To the Victor Go the Spoils: USDA, Interior and Attorney Fee Awards

By NEIL GORDON

How carefully is the federal government keeping track of the money it pays in attorney fees in environmental, Freedom of Information Act (FOIA), labor, and discrimination lawsuits? In the case of the United States Department of Agriculture (USDA) and the Department of the Interior, the answer is not carefully enough.

In the United States, parties involved in litigation generally pay their own attorney fees—the so-called American Rule—but there are exceptions to this rule in federal litigation where specific laws authorize the federal government to pay attorney fees, costs, or expenses if the opposing party prevails. The purpose is to level the playing field by ensuring that individuals, corporations, or other private litigants are not discouraged to challenge unreasonable government actions because of the expense involved and the disparity in resources between them and the government. A requirement to pay attorney fees may also discourage government wrongdoing in the first place.

However, a new report by the Government Accountability Office (GAO) found that 65 of the 75 USDA and Interior offices it contacted do not track attorney fee information. Without this information, both departments are unable to keep track of who made claims for attorney fees, how much was paid in attorney fees, who received the payments, and the statutes under which the cases were brought.

USDA and Interior tried to downplay the severity of the problem. The reason so few offices keep track of attorney fee information, they told the GAO, is because they deal with few or no attorney fee cases and the payment amounts are minimal.

But the GAO’s findings should shake both departments out of their complacency. From the 10 offices that do keep track of attorney fee information, the GAO determined that, from fiscal years 2000 to 2010, USDA, Interior, and the Treasury Department (on behalf of USDA and Interior) paid roughly $73 million for opposing parties’ attorney fees in more than 1,300 civil and administrative proceedings.

Fees ranged from as little as $1 to a whopping $5.6 million payout in one Endangered Species Act lawsuit in 2010. In short, attorney fees are a significant source of government spending that, if the findings in this particular GAO report are more or less consistent throughout the rest of the executive departments, is not being adequately monitored.

Some in Congress have also expressed concerns about federal agencies’ payout of attorney fees, if only because they dislike the political leanings of certain recipients. Last year, Rep. Darrell Issa (R-CA) introduced the Judgment Fund Transparency Act of 2011 (H.R. 1446), which would require Treasury to make public a variety of data pertaining to judgments, awards, or settlements against the federal government, including a breakdown of attorney fees. 

The public has the right to know the cost of the federal government’s programmatic decisions, including attorney fee payments. The offices within USDA and Interior that track attorney fee information told the GAO that they do so because it provides for increased transparency and better decision making. It helps them determine if attorney fee claims are reasonable. It also helps them better understand where they spend their funds, providing a more accurate budget picture. 

Neil Gordon is a POGO investigator.

Follow @NEGordon

Comments

[Bryan Rahija]

Interested: We can't provide any advice on this matter -- you'd have to speak with an attorney.

[Interested]

So how does one file for attorney fees?

[Evelynn Brown, J.D., LL.M]

Hi Bryan,
Thanks for the clarification. Be happy to collaborate! You can start with giving us a hand up with investigating what is going on that agencies are violating the No Fear Act, Section 203. Lots of $$$ in the Judgment Fund but little accountability.

IMHO, zero reports for 10 years allows retaliating agency management to fly under the radar while tax payers foot the bill in meritorious whistleblower and discrimination cases.

Again, many thanks!
Best,
Evy

[Bryan Rahija]

Hi David and Evelynn,

Thank you for reading and offering these links -- I hadn't seen those stories until now.

We're not claiming to do anything original here -- the purpose of our blog post was to highlight the findings of the GAO. It looks like these are related but distinct from (and broader than) MSPBWatch's interpretation of that HHS FOIA response. (For what it's worth, GAO released its report on April 12).

Hope this helps clarify, and as always, please feel free to share your work with me directly -- hit me up at brahija@pogo.org.

Bryan

[David]

So now POGO is reducing itself to stealing ideas without attribution?

http://mspbwatch.net/2012/05/08/ngo-watch-beltway-accountability-groups-ignore-news-that-cabinet-department-has-been-violating-a-major-whistleblower-law-for-almost-a-decade/

http://whistlewatch.org/2012/04/california-state-university-fails-to-protect-whistleblowers-who-report-fraud-senator-leland-yee-sponsors-new-whistleblower-bill/

http://whistlewatch.org/2012/04/whistlewatch-org-advocates-public-seek-to-know-federal-govt-waste-to-retaliate-against-whistleblowers/

[Evelynn Brown, J.D., LL.M]

It would be professional for POGO to acknowledge the advocates (Whistlewatch.org & MSPBWatch.net) who came up with the idea to review the costs to tax payers and began sending FOIA requests to federal agencies. We broke the news last week that the Department of Health and Human Services is in violation of the No Fear Act, Section 203 for 10 years.