Who Does the Equal Access to Justice Act Protect?

At the end of an otherwise unremarkable article about yet another environmental group reversing in court a federal agency’s illegal decision, and getting paid for its troubles under the Equal Access to Justice Act, is the following postscript:

In fiscal 2020, 16 federal agencies reported 15,596 separate awards under the EAJA totaling more than $101 million. The Social Security Administration and the Department of Veterans Affairs accounted for the vast majority of the EAJA payments.

And the answer is: Veterans and seniors. That’s who.

12 thoughts on “Who Does the Equal Access to Justice Act Protect?”

  1. Andy, I think people can be for EAJA awards for Vets and Seniors and maybe don’t want it to apply to specific kinds of litigation (say against fuel treatments or wind farms or ???). It’s not required to be one size fits all (from the standpoint that anything in government that can be developed, can be undeveloped). Other than the Constitution, perhaps.

    • So laws protecting Vets and Seniors are less important than laws protecting the environment? Vets and seniors benefit, too, from environmental protection laws. Remember, EAJA fees kick in ONLY when the government BREAKS the law and its position in court is NOT SUBSTANTIALLY JUSTIFIED. Our government should NEVER break the law. But, in recognition that government can be corrupt and/or stupid, Congress, in its wisdom, has sought to make it a little bit easier to enforce the laws it has adopted, knowing full well that the average person doesn’t have the world’s largest law firm on its side.

    • Right but that would derail the ‘lil high horse this post rode in. Notwithstanding that it’s absolutely two separate questions that on one hand vets and seniors benefit from EAJA to point out that on the second hand the law creates potential for abuse in certain applications.

      Looking to the comments below, it’s important to remember (sarcastically), that courts are incapable of bias, and very wise. Unless it’s a judge appointed under a republican admin. For instance ref. https://www.eli.org/research-report/judging-nepa-hard-look-judicial-decision-making-under-national-environmental-policy-act. A useful report but also one that appears *stunningly* unaware of the implication of the report is that democratic appointees also evidence an implicit bias in their decision making, because the report appears to operate from the supposition that “pro-environmental” litigants represent the factual, correct baseline with respect to questions of environmental law, all while differing positions represent an attempt to evade or otherwise break the law.

      All of the above is of course deliberately overstated, but the point is, why assume courts are any less prone to bias, randomness, and caprice in their interpretations, or that a given court interpretation represents (*movie-trailer announcer voice*) government corruption as opposed to differing interpretations of a law not necessarily motivated by bad faith?

  2. The EAJA is a great law that gives recourse to many with very little means who have been wronged in getting entitlements they are deserving of.

    That said it has been misused by multi million dollar environmental organisations as another means of funding, particularly the Center for Biological Diversity and Earth Justice who’ve made a cottage industry out of suing for technicalities and even though their case might lose on it’s merits they prevail on the technicalities and are able to charge legal fees of what are almost volunteer lawyers.

    If you can convince a judge that the construction of a bar ditch didn’t properly consider the genetic connectivity of the grizzly bear you can recoup every hour spent litigating, and those hours are at the going rate, not the barely sustainable rate the CBD pays. Back towards when Obama was elected I remember them saving up a bunch of requests for endangered species status, hundreds of requests, and then suing under the EAJA because the biologists at the USFWS had not enough time to review a score of species let alone the hundreds submitted.

    Not sure what the solution is. Maybe disallow litigation under the EAJA by orgs larger than a half million in gross. Many small, local, mostly volunteer environmental groups do a lot of good.

    • Som sai: CBD’s fees in cases enforcing the Endangered Species Act, which you cite, have nothing to do with the Equal Access to Justice Act. The ESA has its own, independent, fees provision, which evinces Congress’ strong support for species protection:

      The court, in issuing any final order in any suit brought pursuant to paragraph (1) of this subsection, may award costs of litigation (including reasonable attorney and expert witness fees) to any party, whenever the court determines such award is appropriate. 16 USC 1540(g).

      Note that the ESA’s fee provision is not cabined by EAJA’s statutory cap on hourly rates nor the government’s position lacking substantial justification.

      • Hi Andy:

        Disregarding the claim that environmental laws “protect” the environment, and compared to veterans and us seniors, how much EAJA funding went to the Center for Biological Diversity and to Earth Justice in FY 2020?

        You are the expert on these types of laws and disbursements, so when you say that the “ESA’s fee provision is not cabined by EAJA’s statutory cap on hourly rates nor the government’s position lacking substantial justification,” what does that mean? Easier for a lawyer to make more with less proof by going through ESA, or something else?

        Given the apparent separate nature of ESA disbursements of taxpayer funds to lawyers, how much did the Center for Biological Diversity and Earth Justice from this source in FY2020? More to the point, how much have these two “nonprofits” been paid by taxpayers since 2010? Since 2000? Since 1990?

        • Bob: I don’t care how much CBD, EJ, or anyone else was compensated for enforcing the law. I’m simply grateful they did so. Signed: A law-abiding American.

          • Andy I’m sure this will come as a surprise but we actually have people whose job is to enforce the law. https://en.wikipedia.org/wiki/Law_enforcement When Kieren Sukling, founder of CBD was booked those were the folks who busted him. CBD, EJ, just want to make as much money as possible and to make it impossible for the biologists at USFWS to do their job.

            • It’s Friday evening, so I forgive myself for responding. How do you know that CBD and EJ “want to make as much money as possible and to make it impossible for the biologists at USFWS to do their job?” Did you ask them? Can you read their minds? For six years I worked for EJ (then called SCLDF). I didn’t want to make as much money as possible. I didn’t want to make it impossible for biologists to do their jobs. I don’t know any colleagues who did. PS: “Law enforcement” enforces criminal law, e.g., murder, rape, and other forms of violence. Citizens cannot enforce criminal law. Citizens can enforce civil law, e.g., torts and environmental laws. You do know the difference, don’t you?


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