USDA LITIGATION

Limited Data Available on 

USDA Attorney Fee Claims 

and Payments

Statement of Eileen R. Larence, Director, Homeland 

Security and Justice

Testimony before the Subcommittee on 

Conservation, Energy, and Forestry, 

Committee on Agriculture, House of 

Representatives

For Release on Delivery 

Expected at 10:00 a.m., EDT

Wednesday, March 26, 2014

GAO-14-458T

United States Government Accountability Office
United States Government Accountability Office

Highlights of GAO-14-458T, a testimony 

before the Subcommittee on Conservation, 

Energy, and Forestry, Committee on 

Agriculture, House of Representatives 

March 2014

USDA LITIGATION

Limited Data Available on USDA Attorney Fee Claims 

and Payments

Why GAO Did This Study

In the United States, parties involved in 

federal litigation generally pay their 

own attorney fees. There are many 

exceptions to this general rule where 

“fee-shifting” 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 EAJA 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. 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. These concerns include that 

environmental organizations are using 

taxpayer dollars to fund lawsuits 

against the government, including 

against USDA. 

This statement addresses the extent to 

which USDA had information available 

on attorney fee claims and payments 

made under EAJA and other feeshifting statutes for fiscal years 2000 

through 2010. This statement is based 

on GAO’s April 2012 report on USDA 

and the Department of Interior attorney 

fee claims and payments and selected 

updates conducted in March 2014. To 

conduct the updates, among other 

things, GAO reviewed Forest Service

budget documents for fiscal years 

2014 and 2105 and interviewed Forest 

Service officials. 

What GAO Found

In April 2012, GAO found that the Department of Agriculture (USDA) did not 

report any aggregated data 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, but USDA and other key departments involved—the 

Departments of the Treasury and Justice—maintained certain data on individual 

cases or payments in several internal agency databases. However, collectively, 

these data did not capture all claims and payments. USDA officials stated at the 

time that given the decentralized nature of the department and the absence of an 

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

information was not centrally tracked and decisions about whether to track 

attorney fee data and the manner in which to do so were best handled at the 

agency level. Officials from 29 of the 33 USDA agencies GAO contacted for its 

April 2012 report stated that they did not track or could not readily provide GAO

with this information. The remaining 4 USDA agencies had mechanisms to track 

information on attorney fees, were able to compile this information manually, or 

directed GAO to publicly available information sources. GAO found that the 

Forest Service was the only program agency within USDA that was able to 

provide certain attorney fee data across the 11-year period. GAO reported in 

April 2012 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 (see fig. below). 

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

Number of Cases, Fiscal Years 2000 through 2010

Note: Forest Service data may include attorney fees authorized by underlying statutes, EAJA 

subsection (b), and EAJA subsection (d); as such, some funds may have been paid by the Judgment 

Fund, as opposed to agency appropriations.

However, the extent to which the 4 USDA agencies had attorney fee information 

available for the 11-year period varied. Given this limitation as well as others, 

such as inconsistent availability of payment data, GAO concluded that it was 

difficult to comprehensively determine the total number of claims filed for attorney 

fees, who received payments, in what amounts, and under what statutes. GAO 

did not make any recommendations in its April 2012 report.

View GAO-14-458T. For more information, 

contact Eileen R. Larence at (202) 512-8777

or larencee@gao.gov.
 

Page 1 GAO-14-458T 

Chairman Thompson, Ranking Member Walz, and Members of the 

Subcommittee:

Thank you for the opportunity to discuss our work on attorney fee claims 

and payments resulting from litigation involving the Department of 

Agriculture (USDA) and, in particular, the Forest Service. 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) 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.1 The 

premise of EAJA was to help ensure that decisions to contest 

governmental actions are based on the merits and not the cost of 

litigation, and, in enacting the law, Congress found that because of the 

greater resources and expertise of the federal government, the standard 

for an award of fees against it should be different from the standard 

governing an award against a private litigant, in certain situations. 

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. These concerns include that 

environmental organizations are using taxpayer dollars to fund lawsuits 

against the government, particularly against the USDA, the Department of 

the Interior (Interior), and the Environmental Protection Agency (EPA).2

My testimony today addresses the extent to which USDA had information 

available on attorney fee claims and payments made under EAJA and 

other fee-shifting statutes for fiscal years 2000 through 2010.3

 

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).

This 

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

A “fee-shifting” statute allows for the payment of attorney fees by a losing party to a 

prevailing party.
 

Page 2 GAO-14-458T 

statement is based on our April 2012 report on USDA Interior attorney fee 

claims and payments made under EAJA and other fee-shifting statutes 

and selected updates conducted in March 2014.4 To conduct the updates, 

including assessing the reliability of the updated Forest Service data, we 

reviewed the Forest Service’s fiscal years 2014 and 2015 budget 

justifications to obtain fiscal year 2011 though 2013 EAJA data and 

interviewed Forest Service officials to confirm that the Forest Service 

continues to use the same methods to track attorney fee payments that 

we reported in April 2012. In addition, we reviewed an August 2011 GAO 

report on environmental litigation involving EPA.5 Information about the

scope and methodology of the prior GAO reports is included in the April 

2012 and August 2011 reports. We conducted this work in accordance 

with all sections of GAO’s Quality Assurance Framework that were 

relevant to our objective. 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.

USDA has a broad and far-reaching mission—including improving farm 

economies and the nation’s nutrition, enhancing agriculture trade, and 

protecting the nation’s natural resource base and environment—and the 

department may face the prospect of litigation over its regulations and 

other actions. As with other federal agencies, where USDA is engaged in 

judicial litigation—cases brought in a court, including those that are 

settled—as a plaintiff or a defendant, the Department of Justice (DOJ) 

generally provides legal representation,6

 

4

GAO, Limited Data Available on USDA and Interior Attorney Fee Claims and Payments, 

and USDA provides technical 

GAO-12-417R (Washington, D.C.: Apr. 12, 2012).

5

GAO, Environmental Litigation: Cases against EPA and Associated Costs over Time, 

GAO-11-650 (Washington, D.C.: Aug. 1, 2011).

6

According to DOJ officials, three divisions litigate on behalf of USDA: (1) the Environment 

and Natural Resources Division handles most of the work on environmental litigation 

cases; (2) the Civil Division handles a broad range of litigation, including commercial, 

personnel, torts, and consumer protection litigation; and (3) the Executive Office for United 

States Attorneys 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 

that the Attorneys’ Offices handle overlap in some areas of law with those of the other two 

divisions.

Background
 

Page 3 GAO-14-458T 

and subject matter expertise and assists with the case, such as by 

drafting documents for DOJ to file and conducting research.7

The types of actions that involve USDA 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, such as title VII of the 

Civil Rights Act, which prohibits discrimination in employment. 

Additionally, the Administrative Procedure Act authorizes challenges to 

certain agency actions that are considered final actions, such as 

rulemakings and decisions on permit applications.

With respect to the payment of attorney fees, in the context of judicial 

cases, the law generally provides for three ways that prevailing parties 

can be eligible for the payment of attorney fees by the federal 

government.8 First, many statutes contain provisions authorizing the 

award of attorney fees from a losing party to a prevailing party; many of 

these provisions apply to the federal government. 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 subsection (b)).9

 

7

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. There are 

agencies, however, that have independent litigation authority. 

Under these first two ways, 

8

Under 28 U.S.C. § 2414, except as otherwise provided by law, compromise settlements 

of claims referred to the 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.

9

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). 
 

Page 4 GAO-14-458T 

when a party prevails in litigation against the government and is awarded 

attorney fees under court order or settlement,10 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).11

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)).12

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.

These awards or 

settlements are paid from the losing agency’s appropriation.

13 When such fees are awarded or agreed to in a settlement, they 

are generally paid from the agency’s appropriated funds.14

In this statement, we refer to attorney fees anytime fees were paid, 

regardless of the source of law authorizing the payment—independently 

 

10For purposes of this statement, we use “awarded” to reflect attorney fees that are 

awarded by administrative or court decision as well as those provided in settlements.

1131 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.

12In 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. 

135 U.S.C. § 504(a), (b)(1)(C). 

14Certain statutes, such as the Small Claims Act, 31 U.S.C. § 3723(c), and Federal Tort 

Claims Act, 28 U.S.C. § 2672, authorize the payment of administrative claims from the 

Judgment Fund. However, in our April 2012 report, we did not identify any attorney fee 

payments that were paid under these statutes.
 

Page 5 GAO-14-458T 

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. The payment 

process differs, however, based on the statute involved and whether the 

award was made at the administrative level or through the courts, as 

shown in figure 1.

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

Note: According to the Department of Agriculture, 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.
 

Page 6 GAO-14-458T 

In April 2012, we found that USDA did not report any aggregated data on 

attorney fee claims and payments made under EAJA and other feeshifting statutes for fiscal years 2000 through 2010, but USDA and other 

key departments involved—Treasury and DOJ—maintained certain data 

on individual cases or payments in several internal agency databases.15

However, collectively, these data did not capture all claims and payments. 

USDA officials stated at the time that given the decentralized nature of 

the department and the absence of an external requirement to track or 

report on attorney fee information, the information was not centrally 

tracked and decisions about whether to track attorney fee data and the 

manner in which to do so were best handled at the agency level.16

Accordingly, for our April 2012 report, we contacted 33 agencies within 

USDA to obtain their available attorney fee information.

 

17

 

15

In response, 

officials from 29 of the 33 USDA agencies told us that they did not track 

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

generally stated that this is because their agencies deal with few or no 

attorney fee cases, the payment amounts are minimal, another agency 

within the department tracked this, or the agency did not need this 

information 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. 

We reported that the remaining 4 USDA 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 sources where we could obtain the information. These 

four agencies were: (1) the National Appeals Division (NAD), an agency 

that conducts hearings of administrative appeals of adverse actions by 

certain USDA agencies; (2) the Office of Assistant Secretary for Civil 

Rights (OASCR) an agency that adjudicates employee discrimination 

GAO-12-417R. 

16From 1981 through 1995, EAJA provided for governmentwide reporting on claims paid 

under EAJA in the form of two annual reports to Congress. In 1995, EAJA reporting 

requirements were repealed. Federal Reports Elimination and Sunset Act of 1995, Pub. L. 

No. 104-66, §§ 1091, 3003, 109 Stat. 707, 722, 734. The financial management system 

for USDA includes information on litigation costs. However, the information in the system 

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).

17USDA agencies and offices are referred to as agencies for purposes of this statement.

Most USDA Agencies 

Did Not Have Readily 

Available Attorney 

Fee Information
 

Page 7 GAO-14-458T 

complaints; (3) USDA’s Office of Administrative Law Judges (OALJ);18

and (4) the Forest Service, which 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. In our April 2012 report, we identified one program agency at 

USDA—the Forest Service—that maintained attorney fee data. The 

Forest Service maintained the data in two different information sources: 

(1) a spreadsheet that 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, the 

National Forest Management Act, and the Endangered Species Act; and 

(2) a separate accounting code in the USDA financial database.19

Further, in April 2012, we reported that given the differences in attorney 

fee information available across the 4 USDA agencies and the limitations 

identified below, it was difficult to comprehensively determine (1) the total 

number of claims filed for attorney fees, (2) who received payments, (3) in 

what amounts, and (4) under which statutes. Specifically, we found:

We 

discuss these two sources in further detail below. We reported that the 

attorney information maintained by these four agencies varied with 

respect to the time frame for which data were available, whether the 

agency had information on the amount awarded versus the amount paid, 

and the statutes under which the cases were brought, among other 

information. 

• The total number of claims filed for attorney fees could not be 

determined. Two USDA agencies—NAD and OALJ—that provided 

information on attorney fee data did not maintain data about claims for 

attorney fees that were filed but denied. As a result, we concluded 

that the number of claims filed may be understated for these 

agencies.

• Information on who received the payment was 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 everyone who received payments. For example, we 

 

18OALJ directed us to publicly available sources on cases.

19This is USDA’s budget object classification code 4236. 
 

Page 8 GAO-14-458T 

reported that the Forest Service spreadsheet listed 241 cases with 

attorney fees all of which identified the first-named party in the case, 

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, we concluded that the first named party may not reliably 

identify who actually received the attorney fee payment.20

• Data on actual attorney fee payments made were not 

consistently available. We also reported that 2 of the 4 agencies—

NAD and OALJ—provided information on award or settlement 

amounts rather than attorney fee payment amounts.21 Amounts 

awarded reflect the attorney fee award included in a decision or 

settlement, and amounts paid reflect the actual amount the agency 

paid. According to DOJ officials at the time, award or settlement 

amounts may differ from payment amounts because award amounts 

may increase because of 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, and an appeal could change the amount the 

agency ultimately paid). In addition, decisions and settlement 

agreements may not separate attorney fees and costs from damages, 

a fact that prevents agencies and Treasury from knowing exactly how 

much was allocated for each purpose.22 We concluded that in these 

instances, the attorney fee amounts cannot be determined.

• Statutes under which the case was brought were not always 

recorded. Last, we found that the Forest Service did not track 

 

20For example, for our April 2012 report, we reviewed 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.

21The Forest Service spreadsheet data included award, not payment, amounts. However, 

the Forest Service also began capturing EAJA attorney fee payment data in the USDA 

financial database in fiscal year 2009. OASCR maintained data on both award or 

settlement amounts and attorney fee payments during fiscal years 2005 through 2010.

22Damages 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.
 

Page 9 GAO-14-458T 

information on the statutes underlying the award or payment because 

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 official estimated that between two-thirds 

and three-quarters of the Forest Service natural resource cases 

involve challenges under the National Environmental Policy Act, the 

National Forest Management Act, the Endangered Species Act, or a 

combination of these acts.

In our April 2012 report, we found that the Forest Service was the only 

program agency that was able to provide us with attorney fee data across 

the 11-year period and 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. Forest Service officials maintained 

this information in a spreadsheet that 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 at the time 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, 

we reported that 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. We also reported on several limitations of the data that were 

identified by the official who developed the spreadsheet. 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. Accordingly, 

nonenvironmental cases, such as those brought under the Freedom 

of Information Act (FOIA), Equal Employment Opportunity Act, and 

other civil rights statutes, were not included.
 

Page 10 GAO-14-458T 

• 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.23

• 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 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.

Using the Forest Service’s spreadsheet data, we reported 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.24

 

23Although the Judgment Fund database generally identifies portions of a payment 

attributed to attorney fees, costs, and other categories, in conducting our review for the 

April 2012 report, 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. Additionally, the Forest Service spreadsheet did not include the source 

of the attorney fee payments. 

Figure 2 shows the amounts of attorney fees awarded 

and number of cases at the Forest Service by fiscal year.

24Unless otherwise noted, all figures reported in this statement are in constant 2010 

dollars.
 

Page 11 GAO-14-458T 

Figure 2: Attorney Fees and Costs Awarded against the Forest Service in Environmental Cases and Number of Cases, Fiscal 

Years 2000 through 2010

Note: Forest Service data may include attorney fees authorized by underlying statutes, EAJA 

subsection (b), and EAJA subsection (d); as such, some funds may have been paid by the Judgment 

Fund, as opposed to agency appropriations.

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, we reported that the awards 

ranged from $350 to about $500,000, and that larger awards may skew 

the 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 (about 36 percent) in total awards.

Our April 2012 report found that 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. These data show 

that the Forest Service paid about $2.3 million in 32 cases from March 

2009 through September 2010.25

 

25Most payments (29 of 32) in the Forest Service financial database were also included 

with the 241 cases in the spreadsheet.

In April 2013, the Forest Service 
 

Page 12 GAO-14-458T 

publicly reported information on the agency’s EAJA attorney fee 

payments.26

In April 2012, we also reported that Treasury maintains certain data on 

some USDA cases involving attorney fee payments. 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. Specifically, we 

found that Treasury made 187 payments totaling $16.9 million on behalf 

of USDA from March 2001 through September 30, 2010. These payments 

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 1. Treasury 

made 88 of the 187 payments as a result of a class action lawsuit on 

behalf of black farmers alleging discrimination.

Specifically, in its fiscal year 2014 budget justification, the 

Forest Service reported that it had 15 EAJA cases in fiscal year 2011 

(awarding about $1.5 million) and 11 cases in 2012 (awarding about 

$565,000). According to the Forest Service’s fiscal year 2015 budget 

justification, the agency had 18 EAJA cases in 2013, awarding about $1.6 

million.

27

 

26The Forest Service began publicly reporting EAJA attorney fee payments in response to 

the House report accompanying the Department of the Interior, the Environmental 

Protection Agency, and Related Agencies appropriations bill for fiscal year 2012, which 

directed 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. H.R. Rep. No. 112-151, at 8-9 (2011). See also H.R. Rep. 

112-331, at 1046 (2011) (Conf. Rep.). 

27See 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 13 GAO-14-458T 

Table 1: 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 costs a Numberof 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 Judgment Fund Internet Claims System. For payments 

associated with inverse condemnation claims (an action brought by a property owner for 

compensation from a governmental entity that has taken the owner's property without bringing formal 

condemnation proceedings), statutes are as identified in publicly accessible court records.

In April 2012, we also reported on the amount and number of payments 

Treasury made on behalf of USDA, by fiscal year, as shown in figure 3.
 

Page 14 GAO-14-458T 

Figure 3: USDA Attorney Fees Paid and Number of Payments from Treasury’s 

Judgment Fund, Fiscal Years 2001 through 2010

Specifically, figure 3 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). We found that the payments ranged from 

about $175 to about $1.1 million, and that 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.28

In addition, we found in April 2012 that DOJ maintains certain data on 

some USDA cases involving attorney fee payments, but DOJ’s data are 

not readily retrievable or complete. In particular, DOJ has internal agency 

databases that capture information on individual court cases, but officials 

 

28Pigford v. Glickman, 185 F.R.D. 82 (D.D.C. 1999).
 

Page 15 GAO-14-458T 

stated at the time that these databases do not reliably capture attorney 

fees and costs.29

Litigation costs are broader than attorney fees; they may include 

damages awarded to the prevailing party, personnel hours that USDA 

program staff and attorneys spent, and DOJ attorney costs. Our April 

2012 report on USDA attorney fee payments did not address the extent to 

which USDA and DOJ are capturing these broader costs because we 

focused specifically on attorney fee claims and payments. However, 

through the course of our review, we found that some information on 

these broader costs is available. For example, we reported that UDSA 

has an accounting code in its financial database for tracking the costs of 

litigation. This code (4230) captures information on litigation costs, 

including attorney fees awards, damages and other costs.

For example, we reported that DOJ officials said that 

their databases were designed for internal management purposes and 

not for agency-wide 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. According to a 

senior DOJ official, DOJ is not required to enter EAJA award data into its 

database. We concluded that because DOJ handled tens of thousands of 

cases over the 11-year period on behalf of USDA, we could not readily or 

systematically review all of the case files for our April 2012 review to 

determine the attorney fee awards.

30

 

29Specifically, DOJ officials said at the time 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. 

Like USDA’s 

code that captures attorney fee payment information described earlier 

(4236), this code does not differentiate the statute under which agencies 

made such payments. In March 2014, Forest Service officials confirmed 

that the agency is using these codes and also stated that the agency 

does not track other litigation costs, such as the cost or time associated 

with the support provided to DOJ in preparation for litigation, because the 

litigation specialists who assist DOJ with these cases are salaried 

employees. In addition, in August 2011, we reported that DOJ maintains 

some data on the number of hours attorneys devote to environmental 

30Other costs includes 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 16 GAO-14-458T 

litigation defending EPA.31 Specifically, the Environment and Natural 

Resources Division’s case management system contains information on 

the number of hours the division’s attorneys spent working on 

environmental litigation defending EPA. However, we reported that the 

U.S. Attorneys’ Office’s database does not contain information on 

attorney hours worked by case, which meant that in our prior report on 

EPA litigation, we could not determine the time these attorneys spent on 

each case.

Chairman Thompson, Ranking Member Walz, and members of the 

subcommittee, this completes my prepared statement. I would be happy 

to respond to any questions you may have at this time.

For further information on this statement, please contact Eileen R. 

Larence at (202) 512-8777 or larencee@gao.gov. Contact points for our 

Offices of Congressional Relations and Public Affairs may be found on 

the last page of this statement. Individuals making key contributions to 

this statement include Maria Strudwick (Assistant Director), Paul Hobart, 

Ron La Due Lake, Jessica Orr, Janet Temko, and Ellen Wolfe.

 

31GAO-11-650. 

Contacts and 

Acknowledgments

(441216)
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