5 U.S.C. § 503 — Witness fees and allowances

Page 101 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 503 (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 United States Pat- ent and Trademark 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 no- tice 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 re- quired by statute. When a participant is rep- resented by more than one such qualified rep- resentative, service on any one of the represent- atives is sufficient. (Added Pub. L. 90–83, § 1(1)(A), Sept. 11, 1967, 81 Stat. 195; amended Pub. L. 106–113, div. B, § 1000(a)(9) [title IV, § 4732(b)(2)], Nov. 29, 1999, 113 Stat. 1536, 1501A–583.) HISTORICAL AND REVISION NOTES Section of title 5 Source (U.S. Code) Source (Revised Statutes at Large) 500(a) ......... 5 App.: 1014. Nov. 8, 1965, Pub. L. 89–332, § 3, 79 Stat. 1281. 500(b)–(e) ... 5 App.: 1012. Nov. 8, 1965, Pub. L. 89–332, § 1, 79 Stat. 1281. 500(f) ......... 5 App.: 1013. Nov. 8, 1965, Pub. L. 89–332, § 2, 79 Stat. 1281. The definition of ‘‘State’’ in subsection (a)(2) is sup- plied for convenience and is based on the words ‘‘State, possession, territory, Commonwealth, or District of Co- lumbia’’ in subsections (a) and (b) of 5 App. U.S.C. 1012. In subsection (d), the words ‘‘This section does not’’ are substituted for ‘‘nothing herein shall be con- strued’’. In subsection (d)(3), the word ‘‘employee’’ is sub- stituted for ‘‘officer or employee’’ to conform to the definition of ‘‘employee’’ in 5 U.S.C. 2105. Editorial Notes AMENDMENTS 1999—Subsec. (e). Pub. L. 106–113 substituted ‘‘United States Patent and Trademark Office’’ for ‘‘Patent Of- fice’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1999 AMENDMENT Amendment by Pub. L. 106–113 effective 4 months after Nov. 29, 1999, see section 1000(a)(9) [title IV, § 4731] of Pub. L. 106–113, set out as a note under section 1 of Title 35, Patents. § 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. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 101. Apr. 27, 1916, ch. 89, § 1, 39 Stat. 54. The words ‘‘may not’’ are substituted for ‘‘It shall be unlawful for’’. The words ‘‘agency of the United States’’ are substituted for ‘‘any department or office of the Government’’. The words ‘‘an individual in the service of the United States’’ are substituted for ‘‘offi- cer of the Government’’ in view of the definitions in sections 2104 and 2105. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 502. Administrative practice; Reserves and Na- tional Guardsmen Membership in a reserve component of the armed forces or in the National Guard does not prevent an individual from practicing his civil- ian profession or occupation before, or in con- nection with, an agency of the United States. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 30r(c) (2d sentence). Aug. 10, 1956, ch. 1041, § 29(c) (2d sentence), 70A Stat. 632. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 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 allow- ances 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 hear- ing before an agency authorized by law to hold hearings and subpena witnesses to attend the hearings. (Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large .................. 5 U.S.C. 95. R.S. § 185. .................. 5 U.S.C. 95a. Aug. 2, 1946, ch. 744, § 10, 60 Stat. 809. Former sections 95 and 95a are combined and restated for clarity and brevity. The words ‘‘or expenses in the case of Government officers and employees’’ are omit- ted as covered by section 1823 of title 28. The word ‘‘agency’’ is substituted for ‘‘department’’ and defined to conform to the definition of ‘‘department’’ in section 18 of the Act of Aug. 2, 1946, ch. 744, 60 Stat. 811. This section was part of title IV of the Revised Stat- utes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, § 4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides ‘‘Except to the extent incon- sistent with the provisions of this Act [National Secu- rity Act of 1947], the provisions of title IV of the Re- Page 102 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 504 vised Statutes as now or hereafter amended shall be ap- plicable to the Department of Defense’’ is omitted from this title but is not repealed. Standard changes are made to conform with the defi- nitions applicable and the style of this title as outlined in the preface to the report. § 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 ex- penses incurred by that party in connection with that proceeding, unless the adjudicative of- ficer of the agency finds that the position of the agency was substantially justified or that spe- cial 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 adjudica- tion 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 dis- position 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 rep- resenting 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 con- nection 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 ad- ministrative decision under this section. (4) If, in an adversary adjudication arising from an agency action to enforce a party’s com- pliance with a statutory or regulatory require- ment, the demand by the agency is substantially in excess of the decision of the adjudicative offi- cer 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, un- less 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, engi- neering report, test, or project which is found by the agency to be necessary for the prepara- tion of the party’s case, and reasonable attor- ney or agent fees (The amount of fees awarded under this section shall be based upon pre- vailing market rates for the kind and quality of the services furnished, except that (i) no ex- pert 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 in- crease in the cost of living or a special factor, such as the limited availability of qualified at- torneys or agents for the proceedings involved, justifies a higher fee.); (B) ‘‘party’’ means a party, as defined in sec- tion 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 initi- ated, or (ii) any owner of an unincorporated business, or any partnership, corporation, as- sociation, unit of local government, or organi- zation, the net worth of which did not exceed $7,000,000 at the time the adversary adjudica- tion was initiated, and which had not more than 500 employees at the time the adversary adjudication was initiated; except that an or- ganization described in section 501(c)(3) of the Internal Revenue Code of 1986 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of such Code, or a cooperative associa- tion as defined in section 15(a) of the Agricul- tural 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 rep- resented 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 deci- sion 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 decid- ing official, without regard to whether the of- ficial is designated as an administrative law judge, a hearing officer or examiner, or other- wise, who presided at the adversary adjudica- tion; (E) ‘‘position of the agency’’ means, in addi- tion 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