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U.S. Representative Cynthia Lummis (R-WY) issued the following statement after Senator Jon Tester’s (D-MT) introduction of S.2042, legislation to track and report on tax-payer subsidies for lawsuits against the government:

“The fact that Equal Access to Justice Act (EAJA) payments has operated under a cloak of secrecy for the last 17 years is widely accepted to be a problem.  Users of EAJA, including veterans, seniors and environmental organizations, collectively agree this program should be subject to tracking and reporting requirements.  So I find it odd that Sen. Tester would introduce a bill to track only half of EAJA payments.

“In 2010 I introduced H.R. 4717, the Open EAJA Act of 2010, legislation that would comprehensively track and report on EAJA payments made government wide.  Although Sen. Tester was invited to become a cosponsor in the Senate, he refused.

“Between the initial introduction of the 2010 bill, and the recent introduction of my bill to improve and modernize the program, H.R. 1996, the Government Litigation Savings Act, a compelling body of evidence has been compiled on EAJA payments.  We now know that EAJA was written for veterans, retirees and small business and that EAJA payments are flowing to those groups as intended.  We also know that EAJA payments are flowing to large, well-funded environmental groups, which was not the intent of EAJA. 

“Environmental groups have environmental laws that give them the right to sue, settle, and receive tax-payer subsidies to their heart’s content.  Conversely, EAJA provides for the nation’s veterans and seniors and small business owners.  We do not need the incomplete data that would be provided by Senator Tester’s bill to know that today, environmental groups unfairly use both avenues to pad the coffers of their litigation shops.  What we do need is legislation to return EAJA to its intended purpose – reimbursement for lawsuits not already provided for by other laws.  We also need to understand specific details regarding EAJA payments so we know if it is working for the people it was intended to serve. 

“I had assumed the Senator, as I am, was interested in understanding exactly how EAJA works for seniors and veterans.  Unfortunately, Senator Tester’s bill does not require tracking or reporting for the section of EAJA chiefly responsible for the payment of legal representation for our nation’s veterans and seniors.  Even if he ignores the fact that EAJA is for seniors and veterans, and environmental laws are for environmentalists, I’m still confounded as to why Sen. Tester wouldn’t want to track the entirety of EAJA payments.

“I call on Sen. Tester to abandon his legislation, and support comprehensive tracking of EAJA payments and clarify the line between EAJA and environmental laws.”

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) and then-Representative Stephanie Herseth-Sandlin (SD-D) introduced H.R. 4717(Open EAJA Act of 2010).  This legislation, along with its mirror legislation in the Senate (S. 3122), 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 to what amount, but left the remaining EAJA law intact.  Sen. Tester refused to support that legislation.

·         Following a year of study on court documents and IRS filings, Rep. Lummis and U.S. Senator John Barrasso (WY-R) introduced the Government Litigation Savings Act (GLSA).  The GLSA (H.R. 1996, S. 1061) 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.

·         On January 30, 2012, Sen. Tester introduced a bill requiring only partial tracking of EAJA payments (S. 2042).

o   S. 2042 requires the DoJ to track and report only Title 28 (court awarded EAJA payments).  S. 2042 does not require tracking Title 5 payments, those most likely to go to veterans and seniors.

o   S. 2042 does not require the DoJ provide in its report anything other than a total of EAJA payments over which the DoJ has jurisdiction, rendering the data meaningless.