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The U.S. House of Representatives has passed by voice vote Congressman Cynthia Lummis’ (R-Wyo) amendment to the Equal Access to Justice Act (EAJA), legislation passed in 1980 to reimburse individuals who otherwise could not afford to legally pursue claims against the government. Congress intended that EAJA operate as a social safety net program, with reimbursements available for the nation’s veterans, seniors and small business. However, as scholarly journals from Virginia Tech and Notre Dame, GAO reports, and open court and tax records show, in recent years EAJA funds have been flowing to environmental organizations filing suit on procedural grounds. 

Rep. Lummis’ amendment restores transparency to EAJA payments by reinstating tracking and reporting requirements on all attorney reimbursements. The amendment also requires the creation of a searchable, online data base of all EAJA payments so tax-payers can easily access information on payments made, to whom, how much, and why.  The amendment is pulled from Rep. Lummis’ H.R. 1996, the Government Litigation and Savings Act (GLSA), a bill that improves EAJA by ensuring a fair market rate for attorneys representing seniors, veterans and small businesses, while at the same time closing loopholes that have allowed EAJA to be exploited.  Going forward, the amendment will allow for more careful management of EAJA payments government-wide.

“Today’s unanimous vote to require the robust tracking of tax-payer funded attorney’s fees is a significant step toward updating EAJA,” Rep. Lummis said. “The House has now spoken on this issue.  In a bipartisan way, we have made clear that no one receiving tax-payer funds to pursue legal action against the government can do so in secret.  There is more to do to make EAJA work the way it was intended.  We need to ensure that our nation’s veterans, seniors and small businesses have access to qualified attorneys.  And we must put in place a reasonable eligibility standard for accessing EAJA in the first place.  I am committed to working with both Republicans and Democrats to make the changes necessary to improve EAJA.”

BACKGROUND:

·         The Equal Access to Justice Act (EAJA) was passed by Congress in 1980, establishing two methods by which individuals or groups could recover the costs of suing the federal government.

·         The first method is through agency proceedings, codified under Title 5, Section 504 of U.S. Code.  It provides payments for adjudicatory proceedings within the agency themselves, as opposed to courts proceedings. 

o   The EAJA required the Administrative Conference of the United States (ACUS) to track these payments and report on them to Congress.

o   In 1994, Congress defunded ACUS without transferring the responsibility of tracking EAJA payments to another agency.

·         The second method to recover EAJA fees is through court proceedings, codified in Title 28, Section 2412(d) of U.S. Code.

o   The EAJA directed the Department of Justice to track these payments and report them to Congress.

o   In 1994, The Paperwork Reduction Act eliminated the DoJ’s tracking and reporting responsibility for EAJA payments.

·         In March of 2010, U.S. Rep. Cynthia Lummis (WY-R) introduced H.R. 4717(Open EAJA Act of 2010).  This legislation would have reinstated tracking and reporting of both Title 5 and Title 28 of EAJA. It also required that the online reporting provide more detailed information on who receives EAJA payments, and the amount of payments, but left the remaining EAJA law intact. 

·         In 2011 Rep. Cynthia Lummis (WY-R) introduced the Government Litigation Savings Act (GLSA).  Among other targeted changes to improve EAJA for seniors and veterans, and tighten the eligibility standard to qualify for reimbursement, the GLSA requires comprehensive tracking and reporting of both Title 5 and Title 28 of EAJA, and consolidates the tracking and reporting within the newly reconstituted ACUS. 

o   GLSA requires ACUS to track the payments, and provide an annual online database that allows the public to search EAJA payments.  The GLSA requires the report to indicate which groups received EAJA payments, for what amount and for what purpose.

o   H.R. 1996 passed the House Judiciary Committee in November of 2011.