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

GAO-12-417R Published: Apr 12, 2012. Publicly Released: May 02, 2012.
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What GAO Found

Most USDA and Interior agencies did not have readily available information on attorney fee claims and payments made under EAJA and other fee-shifting statutes for fiscal years 2000 through 2010. As a result, there was no way to readily determine who made claims, the total amount each department paid or awarded in attorney fees, who received the payments, or the statutes under which the cases were brought for the claims over the 11-year period. Both USDA and Interior officials stated that given the decentralized nature of their departments and the absence of an external requirement to track or report on attorney fee information, decisions such as whether to track attorney fee data and the manner in which to do so are best handled at the agency level. Specifically, officials from 65 of the 75 USDA and Interior agencies we contacted told us that they did not track or could not readily provide us with this information. The remaining 10 USDA and Interior agencies 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 information sources where we could obtain the information. However, the extent to which these agencies had attorney fee information available for the 11-year period varied. Given this difference among these 10 agencies as well as various limitations—such as 5 USDA and Interior agencies not maintaining data about claims for attorney fees that were filed but denied—it is difficult to comprehensively determine the total number of claims filed for attorney fees, who received payments, in what amounts, and under what statutes.

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 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 administrative actions are based on the merits and not the cost of litigation, thereby encouraging agencies to base such actions on informed deliberation. 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, such as concerns that environmental organizations are using taxpayer dollars to fund lawsuits against the government, particularly against the Department of Agriculture (USDA), the Department of the Interior (Interior), and the Environmental Protection Agency (EPA).

In the context of judicial cases—those brought in a court, including those that are settled— 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 award of attorney fees from a losing party to a prevailing party. Many of these apply to the federal government; for example, most claims under the Endangered Species Act and those under Title VII of the Civil Rights Act of 1964 apply to the federal government independent of EAJA. 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 that a party may obtain attorney fees from the federal government, 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)). These awards or settlements are paid from the losing agency’s appropriation. Where a federal agency is engaged in judicial litigation, as a plaintiff or a defendant, the Department of Justice (DOJ) generally provides legal representation for the government. However, DOJ officials reported that there are many exceptions, because several federal agencies—such as the Securities and Exchange Commission, the Commodity Futures Trading Commission, the Federal Election Commission, the National Labor Relations Board, and the Consumer Financial Protection Bureau—have considerable independent litigation authority.

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.Other statutes, such as Title VII of the Civil Rights Act of 1964, also authorize the payment of attorney fees in administrative proceedings. When such fees are awarded or agreed to in a settlement, they are generally paid from the agency’s appropriated funds.According to DOJ officials, this adversarial subset of administrative proceedings for which the government may be liable for attorney fees represents a relatively small proportion of governmentwide administrative proceedings.

In this report, we refer to attorney fees any time such 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.

From 1981 through 1995, EAJA provided for governmentwide reporting on claims paid under EAJA in the form of two annual reports to Congress. One report described administratively awarded payments and was the responsibility of the Chairman of the Administrative Conference of the United States (ACUS), while the other report described court-awarded payments and was issued initially by the Director of the Administrative Office of the U.S. Courts and later by the Attorney General.For fiscal year 1994—the last year for which data were available—USDA did not report any awards and Interior reported one administrative award and no court awards. In 1995, Congress defunded ACUSand EAJA reporting requirements were repealed,thereby eliminating the statutory mechanism to oversee these expenditures.There has been no official accounting of EAJA payments since then. ACUS was re-established in 2010, but requirements to report on attorney fee payments have not been re-enacted as of April 10, 2012.

In August 2011, we reported on the costs, including attorney fee payments, associated with environmental litigation cases against EPA. For this report, Congress asked us to determine the extent to which data are available on attorney fee payments made under EAJA and other fee-shifting statutes at USDA and Interior for fiscal years 2000 through 2010. This report addresses the extent to which USDA and Interior had information available on attorney fee claims and payments made under EAJA and other fee-shifting statutes for fiscal years 2000 through 2010, including who made claims for payment, which claims were paid, the amount paid for each approved claim, and the statutes under which the cases were brought.

For more information, contact William O. Jenkins, Jr. at (202) 512-8777 or

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