28 U.S. Code § 2412 - Costs and fees

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title, but not including the fees and expenses of attorneys, may be awarded to the prevailing civil action brought by or against the United States or any agency or any official of the (2)

A judgment for costs, when awarded in favor of the section 1914(a) of this title. The preceding sentence shall not be construed as requiring the (b)

Unless expressly prohibited by statute, a court may award reasonable fees and expenses of attorneys, in addition to the costs which may be awarded pursuant to subsection (a), to the prevailingcivil action brought by or against the United States or any agency or any official of the (c)

Any judgment against the 2414 and 2517 of this title and shall be in addition to any relief provided in the judgment.

Any judgment against the 2414 and 2517 of this title, except that if the basis for the award is a finding that the (d)

Except as otherwise specifically provided by statute, a court shall award to a prevailingposition of the United States was substantially justified or that special circumstances make an award unjust.

A party seeking an award of final judgment in the action, submit to theposition of the United States was not substantially justified. Whether or not the position of the United States was substantially justified shall be determined on the basis of the record (including the record with respect to the action or failure to act by the agency upon which the civil action is based) which is made in the civil action for which (C)

The court, in its discretion, may reduce the amount to be awarded pursuant to this subsection, or deny an award, to the extent that the prevailing (D)

“ party’s case, and reasonable attorney fees (The amount of fees awarded under this subsection 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 United States; and (ii) attorney fees shall not be awarded in excess of $125 per hour unless the (B)

“party” means (i) an individual whose net worth did not exceed $2,000,000 at the time the civil action was filed, 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 civil action was filed, and which had not more than 500 employees at the time the civil action was filed; except that an organization 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 association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be asection 601 of title 5;

“court” includes the United States Court of Federal Claims and the United States Court of Appeals for Veterans Claims ;

“final judgment” means a judgment that is final and not appealable, and includes an order of settlement;

“prevailing party”, in the case of eminent domain proceedings, means a party who obtains a final judgment (other than by settlement), exclusive of interest, the amount of which is at least as close to the highest valuation of the property involved that is attested to at trial on behalf of the property owner as it is to the highest valuation of the property involved that is attested to at trial on behalf of the Government; and

In awarding section 504 of title 5, or an adversary adjudication subject to chapter 71 of title 41, the (4)

Not later than March 31 of the first fiscal year beginning after the date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, and every fiscal year thereafter, the Chairman of the Administrative Conference of the United States shall submit to Congress and make publicly available online a report on the amount of (B)

Each report under subparagraph (A) shall describe 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.

(6) As soon as practicable, and in any event not later than the date on which the first report under paragraph (5)(A) is required to be submitted, the Chairman of the Administrative Conference of the United States shall create and maintain online a searchable database containing, with respect to each award of (A)

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.

The online searchable database described in paragraph (6) may not reveal any information the disclosure of which is prohibited by law or a court order.

The provisions of this section shall not apply to any costs, fees, and other expenses in connection with any proceeding to which section 7430 of the Internal Revenue Code of 1986 applies (determined without regard to subsections (b) and (f) of such section). Nothing in the preceding sentence shall prevent the awarding under subsection (a) of this section of costs enumerated in section 1920 of this title (as in effect on October 1, 1981 ).

If the section 1961(a) of this title, and shall run from the date of the award through the day before the date of the mandate of affirmance.

Based on title 28, U.S.C., 1940 ed., §§ 258, 931(a) (Mar. 3, 1911, ch. 231, § 152, 36 Stat. 1138; Aug. 2, 1946, ch. 753, § 410(a), 60 Stat. 843).

Section consolidates the last sentence of section 931(a) of title 28, U.S.C., 1940 ed., with section 258 of said title 28. For other provisions of said section 931(a), see Distribution Table.

Subsection (a) is new. It follows the well-known common-law rule that a sovereign is not liable for costs unless specific provision for such liability is made by law. This is a corollary to the rule that a sovereign cannot be sued without its consent.

Many enactments of Congress relating to fees and costs contain specific exceptions as to the liability of thesection 548 of title 28, U.S.C., 1940 ed.) A uniform rule, embodied in this section, will make such specific exceptions unnecessary.

Subsection (b) incorporates section 258 of title 28, U.S.C., 1940 ed.

Subsection (c) incorporates the costs provisions of section 931(a) of title 28, U.S.C., 1940 ed.

Words “and for summoning the same,” after “witnesses,” were omitted from subsection (b) as covered by “those actually incurred for witnesses.”

Changes were made in phraseology.

The date of enactment of the John D. Dingell, Jr. Conservation, Management, and Recreation Act, referred to in subsec. (d)(5)(A) and (6), is the date of enactment of Pub. L. 116–9, which was approved Mar. 12, 2019 .

Subsec. (e). Pub. L. 116–9, § 4201(a)(3)(B), substituted “subsection (a) of this section of costs enumerated in section 1920 of this title” for “subsection (a) of section 2412 of title 28,Pub. L. 111–350, § 5(g)(9)(A), substituted “chapter 71 of title 41” for “the Contract Disputes Act of 1978”.

Subsec. (d)(2)(B). Pub. L. 104–121, § 232(b)(2), inserted before semicolon at end “or for purposes of subsection (d)(1)(D), a small entity as defined in section 601 of title 5”.

1995—Subsec. (d)(5). Pub. L. 104–66 struck out par. (5) which read as follows: “The Attorney General shall report annually to the Congress on the amount ofCongress in evaluating the scope and impact of such awards.”

1992—Subsec. (a). Pub. L. 102–572, § 301(a), designated existing provisions as par. (1) and added par. (2).

Subsec. (d)(2)(F). Pub. L. 102–572, § 902(b)(1), substituted “ United States Court of Federal Claims ” for Pub. L. 102–573, § 506(a), inserted before semicolon at end “and thePub. L. 102–572, § 502(b), substituted “The Attorney General shall report annually to the Congress on” for “The Director of the Administrative Office of the United States Courts shall include in the annual report prepared pursuant to section 604 of this title,”.

1985—Subsecs. (a), (b). Pub. L. 99–80, § 2(a)(1), substituted “or any agency or any official of thePub. L. 99–80, § 6, repealed amendment made by Pub. L. 96–481, § 204(c), and provided that subsec. (d) was effective on or after Aug. 5, 1985 , as if it had not been repealed by section 204(c). See 1980 Amendment note and Revival of Previously Repealed Provisions note below.

Subsec. (d)(1)(A). Pub. L. 99–80, § 2(a)(2), inserted “, including proceedings for judicial review of agency actions,” after “in tort)”.

Subsec. (d)(1)(B). Pub. L. 99–80, § 2(b), inserted provisions directing that whether or not thePub. L. 99–80, § 2(c)(1), substituted “$2,000,000” for “$1,000,000” in cl. (i), and substituted “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 civil action was filed, and which had not more than 500 employees at the time the civil action was filed; 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 aInternal Revenue Code of 1954 (26 U.S.C. 501(c)(3)) exempt from taxation under section 501(a) of the Code and a cooperative association as defined in section 15(a) of the Agricultural Marketing Act (12 U.S.C. 1141j(a)), may be aPub. L. 99–80, § 2(c)(2), added subpars. (D) to (H).

Subsec. (d)(4). Pub. L. 99–80, § 2(d), amended par. (4) generally. Prior to amendment, par. (4) read as follows:

“(A) 2414 and 2517 of this title.

“(B) 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 Pub. L. 99–80, § 2(e), added subsec. (f).

1982—Subsec. (e). Pub. L. 97–248 added subsec. (e).

1980—Pub. L. 96–481, § 204(a), designated existing provisions as subsec. (a), struck out provision that payment of a judgment for costs shall be as provided in section 2414 and section 2517 of this title for the payment of judgments against thePub. L. 96–481, § 204(c), repealed subsec. (d) eff. Oct. 1, 1984 . See Effective Date of 1980 Amendment note below.

Amendment by Pub. L. 105–368 effective on first day of first month beginning more than 90 days after Nov. 11, 1998 , see section 513 of Pub. L. 105–368, set out as a note under section 7251 of Title 38, Veterans’ Benefits.

Amendment by Pub. L. 104–121 applicable to civil actions and adversary adjudications commenced on or after Mar. 29, 1996 , see section 233 of Pub. L. 104–121, set out as a note under section 504 of Title 5, Government Organization and Employees.

“This section [amending this section and enacting provisions set out under this section], and the amendment made by this section, shall take effect on the date of the enactment of this Act [ Oct. 29, 1992 ].”

Amendment by sections 301(a) and 502(b) of Pub. L. 102–572 effective Jan. 1, 1993 , see section 1101(a) of Pub. L. 102–572, set out as a note under section 905 of Title 2, The Congress .

Amendment by Pub. L. 99–80 applicable to cases pending on or commenced on or after Aug. 5, 1985 , but with provision for additional applicability to certain prior cases and to prior board of contracts appeals cases, see section 7 of Pub. L. 99–80, set out as a note under section 504 of Title 5, Government Organization and Employees.

Amendment by Pub. L. 97–248 applicable to civil actions or proceedings commenced after Feb. 28, 1983 , see section 292(e)(1) of Pub. L. 97–248, set out as an Effective Date note under section 7430 of Title 26, Internal Revenue Code.

Amendment by section 204(a) of Pub. L. 96–481 effective Oct. 1, 1981 , and applicable to any adversary adjudication, as defined in section 504(b)(1)(C) of Title 5, Government Organization and Employees, and any civil action or adversary adjudication described in this section which is pending on, or commenced on or after, such date, see section 208 of Pub. L. 96–481, set out as an Effective Date note under section 504 of Title 5.

Pub. L. 96–481, title II, § 204(c), Oct. 21, 1980 , 94 Stat. 2329, which provided in part that effective Oct. 1, 1984 , subsec. (d) of this section is repealed, except that the provisions of subsec. (d) shall continue to apply through final disposition of any adversary adjudication initiated before the date of repeal, was repealed by Pub. L. 99–80, § 6(b)(2), Aug. 5, 1985 , 99 Stat. 186.

“These amendments [amending this section and section 2520 of this title] shall apply only to judgments entered in actions filed subsequent to the date of enactment of this Act [ July 18, 1966 ]. These amendments shall not authorize the reopening or modification of judgments entered prior to the enactment of this Act.”

For revival of subsec. (d) of this section effective on or after Aug. 5, 1985 , as if it had not been repealed by section 204(c) of Pub. L. 96–481, and repeal of section 204(c) of Pub. L. 96–481, see section 6 of Pub. L. 99–80, set out as a note under section 504 of Title 5, Government Organization and Employees.

Except as provided in subsection (b), nothing in section 2412(d) of title 28,section 204(a) of this title, alters, modifies, repeals, invalidates, or supersedes any other provision of Federal law which authorizes an award of such “(b)

Section 206(b) of the Social Security Act (42 U.S.C. 406(b)(1)) shall not prevent an award ofsection 2412(d) of title 28,Social Security Act shall not apply with respect to any such award but only if, where the claimant’s attorney receives fees for the same work under both section 206(b) of that Act and section 2412(d) of title 28, Authority of Court of Appeals for Veterans Claims to Award Fees Under Equal Access to Justice Act for Non-attorney Practitioners.

“Notwithstanding any other provision of law, no judicial officer shall be held liable for any costs, including attorney’s fees, in any action brought against such officer for an act or omission taken in such officer’s judicial capacity, unless such action was clearly in excess of such officer’s jurisdiction.”