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8000 - Miscellaneous Statutes and Regulations
{{10-31-05 p.8021}}
ADMINISTRATIVE PROCEDURE
TITLE 5.—GOVERNMENT ORGANIZATION AND EMPLOYEES
* * * * *
Part I.—THE AGENCIES GENERALLY
* * * * *
CHAPTER 5.—ADMINISTRATIVE PROCEDURE
SUBCHAPTER I.—GENERAL PROVISIONS
Sec.
500.
Administrative practice; general provisions.
501.
Advertising practice; restrictions.
502.
Administrative practice; Reserves and National Guardsmen.
503.
Witness fees and allowances.
504.
Costs and fees of party.
SUBCHAPTER II.—ADMINISTRATIVE PROCEDURE
551.
Definitions.
552.
Public information; agency rules, opinions, orders, records, and
proceedings.
552a.
Records maintained on individuals.
552b.
Open meetings.
553.
Rule making.
554.
Adjudications.
555.
Ancillary matters.
556.
Hearings; presiding employees; powers and duties; burden of proof;
evidence; record as basis of decision.
557.
Initial decisions; conclusiveness; review by agency; submissions by
parties; contents of decisions; record.
558.
Imposition of sanctions; determination of applications for licenses;
suspension, revocation, and expiration of licenses.
559.
Effect on other laws; effect of subsequent statute.
* * * * *
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.
{{10-31-05 p.8022}}
(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 corportion 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]
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§ 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
{{10-31-05 p.8022.02}}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 6 of the Contract Disputes Act of
1978 (41 U.S.C. 605) before an agency board of contract appeals as
provided in section 8 of that Act (41 U.S.C. 607), (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,
{{6-28-96 p.8022.03}}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]
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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