United States General Accounting Office

GAO Report to the Ranking Minority Member,

Subcommittee on Oversight of

Government Management and the

District of Columbia, Committee on

Government Affairs, U.S. Senate

October 1995 PRIVATE ATTORNEYS

Selected Attorneys’ Fee

Awards Against Nine

Federal Agencies in

1993 and 1994

GAO/GGD-96-18

GAO United States

General Accounting Office

Washington, D.C. 20548

General Government Division

B-259798 

October 31, 1995

The Honorable Carl Levin

Ranking Minority Member

Subcommittee on Oversight

 of Government Management

 and the District of Columbia

Committee on Governmental Affairs

United States Senate

Dear Senator Levin:

On June 22, 1994, you requested that we provide information on

(1) attorneys’ fee awards paid to bid protesters by federal agencies and

(2) attorneys’ fees awarded under other provisions of law in suits against

the government. Our November 1994 fact sheet1

 responded to part one of

your request. This report responds to part two of your request.

As agreed with your office, we are reporting data on the number of cases

and amount of plaintiff attorneys’ fees awarded over $10,000 against nine

federal agencies,2

 for cases closed during fiscal years 1993 and 1994. These

data include the highest individual fees and hourly rates awarded under

federal statutes against the nine federal agencies. The nine agencies are

the Departments of Defense, Health and Human Services (HHS),3

 Housing

and Urban Development (HUD), the Interior, Justice, Transportation, and

the Treasury; the General Services Administration (GSA); and the U.S.

Postal Service4

. In addition, we are providing attorneys’ fee awards data

reported in the fiscal year 1993 Equal Access to Justice Act annual reports5

1

Bid Protests: Attorneys’ Fees Paid to Bid Protesters by Federal Agencies (GAO/GGD-95-17FS, Nov. 7,

1994).

2

The scope of our work was limited to nine agencies and individual attorneys’ fee awards over $10,000

because a data system on plaintiff attorneys’ fee awards did not exist, and it would have placed a

hardship on agencies to manually collect award case file data on all cases closed during the 2-year

period.

3

HHS did not provide data on attorneys’ fee awards over $10,000 for Social Security Administration

cases. It said that attorneys’ fee awards were paid in thousands of cases, and it would be too

burdensome to search these cases to find those that met our criteria. Many attorneys’ fee awards

against the Social Security Administration were awarded under the Equal Access to Justice Act. Also,

because of the large volume of cases, HHS said it reviewed about one-half of the cases under the

Vaccine Injury Compensation Program. It provided information on 64 cases that met our criteria.

4

The U.S. Postal Service is an independent establishment in the executive branch. In this report, we

refer to it as a federal agency.

5

The Attorney General and the Chairman of the Administrative Conference of the United States must

report annually to Congress on the amount of attorneys’ fees and other expenses awarded under

certain provisions of the act during the preceding fiscal year.

Page 1 GAO/GGD-96-18 Attorneys’ Fee Awards
B-259798 

and attorneys’ fee awards paid from the Judgment Fund6 during fiscal

years 1993 and 1994.

Background Generally, the federal government may not be assessed attorneys’ fee

awards unless such awards are expressly authorized by law. The

Congressional Research Service (CRS) identified approximately 180 federal

statutes that authorize awards of attorneys’ fees against the government in

certain cases where an opposing party prevails against the government.7

Many of the statutes that authorize the award of attorneys’ fees against the

government specify that payment of those awards shall come from agency

appropriations. Some of these statutes authorize a set hourly rate or a

percentage of the plaintiff’s award amount for determining attorneys’ fee

awards. Most of these statutes authorize reasonable attorneys’ fees but do

not specify how they are to be calculated.

One key statute, the Equal Access to Justice Act, allows a party who

prevails against the United States to recover attorneys’ fees and other

expenses under certain circumstances. Portions of the act, codified at 5

U.S.C. 504, allow specific categories of prevailing parties8

 to recover

reasonable attorney fees, expert witness expenses, and related costs in

adversary adjudications9

 in administrative proceedings unless the hearing

officer finds that the agency’s position was substantially justified or that

special circumstances make an award unjust. Under section 504, attorney

fee rates are limited to $75 per hour unless the agency determines by

regulation that an increase in the cost of living or a special factor, such as

the limited availability of qualified attorneys or agents for the proceedings

involved, justifies a higher fee. Fees and expenses awarded under section

6

The Judgment Fund is used to pay for certain awards against the United States, sometimes including

awards of attorneys’ fees under judgments, settlements, and certain other administrative proceedings,

when agency appropriations may not be used.

7

Awards of Attorneys’ Fees by Federal Courts and Federal Agencies (CRS 94-970A, Nov. 28, 1994).

8

In order for the prevailing party to be paid attorneys’ fees under 5 U.S.C. 504 and 28 U.S.C. 2412(d), it

must be a “party” as defined in the act. In general, both provisions define “party” as an individual with

net worth of not more than $2 million at the time the action was filed; any owner of an unincorporated

business, or any corporation, partnership, association, local governmental unit or organization, with a

net worth of not more than $7 million and not more than 500 employees at the time the action was

filed; or a tax-exempt organization under 26 U.S.C. 501(c)(3) or an agricultural cooperative under 12

U.S.C. 1141j(a) regardless of net worth.

9

These are defined to include adjudications under 5 U.S.C. 554 (i.e., adjudications under the

Administrative Procedure Act) in which the United States is represented by counsel, with the

exception of adjudications for the purpose of granting or renewing a license or for the purpose of

establishing or fixing a rate, as well as contract dispute proceedings before agency boards of contract

appeals under 41 U.S.C. 607, hearings conducted under chapter 38 of title 31, and proceedings under

the Religious Freedom Restoration Act of 1993.

Page 2 GAO/GGD-96-18 Attorneys’ Fee Awards
B-259798 

504 are paid by the agency over which the party prevails from any funds

made available to the agency by appropriation or otherwise.

Portions of the act, codified at 28 U.S.C. 2412(b), authorize a court to

award reasonable attorneys’ fees and expenses to a prevailing party in civil

actions brought by or against the United States. Under this subsection, the

United States is to be liable for such fees to the same extent that any other

party would be liable under the common law or under the terms of any

federal statute that specifically provides for the award of such fees.

Subsection 2412(d) provides that a court shall award fees and other

expenses to a party prevailing against the United States in any nontort civil

action unless the court finds that the position of the United States was

substantially justified or that special circumstances make an award unjust.

Under this subsection, the hourly rate for attorney fees is not to exceed

$75 per hour unless the court determines that an increase in the cost of

living or a special factor, such as the limited availability of qualified

attorneys for the proceedings involved, justifies a higher fee. Fees and

expenses awarded under this subsection are to be paid by the agency over

which the party prevails from any funds made available to the agency by

appropriation or otherwise.

The Equal Access to Justice Act requires that attorneys’ fees and other

expenses awarded under the act be reported annually to Congress.10 The

Attorney General is to report attorneys’ fees and expenses awarded in

certain judicial proceedings, and the Chairman of the Administrative

Conference of the United States is to report attorneys’ fees and expenses

awarded in administrative proceedings.

The Judgment Fund is a permanent, indefinite appropriation that is jointly

administered by us and the Departments of Justice and the Treasury.

Congress established the Judgment Fund to pay awards, sometimes

including attorneys’ fees and other costs, under judgments, compromise

settlements, and certain other administrative proceedings when agencies

are not authorized to pay awards with their appropriated funds or other

funds available to them.11

10Department of Justice and Administrative Conference of the United States officials told us about

some data reporting problems. (See app. II for more information on data problems.)

11It should be noted that some of the attorneys’ fee awards reported by certain agencies may have been

paid from the Judgment Fund. Therefore, the same fee awards may have been included in (1) the

attorneys’ fee awards reported to us by some agencies and (2) the attorneys’ fee awards reported

under the Judgment Fund.

Page 3 GAO/GGD-96-18 Attorneys’ Fee Awards
B-259798 

Results in Brief The 9 federal agencies reported 441 plaintiff attorneys’ fee awards12 over

$10,000 during fiscal years 1993 and 1994. These awards totaled about

$20 million and were authorized under 19 federal statutes, including

awards under the Equal Access to Justice Act. The highest single

attorney’s fee awarded during this 2-year period was $800,000 against HUD.

The highest single hourly attorney rate, $320 per hour, was awarded in

separate cases against three agencies: HHS, the Treasury, and GSA.

The 9 agencies reported that 4 of the attorneys’ fee awards were based on

a percentage of the plaintiff’s award, 179 were based on an hourly rate,

and 263 were lump-sum payments.13 The 9 agencies reported that of these

441 attorneys’ fee awards against the government, 210 were from

administrative proceedings and 231 were from judicial proceedings.14 Of

the 441 awards, 276 awards were the result of settlement agreements. Of

the 276 awards, 153 were from administrative proceedings, and 123 were

from judicial proceedings. (See app. I for more information on these

awards.)

According to the Equal Access to Justice Act annual reports, attorneys’ fee

awards authorized under this act totaled $1.3 million in fiscal year 1993,

$1 million from judicial proceedings and $0.3 million from administrative

proceedings. However, the fee awards under the act of over $10,000

reported to us by the nine agencies totaled $3 million and $0.3 million,

respectively. Officials of the Department of Justice and Administrative

Conference of the United States attributed the differences in the amounts

reported by the two sources to administrative and reporting problems

associated with the annual reports. Fiscal year 1994 annual reports were

not available at the time of our review. (See app. II for more information

on these awards.)

In fiscal year 1993, attorneys’ fee awards paid from the Judgment Fund

totaled $11.6 million. Attorneys’ fee awards of $12.2 million were paid from

the Fund in fiscal year 1994. (See app. III for more information on these

awards.)

12This number also represents the number of cases involved.

13Two award methods were reported for 8 of the 441 cases, and no award method was reported for 3

cases.

14The administrative category also includes grievance arbitration and settlements under Merit Systems

Protection Board actions that some agencies reported under the category “other.”

Page 4 GAO/GGD-96-18 Attorneys’ Fee Awards
B-259798 

Scope and

Methodology

Because of work we performed in 1992,15 we were aware of the large

number of cases in which the federal government (38 agencies) had paid

attorneys’ fee awards to prevailing parties; the lack of centralized,

computerized data on these cases; and the hardship the agencies or we

would face in collecting and reviewing data on these cases. Therefore, as

agreed with your office, we limited our data collection efforts to the nine

federal agencies that our prior report indicated paid the highest amount of

attorneys’ fees in fiscal year 1991.

To determine the number of cases, award amounts, highest individual fees,

and highest hourly rates of plaintiff attorneys’ fees awarded under federal

statutes, we attempted to collect data on attorneys’ fee awards against

these agencies during fiscal years 1993 and 1994. However, the nine

agencies’ automated records systems did not contain the detailed

information we needed. Therefore, we also agreed to limit our work to

plaintiff attorneys’ fee awards over $10,000 for the nine agencies during

the 2 fiscal years.16 We arbitrarily selected $10,000 to limit the number of

cases agencies would have to research to satisfy our request. In addition,

we did not ask for information on actions where the plaintiff was awarded

a total payment in which the attorneys’ fees were not separated out. In

those cases, it was not possible to identify the specific amount of

attorneys’ fees awarded.

To obtain detailed information on attorneys’ fee awards, we developed a

survey instrument. A copy of the instrument is provided in appendix IV.

Our survey instructions asked the nine agencies to complete one form for

each award. We asked that a contact person in each agency distribute the

forms to and collect them from the components involved in attorneys’ fee

awards. We relied on these contact persons to ensure that the agencies

submitted all requested information on all relevant cases. We did not verify

the accuracy of the data agencies provided to us.

To obtain broader information on attorneys’ fee awards against the federal

government, we obtained data on the Equal Access to Justice Act awards

and on the Judgment Fund. To determine the Equal Access to Justice Act

attorneys’ fee awards data for fiscal year 1993, we obtained the fiscal year

1993 annual reports from the Attorney General and the Chairman of the

15Private Attorneys: Information on the Federal Government’s Use of Private Attorneys

(GAO/GGD-93-17FS, Oct. 20, 1992).

16The report data understates the actual amount of money being paid out by the government in private

attorneys’ fees because of factors such as (1) all agencies were not canvassed and (2) some agencies

paid numerous awards of less than $10,000.

Page 5 GAO/GGD-96-18 Attorneys’ Fee Awards
B-259798 

Administrative Conference of the United States. Data from these annual

reports are presented in appendix II. (Although the fiscal year 1994 annual

report on attorney fees paid under the Equal Access to Justice Act for

judicial proceedings was available, the other annual report dealing with

attorney fees paid for administrative proceedings was not available at the

time of our review. Therefore, we did not include in this report any of the

data presented in the fiscal year 1994 annual reports.)

We obtained Judgment Fund disbursement data for fiscal years 1993 and

1994 from our Office of the General Counsel. We are responsible for

certifying payments from the Judgment Fund. Data on the Judgment Fund

are presented in appendix III.

We did our work between November 1994 and August 1995 in accordance

with generally accepted government auditing standards.

Agency Comments On September 1, 1995, we provided a draft of this report to the Secretaries

of Defense, HHS, HUD, the Interior, Transportation, and the Treasury; the

Attorney General; the Administrator of GSA; the Postmaster General; and

the Chairman of the Administrative Conference of the United States for

their comments.

The Postal Service and the Departments of HHS, Justice, the Interior,

Transportation, and the Treasury had no comments on the report. The

Administrative Conference of the United States and GSA had a few

technical comments that we incorporated where appropriate.

Defense and HUD provided written comments on the draft. These

comments are presented in appendixes V and VI. These agencies generally

agreed with the information presented in this report, and HUD provided

technical clarifications that we incorporated where appropriate. HUD

commented that the attorneys’ fees paid by the Department increased

significantly over the past several years because it had successfully settled

or is now settling complex public housing and civil rights cases that were

initiated in the 1980s. HUD also explained that the highest individual

attorney’s fee award mentioned in this report, the $800,000 Equal Access

to Justice Act payment that was awarded against it, was negotiated as a

lump-sum payment. According to HUD, this litigation was pending for 4

years, and the court could have awarded attorneys’ fees in this case for

approximately $1.25 million.

Page 6 GAO/GGD-96-18 Attorneys’ Fee Awards
B-259798 

As agreed with your office, we plan no further distribution of this report

for 30 days. At that time, we will send copies to other congressional

committees and to the Secretaries of Defense, HHS, HUD, the Interior,

Transportation, and the Treasury and to the Attorney General, the

Administrator of GSA, and the Postmaster General. We will also send

copies to other interested parties and make copies available to others

upon request.

The major contributors to this report are listed in appendix VII. Please

contact me on (202) 512-8777 if you have any questions concerning this

report.

Sincerely yours,

Norman J. Rabkin

Director, Administration

 of Justice Issues

Page 7 GAO/GGD-96-18 Attorneys’ Fee Awards
Contents

Letter 1

Appendix I 

Attorneys’ Fees Over

$10,000 Awarded

Against Nine Agencies

in Fiscal Years 1993

and 1994

12

Total Agency Awards Ranged From About $90,000 to $1.9 Million

During the 2 Fiscal Years

12

The Highest Number and Amount of Awards Against the Nine

Agencies Were Authorized Under the Equal Access to Justice Act

13

HUD Reported the Highest Individual Attorneys’ Fee Award 16

Highest Hourly Attorneys’ Fee Rate Awarded 16

Basis for Attorneys’ Fee Awards Decisions 20

Type of Proceeding 20

Appendix II 

Equal Access to

Justice Act Annual

Reports Data for

Fiscal Year 1993

22

Appendix III 

Judgment Fund

Attorneys’ Fee Awards

in Fiscal Years 1993

and 1994

24

Appendix IV 

Survey of Nine

Federal Agencies on

Attorneys’ Fees Over

$10,000 Awarded

During Fiscal Years

1993 and 1994

27

Page 8 GAO/GGD-96-18 Attorneys’ Fee Awards
Contents

Appendix V 

Comments From the

Department of

Defense

29

Appendix VI 

Comments From the

Department of

Housing and Urban

Development

30

Appendix VII 

Major Contributors to

This Report

32

Tables Table I.1: Number and Amount of Attorneys’ Fees Over $10,000

Awarded Against the Nine Agencies During Fiscal Years 1993 and

1994

12

Table I.2: Awards Against Components of the Nine Agencies With

the Highest Aggregate Amount of Plaintiff Attorneys’ Fees Over

$10,000 During Fiscal Years 1993 and 1994

13

Table I.3: Number and Amount of Attorneys’ Fee Awards Over

$10,000 Authorized by Statute Against the Nine Agencies, Fiscal

Years 1993 and 1994

14

Table I.4: Highest Three Attorneys’ Fee Awards Amounts

Reported by the Nine Agencies During Fiscal Years 1993 and 1994

16

Table I.5: Highest Three Hourly Attorneys’ Fee Awards Against

the Nine Agencies, Fiscal Years 1993 and 1994

17

Table I.6: Distribution of Hourly Rates by Hourly Rate Range

Reported by the Nine Agencies, Fiscal Years 1993 and 1994

17

Table I.7: Range of Hourly Attorneys’ Fee Rates Reported by the

Nine Agencies for Fiscal Years 1993 and 1994, Set Out by Statute

19

Table I.8: Basis for Plaintiff Attorneys’ Fee Awards Over $10,000

Against the Nine Agencies, Fiscal Years 1993 and 1994

20

Table I.9: Number of Plaintiff Attorneys’ Fee Awards Over

$10,000 Against the Nine Agencies by Type of Proceeding, Fiscal

Years 1993 and 1994

21

Page 9 GAO/GGD-96-18 Attorneys’ Fee Awards
Contents

Table II.1: Attorneys’ Fee Awards Reported in the Fiscal Year

1993 Equal Access to Justice Act Annual Reports

22

Table III.1: Attorneys’ Fee Awards Paid From the Judgment Fund,

Fiscal Years 1993 and 1994

24

Abbreviations

CRS Congressional Research Service

GSA General Services Administration

HHS Department of Health and Human Services

HUD Department of Housing and Urban Development

Page 10 GAO/GGD-96-18 Attorneys’ Fee Awards
Page 11 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

The 9 agencies we surveyed reported 441 awards of plaintiff attorneys’

fees over $10,000 during fiscal years 1993 and 1994. These awards were

authorized under 19 federal statutes and totaled about $20 million. The

highest individual attorney’s fee award was $800,000, authorized under the

Equal Access to Justice Act and awarded against the Department of

Housing and Urban Development (HUD). The highest individual hourly rate

awarded was $320. This hourly rate was awarded in separate cases against

three agencies: (1) the Department of Health and Human Services (HHS),

(2) the Department of the Treasury, and (3) the General Services

Administration (GSA).

Total Agency Awards

Ranged From About

$90,000 to $1.9 Million

During the 2 Fiscal

Years

Awards over $10,000 reported by the nine agencies totaled $8.3 million

during fiscal year 1993. The total agency awards in fiscal year 1993 ranged

from about $90,000 against HUD to more than $1.6 million against the

Department of the Treasury. The number of awards against the 9 agencies

ranged from 4 at HUD to 45 at HHS.

In fiscal year 1994, awards against the nine agencies totaled almost

$11.6 million. Total agency awards ranged from about $219,000 against GSA

to almost $1.9 million against the Department of Defense. The number of

awards in fiscal year 1994 ranged from 7 against GSA to 47 against HHS.

Table I.1 lists the number and amount of awards against the nine agencies

for fiscal years 1993 and 1994.

Table I.1: Number and Amount of

Attorneys’ Fees Over $10,000 Awarded

Against the Nine Agencies During

Fiscal Years 1993 and 1994

FY 1993 FY 1994

Agency Number Amount Number Amount

Defense 21 $803,639 35 $1,862,333

HHS 45 1,451,618 47 1,647,999

HUD 4 89,801 13 1,372,121

Interior 13 695,787 29 1,747,121

Justice 17 1,548,899 27 1,740,055

Transportation 10 208,566 15 531,830

Treasury 30 1,649,657 38 1,357,930

GSA 5 251,387 7 219,399

Postal Service 39 1,532,471 46 1,088,331

Total 184 $8,231,825 257 $11,567,119

Note: Totals may not add due to rounding.

Source: GAO analysis of data reported by the nine agencies.

Page 12 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

Table I.2 lists the number and amount of attorneys’ fees over $10,000

awarded during fiscal years 1993 and 1994 against the nine agency

components with the highest aggregate amount of attorneys’ fees.

Table I.2: Awards Against Components

of the Nine Agencies With the Highest

Aggregate Amount of Plaintiff

Attorneys’ Fees Over $10,000 During

Fiscal Years 1993 and 1994

Agency/component Number Amount

Defense

Army Corps of Engineers 10 $939,814

HHS

Bureau of Health Professions 64 1,193,625

HUD

Litigation and Fair Housing Enforcement 7 1,121,092

Interior

Bureau of Reclamation 2 603,163

Justice

Immigration and Naturalization Service 17 1,059,176

Transportation

Federal Aviation Administration 19 492,460

Treasury

Internal Revenue Service 43 1,573,785

GSA

Regional Counsel 3 68,827

Postal Service

Law Department 22 $1,405,896

Source: GAO analysis of data reported by the nine agencies.

The Highest Number

and Amount of

Awards Against the

Nine Agencies Were

Authorized Under the

Equal Access to

Justice Act

More than 27 percent (123) of the reported awards over $10,000 for fiscal

years 1993 and 1994 against the nine agencies were authorized under the

Equal Access to Justice Act. Title VII of the Civil Rights Act of 1964 and the

Civil Service Reform Act of 1978 accounted for the second (108) and third

(87) largest number of awards against these agencies. Fewer than 7

awards each against these agencies were authorized under 14 of the 19

statutes.

In addition, the highest amount of attorneys’ fee awards against the nine

agencies were authorized under the Equal Access to Justice Act for both

fiscal years, totaling over $9.4 million. The second and third largest total

award amounts against these agencies were authorized under title VII of

the Civil Rights Act of 1964 ($3.7 million) and the Civil Service Reform Act

Page 13 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

of 1978 ($2.4 million). The smallest total award amounts against these

agencies were authorized under the Age Discrimination in Employment

Act, Civil Rights Attorney’s Fees Awards Act, Contract Disputes Act, and

Postal Reorganization Act. These award amounts totaled less than $27,000

per act.

Table I.3 lists the federal statutes authorizing attorneys’ fee awards over

$10,000 for the cases as reported by the nine agencies during these 2 fiscal

years.

Table I.3: Number and Amount of

Attorneys’ Fee Awards Over $10,000

Authorized by Statute Against the Nine

Agencies, Fiscal Years 1993 and 1994

FY 1993 FY 1994 Authorizing federal

statute Number Amount Number Amount

Equal Access to Justice Act

5 U.S.C. section

504(a)(1)

15 $437,700 21 $907,052

28 U.S.C. section

2412

36 2,832,642 51 5,268,533

Privacy Act

5 U.S.C. section 552a 0 0 1 51,813

Freedom of Information Act

5 U.S.C. section

552(a)(4)(E)

1 19,515 2 55,401

Whistleblower Protection Act

5 U.S.C. section

1221(g)

0 0 1 92,625

Civil Service Reform Act

5 U.S.C. section

5596(b)(1)

4 107,016 10 303,516

5 U.S.C. section

7701(g)

25 758,160 48 1,190,931

National Historic Preservation Act

16 U.S.C. section

470w-4

0 0 1 180,000

Endangered Species Act

16 U.S.C. section

1540(g)(4)

2 287,500 2 71,000

Internal Revenue Code

26 U.S.C. section

7430

15 661,963 11 482,455

Fair Labor Standards Act

29 U.S.C. section

216(b)

2 711,166 1 12,000

(continued)

Page 14 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

FY 1993 FY 1994 Authorizing federal

statute Number Amount Number Amount

Age Discrimination in

Employment Act of 1967

29 U.S.C. section

626(b)

1 11,400 1 15,000

Rehabilitation Act of 1973

29 U.S.C. section

794a

1 12,857 3 64,800

Surface Mining Control

and Reclamation Act

30 U.S.C. section

1275(e)

1 45,000 5 123,941

Water Pollution Prevention

and Control Act

33 U.S.C. section

1365(d)

1 53,000 1 16,000

Postal Reorganization Acta

39 U.S.C. section

1208(b)

0 0 1 22,750

Federal Property and

Administrative Services Act

40 U.S.C. section

759(f)(5)(C)

1 57,016 1 42,043

Contract Disputes Act

41 U.S.C. section

607

0 0 1 17,858

National Childhood Vaccine

Injury Act

42 U.S.C. section

300aa-15(b)

32 560,433 32 633,192

Civil Rights Attorneys’ Fees

Awards Act

42 U.S.C. section

1988

0 0 2 22,679

Civil Rights Act of

1964, title VII

42 U.S.C. section

2000e-5(k)

47 1,676,456 61 1,993,529

Total 184 $8,231,824 257 $11,567,118

(Table notes on next page)

Page 15 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

Note: Totals may not add due to rounding.

aAccording to a U.S. Postal Service official, plaintiff’s award was made under 39 U.S.C. 1208(b).

Although the statute does not specifically authorize attorneys’ fee awards, the official stated that

the Postal Service interprets case law under this statute as giving it the authority to pay attorneys’

fees.

Source: GAO analysis of data reported by the nine agencies.

HUD Reported the

Highest Individual

Attorneys’ Fee Award

The highest individual plaintiff attorney’s fee award was a lump-sum,

negotiated fee settlement of $800,000 against HUD’s Office of Litigation and

Fair Housing Enforcement. The Department of the Interior reported the

second highest fee award ($575,000), the Postal Service reported the third

highest ($541,000), and the lowest fee award reported was $119,111 by the

Department of Transportation. Table I.4 shows the three highest individual

attorneys’ fees over $10,000 awarded against each agency during fiscal

years 1993 and 1994.

Table I.4: Highest Three Attorneys’ Fee

Awards Amounts Reported by the Nine

Agencies During Fiscal Years 1993 and

1994 Agency

Highest fee

award

Second

highest fee

award

Third highest

fee award

Defense $401,531 $235,000 $140,000

HHS 349,737 255,614 160,000

HUD 800,000 134,721 100,000

Interior 575,000 220,000 180,000

Justice 400,000 400,000 335,553

Transportation 119,111 92,625 50,000

Treasury 327,123 195,000 187,017

GSA 128,858 55,160 49,000

Postal Service $541,166 $190,000 $185,669

Source: GAO analysis of data reported by the nine agencies.

Highest Hourly

Attorneys’ Fee Rate

Awarded

As reported by the nine agencies, of the attorneys’ fee awards over

$10,000, the highest hourly attorney’s fee rate was $320 per hour. This fee

was awarded to plaintiff attorneys in actions against HHS, the Treasury, and

GSA.

Of the 179 cases in which attorneys’ fees were awarded on the basis of an

hourly rate, 153 were awarded as billed by the plaintiff attorneys. More

Page 16 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

than one hourly rate was reported in 52 of these cases. For example, a

case may have included several rates for multiple attorneys and for

paralegals and clerks. A total of 310 hourly rates was reported in the 153

cases. Table I.5 shows the three highest hourly rates that were awarded by

the plaintiff attorney for all nine agencies.1

Table I.5: Highest Three Hourly Attorneys’ Fee Awards Against the Nine Agencies, Fiscal Years 1993 and 1994

Highest hourly fee award

Second highest hourly fee

award Third highest hourly fee award

Agency Amount

Number of

cases Amount

Number of

cases Amount

Number of

cases

Defense $300 1 $250 2 $225 1

HHS 320 1 265 2 250 3

HUD 225 1 210 1 165 1

Interior 225 1 200 1 185 1

Justice 250 1 205 1 200 1

Transportation 205 1 200 1 195 1

Treasury 320 1 305 1 295 1

GSA 320 1 225 2 185 2

Postal Service $200 6 $185 2 $175 1

Source: GAO analysis of data reported by the nine agencies.

Table I.6 shows the distribution of the 310 hourly attorney rates by hourly

rate range awarded against the nine agencies. The lowest range was $99 or

less, and the highest range was $300 or more. Included in the table are

hourly rates that were actually awarded to the plaintiffs’ attorneys. We

excluded billed rates that were later negotiated down by the agency.

Table I.6: Distribution of Hourly Rates

by Hourly Rate Range Reported by the

Nine Agencies, Fiscal Years 1993 and

1994

Number of awards

Hourly rate range FY 1993 FY 1994

$99 or less 43 39

$100 to $199 83 83

$200 to $299 25 32

$300 or more 2 3

Source: GAO analysis of data reported by the nine agencies.

1

We asked the nine agencies to indicate whether each attorney fee award was based on a percentage of

the plaintiff’s award, a lump-sum payment, or an hourly rate. Some cases that were billed using an

hourly rate were later negotiated for a different fee award amount. In these instances, some agencies

indicated that the award was based on a lump-sum payment, while others reported an hourly rate.

Consequently, the hourly rate fees provided did not always add to the negotiated fee.

Page 17 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

Table I.7 shows the highest and lowest hourly attorney rate range reported

by the nine agencies, set out by statute, for fiscal years 1993 and 1994.

Page 18 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

Table I.7: Range of Hourly Attorneys’

Fee Rates Reported by the Nine

Agencies for Fiscal Years 1993 and

1994, Set Out by Statute

FY 1993 FY 1994

Authorizing federal statute

Hourly rate

low range

Hourly rate

high range

Hourly rate

low range

Hourly rate

high range

Equal Access to Justice Act

5 U.S.C. section

504(a)(1)

$45 $150 $10 $150

28 U.S.C. section

2412

60 320 50 320

Privacy Act

5 U.S.C. section

552a

0 0 130 130

Freedom of Information Act

5 U.S.C. section

552(a)(4)(E)

150 150 0 0

Civil Service Reform Act

5 U.S.C. section

5596(b)(1)

45 200 69 225

5 U.S.C. section

7701(g)

75 225 45 250

Internal Revenue Code

26 U.S.C. section

7430

79 100 20 270

Federal Property & Administrative

Services Act

40 U.S.C. section

759 (f)(5)(C)

50 175 0 0

Contract Disputes Act

41 U.S.C. section

607

0 0 75 75

National Childhood Vaccine

Injury Act

42 U.S.C. section

300aa-15(b)

25 250 55 190

Civil Rights Attorney Fees

Awards Act

42 U.S.C. section

1988

0 0 225 225

Civil Rights Act of

1964, title VII

42 U.S.C. section

2000e-5(k)

10 225 45 320

Note: Some rates reflect paralegal and clerk hourly rates.

Source: GAO analysis of data reported by the nine agencies.

Page 19 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

Basis for Attorneys’

Fee Awards Decisions

Overall, the nine agencies reported that the majority of the attorneys’ fee

awards were based on a lump-sum payment. Table I.8 shows the basis for

the agencies’ fee awards. Two award methods were reported for 8 of the

441 cases, and no award method was reported for 3 cases.

Table I.8: Basis for Plaintiff Attorneys’

Fee Awards Over $10,000 Against the

Nine Agencies, Fiscal Years 1993 and

1994

Award basis

Agency

Percentage of

plaintiff’s award

Lump-sum

payment Hourly rate

Defense 1 21 35

HHS 0 64 27

HUD 0 11 6

Interior 1 31 11

Justice 0 24 21

Transportation 1 12 13

Treasury 0 36 32

GSA 0 2 10

Postal Service 1 62 24

Total 4 263 179

Source: GAO analysis of data reported by the nine agencies.

Type of Proceeding The 441 attorneys’ fee awards cases reported by the 9 agencies were

almost equally distributed between administrative and judicial

proceedings. Almost two-thirds of the 441 cases were closed as a result of

a settlement. Table I.9 shows the breakdown of the type of proceeding by

agency. The administrative category also includes grievance arbitration

and settlements under Merit Systems Protection Board actions that some

agencies reported under the category “other.”

Page 20 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix I 

Attorneys’ Fees Over $10,000 Awarded

Against Nine Agencies in Fiscal Years 1993

and 1994

Table I.9: Number of Plaintiff

Attorneys’ Fee Awards Over $10,000

Against the Nine Agencies by Type of

Proceeding, Fiscal Years 1993 and

1994

Type of proceeding

Agency Administrative Judicial

Defense 43 13

HHS 3 89

HUD 4 13

Interior 13 29

Justice 15 29

Transportation 19 6

Treasury 29 39

GSA 10 2

Postal Service 74 11

Total 210 231

Source: GAO analysis of data reported by the nine agencies.

The 9 agencies reported that of the 441 awards, 276 awards were the result

of settlement agreements of which 153 awards were from administrative

proceedings and 123 were from judicial proceedings.

The fee awards under the Equal Access to Justice Act of over $10,000

reported to us by the nine agencies totaled $3.3 million in fiscal year 1993,

$3 million from judicial proceedings, and $0.3 million from administrative

proceedings.

Page 21 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix II 

Equal Access to Justice Act Annual Reports

Data for Fiscal Year 1993

On the basis of information contained in the Equal Access to Justice Act

annual reports, we determined that during fiscal year 1993, 257 attorneys’

fee awards totaling $1.3 million were authorized under the Equal Access to

Justice Act provisions covered by the reports. Of these awards, 232 awards

totaling $988,060 resulted from judicial proceedings, and 25 awards

totaling $317,893 resulted from administrative proceedings. The Attorney

General is responsible for issuing an annual report to Congress on certain

judicial awards under this act, and the Chairman of the Administrative

Conference of the United States is responsible for issuing an annual report

to Congress on administrative awards under this act. Table II.1 shows the

awards reported in the two annual reports for fiscal year 1993.

Table II.1: Attorneys’ Fee Awards

Reported in the Fiscal Year 1993 Equal

Access to Justice Act Annual Reports

Administrative awards Judicial awards

Agency Number Amount Number Amount

Defense 6 $104,823 2 $76,412

Commerce 1 9,228 0 0

Energy 0 0 1 23,875

GSA 3 24,024 0 0

HHS 0 0 215 769,500

Interior 0 0 1 8,500

Labor 2 38,152 1 20,317

Railroad Retirement Board 0 0 1 14,018

Transportation 11 100,083 0 0

Treasury 0 0 1 14,846

Postal Service 2 41,583 1 22,387

Not Specified 0 0 9 38,205

Totals 25 $317,893 232 $988,060

Source: GAO analysis of the Department of Justice and the Administrative Conference of the

United States annual reports on the Equal Access to Justice Act.

The total fiscal year 1993 attorneys’ fee awards over $10,000 authorized

under the Equal Access to Justice Act that the agencies provided to us (see

table I.3) differed from the data reported in the Equal Access to Justice Act

annual reports for that year. A Department of Justice official, who is

responsible for compiling the data, attributed the differences in part to

administrative problems involving the recent transfer of the act’s reporting

responsibility from the U.S. Courts to the Department of Justice. In

addition, an official of the Administrative Conference of the United States

said agency data reported to this agency occasionally includes case

Page 22 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix II 

Equal Access to Justice Act Annual Reports

Data for Fiscal Year 1993

information with no amount of attorneys’ fees specified because the

amount of the fee is to be determined in settlement negotiations.

Subsequently, an amount may have been determined and reported to us by

the nine agencies involved in our review.

Page 23 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix III 

Judgment Fund Attorneys’ Fee Awards in

Fiscal Years 1993 and 1994

In 1992, we reported on attorneys’ fees awarded to prevailing parties in

actions against the federal government. We found that for fiscal year 1991,

$1.8 million in attorneys’ fee awards, or about 7 percent of all attorneys’

fee awards, were paid from the Judgment Fund. Most of the awards that

year were paid from agency funds.

The Department of Justice and other agencies notify us of awards owed

under certain judgments and settlements that are to be paid by the

Judgment Fund. We are responsible for certifying payments from the

Judgment Fund. Some judgments and settlements combine the attorneys’

fee awards with the basic award to the plaintiff and do not specify the

amount of attorneys’ fees. In these instances, because it is not possible to

identify the specific amount awarded for attorneys’ fees and the Judgment

Fund reports all money paid in the basic award record, no money is shown

in the attorney fee record. Therefore, table III.1 understates the actual

attorneys’ fee award amounts.

In fiscal year 1993, the Judgment Fund’s attorneys’ fee record showed

payments of $11.6 million. In fiscal year 1994, the Fund’s attorneys’ fee

record showed payments of $12.2 million. Details of Judgment Fund

attorneys’ fee record payments during fiscal years 1993 and 1994 are

shown in table III.1.

Table III.1: Attorneys’ Fee Awards Paid

From the Judgment Fund, Fiscal Years

1993 and 1994

Attorneys’ fees paid

Agency FY 1993 FY 1994

Administrative Office of the U.S.

Courts

$0 $45,000

Bureau of Alcohol, Tobacco, and

Firearms

1,784 4,685

Army Corps of Engineers 0 302,160

Bureau of Indian Affairs 13,425 192,320

Bureau of Reclamation 0 186,000

Bureau of Prisons 0 22,575

Central Intelligence Agency 0 10,576

Customs Service 750 11,079

Defense Logistics Agency 7,806 0

Department of the Air Force 932,056 594,944

Department of the Interior 31,500 997,959

Department of State 204,000 669,078

Department of Agriculture 35,373 15,244

Department of Commerce 300,000 18,700

(continued)

Page 24 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix III 

Judgment Fund Attorneys’ Fee Awards in

Fiscal Years 1993 and 1994

Attorneys’ fees paid

Agency FY 1993 FY 1994

Department of Defense 48,200 299,136

Department of Education 3,030 0

Department of Energy 7,000 152,015

Department of Health and Human

Services

28,104 48,673

Department of Housing and Urban

Development

167,596 863,811

Department of Justice 156,059 201,871

Department of Labor 105,528 0

Department of Transportation 0 48,642

Department of Veterans Affairs 500,123 284,399

Department of the Army 481,685 568,519

Department of the Navy 2,976,875 1,517,483

Department of the Treasury 10,929 112,338

Drug Enforcement Administration 2,313 123,020

Environmental Protection Agency 861,687 685,494

Equal Employment Opportunity

Commission

697,378 6,961

Farmers Home Administration 44,522 0

Federal Aviation Administration 126,274 1,020,592

Federal Bureau of Investigation 26,070 44,216

Federal Energy Regulatory

Commission

0 40,000

Fish and Wildlife Service 179,466 254,649

Forest Service 411,822 47,410

General Services Administration 102,253 219,792

Government Printing Office 2,588 0

Health Care Finance Administration 0 3,500

Immigration and Naturalization

Service

38,465 23,840

Indian Health Service 50,000 0

Internal Revenue Service 738,011 836,611

Merit Systems Protection Board 0 10,000

Minerals Management Service 0 39,000

National Aeronautics and Space

Administration

517,436 8,122

National Highway Traffic Safety

Administration

7,000 0

National Labor Relations Board 6,666 0

National Park Service 2,500 0

(continued)

Page 25 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix III 

Judgment Fund Attorneys’ Fee Awards in

Fiscal Years 1993 and 1994

Attorneys’ fees paid

Agency FY 1993 FY 1994

Office of Personnel Management 0 4,325

Office of Surface Mining 98,823 0

Peace Corps 0 40,000

Securities and Exchange Commission 0 4,750

Small Business Administration 144,941 6,250

Smithsonian Institution 0 1,328

Social Security Administration 1,300 4,858

Secret Service 0 201,000

U. S. Information Agency 0 43,500

Marshals Service 2,500 110,710

Othera 1,555,122 1,214,524

Total $11,628,959 $12,161,657

aMiscellaneous, multiple, or unknown agencies.

Source: GAO analysis of Judgment Fund data.

Page 26 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix IV 

Survey of Nine Federal Agencies on

Attorneys’ Fees Over $10,000 Awarded

During Fiscal Years 1993 and 1994

United States General Accounting Office 2/13/95

Survey on Fees Awarded to

Plaintiff Attorneys

The Congress has requested the General Accounting Office obtain information on legal actions against

the federal government, particularly plaintiff attorney award fees. These legal actions comprise both

administrative and judicial proceedings, including settlements, but do not include bid protests.

As part of this review, we are seeking information on all non-bid protest legal actions brought against

your department/agency ...

• that had the attorney fee awarded in fiscal years 1993 or 1994 and

• where the plaintiff attorney fee award, excluding expenses, exceeded $10,000.

Do not include legal actions where your department/agency represented another department/agency.

For example, the Department of Justice should not include data on legal actions where it represented

the government for another department/agency.

We are interested in obtaining a separate response for each of these actions. Please make copies of

this questionnaire as needed and distribute to the appropriate agency components.

We request that the questionnaires for your agency be returned as a group. Please complete and return

these questionnaires as soon as possible or by no later than March 31, 1995, to

Mr. Jerry Aiello

U.S. General Accounting Office

Suite 865

477 Michigan Avenue

Detroit, MI 48226

If there are any questions, contact Jerry Aiello on (313) 256-8060.

Thank you for your cooperation.

Page 27 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix IV 

Survey of Nine Federal Agencies on

Attorneys’ Fees Over $10,000 Awarded

During Fiscal Years 1993 and 1994

GAO SURVEY ON FEES AWARDED TO PLAINTIFF ATTORNEYS

Department/agency: _____________________________ Bureau/Major program component: ______________________________

Please answer these questions for each legal action brought against your bureau/major program component a) that were non-bid

protests, b) that had the attorney fee awarded during fiscal years 1993 or 1994, and c) where the plaintiff attorney fee award,

excluding expenses, exceeded $10,000. Copy this page and complete it for each legal action. Exclude actions where the plaintiff

was awarded a lump sum and the attorney fee award was not separate.

CASE NUMBER: ___________________________ CASE TITLE : _______________________________________________

1. What is the statute name and U.S. Code citation

authorizing this plaintiff’s attorney fee award?

Statute name: ______________________________

U.S. Code citation: __________________________

2. In what fiscal year was the attorney fee awarded?

1993 ....... 1

1994 ....... 2

3. Excluding expenses (such as courier services, xeroxing,

technical assistance, etc.), what was the total amount of

the attorney fee award in this legal action?

$____________

4. On which of the following was the attorney fee award

decision based? (Check one.)

Percentage of

plaintiff award . 1 --> 4a. What was the percentage rate?

Lump sum ________ %

payment ..... 2

5. At the time this legal action was closed, was it in ...

(Check one.)

an administrative proceeding, . . 1

a judicial proceeding, or ...... 2

other? ................... 3

Please explain ________________________

_____________________________________

6. Was this legal action closed as a result of a settlement?

Yes . . . . . . . . . . . . . . 1

No . . . . . . . . . . . . . . 2

Please write any comments about this action on the back of

this page.

Contact person if we have questions about information

provided in this action.

Name: _______________________________

Phone number: ________________________

Hourly rate ... 3 --> 4b. What was/were the attorney fee hourly rate(s), the number of attorney hours approved, and the total

amount awarded at the rate? (The grand total should equal the amount reported above in Question 3.)

Hourly rate Number of hours Total amount awarded at this rate

$______ / hr _______ hours $_____________

$______ / hr _______ hours $_____________

$______ / hr _______ hours $_____________

$______ / hr _______ hours $_____________

$______ / hr _______ hours $_____________

$______ / hr _______ hours $_____________

$______ / hr _______ hours $_____________

$______ / hr _______ hours $_____________

Grand Total Attorney Fee Award $_____________

Page 28 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix V 

Comments From the Department of Defense

Page 29 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix VI 

Comments From the Department of Housing

and Urban Development

Page 30 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix VI 

Comments From the Department of Housing

and Urban Development

Page 31 GAO/GGD-96-18 Attorneys’ Fee Awards
Appendix VII 

Major Contributors to This Report

General Government

Division, Washington,

D.C.

Weldon McPhail, Assistant Director, Administration of Justice

 Issues

Patricia J. Scanlon, Staff Evaluator

David P. Alexander, Senior Social Science Analyst

Pamela V. Williams, Communications Analyst

Office of the General

Counsel, Washington,

D.C.

Susan Linder, Senior Attorney

Detroit Field Office Jerry W. Aiello, Evaluator-in-Charge

Edmund O. Price, Computer Programmer Analyst

(182009) Page 32 GAO/GGD-96-18 Attorneys’ Fee Awards
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