USDA Litigation: Limited Data Available on USDA Attorney Fee Claims and Payments
Published: 2014-03-26T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: 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 fee-shifting 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.
section_title: What GAO Found
paragraphs: 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).
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.

section_title: Letter
paragraphs: 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. 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).
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. This 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. 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   Information about the  report on environmental litigation involving EPA.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.
subsections: section_title: Background
paragraphs: 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)   and USDA provides technical  generally provides legal representation,and subject matter expertise and assists with the case, such as by  drafting documents for DOJ to file and conducting research.
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. 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)).
Under these first two ways,  when a party prevails in litigation against the government and is awarded  attorney fees under court order or settlement, 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).  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)).settlements are paid from the losing agency’s appropriation.
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. When such fees are awarded or agreed to in a settlement, they  are generally paid from the agency’s appropriated funds.
In this statement, we refer to attorney fees anytime 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. 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.
section_title: Most USDA Agencies Did Not Have Readily Available Attorney Fee Information
paragraphs: In April 2012, we found that USDA did not report any aggregated data on  attorney fee claims and payments made under EAJA and other fee- shifting 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.  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.
Accordingly, for our April 2012 report, we contacted 33 agencies within  USDA to obtain their available attorney fee information. 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  complaints; (3) USDA’s Office of Administrative Law Judges (OALJ);  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.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.
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:
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  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.
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. 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. 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  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.
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.
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. Figure 2 shows the amounts of attorney fees awarded  and number of cases at the Forest Service by fiscal year.
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. In April 2013, the Forest Service  publicly reported information on the agency’s EAJA attorney fee  payments. 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.
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.
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.
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.
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  stated at the time that these databases do not reliably capture attorney  fees and 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.
Other 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. litigation defending EPA.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.
Specifically, the Environment and Natural  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.
section_title: Contacts and Acknowledgments
paragraphs: 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.
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