5 U.S.C. § 504 — Costs and fees of parties

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as now or hereafter amended shall be ap- plicable to the Department of Defense’’ is omitted from this title but is not repealed.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 Page 103 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 504 for any portion of the adversary adjudication in which the party has unreasonably pro- tracted the proceedings; and (F) ‘‘demand’’ means the express demand of the agency which led to the adversary adju- dication, 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 de- mand 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 uni- form procedures for the submission and consid- eration 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. (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 determina- tion 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 ex- penses 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 un- supported by substantial evidence. (d) 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 oth- erwise. (e)(1) Not later than March 31 of the first fiscal year beginning after the date of enactment of the John D. Dingell, Jr. Conservation, Manage- ment, and Recreation Act, and every fiscal year thereafter, the Chairman of the Administrative Conference of the United States, after consulta- tion with the Chief Counsel for Advocacy of the Small Business Administration, shall submit to Congress and make publicly available online a report on the amount of fees and other expenses awarded during the preceding fiscal year under this section. (2) Each report under paragraph (1) shall de- scribe the number, nature, and amount of the awards, the claims involved in the controversy, and any other relevant information that may aid Congress in evaluating the scope and impact of such awards. (3)(A) Each report under paragraph (1) shall account for all payments of fees and other ex- penses awarded under this section that are made pursuant to a settlement agreement, regardless of whether the settlement agreement is sealed or otherwise subject to a nondisclosure provi- sion. (B) The disclosure of fees and other expenses required under subparagraph (A) shall not affect any other information that is subject to a non- disclosure provision in a settlement agreement. (f) As soon as practicable, and in any event not later than the date on which the first report under subsection (e)(1) is required to be sub- mitted, the Chairman of the Administrative Conference of the United States shall create and maintain online a searchable database con- taining, with respect to each award of fees and other expenses under this section made on or after the date of enactment of the John D. Din- gell, Jr. Conservation, Management, and Recre- ation Act, the following information: (1) The case name and number of the adver- sary adjudication, if available, hyperlinked to the case, if available. (2) The name of the agency involved in the adversary adjudication. (3) A description of the claims in the adver- sary adjudication. (4) The name of each party to whom the award was made as such party is identified in the order or other court document making the award. (5) The amount of the award. (6) The basis for the finding that the position of the agency concerned was not substantially justified. (g) The online searchable database described in subsection (f) may not reveal any information the disclosure of which is prohibited by law or a court order. (h) The head of each agency shall provide to the Chairman of the Administrative Conference of the United States in a timely manner all in- formation requested by the Chairman to comply with the requirements of subsections (e), (f), and (g). (i) No award may be made under this section for costs, fees, or other expenses which may be awarded under section 7430 of the Internal Rev- enue Code of 1986. (Added Pub. L. 96–481, title II, § 203(a)(1), (c), Oct. 21, 1980, 94 Stat. 2325, 2327; revived and amended Pub. L. 99–80, §§ 1, 6, Aug. 5, 1985, 99 Stat. 183, 186; Pub. L. 99–509, title VI, § 6103(c), Oct. 21, 1986, 100 Stat. 1948; Pub. L. 99–514, § 2, Oct. 22, 1986, 100 Stat. 2095; Pub. L. 100–647, title VI, § 6239(b), Nov. 10, 1988, 102 Stat. 3746; Pub. L. 103–141, § 4(b), Nov. 16, 1993, 107 Stat. 1489; Pub. L. 104–121, title II, § 231, Mar. 29, 1996, 110 Stat. 862; Pub. L. 111–350, § 5(a)(1), Jan. 4, 2011, 124 Stat. 3841; Pub. L. 116–9, title IV, § 4201(a)(1), Mar. 12, 2019, 133 Stat. 762.) Editorial Notes REFERENCES IN TEXT The Religious Freedom Restoration Act of 1993, re- ferred to in subsec. (b)(1)(C)(iv), is Pub. L. 103–141, Nov. 16, 1993, 107 Stat. 1488, which is classified principally to chapter 21B (§ 2000bb et seq.) of Title 42, The Public Health and Welfare. For complete classification of this Act to the Code, see Short Title note set out under sec- tion 2000bb of Title 42 and Tables. The date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, re- ferred to in subsecs. (e)(1) and (f), is the date of enact- ment of Pub. L. 116–9, which was approved Mar. 12, 2019. Section 7430 of the Internal Revenue Code of 1986, re- ferred to in subsec. (i), is classified to section 7430 of Title 26, Internal Revenue Code. AMENDMENTS 2019—Subsec. (c)(1). Pub. L. 116–9, § 4201(a)(1)(A), struck out ‘‘, United States Code’’ after ‘‘title 28’’. Page 104 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 504 Subsec. (e). Pub. L. 116–9, § 4201(a)(1)(C), added subsec. (e) and struck out former subsec. (e) which read as fol- lows: ‘‘The Chairman of the Administrative Conference of the United States, after consultation with the Chief Counsel for Advocacy of the Small Business Adminis- tration, 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 re- port 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 Con- gress 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.’’ Subsecs. (f) to (i). Pub. L. 116–9, § 4201(a)(1)(B), (C), added subsecs. (f) to (h) and redesignated former sub- sec. (f) as (i). 2011—Subsec. (b)(1)(C)(ii). Pub. L. 111–350 substituted ‘‘section 7103 of title 41’’ for ‘‘section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605)’’ and ‘‘section 7105 of title 41’’ for ‘‘section 8 of that Act (41 U.S.C. 607)’’. 1996—Subsec. (a)(4). Pub. L. 104–121, § 231(a), added par. (4). Subsec. (b)(1)(A)(ii). Pub. L. 104–121, § 231(b)(1), sub- stituted ‘‘$125’’ for ‘‘$75’’. Subsec. (b)(1)(B). Pub. L. 104–121, § 231(b)(2), inserted before semicolon at end ‘‘or for purposes of subsection (a)(4), a small entity as defined in section 601’’. Subsec. (b)(1)(F). Pub. L. 104–121, § 231(b)(3)–(5), added subpar. (F). 1993—Subsec. (b)(1)(C). Pub. L. 103–141 added cl. (iv). 1988—Subsec. (f). Pub. L. 100–647 added subsec. (f). 1986—Subsec. (b)(1)(B). Pub. L. 99–514 substituted ‘‘In- ternal Revenue Code of 1986’’ for ‘‘Internal Revenue Code of 1954’’. Subsec. (b)(1)(C)(iii). Pub. L. 99–509 added cl. (iii). 1985—Subsec. (a)(1). Pub. L. 99–80, § 1(a)(1), (2), struck out ‘‘as a party to the proceeding’’ after ‘‘the position of the agency’’, and inserted ‘‘Whether or not the posi- tion 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.’’ Subsec. (a)(2). Pub. L. 99–80, § 1(b), inserted ‘‘When the United States appeals the underlying merits of an ad- versary adjudication, no decision on an application for fees and other expenses in connection with that adver- sary 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.’’ Subsec. (a)(3). Pub. L. 99–80, § 1(a)(3), inserted ‘‘The decision of the agency on the application for fees and other expenses shall be the final administrative deci- sion under this section.’’ Subsec. (b)(1)(B). Pub. L. 99–80, § 1(c)(1), amended sub- par. (B) generally. Prior to amendment, subpar. (B) read as follows: ‘‘ ‘party’ means a party, as defined in section 551(3) of this title, which is an individual, part- nership, corporation, association, or public or private organization other than an agency, but excludes (i) any individual whose net worth exceeded $1,000,000 at the time the adversary adjudication was initiated, and any sole owner of an unincorporated business, or any part- nership, corporation, association, or organization whose net worth exceeded $5,000,000 at the time the ad- versary adjudication was initiated, except that an orga- nization described in section 501(c)(3) of the Internal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a coopera- tive association as defined in section 15(a) of the Agri- cultural Marketing Act (12 U.S.C. 1141j(a)), may be a party regardless of the net worth of such organization or cooperative association, and (ii) any sole owner of an unincorporated business, or any partnership, corpora- tion, association, or organization, having more than 500 employees at the time the adversary adjudication was initiated;’’. Subsec. (b)(1)(C). Pub. L. 99–80, § 1(c)(2), designated ex- isting provisions of subpar. (C) as cl. (i) thereof by in- serting ‘‘(i)’’ before ‘‘an adjudication under’’, added cl. (ii), and struck out ‘‘and’’ after the semicolon at the end. Subsec. (b)(1)(D), (E). Pub. L. 99–80, § 1(c)(3), sub- stituted ‘‘; and’’ for the period at end of subpar. (D), and added subpar. (E). Subsec. (c)(2). Pub. L. 99–80, § 1(d), amended par. (2) generally. Prior to amendment, par. (2) read as follows: ‘‘A party dissatisfied with the fee determination made under subsection (a) may petition for leave to appeal to the court of the United States having jurisdiction to review the merits of the underlying decision of the agency adversary adjudication. If the court denies the petition for leave to appeal, no appeal may be taken from the denial. If the court grants the petition, it may modify the determination only if it finds that the fail- ure to make an award, or the calculation of the amount of the award, was an abuse of discretion.’’ Subsec. (d). Pub. L. 99–80, § 1(e), amended subsec. (d) generally. Prior to amendment, subsec. (d) read as fol- lows: ‘‘(1) Fees and other expenses awarded under this sec- tion may be paid by any agency over which the party prevails from any funds made available to the agency, by appropriation or otherwise, for such purpose. If not paid by any agency, the fees and other expenses shall be paid in the same manner as the payment of final judgments is made pursuant to section 2414 of title 28, United States Code. ‘‘(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.’’ 1980—Pub. L. 96–481, § 203(c), which provided for the repeal of this section effective Oct. 1, 1984, was itself re- pealed and this section was revived by section 6 of Pub. L. 99–80, set out as a note below. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1996 AMENDMENT Pub. L. 104–121, title II, § 233, Mar. 29, 1996, 110 Stat. 864, provided that: ‘‘The amendments made by sections 331 and 332 [probably means sections 231 and 232, amending this section and section 2412 of Title 28, Judi- ciary and Judicial Procedure] shall apply to civil ac- tions and adversary adjudications commenced on or after the date of the enactment of this subtitle [Mar. 29, 1996].’’ EFFECTIVE DATE OF 1988 AMENDMENT Amendment by Pub. L. 100–647 applicable to pro- ceedings commencing after Nov. 10, 1988, see section 6239(d) of Pub. L. 100–647, set out as a note under sec- tion 7430 of Title 26, Internal Revenue Code. EFFECTIVE DATE OF 1986 AMENDMENT Amendment by Pub. L. 99–509 effective Oct. 21, 1986, and applicable to any claim or statement made, pre- sented or submitted on or after such date, see section 6104 of Pub. L. 99–509, set out as an Effective Date note under section 3801 of Title 31, Money and Finance. EFFECTIVE DATE OF 1985 AMENDMENT Pub. L. 99–80, § 7, Aug. 5, 1985, 99 Stat. 186, provided that: ‘‘(a) IN GENERAL.—Except as otherwise provided in this section, the amendments made by this Act [reviv- ing and amending this section and section 2412(d) of Title 28, Judiciary and Judicial Procedure, and amend- ing and repealing provisions set out as notes under those sections] shall apply to cases pending on or com- menced on or after the date of the enactment of this Act [Aug. 5, 1985]. ‘‘(b) APPLICABILITY OF AMENDMENTS TO CERTAIN PRIOR CASES.—The amendments made by this Act shall apply Page 105 TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES § 551 to any case commenced on or after October 1, 1984, and finally disposed of before the date of the enactment of this Act [Aug. 5, 1985], 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.’’ EFFECTIVE DATE Pub. L. 96–481, title II, § 208, Oct. 21, 1980, 94 Stat. 2330, as amended by Pub. L. 99–80, § 5, Aug. 5, 1985, 99 Stat. 186, provided that: ‘‘This title and the amendments made by this title [see Short Title note below] shall take effect of [on] October 1, 1981, and shall apply to any adversary adjudication, as defined in section 504(b)(1)(C) of title 5, United States Code, and any civil action or adversary adjudication described in section 2412 of title 28, United States Code, which is pending on, or commenced on or after, such date. Awards may be made for fees and other expenses incurred before Oc- tober 1, 1981, in any such adversary adjudication or civil action.’’ Pub. L. 96–481, title II, § 203(c), Oct. 21, 1980, 94 Stat. 2327, which provided that effective Oct. 1, 1984, this sec- tion is repealed, except that the provisions of this sec- tion shall continue to apply through final disposition of any adversary adjudication initiated before the date of repeal, was itself repealed by Pub. L. 99–80, § 6(b)(1), Aug. 5, 1985, 99 Stat. 186. SHORT TITLE Pub. L. 96–481, title II, § 201, Oct. 21, 1980, 94 Stat. 2325, provided that: ‘‘This title [enacting this section, amending section 634 of Title 15, Commerce and Trade, section 2412 of Title 28, Judiciary and Judicial Proce- dure, Rule 37 of the Federal Rules of Civil Procedure, set out in Title 28 Appendix, and section 1988 of Title 42, The Public Health and Welfare, and enacting provi- sions set out as notes under this section and section 2412 of Title 28] may be cited as the ‘Equal Access to Justice Act’.’’ TERMINATION OF REPORTING REQUIREMENTS For termination, effective May 15, 2000, of provisions in subsec. (e) of this section relating to annual report to Congress on the amount of fees and other expenses, see section 3003 of Pub. L. 104–66, as amended, set out as a note under section 1113 of Title 31, Money and Fi- nance, and page 153 of House Document No. 103–7. TERMINATION OF ADMINISTRATIVE CONFERENCE OF UNITED STATES For termination of Administrative Conference of United States, see provision of title IV of Pub. L. 104–52, set out as a note preceding section 591 of this title. PROHIBITION ON USE OF ENERGY AND WATER DEVELOP- MENT APPROPRIATIONS TO PAY INTERVENING PARTIES IN REGULATORY OR ADJUDICATORY PROCEEDINGS Pub. L. 102–377, title V, § 502, Oct. 2, 1992, 106 Stat. 1342, provided that: ‘‘None of the funds in this Act or subsequent Energy and Water Development Appropria- tions Acts shall be used to pay the expenses of, or oth- erwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such Acts.’’ REVIVAL OF PREVIOUSLY REPEALED PROVISIONS Pub. L. 99–80, § 6, Aug. 5, 1985, 99 Stat. 186, provided that: ‘‘(a) REVIVAL OF CERTAIN EXPIRED PROVISIONS.—Sec- tion 504 of title 5, United States Code, and the item re- lating 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 ef- fective on or after the date of the enactment of this Act [Aug. 5, 1985] as if they had not been repealed by sec- tions 203(c) and 204(c) of the Equal Access to Justice Act [Pub. L. 96–481]. ‘‘(b) REPEALS.— ‘‘(1) Section 203(c) of the Equal Access to Justice Act [which repealed this section] is hereby repealed. ‘‘(2) Section 204(c) of the Equal Access to Justice Act [which repealed section 2412(d) of title 28] is here- by repealed.’’ CONGRESSIONAL FINDINGS AND PURPOSES Pub. L. 96–481, title II, § 202, Oct. 21, 1980, 94 Stat. 2325, provided that: ‘‘(a) The Congress finds that certain individuals, part- nerships, corporations, and labor and other organiza- tions may be deterred from seeking review of, or de- fending against, unreasonable governmental action be- cause of the expense involved in securing the vindica- tion of their rights in civil actions and in administra- tive proceedings. ‘‘(b) The Congress further finds that because of the greater resources and expertise of the United States the standard for an award of fees against the United States should be different from the standard governing an award against a private litigant, in certain situa- tions. ‘‘(c) It is the purpose of this title [see Short Title note above]— ‘‘(1) to diminish the deterrent effect of seeking re- view of, or defending against, governmental action by providing in specified situations an award of attorney fees, expert witness fees, and other costs against the United States; and ‘‘(2) to insure the applicability in actions by or against the United States of the common law and statutory exceptions to the ‘American rule’ respect- ing the award of attorney fees.’’ LIMITATION ON PAYMENTS Pub. L. 96–481, title II, § 207, Oct. 21, 1980, 94 Stat. 2330, which provided that the payment of judgments, fees and other expenses in the same manner as the payment of final judgments as provided in this Act [probably should be ‘‘this title’’, see Short Title note above] would be effective only to the extent and in such amounts as are provided in advance in appropriation Acts, was repealed by Pub. L. 99–80, § 4, Aug. 5, 1985, 99 Stat. 186. SUBCHAPTER II—ADMINISTRATIVE PROCEDURE Statutory Notes and Related Subsidiaries SHORT TITLE The provisions of this subchapter and chapter 7 of this title were originally enacted by act June 11, 1946, ch. 324, 60 Stat. 237, popularly known as the ‘‘Adminis- trative Procedure Act’’. That Act was repealed as part of the general revision of this title by Pub. L. 89–554 and its provisions incorporated into this subchapter and chapter 7 hereof. § 551. Definitions For the purpose of this subchapter— (1) ‘‘agency’’ means each authority of the Government of the United States, whether or not it is within or subject to review by an- other agency, but does not include— (A) the Congress; (B) the courts of the United States;