of this Act.

(b)  APPLICABILITY OF AMENDMENTS TO CERTAIN PRIOR CASES.--The amendments made by this Act shall apply to any case commenced on or after October 1, 1984, and finally disposed of before the date of the enactment of this Act, except that in any such case, the 30-day period referred to in section 504(a)(2) of title 5, United States Code, or section 2412(d)(1)(B) of title 28, United States Code, as the case may be, shall be deemed to commence on the date of the enactment of this Act.

(c)  APPLICABILITY OF AMENDMENTS TO PRIOR BOARD OF CONTRACTS APPEALS CASES.--Section 504(b)(1)(C)(ii) of title 5, United States Code, as added by section 1(c)(2) of this Act, and section 2412(d)(2)(E) of title 28, United States Code, as added by section 2(c)(2) of this Act, shall apply to any adversary adjudication pending on or commenced on or after October 1, 1981, in which applications for fees and other expenses were timely filed and were dismissed for lack of jurisdiction.


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