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Eric Johnson
03-08-2010, 03:17 PM
http://tinyurl.com/ydrwfhq

They file suits; you pay

Posted on: 3.6.2010 11:26:43 AM

<http://www.feedstuffsfoodlink.com/ME2/dirmod.asp?sid=124ECF05FDF84451B3E79A337664CA3C&nm=Blog&type=Blog&mod=Email+Topic&mid=67D6564029914AD3B204AD35D8F5F780&tier=11&id=B17D969ABDC6480088921FC87371AC92&Title=They+file+suits%3B+you+pay>


By SALLY SCHUFF

I bet you didn't know that taxpayers often foot the bill for the legal
fees when major activist organizations successfully bring lawsuits
against the federal government.

Millions of tax dollars have gone to big groups like Sierra Club, the
Natural Resources Defense Council and The Humane Society of the United
States.

This tax-funded generosity came as news to me last week, and all because
three members of Congress teamed up to make it public. They are
sponsoring a bill to bring oversight and full public disclosure of
payments made under the 1980 Equal Access to Justice Act (EAJA) -
something that apparently hasn't happened for the past 15 years.

"It's time to shine some light on the hijacking of the equal justice law
by some groups and the environmental litigation industry that supports
their 'stop everything' agenda," said Rep. Cynthia Lummis (R., Wyo.),
who is particularly concerned about the lawsuits' impact on public land
use.

She is joined by Reps. Stephanie Herseth Sandlin (D., S.D.) and Rob
Bishop (R., Utah) in a bipartisan attempt to bring the payments into the
open. They are underpinning their effort with two new studies that
analyze which organizations received payments and how open the reporting
system was - or, more accurately, wasn't.

Lummis called on environmental organizations that have benefited from
the payments to support the transparency.

When Congress passed EAJA in 1980, it was supposed to "help individuals,
small businesses and nonprofits with limited means seek judicial redress
against the federal government," the three sponsors explained in a joint
statement. Those who won their cases or prevailed in out-of-court
settlements could seek repayment of legal fees.

However, the new studies -- one by a Wyoming law firm and one by
Virginia Tech University - show that major environmental groups have
been the chief beneficiaries.

The Wyoming study found that "14 environmental groups have brought more
than 1,200 federal cases in 19 states and the District of Columbia and
have collected more than $37 million in taxpayer dollars through EAJA or
other similar laws," the statement reported. The data do not include
settlements or fees sealed from public view.

The study, which Feedstuffs obtained, showed that the payments were
sometimes reported in public documents, but often they were not.

"For too long, taxpayers have unwittingly served as the financiers of
the environmental litigation industry. Without improved oversight, EAJA
will continue to be abused by organizations that have made a cottage
industry out of suing the federal government in an effort to advance
their radical political agendas," Bishop said.

The bill, H.R. 4717, would "reinstate and consolidate tracking and
reporting requirements under the Department of Justice and would require
DOJ to publish an online, searchable database of EAJA payments that is
open to the public. It would also authorize an audit of the last 15
years when EAJA operated with absolutely no oversight," the announcement
said.

The Virginia Tech study, which surveyed five federal agencies using
Freedom of Information Act requests, closely jived with the Wyoming
study, the sponsors noted, and the depth of the disclosure problem was
confirmed when the study found that two of the queried agencies "could
provide absolutely no data on EAJA payments."

The lawmakers listed several groups, particularly those whose members
use public lands, as supporters of the legislation -- the National
Cattlemen's Beef Assn. (NCBA) and Public Lands Council among them.

"Because the government has neglected to provide oversight, EAJA has
become a breeding ground for abuse by radical environmental groups,"
NCBA president Steve Foglesong said in a statement. "The fact that
millions of dollars in taxpayer funds have been awarded with virtually
no accounting of who received the payments is unacceptable."

YardleyLabs
03-08-2010, 04:58 PM
The law requires the Federal government to pay legal fees when it loses a civil case and there is a finding that its legal position was not substantially justified. It seems to me that this provisions protects all of us from arbitrary efforts by the Federal government to use its legal power to intimidate. Fro a tort reform perspective, maybe a similar requirement should exist in all civil litigation. If you sue me and you not only lose but your position is not substantially jusitifed, you pay all legal bill that I incurred to defend myself.

Uncle Bill
03-08-2010, 05:47 PM
The law requires the Federal government to pay legal fees when it loses a civil case and there is a finding that its legal position was not substantially justified. It seems to me that this provisions protects all of us from arbitrary efforts by the Federal government to use its legal power to intimidate. Fro a tort reform perspective, maybe a similar requirement should exist in all civil litigation. If you sue me and you not only lose but your position is not substantially jusitifed, you pay all legal bill that I incurred to defend myself.


If you believe in that last line, I'm flabbergasted. Do you have any more astonishing revelations to tell us? Better yet, do you believe you can convince any legal firm or legislator to make that a law...as it should be?


UB

YardleyLabs
03-08-2010, 05:59 PM
If you believe in that last line, I'm flabbergasted. Do you have any more astonishing revelations to tell us? Better yet, do you believe you can convince any legal firm or legislator to make that a law...as it should be?


UB
I do not think it will happen, and believe there are some good arguments against it. However, it is a concept that exists in current law to a very limited extent (Judges may award legal costs against parties that bring frivolous suits), This would be more a matter of shifting the standard from frivlous to substantially justified.

Eric Johnson
03-08-2010, 09:33 PM
Jeff...

This is about the fact that there is no accountability in the program and that the program largely seems to be used today to sue the government by activist groups. It's not a simple matter of "legal aid" for indigents.

Eric

YardleyLabs
03-09-2010, 06:15 AM
Jeff...

This is about the fact that there is no accountability in the program and that the program largely seems to be used today to sue the government by activist groups. It's not a simple matter of "legal aid" for indigents.

Eric
I understood your point. But when I began researching how the "program" operate, I found it is not a program but simply law, much like rule 11 (making attorneys and plaintiffs liable for frivolous law suits), is simply a law. If the Federal government or an agency forces legal action by an individual or group without a reasonably justifiable case, it is liable for legal costs incurred in the action. The determination of liability and the amount to be paid is made by the judge in the case, not through a separate process. All such awards are a matter of public record as with any court judgment. In fact, if liberal groups are more likely to be beneficiaries of such proceedings (I saw no evidence to suggest they are), it would suggest that liberal groups are more often the victims of frivolous government enforcement activities than conservative groups.

Henry V
03-09-2010, 07:48 AM
Jeff...

This is about the fact that there is no accountability in the program and that the program largely seems to be used today to sue the government by activist groups. It's not a simple matter of "legal aid" for indigents.

Eric
Did you miss this:
.... taxpayers often foot the bill for the legal fees when major activist organizations successfully bring lawsuits against the federal government.

When the government makes a bad decision that is contrary to law and someone holds them accountable through use of the justice system why do you think it is not appropriate for the government to "often" foot the bill since the government screwed up?

When an organization loses they do not get their legal fees covered, which is a clear disincentive for filing claims that have no substantive chance of winning.

edit: Add complete transparency, no big deal.

Eric Johnson
03-09-2010, 10:14 AM
Henry-

I guess I would feel more benign about this if the US had a system of "loser pays'. We don't. Under this program, the government pays either way in some cases.

However, the real thrust of the article is that .... nobody knows. The EAJA is this amorphous cloud that just drifts along and apparently there are no budgetary or fiduciary controls on it.

The HSUS is a $100 million a year program. In 2009 they spent less than $500,000 on the direct protection of animals and $2.5 million on pension fund contributions. Yet they seem to be regulars at this particular trough. For that matter, will the HSUS expect EAJA funds to defend them in the just announced RICO suit? Nobody knows and they should.

Eric