Laws: Cases and Codes : U.S. Code : Title 28 : Section 2412
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U.S. Code as of:
01/19/04
Section 2412 - Notes
SOURCE
(June 25, 1948, ch. 646, 62 Stat. 973; Pub. L. 89-507, Sec. 1, July
18, 1966, 80 Stat. 308; Pub. L. 96-481, title II, Sec. 204(a), (c),
Oct. 21, 1980, 94 Stat. 2327, 2329; Pub. L. 97-248, title II, Sec.
292(c), Sept. 3, 1982, 96 Stat. 574; Pub. L. 99-80, Secs. 2, 6,
Aug. 5, 1985, 99 Stat. 184, 186; Pub. L. 99-514, Sec. 2, Oct. 22,
1986, 100 Stat. 2095; Pub. L. 102-572, title III, Sec. 301(a),
title V, Secs. 502(b), 506(a), title IX, Sec. 902(b)(1), Oct. 29,
1992, 106 Stat. 4511-4513, 4516; Pub. L. 104-66, title I, Sec.
1091(b), Dec. 21, 1995, 109 Stat. 722; Pub. L. 104-121, title II,
Sec. 232, Mar. 29, 1996, 110 Stat. 863; Pub. L. 105-368, title V,
Sec. 512(b)(1)(B), Nov. 11, 1998, 112 Stat. 3342.)
HISTORICAL AND REVISION NOTES
Based on title 28, U.S.C., 1940 ed., Secs. 258, 931(a) (Mar. 3,
1911, ch. 231, Sec. 152, 36 Stat. 1138; Aug. 2, 1946, ch. 753, Sec.
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 the United States. (See,
for example, section 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.
REFERENCES IN TEXT
The Contract Disputes Act of 1978, referred to in subsec.
(d)(2)(E), (3), is Pub. L. 95-563, Nov. 1, 1978, 92 Stat. 2383, as
amended, which is classified principally to chapter 9 (Sec. 601 et
seq.) of Title 41, Public Contracts. For complete classification of
this Act to the Code, see Short Title note set out under section
601 of Title 41 and Tables.
Section 7430 of the Internal Revenue Code of 1986, referred to in
subsec. (e), is classified to section 7430 of Title 26, Internal
Revenue Code.
AMENDMENTS
1998 - Subsec. (d)(2)(F). Pub. L. 105-368 substituted "Court of
Appeals for Veterans Claims" for "Court of Veterans Appeals".
1996 - Subsec. (d)(1)(D). Pub. L. 104-121, Sec. 232(a), added
subpar. (D).
Subsec. (d)(2)(A)(ii). Pub. L. 104-121, Sec. 232(b)(1),
substituted "$125" for "$75".
Subsec. (d)(2)(B). Pub. L. 104-121, Sec. 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".
Subsec. (d)(2)(I). Pub. L. 104-121, Sec. 232(b)(3)-(5), added
subpar. (I).
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 of fees and other expenses awarded during
the preceding fiscal year pursuant to this subsection. 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."
1992 - Subsec. (a). Pub. L. 102-572, Sec. 301(a), designated
existing provisions as par. (1) and added par. (2).
Subsec. (d)(2)(F). Pub. L. 102-572, Sec. 902(b)(1), substituted
"United States Court of Federal Claims" for "United States Claims
Court".
Pub. L. 102-573, Sec. 506(a), inserted before semicolon at end
"and the United States Court of Veterans Appeals".
Subsec. (d)(5). Pub. L. 102-572, Sec. 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,".
1986 - Subsecs. (d)(2)(B), (e). Pub. L. 99-514 substituted
"Internal Revenue Code of 1986" for "Internal Revenue Code of
1954".
1985 - Subsecs. (a), (b). Pub. L. 99-80, Sec. 2(a)(1),
substituted "or any agency or any official of the United States"
for "or any agency and any official of the United States".
Subsec. (d). Pub. L. 99-80, Sec. 6, repealed amendment made by
Pub. L. 96-481, Sec. 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, Sec. 2(a)(2), inserted ",
including proceedings for judicial review of agency actions," after
"in tort)".
Subsec. (d)(1)(B). Pub. L. 99-80, Sec. 2(b), inserted provisions
directing that whether or not the position of the United States was
substantially justified must 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 was based) which
is made in the civil action for which fees and other expenses are
sought.
Subsec. (d)(2)(B). Pub. L. 99-80, Sec. 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 a party regardless of the net worth of
such organization or cooperative association;" for "(ii) a sole
owner of an unincorporated business, or a partnership, corporation,
association, or organization whose net worth did not exceed
$5,000,000 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 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, or (iii) a sole owner of
an unincorporated business, or a partnership, corporation,
association, or organization, having not more than 500 employees at
the time the civil action was filed; and".
Subsec. (d)(2)(D) to (H). Pub. L. 99-80, Sec. 2(c)(2), added
subpars. (D) to (H).
Subsec. (d)(4). Pub. L. 99-80, Sec. 2(d), amended par. (4)
generally. Prior to amendment, par. (4) read as follows:
"(A) Fees and other expenses awarded under this subsection 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 in accordance with sections 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 fees and other expenses awarded pursuant to this
subsection in such fiscal years."
Subsec. (f). Pub. L. 99-80, Sec. 2(e), added subsec. (f).
1982 - Subsec. (e). Pub. L. 97-248 added subsec. (e).
1980 - Pub. L. 96-481, Sec. 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 the United
States, and added subsecs. (b) to (d). Pub. L. 96-481, Sec. 204(c),
repealed subsec. (d) eff. Oct. 1, 1984. See Effective Date of 1980
Amendment note below.
1966 - Pub. L. 89-507 empowered a court having jurisdiction to
award judgment for costs, except as otherwise specifically provided
by statute, to the prevailing party in any action brought by or
against the United States or any agency or official of the United
States acting in his official capacity, limited the judgment for
costs when taxed against the Government to reimbursing in whole or
in part the prevailing party for costs incurred by him in the
litigation, required the payment of a judgment for costs to be as
provided in section 2414 and section 2517 of this title for the
payment of judgments against the United States and eliminated
provisions which limited the liability of the United States for
fees and costs to those cases in which liability was expressed
provided for by Act of Congress, permitted the district court or
the Court of Claims, in an action under section 1346(a) or 1491 of
this title if the United States put in issue plaintiff's right to
recover, to allow costs to the prevailing party from the time of
joining such issue, and which authorized the allowance of costs to
the successful claimant in an action under section 1346(b) of this
title.
SECTION REFERRED TO IN OTHER SECTIONS
This section is referred to in section 1931 of this title; title
5 section 504; title 10 section 2321; title 11 section 106; title
15 section 2060; title 16 section 539m-11; title 18 section 293;
title 25 section 450m-1; title 26 section 7430; title 31 section
3730; title 41 section 253d; title 42 sections 3612, 3614, 9606.
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