Bill Advancing in House Would Limit Access to Justice and Government Accountability, Groups Warn

by Nicole Flatow

Proposed legislation advanced in the House last week that would limit reimbursement of costs and attorneys’ fees in lawsuits seeking to hold the federal government accountable.

The Government Litigation Savings Act is being called a “de facto bar to the courthouse door for low income citizens and other parties that do not have access to free legal counsel” by a coalition of 25 public interest legal groups.

 “Contrary to the title of the bill, H.R. 1996 is a thinly disguised effort to prohibit litigation against the government by the needy and public interest groups,” said Rep. John Conyers Jr. before the House Judiciary Committee voted along party lines to approve the bill.

The measure seeks to roll back some provisions of the Equal Access to Justice Act, enacted in 1980 with bipartisan support to narrow the disparity in resources when the “little guy” goes up against the federal government in a legal action, by granting the costs of litigation and attorneys’ fees to citizens, nonprofits and small businesses when they can show that the federal government’s position was not “substantially justified.”

"One of the key insights of the legislators who gave birth to EAJA was recognition of a relationship between encouraging individuals and entities to challenge unreasonable governmental action and the positive effect that such challenges have in implementing public policy for the benefit of Americans generally," explains Brian Wolfman, co-director of Georgetown University Law Center's Institute for Public Representation, in written testimony opposing H.R. 1996.

But the now-pending bill would roll back several key provisions of the EAJA. It would, among other things, bar lawyers working pro bono from recovering fees, and limit EAJA awards to those with a “direct and personal monetary interest in the civil action,” closing the door to those seeking to vindicate constitutional rights or enforce a right on behalf of the general public, according to a fact sheet by Alliance for Justice, Earthjustice, the Brennan Center for Justice and the National Organization of Veterans’ Advocates.

“For three decades, veterans, seniors, the disabled, small businesses, and groups from across the ideological spectrum have relied on EAJA to challenge illegal government actions,” explains the fact sheet. “The  ‘Government Litigation Savings Act’ (H.R. 1996/S. 1061)  would  prohibit those seeking to enforce important rights – such as free speech, gun rights, pollution protections, religious freedoms, and other civil rights – from recovering attorney’s fees under EAJA.  By barring the recovery of fees for pro bono (free) representation, H.R. 1996/S. 1061 would also make it harder for seniors, veterans, and many others to obtain volunteer legal help in cases where their benefits have been wrongly denied.”

The 19-14 committee vote to advance the bill comes as Congress agreed last week to slash funding for legal services for the indigent 14 percent, further eroding access to justice for low-income individuals.