Equal Access to Justice Act - 5 U.S.C. sec. 504 (a)(2)

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

§ 501

HISTORICAL AND REVISION NOTES
Section of
title 5

Source (U.S. Code)

500(a) .........

5 App.: 1014.

500(b)–(e) ...

5 App.: 1012.

500(f) .........

5 App.: 1013.

Source (Revised Statutes at
Large)
Nov.
§ 3,
Nov.
§ 1,
Nov.
§ 2,

8,
79
8,
79
8,
79

1965, Pub. L. 89–332,
Stat. 1281.
1965, Pub. L. 89–332,
Stat. 1281.
1965, Pub. L. 89–332,
Stat. 1281.

The definition of ‘‘State’’ in subsection (a)(2) is supplied for convenience and is based on the words ‘‘State,
possession, territory, Commonwealth, or District of Columbia’’ 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 construed’’.
In subsection (d)(3), the word ‘‘employee’’ is substituted for ‘‘officer or employee’’ to conform to the
definition of ‘‘employee’’ in 5 U.S.C. 2105.

Standard changes are made to conform with the definitions 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 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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)
HISTORICAL AND REVISION NOTES

AMENDMENTS
1999—Subsec. (e). Pub. L. 106–113 substituted ‘‘United
States Patent and Trademark Office’’ for ‘‘Patent Office’’.
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
5 U.S.C. 101.

Revised Statutes and
Statutes at Large
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 ‘‘officer of the Government’’ in view of the definitions in
sections 2104 and 2105.
Standard changes are made to conform with the definitions applicable and the style of this title as outlined
in the preface to the report.

§ 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.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381.)
HISTORICAL AND REVISION NOTES
Derivation
..................

U.S. Code
5 U.S.C. 30r(c) (2d
sentence).

Page 20

Revised Statutes and
Statutes at Large
Aug. 10, 1956, ch. 1041, § 29(c)
(2d sentence), 70A Stat.
632.

Derivation
..................
..................

Revised Statutes and
Statutes at Large

U.S. Code
5 U.S.C. 95.
5 U.S.C. 95a.

R.S. § 185.
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 omitted 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 Statutes. 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 inconsistent with the provisions of this Act [National Security
Act of 1947], the provisions of title IV of the Revised
Statutes as now or hereafter amended shall be applicable to the Department of Defense’’ is omitted from this
title but is not repealed.
Standard changes are made to conform with the definitions 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 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

Page 21

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

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

§ 504

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 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 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

§ 504

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

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) 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.
(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.
(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.)
REFERENCES IN TEXT
The Religious Freedom Restoration Act of 1993, referred 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 section 2000bb of Title 42 and Tables.
Section 7430 of the Internal Revenue Code of 1986, referred to in subsec. (f), is classified to section 7430 of
Title 26, Internal Revenue Code.
AMENDMENTS
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), substituted ‘‘$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 ‘‘Internal 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

Page 22

of the agency’’, and inserted ‘‘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.’’
Subsec. (a)(2). Pub. L. 99–80, § 1(b), inserted ‘‘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.’’
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 decision under this section.’’
Subsec. (b)(1)(B). Pub. L. 99–80, § 1(c)(1), amended subpar. (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, partnership, 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 partnership, corporation, association, or organization
whose net worth exceeded $5,000,000 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 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 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, corporation, 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 existing provisions of subpar. (C) as cl. (i) thereof by inserting ‘‘(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), substituted ‘‘; 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 failure 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 follows:
‘‘(1) Fees and other expenses awarded under this section 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 repealed and this section was revived by section 6 of Pub.
L. 99–80, set out as a note below.

Page 23

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES
EFFECTIVE DATE OF 1996 AMENDMENT

Section 233 of Pub. L. 104–121 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, Judiciary and Judicial Procedure] shall apply to civil actions 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 proceedings commencing after Nov. 10, 1988, see section 6239(d)
of Pub. L. 100–647, set out as a note under section 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, presented 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
Section 7 of Pub. L. 99–80 provided that:
‘‘(a) IN GENERAL.—Except as otherwise provided in
this section, the amendments made by this Act [reviving and amending this section and section 2412(d) of
Title 28, Judiciary and Judicial Procedure, and amending and repealing provisions set out as notes under
those sections] shall apply to cases pending on or commenced 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
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
Section 208 of title II of Pub. L. 96–481, 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 October 1, 1981, in any
such adversary adjudication or civil action.’’
Section 203(c) of Pub. L. 96–481 which provided that
effective Oct. 1, 1984, this section is repealed, except
that the provisions of this section 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
Section 201 of title II of Pub. L. 96–481 provided that:
‘‘This title [enacting this section, amending section 634
of Title 15, Commerce and Trade, section 2412 of Title
28, Judiciary and Judicial Procedure, Rule 37 of the

§ 504

Federal Rules of Civil Procedure, set out in Title 28 Appendix, and section 1988 of Title 42, The Public Health
and Welfare, and enacting provisions 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 Finance, 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 DEVELOPMENT 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 Appropriations Acts shall be used to pay the expenses of, or
otherwise compensate, parties intervening in regulatory or adjudicatory proceedings funded in such
Acts.’’
REVIVAL OF PREVIOUSLY REPEALED PROVISIONS
Section 6 of Pub. L. 99–80 provided that:
‘‘(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
[Aug. 5, 1985] as if they had not been repealed by sections 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 hereby repealed.’’
CONGRESSIONAL FINDINGS AND PURPOSES
Section 202 of title II of Pub. L. 96–481 provided that:
‘‘(a) The Congress finds that certain individuals, partnerships, corporations, and labor and other organizations may be deterred from seeking review of, or defending against, unreasonable governmental action because of the expense involved in securing the vindication of their rights in civil actions and in administrative 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 situations.
‘‘(c) It is the purpose of this title [see Short Title
note above]—
‘‘(1) to diminish the deterrent effect of seeking review 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’ respecting the award of attorney fees.’’
LIMITATION ON PAYMENTS
Section 207 of title II of Pub. L. 96–481, which provided that the payment of judgments, fees and other

TITLE 5—GOVERNMENT ORGANIZATION AND EMPLOYEES

§ 551

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
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 ‘‘Administrative 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 another agency, but does not include—
(A) the Congress;
(B) the courts of the United States;
(C) the governments of the territories or
possessions of the United States;
(D) the government of the District of Columbia;
or except as to the requirements of section 552
of this title—
(E) agencies composed of representatives
of the parties or of representatives of organizations of the parties to the disputes determined by them;
(F) courts martial and military commissions;
(G) military authority exercised in the
field in time of war or in occupied territory;
or
(H) functions conferred by sections 1738,
1739, 1743, and 1744 of title 12; subchapter II
of chapter 471 of title 49; or sections 1884,
1891–1902, and former section 1641(b)(2), of
title 50, appendix;
(2) ‘‘person’’ includes an individual, partnership, corporation, association, or public or private organization other than an agency;
(3) ‘‘party’’ includes a person or agency
named or admitted as a party, or properly
seeking and entitled as of right to be admitted
as a party, in an agency proceeding, and a person or agency admitted by an agency as a
party for limited purposes;
(4) ‘‘rule’’ means the whole or a part of an
agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy or
describing the organization, procedure, or
practice requirements of an agency and includes the approval or prescription for the future of rates, wages, corporate or financial
structures or reorganizations thereof, prices,
facilities, appliances, services or allowances
therefor or of valuations, costs, or accounting,
or practices bearing on any of the foregoing;
(5) ‘‘rule making’’ means agency process for
formulating, amending, or repealing a rule;
(6) ‘‘order’’ means the whole or a part of a
final disposition, whether affirmative, nega-

Page 24

tive, injunctive, or declaratory in form, of an
agency in a matter other than rule making
but including licensing;
(7) ‘‘adjudication’’ means agency process for
the formulation of an order;
(8) ‘‘license’’ includes the whole or a part of
an agency permit, certificate, approval, registration, charter, membership, statutory exemption or other form of permission;
(9) ‘‘licensing’’ includes agency process respecting the grant, renewal, denial, revocation, suspension, annulment, withdrawal, limitation, amendment, modification, or conditioning of a license;
(10) ‘‘sanction’’ includes the whole or a part
of an agency—
(A) prohibition, requirement, limitation,
or other condition affecting the freedom of a
person;
(B) withholding of relief;
(C) imposition of penalty or fine;
(D) destruction, taking, seizure, or withholding of property;
(E) assessment of damages, reimbursement, restitution, compensation, costs,
charges, or fees;
(F) requirement, revocation, or suspension
of a license; or
(G) taking other compulsory or restrictive
action;
(11) ‘‘relief’’ includes the whole or a part of
an agency—
(A) grant of money, assistance, license, authority, exemption, exception, privilege, or
remedy;
(B) recognition of a claim, right, immunity, privilege, exemption, or exception; or
(C) taking of other action on the application or petition of, and beneficial to, a person;
(12) ‘‘agency proceeding’’ means an agency
process as defined by paragraphs (5), (7), and
(9) of this section;
(13) ‘‘agency action’’ includes the whole or a
part of an agency rule, order, license, sanction, relief, or the equivalent or denial thereof, or failure to act; and
(14) ‘‘ex parte communication’’ means an
oral or written communication not on the public record with respect to which reasonable
prior notice to all parties is not given, but it
shall not include requests for status reports on
any matter or proceeding covered by this subchapter.
(Pub. L. 89–554, Sept. 6, 1966, 80 Stat. 381; Pub. L.
94–409, § 4(b), Sept. 13, 1976, 90 Stat. 1247; Pub. L.
103–272, § 5(a), July 5, 1994, 108 Stat. 1373; Pub. L.
111–350, § 5(a)(2), Jan. 4, 2011, 124 Stat. 3841.)
HISTORICAL AND REVISION NOTES
Derivation
(1) .............

U.S. Code
5 U.S.C. 1001(a).

Revised Statutes and
Statutes at Large
June 11, 1946, ch. 324, § 2(a),
60 Stat. 237.
Aug. 8, 1946, ch. 870, § 302, 60
Stat. 918.
Aug. 10, 1946, ch. 951, § 601,
60 Stat. 993.
Mar. 31, 1947, ch. 30, § 6(a), 61
Stat. 37.
June 30, 1947, ch. 163, § 210,
61 Stat. 201.