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The Government Accountability Office (GAO) and Notre Dame Law School published separate studies on the Equal Access to Justice Act (EAJA) this week that show funds intended for the nation’s veterans, seniors and small businesses are flowing to environmental groups contrary to Congressional intent.

The Notre Dame law review article provides a comprehensive history of EAJA, and relies on a broad analysis of court records and public tax returns to show that millions of dollars are paid out to environmental groups using a social safety-net program not designed for them.  The GAO study confirms that while the amount of tax-payer reimbursements to environmental groups is likely in the millions, the federal government has not kept track.

“We have known for some time that the Equal Access to Justice Act needed attention, but these new reports from respected institutions shine a spotlight on the urgency of the matter,” Rep. Lummis (R-WY) said.  “These two studies confirm that EAJA is broken and the government is not keeping track; it throws up unnecessary roadblocks to those who deserve the help, and at the same time is a free-flowing spigot for those the law was not intended to assist.  But it can and should be fixed as soon as possible.  Environmental laws exist for environmentalists; EAJA is for seniors and veterans in need.”

“It’s time to return EAJA back to its original intent of helping our nation’s veterans, seniors and small businesses,” said Barrasso.“For far too long, we’ve watched special interest groups fund their anti-multiple use agenda with Americans’ hard earned taxpayer dollars.  These new reports confirm the pressing need for more accountability and transparency when it comes to EAJA payments.  Americans deserve to know who their money is going to and how exactly it’s being spent.”

H.R. 1996, the Government Litigation Savings Act, will modernize the Equal Access to Justice Act by improving the process for legal fee reimbursement for veterans, seniors and small businesses, and providing greater certainty on the amount of reimbursements available for these deserving groups.  At the same time, H.R. 1996 removes tax-payer subsidies for litigation filed outside the boundaries set by the nation’s environmental laws.  The bill is supported by over 100 groups representing conservationists, sportsmen, outdoor recreationists, small businesses and farmers and ranchers.

Highlights from the GAO and Notre Dame studies include:

• Intended originally as a cost saving mechanism, the $125 an hour cap on attorney’s fees is routinely “evaded,” and despite court instructions to narrowly interpret EAJA’s language to increase fees for special factors, EAJA reimbursements range from $157 to over $500 an hour.  Notre Dame Journal of Legislation, pages 36 – 41.
• The Government Litigation Savings Act corrects this problem by creating a clear hourly rate applied equally to all legal representation no matter their area of expertise.

• The absence of an equitable cap on the net worth of groups eligible to receive EAJA reimbursement, combined with the absence of any federal oversight provides the opening for well-heeled organizations to sue the federal government repeatedly over procedural issues outside the bounds of environmental law.  Notre Dame Journal of Legislation, pages 41-45.
• The Government Litigation Savings Act corrects this problem by establishing a uniform net worth cap of $7 million, and institutes a robust tracking and reporting requirement.

• Reviews of open court documents from September of 2009 to October of 2010 reveal payments to twenty environmental litigants that totaled at least $5.8 million, while an examination of tax returns from these same twenty groups showed the average yearly attorneys’ fees totaled $9.1 million.  Notre Dame Journal of Legislation, pages 48 – 54.
• The Government Litigation Savings Act corrects this problem by requiring an EAJA applicant to show a “direct and personal” impact of the government’s action to receive reimbursement.

• After interviewing 75 bureaus and agencies within the United States Department of Agriculture and the Department of the Interior, the GAO determined that only 10 could provide any data on EAJA reimbursements.  One of those ten, which is housed in the Department of Interior, relied on employee memory to create the data.  The GAO study is clear that the number of cases and awarded amounts the agency could identify are not “comprehensive, or precise.”    Limited Data Available on USDA and Interior Attorney Fee Claims and Payments, Government Accountability Office.

• GAO, which relied only on what the 10 agencies were able to provide, still identified $4.4 million in EAJA payments.  This number does not match court documents, tax returns, and is derived from a much larger amount of legal fees.  For example, the Forest Service identified over $16 million in legal fees, but could only identify the source of $2.3 million.
• The Government Litigation Savings Act corrects both of these problems by requiring a robust tracking and reporting requirement administered by a third party, disallowing any agency from making the decision that a payment of tax-payer dollars is “too small” to track, or “not needed.”