Equal Access to Justice Act amendment to limit abuse of EAJA passes House

The Equal Access to Judgement Act (EJA) was a good idea when it was first enacted.

EAJA gives people the right to sue the federal government and if they win, they get their legal fees and costs.

But EAJA has been hijacked by a litigious element of the environmental movement that files hundreds of petitions to list endangered species under the Endangered Species Act which cannot be processed within the statutory time limits due to federal budget constraints. Then these groups sue the feds for the feds’ failing to act in a timely fashion and then  the litigious environmental group they get their legal fees paid so they can file more listing petitions and lawsuits.

Same for habitat conservation pans…once a species is listed the next step is a habitat conservation plan.

 The litigious environmental groups demand the plan, the feds don’t act quickly enough, and another lawsuit and then another payment to the environmental group.

We the US taxpayers are paying for this abuse of EAJA by litigious environmental groups.

We the taxpayers are financing the jihad against Western ranching and other land uses.

Tucson’s own Center for Biological Diversity is one of the environmental groups playing the EAJA abuse game. CBD is quite proud of all their lawsuits.

The Western Legacy Alliance, a group of ranching interests up in Idaho, launched a campaign against EAJA Abuse.

That campaign precipitated a proposed amendment in the US House of Representatives  that would limit EAJA abuse.

The US House of Representatives on February 17th voted to stop the abuse of EAJA.

Here is a transcript of the House debate on EAJA abuse:

Mrs. LUMMIS. Mr. Chairman, I have an amendment at the desk.
The Acting CHAIR. The Clerk will designate the amendment.
The text of the amendment is as follows:
At the end of the bill (before the short title), insert the following:
Sec. __. None of the funds made available by this Act may be used for the payment of fees and other expenses under section 504 of title 5, United States Code, or section 2412(d) of title 28, United States Code.
The Acting CHAIR. The gentlewoman from Wyoming is recognized for 5 minutes.
Mr. Chairman, I’m here to propose an amendment and tell a story about laws, and it is ironic that these two proposals came up simultaneously.
In 1980, a law was passed called the Equal Access to Justice Act, and it allows Americans who are being challenged by the Federal Government to recover their legal fees if they successfully sue the Federal Government when the Federal Government has wronged them. It is a very fair law.
The problem is, in 1995, the Federal Government quit keeping records on who is receiving payouts and how much under the Equal Access to Justice Act. Consequently, this law has been hijacked by certain groups who use it to sue and recover judgments. For example, there are 14 environmental groups that have recovered $37 million by filing 1,200 lawsuits for which they’ve recovered judgments and even legal fees under settlements with the Federal Government, thereby fueling the fire of suing the Federal Government over sometimes procedural issues.
There’s a group at Virginia Tech University who, through the FOIA law, the Freedom of Information Act, has uncovered how many abuses there are of this law and how many unintended consequences there are of the use of this law by certain groups, and we need to have a 6-month moratorium on expenditures and payouts under EAJA so we can get information about who’s receiving this money, what the lawyers are being paid per hour, and who it’s going to, how many environmental groups are actually paying for their organization by routinely suing the Federal Government to stop certain activities on Federal lands.
This is taxpayer money that’s being used for this purpose; and in light of my colleagues on the Democratic side of the aisle’s enthusiasm for sunshine, for full disclosure, for knowing where taxpayer dollars are going, I strongly encourage you to support my amendment.
Mr. MORAN. Mr. Chairman, I move to strike the last word.
The Acting CHAIR. The gentleman from Virginia is recognized for 5 minutes.
Mr. MORAN. Mr. Chairman, equal access to our Nation’s courts for all Americans is a hallmark of our democracy and our system of justice. Providing attorneys’ fees to successful plaintiffs, which is what the Equal Access to Justice Act does, ensures that the government is held accountable when it overreaches its power. These fees are only available when a party prevails on the merits of a lawsuit and only then after careful consideration by the presiding judge as to how deserving each plaintiff is.
Attorneys’ fees are available to individual citizens, local communities, small business, tribal entities, nonprofits, all regardless of where they stand on any particular issue. Providing attorneys’ fees ensures that powerless, less wealthy individuals who wouldn’t otherwise have a voice as a result of their not being wealthy or representing a corporate interest can nevertheless be heard by our government, by our court system; otherwise, they wouldn’t have the means.
We already suffer under a system where too often big money, as was discussed in the last amendment, crowds average people out of our political system, squeezing them out of this political process here on Capitol Hill. Now you want a system where big money squeezes average people out of the courthouse as well, out of our justice system?
Awarding attorneys’ fees makes it possible for environmental groups–I acknowledge that–to bring court actions to protect our environment. I happen to think that’s a good thing, but it also allows small business owners, farmers, ranchers, timber workers to ensure that their rights are protected as well when they believe that the Federal Government is in the wrong. It works both ways.
This Republican zeal to target every program that protects natural resources is just difficult to comprehend. You’re proposing an amendment that would slam the courthouse doors closed for any average citizen plaintiff, no matter where they fall on the political spectrum.
Instead of finding practical solutions that protect the environment and create jobs, this amendment would do nothing more than financially punish citizens who want and need, and deserve to have their voices heard.
That’s why this amendment should be defeated.
Mr. SIMPSON. Mr. Chairman, I move to strike the requisite number of words.
The Acting CHAIR. The gentleman from Idaho is recognized for 5 minutes.
Mr. SIMPSON. Mr. Chairman and members of the Committee, I rise in strong support of this legislation offered by my good friend from Wyoming.
It would be one thing if what the gentleman from Virginia says were the case in reality. It’s not the case in reality. I think that’s the reason that this law was passed, so that those people, the powerless, less wealthy individuals that the gentleman referred to, would have access to the courts. And the last thing we want to do is deny citizens their right to have a say in how, in this case, our public lands are managed.
But it has become, frankly, a cottage industry: suing the Federal Government, which is suing the people, and then asking the people to pay for your legal fees to do so. The Equal Access to Justice will allow those suing the Federal Government to be reimbursed for their legal costs even if they don’t prevail on a majority of the counts. The implication that the gentleman just gave is that you have to win. They can be reimbursed even if they don’t prevail on a majority of the counts.
The law has been abused by several interest groups who have turned this into, as I said, a cottage industry and now sue the government on a regular basis. They fund their organization through this and that’s a problem. If somehow we could get it back to what the gentleman said it was, that would be one thing. So far we haven’t been able to do that. And, in fact, we had language in our last appropriations bill that didn’t make it to the floor, along with the other appropriations bill, that would have at least said why don’t we find out who’s getting this money. If I’m a farmer out there and I get payments under the farm program, every
[Page: H1112] GPO’s PDF
citizen in this country has the right and ability to look it up and see who’s getting those farm payments. You know what, that doesn’t happen with who’s getting these fees, who’s being reimbursed by the Federal Government.
They’re supposed to keep track of that, but they don’t do that; but, in fact, when we asked the Secretary, does this come out of your budget or does it come out of the justice fund, who pays for this? Nobody really knew.

[Time: 14:40]
And if it doesn’t come out of their own budget, what’s their incentive to do things the right way?
Quite frankly, many of these lawsuits prevent the management of Federal lands for the benefit of the people. For example, holding up important forest-thinning projects and wildfire prevention projects. This, as I said, has become a cottage industry and needs to be reformed. This would prevent these fees from being paid during the term of this CR the next 7 months or however long it takes.
Mr. MORAN. Will the gentleman yield?
Mr. SIMPSON. I yield to my friend from Virginia.
Mr. MORAN. I thank my very good friend from Idaho.
Is it not the case that you only get fees on that part of the suit that you brought where you actually win? That you do have to prevail in order to get something in order to get reimbursed. And it’s only on where you prevail that you get any fee reimbursement.
Mr. SIMPSON. That’s accurate. But you don’t have to prevail in the overall case. You could actually lose the case for what you are trying to do. It is the problem that good intentions have gone awry. And I will tell you that there are groups all across this country who have seen this as a way to fund their organizations, and we need to put a halt to it. Because what we’re doing is asking the people of this country to fund people to sue them. I don’t know who else does that. But on the other hand, I agree with the gentleman that we want those people that don’t have the ability or the resources to have a say in how public lands are managed, to have a say in that. But it has gone awry, and we need to put an end to it, and we need to reform the process.
I yield back the balance of my time.
Mr. MARKEY. I move to strike the last word.
The SPEAKER pro tempore. The gentleman from Massachusetts is recognized for 5 minutes.
Mr. MARKEY. This amendment is overbroad, to use a euphemistic term, in order to describe what its impact will be upon those who are the least powerful, and most agreed in terms of the impact in which the Federal Government has upon their lives as individual citizens.
Let me give you an idea of how broad the impact of this amendment is. If this amendment had been in place, would the citizens who had been unwittingly turned into nuclear guinea pigs in the 1940s and 1950s during Federal Government-sponsored radiation experiments using thousands of American citizens without their permission have been able to bring their lawsuits decades later in order to reclaim some small compensation for their families? Would they have been able to bring their suits against the Federal Government? Who do you want to empower, the people who were the guinea pigs or the Federal Government?
Would a widow who sued the Social Security Administration for refusing to provide the survivor’s benefits that she was still due, would she be able to sue? Or are the legal fees just so great that the widow just has to live without the benefits? Would those who live downwind from a nuclear test and suffered cancer or other health effects, would they be able to sue? They’ve only found out years later what the impact is on them. How can they possibly afford the legal fees to take on the Federal Government?
Would the atomic veteran deployed at the test site during the atmospheric nuclear testing of the 1950s ever have been able to afford to bring their case to court? Would those people all across Nevada, Arizona, Utah, those States out West where these poor victims only found out later, how could they have ever afforded to have brought a lawsuit if they are not going to know that their legal fees would be covered when they win?
Would government whistleblowers be able to bring a case in response to retaliation by their supervisors? How can they sue the government? It’s this lone individual against the Federal Government. We should be empowering these individuals against the Federal Government when it acts in an imperious, arbitrary, capricious way that ruins people’s lives. Would citizens harmed by a contamination at a Superfund site at a military base in their neighborhood be able to sue the Federal Government because of the harm that has now gone into their neighborhoods? Or should we just say, Sorry, you are out of luck. The Federal Government did it to you. They did it to you in your neighborhood. You don’t have the capacity because you are just some poor citizen living accidentally near a military base.
What would the black farmers who were discriminated against for decades by the Agriculture Department have been able to do in terms of bringing a lawsuit? They couldn’t have done it. Those poor black farmers took a generation. Who funds that? How do they take on the Federal Government which had a policy of discrimination for 200 years against black farmers? How do they do it? You are defundingall of those lawsuits with this one amendment. What would have been the impact on Native Americans who trusted the government to protect their interests and natural resources and instead were ripped off? How do those Native Americans bring their case?
All of these things are now basically undermined by the amendment that we are now considering. That is this impact that is being visited upon all of these victims and all future victims, all actions by the Federal Government of the United States of America. This is where you get to show what your attitude is towards the Federal Government when they are acting in a way which does direct harm to the health, the well-being, and the safety of ordinary Americans in our country.
I will read the amendment. “None of the funds made available by this Act may be used for the payment of fees and other expenses under section 504 of title 5” of the U.S. Code. So this covers every suit that could be brought by any citizen against any Federal agency of the United States Government. I don’t know how you can side with the Federal Government against ordinary citizens and their right to sue, especially those who have been harmed the most seriously.
So I urge a very strong “no” by every Member of Congress who really does believe that the Federal Government has to be put in its place when they harm ordinary citizens.
Mr. GEORGE MILLER of California. I move to strike the last word.
Mr. Chairman, Members of the House, I think Mr. Markey has it about right. You have to kind of decide where you’re going to stand. Lawsuits are brought every day that infuriate us in one way or another, depending upon where you stand and what you think about that issue or what you know about that issue. But the idea that we would take this right away from the American people to go up against the government when the government every day makes a series of decisions–not all of them are perfect. Many of them are wrong-headed. Many of them had repercussions that they hadn’t thought through when they made the decision. Those are the challenges that go on every day, whether it’s in OSHA or the EPA or the Department of Labor, the Department of Interior. And many decisions that are made upstream have a lot of ramifications downstream.
Let’s not pretend that every Forest Service sale is perfectly configured and thought about the externalities, the impacts on grazers, the impacts on farmers downstream, the impacts on the streams, the sedimentation, the impact on the fisheries. We live with that in California all the time. The salmon don’t have a lawyer. But the harm to the fisheries, the harm to the small fishermen, to the small boat owners, the people who go out and brave their lives in the Pacific Ocean. When the Federal Government makes decisions about water flows and the Federal Government makes decisions about timber sales and when the Federal Government makes decisions
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about construction on the dam, they have a right to be heard. But this isn’t true if they were Taxpayers For Justice who argue about whether or not the royalties are fair and returned to the taxpayers, whether or not the Federal Government issued the permits in the right way. You think it’s a right that somebody else has that maybe you don’t like until you think you might want to exercise it.
This is a magnificent tool. I have no problem with the gentleman from Idaho who talked in terms of disclosure and accounting and transparency. That should all be there. I don’t know why the Department stopped listing this, but they should have never done it. And I would assume in other agencies, they should disclose what the payouts are because it’s a measure of the management, to some extent. This isn’t just funding your organization to keep going to court; it’s also a measure of the management. You know, it’s like a business. If you keep paying out a lot, your insurance company says, Maybe we ought to change the operations. Maybe we ought to change the way you are thinking here. Something’s wrong when you have these payouts.
You can argue that this is one of the metrics of performance of a governmental agency. If they keep losing the lawsuits, you might want to think that you’ve got to have somebody else running the show.

[Time: 14:50]
So I would hope that we would reject this amendment and understand that it’s a much broader dissipation of citizens’ rights to confront the government when the government may very well be wrong. And again, the pay-out comes only when you–you have to prevail on those measures. And on those measures where the court found that the government was wrong, you’re entitled to recover your costs and your expenditures.
So I think this is very fair. It’s worked for many, many years; and it’s protected a lot of citizens of this country against arbitrary and capricious actions by the Federal Government.
I yield back the balance of my time.
Mr. BISHOP of Utah. Mr. Chairman, I move to strike the last word.
The Acting CHAIR. The gentleman is recognized for 5 minutes.
Mr. BISHOP of Utah. Now, we have heard a lot about this particular fund and the difficulty it has and some exaggerations as to where it actually goes, what it actually does.
The problem is severalfold, one of which is that since 1994 there has been no clearinghouse of information. We do not know what has been funded. We do not know what has been used. We do not know what has been abused. And repeated requests to try and find that information have fallen on deaf ears.
In this CR, which is for a limited time, this particular provision would, once again, as I heard other people saying yesterday, raise attention to this issue and give someone a reason to actually give that information.
It is estimated in the last 15 years there have been around 1,100 lawsuits, and that doesn’t even include administratively brought actions that go before Interior Land Boards, and within the Forest Service. So all of those are part of the situation.
I heard some great speeches about how this would hurt poor people. And he’s actually right, except you’re not looking at who are the poor people who are hurt with the current situation.
Under the way this is administered correctly, any nonprofit, regardless of the amount of money they have, is eligible for these funds. But a for-profit individual, these poor farmers you’re talking about, if they have over $7 million in net worth, which means a farmer, a rancher who is land rich and cash poor, have several options. They can just sit out and hope something happens for them, or they can put money out of their own pocket to try and force their way into this particular situation.
Let me tell you how this has been abused. I’ll go with one case that took place in Federal courts in Idaho in which there was a settlement. No one was right. No one was wrong. They came to an agreement. And yet, even though that settlement which represented no admission of fault on behalf of the government or what it did, the environmental special interest lawyers were given $43,000 in attorney fees under this proposal, under this program. And we don’t know if that’s just the top, or the tip, of the iceberg or how far it particularly goes.
This is simply an element that we have. We have an unfair balance of who is available to get these funds. We have an unfair balance of what happens if someone prevails, and we have an unfair balance if certain groups get paid with taxpayer money, even though they didn’t win the case, even though the government did nothing wrong.
This system is broken; and this is a good amendment to say, all right, for the rest of the termination of the CR, we’re not going to spend any more funds in a system that does not work, and we’re going to demand some transparency so we can make some changes. This halts spending only for a short period of time till we can find out who was given what and what was spent from whom and to whom. And that’s the point of the amendment. I urge everyone to support it.
I yield back.
Mr. REHBERG. I move to strike the last word.
The Acting CHAIR. The gentleman from Montana is recognized for 5 minutes.
Mr. REHBERG. Mr. Chairman, I just want to real briefly say I was here when it was created. I was a congressional staffer. And talk about the law of unintended consequences. I might point out the people from the other side of the aisle fought us on the creation of the Equal Access to Justice law. It was never intended to be used for the purposes it is currently being used for.
So I guess I’d better apologize to the people of America for having been a supporter of Equal Access to Justice. And, in fact, as a staffer, I helped talked my Congressman that I worked for into it. I was his small business aide; his name was Congressman Ron Marleneeof Montana. I helped talk him into it because it made sense. It was supposed to give an opportunity for small business to be able to counter the lawsuits that were going to occur against them by the government coming in oftentimes with frivolous regulations.
The other side has figured how to turn it into a jobs bill for trial lawyers. They very effectively, in the Endangered Species Act and some of the other environmental acts, figured out how to use it to stop development within the United States.
So, unfortunately, in about the early 90s, we, as small business advocates, were the ones that helped push this through. The only group at that time that was exempt was the IRS. We wanted everybody to be under this law, giving the small businesses an opportunity to protect themselves.
It has been twisted. They have done everything they possibly can to turn an industry into suing on behalf of people and then making money off it. It never was intended for this purpose.
We need to get back to its original purpose. It would be fun to go back and find out how some of the people that are talking about what a great law it is now, whether they were supporters at the time because, if I remember correctly as a young congressional staffer, a lot of the people that are supporting it today were our biggest opponents back in the early 80s when we wanted to create this on behalf of small business.
So I hope you will support the Congresswoman’s amendment.
I yield back the balance of my time.
Ms. McCOLLUM. I move to strike the last word.
The Acting CHAIR. The gentlewoman from Minnesota is recognized for 5 minutes.
Ms. McCOLLUM. I yield to the gentleman from Massachusetts (Mr. Markey).
Mr. MARKEY. I rise just to make this very simple point so you all know what you’re doing. The law that this amendment wants to prevent funding for was a Ronald Reagan law. This is a law Ronald Reagan signed and put on the books, just so you understand. And of course the reason he put it on the books was that he sided with the little guy against the Federal Government. This is a way to make the Federal Government accountable. And recovery of attorneys’ fees and legal expenses is needed to ensure that the people can keep their own government accountable when they, the smallest of thesmall, are having the Federal Government intrude itself into their lives and bringing tremendous harm to the health and well-being of the families in any particular community in our country.
As of 2009, by the way, Social Security and veterans cases make up the majority of Equal Access to Justice awards. So you’re going to be disempowering, for the most part, Social Security and veterans cases that otherwise would not be able to be brought against the Federal Government. And I just think that this is not well thought out.
This is an across-the-board blunderbuss attack upon the rights of citizens all across the country who otherwise are just going to sit there in their home wondering what’s going on in Washington. If ever there was a tea party amendment that has to be made to counter what you’re doing, this is it. You guys are here representing Big Government against the essence, the heart, the soul of the tea party movement, wondering how the Federal Government can get away with intruding themselves. And all we’re really providing here is minimal financial assistance if they win. If they lose it’s a frivolous case. If they lose, the jury decided against them. This is only if they win, if they put up their life savings to try to take on the Federal Government and they win because the Federal Government had compromised the rights of their family.
So, I just want to let you all know, environmental cases amount to a very, very, very tiny fraction of all the cases that we’re talking about. We’re talking about, for the most part, ordinary families. And I understand why some people might not want to give these people the right to sue, but you’re making a big mistake. It’s at the heart, it seems to me, of what the tea party movement was about, and voting for this will be a very difficult thing to explain.
The Acting CHAIR (Mr. Terry). The question is on the amendment offered by the gentlewoman from Wyoming (Mrs. Lummis).
The question was taken; and the Acting Chair announced that the ayes appeared to have it.
Mr. MORAN. Mr. Chairman, I demand a recorded vote.
The Acting CHAIR. Pursuant to clause 6 of rule XVIII, further proceedings on the amendment offered by the gentlewoman from Wyoming will be postponed.

The amendment passed 232 yes to 197 no  on a mostly partisan basis.

It faces an uncertain future in the US Senate…but the day is coming…maybe if there is a GOP Senate and a Republican in the White House…when the abuse of EAJA by litigious environmental groups will be stopped.


About Hugh Holub

Attorney and writer.
This entry was posted in Congress, endangered species act, environment, national politics and tagged , . Bookmark the permalink.

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