Fee-shifting acts also help farmers

Alan Schroeder


For the Capital Press

There are several fee-shifting statutes that allow an aggrieved citizen to recover an award of costs and attorney fees in a legal action involving the federal government. The administrative Equal Access to Justice Act and the judicial Equal Access to Justice Act are just two.

The standards for an award vary by the statute. EAJA arguably provides the most rigorous standard. EAJA requires that the applicant satisfy certain qualifications; the applicant prevail against the federal government; the judge determine the position of the government is not substantially justified; and the applicant document the costs, fees and hourly fee rate.

The Capital Press offers a compelling argument in a front-page article on Oct. 16 demonstrating some reason for alarm as to the application of EAJA, particularly as related to "environmental groups." This article has been reprinted by other news sources and across the Internet.

This alarm has sent, in my humble opinion, a message adverse to the interests to citizens that are exposed to arbitrary or unlawful actions imposed upon them by the federal government.

I received a telephone call from a person after he read the article. This person quoted certain parts to me, concluding that this needs to stop and that this law needs to be changed (if not repealed). I told this person that I thought it was ironic that he should be so displeased, given he himself had only recently been awarded a relatively large sum of money under EAJA after he prevailed in an arbitrary or unlawful action by the government against him. After hearing this, this person noted that he never thought about that.

Be careful what you are saying. ...

In this situation, you may likely get Congress to repeal fee-shifting statutes. This result will not be a win for ranchers and farmers or for the public. This would be a win for the government that advances arbitrary or unlawful action against citizens without the risk of having to pay any portion of the aggrieved citizens' costs and fees.

I am not advocating that these fee-shifting statutes are perfect. Likely that is the common ground that I share with the article. There is room for improvement. For me, the hourly rates are at the top of the ladder. Allowing a lawyer representing an "environmental group" to rationalize hourly rates, like even $520 an hour in some cases, should trouble us when such fees are not actually paid by the group to the lawyer. Only costs and fees actually paid by the client to the lawyer should be subject to an award.

Should the legal services be pro bono, then the hourly rate should be established by law, not by some lawyer-friend of the lawyer who may aver as to the "reasonableness" of the rate. There is already precedent in the administrative EAJA that limits the rate to $125 an hour. The implementation of just this single idea may never fully reimburse an aggrieved citizen, but yet it may be a means to end the apparent windfalls that some lawyers for "environmental groups" are likely making to finance the other cases to which they don't prevail.

In the end, a scalpel is warranted to address the alarm being advanced, not a hatchet.

Alan Schroeder is a public land litigation lawyer in Boise, Idaho.

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