Page 1 GAO-12-417R USDA and Interior Attorney Fees

United States Government Accountability Office

Washington, DC 20548

April 12, 2012

Congressional Requesters

Subject: Limited Data Available on USDA and Interior Attorney Fee Claims and Payments

In the United States, parties involved in federal litigation generally pay their own attorney 

fees. There are many exceptions to this general rule where statutes authorize the award of 

attorney fees to a successful, or prevailing, party. Some of these provisions also apply to the 

federal government when it loses a case. In 1980, Congress passed the Equal Access to 

Justice Act (EAJA)1 to allow parties that prevail in cases against federal agencies to seek 

reimbursement from the federal government for attorney fees, where doing so was not 

previously authorized. The premise of EAJA was to help ensure that decisions to contest 

administrative actions are based on the merits and not the cost of litigation, thereby 

encouraging agencies to base such actions on informed deliberation. Although all federal 

agencies are generally subject to, and make payments under, attorney fee provisions, some 

in Congress have expressed concerns about the use of taxpayer funds to make attorney fee 

payments with agencies’ limited funding, such as concerns that environmental organizations 

are using taxpayer dollars to fund lawsuits against the government, particularly against the 

Department of Agriculture (USDA), the Department of the Interior (Interior), and the 

Environmental Protection Agency (EPA).2

In the context of judicial cases—those brought in a court, including those that are settled—

the law generally provides for three ways that prevailing parties can be eligible for the 

payment of attorney fees by the federal government.3 First, many statutes contain provisions 

authorizing award of attorney fees from a losing party to a prevailing party. Many of these 

apply to the federal government;4

 

1 Pub. L. No. 96-481, tit. II, 94 Stat. 2321, 2325 (1980) (codified as amended at 5 U.S.C. § 504; 28 U.S.C. 

§ 2412).

for example, most claims under the Endangered Species 

Act and those under Title VII of the Civil Rights Act of 1964 apply to the federal government 

independent of EAJA. Second, where there is a “fee-shifting statute” that allows for the 

payment of attorney fees by a losing party to a prevailing party but is not independently 

applicable to the federal government, EAJA provides that the government is liable for 

reasonable attorney fees to the same extent as a private party (i.e., claims paid under EAJA 

2

 See for example, GAO, Private Attorneys: Selected Attorneys’ Fee Awards Against Nine Federal Agencies in 

1993 and 1994, GAO/GGD-96-18 (Washington, D.C.: Oct. 31, 1995), and Equal Access to Justice Act: Its Use in 

Selected Agencies, GAO/HEHS-98-58R (Washington, D.C.: Jan. 14, 1998). 3 Under 28 U.S.C. § 2414, except as otherwise provided by law, compromise settlements of claims referred to 

the Department of Justice (DOJ) for defense of imminent litigation or suits against the United States or its 

agencies, shall be settled and paid in a manner similar to judgments. Thus, when DOJ settles cases on behalf of 

a federal agency, out-of-court and court-approved settlements may provide for payment of attorney fees and 

costs, depending on the underlying claims. 4 Some such provisions, however, cannot be used independently of EAJA to award fees against the federal 

government because the particular provisions do not effect a waiver of the federal government’s sovereign 

immunity. 
Page 2 GAO-12-417R USDA and Interior Attorney Fees

subsection (b)).5 Under these first two ways that a party may obtain attorney fees from the 

federal government, when a party prevails in litigation against the government and is 

awarded attorney fees under court order or settlement,6 the amounts generally are paid from 

the Department of the Treasury’s (Treasury) Judgment Fund (a permanent, indefinite 

appropriation that pays judgments against federal agencies that are not otherwise provided 

for by other appropriations).7 Third, EAJA provides that in any civil action where there is no 

fee-shifting statute, prevailing parties generally shall be awarded attorney fees when the 

government cannot prove that its action was substantially justified (i.e., claims paid under 

EAJA subsection (d)).8 These awards or settlements are paid from the losing agency’s 

appropriation. Where a federal agency is engaged in judicial litigation, as a plaintiff or a 

defendant, the Department of Justice (DOJ) generally provides legal representation for the 

government. However, DOJ officials reported that there are many exceptions, because 

several federal agencies—such as the Securities and Exchange Commission, the 

Commodity Futures Trading Commission, the Federal Election Commission, the National 

Labor Relations Board, and the Consumer Financial Protection Bureau—have considerable 

independent litigation authority.

In adversary administrative adjudications—generally, proceedings that are brought in a 

special agency forum, rather than in a court, and in which the government position is 

represented—a separate provision of EAJA applies. Specifically, EAJA provides that in 

adversary adjudications the government is liable to a prevailing party for reasonable 

attorney fees when the government cannot prove that its action was substantially justified.9

Other statutes, such as Title VII of the Civil Rights Act of 1964, also authorize the payment 

of attorney fees in administrative proceedings. When such fees are awarded or agreed to in 

a settlement, they are generally paid from the agency’s appropriated funds.10 According to 

DOJ officials, this adversarial subset of administrative proceedings for which the government 

may be liable for attorney fees represents a relatively small proportion of governmentwide 

administrative proceedings.

In this report, we refer to attorney fees any time such fees were paid, regardless of the 

source of law authorizing the payment—independently applicable statutory fee-shifting 

provisions, EAJA subsections (b) or (d), or EAJA’s adversarial adjudication provisions—and 

whether awarded by a court or administrative forum or provided in a settlement. 

 

5 This provision provides that the United States is liable for such fees and expenses to the same extent that any 

other party would be liable under the common law or the terms of any statute that specifically provides for such 

an award. 28 U.S.C. § 2412(b). 

6 For purposes of this report, we use “awarded” to reflect attorney fees that are awarded by administrative or 

court decision as well as those provided in settlements.

7 31 U.S.C. § 1304. Regarding payments of attorney fees under the statutory fee-shifting provisions 

independently applicable to the federal government, these are generally paid from the Judgment Fund unless the 

statute at issue provides otherwise. Regarding EAJA subsection (b) payments, an exception is that where a court 

finds an agency acted in bad faith, the payment cannot be made from the Judgment Fund. 

8 In these cases, EAJA limits the prevailing plaintiff’s eligibility to receive payment by defining (at the time the 

lawsuit is filed) an eligible party as either an individual with a net worth of $2 million or below or a business owner 

or any partnership, corporation, association, local government, or organization with a net worth of $7 million or 

below and 500 or fewer employees. However, tax-exempt nonprofit organizations and certain agriculture 

cooperative associations are considered eligible parties regardless of net worth. 

9 5 U.S.C. § 504(a), (b)(1)(C) (defining adversary adjudications as (i) an Administrative Procedure Act 

adjudication in which the United States is represented by counsel or otherwise, but excludes an adjudication for 

the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license, (ii) any appeal of 

a decision made pursuant to section 6 of the Contract Disputes Act of 1978 before an agency board of contract 

appeals, (iii) any hearing conducted under certain false claims procedures under 31 U.S.C. chapter 38, and (iv) 

the Religious Freedom Restoration Act of 1993). 

10 Certain statutes, such as the Small Claims Act and Federal Tort Claims Act, authorize the payment of 

administrative claims from the Judgment Fund. We did not identify any attorney fee payments in the scope of our 

review that were paid under these statutes.
Page 3 GAO-12-417R USDA and Interior Attorney Fees

From 1981 through 1995, EAJA provided for governmentwide reporting on claims paid 

under EAJA in the form of two annual reports to Congress. One report described 

administratively awarded payments and was the responsibility of the Chairman of the 

Administrative Conference of the United States (ACUS), while the other report described 

court-awarded payments and was issued initially by the Director of the Administrative Office 

of the U.S. Courts and later by the Attorney General.11 For fiscal year 1994—the last year 

for which data were available—USDA did not report any awards and Interior reported one 

administrative award and no court awards. In 1995, Congress defunded ACUS12 and EAJA 

reporting requirements were repealed,13 thereby eliminating the statutory mechanism to 

oversee these expenditures.14 There has been no official accounting of EAJA payments 

since then. ACUS was re-established in 2010, but requirements to report on attorney fee 

payments have not been re-enacted as of April 10, 2012.15 

In August 2011, we reported on the costs, including attorney fee payments, associated with 

environmental litigation cases against EPA.16 For this report, you asked us to determine the 

extent to which data are available on attorney fee payments made under EAJA and other 

fee-shifting statutes at USDA and Interior for fiscal years 2000 through 2010. This report 

addresses the extent to which USDA and Interior had information available on attorney fee 

claims and payments made under EAJA and other fee-shifting statutes for fiscal years 2000 

through 2010, including who made claims for payment, which claims were paid, the amount 

paid for each approved claim, and the statutes under which the cases were brought.

To conduct our work, we contacted 33 USDA and 42 Interior agencies;17 Treasury; and 

DOJ’s Civil Division, Environment and Natural Resources Division, and the Executive Office 

of United States Attorneys. We asked each agency if it maintained information on cases 

where attorney fees were sought, and for those that maintained this information, we asked 

them to provide the case name, party name, claim amount, date of the award or payment, 

payment amount, and statutes under which the cases were brought for fiscal years 2000 

through 2010. Our scope included attorney fees involving USDA and Interior, namely those 

associated with administrative adjudications of claims as well as cases filed with the courts. 

Our scope included attorney fee payments regardless of the source of law authorizing the 

payment—independently applicable statutory fee-shifting provisions, EAJA subsection (b) or 

(d), or EAJA’s adversarial adjudication provisions—and regardless of whether the fees were 

paid from Treasury’s Judgment Fund or from an agency’s appropriations. Payments of other 

costs without a corresponding payment of attorney fees were outside of our scope.18

 

11 EAJA originally required the Director of the Administrative Office of the U.S. Courts to report annually to 

Congress on EAJA court activity, including the number, nature, and amounts of awards; claims involved; and any 

other relevant information deemed necessary to aid Congress in evaluating the scope and effect of awards under 

the act. The responsibility for this reporting was transferred to the Attorney General in 1992. 

In 

addition, we interviewed USDA, Interior, Treasury, and DOJ officials to gain an 

understanding of the processes used by each agency to make and document attorney fee

12 See Treasury, Postal Service, and General Governmental Appropriations Act, 1996, Pub. L. No. 104-52, 109 

Stat. 468, 480 (1995). 

13 Federal Reports Elimination and Sunset Act of 1995, Pub. L. No. 104-66, §§ 1091, 3003, 109 Stat. 707, 722, 

734.

14 ACUS lost its funding in 1995. Following congressional reauthorization in 2004 and 2008, funding was restored 

in 2009, and the conference was officially reestablished in March 2010. 15 Legislation that would establish certain EAJA reporting requirements, among other things, has been 

introduced—see, e.g., H.R. 1996, 112th Cong. (2011)—but as of April 10, 2012 has not been enacted. 16 GAO, Environmental Litigation: Cases against EPA and Associated Costs over Time, GAO-11-650 

(Washington, D.C.: Aug. 1, 2011). Treasury paid a total of about $14.2 million for attorney fees and costs for EPA 

environmental litigation cases from fiscal years 2003 through 2010, and EPA paid a total of $1.4 million for 

attorney fees and costs from fiscal years 2006 through 2010.

17 USDA and Interior agencies, offices, and bureaus are referred to as agencies for purposes of this report. 18 Other costs include court costs, such as filing fees and reporting fees, and attorney expenses, such as the cost 

for expert witnesses, telephone, postage, travel, copying, and computer research.
Page 4 GAO-12-417R USDA and Interior Attorney Fees

payments. We also asked officials to identify any benefits and challenges of tracking 

attorney fee payments under EAJA and other fee-shifting statutes. The results of our work 

should not be generalized beyond USDA and Interior to draw conclusions about 

government-wide attorney fees.

We analyzed the available data gathered from each data source (i.e., USDA, Interior, and 

Treasury) to determine the extent to which complete and consistent information was 

available. Specifically, we determined the time frame in which data were available as well as 

whether the data source included information about claims that were denied, the party(s) 

and payee(s), the award or settlement amount, the payment amount, and the statutes under 

which the cases were brought. As part of this analysis and to the extent data were available 

for each agency, we determined the total amount of identified attorney fees awarded or paid 

and the number of cases filed as well as the statutes under which the cases were brought. 

When other costs were separated from attorney fees, we reported the total amount of 

attorney fees and other costs. When attorney fees were not separated from other costs in 

decisions and settlement agreements, we also reported a total amount for attorney fees and 

other costs. Therefore, the amounts reported may overstate attorney fees paid or awarded; 

however, other costs are generally minimal in comparison to attorney fees. In addition, we 

did not include payments with damages if damages could not be isolated from attorney fees 

and other costs. To the extent possible, we identified any trends in the data, such as a larger 

number of payments made in a particular fiscal year(s) or under a particular statute(s). 

To assess the reliability of data provided by USDA and Interior agencies as well as 

Treasury, we reviewed data systems manuals and interviewed knowledgeable officials to 

ensure that the systems’ design included controls for maintaining the integrity of the data. 

Further, to the extent possible, we reviewed selected publicly available data and case files 

where necessary to confirm the data we obtained from USDA and Interior agencies. Based 

on these actions, we determined that the data were sufficiently reliable for the purposes of 

illustrating the nature and limitations of the data collected and maintained in the various 

agency systems. Limitations in the data that we identified are noted later in this report.

In addition, we reviewed the statutory text and legislative history of EAJA and other feeshifting statutes. We also reviewed the available ACUS annual EAJA reports issued from 

fiscal years 1982 through 1994 and interviewed ACUS officials to determine how ACUS 

collected information on attorney fees paid prior to 1995. In addition, we interviewed USDA, 

Interior, Treasury, and DOJ officials to gain an understanding of the processes used to 

make attorney fee payments. We also identified and interviewed stakeholders—such as 

officials from eight environmental groups, two industry associations, and a law office. We 

identified these stakeholders in part through a review of our prior work as well as through an 

iterative process, often referred to as “snowball sampling,” and selected for interviews those 

who would provide us with a broad range of perspectives on attorney fee payments. While 

the information from the interviews is not generalizable to all stakeholders, the interviews 

provided us with a broad range of perspectives on attorney fee payments. For our full scope 

and methodology, see enclosure I.

We conducted our work from May 2011 to April 2012 in accordance with all sections of 

GAO’s Quality Assurance Framework that are relevant to our objectives. The framework 

requires that we plan and perform the engagement to obtain sufficient and appropriate 

evidence to meet our stated objectives and to discuss any limitations in our work. We 

believe that the information and data obtained, and the analysis conducted, provide a 

reasonable basis for any findings and conclusions in this product.
Page 5 GAO-12-417R USDA and Interior Attorney Fees

Results in Brief

Most USDA and Interior agencies did not have readily available information on attorney fee 

claims and payments made under EAJA and other fee-shifting statutes for fiscal years 2000 

through 2010. As a result, there was no way to readily determine who made claims, the total 

amount each department paid or awarded in attorney fees, who received the payments, or 

the statutes under which the cases were brought for the claims over the 11-year period.

Both USDA and Interior officials stated that given the decentralized nature of their 

departments and the absence of an external requirement to track or report on attorney fee 

information, decisions such as whether to track attorney fee data and the manner in which to 

do so are best handled at the agency level. Specifically, officials from 65 of the 75 USDA 

and Interior agencies we contacted told us that they did not track or could not readily provide 

us with this information. The remaining 10 USDA and Interior agencies either had 

mechanisms to track information on attorney fees or were able to compile this information 

manually using hard copy files or directed us to publicly available information sources where 

we could obtain the information. However, the extent to which these agencies had attorney 

fee information available for the 11-year period varied. Given this difference among these 10 

agencies as well as various limitations—such as 5 USDA and Interior agencies not 

maintaining data about claims for attorney fees that were filed but denied—it is difficult to 

comprehensively determine the total number of claims filed for attorney fees, who received 

payments, in what amounts, and under what statutes. 

Background

USDA and Interior Have Broad Missions and Multiple Component Agencies

USDA has a broad and far-reaching mission—to enhance agricultural trade, improve farm 

economies and quality of life in rural America, protect the nation’s food supply, improve the 

nation’s nutrition, and protect and enhance the nation’s natural resource base and 

environment. USDA is comprised of 17 agencies and 16 offices that work to accomplish its 

mission. For fiscal year 2012, USDA estimates that it will have outlays of $145 billion. About 

81 percent of the department's outlays (estimated at $117 billion) are associated with 

mandatory programs, including the majority of the nutrition assistance programs, farm 

commodity programs, export promotion programs, and conservation programs. The 

remaining 19 percent of outlays (estimated at $28 billion) are associated with discretionary 

programs, including rural development loans and grants, research and education, and 

management of national forests and other Forest Service activities.

Interior’s mission is to protect and provide access to the nation’s natural and cultural 

heritage and honor trust responsibilities to American Indians and Alaska Natives and 

responsibilities to island communities. Interior is comprised of 9 bureaus and over 30 

offices,19 which work to achieve it mission. The department’s 9 bureaus are responsible for 

500 million acres of America’s public land, or about one-fifth of the land in the United States, 

and approximately 1.76 billion acres of the Outer Continental Shelf. The department’s fiscal 

year 2012 budget was about $10.2 billion and the department estimates that it will raise over 

$14 billion in revenues in fiscal year 2012 collected from, among other things, energy and 

mineral rights, grazing, and timber sales.20

 

19 On October 1, 2011, the Bureau of Ocean Energy Management, Regulation and Enforcement (BOEMRE), 

formerly the Minerals Management Service, was replaced by the Bureau of Ocean Energy Management and the 

Bureau of Safety and Environmental Enforcement as part of a major reorganization. Because we collected 

information from BOEMRE, we include Interior information from 8 bureaus. 20 Interior disburses revenues among federal, state, and tribal governments, while funding reclamation, 

conservation, and preservation accounts.
Page 6 GAO-12-417R USDA and Interior Attorney Fees

Litigation Involving USDA and Interior

Generally, the federal government has immunity from lawsuits, but federal laws authorize 

certain types of lawsuits against USDA and Interior, and the departments may also bring 

lawsuits of their own. In addition, some statutes and agency regulations provide for 

administrative appeals, which involve challenges to agency actions that are resolved within 

the agency. 

The types of actions that involve USDA and Interior are varied. For example, lawsuits may 

involve challenges to certain agency actions—such as under provisions of the Endangered 

Species Act, which permits parties to file challenges to government actions affecting 

threatened and endangered species, or under the National Environmental Policy Act, which 

requires federal agencies to prepare a statement identifying the environmental effects of 

major actions they are proposing or ones for which third parties seek federal approval or 

funding and that significantly affect the environment. Cases may involve other statutes that 

apply governmentwide, such as Title VII of the Civil Rights Act, which prohibits 

discrimination in employment, or the Freedom of Information Act (FOIA), as amended, which 

requires agencies to make certain information available to the public pursuant to a request. 

Additionally, the Administrative Procedure Act authorizes challenges to certain agency 

actions that are considered final actions, such as rulemakings and decisions on permit 

applications. In addition to lawsuits that may be filed against an agency, the agencies may 

also file suit against other parties. For example, USDA and Interior may file suit seeking to 

acquire land through condemnation actions or, like other federal agencies, may seek to 

recover funds from contractors that have failed to fulfill the contracts. 

USDA and Interior attorneys are involved in both administrative appeals and court cases, 

and their role is determined by the type of case involved. For example, USDA officials stated 

that USDA’s Office of the General Counsel represents the department in all Office of 

Administrative Law Judges (OALJ)21 cases and National Appeals Division (NAD) EAJA 

proceedings, but its involvement in other NAD proceedings depends on the circumstances 

of each case.22 When USDA or Interior is party to a lawsuit filed in court, DOJ is generally 

responsible for providing the department’s legal representation, while the departments 

provide technical and subject matter expertise and assist with the case, such as by drafting 

documents for DOJ to file and conducting research.23

• the Environment and Natural Resources Division handles most of the work on 

environmental litigation cases;

Generally, litigation decisions—such 

as whether to settle or litigate a claim, including claims for attorney fees—rest with DOJ. 

DOJ officials stated that three divisions litigate on behalf of USDA and Interior:

• the Civil Division handles a broad range of litigation, including commercial, 

personnel, torts, and consumer protection litigation; and

• the Executive Office for United States Attorneys, which liaises with DOJ and the 94 

U.S. Attorneys Offices that represent the United States in civil and criminal matters 

across the nation and its territories. The cases the Attorneys’ Offices handle overlap 

in some areas of law with those of the other two divisions.

 

21 OALJ conducts rule-making and adjudicatory hearings throughout the United States in proceedings subject to 

the Administrative Procedure Act. In addition, OALJ is responsible for the publication of Agriculture Decisions, 

the official compilation of quasi-judicial and judicial decisions issued concerning regulatory laws administered by 

USDA.

22 NAD is responsible for adjudicating administrative appeals arising from program activities assigned to certain 

USDA agencies as well as other administrative appeals arising from decisions of USDA agencies designated by 

the Secretary of Agriculture. NAD proceedings are subject to the Administrative Procedure Act. 23 The default rule is that DOJ is responsible for all litigation on behalf of the United States and its administrative 

agencies. 28 U.S.C. §§ 516, 519; 5 U.S.C. § 3106.
Page 7 GAO-12-417R USDA and Interior Attorney Fees

The Equal Access to Justice Act and Other Statutes Authorize the Payment of Attorney 

Fees

Generally, in the United States, parties involved in litigation pay their own attorney fees. 

However, there are many statutory exceptions, commonly known as “fee-shifting statutes,” 

that allow for the payment of attorney fees by a losing party to a prevailing party.24 Awards 

of attorney fees may be designed to help to equalize contests between private individual 

plaintiffs and corporate or governmental defendants. Attorney fees provisions may be found 

in civil rights, environmental protection, and consumer protection statutes, among others.25

Many of these fee-shifting provisions are applicable against the federal government. In such 

cases, the attorney fee awards are made under the terms of the relevant statute and are 

generally made from the Treasury Judgment Fund. 

Where these fee-shifting provisions do not apply to the federal government, as well as 

where the underlying statute does not have a fee-shifting provision, EAJA may act to 

authorize such fees. Specifically, EAJA authorizes the award of attorney fees and costs to 

parties that prevail in certain civil actions brought by or against federal agencies, and in 

certain adversary adjudications conducted by federal agencies.26 As the 1980 conference 

committee report for EAJA explains, the act’s premise is that individuals, corporations, 

partnerships, labor, and other organizations choose not to seek review of or defend against 

unreasonable government actions because of the expense involved as well as a disparity in 

expertise and resources between the government and the individual or organization 

involved.27 For those cases brought under statutes that do not make the federal government 

subject to pay fees and costs, EAJA allows payment of the attorney fees and other costs if 

the organizations sought review of a government action and prevailed.28 

Except as otherwise specifically provided by law, EAJA authorizes the award of the following 

costs to be paid from Treasury’s Judgment Fund or an agency’s appropriations, as 

indicated:

• Reasonable attorney fees and expenses of a prevailing party to the same extent as 

any other party where a statutory or common-law exception provides for award of 

fees to a prevailing party.29

 

24 According to the Congressional Research Service, there are roughly 200 statutory exceptions. Congressional 

Research Service, Awards of Attorneys’ Fees by Federal Courts and Federal Agencies (2009).

Accordingly, EAJA makes agencies subject to fee

awards under all of the statute’s provisions authorizing courts to award attorney fees 

and 

25 For example, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-16; Endangered Species Act citizen 

suit provision, 16 U.S.C. § 1540(g)(4); and Equal Credit Opportunity Act, 15 U.S.C. § 1691e(d). 26 In general, until EAJA was enacted, under the principle of sovereign immunity, the federal government was not 

subject to some of these exceptions allowing for the shifting of attorney fees and therefore was not authorized to 

make payments to prevailing parties. However, the relevant provisions of some statutes—for example, 

environmental statutes such as the Clean Air Act and Clean Water Act—were already applicable to the federal 

government thus making the government subject to court awards to prevailing parties independent of EAJA. 27 H.R. Conf. Rep. 96-1434, at 20-27 (1980) (Conference committee report on Pub. L. No. 96-481, The Small 

Business Export Expansion Act of 1980, of which Title II is the Equal Access to Justice Act). 

28 Another common way that prevailing parties may arrange for payment of attorney fees is through a 

contingency fee agreement, where a lawyer’s fee is typically paid from the client’s recovery in a successful suit. 

Because this type of fee payment is not pursuant to a fee-shifting statute, it is not included in the scope of this 

report.

29 The data we collected included payments made under fee-shifting statues, but the data did not identify any 

attorney fees payments made under a common-law exception, such as the bad faith doctrine.
Page 8 GAO-12-417R USDA and Interior Attorney Fees

expenses.

30

• Attorney fees and expenses of a prevailing party in most other cases—that is, when 

the relevant statute does not authorize courts to award attorney fees and expenses, 

and no common-law exception applies—unless the court finds that the position of the 

United States was substantially justified or that special circumstances make an 

award unjust.

Payment of awards made under this section generally is made from 

Treasury’s Judgment Fund. 

31 As a result, in cases involving USDA or Interior under these statutes 

and provisions, courts award payment of fees under EAJA section 2412(d).32

• Reasonable attorney fees and expenses of a prevailing party in adversarial 

adjudications, unless the court finds that the position of the United States was 

substantially justified or that special circumstances make an award unjust. Payment 

of awards made under this section is generally made from agency appropriations.

Payment of awards made under this section is generally made from agency 

appropriations. 

EAJA also authorizes the award of court costs of prevailing parties against the United States 

in any civil action. These costs may include fees for the clerk and marshal, reporter, printing, 

witnesses, copies, docket fees, and interpreters and court-appointed experts and may 

include an amount equal to the filing fees. Payment of costs made under this section 

generally is paid by Treasury’s Judgment Fund. 

In addition, to settle a case, the government may agree to pay a plaintiff’s court costs and 

attorney fees and expenses. Payments made in connection with settlements are paid in the 

same manner as those to fulfill a court award for the case.

Certain statutes authorizing the federal government to pay damages and attorney fees 

specify that the payments are to come from agency appropriations. For example, under the 

Notification and Federal Employee Antidiscrimination and Retaliation Act of 200233 and the 

Contract Disputes Act,34 agencies are required to reimburse the Judgment Fund for 

judgments against the agency, and in 2007, FOIA was amended to provide that fees and 

costs must be paid from agency appropriations, not the Judgment Fund.35 With respect to 

these types of provisions, we and Congress have noted that requiring awards to be paid 

from agency appropriations can promote accountability.36 Attorney fee payments made 

under EAJA section 2412(d) are also made from agency appropriations.

The payment process differs based on the statute involved and whether the award was 

made at the administrative level or through the courts, as shown in figure 1.

 

30 This provision does not limit the eligibility of prevailing plaintiffs, and the statute requires that the fees be 

“reasonable” rather than impose a specific cap on the hourly rate of attorney fees for payment purposes. In 

addition, any fees awarded under this section are subject to any limitations that would apply to analogous awards 

against private parties, which may be provided by an underlying statute. 31 EAJA authorizes the award of these fees against the federal government in civil court actions, excluding tort 

cases, such as personal injury suits. 

32 This section limits the prevailing plaintiff’s eligibility to receive payment by defining an eligible party as, at the 

time the lawsuit is filed, either an individual with a net worth of $2 million or below or a business owner or any 

partnership, corporation, association, local government, or organization with a net worth of $7 million or below 

and 500 or fewer employees. However, tax-exempt nonprofit organizations and certain agricultural marketing 

cooperatives are considered eligible parties regardless of net worth. 33 Pub. L. No. 107-174, § 201(b), 116 Stat. 568 (2002), see 5 U.S.C. § 2301 note. 34 Pub. L. No. 111–350, § 3, 124 Stat. 3825 (2011), codified at 41 U.S.C. § 7108(c). 35 OPEN Government Act of 2007, Pub. L. No. 110-175, § 4(b) (5 U.S.C. § 552 note). 36 See Pub. L. No. 107-174, § 101(8), and GAO, The Federal Workforce: Observations on Protections From 

Discrimination and Reprisal for Whistleblowing, GAO-01-715T (Washington, D.C.: May 9, 2001). Some of these 

statutes have established specific reporting requirements.
Page 9 GAO-12-417R USDA and Interior Attorney Fees

Figure 1: Typical Process for Administrative and Judicial Cases Resulting in Attorney Fee Payments

Note: According to USDA, in some instances fees are paid initially out of the Judgment Fund but ultimately out of agency 

appropriations through a reimbursement to the Judgment Fund.

Most USDA and Interior Agencies Did Not Have Readily Available Attorney Fee 

Information, Generally Citing Few and Minimal Payments 

Most USDA and Interior agencies did not have readily available information on attorney fee 

claims and payments made under EAJA and other fee-shifting statutes for fiscal years 2000 

through 2010. As a result, it is difficult to readily determine who made claims, the total 

amount each department paid or awarded in attorney fees, who received the payments, or 

the statutes under which the cases were brought over the 11-year period. Both USDA and 

Interior officials stated that given the decentralized nature of their departments and the 

absence of an external requirement to track or report on attorney fee information, the 

information is not centrally tracked and decisions about whether to track attorney fee data 

and the manner in which to do so are best handled at the agency level.37

 

37 The financial management system for each department includes information on litigation costs. However, the 

information in the systems does not isolate attorney fees and costs from damages (i.e., payments awarded to 

prevailing parties as a result of the case, which are not related to attorney fees or costs). 

Accordingly, we 

contacted 75 agencies within USDA and Interior to obtain their available attorney fee 

information. In response, officials from 65 of the 75 USDA and Interior agencies told us that 

they did not track or could not readily provide us with this information. These officials 

generally stated that they did not track attorney fee information because their agencies deal 

with few or no attorney fee cases, the payment amounts are minimal, another agency within 

the department tracked this information (e.g., USDA’s Office of the Assistant Secretary for 

Civil Rights (OASCR) tracks attorney fees arising from employee discrimination complaints), 

or the information was not needed for internal management purposes. For example, an 

Acting Director in the USDA Farm Service Agency stated that because so few cases are 

filed against the agency, there is little value in tracking the data. Additionally, the Finance 
Page 10 GAO-12-417R USDA and Interior Attorney Fees

Officer for Interior’s Office of the Secretary—an office that represents 28 agencies—stated 

that the attorney fee payment amounts are so small that information on these payments is 

not needed for internal management purposes. However, one of the agencies that did not 

track attorney fee information for the 11-year period—USDA’s Natural Resources 

Conservation Service (NRCS)38

The remaining 10 USDA and Interior agencies we contacted either had mechanisms to track 

information on attorney fees or were able to compile this information manually using hard 

copy files or directed us to publicly available information sources where we could obtain the 

information. Specifically, 3 USDA agencies—a program agency (Forest Service), an agency 

that conducts hearings of administrative appeals of adverse actions by certain USDA 

agencies (NAD), and an agency that adjudicates employee discrimination complaints 

(OASCR)—track attorney fee and cost information.

—plans to pilot a litigation case management database 

system in March 2012 that would track this information, and have the database fully 

operational by the summer of 2012. The database is to be used to track and monitor 

appeals, mediation cases, litigation (including attorney fees), and improper payments for 

NRCS nationwide. According to the NRCS Director of Compliance, tracking this information 

in a database will allow managers to gather case information more quickly and produce 

reports, and will help hold managers accountable.

39,40 Additionally, 2 Interior agencies—a 

program agency (U.S. Fish and Wildlife Service (USFWS)) and an agency that adjudicates 

administrative hearings and appeals (Office of Hearings and Appeals (OHA))—tracked this 

information.41 Officials from 4 of these agencies stated that tracking attorney fee information 

provided for increased transparency and better decision making. For example, Forest 

Service officials stated that attorney fee information could be used to help gauge whether 

attorney fees requested in pending litigation are reasonable, address congressional 

concerns about transparency and accountability, and reduce the need for data calls to the 

regional offices for this information. To this end, according to officials, in March 2009, the 

Forest Service implemented a code in its financial management system that enables the 

agency to track EAJA payments.42

Additionally, 4 Interior agencies—the Bureau of Land Management (BLM), the Office of the 

Special Trustee for American Indians (OST), the Office of the Inspector General (OIG), and 

the Office of the Solicitor—manually compiled attorney fee information, and officials from 3 

Additionally, the USFWS Chief of the Office of Program 

Support for the Endangered Species Program said that tracking attorney fee data allows the 

Washington office to better understand where it spends its funds—providing a more 

accurate budget picture. Further, Interior’s Director of OHA stated that Congress and the 

public, among others, should know the cost of Interior’s programmatic decisions, including 

attorney fee payments.

 

38 NRCS provides landowners with technical assistance for multiple programs to plan and implement 

conservation measures that protect soil, water, and wildlife. 39 The Forest Service is responsible for managing its lands for various purposes—including recreation, grazing, 

and timber harvesting—while ensuring that such activities do not impair the lands' long-term productivity. OASCR 

provides overall leadership, coordination, and direction for USDA’s civil rights programs, including matters 

related to program delivery, compliance, and equal employment opportunity. 

40 In general, USDA and Interior agencies that adjudicate administrative hearings and appeals do not maintain 

attorney fee information on cases filed in court. 

41 USFWS’s mission is to work with others to conserve, protect, and enhance fish, wildlife, and plants and their 

habitats for the continuing benefit of the American people. OHA exercises the delegated authority of the 

Secretary of the Interior to conduct hearings and decide appeals based on decisions of the bureaus and offices 

of the department.

42 Prior to implementing the code, the Forest Service tracked some attorney fee payment information in a 

spreadsheet. According to Forest Service officials, the new code will capture EAJA payments made from agency 

appropriations—primarily those under EAJA section 2412(d).
Page 11 GAO-12-417R USDA and Interior Attorney Fees

of these agencies identified challenges to doing so.43

Treasury and DOJ also maintain certain data on some USDA and Interior cases involving 

attorney fee payments, but DOJ’s data are not readily retrievable or complete. Specifically, 

Treasury maintains information on attorney fees paid from the Judgment Fund on behalf of 

USDA and Interior in its Judgment Fund Internet Claims System (JFICS), which is designed 

to track all Judgment Fund payments (including damages and other categories of payments, 

as well as attorney fees). DOJ maintains certain case management data on individual court 

cases in three internal agency databases, but officials stated that these databases do not 

reliably capture attorney fees and costs.

For example, the Interior Solicitor’s 

Office requested that attorneys in its headquarters and regional offices manually review 

litigation files as well as rely on their memories to identify EAJA cases—a method officials 

stated was labor intensive and difficult to implement for data spanning multiple years. In 

addition, officials in the Solicitor’s Office said that turnover among attorneys who had 

knowledge of cases that resulted in attorney fee payments affected their ability to manually 

compile case information. Finally, USDA’s OALJ directed us to publicly available sources on 

cases. We found that when compiling information from these sources, it took days to search 

through public records to identify such cases and collect attorney fee data.

44 DOJ officials said that their databases were 

designed for internal management purposes and not for agencywide statistical tracking. 

Over time, some EAJA data have been entered into the databases; however, the agency 

does not have a mechanism for determining what percentage of total EAJA awards is in the 

database or if the data were entered consistently. Furthermore, even though funds are spent 

to maintain the databases, the databases are old and adding data fields or otherwise 

making changes may be technologically infeasible or too costly. As a result, DOJ attorney 

fee data must be obtained by manual review of individual case files. Given that DOJ handled 

tens of thousands of cases over the 11-year period on behalf of USDA and Interior, we 

could not readily or systematically review all of the case files to determine the attorney fee 

awards. 

Table 1 identifies the extent to which attorney fee information varied at the 10 USDA and 

Interior agencies that had attorney fee information available and Treasury for the 11-year 

period. 

 

43 BLM is responsible for managing about 250 million acres of federal land for multiple uses, including recreation; 

range; timber; minerals; watershed; wildlife and fish; and natural, scenic, scientific, and historical values, as well 

as for the sustained yield of renewable resources. OST was created to improve the accountability and 

management of Indian funds held in trust by the federal government. The Interior OIG provides independent 

oversight of the department’s programs, operations, and management. The Office of the Solicitor performs legal 

work for Interior, manages Interior’s Ethics Office, and resolves FOIA appeals. 44 DOJ officials said that they are not in the best position to collect and report information on attorney fees and 

costs because they are often not aware of administrative cases.
Page 12 GAO-12-417R USDA and Interior Attorney Fees

Table 1: Number of Attorney Fee Cases and Selected Characteristics of Data Available at USDA and Interior Agencies 

and Treasury

Number of 

cases/

payments 

recorded 

in data 

source

Method of 

tracking a

Time

frame for 

which data 

are 

available 

(fiscal 

years)

Claims 

for 

attorney 

fees 

filed, but 

denied

Name 

of 

party

Name 

of 

payee

Amount 

paid

Amount 

awarded/

settled

Statute(s) 

under 

which the 

cases 

were 

brought

USDA: Data available from 4 of 33 agencies

Forest 

Service

241 Spreadsheet b 2000-2010c X Xd X

32

Financial 

database b 2009-2010c X X

OASCR 419

iComplaint 

database 2005-2010 X X X X X 

NAD 23 e NADTrack database 2005-2010 X X X n/a

OALJ

f 

7

We manually 

compiled the 

information 

using publiclyavailable 

databases and 

discussions with 

agency officials 2000-2010 X X X X X

Interior: Data available from 6 of 42 agencies

USFWS 26 Spreadsheet b 2004-2010c X X d X X

BLM

d

9

BLM officials 

manually 

compiled the 

information from 

payment files b 2009-2010c X X X X

 

X

OST

d

1

Officials 

manually 

compiled the 

information by 

surveying office 

components 2007c X

OHA 75

Docket 

Management 

System 

database b 2000-2010 X X X X X

Inspector 

General 1

Officials 

manually 

compiled the 

information from 

legal files 2007-2010 X X X X X

Solicitor’s 

Office 18

Officials 

manually 

compiled the 

information by 

surveying 

headquarters 

and regional 

offices b 2010 X X X d d X X

Treasury: Data available for USDA and Interior

d

525 JFICS 2001-2010c X X X X

Source: GAO analysis of USDA, Interior and Treasury data and interviews with agency officials.

Note: The number of cases identified in this table should not be considered comprehensive or precise. This table represents 

the number of cases and amount of information we were able to identify from USDA and Interior where information was 

available. 
Page 13 GAO-12-417R USDA and Interior Attorney Fees

a

Some sources provided case information while other sources provided payment information. Multiple payments might be 

associated with one case.

b

At least one case overlapped with case information provided by another source. For example, the Solicitor’s Office data 

overlapped with data provided by USFWS and BLM. In addition, 29 of 32 payments in the Forest Service financial database 

were also included with the 241 cases in the spreadsheet.

c

Data are incomplete over the identified timeframe, that is, agency officials were not sure that they had provided the complete 

universe of cases. For example, Forest Service spreadsheet data include only environmental cases and do not include other 

types of cases, such as those brought under FOIA. Treasury data are available beginning in March 2001. d

These data sources contain the information for some, but not all, cases. For example, for USFWS some cases include the 

name of the party, while other cases do not. 

e

According to USDA officials, NAD does not track payee information because all NAD cases are paid under EAJA’s 

administrative provision, 5 U.S.C. § 504, which stipulates that any attorney fees and costs awarded are payable to the 

prevailing party, not to the attorney. As such, the prevailing parties are responsible for distributing any award to their legal 

representatives. f

All NAD cases arise from the same statute, 7 U.S.C. § 6996, providing a right of hearing for adverse decisions; thus, according 

to USDA officials, it is not necessary for NAD to track the statute relevant to each case.

Given the differences in attorney fee information available across the 10 agencies that 

provided information and Treasury and the limitations identified below, it is difficult to 

comprehensively determine the total number of claims filed for attorney fees, who received 

payments, in what amounts, and under which statutes.45

• The total number of claims filed for attorney fees cannot be determined. Five 

USDA and Interior agencies that provided information on attorney fee data did not 

maintain data about claims for attorney fees that were filed but denied. As a result, 

the number of claims filed may be understated for these agencies. 

• Information on who received the payment is not always recorded. Payment of 

attorney fees may be made to one or more parties or directly to the attorney. 

Agencies that had information on attorney fees sometimes identified a particular 

party in the case, as opposed to who received payments. For example, all 241 of the 

cases provided in the Forest Service spreadsheet identified the first named party, but 

46 cases did not identify the payee. Given that attorney fees may be paid to the first 

named party, to other parties in the case, or to attorneys, the first named party may 

not reliably identify who actually received the attorney fee payment.46

• Data on actual attorney fee payments made are not consistently available. Four 

agencies provided information on award or settlement amounts rather than payment 

amounts.47

 

45 Notwithstanding the limitations identified, using the various sources of information, we were able to identify 

some information about USDA and Interior agencies’ attorney fee payments or awards. This information is 

included in enc. II. 

Amounts awarded reflect the attorney fee award included in a decision or 

settlement, and amounts paid reflect the actual amount paid by the agency. 

According to DOJ officials, award or settlement amounts may differ from payment 

amounts because award amounts may increase due to added interest expense 

before payment is disbursed. Moreover, DOJ and agency officials stated that award 

or settlement amounts may increase or decrease as a result of subsequent legal 

proceedings (e.g., a prevailing party could appeal the award amount, which could 

change the amount ultimately paid by the agency). In addition, decisions and 

settlement agreements may not separate attorney fees and costs from damages, 

which prevents agencies and Treasury from knowing exactly how much was 

allocated for each purpose. In these instances, the attorney fee amounts cannot be 

determined.

46 For example, we reviewed the 32 attorney fee and cost payments within the Forest Service’s financial 

database. For 22 of the 32 payments, the payee did not match the first named party identified in the Forest 

Service spreadsheet. We could not make a determination for 2 payments because the data did not include

sufficient information. Another payment was excluded from the analysis because it pertained to an administrative 

case. In the remaining 7 payments, the payee and party matched. 47 In addition, the Forest Service spreadsheet data included award, not payment, amounts.
Page 14 GAO-12-417R USDA and Interior Attorney Fees

• Statutes under which the case was brought are not always recorded. Two 

agencies did not track information on the statutes underlying the award or payment. 

For example, the Forest Service financial database does not have a statute field, and 

according to the official who collected the spreadsheet data, he did not research 

statute information because of time constraints. However, the Forest Service has a 

general idea of statutes giving rise to attorney fee payments.48 

Some in Congress have identified a need for public reporting of attorney fee payment 

information, such as who made claims for payment, which claims were approved, and the 

amount paid for each approved claim, to provide better transparency and accountability.49

For example, the House report accompanying the Department of the Interior, the 

Environmental Protection Agency, and Related Agencies appropriations bill for fiscal year 

2012 noted that appropriators need information on how attorney fees are affecting agency 

budgets to prepare an accurate and responsible budget.50 While the law itself did not 

impose a requirement, the report directed USDA’s Forest Service, Interior bureaus, and EPA 

to provide to the House and Senate Committees on Appropriations and the public specific 

information related to attorney fee payments made under EAJA.51 A Forest Service 

Assistant Deputy Area Budget Coordinator stated that the agency plans to (1) report fiscal 

year 2011 EAJA payments—including information on the case name, award recipient, 

amount of program funds used, and date paid—to the committees by May 1, 2012; (2) 

include EAJA payment information for subsequent fiscal years in its annual budget 

justification; and (3) report EAJA payments on its website. This official said that the Forest 

Service does not track all of the data the House report directs it to provide, such as data on 

payments made for litigation related to the Endangered Species Act and the disposition of 

applications for EAJA attorney fees, but that the agency plans to determine by May 1, 2012 

whether it will collect these data for future reports.52 Interior officials said that in February 

2012 they provided the committees with the fiscal year 2010 EAJA data that the department 

had available. The department plans to provide the committees with available fiscal years 

2011 and 2012 EAJA information, but has not yet determined when it will be able to do so. 

Beginning with the fiscal year 2014 budget submission, Interior plans to include summary 

EAJA information for the prior fiscal year. Interior is working to determine how to track this 

information departmentwide.

 

48 This official estimated that between two-thirds and three-quarters of the Forest Service natural resource cases 

involve challenges under the National Environmental Policy Act, National Forest Management Act, Endangered 

Species Act, or a combination of these acts. 49 See, e.g., Government Litigation Savings Act ,H.R. 1996 and S.1061, 112th Cong. (2011); Jobs Through 

Growth Act, S. 1720, 112th Cong. (2011); Casting Light on EAJA Agency Records for Oversight Act of 2011, S. 

549, 112th Cong. (2011); Judgment Fund Transparency Act of 2011, H.R. 1446, 112th Cong. (2011); and S. 

2042, 112th Cong. (2012). 50 H.R. Rep. No. 112-151, at 8-9 (2011). See also H.R. Rep. 112-331, at 1046 (2011) (Conf. Rep.). 51 The report directed Interior bureaus, the Forest Service, and EPA to make publicly available, no later than 60 

days after the enactment of this act, and with each agency’s annual budget submission thereafter, certain 

information on attorney fee payments awarded as a result of litigation against any of the three agencies or their 

respective bureaus. For example, the report calls for the agencies to provide detailed reports on the amount of 

program funds used; the names of the fee recipients; and the disposition of the applications for attorney fees, 

including any appeals of actions taken on the applications. To provide context, we asked the relevant agencies 

that are the focus of this report—Interior and Forest Service—how they are responding to the committee report 

direction.

52 The Forest Service does collect data on litigation payments that include attorney fees and costs and damages, 

awarded under non-EAJA statutes, some of which may result from cases arising under the Endangered Species 

Act as well as other statutes. However, the mechanism for collecting these data (through use of a budget object 

code) does not differentiate among these statutes, so it cannot be used to identify only those payments made in 

connection with the Endangered Species Act. As noted in enc. II, in the past the Forest Service manually 

compiled some information on attorney fee payments that included cases filed under the Endangered Species 

Act, but this information has other limitations.
Page 15 GAO-12-417R USDA and Interior Attorney Fees

Agency Comments

We requested comments on a draft of this report from USDA, Interior, Treasury, and DOJ. 

The departments did not provide official written comments to include in our report. However, 

in e-mails received on March 20, 2012, and March 21, 2012, the USDA, Interior, and DOJ 

liaisons provided technical comments that we incorporated as appropriate. Also, the 

Treasury liaison stated that the department had no comments on our report in an e-mail 

received on March 20, 2012. 

- - - - - 

As agreed with your offices, unless you publicly announce the contents of this report earlier, 

we plan no further distribution until 30 days from the report date. At that time, we will send 

copies to the appropriate congressional committees; the Secretaries of Agriculture, the 

Interior, and the Treasury; the Attorney General; and other interested parties. In addition, the 

report will be available at no charge on the GAO website at http://www.gao.gov. 

If you or your staff members have any questions about this report, please contact me at 

(202) 512-8777 or jenkinswo@gao.gov. Contact points for our Offices of Congressional 

Relations and Public Affairs may be found on the last page of this report. GAO staff who 

made key contributions to this report are listed in enclosure III.

William O. Jenkins, Jr.

Director, Homeland Security and Justice

Enclosures – 3 
Page 16 GAO-12-417R USDA and Interior Attorney Fees

List of Requesters

The Honorable Lisa Murkowski 

Ranking Member

Subcommittee on Interior, Environment, and Related Agencies

Committee on Appropriations

United States Senate

The Honorable John Barrasso, M.D.

United States Senate

The Honorable Michael B. Enzi

United States Senate

The Honorable John McCain

United States Senate 

The Honorable David Vitter

United States Senate 

The Honorable Frank D. Lucas

Chairman 

Committee on Agriculture

House of Representatives

The Honorable Lamar Smith

Chairman 

Committee on the Judiciary 

House of Representatives

The Honorable Michael K. Simpson

Chairman

Subcommittee on Interior, Environment, and Related Agencies

Committee on Appropriations

House of Representatives

The Honorable Rob Bishop

House of Representatives

The Honorable Cynthia M. Lummis

House of Representatives
Page 17 GAO-12-417R USDA and Interior Attorney Fees

Enclosure I: Scope and Methodology

This report addresses the extent to which the Department of Agriculture (USDA) and the 

Department of the Interior (Interior) had information available on attorney fee claims and 

payments made under the Equal Access to Justice Act (EAJA) and other fee-shifting 

statutes for fiscal years 2000 through 2010, including who made claims for payment, which 

claims were paid, the amount paid for each approved claim, and the statutes under which 

the case was brought.

53 

To inform our analysis and to understand the statutory basis under which attorney fee 

payments are made, we reviewed the statutory text of EAJA and selected other fee-shifting 

statutes. We also reviewed relevant background information, such as EAJA-specific 

research and congressional testimonies, to understand the history of attorney fee payments. 

Additionally, we reviewed available Administrative Conference of the United States (ACUS) 

annual reports on administratively awarded EAJA payments issued from fiscal years 1982 

through 1994 and interviewed ACUS officials to determine how ACUS collected information 

on attorney fees paid prior to 1995.54 In addition, we interviewed USDA, Interior, Department 

of the Treasury (Treasury), and Department of Justice (DOJ) officials to gain an 

understanding of the processes used by each to make attorney fee payments. In these 

interviews, we also asked officials to discuss any benefits and challenges of tracking 

attorney fee payments under EAJA and other fee-shifting statutes. 

To determine the extent to which USDA and Interior tracked data on attorney fees, we 

contacted 33 USDA and 42 Interior agencies;55 Treasury; and DOJ’s Civil Division, 

Environment and Natural Resources Division, and the Executive Office of U.S. Attorneys. 

We asked each agency if it maintained information on cases where attorney fees were 

sought, and for those that maintained this information, we asked them to provide the case 

name, party name, claim amount, date of the award or payment, payment amount, and 

statutes under which the cases were brought for fiscal years 2000 through 2010. Our scope 

included attorney fees involving USDA and Interior, namely those associated with 

administrative adjudications of claims as well as cases filed with the courts. Our scope 

included attorney fee payments regardless of the source of law authorizing the payment—

independently applicable statutory fee-shifting provisions, EAJA subsection (b) or (d), or 

EAJA’s adversarial adjudication provisions—and regardless of whether the fees were paid 

from Treasury’s Judgment Fund or from an agency’s appropriations. Payments of all other 

costs without a corresponding payment of attorney fees were outside of our scope.56 The 

results of our work should not be generalized beyond these two departments to draw 

conclusions about governmentwide attorney fees.

 

53 Pub. L. No. 96-481, tit. II, 94 Stat. 2321, 2325 (1980) (codified as amended at 5 U.S.C. § 504; 28 U.S.C. 

§ 2412). 54 EAJA originally required the Director of the Administrative Office of the U.S. Courts to report annually to 

Congress on EAJA court activity, including the number, nature, and amounts of awards; claims involved; and any 

other relevant information deemed necessary to aid Congress in evaluating the scope and effect of award under 

the act. The responsibility for this reporting was transferred to the Attorney General in 1992.

55 USDA and Interior agencies, offices, and bureaus are referred to as agencies for purposes of this report. 56 Other costs include court costs, such as filing fees and reporting fees, and attorney expenses, such as the cost 

for expert witnesses, telephone, postage, travel, copying, and computer research.
Page 18 GAO-12-417R USDA and Interior Attorney Fees

The USDA and Interior agencies described in table 2 provided information on attorney fees. 

Table 2: USDA and Interior Data Sources Identified

Department/agency Data source

USDA

Forest Service Federal Financial Information System and 

payment log spreadsheet

Office of the Assistant Secretary for Civil Rights iComplaint database

National Appeals Division NADTrack database

Office of Administrative Law Judges Agriculture Decisions

Interior

a

U.S. Fish and Wildlife Service Endangered Species Act tracking 

spreadsheet

Office of Hearings and Appeals Docket Management System

Bureau of Land Management Case file information

Office of the Inspector General

a

Case file information

Office of the Solicitor

a

Case file information

Office of the Special Trustee for American Indians

a

Payment documentation

Source: GAO analysis of USDA and Interior data.

a

a

Information obtained from these sources was manually compiled.

We analyzed the data gathered from each USDA and Interior data source identified in table 

2 to determine the extent to which complete and consistent information was available across 

all sources. Specifically, we determined the time frame in which data were available as well 

as whether the data source included information about the party and payee, claims that 

were denied, the statutes under which the cases were brought, and the award and payment 

amount. As part of this analysis and to the extent data were available for each agency, we 

determined the total amount of attorney fees awarded or paid and the number of cases filed

as well as the statutes under which the cases were brought. When other costs were 

separated from attorney fees, we reported the total amount of attorney fees and other costs. 

When attorney fees were not separated from other costs in decisions and settlement 

agreements, we also reported a total amount for attorney fees and costs. Therefore, the 

amounts reported may overstate attorney fees paid or awarded; however, other costs are 

generally minimal in comparison to attorney fees. In addition, we did not include payments 

with damages if damages could not be isolated from attorney fees and costs. Also, to the 

extent sufficient data were available (i.e., a sufficient number of cases and fiscal years), we 

analyzed the data to identify any trends, such as a larger number of payments made in a 

particular fiscal year(s). In addition, we analyzed the data on statutes authorizing attorney 

fees as identified by agencies to determine which such statutes were most frequently 

identified in cases in which parties were awarded attorney fees where such data were 

available and complete. 

As part of our USDA and Interior data analysis, we took appropriate steps to assess the 

reliability of each data source. We reviewed relevant documents and interviewed managers 

of the various data systems about the sources of these data and the controls the agencies 

had to maintain the integrity of these data. In addition, we interviewed individuals 

responsible for compiling information on attorney fees payments to obtain information on the 

processes and procedures the agencies followed to help ensure the reliability of the data. To 

the extent necessary, we used other publicly available sources (e.g., Public Access to Court 

Electronic Records) or information available on agency web sites) to verify the accuracy and 

completeness of the information. When using publicly available information to corroborate 

manually compiled data, we discussed our results with agency officials to help ensure 

accuracy and completeness. When publicly available information was not available, we 

worked with agency officials to ensure the reliability of the manual information provided, 
Page 19 GAO-12-417R USDA and Interior Attorney Fees

which, in some cases, included reviewing source documentation. Based on these steps, we 

determined that the data were sufficiently reliable for the purposes of illustrating the nature 

and limitations of the data collected and maintained in the various agency systems. 

Limitations in the data that we identified for each of the data sources are noted in the report 

as needed.

In addition, we obtained information for court-filed cases for which payments were made 

from Treasury’s Judgment Fund from the Judgment Fund Internet Claims System (JFICS) 

beginning March 2001—the first date in which data are available—through fiscal year 2010. 

This information included case name, payee name, date of the payment, payment amount, 

and statute under which the case is brought. We analyzed the JFICS data to determine the 

total amount and number of payments Treasury made on behalf of USDA and Interior as 

well as the statutes most frequently giving rise to cases in which USDA and Interior paid 

attorney fees. When we identified errors or inconsistencies, we followed up with Treasury 

officials to resolve them. Also, we analyzed the data to identify any trends, such as a larger 

number of claims filed in a particular fiscal year(s). As part of our analysis of the JFICS data, 

we assessed the reliability of the data to ensure that they were sufficiently reliable for the 

purposes of this report. We reviewed relevant documents and interviewed JFICS managers 

about the controls Treasury had to maintain the integrity of these data and the processes 

and procedures Treasury followed to help ensure the reliability of the data. We determined 

that the JFICS data were sufficiently reliable for the purposes of this report. 

We attempted to obtain information from DOJ agencies, but DOJ officials stated that the 

department’s case management systems may not contain complete and accurate 

information related to attorney fees and costs. These officials stated that the department’s 

case management systems were designed for internal management purposes (e.g., to 

manage individual cases) and not for agencywide statistical tracking. As a result, we 

determined that DOJ data were not sufficiently reliable for purposes of this report. Additional 

information about this limitation is discussed earlier in this report.

Finally, to gain additional perspective on USDA and Interior attorney fee payments under 

EAJA and other fee-shifting statutes, we interviewed stakeholders, such as representatives 

of eight environmental groups, two trade associations, and a law office. We identified these 

individuals in part through a review of our prior work as well as through an iterative process, 

often referred to as “snowball sampling,” and selected for interviews those who would 

provide us with a broad range of perspectives on attorney fee payments. We selected a 

nonprobability sample of stakeholders to interview and, therefore, the information gathered 

from key stakeholders is not generalizable beyond the individuals we interviewed. However, 

these interviews helped enhance our analysis of attorney fee payments and awards during

the period of our review.

We conducted our work from May 2011 to April 2012 in accordance with all sections of 

GAO’s Quality Assurance Framework that are relevant to our objectives. The framework 

requires that we plan and perform the engagement to obtain sufficient and appropriate 

evidence to meet our stated objectives and to discuss any limitations in our work. We 

believe that the information and data obtained, and the analysis conducted, provide a 

reasonable basis for any findings and conclusions in this product.
Page 20 GAO-12-417R USDA and Interior Attorney Fees

Enclosure II: Information on Attorney Fees Awarded or Paid at Selected USDA and 

Interior Agencies and Treasury

In the United States, parties involved in federal litigation generally pay their own attorney 

fees. There are many exceptions to this general rule where statutes authorize the award of 

attorney fees to a successful, or prevailing, party. Some of these provisions also apply to the 

federal government when it loses a case. In 1980, Congress passed the Equal Access to 

Justice Act (EAJA)57 to allow parties that prevail in cases against federal agencies to seek 

reimbursement from the federal government for attorney fees, where doing so was not 

previously authorized. The premise of EAJA was to help ensure that decisions to contest 

administrative actions are based on the merits and not the cost of litigation, thereby 

encouraging agencies to base such actions on informed deliberation. Although all federal 

agencies are generally subject to, and make payments under, attorney fee provisions, some 

in Congress have expressed concerns about the use of taxpayer funds to make attorney fee 

payments with agencies’ limited funding, such as concerns that environmental organizations 

are using taxpayer dollars to fund lawsuits against the government, particularly against the 

Department of Agriculture (USDA), the Department of the Interior (Interior), and the 

Environmental Protection Agency.58

In the context of judicial cases—those brought in a court, including those that are settled—

the law generally provides for three ways that prevailing parties can be eligible for the 

payment of attorney fees by the federal government. First, many statutes contain provisions 

authorizing award of attorney fees from a losing party to a prevailing party. Many of these 

apply to the federal government;59 for example, most claims under the Endangered Species 

Act and those under Title VII of the Civil Rights Act of 1964 apply to the federal government 

independent of EAJA. Second, where there is a “fee-shifting statute” that allows for the 

payment of attorney fees by a losing party to a prevailing party but that is not independently 

applicable to the federal government, EAJA provides that the government is liable for 

reasonable attorney fees to the same extent as a private party (i.e., claims paid under EAJA 

subsection (b)).60 Under these first two ways that a party may obtain attorney fees from the 

federal government, when a party prevails in litigation against the government and is 

awarded attorney fees under court order or settlement,61 the amounts generally are paid 

from the Department of the Treasury’s (Treasury) Judgment Fund (a permanent, indefinite 

appropriation that pays judgments against federal agencies that are not otherwise provided 

for by other appropriations).62

 

57 Pub. L. No. 96-481, tit. II, 94 Stat. 2321, 2325 (1980) (codified as amended at 5 U.S.C. § 504; 28 U.S.C. 

§ 2412).

Third, EAJA provides that in any civil action where there is no 

fee-shifting statute, prevailing parties generally shall be awarded attorney fees when the 

government cannot prove that its action was substantially justified (i.e., claims paid under 

58 See, for example, GAO, Private Attorneys: Selected Attorneys’ Fee Awards Against Nine Federal Agencies in 

1993 and 1994, GAO/GGD-96-18 (Washington, D.C.: Oct. 31, 1995), and Equal Access to Justice Act: Its Use in 

Selected Agencies, GAO/HEHS-98-58R (Washington, D.C.: Jan. 14, 1998). 59 Some such provisions, however, cannot be used independently of EAJA to award fees against the federal 

government because the particular provisions do not effect a waiver of the federal government’s sovereign 

immunity. 60 This provision provides that the United States is liable for such fees and expenses to the same extent that any 

other party would be liable under the common law or the terms of any statute that specifically provides for such 

an award. 28 U.S.C. § 2412(b). 61 For purposes of this report, we use "awarded" to reflect attorney fees that are awarded by administrative or 

court decisions as well as those provided in settlements.

62 31 U.S.C. § 1304. Regarding payments of attorney fees under the statutory fee-shifting provisions 

independently applicable to the federal government, these are generally paid from the Judgment Fund unless the 

statute at issue provides otherwise. Regarding EAJA subsection (b) payments, an exception is that where a court 

finds an agency acted in bad faith, the payment cannot be made from the Judgment Fund. 
Page 21 GAO-12-417R USDA and Interior Attorney Fees

EAJA subsection (d)).63 These awards or settlements are paid from the losing agency’s 

appropriation. Where a federal agency is engaged in judicial litigation, as a plaintiff or a 

defendant, the Department of Justice (DOJ) generally provides legal representation for the 

government. 

In adversary administrative adjudications—generally, appeals that are brought in a special 

agency forum, rather than in a court, and in which the government position is represented—

a separate provision of EAJA applies. Specifically, EAJA provides that in adversary 

adjudications the government is liable to a prevailing party for reasonable attorney fees 

when the government cannot prove that its action was substantially justified.64 Other 

statutes, such as Title VII of the Civil Rights Act of 1964, also authorize the payment of 

attorney fees in administrative proceedings. When such fees are awarded or agreed to in a 

settlement, they are generally paid from the agency’s appropriated funds.65 According to 

DOJ officials, this adversarial subset of administrative proceedings for which the government 

may be liable for attorney fees represents a relatively small proportion of governmentwide 

administrative proceedings.

We refer to attorney fees any time such fees were paid, regardless of the source of law 

authorizing the payment—independently applicable statutory fee-shifting provisions, EAJA 

subsection (b) or (d), or EAJA’s adversarial adjudication provisions—and whether awarded 

by a court or administrative forum or provided in a settlement. 

USDA’s Forest Service

The Forest Service manages over 190 million acres of forest and grassland. The agency is 

responsible for managing its lands for various purposes—including recreation, grazing, and 

timber harvesting—while ensuring that such activities do not impair the lands’ long-term 

productivity. This work is carried out at more than 150 national forests, grasslands, and 

research sites located across the country. 

The Forest Service gathered information on attorney fees and cost awards associated with 

cases from three sources—Forest Service regional officials, a Forest Service-commissioned 

university study, and publicly available court documents—and maintained this information in 

a spreadsheet. Specifically, the spreadsheet tracked the amounts of attorney fees and costs 

awarded or settled, among other items, for environmental litigation, including cases filed 

under the National Environmental Policy Act, National Forest Management Act, and 

Endangered Species Act. Forest Service officials told us that they undertook the effort to 

compile information on cases resulting in attorney fee and cost awards to provide internal 

guidance to Forest Service management. For example, the information on attorney fee and 

cost awards helped the agency make informed decisions on whether proposed fees in 

ongoing cases were reasonable in light of recent cases involving similar challenges. The 

 

63 In these cases, EAJA limits the prevailing plaintiff’s eligibility to receive payment by defining (at the time the 

lawsuit is filed) an eligible party as either an individual with a net worth of $2 million or below or a business owner 

or any partnership, corporation, association, local government, or organization with a net worth of $7 million or 

below and 500 or fewer employees. However, tax-exempt nonprofit organizations and certain agriculture 

cooperative associations are considered eligible parties regardless of net worth. 64 5 U.S.C. § 504(a), (b)(1)(C) (defining adversary adjudications as (i) an Administrative Procedure Act 

adjudication in which the United States is represented by counsel or otherwise, but excludes an adjudication for 

the purpose of establishing or fixing a rate or for the purpose of granting or renewing a license, (ii) any appeal of 

a decision made pursuant to section 6 of the Contract Disputes Act of 1978 before an agency board of contract 

appeals, (iii) any hearing conducted under certain false claims procedures under 31 U.S.C. chapter 38, and (iv) 

the Religious Freedom Restoration Act of 1993). 

65 Certain statutes, such as the Small Claims Act and Federal Tort Claims Act, authorize the payment of 

administrative claims from the Judgment Fund. We did not identify any attorney fee payments in the scope of our 

review that were paid under these statutes.
Page 22 GAO-12-417R USDA and Interior Attorney Fees

official who developed the spreadsheet identified several limitations of the data. Specifically, 

the list of cases was not intended to be a definitive list of all attorney fee and cost payments 

and the payments should be considered in totality rather than case-by-case. 

• The data include only environmental cases. As such, non-environmental cases, such 

as those brought under the Freedom of Information Act (FOIA), Equal Employment 

Opportunity Act, and other civil rights statutes, are not included. 

• Not all of the attorney fees and costs included in the spreadsheet were paid from 

Forest Service appropriations, as Treasury may have paid some of the attorney fees 

and costs from its Judgment Fund.66

• In some instances, award or settlement amounts may be overstated. Specifically, 

court documents Forest Service officials reviewed to compile the data do not always 

break out award amounts to be paid by separate defendants. For example, if a party 

sued the Forest Service and Interior’s U.S. Fish and Wildlife Service (USFWS) and 

prevailed, both agencies might need to pay attorney fees and costs if they lost, but 

the court might not specify the amount each agency is to pay. In these instances, 

the data assumed the Forest Service paid the total amount.

 

Forest Service spreadsheet data show that about $16.3 million in attorney fees and costs in 

241 environmental cases from fiscal years 2000 through 2010 was awarded against or

settled by the Forest Service.67 Figure 2 shows the amounts of attorney fees awarded and 

number of cases at Forest Service by fiscal year.

Figure 2: Attorney Fees and Costs Awarded against the Forest Service in Environmental Cases and 

Number of Cases, Fiscal Year 2000

Note: Forest Service data may include attorney fees authorized by underlying statutes, EAJA subsection (b), and EAJA 

subsection (d).

Figure 2 shows that the greatest number of cases was concluded in fiscal year 2006 (31 

cases) and the awards against the Forest Service were greatest in 2007 ($2.3 million). 

Additionally, the awards ranged from $350 to about $500,000. Larger awards may skew the 

 

66 Although the Judgment Fund database generally identifies portions of a payment attributed to attorney fees, 

costs, and other categories, we could not match the Forest Service spreadsheet data with the Judgment Fund in 

order to isolate attorney fees because the data sets did not have a common identifier. 67 Unless otherwise noted, all figures reported in this enclosure are in constant 2010 dollars.
Page 23 GAO-12-417R USDA and Interior Attorney Fees

data for the year in which the Forest Service made those awards or settlements. For 

example, in 2010, one payment accounted for over $400,000 of the $1.1 million in total 

awards. 

In March 2009, the Forest Service began tracking EAJA payments under a separate 

accounting code in the USDA financial database in addition to the Excel spreadsheet. While 

the USDA financial system database included an accounting code for litigation fees and 

awards prior to 2009, this code captured information on all litigation payments, including 

attorney fees and costs and damages,68 and did not contain a description officials could use 

to determine the type of claim. This code also does not differentiate such payments based 

on the statutes underlying the case and payment.69 The Forest Service financial data 

collected since that time show that the Forest Service paid about $2.3 million in 32 cases 

from March 2009 through September 2010. Twenty-nine of the 32 cases were duplicates of 

those provided in the spreadsheet, and one other case overlapped with information provided 

by Interior’s Office of Hearings and Appeals (OHA).70

USDA’s Office of the Assistant Secretary for Civil Rights 

The Office of the Assistant Secretary for Civil Rights (OASCR) provides overall leadership, 

coordination, and direction for USDA's civil rights programs, including matters related to 

program delivery, compliance, and equal employment opportunity. OASCR is responsible for 

ensuring compliance with applicable federal civil rights laws and adjudicates equal 

employment opportunity cases for USDA. OASCR uses the iComplaint database to track 

and maintain information on these cases, including attorney fees and costs paid. iComplaint 

data show that USDA paid $7 million in attorney fees and costs as a result of 419 equal 

employment opportunity cases from fiscal years 2005 through 2010. Of this total, 318 cases 

were adjudicated by OASCR, and 101 cases were decided in federal court or by another 

adjudicative body outside of USDA, such as the U.S. Equal Employment Opportunity 

Commission.71 OASCR officials said that all of these cases involve discrimination claims 

made by USDA employees.72

 

68 Damages are payments awarded to prevailing parties, generally as compensation for loss or injury. Damages 

are a distinct type of monetary award from attorney fees or costs. Some cases are resolved by settlements or 

decisions that provide for damages and attorney fees and costs as one lump sum.

USDA first entered data using iComplaint in 2005. According 

to OASCR officials, the OASCR tracked cases adjudicated prior to 2005 in different 

systems. USDA did not migrate all of the data from the legacy system to iComplaint. 

Therefore, information on cases involving attorney fees and costs prior to 2005 was not 

available. Figure 3 shows the number of cases and amounts paid by fiscal year.

69 Thus, the code could be used to identify all litigation payments, but not to identify only those payments made 

in connection with the Endangered Species Act, for example.

70 The particular case involved both the Forest Service and the Bureau of Land Management (BLM). 71 Cases with awards approved by entities outside of USDA may also be included in Treasury’s Judgment Fund 

data.

72 OASCR also hears cases filed by USDA customers. However, OASCR officials said that they were unaware of 

any attorney fee awards from customer cases, and the system used to track these cases does not include 

attorney fees.
Page 24 GAO-12-417R USDA and Interior Attorney Fees

Figure 3: USDA’s Office of the Assistant Secretary for Civil Rights Equal Employment Opportunity 

Attorney Fees and Costs Paid and Number of Cases, Fiscal Years 2005 through 2010

 

As shown in figure 3, the greatest number of cases was adjudicated in fiscal year 2007 (85 

cases) and the greatest amount of attorney fees and costs was paid in 2007 ($1.4 million). 

The payments range from $1 to about $357,000. Larger payments may skew the data for 

the year in which those payments were made. For example, in fiscal year 2007, 1 of the 85 

payments accounted for over one quarter of the $1.4 million in total payments. 

USDA’s National Appeals Division 

The National Appeals Division (NAD) is responsible for adjudicating administrative appeals 

arising from program activities assigned to certain USDA agencies as well as other 

administrative appeals arising from decisions of USDA agencies designated by the 

Secretary of Agriculture. NAD appeals involve program decisions of the Farm Service 

Agency, Risk Management Agency, and Natural Resources Conservation Service, among 

others. 

NAD uses the NADTrack database to track information on cases filed and attorney fees and 

costs awarded through the division’s administrative hearing process. NADTrack data show 

that the division heard 23 administrative cases where parties made claims totaling about 

$588,000 and were awarded about $97,000 from fiscal years 2005—the first year in which 

the division systematically tracked the data—through 2010.73 Data prior to 2005 are not 

available because, according to an official, NADTrack data prior to that time were not 

maintained in a consistent manner. According to this official, these inconsistencies 

stemmed from the division not having many claims for attorney fees because it was USDA’s 

policy that EAJA and the Administrative Procedure Act provisions applicable to formal 

administrative proceedings did not apply to NAD proceedings, except where required by 

judicial ruling.74

 

73 Because the number of cases is small, we are unable to report trend data for NAD cases.

NADTrack did not consistently differentiate between those requests for 

attorney fees that were not accepted because of this reason or were denied for other 

74 See 74 Fed. Reg. 57,401 (Nov. 6, 2009).
Page 25 GAO-12-417R USDA and Interior Attorney Fees

reasons. In 2009, NAD changed its position because two Circuit Courts of Appeals and one 

district court had joined the Eighth Circuit Court of Appeals in holding that EAJA was 

applicable to NAD proceedings.

75 Accordingly, NAD treats EAJA and the Administrative 

Procedure Act as applicable to NAD adjudications, and more claims have been filed seeking 

attorney fees and costs since that time. 

USDA’s Office of Administrative Law Judges 

The Office of Administrative Law Judges (OALJ) conducts rulemaking and adjudicatory 

hearings throughout the United States in proceedings subject to the Administrative 

Procedure Act. In addition, OALJ is responsible for the publication of Agriculture Decisions, 

the official compilation of quasi-judicial and judicial decisions issued concerning regulatory 

laws administered by USDA. We manually reviewed Agriculture Decisions, searched a 

publicly available database, and met with the chief OALJ judge to obtain information on 

attorney fees. 

We determined that the administrative law judges heard seven cases from fiscal years 2000 

through 2010 for which the information on attorney fees and costs awarded or settled was 

available. In two of the seven cases, the administrative law judges awarded or the parties 

settled for about $177,000 in attorney fees and costs. In the other five cases, the 

administrative law judges did not award any attorney fees and costs. USDA officials 

identified at least one other case is which they believe an award was made, but the 

information was not available because the court documents were sealed by the 

administrative law judges presiding over the case. 

Interior’s U.S. Fish and Wildlife Service

USFWS’s mission is to work with others to conserve, protect, and enhance fish, wildlife and 

plants and their habitats for the continuing benefit of the American people. USFWS is 

responsible for administering the Endangered Species Act for freshwater and land species. 

Under the act, USFWS works to implement its requirements, such as consulting with federal 

agencies to determine if actions may affect listed species or habitats identified as critical to 

the species’ survival, and acting on applications for permits required when non-federal 

activities will result in take of threatened or endangered species. 

Similar to the Forest Service, USFWS did not utilize a data system to track attorney fees and 

costs paid, but tracked information on attorney fees and costs paid by the Endangered 

Species Program in the Washington office using a spreadsheet. USFWS officials gathered 

information on those cases paid by the Washington office and supplemented the information 

with four endangered species cases identified by the regional offices. However, not all 

regions track attorney fee payments, so the data may not be complete over the identified 

timeframe. That is, USFWS officials were not sure that they had provided the complete 

universe of cases. USFWS data show that USFWS paid about $1.5 million in 26 cases from 

fiscal years 2004 through 2010, all of which pertained to the Endangered Species Act.76 Two 

USFWS cases with payments (totaling about $109,000) overlapped with information 

provided by the Solicitor’s Office. 

Interior’s Bureau of Land Management 

BLM is responsible for managing about 250 million acres of federal land for multiple uses, 

including recreation; range; timber; minerals; watershed; wildlife and fish; and natural, 

 

75 Id. 76 Because the number of cases is small, we are unable to report trend data for USFWS cases. 
Page 26 GAO-12-417R USDA and Interior Attorney Fees

scenic, scientific, and historical values; as well as the sustained yield of renewable 

resources. In addition, BLM is responsible for managing approximately 700 million subsurface mineral onshore acres, which include the acreage leased for oil and gas 

development.

BLM officials were able to provide data from physical case files that show that BLM paid 

$511,385 in attorney fees and costs on nine cases from fiscal years 2009 through 2010. 

BLM officials stated that they manually compiled the data prior to our review to gain a better 

understanding of attorney fee and cost payments as BLM has not consistently used its 

financial system to track attorney fee and cost payments in the past. The four cases from 

fiscal year 2010 overlapped with data provided by the Solicitor’s Office (totaling about 

$162,000). BLM officials stated that the data may not include all of BLM’s cases. Further, 

one BLM case (totaling about $52,000) overlapped with data provided by OHA.

Interior’s Office of the Special Trustee for American Indians

Established by the American Indian Trust Fund Management Reform Act of 1994, the Office 

of the Special Trustee for American Indians (OST) was created to improve the accountability 

and management of Indian funds held in trust by the federal government.77 As trustee, 

Interior has the primary fiduciary responsibility to manage tribal trust funds and Individual 

Indian Money accounts as well as resources that generate income for those accounts. The 

official responsible for coordinating the responses across OST programs stated that none of 

the programs in OST maintain attorney fee information. OST identified one payment in fiscal 

year 2007 of about $104,000 in attorney fees.

Interior’s Office of Hearings and Appeals 

OHA exercises the delegated authority of the Secretary of the Interior to conduct hearings 

and decide appeals from decisions of the bureaus and offices of the department. OHA, 

which issues administrative decisions, first decides the underlying case, and then issues a 

separate decision on attorney fees and costs. OHA uses the Docket Management System 

(DMS) database to track and maintain information, including attorney fees and cost awards, 

on those cases it adjudicates. DMS data show that the office heard 75 cases in which 

parties requested a total of about $3.8 million in attorney fees and costs and were awarded 

or settled for about $1.5 million from fiscal years 2000 through 2010.78,79 The data show that 

of these 75 cases, 47 attorney fee claims were filed under EAJA, 22 were filed under the 

Surface Mining and Reclamation Act,80 and 6 were filed under the Back Pay Act.81

 

77 Pub. L. No. 103-412, tit. III, 108 Stat 4239 (1994) (codified as amended at 25 U.S.C. §§ 4041-46).

The 

claims were most frequently made in connection with litigation brought under the Taylor 

Grazing Act, Surface Mining Control and Reclamation Act, and the General Mining Law, as 

shown in table 3.

78 Information on OHA attorney fees requested was not available for 16 cases and attorney fees awarded 

information was not available for 7 cases where the party reached a settlement agreement.

79 Because the number of cases is small, we are unable to report trend data for OHA cases. 80 31 U.S.C. § 1270(d). 81 5 U.S.C. § 5596(b).
Page 27 GAO-12-417R USDA and Interior Attorney Fees

Table 3: Law or Procedure under Which Case Was Brought, Amount Awarded, and Number of 

Awarded Made by OHA, Fiscal Year 2000 through Fiscal Year 2010

Law or procedure under which case was brought Attorney fees and 

costs

a Number of 

cases

Surface Mining Control and Reclamation Act, 30 U.S.C. § 

1275 $695,364 24 b

Taylor Grazing Act, 43 U.S.C. § 315h 442,953 26 c

General Mining Law of 1872, 30 U.S.C. §§ 21-54 271,767 10 d

Agency employee grievance procedures, under authority 

of civil service laws 36,769 6 

Indian Self-Determination Act, 25 U.S.C. §§ 450f-450n 5,618 1 

Indian trust allotment law, as amended, 25 U.S.C. §§ 372, 

373 0 1 

Alaska Native Allotment Act, 43 U.S.C. §§ 270-1 through 

270-3e 0 4 

Desert Land Act, 43 U.S.C. §§ 321-339 0 1 

Mining Claims Rights Restoration Act, 30 U.S.C. §§ 621-

625 0 1 

Reclamation Projects Authorization and Adjustment Act of 

1992, Pub. L. No. 102-575, 106 Stat. 4740 0 1 

Total $1,452,471 75

Source: GAO analysis of OHA data.

a

Statutes or procedures are as provided by OHA.

b

Information on attorney fees and costs awarded was not available for three cases.

c

Information on attorney fees and costs awarded was not available for two cases.

d

Information on attorney fees and costs awarded was not available for two cases.

e

These provisions were repealed in 1971 but remain in effect for then-pending applications.

OHA began using the DMS in 2009 and imported legacy cases from the Boards of Indian 

and Land Appeals into the new system, but did not import cases from other offices. To 

provide us with complete data, OHA manually compiled cases closed before 2009 by 

pulling data from legacy systems and polling regional offices, and combined the legacy and 

regional office information with the DMS information. 

Interior’s Office of the Inspector General 

The Office of Inspector General (OIG) provides independent oversight of the department’s 

programs, operations, and management. Officials provided attorney fee information by 

manually reviewing case files. Interior OIG data show that the OIG paid $1,789 for a 2010 

FOIA case where $2,235 in attorney fees and costs was requested.

Interior’s Office of the Solicitor

The Office of the Solicitor performs legal work for Interior, manages Interior’s Ethics Office, 

and resolves FOIA appeals. Officials from the Office of the Solicitor provided information on 

18 cases in which about $1.6 million was awarded or settled in fiscal year 2010. The Office 

of the Solicitor compiled case information from the Bureau of Indian Affairs,82 BLM, the 

Office of Surface Mining Reclamation and Enforcement,83

 

82 The Bureau of Indian Affairs provides services (directly or through contracts, grants, or compacts) to 

approximately 1.9 million American Indians and Alaska Natives.

and USFWS. Officials manually 

compiled these data by contacting Solicitor headquarters and regional offices to request 

information about fiscal year 2010 cases where EAJA attorney fees and costs were awarded 

83 The Office of Surface Mining Reclamation and Enforcement is responsible for establishing a nationwide 

program to address the adverse effects of surface coal mining operations, while balancing the nation’s need for 

continued domestic coal production with protection of the environment. 
Page 28 GAO-12-417R USDA and Interior Attorney Fees

or settled. Six of these cases overlapped with cases provided by BLM and USFWS, as 

discussed above.

Treasury

Treasury uses the Judgment Fund Internet Claims System (JFICS) to process attorney fee 

and cost payments.84 In judicial cases where payments from the Judgment Fund are 

authorized, DOJ officials submit the payment information to Treasury using standardized 

forms, and Treasury processes the payment and typically informs relevant agencies when it 

releases the payment to the payee. The Judgment Fund is generally not used for attorney 

fee payments awarded in an administrative adjudication.

From March 2001—the first date for which Treasury’s Judgment Fund data are available—

through September 2010, Treasury made 525 attorney fee and cost payments (187 for 

USDA and 338 for Interior) totaling about $44.4 million. Approximately half of these 

payments (254 of 525) were made as a result of Endangered Species Act litigation. Another 

88 payments were made as a result of a class action lawsuit on behalf of black farmers 

alleging discrimination.85 

USDA. Treasury made 187 payments totaling $16.9 million on behalf of USDA from March 

2001 through September 30, 2010. The payments made on behalf of USDA were most 

frequently made in connection with litigation brought under the Equal Credit Opportunity Act, 

Title VII of the Civil Rights Act of 1964, FOIA, or the Endangered Species Act, as shown in 

table 4. 

Table 4: Statute under Which Case Was Brought, Amount Paid, and Number of Payments Paid by 

Treasury from the Judgment Fund on Behalf of USDA, March 2001 through September 2010

Statute under which case was brought

Attorney fees and a costs Number of payments

Equal Credit Opportunity Act, 15 U.S.C. § 1691e $9,190,168 92

Civil Rights Act Title VII, 42 U.S.C. § 2000e-16 4,444,604 39

Endangered Species Act, 16 U.S.C. § 1540 1,628,215 16

Freedom of Information Act, 5 U.S.C. § 552 449,614 21

Clean Water Act, 33 U.S.C. § 1365 366,992 5

Tucker Act (inverse condemnation & other claims), 28 

U.S.C. § 1491 343,687 1 

Fair Labor Standards Act, 29 U.S.C. § 216 282,093 1

Payments for which statute could not be determined 93,909 6

Rehabilitation Act (disability discrimination), 29 

U.S.C. §§ 791, 794a 51,934 2 

Bandelier National Monument Administrative 

Improvement and Watershed Protection Act of 1998, 

16 U.S.C. § 698v-2, 40 U.S.C. § 3114

50,000 1 

Tucker Act, 28 U.S.C. § 1346 12,154 1

Back Pay Act, 5 U.S.C. § 5596 6,429 1

Privacy Act, 5 U.S.C. § 552a 6,170 1

Total $16,925,969 187

Source: GAO analysis of Treasury data. 

a

Statutes are as reported in Treasury’s JFICS. For payments associated with inverse condemnation claims, statutes are as 

identified in publicly accessible court records.

 

84 Treasury’s JFICS tracks the progress of plaintiffs’ claims for Judgment Fund payments from the time they are 

sent to Treasury until they are paid.

85 See Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999), aff’d 206 F.3d 1212 (D.C. Cir. 2000); see also, 

Congressional Research Service, The Pigford Cases: USDA Settlement of Discrimination Suits by Black 

Farmers (2011).
Page 29 GAO-12-417R USDA and Interior Attorney Fees

Figure 4 shows the amount and number of payments made by Treasury on behalf of USDA 

by fiscal year.

Figure 4: USDA Attorney Fees Paid and Number of Payments from Treasury’s Judgment Fund, 

Fiscal Years 2001 through 2010

Figure 4 shows that Treasury made the greatest number of payments on behalf of USDA in 

fiscal year 2005 (24 payments) and Treasury paid the highest amount of attorney fees and 

costs on behalf of USDA in 2003 ($3 million). The payments range from about $175 to about 

$1.1 million. Larger payments may skew the data for the year in which Treasury made those 

payments. For example, in 2008, one payment totaling about $1.1 million accounted for 

about half of the $2.3 million in total payments. Further, 11 of the 13 fiscal year 2010 cases 

were payments stemming from a class action lawsuit filed by black farmers and made up

about $1.5 million of the $1.6 million in payments for that year.86

Interior. Treasury made 338 payments totaling $27.5 million on behalf of Interior from March 

2001 through September 30, 2010. These payments were most frequently made under the 

Endangered Species Act, Title VII of the Civil Rights Act of 1964, and FOIA, as shown in 

table 5. 

 

86 Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999).
Page 30 GAO-12-417R USDA and Interior Attorney Fees

Table 5: Statute under Which Case Was Brought, Amount Paid, and Number of Payments Paid by 

Treasury from the Judgment Fund on Behalf of Interior, March 2001 through September 2010

Statute under which case was broughta

Attorney fees and 

costs 

Number of 

payments

Endangered Species Act, 16 U.S.C. § 1540 $21,298,971 238 b

Civil Rights Act Title VII, 42 U.S.C. § 2000e-16 1,243,194 38

Tucker Act (inverse condemnation & other claims), 28 

U.S.C. § 1491 1,086,185 2 

Privacy Act, 5 U.S.C. § 552a 953,180 1

Freedom of Information Act, 5 U.S.C. § 552 658,561 26

Age Discrimination In Employment Act, 29 U.S.C. § 

633a 565,029 2 

Outer Continental Shelf Lands Act, 43 U.S.C. § 1349 390,000 1

Clean Water Act, 33 U.S.C. § 1365 252,947 6

Surface Mining Control and Reclamation Act, 30 

U.S.C. § 1270 240,825 4 

Fair Labor Standards Act, 29 U.S.C. § 216 228,413 5

American Indian Trust Fund Management Reform Act 

of 1994, 25 U.S.C. §§ 4011, 162a 149,014 1 

Alaska National Interest Lands Conservation Act, 16 

U.S.C. § 3117 134,544 3 

National Historic Preservation Act, 16 U.S.C. § 470w4 110,661 4 

Resource Conservation and Recovery Act, 42 U.S.C. 

§ 6972 60,952 1 

Payments for which statute could not be determined 52,087 4

Rehabilitation Act (disability discrimination), 29 

U.S.C. §§ 791, 794a 25,523 1 

Tucker Act (tort claim), 28 U.S.C. § 1346 7,774 1

Total $27,457,860 338

Source: GAO analysis of Treasury data. 

a

Statutes are as reported in Treasury’s JFICS. For payments associated with inverse condemnation claims, statutes are as 

identified in publicly accessible court records. b

The median payment under the Endangered Species Act on behalf of Interior was $24,671.
Page 31 GAO-12-417R USDA and Interior Attorney Fees

Figure 5 shows the amount and number of payments made by Treasury on behalf of Interior 

by fiscal year.

Figure 5: Interior Attorney Fees Paid and Number of Payments from Treasury’s Judgment Fund, 

Fiscal Years 2001 through 2010

Figure 5 shows that the greatest number of payments was made in fiscal year 2002 (59 

payments) and Treasury paid the highest amounts of attorney fees and costs on behalf of 

Interior in 2010 ($7.3 million). The payments range from about $140 to $5.6 million. Larger 

payments may skew the data for the year in which Treasury made those payments. For 

example, in 2010, one payment under the Endangered Species Act accounted for over $5.6 

million (or about 77 percent) of the $7.3 million in total payments.
Page 32 GAO-12-417R USDA and Interior Attorney Fees

Enclosure III: GAO Contact and Staff Acknowledgments 

GAO Contact William O. Jenkins, Jr. (202) 512-8777 or jenkinswo@gao.gov 

Staff In addition to the contact named above, Maria Strudwick, 

Acknowledgments Assistant Director; Ellen Wolfe, Analyst-in-Charge; Elizabeth

Beardsley; Cynthia Grant; Paul Hobart; Julian King; Ron 

La Due Lake; Lara Miklozek; and Janet Temko made significant 

contributions to this report. Other contributors to this report included 

Lisa Brownson, Francis Dymond, Anne Johnson, John Reilly Jr, and 

Susan Ragland.

 

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