Last Tuesday, The Subcommittee on Courts, Commercial and Administrative Law of the Judiciary Committee in the U.S. House held hearings on The Government Litigation Savings Act (H.R. 1996) (pdf).  Georgetown University Law Professor Brian Wolfman gave testimony (pdf) opposing the proposed legislation, which would cap attorney fees in EAJA litigation.  Below is a blog post of the Consumer Law & Policy Blog on October 11:

H.R. 1996: Undermining the Equal Access to Justice Act

The Equal Access to Justice Act (EAJA) is a fee-shifting statute that applies in litigation and certain adversary administrative proceedings against the federal government when no other fee-shifting statute applies. It is used mainly in social security and veterans disability cases and administrative law cases under the Administrative Procedure Act. It is used by small businesses as well, such as in government contract disputes.

As with most fee-shifting statutes, the fee applicant may receive an award when it has prevailed in the case. But EAJA is less generous than most fee-shifting statutes for a number of reasons, the most important of which are (1) that the government can avoid a fee request, even if it has lost, if it can show that its position on the merits was reasonable, and (2) fees are awarded at well below market rates.

Enter H.R. 1996. It would make EAJA a dead letter in many cases. First of all, it would make EAJA inapplicable unless the plaintiff is seeking monetary relief in the case. So, no EAJA fees for cases seeking to enjoin or otherwise alter government regulations or conduct. Second, under H.R. 1996, no fee would be awarded where the legal services were provided pro bono -- well that's most litigation filed by non-profits groups and lots of cases brought on behalf of people claiming that they were wrongfully denied government benefits.

That's not all. To learn about all of H.R. 1996's problems, read this testimony I gave today before a House Judiciary subcomittee. It's interesting how times change. The last time I testified on EAJA in 1994, it was thought that Congress might make EAJA better by making it more like other fee-shifting statutes. Now, the effort is to save it.