House Republican Bill Would Limit Equal Access to Justice Act

WASHINGTON, DC, October 11, 2011 (ENS) – A subcommittee of the U.S. House of Representatives today considered a bill that would set new restrictions on the Equal Access to Justice Act, which allows nonprofit groups to recover attorneys fees in cases where they prove in court that the federal government is not following the law.

The Equal Access to Justice Act, signed by President Ronald Reagan in 1980, is known as a federal fee-shifting statute. It allows attorney fees to be awarded from the federal Treasury to qualified groups or individuals who win lawsuits challenging a government action and show that the government’s position was not “substantially justified.”

Under the EAJA, an individual or small business with moderate income, an agricultural co-op or a nonprofit group can get back some of what it spends challenging the federal government in court.

An individual is eligible for EAJA fees if his or her net worth does not exceed $2 million, while a business is eligible if its net worth does not exceed $7 million and it had 500 or fewer employees.

The one exception is made for 501(c)(3) non-profit organizations, which do not have to meet the net worth eligibility requirements.

The MacKenzie River in Oregon was at issue in a lawsuit against the Federal Energy Regulatory Commission. The nonprofit plaintiff won and recovered attorney’s fees under the Equal Access to Justice Act. (Photo by Paul Reynolds)

A bill to limit these awards, the Government Litigation Savings Act (H.R. 1996), is under consideration by the House Subcommittee on Courts, Commercial and Administrative Law.

In the Republican-led House this subcommittee has six Republican members and only three Democrats. The witnesses at today’s hearing likewise unevenly represented public opinion on this bill – three supporters and one opponent.

Those supporting H.R. 1996 have taken aim at attorney fees when environmental groups prevail in lawsuits against the government.

Witness Jeffrey Axelrad, a professor at the George Washington University Law School and a former attorney at the Department of Justice, supports the bill.

Axelrad told the subcommittee, “Our Constitution’s Appropriations Clause bars payments from the public Treasury absent a Congressional appropriation.”

“In the context of attorney fee payments,” he said, “the federal judiciary applies the doctrine of sovereign immunity to preserve Congress’s power over the public fisc. In particular, the judiciary has recognized that without a waiver of sovereign immunity, courts may not award attorney fees to be paid by the United States or its agencies.”

Witness Lowell Baier, president emeritus of the 124-year-old Boone and Crockett Club, America’s oldest conservation organization, said, “We are concerned – and our research supports this concern – that the unlimited availability of EAJA fees to interest groups has particularly degraded the effectiveness of land management, wildlife, and environmental agencies.”

Baier supports the Government Litigation Savings Act which, he said, “only removes a needless incentive for interest group litigation without removing any existing causes of action.”

Witness Jennifer Ellis, an Idaho cattle rancher and head of the Western Legacy Alliance, also supports the bill, saying, “…the EAJA has become a mechanism by which some special interest groups, usually 501(c)(3) non-profits, have been able to force and to fund, the implementation of their political and social agendas with regards to environmental, natural resource and public land management.”

Only witness Brian Wolfman, a visiting professor at Georgetown University Law Center, opposed the bill. Wolfman worked with the nonprofit Public Citizen Litigation Group for nearly 20 years, serving the last five years as its director.

“We represented citizens and citizen groups challenging unreasonable or unlawful federal agency conduct,” said Wolfman, “that is, conduct at odds with what this body, Congress, had instructed the agency to do.”

Wolfman challenged the part of H.R. 1996 that requires the fee applicant to have “a direct and personal monetary interest in the civil action [or in the administrative adjudication], including because of personal injury, property damage or unpaid agency disbursement.”

He said that would eliminate EAJA eligibility for the most important cases, “those that seek non-monetary injunctive relief by challenging unlawful government regulations and conduct that affect the public on an ongoing basis.”

For a long list of legal reasons, Wolfman called the bill “misguided” and urged the subcommittee to reject it.

The Center for Biological Diversity, a frequent litigant against federal agencies, said today, “Republicans incorrectly claim that conservation nonprofits are somehow getting rich on attorney fees and using those fees as substantial funding sources for their organizations.”

Environmental groups say they collect only a small portion of overall Equal Access to Justice Act fees. The majority of cases for which costs are reimbursed are filed by individual veterans and social security recipients – not environmental groups.

The Center for Biological Diversity receives less than half of one percent of its total annual income from attorney fees recovered through the act, the group said today.

“Those suits were filed to ensure that federal agencies comply with laws that protect imperiled species and their habitat,” the group said.

“No one’s getting rich by making the government follow the law,” said the Center’s Executive Director Kieran Suckling. “Republicans are using this bill as a back-door attack on environmental laws they don’t like. The end result will be restricting citizen access to the court system and a federal government that’s less accountable to the people.”

Felice Pace, coordinator for Access for All, a newly formed group that promotes access to the court system for citizens and nonprofits, urged lawmakers not to weaken the EAJA. He said, “For decades the Equal Access to Justice Act has helped level the playing field for small organizations and individual citizens across the political spectrum by ensuring they have a voice in the judicial system when it comes to holding the government accountable.”

Copyright Environment News Service (ENS) 2011. All rights reserved.