Page:United States Statutes at Large Volume 99 Part 1.djvu/206

 99 STAT. 184

PUBLIC LAW 99-80—AUG. 5, 1985 be a party regardless of the net worth of such organization or cooperative association;". (2) ADVERSARY ADJUDICATION.—Paragraph (I)(C) of such section is amended— (A) by inserting "(i)" before "an adjudication under"; (B) by inserting before the semicolon at the end thereof the following: ", and (ii) any appeal of a decision made pursuant to section 6 of the Contract Disputes Act of 1978 (41 U.S.C. 605) before an agency board of contract appeals as provided in section 8 of that Act (41 U.S.C. 607)^'; and (C)by striking out "and" at the end thereof. (3) POSITION OP THE AGENCY.—Paragraph (1) of such section is amended— (A) by striking out the period a t the end of subparagraph (D) and inserting in lieu thereof "; and"; and (B) by adding at the end thereof the following: "(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.". (d) APPEALS OF FEE DETERMINATIONS.—Subsection (c)(2) of section

504 of title 5, United States Code, is amended to read as follows: "(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 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.". (e) AWARDS PAID FROM AGENCY FUNDS.—Subsection (d) of section

504 of title 5, United States Code, is amended to read as follows: "(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.". SEC. 2. AMENDMENTS TO SECTION 2412 OF TITLE 28.

(a) CLARIFYING AMENDMENTS.—Section 2412 of title 28, United States Code, (relating to costs and fees) is amended— (1) in subsections (a) and (b) by striking out "or any agency and any official of the United States" each place it appears and inserting in lieu thereof "or any agency or any official of the United States"; and (2) in subsection (d)(l)(A) by inserting ", including proceedings for judicial review of agency action," after "in tort)'. Q}) DETERMINATION

OF "SUBSTANTIALLY

JUSTIFIED".-Section

2412(d)(l)(B) of title 28, United States Code, is amended by adding a t the end thereof the following: "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

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