If the Senate decides to sign off on the House’s latest decision to make some changes to the Equal Access to Justice Act (EAJA), environmental groups may be looking for a little extra cash for their legal funds. Last week, the U.S. House approved by voice vote the Open Book on Equal Access to Justice Act (H.R. 2919), a bipartisan bill authored by U.S. Representatives Cynthia Lummis (R- WY) and Steve Cohen (D-TN).
This bill reinstates tracking and reporting requirements of payments made by the federal government under the EAJA in order to increase transparency and inform Congress of the impact and effectiveness of the law. The bill requires the Administrative Conference of the United States (ACUS) to submit an annual report to Congress and establish an online searchable database. This will allow the public access to information on the amount of attorneys’ fees being paid under EAJA, to whom the taxpayers’ money is being paid, and from which agencies.
EAJA was initially passed by Congress in 1980 as a means to help individuals, retirees, veterans, and small businesses recover attorneys’ fees and costs associated with suing the federal government. Although Congress included a requirement that agencies and the Department of Justice issue annual reports on the amount of money paid out under the law, Congress ended those tracking and reporting requirements in 1995 when it defunded ACUS. While Congress re-established ACUS in 2010, the tracking and reporting requirements were not re-established.
“The Equal Access to Justice Act was a good idea when it passed Congress more than three decades ago,” said Rep. Lummis. “It remains a good idea today so long as it is operating as Congress intended. Requiring agencies to keep track of what they pay attorneys will help Congress determine if EAJA is working well, or not. I appreciate Rep. Cohen’s work in this effort, and I am very pleased to see this bill pass the House.”
“Americans have a right to know what their government is doing and their government has a duty to be as transparent as possible,” said Cohen. “Without adequate reporting, citizens’ rights cannot be fully protected and the government risks failing in its duty to its people. I am glad our bipartisan Open Book on Equal Access to Justice Act passed the House today and I appreciate all of Representative Lummis’s work to reopen the government’s books and help ensure that all Americans have access to this information.”
EAJA was intended to help people overcome a onetime challenge: the financial disincentive of seeking judicial redress against the huge federal government. Over time, large, deep-pocketed groups have begun to make heavy use of EAJA reimbursements to fund repeated, procedural lawsuits against the federal government.
This abuse was the precursor to the much needed change in the law, according to Dustin Van Liew, Executive Director of the Public Lands Council (PLC).
Lummis’s bill was originally met with some skepticism by some lawmakers, who thought portions of it were premature, in part because of the lack of data on the EAJA abuse.
But according to Van Liew, “Based on some of the data from outside government reporting documents, we have been able to show that there is some potential abuse to EAJA.”
In January, Attorney Karen Budd-Falen shared some facts on EAJA at the Red Meat Club dinner at the 108th National Western Stock Show.
According to Budd-Falen, President Ronald Reagan’s plan when he signed EAJA into law, was to help the “little guy” fighting the federal government.
“The problem is that statute got hijacked, quite frankly, starting when Clinton was president,” Budd-Falen said.
Former President Bill Clinton signed the Paperwork Reduction Act, allowing the government to basically skip the accounting piece relating to attorney fees. Groups like Western Watersheds Project, Wild Earth Guardians, and the Center for Biological Diversity quickly figured out the new loophole; EAJA´s net worth cap of $7 million did not apply to "non-profit public interest groups."
According to Budd-Falen, the Center for Biological Diversity’s net worth was $10 million in 2010, but they still get attorney’s fees through EAJA. And they are just one of several wealthy environmental activists groups milking the system.
According to a report Budd-Falen compiled for PLC, there have been a substantial number of cases filed involving environmental groups. For example, between 2000 and 2009, Center for Biological Diversity filed 409 federal district court cases, and the Sierra Club filed 983.
Budd-Falen documented almost 600 additional cases from various other groups, and this did not include any appeals on the cases.
While the total cost is unknown, Budd-Falen’s research of the data available is also a record of concern, with many of the region’s forest service attorney fees alone in the thousands. For example, between 2003 to 2005, Region 1 (Montana, North Dakota, northern Idaho) paid $383,094 in EAJA fees and Region 5 (California) paid $357, 023.
A report released earlier this year by the U.S. Government Accountability Office (GAO) claims that litigation brought by environmental groups is not out of control, despite an admitted apparent lack of bookkeeping in the offices.
The report covered 2000- 2010, and began in April of 2012. GAO found that US- DA did not report any aggregated data on attorney fee claims and payments made under the Equal Access to Justice Act (EAJA) and other fee-shifting statutes for fiscal years 2000 through 2010, but USDA and other key departments involved—the Departments of the Treasury and Justice—maintained certain data on individual cases or payments in several internal agency databases.
Collectively, this data did not capture all claims and payments, according to the GAO report. USDA officials stated at the time that given the decentralized nature of the department and the absence of an external requirement to track or report on attorney fee information, the information was not centrally tracked and decisions about whether to track attorney fee data and the manner in which to do so were best handled at the agency level.
Officials from 29 of the 33 USDA agencies GAO contacted for its April 2012 report stated that they did not track or could not readily provide GAO with this information. The remaining four USDA agencies had mechanisms to track information on attorney fees, were able to compile this information manually, or directed GAO to publicly make available information sources. GAO found that the Forest Service was the only program agency within USDA that was able to provide certain attorney fee data across the 11-year period. GAO reported in April 2012 that about $16.3 million in attorney fees and costs in 241 environmental cases from fiscal years 2000 through 2010 was awarded against or settled by the Forest Service.
In addition, GAO said the extent to which the four USDA agencies had attorney fee information available for the 11-year period varied. Given this limitation as well as others, such as inconsistent availability of payment data, GAO concluded that it was difficult to comprehensively determine the total number of claims filed for attorney fees, who received payments, in what amounts, and under what statutes. GAO did not make any recommendations in its April 2012 report. — Traci Eatherton, WLJ Editor