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 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 (span) 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 (span) 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 Puspan. L. 116–9, which was approved Mar. 12, 2019.

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.

2019—Subsec. (d)(3). Puspan. L. 116–9, § 4201(a)(3)(A), struck out “United States Code,” after “title 5,”.

Subsec. (d)(5) to (8). Puspan. L. 116–9, § 4201(a)(2), added pars. (5) to (8).

Subsec. (e). Puspan. 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, United States Code, of costs enumerated in section 1920 of such title”.

2011—Subsec. (d)(2)(E). Puspan. L. 111–350, § 5(g)(9)(A), substituted “chapter 71 of title 41” for “the Contract Disputes Act of 1978”.

Subsec. (d)(3). Puspan. L. 111–350, § 5(g)(9)(B), substituted “chapter 71 of title 41” for “the Contract Disputes Act of 1978”.

1998—Subsec. (d)(2)(F). Puspan. L. 105–368 substituted “Court of Appeals for Veterans Claims” for “Court of Veterans Appeals”.

1996—Subsec. (d)(1)(D). Puspan. L. 104–121, § 232(a), added subpar. (D).

Subsec. (d)(2)(A)(ii). Puspan. L. 104–121, § 232(span)(1), substituted “$125” for “$75”.

Subsec. (d)(2)(B). Puspan. L. 104–121, § 232(span)(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). Puspan. L. 104–121, § 232(span)(3)–(5), added subpar. (I).

1995—Subsec. (d)(5). Puspan. 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). Puspan. L. 102–572, § 301(a), designated existing provisions as par. (1) and added par. (2).

Subsec. (d)(2)(F). Puspan. L. 102–572, § 902(span)(1), substituted “United States Court of Federal Claims” for “United States Claims Court”.

Puspan. L. 102–573, § 506(a), inserted before semicolon at end “and the United States Court of Veterans Appeals”.

Subsec. (d)(5). Puspan. L. 102–572, § 502(span), 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). Puspan. L. 99–514 substituted “Internal Revenue Code of 1986” for “Internal Revenue Code of 1954”.

1985—Subsecs. (a), (span). Puspan. L. 99–80, § 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). Puspan. L. 99–80, § 6, repealed amendment made by Puspan. 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). Puspan. L. 99–80, § 2(a)(2), inserted “, including proceedings for judicial review of agency actions,” after “in tort)”.

Subsec. (d)(1)(B). Puspan. L. 99–80, § 2(span), 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). Puspan. 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 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). Puspan. L. 99–80, § 2(c)(2), added subpars. (D) to (H).

Subsec. (d)(4). Puspan. L. 99–80, § 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). Puspan. L. 99–80, § 2(e), added subsec. (f).

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

1980—Puspan. 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 the United States, and added subsecs. (span) to (d). Puspan. L. 96–481, § 204(c), repealed subsec. (d) eff. Oct. 1, 1984. See Effective Date of 1980 Amendment note below.

1966—Puspan. 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(span) of this title.

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

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

Puspan. L. 102–572, title V, § 506(span), Oct. 29, 1992, 106 Stat. 4513, provided that: “The amendment made by subsection (a) [amending this section] shall apply to any case pending before the United States Court of Veterans Appeals [now United States Court of Appeals for Veterans Claims] on the date of the enactment of this Act [Oct. 29, 1992], to any appeal filed in that court on or after such date, and to any appeal from that court that is pending on such date in the United States Court of Appeals for the Federal Circuit.”

Puspan. L. 102–572, title V, § 506(d), Oct. 29, 1992, 106 Stat. 4513, provided that: “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 section 902(span)(1) of Puspan. L. 102–572 effective Oct. 29, 1992, see section 911 of Puspan. L. 102–572, set out as a note under section 171 of this title.

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

Amendment by Puspan. 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 Puspan. L. 99–80, set out as a note under section 504 of Title 5, Government Organization and Employees.

Amendment by Puspan. L. 97–248 applicable to civil actions or proceedings commenced after Fespan. 28, 1983, see section 292(e)(1) of Puspan. 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 Puspan. L. 96–481 effective Oct. 1, 1981, and applicable to any adversary adjudication, as defined in section 504(span)(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 Puspan. L. 96–481, set out as an Effective Date note under section 504 of Title 5.

Puspan. 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 Puspan. L. 99–80, § 6(span)(2), Aug. 5, 1985, 99 Stat. 186.

Puspan. L. 89–507, § 3, July 18, 1966, 80 Stat. 308, provided that: “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 Puspan. L. 96–481, and repeal of section 204(c) of Puspan. L. 96–481, see section 6 of Puspan. L. 99–80, set out as a note under section 504 of Title 5, Government Organization and Employees.

Puspan. L. 96–481, title II, § 206, Oct. 21, 1980, 94 Stat. 2330, as amended by Puspan. L. 99–80, § 3, Aug. 5, 1985, 99 Stat. 186, provided that:

Puspan. L. 107–330, title IV, § 403, Dec. 6, 2002, 116 Stat. 2833, provided that: “The authority of the United States Court of Appeals for Veterans Claims to award reasonable fees and expenses of attorneys under section 2412(d) of title 28, United States Code, shall include authority to award fees and expenses, in an amount determined appropriate by the United States Court of Appeals for Veterans Claims, of individuals admitted to practice before the Court as non-attorney practitioners under subsection (span) or (c) of Rule 46 of the Rules of Practice and Procedure of the United States Court of Appeals for Veterans Claims.”

Puspan. L. 104–317, title III, § 309(a), Oct. 19, 1996, 110 Stat. 3853, provided that: “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.”

Puspan. L. 102–572, title V, § 506(c), Oct. 29, 1992, 106 Stat. 4513, provided that: “Section 5904(d) of title 38, United States Code, shall not prevent an award of fees and other expenses under section 2412(d) of title 28, United States Code. Section 5904(d) of title 38, United States Code, 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 5904 of title 38, United States Code, and section 2412(d) of title 28, United States Code, the claimant’s attorney refunds to the claimant the amount of the smaller fee.”