PUBLIC LAW 104-121 —MAR. 29, 1996 110 STAT. 863 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) Section 504(b) of title 5, United States Code, is amended— (1) in paragraph (1)(A), by striking "$75" and inserting " $125"; (2) at the end of paragraph (1)(B), by inserting before the semicolon "or for purposes of subsection (a)(4), a small entity as defined in section 601"; (3) at the end of paragraph (1)(D), by striking "and"; (4) at the end of paragraph (1)(E), by striking the period and inserting "; and"; and (5) at the end of paragraph (1), by adding the following new subparagraph: "(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.". SEC. 232. JUDICIAL PROCEEDINGS. (a) Section 2412(d)(1) of title 28, United States Code, is amended by adding at the end the following new subparagraph: "(D) If, in a civil action brought by the United States or a proceeding for judicial review of an adversary adjudication described in section 504(a)(4) of title 5, the demand by the United States is substantially in excess of the judgment finally obtained by the United States and is unreasonable when compared with such judgment, under the facts and circumstances of the case, the court 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 subparagraph shall be paid only as a consequence of appropriations provided in advance.". (b) Section 2412(d) of title 28, United States Code, is amended— (1) in paragraph (2)(A), by striking "$75" and inserting " $125"; (2) at the end of paragraph (2)(B), by inserting before the semicolon "or for purposes of subsection (d)(1)(D), a small entity as defined in section 601 of title 5"; (3) at the end of paragraph (2)(G), by striking "and"; (4) at the end of paragraph (2)(H), by striking the period and inserting "; and"; and (5) at the end of paragraph (2), by adding the following new subparagraph: "(I) 'demand' means the express demand of the United States which led to the adversary adjudication, but shall not include a recitation of the maximum statutory penalty (i) in the complaint, or (ii) elsewhere when accompanied by an express demand for a lesser amount.".
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