Budd-Falen Firm has Sought Fees
Budd-Falen told WyoFile that in recent years the net worths of her firm’s clients have been above the maximum EAJA allows for the recovery of fees. A search of a database of federal court decisions showed that the firm has unsuccessfully sought attorneys’ fee awards for its clients in at least three lawsuits under EAJA or a similar statute that applies in criminal cases. In a 2000 decision, the U.S. 10th Circuit Court of Appeals affirmed a Colorado federal district court ruling that denied fees to her client, the Shooting Star Ranch, because insufficient evidence was presented to show that the client’s net worth met the EAJA maximum. In a 1998 decision by a Colorado federal court, fees were denied to another of the firm’s ranching clients for the same reason.
In 1999, the Budd-Falen firm sued to recover attorneys’ fees for Harvey Frank Robbins Jr. after he had been acquitted of criminal charges of interfering with a Bureau of Land Management employee. The claim for fees was made pursuant to a statute allowing fees in certain criminal cases where the prosecution is determined to be in bad faith. The 10th Circuit rejected the claim, finding that the appeal of the district court’s ruling denying fees was not filed on time.
Subsequently, Karen Budd-Falen represented Robbins in a suit against two BLM employees for damages, alleging they tried to coerce Robbins into granting an easement to federal land. Budd-Falen sued under the Fifth Amendment and under the Racketeer Influenced and Corrupt Organizations Act. The case went to the U.S. Supreme Court, which in June 2007, affirmed the dismissal of the suit. Liberal-leaning Harvard Law Professor Lawrence Tribe did the oral argument for Robbins, and two liberal-leaning justices led by Ruth Bader Ginsburg dissented.
Some Ag Llawyers Value EAJA
In addition to Schneider at the University of Arkansas, WyoFile reached two agricultural law attorneys practicing in the U.S. farmbelt who have won attorneys’ fees under EAJA.
Attorney Thomas Lawler of Parkersburg, Iowa, said EAJA is a valuable asset for small producers.
“In both of my recent cases, the government had taken a position that was contrary to its own data and to the data we had from outside experts,” he said. “But fighting these actions is a long, involved procedure and is very expensive on a per-acre basis.” Even though EAJA provides the possibility of recovering fees if the challenge is successful, Lawler said, many of the producers who contact him eventually decide the risk of losing the case and losing the associated federal program payments is too high. They often decide to simply comply with the USDA decision.
Lawler said the efficacy of EAJA is also limited because of a U.S. Supreme Court decision several years ago that rejected the “catalyst theory” for deciding whether the litigant was legally a “prevailing party.” The court restricted attorneys’ fees recoveries to cases where the result favorable to the producer was the result of an actual decision by the court or hearing board, rather than a voluntary change in position by the government.
“We have gone into National Appeals Division hearings and we’ve convinced the government its decision was wrong,” Lawler said. “But if they voluntarily withdraw the action, we cannot collect fees. I would recommend that EAJA be amended to allow a fee award if the agency changes its position during the appeal process.”
Beth Baumstark in Bismarck, N.D., has represented agricultural producers “in quite a number of cases” where fees under EAJA were requested, including the 2007 Aageson case from Montana that went to the 9th Circuit. She said the EAJA “definitely” is an important vehicle for producers.
“Without the ability to recoup some of their fees when they are able to show that the agency action wasn’t justified, they wouldn’t be able to afford the challenges lots of times,” Baumstark said.
Baumstark said that the 8th Circuit, which includes much of the northern Midwest, has allowed fee awards for administrative proceedings for several years and has now been joined by three other circuits. This has caused the USDA recently to change its regulations to allow an award of fees in administrative proceedings across the country.
She said, however, that the USDA has not raised the strict $125-per-hour cap that applies to administrative proceedings, “so it’s still very limited in that respect.”
 31 U.S.C. 1304
 28 U.S.C. § 2412
 Bianchi v. U.S., 46 Fed. Cl. 363, Ct. Claims 2000
 BCA v. Stem, 519 F.3d 1226 (10th Cir. 2008).
 Aageson Grain & Cattle v. U.S.D.A., 500 F.3d 1038 (9th Cir. 2007)
 Select Milk Producers Inc. v. Johanns, 400 F.3d 939 (D.C. Cir. 2005).
 Sierra Club v. Kimbell, 640 F.Supp.2d 1082 (D.Minn. 2009).
 B&D Land and Livestock Co. v. Schafer, 615 F.Supp.2d 950 (N.D. Iowa 2009).
 Ranchers Cattlemen v. USDA, May 17, 2005, D. Mont. CV-04-51-BLG-RFC.
 Shooting Star v. U.S., 230 F.3d 1176 (10th Cir. 2000).