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Our firm defended a tribal absentee ballot law (denying absentee ballots to non-resident members) against constitutional attack in Jacobson v. Eastern Band of Cherokee Indians, No. CV-05-101 (Supreme Court of the Eastern Band of Cherokee Indians, Nov. 29, 2006).

GENERAL MEMORANDUM 11-083

GENERAL MEMORANDUM 11-083
Legislation Introduced to Limit Attorneys' Fees Against Government Under the Equal Access to Justice Act

Legislation has been introduced in the House and the Senate that would amend the Equal Access to Justice Act (EAJA) in ways that would discourage parties from suing the United States. If enacted, the bill would reduce the incentive of tribes and tribal organizations, particularly smaller ones, to challenge unjustified government actions.

The EAJA authorizes a district court, or a federal agency in an administrative adjudication, to award attorneys' fees and other expenses to a prevailing party against the United States, unless the position of the agency or United States was "substantially justified" or that "special circumstances make an award unjust." The purposes of the EAJA are to (1) encourage small entities to defend themselves against unjustified government action without fear that doing so will break them financially, and (2) deter the unjustified government action in the first place.

The Government Litigation Savings Act, S 1061 and HR 1996, introduced on May 25, 2011, by Senator Barrasso (R-WY and Ranking Member of the Senate Committee on Indian Affairs) and by Representative Lummis (R-WY) with cosponsorship by Representative Don Young (R-AK and Chair of the Indian and Alaska Native Affairs Subcommittee) would indeed save the Government money by reducing—and in many cases eliminating—EAJA awards. Perhaps the biggest proposed change is that awards would be limited to a prevailing party "who has a direct and personal monetary interest in the adjudication [or civil action], including because of personal injury, property damage, or unpaid agency disbursement." This appears to be targeted at environmental and other watchdog groups that often ask courts not for money damages but for orders compelling the government to follow the law. For tribes and tribal organizations, this provision could prevent recovery of fees in litigation that obtains injunctive relief—for example, orders reversing declinations under the Indian Self-Determination and Education Assistance Act.

Other provisions of the bill also discourage litigation against the United States:

  • Awards would be capped at $200,000.
  • 501(c)(3) and other organizations now exempt from the net worth limitation on eligibility would become subject to that limitation.
  • While hourly rates would rise from $125 to $175, the discretion of an agency or court to award a higher rate would be removed.

To be eligible for the EAJA, a tribe or tribal organization must have a net worth of $7,000,000 or less and no more than 500 employees. Tribes and tribal organizations that meet these criteria may wish to make their views known on the proposed Equal Access to Justice Act amendments.

The text of S 1061/HR 1996 may be downloaded at Thomas.loc.gov. The bills were referred to the Senate and House Judiciary Committees.

Please let us know if we may provide additional information or assistance regarding the Government Litigation Savings Act.

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Inquiries may be directed to:
Steve Osborne (sosborne@hobbsstraus.com)
Geoff Strommer (gstrommer@hobbsstraus.com)

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