EAJA bill has its day in House subcommitteeWritten by Christy Martinez
On Oct. 11 both proponents and opponents of the Government Litigation Savings Act gathered in Washington, D.C. to discuss a piece of legislation before the U.S. House Judiciary Committee, Subcommittee on Courts, Commercial and Administrative Law.
H.R. 1996, the Government Savings Litigation Act, legislation first introduced by Representative Cynthia Lummis, would help correct misuse of the existing Equal Access to Justice Act (EAJA) by prohibiting non-profit organizations with a net worth exceeding $7 million from filing for EAJA funds; requiring that EAJA filers show a “direct and personal monetary interest” in the action to be eligible for payment; and capping the attorneys fees that environmental activists claim to be owed. The legislation would also require an accounting of the money paid by the federal government for attorneys fees.
“A small percentage of special interest groups with an environmental litigation agenda have had big repercussions for taxpayers and their hard-earned dollars, and for federal land managers just trying to do their job. Getting paid to repeatedly sue federal agencies over technicalities and recovering their attorneys’ fees in mass quantities is a job these obstructionist groups take seriously; and their actions are gumming up the works at federal agencies like the BLM, the Forest Service and the U.S. Fish and Wildlife Service,” said Lummis in an Oct. 11 statement.
Despite opponents’ claims, the legislation would not affect the ability of individual citizens and small businesses to utilize EAJA when defending themselves against the federal government, says Cheyenne attorney Karen Budd-Falen.
Jennifer Ellis of the Western Legacy Alliance and Lowell Baier of Boone & Crockett testified in favor of the act, while two environmental law professors spoke against it, one of whom spoke for veterans and those who seek to collect Social Security benefits.
“While we focus on the environmental issues, because that’s where the biggest abuse occurs, he talked about Social Security and veterans who rely on EAJA when they litigate against the federal government to get benefits,” says Budd-Falen. “But, if you look at how Lummis has written the amendments, it wouldn’t affect those people.”
“The Government Litigation Savings Act will halt these groups’ use of EAJA to push their ‘stop everything’ agenda, and return EAJA to its original intent: to give individuals, small businesses or any other entity who has been wronged by the federal government the ability to seek reimbursement,” said Lummis. “Contrary to some erroneous comments we heard in today’s hearing, the bill does nothing to limit access to the courts for veterans and social security claimants, and in fact explicitly protects the ability of small, financially strapped groups and individuals to receive fair compensation. I am heartened by today’s hearing because when you set aside rhetoric, I believe many agree that EAJA has deficiencies that must be corrected.”
“Government funding of groups suing the federal government has literally become a cottage industry in the so-called environmental community,” says Ellis, who traveled to Capitol Hill to testify on behalf of natural resources users.
“As a rancher, I pay for this litigation three times,” Ellis told the Committee. “My tax dollars fund the federal lawyers and agencies to participate in this litigation; I am forced to hire an attorney to protect my own interests; and my tax dollars fund those using the courts to drive my family from the land.”
Budd-Falen says that one topic discussed at the hearing was the cap of attorneys’ fees at $175 per hour.
“They’re looking at a way to try to come up with a formula that would be fair to everyone, instead of having the environmental attorneys claim they work in a special area and adding fees to get them to $650 per hour,” says Budd-Falen. “They’re looking for a reasonable compromise, and I think that’s possible.”
When Lummis introduced the bill to the House, Senator Barrasso and others also introduced a similar bill in the Senate.
“Everyone thought we could get this through the House, but that the Senate was more dicey because it’s Democrat-controlled,” says Budd-Falen. “While it’s been introduced in the Senate, it hasn’t yet been scheduled for hearings, and in mid-October Barrasso and a couple others introduced a special piece of legislation that would simply require an accounting of the money.”
Budd-Falen says a copy of the bill hasn’t yet been seen in publication, but that she understands it would only require accounting, with the hope that once other Congressmen see how much money is involved they’ll be more willing to move forward with the original Senate bill.
Budd-Falen adds that one complaint brought up in the House Subcommittee hearing was that the livestock industry sues just as much and collects just as much money as the environmental organizations. In response, Budd-Falen did some research.
“We took all the industry groups we could think of and counted all the litigation between 2000 and 2011 to compare to environmental groups. For nine environmental groups in that time period, we found 3,300 cases that they had filed. For 13 industry groups, including farmers, ranchers and builders, among others, in the same time period they’d only filed 111 lawsuits,” notes Budd-Falen. “The claim that our side is just as litigious as theirs is silly.”
Budd-Falen says $36 million in attorneys fees were paid to the environmental side, while farming and ranching interests only received $362,000 for the same time period.
“We’re talking magnitudes of money bigger,” she says.
The next hearing before the full House Judiciary Committee has not yet been set, but Budd-Falen says it could come as soon as the next month to six weeks, provided the subcommittee votes to move the bill forward. Members of the subcommittee include:
• Mr. Coble, Chairman - R - NC 6th District
• Mr. Gowdy, Vice-Chairman - R - SC 4th District
• Mr. Gallegly - R - CA 24th District
• Mr. Franks - R - AZ 2nd District
• Mr. Quayle - R - AZ 3rd District
• Mr. Ross - R-FL 12th District
• Mr. Cohen - D - TN 9th District
• Mr. Johnson - D - GA 4th District
• Mr. Watt - D - NC 12th District
Current House sponsors and co-sponsors of the bill can be found at thomas.loc.gov/cgi- bin/bdquery/z?d112:HR01996:@@@P. The bill is supported by numerous state and national organizations, including the National Cattlemen’s Beef Association, the American Sheep Industry Association, the Public Lands Council, the New Mexico Cattle Growers’ Association, the New Mexico Wool Growers, Inc. and the New Mexico Federal Lands Council.
The Western Legacy Alliance asks natural resource users to ask the subcommittee members to move forward with H.R. 1996 to the full committee.