[House Hearing, 109 Congress]
[From the U.S. Government Publishing Office]
EQUAL ACCESS TO JUSTICE
REFORM ACT OF 2005
=======================================================================
HEARING
BEFORE THE
SUBCOMMITTEE ON COURTS, THE INTERNET,
AND INTELLECTUAL PROPERTY
OF THE
COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES
ONE HUNDRED NINTH CONGRESS
SECOND SESSION
ON
H.R. 435
__________
MAY 23, 2006
__________
Serial No. 109-126
__________
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
______
U.S. GOVERNMENT PRINTING OFFICE
27-743 WASHINGTON : 2006
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COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois JOHN CONYERS, Jr., Michigan
HOWARD COBLE, North Carolina HOWARD L. BERMAN, California
LAMAR SMITH, Texas RICK BOUCHER, Virginia
ELTON GALLEGLY, California JERROLD NADLER, New York
BOB GOODLATTE, Virginia ROBERT C. SCOTT, Virginia
STEVE CHABOT, Ohio MELVIN L. WATT, North Carolina
DANIEL E. LUNGREN, California ZOE LOFGREN, California
WILLIAM L. JENKINS, Tennessee SHEILA JACKSON LEE, Texas
CHRIS CANNON, Utah MAXINE WATERS, California
SPENCER BACHUS, Alabama MARTIN T. MEEHAN, Massachusetts
BOB INGLIS, South Carolina WILLIAM D. DELAHUNT, Massachusetts
JOHN N. HOSTETTLER, Indiana ROBERT WEXLER, Florida
MARK GREEN, Wisconsin ANTHONY D. WEINER, New York
RIC KELLER, Florida ADAM B. SCHIFF, California
DARRELL ISSA, California LINDA T. SANCHEZ, California
JEFF FLAKE, Arizona CHRIS VAN HOLLEN, Maryland
MIKE PENCE, Indiana DEBBIE WASSERMAN SCHULTZ, Florida
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
Philip G. Kiko, General Counsel-Chief of Staff
Perry H. Apelbaum, Minority Chief Counsel
------
Subcommittee on Courts, the Internet, and Intellectual Property
LAMAR SMITH, Texas, Chairman
HENRY J. HYDE, Illinois HOWARD L. BERMAN, California
ELTON GALLEGLY, California JOHN CONYERS, Jr., Michigan
BOB GOODLATTE, Virginia RICK BOUCHER, Virginia
WILLIAM L. JENKINS, Tennessee ZOE LOFGREN, California
SPENCER BACHUS, Alabama MAXINE WATERS, California
BOB INGLIS, South Carolina MARTIN T. MEEHAN, Massachusetts
RIC KELLER, Florida ROBERT WEXLER, Florida
DARRELL ISSA, California ANTHONY D. WEINER, New York
CHRIS CANNON, Utah ADAM B. SCHIFF, California
MIKE PENCE, Indiana LINDA T. SANCHEZ, California
J. RANDY FORBES, Virginia
Blaine Merritt, Chief Counsel
David Whitney, Counsel
Joe Keeley, Counsel
Ryan Visco, Counsel
Shanna Winters, Minority Counsel
C O N T E N T S
----------
MAY 23, 2006
OPENING STATEMENT
Page
The Honorable Lamar Smith, a Representative in Congress from the
State of Texas, and Chairman, Subcommittee on Courts, the
Internet, and Intellectual Property............................ 1
The Honorable Howard L. Berman, a Representative in Congress from
the State of California, and Ranking Member, Subcommittee on
Courts, the Internet, and Intellectual Property................ 2
WITNESSES
Mr. Ryan W. Bounds, Chief of Staff, Office of Legal Policy,
Department of Justice
Oral Testimony................................................. 4
Prepared Statement............................................. 6
Mr. Michael Farris, J.D., Chairman and General Counsel, Home
School Legal Defense Association
Oral Testimony................................................. 16
Prepared Statement............................................. 17
Mr. Jonathan Hiatt, General Counsel, American Federation of
Labor, Congress of Industrial Organizations, AFL-CIO
Oral Testimony................................................. 21
Prepared Statement............................................. 23
Mr. James M. Knott, Sr., President and Chairman of the Board,
Riverdale Mills Corporation
Oral Testimony................................................. 34
Prepared Statement............................................. 35
APPENDIX
Material Submitted for the Hearing Record
The Honorable Howard L. Berman, a Representative in Congress from
the State of California, and Ranking Member, Subcommittee on
Courts, the Internet, and Intellectual Property................ 45
The Honorable John Conyers, Jr., a Representative in Congress
from the State of Michigan and Ranking Member, Committee on the
Judiciary...................................................... 47
Statement of the Honorable Edwin Meese III, Ronald Reagan
Distinguished Fellow in Public Policy and Chairman, Center for
Legal and Judicial Studies, The Heritage Foundation............ 49
News Alert from the National Association of Manufacturers........ 55
A Dear Colleague from the United States Senate on Organizations
supporting the Equal Access to Justice Reform Act of 2005, H.R.
435/S. 2017.................................................... 56
Statement of the Honorable Donald A. Manzullo, Chairman, U.S.
House of Representatives, and Chairman, Committee on Small
Business....................................................... 59
Supplemental Statement of the Honorable Donald A. Manzullo,
Chairman, U.S. House of Representatives, and Chairman,
Committee on Small Business.................................... 83
Letter from Colby M. May, Director, American Center for Law &
Justice to the Honorable Donald A. Manzullo, Chairman, U.S.
House of Representatives, and Chairman, Committee on Small
Business....................................................... 90
Letter from Laura W. Murphy, Director LaShawn Warren, Legislative
Counsel, American Civil Liberities Union....................... 91
Letter from Richard Lessner, Ph.D., Executive Director, The
American Conservative Union to the Honorable Donald A.
Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business.................................... 92
Letter from Richard Haught, D.D.S., President and James B.
Bramson, D.D.S., Executive Director, American Dental
Association to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business..... 93
Letter from Michael D. Maves, MD, MBA, American Medical
Association to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business..... 95
Letter to Susan Steinman, Linda Lipsen, Daniel Cohen, Association
of Trial Lawyers of America from the Honorable Donald A.
Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business.................................... 96
Letter from R. Bruce Josten, Executive Vice President, Government
Affairs, Chamber of Commerce of the United States of American
to the Honorable Donald A. Manzullo, U.S. House of
Represetatives, and Chairman, Committee on Small Business...... 97
Letter from the Honorable Edwin Meese III, Ronald Reagan
Distinguished Fellow in Public Policy and Chairman, Center for
Legal and Judicial Studies, The Heritage Foundation to the
Honorable Donald A. Manzullo, U.S. House of Representatives,
and Chairman, Committee on Small Business...................... 98
Letter from J. Michael Smith, Esq., President, National Center
for Home Education to the Honorable Donald A. Manzullo, U.S.
House of Representatives, and Chairman, Committee on Small
Business....................................................... 99
Letter from Jim Covington III, Director of Legislative Affairs,
Illinois State Bar Association to the Honorable Donald A.
Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business.................................... 100
Letter from Wade Henderson, Executive Director and Nancy Zirkin,
Deputy Director of the Leadership Conference on Civil Rights to
the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business and
the Honorable Earl Blumenauer, Member of Congress, U.S. House
of Representatives............................................. 101
Letter from Hilary O. Shelton, Director, Washington Bureau,
National Assosication for the Advancement of Colored People to
the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business and
the Honorable Earl Blumenauer, Member of Congress, U.S. House
fo Representatives............................................. 103
Letter from John Engler, President and CEO, the National
Assosciation of Manufacturers to the Honorable Donald A.
Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business.................................... 105
Letter from Dan Danner, Senior Vice President, Federal Public
Policy, The National Federation of Independent Business (NFIB)
to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business..... 106
Letter from Drew Caputo, Senior Attorney, The Natural Resources
Defense Counsel to the Honorable Donald A. Manzullo, U.S. House
of Representatives, and Chairman, Committee on Small Business
and the Earl Blumenauer, Member of Congress, U.S. House of
Representatives................................................ 107
Letter from Patrick Gallagher, Director of Environmental Law,
Sierra Club to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business and
the Honorable Earl Blumenauer, Member of Congress, U.S. House
of Represenatives.............................................. 108
Letter from the Small Business Equal Access to Justice Coalition
to the Honorable F. James Sensenbrenner, Jr., Chairman, House
Judiciary Committee............................................ 109
Letter from J. William Lauderback, Executive Vice President, The
American Conservative Union to the Honorable Donald A.
Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business.................................... 111
Letter from Caroline Fredrickson, Director, LaShawn Warren,
Legislative Counsel, American Civil Liberities Union, to the
Honorable F. James Sensenbrenner, Jr., Chairman, U.S. House of
Representatives, House Judiciary Committee and the Honorable
John Conyers, Jr., a Representative in Congress from the State
of Michigan, Ranking Member, House Judiciary Committee......... 113
Letter from the Honorable Donald A. Manzullo, U.S. House of
Representatives and Chairman, Committee on Small Business and
the Honorable Earl Blumenauer, Member of Congress, U.S. House
of Representatives, the Honorable Olympia Snowe, Chair,
Committee on Small Business and Entrepreneurship, United States
Senate, and the Honorable Russell Feingold, United States
Senate to the Honorable Arlen Specter, Senate Judiciary and the
Honorable F. James Sensenbrenner, Jr., Chairman, House
Judiciary Committee............................................ 115
Statement of the Honorable Earl Blumenauer, Member of Congress,
U.S. House of Representatives.................................. 119
EQUAL ACCESS TO JUSTICE
REFORM ACT OF 2005
----------
TUESDAY, MAY 23, 2006
House of Representatives,
Subcommittee on Courts, the Internet,
and Intellectual Property,
Committee on the Judiciary,
Washington, DC.
The Subcommittee met, pursuant to notice, at 4:07 p.m., in
Room 2141, Rayburn House Office Building, the Honorable Lamar
Smith (Chairman of the Subcommittee) presiding.
Mr. Smith. The Committee on Courts, the Internet and
Intellectual Property will come to order
I believe all of our witnesses are here. I am going to
recognize myself for an opening statement, then the Ranking
Member. And all other Members' opening statements will, without
objection, be made a part of the record.
During the debates that preceded the Constitution's
ratification, James Madison wrote in the Federalist Number 51:
``In framing a government which is to be administered by
men over men, the great difficulty lies in this,--you must
first enable the government to control the governed; and in the
next place oblige it to control itself.
Today, our Subcommittee will examine the effectiveness of a
law, the Equal Access to Justice Act of 1980, known as EAJA,
which was enacted by Congress for the purpose of getting the
Federal Government to control itself.
The legislative purpose behind EAJA was characterized in
the 2004 case of Scarborough versus Principi. Writing for the
Court, Justice Ginsburg stated:
``Congress enacted EAJA in 1980 to eliminate the barriers
that prohibit small businesses and individuals from securing
vindication of their rights in civil actions and administrative
proceedings brought by or against the Federal Government. . .
.[Its] aim was to ensure that certain individuals [and]
organizations will not be deterred from seeking review of, or
defending against, unjustified governmental action because of
the expense involved.''
The purpose of EAJA was to shift the expense of defending
against unreasonable or overzealous government conduct from the
backs of individuals and small entities to the Federal
Government, which, in some cases, had initiated and pursued the
wrongful action.
According to an estimate by the Congressional Research
Service, there are approximately 200 fee shifting statutes that
Congress has enacted as exceptions to the general rule that
each litigant in a lawsuit ought to bear the expense of their
own legal fees.
While EAJA's purpose is similar to other fee shifting
statutes, its precise language, unique restrictions, and
historical application have caused many to conclude that the
law offers a ``false hope'' of recovery to the vast majority of
citizens who are harmed by unreasonable Federal action.
Despite initial estimates by the Department of Justice that
its enactment would lead to a $500 million liability over its
first 3 years, a 1998 GAO report could only substantiate $3.9
million in costs over that period and a $34 million expense
over the first 13 years that the law was on the books.
When combined with concerns that EAJA has been interpreted
in a manner that is inconsistent with Congress original intent,
this record has caused a large number of diverse organizations
to unite in a call for reform.
Organizations as ideologically diverse as the American
Civil Liberties Union, the American Conservative Union, the
American Trial Lawyers Association, and the U.S. Chamber of
Commerce, have endorsed efforts to amend EAJA.
EAJA was enacted to ensure that agencies of the Federal
Government take seriously Mr. Madison's imperative that the
Government ought to be obliged to control itself. However, not
everyone agrees that reforms are warranted, and that is why
this hearing will be of special interest.
That concludes my opening remarks. And the gentleman from
California, Mr. Berman, is recognized for his.
Mr. Berman. Thank you very much, Mr. Chairman, for
scheduling the hearing.
While this issue has come up before the Subcommittee in the
past, we once again have an opportunity to engage in fresh
discussions. Congress enacted the Equal Access to Justice Act
in 1980 as a means of ensuring both individuals and
organizations the right to effective counsel in vindicating
important civil rights and civil liberties protections.
Congress presumably sought to achieve three interconnected
goals through the EAJA: one, to provide an incentive for
private parties to contest government overreach; two, to deter
subsequent government wrongdoing, and; finally, to provide more
complete compensation for citizens injured by government
action.
Since in most suits the government is the deep pocket and
can marshal more resources in litigation than most private non-
institutional parties, private parties may not be able to
afford protracted litigation against the government.
The goal of the Equal Access to Justice Act was to make the
justice system more accessible to individuals of modest means,
small businesses, and nonprofit organizations, by allowing the
recovery of their attorney fees when they prevail in disputes
with the Federal Government.
The ability to obtain attorneys fees is most often found in
civil rights, environmental protection and consumer protection
statues in order to help equalize contests between the Federal
Government and private parties. But the Equal Access to Justice
Act does not function in exactly the same way as those fee
shifting provisions do.
Prevailing here in litigation does not automatically result
in an award of attorneys fees. We will hear more about those
criteria and how we are changing those criteria, I would think,
in the hearing. Although this act has been an important step in
providing access to counsel, concerns have been raised
regarding the substantial justification defense. Although I
also have heard concerns raised about removing the substantial
justification defense. I look forward to hearing more about
that in this hearing.
The hourly cap rate on attorneys fees of $125, and what
constitutes a small business. Even though EAJA has arguably
approved the accessibility of the justice system for small
parties, we should discuss whether potential barriers remain
and what changes, if any, should be made to the mechanism used
to determine the recovery of fees.
Thank you.
Mr. Smith. Thank you, Mr. Berman.
Mr. Smith. I would like also to thank the gentleman from
Virginia, Mr. Forbes, and the gentleman from California, Mr.
Schiff, for being in attendance today at this hearing. I,
furthermore, want to recognize the gentleman who actually wrote
the legislation on which we are having the hearing today and
that is the gentleman from Illinois, Mr. Manzullo, for stopping
by and joining us as well.
And I may well be asking questions on his behalf when we
get to that point. But I appreciate his initiative and his
leadership in regard to writing this legislation and seeing it
to the point where we are now having a hearing on it.
Before we hear from our witnesses today I would like to
invite you to stand and be sworn in if you would.
[Witnesses sworn.]
Mr. Smith. Our first witness is Ryan Bounds, chief of staff
in the Office of Legal Policy at the Department of Justice. In
that capacity, he assists the Assistant Attorney General for
legal policy in developing and coordinating the Department's
views on potential improvements in the civil justice system.
Before joining the Office of Legal Policy in 2004, Mr.
Bounds served as an associate at a law firm and as a clerk to a
circuit court judge. He holds a bachelor's degree from Stanford
University and a JD from Yale Law School.
Our second witness is Michael Farris, who is chairman and
general counsel to the Home School Legal Defense Association,
an organization with 80,000 member families that he founded in
1983. Mr. Farris is a Constitutional lawyer with extensive
appellate experience in the U.S. Supreme Court, seven U.S.
circuit courts of appeal, and 10 State supreme courts. He is a
prolific author who has written extensively on Constitutional
law issues.
Mr. Farris is an honors graduate of Gonzaga University
School of Law. He received his BA degree in political science
from Western Washington State College, now known as Western
Washington University.
Our next witness is Jonathan Hiatt, who is the general
counsel of the AFL-CIO, a position in which he has served for
10 years. Prior to that, Mr. Hiatt served as the general
counsel of the Service Employees International Union, and as a
partner in a Boston-based union-side labor law firm.
Mr. Hiatt is a graduate of Boalt Hall School of Law at the
University of California Berkeley, and Harvard College.
Our final witness is James Knott, who is the President and
CEO of Riverdale Mills Corporation. Riverdale Mills Corporation
is in Northbridge, Massachusetts.
Mr. Knott also serves on the board of directors of the
National Association of Manufacturers. He studied mechanical
engineering at Northeastern University and has an economics
degree from Harvard.
In addition, he has studied at the Harvard Business School,
the Army War College, and was earlier this month awarded an
honorary doctorate of science by the University of Maine.
Mr. Knott will relate to the Members of the Subcommittee
his own experience with an agency of the Federal Government
that targeted him and his business based upon an anonymous tip,
an experience that led to a criminal indictment and the threat
of a $1.5 million penalty and 6 years in jail.
Welcome to you all. We have your written statements, and
without objection your entire written statements will be made a
part of the record. But please limit your oral testimony to 5
minutes.
And Mr. Bounds we will begin with you.
STATEMENT OF RYAN BOUNDS, CHIEF OF STAFF, OFFICE OF LEGAL
POLICY, DEPARTMENT OF JUSTICE
Mr. Bounds. Thank you, Mr. Chairman, Mr. Ranking Member,
and other Members of the Subcommittee. Thank you for allowing
me to testify before you today with respect to the Justice
Department's views on H.R. 435, the Equal Access to Justice
Reform Act.
The Department of Justice opposes this bill. Before
explaining why, I would like to emphasize that the Department
shares the desire of H.R. 435's proponents to reduce the burden
that excessive litigation and unjust enforcement actions impose
on small businesses and individuals and on the courts.
Unfortunately, H.R. 435 will not advance this purpose.
Indeed, the enactment of H.R. 435 would create perverse
incentives for small businesses, non-profit organizations and
individuals to file and to prolong lawsuits and for government
agencies that are sued to adhere to rather than reconsider
their positions in close cases.
By expanding the number of parties who can recover
attorneys fees under the act and the amount of fees that can be
recovered, the bill would obviously make litigation with the
government cheaper and more frequent. H.R. 435 would thus
generate more litigation, not less, between the government on
the one hand and small businesses, non-profit organizations,
and individuals on the other.
Ultimately, such reliance on lawsuits to guide government
policy-making and enforcement decisions substitutes litigation
for the political process, a policy that the Justice Department
does not support.
H.R. 435 will induce unwise litigation in more subtle ways
as well. The bill requires the government to pay attorneys fees
to a prevailing party even when the government's action is
substantially justified. Therefore, eligible parties will have
a fairly good prospect of recovering attorneys fees in close
cases, such as those involving new statutes or the application
of existing law in novel situations.
In such cases, eligible parties and the government will
make equally informed predictions of judicial resolution of the
issue, but eligible parties will have simple incentives to
pursue litigation. They do not have to reimburse the government
for its costs if they lose, and they have individualized stakes
in the outcome.
The Department strongly opposes this change not only
because it would increase litigation, but because it does not
reflect the reality that enforcing the law often requires
making judgment calls in close cases. Where a government agency
is required to pay attorneys fees in a substantial proportion
of such cases, those agencies would simply be deterred from
making close calls at all. The government would, at the margin,
be relatively timid in enforcing the law, and private parties
would exploit that timidity. For this very reason, Congress
provided for a substantial justification defense under EAJA in
the first place, noting that an automatic fee shifting rule
would have a ``chilling'' effect on proper government
enforcement efforts.
To appreciate the perils of timidity, consider immigration
enforcement. The Department of Homeland Security's efforts to
detain and to remove illegal aliens in the United States has
generated more than 13,000 court cases in the last fiscal year
as aliens sought to remain at large in the United States.
The government loses some proportion of these cases even
when its actions are substantially justified. This happened,
for instance, in a 2001 case in which the government sought to
remove an illegal alien who was revealed in classified evidence
to have been involved in the 1993 bombing of the World Trade
Center. The alien successfully challenged the reliance on the
classified evidence. By making the government pay attorneys
fees in circumstances like these, which the government did not
have to pay under EAJA as it is currently drafted, H.R. 435
will either discourage attempts at robust enforcement of
immigration laws or divert resources from enforcement to paying
for aliens' attorneys.
Neither result is consistent with seeking either to prevent
illegal immigration or to combat terrorism. Every time as a
deterrent for best law enforcement, H.R. 435 will induce
agencies to stick to positions they would otherwise abandon in
order to avoid liability for attorneys fees. This result stems
from the bill's expansion of the definition of a prevailing
party entitled to fees to include any party whose claims
against the government are catalysts for voluntary or
unilateral changes in policies that the parties sought.
If changing policy would be a part of the agency's
assessment, to be legally compelled, the agency will avoid
making the change and paying potentially exorbitant attorneys
fees. Instead, the agency will successfully conclude litigation
and then change its policy for free.
H.R. 435 would thus chill legitimate enforcement activity,
encourage and prolong litigation with the government, and
impose huge costs on agency budgets. The Department of Justice
strongly opposes this legislation.
In the end, political responsive oversight by the President
and the Congress can more effectively restrain governmental
overzealousness and intransigence in litigation and attorneys
fees.
Thank you for the opportunity to present the Department's
views on H.R. 435, and I am ready and willing to answer
whatever questions you may have. Thank you.
Mr. Smith. Thank you, Mr. Bounds.
[The prepared statement of Mr. Bounds follows:]
Prepared Statement of Ryan W. Bounds
Mr. Smith. Mr. Farris.
STATEMENT OF MICHAEL FARRIS, J.D., CHAIRMAN AND GENERAL
COUNSEL, HOME SCHOOL LEGAL DEFENSE ASSOCIATION
Mr. Farris. Chairman Smith, Ranking Member Berman, Members
of the Subcommittee, thank you for inviting me to testify on
H.R. 435, the Equal Access to Justice Reform Act of 2005.
I am here today to speak in strong support of this bill.
The Home School Legal Defense Association normally litigates
against State and local governments. We often make claims under
section 1988 for attorneys fees when the State and local
officials have violated either the Constitution or the civil
rights statutes of the United States.
We have never made an EAJA claim, and so, we appear today
not in self-interest of any sort, but simply out of principle
that the justice of the situation requires the Federal
Government to essentially follow the same rules that State and
local governments are expected to follow under section 1988 of
the Civil Rights Act.
This bill is about small parties having a chance in court
against the Federal Government. It is about small parties
having a chance to protect and defend their legal rights when
they are violated by the Federal Government. This act is
designed to fix the good intentions of the EAJA, but I would
submit that the current law is terribly flawed.
The reason it is flawed is basically in the use of the
substantially justified rule, which imposes an artificial
barrier on the ability to collect attorneys fees. Most people
would say the common sense of the situation is, if you prove
that the government has violated the law of the United States
or the Constitution of the United States, the Federal
Government simply ought to pay for the attorney fees of the
prevailing party. That is not the case under this substantially
justified rule.
The intentions of the officials are weighed, and it imposes
a barrier that is simply not in place in the case of State and
local litigation. The ``parade of horribles'' that we hear
against this legislation and the rare cases that are offered
for justification for opposing this legislation would be true
in principle, at least, in State and local governments as well.
The State and local governments would be bankrupted in their
ability to have legitimate law enforced, activities have been
curtailed, or we simply make the State or local governments pay
attorneys fees when it is proven that they violate the law or
the Constitution of the United States.
Just plain equity ought to say that the Federal Government
ought to obey the same rules that it imposes on State and local
governments. There is no moral justification for this Congress
to impose a rule in State and local governments, that it is not
willing to follow for itself.
Now, State and local governments have to not only pay
attorney fees whenever the other side is the prevailing party,
they have to pay at market rates. The $125-an-hour rate for
attorneys may have been the market rate at one point in time,
or is a general approximation, but it is simply not the case
anymore. You would not be able to pay in most law firms a brand
new lawyer fresh out of law school at that rate, much less
someone who has 20 or 30 years of experience.
Again, it is one more burden upon the Federal Government
shouldering its responsibilities when it has violated the law.
Also, rather than encouraging litigation, this bill would
discourage the ongoing pursuit of litigation when it is obvious
who should win and who should lose. If the Federal Government
is willing to say, okay, we violated the law, we are going to
give you a consent decree or something like that, the incentive
right now is to continue the case on to litigation, not take
the consent decree because you lose your ability to recover
attorney fees for all of the hundreds and perhaps thousands of
hours that you have invested in the case.
This promotes settlement. This promotes getting rid of the
cases clogging our courts. And so the definition of prevailing
party needs to be shifted so that the plaintiffs have an
incentive to settle up their case and to get on with their life
rather than simply litigating to the end for the sole reason of
being able to recover their attorney fees.
The thing that strikes me most of all is if there is this
``parade of horribles'' what it indicates is not that the
Federal Government is going to have to pay all of these
attorney's fees, but there is an epidemic of illegal activity
on the part of the Federal Government, that we are violating,
our government is violating the Constitution of the United
States, or the laws of the United States so often that we have
to worry about how many millions of dollars in attorneys fees
we are going to have to pay.
I think that the incentive should be on the part, as the
Chairman correctly read, from James Madison, the government,
first of all, needs to obey the law. When it does not, it
should have to pay the attorneys fees of those who have
suffered in that illegal activity.
Thank you very much.
Mr. Smith. Thank you, Mr. Farris.
[The prepared statement of Mr. Farris follows:]
Prepared Statement of Michael P. Farris
Chairman Smith, Ranking Member Berman, and Members of the
Subcommittee:
My name is Michael P. Farris. Thank you for inviting me testify on
H.R. 435, the Equal Access to Justice Reform Act of 2005. I am here
today to speak in strong support of this bill.
For the record, I founded and continue to serve as Chairman for the
Home School Legal Defense Association (HSLDA), the largest home
schooling organization in the nation. We represent over 80,000 member
families, with approximately 320,000 children. We are informally
affiliated with dozens of other home schooling organizations. It is
estimated that there are over two million children being homeschooled
in this country today. I am also the founding President of Patrick
Henry College, where I teach constitutional law. Today, I speak only on
behalf of HSLDA, a 501 (c)(4) organization.
This bill is about small parties having a chance in court against
the Federal Government. It is about small parties having a chance to
protect and defend their legal rights when they are violated by the
Federal Government. The Equal Access to Justice Act of 1980 (EAJA) was
designed with that purpose, but it is terribly flawed. H.R. 435 would
fix it.
The ability to pursue justice and fairness is not a partisan issue.
Nor is this bill partisan. In fact, HSLDA is just one of many groups
from across the political spectrum giving its strong support to this
bill--groups ranging from the American Civil Liberties Union and Sierra
Club to the Heritage Foundation and American Conservative Union to what
appears to be the entire business community. The breadth and diversity
of this support is rare, but not unique.
In the early 1990s, I had the honor to be the co-chairman of the
drafting committee for the Coalition for the Free Exercise of Religion,
which helped draft and pass the Religious Freedom Restoration Act of
1993 (RFRA). That Coalition was as broad as the present EAJA Coalition
and had many of the same participants. It was gratifying to work side-
by-side with attorneys from organizations I often face as opponents in
the courtroom. While we disagreed and still disagree on the outcome of
many cases, we share an unwavering commitment to the principle that the
free exercise of religion should be treated as a fundamental freedom.
We also share an unwavering commitment to the ability to assert and
defend and protect such fundamental freedoms in the courts. That's why
we incorporated into the RFRA the Civil Rights Attorneys Fee Awards Act
of 1976, 42 U.S.C. 1988 (``Section 1988''), the primary fee-shifting
statute against State and local governments, which allows prevailing
parties under the RFRA to recover their attorneys' fees at the end of
the case.
The Constitution serves as a restraint on government, not private
parties. It protects some rights explicitly from government
infringement. Other rights it protects implicitly by restraining the
powers of the government. Many statutes serve similar purposes. When
rights guaranteed by the Constitution and such statutes are infringed,
the infringer always is the government. The party filing pleadings or
taking action against you is the government. The party across the aisle
in the courtroom is the government. The party threatening your freedoms
is the government.
Freedom means little if there is no real way to stop the government
from violating the higher laws designed to restrain its power. But
ordinary Americans cannot resist the government for very long. With its
skilled litigators and virtually unlimited resources, the government
can outlast most litigants. There must be a leveling mechanism that
gives a small party at least a prayer against the government in court.
Section 1988 was among the first of such leveling mechanisms.
Congress passed it 1976 to protect people from violations of federal
law by state and local governments. For 30 years, Section 1988 has
provided attorney fee recovery against state and local governments in
cases where those governments were proven to have violated the Federal
Constitution or Federal statutes. For 30 years, it has provided a
chance to withstand illegal action by State and local governments. For
30 years, it has been accepted by the state and local governments and
administered by the courts without a fuss. As an example of federal
policy, it stands as a model. It works.
The way it works is simple. Section 1988 and similar ``prevailing
party fee-shifting statutes,'' including EAJA, encourage competent
attorneys to take good cases, meritorious cases, against the government
on a contingency-fee basis--i.e., by providing legal services
throughout the case at no cost to the client in the hopes of recovering
legal fees at the end of the hopefully-successful case. The calculation
that every attorney must make at the outset is this: Can I afford to
represent this client who is being pursued wrongfully by the government
but cannot come close to paying my hourly rates or monthly bills,
especially when I know that 1) the government can expend great
resources and drag out the case, 2) there is no guarantee I'll win in
the end and therefore ever recover any of my fees, 3) the government
will manage to get any fee award reduced well below the fees I actually
incur, and 4) I'll have to carry any hope of fee recovery for
potentially many years.
Such fee recovery statutes encourage only appropriate litigation.
Few attorneys in their right minds would take such a case unless they
were reasonably confident of winning in the end, becoming eligible to
attempt to collect at least part of his fees. Therefore, such statutes
provide hope for parties who suffer actual wrongs at the hands of the
government, they bring accountability to erring government officials,
and they help refine public policy through useful adjudication. No such
statute ever inspires the filing of a frivolous claim or defense, or
even a ``close'' or marginal one. In the vast majority of cases, the
case is not filed unless it has considerable merit--that is, where the
government is pretty clearly wrong and acting illegally. Otherwise, it
is rarely worth the risk in terms of time and treasure. Most attorneys
have to earn a living and can afford to take very few cases pro bono-
especially lengthy, complex cases against the government. They need a
chance to get paid.
Thus, the cases and defenses encouraged by such statutes are
precisely the kind of cases that everyone would agree should be
brought.
And Congress did agree. Just four years after passing Section 1988,
Congress passed the EAJA to serve as a fee recovery counterpart
applicable to the Federal Government--where the federal law violator
was the Federal Government. Under the EAJA, the Federal Government
would be held to account for its violations of the federal Constitution
and federal laws, much as the State and local governments have been
held to account under Section 1988. But EAJA is very different.
Under Section 1988, a prevailing party against a State or local
government recovers attorneys' fees in any case where the party
succeeds in an important respect. When that party ``prevails,'' it
becomes eligible for attorney fee recovery and submits a fee
application documenting the legal services provided. The courts
determine the amount of fees to be awarded, based on what the court
determines to be reasonable in the case and based on local market rates
that the court determines to be appropriate for the kind and quality of
legal services provided.
Under Section 1988, there is no escape clause that enables the
State or local government to avoid paying attorneys fees to the
prevailing party. There is no size standard for eligible parties. There
is no rate cap on the hourly rates for the legal services provided.
Under the EAJA, there is each of these and many other unjustifiable
differences.
First, EAJA has size standards. EAJA applies only to small parties
defined as small businesses with up to 500 employees and a net worth of
up to $7,000,000, nonprofit charitable organizations with up to 500
employees, and individuals with a net worth of up to $2,000,000. But
H.R. 435 takes no issue with EAJA having size standards (applying only
to small parties). Nor do I.
Second, EAJA contains an escape clause for the Federal Government
even after it loses a case, having been proven to have violated Federal
law. It's called ``substantial justification.'' Prevailing small
parties must argue in their fee applications--after winning their
case--that the legal position taken by the Federal Agency in the case
was not ``substantially justified.''
In other words, the prevailing small party must win again. While
the burden of proof may technically be on the Federal agency to show
that its position was indeed substantially justified, in reality it is
the prevailing small party that must overcome this hurdle. Regardless,
the ``substantial justification'' defense initiates in every case a
second, lengthy series of legal proceedings that rehash the merits of
the case.
A few minutes of electronic research of cases involving the EAJA
confirm what many in this hearing room already know. That is, in a
great many cases, after years of litigating and following multiple
appeals, a party that has won a final judgment in its favor is still
determined ineligible for fee recovery on the theory that the Federal
Government's position, although proven illegal, was not so unreasonable
or abusive as to be ``not substantially justified.''
Third, EAJA contains a cap on hourly rates for legal services of
$125. Indexed for inflation, many courts now award up to $150 per hour.
Such a rate--whether $125 or $150 or something in between--is far below
market rates, especially for complex and usually contingent litigation
against the federal government. In the major legal markets where such
litigation often occurs such as New York, Boston, Washington, Chicago,
San Francisco, Los Angeles, the typical hourly rates range from $200 to
$750. The EAJA rate will not pay for the most recent law school
graduate, let alone an experienced attorney.
This rate cap represents a significant disincentive to qualified
attorneys to take good cases against the federal government. Perhaps
because it is so counterproductive, this kind of rate cap has no
counterpart in fee shifting against state and local governments under
Section 1988, which employs a ``reasonable hourly'' or ``market'' rate.
Indeed, EAJA itself employs a ``market'' rate. EAJA states that ``the
amount of fees awarded under this section shall be based upon
prevailing market rates for the kind and quality of the services
furnished.'' But then it caps this rate by way of exception: ``except
that . . . attorney or agent fees shall not be awarded in excess of
$125 per hour.'' H.R. 435 simply would remove that exception, which
leads to absurd results.
Let me give just one example. In a case called Sorenson v. Mink,
239 F.3d 1140 (9th Cir. 2001), where social security claimants
prevailed against both the federal Social Security Administration and
relevant state agencies, the court awarded market rates under Section
1988 against the state agencies but had to award much lower rates under
EAJA against the federal agency--for the same federal law violations in
the same case. This cap is a big disadvantage for small parties in
disputes with Federal agencies.
Thus, at the outset, the attorney must know whether the client is
being pursued by the Federal Government or by a State or local
government. If the violation of Federal law is by a State or local
government, the attorney stands a good chance of recovering his fees
under Section 1988. If the very same Federal law violation is by the
Federal Government, he stands a very good chance of receiving nothing
or very little at the end of a long case even if he wins it completely.
Put yourself in this attorney's shoes. In a typical situation, a
client comes in with a very sympathetic case and very little financial
resources. The attorney listens long enough to determine that the
client's rights under the Constitution very likely were violated. But
the government agency involved is Federal. This means several things to
the attorney.
First, the Federal Government has more resources than any other
government, can maintain the case for years, and is filled with
competent attorneys who sometimes seek to win at any cost. Federal
attorneys often worry about reputation and career advancement, as do
their private sector counterparts. They also often seek to ``make law''
or create precedents quickly, which often means pressing cases rapidly
against those who cannot hire entire law firms to fight back.
Second, the Federal Government, even at the end of a long case that
it has soundly lost, will almost never concede liability for attorneys'
fees. Under EAJA, it certainly will claim that its position, although
proven illegal, was substantially justified. This will prolong the
litigation by many months or even years, requiring the attorney to re-
litigate the merits of the case and carry his hope for eventual fee
recovery that much longer.
Third, the attorney knows that, even if he can overcome the
substantial justification defense, EAJA will cap his hourly rate at
$125 (or $150)--which happens to be just half of his regular hourly
rate. Which means that, even if he soundly wins, not once but twice (on
the merits and again during fee recovery phase), he will get, at the
very most, half the fees he incurred.
Fourth, he knows that in every fee recovery case under any fee
recovery statute the government always objects to most services
provided--e.g., there were many attorneys involved who spent too much
time on this service or that one. He knows the government will seek,
and the court will agree, to strike any legal services not directly
related to the winning claims or defenses--even though the attorney was
obliged, ethically and in good faith, to assert all reasonable claims
and defenses on the behalf of the client (and not just the ones that
hindsight will reveal to have been winners). He knows he will get
``nickeled and dimed'' to death--and this is his best case scenario.
And this ignores the possibility that the Federal Government will
concede the case before a judge can rule on the merits, which will
deprive the attorney of any fee recovery at all. After years of
litigating a case, the Federal Government may decide to throw in the
towel and drop its enforcement action against the client, repeal or
modify a regulatory action that had burdened the client, or otherwise
provide the relief sought by the client. The government may do this for
many reasons. Maybe it has grown weary of the case or moved beyond it
in terms of office agenda or policy. Maybe it has become convinced of
its error. Or maybe it expects to lose and wishes to avoid the
embarrassment of an adverse court judgment and/or payment of attorneys'
fees. Under current court precedents, the attorney recovers nothing,
even if he was working the case for many years and even if he clearly
was succeeding and would have won a court judgment in time.
In sum, the attorney knows that, if he's very lucky, some years
later and probably without recovering any interest for lost time, he
will get about one-third of the fees he incurred years earlier from a
case he thoroughly and completely won. Again, this is his best case
scenario.
Contrast the very same case against a State or local government.
Under Section 1988, if he wins, he will recover his fees at the going
market rate--which in the real world is usually the rate he routinely
charges his paying clients--i.e., the rate the market will bear for an
attorney of his skills providing certain services in the particular
location. No substantial justification defense. No rate cap. No Federal
Government resources to fight indefinitely. No other nonsense under
EAJA.
Because the case would be against the Federal Government, in our
scenario, the attorney gives his regrets to the prospective client and
tries to encourage him and give him a referral. Thus, a case that
definitely should be brought, could be brought, only if the wrongdoer
was a State or local government, not the Federal Government. This
happens all the time.
And it is complete nonsense. Section 1988 has worked very well for
30 years. It has been administered fairly and without fuss and it has
not bankrupted any State or local treasuries. Nor has it caused any
severe hardships on State or local treasuries. There is no reason for
EAJA to retain these counterproductive differences.
The same Federal legislature (Congress) that passed that passed
Section 1988 passed the EAJA only four years later. But Congress filled
EAJA with new and unique exceptions and loopholes, making it much
harder for litigants to recover fees against the Federal Government.
This results in gross disincentives for small parties to attempt to
resist illegal Federal actions. It results in gross disparity in
accountability to Federal law among the different levels of government
in the United States, giving the Federal Government a pass. And it
should be remedied now.
I therefore urge this Committee, and this Congress, to act swiftly
to pass H.R. 435, the Equal Access to Justice Reform Act. Thank you for
you time and consideration of this important matter.
Mr. Smith. Mr. Hiatt.
STATEMENT OF JONATHAN HIATT, GENERAL COUNSEL, AMERICAN
FEDERATION OF LABOR, CONGRESS OF INDUSTRIAL ORGANIZATIONS, AFL-
CIO
Mr. Hiatt. Thank you, Mr. Chairman, Ranking Member. I am
Jonathan Hiatt on behalf of the AFL-CIO. We oppose this bill as
currently drafted. We believe it would seriously weaken
enforcement of the National Labor Relations Act, of the
Occupational Safety and Health Act, of the Fair Labor Standards
Act, of the Mine Safety Health Act and other labor and
employment laws, but also housing laws, consumer protection
laws, environmental and other laws that are enacted to promote
the public welfare.
Our written testimony focuses on two major sets of
concerns: One, the elimination of the requirement that to be
eligible for the award of attorney fees, a prevailing party has
to show that the government's position was not substantially
justified, and the other, the size requirement, increasing of
the size requirement for eligibility as a so-called small
business, the increase which would effectively bring 98 percent
of all U.S. firms within that definition.
I want to focus primarily on the first of these concerns
concerning the substantially justified standard. This standard
applies in two distinct sets of circumstances, and I think it
is very important to make that destinction especially in
connection with the other--with the points that the other
witnesses have made. The first is where the government is a
defendant, that is where a private party is claiming that the
government has engaged in wrongdoing or has violated--has acted
illegally by denying a benefit or violating a Federal right,
and the second is where the government is acting as a public
prosecutor where the government has brought an action against a
private party to enforce a Federal law, and the private party
has prevailed.
Those two sets of circumstances involve very different sets
of concerns, and removing the substantially justified standard
would impact the two types of cases in very different ways.
In the first, where the private party is the plaintiff and
the government is found to have acted illegally, making
attorneys fees automatically available to the prevailing party
would penalize the government for wrongful conduct, would deter
future misconduct, would make it easier for plaintiff's rights
who have been violated to gain access, and we do not disagree
with the NAACP, with the Leadership Conference on Civil Rights,
with the ACLU, with prior witnesses who believe that that
change may very well serve a salutary public purpose. But in
the second case, where the government is the public prosecutor,
you have a situation somewhat different from 1988, and the case
of a State and local government law, there is no issue of the
government having acted illegally, no issue of the government
having violated private parties' rights. To the contrary, to
where the government brings an action that is substantially
justified, it is doing exactly what Congress intended.
In the case of the National Labor Relations Act, for
example, the Board's General Counsel brings an unfair labor
practice complaint only if he or she believes that there has
been reasonable cause to believe that the law has been
violated. The same with the Fair Housing Act, with the
Americans with Disabilities Act, with the Agriculture Fair
Practices Act, with various whistleblower laws and so on.
So, perversely, the premise of this proposed law is that
agencies enforcement responsibilities like the NLRB should be
deterred even where there is a substantial justification for
believing that the law has been violated.
And indeed the result, we believe, would be a very loud
message to agencies only to bring complaints where they are
absolutely certain to prevail and would have many of the
effects that Mr. Bounds described.
For example, the impact on the Department of Labor in
bringing minimum wage or overtime actions under the Fair Labor
Standards Act or fiduciary duty violation actions under ERISA
would be subdued, and not just in labor and employment laws,
but where there is substantial justification to believe that
companies are putting unsafe products on store shelves, or
where the SEC was substantially justified in believing that a
company is bilking its investors, or where EPA is substantially
justified in believing that a company has violated pollution
regulations.
Those are not the kinds of situations where automatic
attorney's fees should go to the prevailing party unless the
government is found to not have had substantial justification
in bringing its action.
Meanwhile, it is hardly as if--and I hope that the
Committee will keep this in mind--that it is hardly as if that
Federal agencies are currently being overly aggressive in the
enforcement of regulatory statutes. If anything, we believe the
current problem is one of underenforcement. Since we submitted
our written testimony, five more miners died--six more miners
have died under a statute that is so weak in its enforcement
that the average violation for serious and substantial
violations is $156 and where there has been a reduction of 190
full-time inspectors in the last 5 years.
Lastly, with respect to the definition of small business,
as I mentioned at the beginning, the notion that somehow
extending special relief to small businesses defined in a way
that would bring 98 percent of all firms in the United States
within that definition, we believe, is not what Congress must
have in mind; and moreover, we have cited in our written
testimony a good deal of evidence showing the disproportionate
violations that take place in small business and ask that the
Committee be mindful of that.
Thank you.
Mr. Smith. Thank you, Mr. Hiatt.
[The prepared statement of Mr. Hiatt follows:]
Prepared Statement of Jon Hiatt
Mr. Smith. Mr. Knott.
STATEMENT OF JAMES M. KNOTT, SR., PRESIDENT AND CHAIRMAN OF THE
BOARD, RIVERDALE MILLS CORPORATION
Mr. Knott. Good afternoon, Chairman Smith and Members of
the Subcommittee. I thank you for the opportunity to testify
before you today on behalf of the National Association of
Manufacturers about the need for H.R. 435, the Equal Access to
Justice Reform Act of 2005. H.R. 435 would update and improve
the Equal Access to Justice Act.
My name is James M. Knott, Sr. I am the Founder and
President of Riverdale Mills Corporation. In addition, I serve
on the board of directors of the NAM, and I have been in the
manufacturing business in Massachusetts since October 1, 1956.
The National Association of Manufacturers is the Nation's
largest industrial trade association, representing small and
large manufacturers in every industrial sector and in all 50
States. Through its direct membership and affiliate
organization--the Council of Manufacturing Associations, the
Employer Association Group and the State Associations Group--it
represents more than 100,000 manufacturers.
I believe my story demonstrates why a small company needs
the protections of the EAJA when it challenges the Goliath
called the United States government.
Simply put, the government has a lot of resources and is
loathe to admit to mistakes when it takes action against a
company. The history of the EAJA shows that government takes a
very dim view of granting requests for reimbursement and thus
it has been underutilized.
I came here today to tell you about what the EPA did to my
company, Riverdale Mills Corporation, founded in 1979 in an
abandoned mill building in the economically depressed town of
Northbridge, Massachusetts.
However, telling you about that event in which the EPA
falsified evidence to get me indicted for a felony that carried
the penalty of a $1.5 million fine and 6 years of my life in
jail would take much longer than the 5 minutes I can speak here
today. Therefore, what I would like to do today is to ask you
to go to the Riverdale Mills Corporation Web site at
www.riverdale.com and look at ``news.'' There you can see a 60-
Minute show about how the EPA people falsified the evidence
with which to put me out of business.
The fact that the evidence was falsified was proven in
Worcester Federal court, and the U.S. Justice Department asked
the judge to dismiss the case. I sued the EPA for falsifying
the evidence and severely damaging the company. The judge found
in my favor and awarded me and my company damages of only about
20 percent of the actual out-of-pocket costs.
However, in my case, the First Circuit Court of Appeals
ultimately determined that neither my company nor I were
eligible for reimbursement under the Hyde amendment,
overturning the ruling of the district court that my company
was entitled to reimbursement. The Hyde amendment is a special
provision dealing with criminal rather than civil prosecutions
and sets a higher standard for reimbursement.
Since the Supreme Court of the United States denied my case
in a writ of certiorari, I will not use that forum to argue the
First Circuit Court's decision was in error. But I think it is
very important for the Subcommittee to learn what a small
business faces when a U.S. Government agency decides that it is
going to go after a company on charges even when they emanated
from an anonymous tip and there was no true basis for
prosecution.
When I bought the abandoned mill to manufacture plastic-
coated zinc-galvanized welded wire mesh to be used to make
traps for the New England lobster fishing industry, the only
habitable portion of the mill was 20,000 square feet.
Today, after adding nine additions, it is about 372,000
square feet and employs about 100 people. Twenty to 25 percent
of its products are shipped out of the U.S.A. To Canada, Europe
and South America.
As you will see in the 60-Minute show, on the 7th of
November, 1997, 21 EPA personnel swarmed into my offices, many
of them with pistols holstered on their hips and they announced
they were going to do a search and seizure. They seized about 7
and a half feet of documents, 95 percent of which had nothing
whatsoever to do with the Riverdale Mill wastewater treatment
plant, as they were authorized to seize.
I see that it is time to stop, and I would be delighted to
answer any questions that you might have.
Mr. Smith. Thank you, Mr. Knott.
[The prepared statement of Mr. Knott follows:]
Prepared Statement of James M. Knott, Sr.
Chairman Smith and members of the subcommittee on Courts, the
Internet and Intellectual Property, thank you for the opportunity to
testify before you today on behalf of the National Association of
Manufacturers (NAM) about the need for H.R. 435, the Equal Access to
Justice Reform Act of 20005. H.R. 435 would update and improve the
Equal Access to Justice Act (EAJA). My name is James Knott, Sr., and I
am president and chief executive officer of Riverdale Mills
Corporation. In addition, I serve on the Board of Directors of the NAM
and have been in the manufacturing business in Massachusetts since
October 21, 1956.
The National Association of Manufacturers is the nation's largest
industrial trade association representing small and large manufacturers
in every industrial sector and in all 50 states. Through its direct
membership and affiliate organizations--the Council of Manufacturing
Associations, the Employer Association Group and the State Associations
Group--it represents more than a hundred thousand manufacturers.
I believe that my story demonstrates why a small company needs the
protections of the EAJA when it challenges the Goliath of the United
States government. Simply put, the government has a lot of resources,
and is loathe to admit to mistakes when it takes action against a
company. The history of the EAJA shows that the government takes a very
dim view of granting requests for reimbursement and thus it has been
underutilized.
In my case, the First Circuit Court of Appeals ultimately
determined that neither I nor my company were eligible for
reimbursement under the Hyde Amendment. It is important to note,
however, that this decision overturned the ruling of the District Court
that my company was entitled to reimbursement, although even that award
was far below my company's out-of-pocket expenses. The Hyde Amendment
is a special provision dealing with criminal rather than civil
prosecutions and sets a higher standard for reimbursement. Since the
Supreme Court of the United States denied my case a writ of certiorari,
I will not use this forum to argue the First Circuit's decision was in
error. But, I think it is very important for the subcommittee to learn
what a small business faces when the U.S. government decides that it is
going to go after a company on charges, even when they emanated from an
anonymous tip and where there is no true basis for prosecution.
I started a manufacturing business called Coatings Engineering
Corporation, the day after I was honorably discharged from the United
States Army where I served two years of active duty in Oklahoma, Texas
and Louisiana as the Motor Officer in the 91st Armored Field Artillery
Battalion. As the Battalion Motor Officer, a position normally filled
by a Major, not a Second Lieutenant, I received a Meritorious Service
medal for having 365 of the best-maintained wheeled and tracked
vehicles in the 1st Armored Division.
The building I started the business in was built in 1858 on the
Charles River in South Natick, Massachusetts. It had fallen into
serious disrepair, in need of windows, doors and patches on the roof to
stop rainwater from flooding its interior. All of those things were
done, the business boomed and, six years later I sold the growing and
successful business to a large manufacturer of wire fencing
headquartered in Georgetown Connecticut, The Gilbert & Bennett
Manufacturing Company. I managed it for them for 16 years, and in 1978
I decided it was time to start over; I bought an abandoned mill
building, originally built in 1852, which straddled the Blackstone
River in the village of Riverdale, part of the Town of Northbridge, an
economically-depressed area, about 13 miles Southeast of Worcester,
Massachusetts.
I bought the abandoned mill to manufacture plastic-coated, zinc-
galvanized, welded-wire-mesh, to be used to make traps for the New
England lobster fishing industry. The only habitable part of the mill
was about 20,000 square feet; it was there that I designed and built
the machinery to make the product and I began producing it in 1980.
Today, after adding nine additions to the mill it now is about 372,000
square feet in area and employs about 100 people; 20 to 25% of its
products are shipped out of the USA to Canada, Europe and South
America.
On the 7th of November 1997, I was sitting in my office at the mill
talking on the telephone, when a local patrolman walked into the lobby
followed by a man in a black jacket with the word POLICE on its back in
large white letters. Within a few seconds the lobby was filled with 21
similarly attired men, many of them carrying pistols holstered on their
belts.
I got off the telephone, went out into the lobby and said, ``What's
going on here?'' One of the EPA people detached himself from the group
and said, ``We are looking for James Knott.'' I said, ``I am James
Knott, what are you doing?'' The EPA person said, ``We are here to do a
search and seizure.'' I said, ``Show me the warrant authorizing you to
do this.'' The EPA ``CID (Criminal Investigation Division)'' agent
said, ``We will leave you a copy when we leave.'' I said, ``If you
don't show me the warrant right now, I will call the police and have
you removed from these premises.'' Reluctantly, the agent gave me the
warrant. I read it and learned that the EPA people had been authorized
to search the premises and seize documents related to the operation of
the Riverdale Mills Corporation Wastewater Treatment Plant. Seven hours
later, the EPA people left the plant taking about seven feet of
documents with them, only about 5% of which had anything whatsoever to
do with the Wastewater Treatment Plant. Nine months later, on the 12th
of August 1998, the indictment, with penalties of a $1.5 million fine
and six years of my life in jail, was issued.
I knew without any doubt that I had never discharged any acidic
wastewaters to the publicly-owned sewer, but the problem was how to
prove it and how could I bear the expenditure of time and money it
would take. The first step was to examine logbooks kept by EPA
inspectors who had tested wastewater discharges 17 days before the
invasion. I hired a retired FBI Agent who was a handwriting expert and
we went to the EPA offices in Boston. The retired FBI Agent was able to
show me that the EPA inspectors who had tested the wastewaters 17 days
before the invasion had found all of the discharges to the publicly-
owned sewer to be the perfectly neutral pH of 7--neither acidic nor
caustic. One of the 7's had been altered to a 4 and a number of other
7's had been altered to 2's with a ballpoint pen that embossed the
alterations through the pages they were on and engraved them into the
following pages.
The next step was to confront the EPA inspector in whose logbook
the numbers had been altered on the stand, in court in front of a
judge. The EPA inspector admitted the numbers had been altered and the
judge ruled that that falsified evidence could not be used by the EPA
in their case against me and Riverdale Mills Corporation. Without
evidence that the Rivers Protection Act had been violated, the U.S.
Justice Department asked the judge to dismiss the case and the judge
complied.
The out-of-pocket cost to prove that corruption existed in the EPA
and also in the US Justice Department--where no one observed the very
obvious fact that numbers had been altered--cost me about $218,000,
which is a substantial part of the annual profits with which Riverdale
Mills has expanded its production facilities, provided new jobs and
paid taxes to the local, state and federal governments. With the
limitations of the EAJA as it now exists, the district court awarded my
company fees of only $68,726, which was ultimately overturned by the
First Circuit.
This is why it is very important that the ``Equal Access to Justice
Reform Act of 2005'' become law. The ability of small businessmen like
me to be compensated for the costs of protecting themselves and their
businesses from the attack of overzealous bureaucrats. That's why I
think that the provision that would charge EAJA awards to the budget of
the agency that took the action, rather than the general treasury, is
very important. Right now, the agencies themselves are not punished
when they are so egregiously overzealous that EAJA compensation
requests are granted. Award amounts, where warranted of course, also
need to be raised.
The NAM will be submitting additional and more detailed comments
about the provisions of H.R. 435 for the record.
Thank you Mr. Chairman and members of the subcommittee for your
time and attention to this matter. I would be happy to answer any
questions you may have for me.
Mr. Smith. Mr. Bounds, let me direct my first question to
you. And say that the Department of Justice may not have the
most credibility on this particular issue. As you know, they
opposed the original EAJA bill saying that the cost would be
excessive. I think they projected that the cost would be $500
million for the first 3 years. The cost probably was closer to
1 percent of that than to what the DOJ estimated.
Furthermore, it would be a rare government agency indeed
who would encourage lawsuits against them and then have to pay
attorneys' fees. So I understand all of that.
However, I wanted to give you an opportunity to redeem
yourself when it comes to credibility and just focus on one
aspect of the bill at hand, and that is the attorney's fees.
Attorneys' fees have only been raised once in 25 years. They
are now capped at $125 an hour, as I recall.
Don't you think that you might support an increase in the
cost or the amount of attorney's fees? And not getting into the
other issues, but doesn't that sound like an improvement that
could be made to the system, that if you are going to have
these lawsuits, and if we do not change anything else, that we
should at least change that?
Mr. Bounds. Thank you.
First, I would like to respond to the question by
underscoring that the presumptive cap of $125 under the statute
is regularly deviated from under----
Mr. Smith. You mentioned that in your testimony. I am aware
of that.
But sometimes it is not, and in the case of Mr. Knott, for
instance, his attorneys' fees were limited because of that
statute. So why don't we go on and say, raise the cap so that
everyone--there would be no doubt, you don't have to ask for a
special consideration by the court.
Mr. Bounds. Well, the Department of Justice is delighted to
comment on legislative proposals as they are made by Members of
Congress or circulated by the Committee.
The Department does not think that the attorney fees are
necessarily too low now because of the court's capacity and
agencies' capacities to deviate from the fee cap in particular
cases when the circumstances would merit.
To the extent that there are specific proposals to raise
the cap, those obviously would have to be considered on a case-
by-case basis. Obviously, there would be no effective cap if
the cap were raised to cover, you know, Manhattan law firms.
Mr. Smith. But certainly we could raise the fees by a
certain amount, and then that would enable individuals who
might be bringing the lawsuit to at least get what they
consider to be very competent counsel and not be deterred from
doing that.
Mr. Bounds. I understand the appeal of raising the cap. As
I say, the Department would be delighted to consider the merits
of any potential that----
Mr. Smith. Which is to say that you cannot say anything
more right now.
Mr. Bounds. I am not myself authorized to do so.
Mr. Smith. Okay. Thank you, Mr. Bounds.
Mr. Farris, Mr. Hiatt mentioned in his written testimony
two different classes of EAJA cases, one involved violation of
a right; the other one involved enforcement action. And he
concludes that automatic attorney fees are appropriate in the
first instance, that is, where someone has obtained a judgment
against the Federal Government for violation of their rights,
but not in the second case involving enforcement actions.
What do you think of that distinction.
Mr. Farris. Well, I think it is too easy to become a
plaintiff, rather than a defendant, to raise exactly the same
arguments. Bringing declaratory judgment, if I had an agency
that was threatening my client with an enforcement action, I
would bring a declaratory judgment action wherever it was
permitted and simply be the plaintiff, so that I could win
attorneys' fees and beat them to court, in effect. There is no
substantial difference at the end of the day.
The question is, did the government violate the law? Did
the government violate the Constitution? And wherever that is
true, whether plaintiff or defendant, commonsense justice says
that the government ought to pay.
Mr. Smith. Okay. Thank you, Mr. Farris.
Mr. Hiatt, you heard Mr. Knott's testimony, which I think
is pretty compelling. And what I wanted to ask you, if you have
a situation like this where the government apparently falsified
the evidence, they actually changed the numbers--I think it was
changing 2s to 9s or 9s to 2s, something like that--if this was
a civil case, doesn't that cry out for automatic recovery of
attorney fees? Don't you think that is a compelling case where
attorneys' fees should be awarded?
Mr. Hiatt. Well, I think if this were a civil case, you
would not need automatic award of attorney fees, because it
would be so clear, if the facts are as Mr. Knott describes
them, and I have no reason to doubt that there was no
substantial justification for the action; that would be
sufficient. And that is exactly the right; that should be the
standard.
Mr. Knott says that under a special provision, and I am not
familiar with the details of the Hyde amendment, but under the
special provisions of that, you have an exception where
apparently even the substantial justifications standard does
not apply.
I am very sympathetic if the facts are as they are, but I
do not think that that in any way detracts from----
Mr. Smith. You just do not want to expand, you do not want
to eliminate the defense or increase the number of eligible
plaintiffs to 98 percent of all businesses?
Mr. Hiatt. Well, to think if it is going to deter the
government--and, respectfully, I do not really think the cost
being any different from Mr. Bound's estimate is the issue as
much as it is how much of a deterrent will it be for the
government to have to worry about costs.
Mr. Smith. I am going to squeeze in one question if other
Members do not mind. But, Mr. Hiatt, before I get to that last
question, would you have any objection to raising the cap on
attorney fees?
Mr. Hiatt. We have absolutely no objection to the
provisions of the bill, as I understand it right now, requiring
the Attorney General to study and report to Congress about how
effective the act has been or whether the rate cap should be
changed. We are quite open to hearing more about that.
Mr. Smith. Okay, great.
Mr. Knott, thank you for your personal experience. Boy, do
I regret you had to go through that--the threats to you, the
threats to your freedom, the cost to you all. I mean, that is
where you almost believe there ought to be double or triple
damages when the government acts in that kind of almost
malicious manner; and maybe I should stop there.
But, nevertheless, my question is this. Do you know of any
instances where people have failed to bring lawsuits just
because of the cost? And has that been a deterrent, and is that
another argument for the bill itself?
Mr. Knott. I know of many cases where they have avoided
these things. I was offered--you know, would I like to settle
this case? And I said, I do not want to settle it, I want to
settle you. And that is what I embarked upon.
When, in the Hyde amendment, the lawyers' fees were capped
at $75 an hour, I haven't been able to find many of those
lawyers. What that meant was, I had to do three-quarters of the
work for them, you know, in order to get the job done.
Mr. Smith. Thank you, Mr. Knott.
Mr. Bounds, would you get back to us? And I know that you
are limited in what you can say today, but would you get back
to us specifically on the issue of increasing the cap on
attorney fees and see if the Department of Justice might
revisit that issue for us.
Mr. Bounds. I will see what I can find out.
Mr. Smith. Okay. Thank you, Mr. Bounds.
[The Department of Justice did not provide the Subcommittee
with a response to this inquiry, as was requested, prior to the
closing of the Hearing Record]
Mr. Smith. The gentleman from California, Mr. Berman, is
recognized for his questions.
Mr. Berman. While you are at it, Mr. Bounds, could you get
back to us on what the cap is on paying private lawyers to
represent defendants in criminal cases where the Federal public
defenders office is conflicted out? I am curious whether we are
looking at rates or just some rates here. Thank you.
[The Department of Justice did not provide the Subcommittee
with a response to this inquiry, as was requested, prior to the
closing of the Hearing Record]
Mr. Berman. The problem--it is very interesting, the
interplay here. I am focused on this substantial justification
issue because, Mr. Farris, you said--first of all, your
arguments basically are not about small versus big, they are
about government versus individuals, or companies or non-profit
associations who might be suing or being sued by the
government.
But this is an effort to incentivize the smaller guy both
to defend and to bring lawsuits. But you do in the context of
the big government versus the small guy--but in the National
Labor Relations Board case, in spite of the fact that--I am not
sure what Mr. Hiatt's basis is for thinking that this will
dilute the otherwise vigorous enforcement of that act, as I am
unaware of the vigorous enforcement of that act. But in any
event, it is sometimes about an even smaller party going to the
government to pursue enforcement of that person's legal rights
against a company that might be small, but is a lot larger and
is a lot more able to handle the cost of litigation than the
individual.
So an individual, the National Labor Relations Board's
General Counsel does not go out there just issuing unfair labor
practice complaints; it is because some worker came to the
National Labor Relations Board or one of their regional offices
saying that he was fired because he had joined a union or that
other rights protected by that law were violated by that
employer.
Now the General Counsel decides whether or not what this
guy says is true, and if he thinks it is true and he has a
substantial basis for thinking it is true and there is a
substantial basis for thinking that that conduct violated the
law, the General Counsel brings this unfair labor practice
complaint on behalf of this single individual; and the employer
fights it, and maybe the employer prevails at the end.
But a court determines that they were not out on an abusive
witch hunt, or this was not a frivolous complaint, it was a
close question and they lost.
Why shouldn't that--why isn't what Mr. Bounds talks about,
albeit in the context of immigration cases, true that that
General Counsel, now thinking that, particularly the way this
bill works, the costs of it are going to come out of the budget
for the National Labor Relations Board, is going to think twice
about taking anything which is a close question because he is
going to end up facing his agency with attorneys' fees burden.
And in the end the small guy will really get hurt because they
will have no agency to go to, even though we created these
agencies to protect that guy against the abuse of his rights.
Mr. Farris. Mr. Berman, I understand the logical difference
between the plaintiff case that I typically am involved with
and the situation that you are describing here. I do not think
that the proposed distinction of being the plaintiff or
defendant really is the right distinction, and so through some
other means of accomplishing some objective there.
Mr. Berman. I agree. I am not sure I like the analysis that
says do it one way but not the other way.
Mr. Farris. Right.
Mr. Berman. But my point wasn't, who was plaintiff and
defendant; my point is, who is really the small guy and who is
going to get shafted as a result of this. It is one thing to
have an overzealous government but it is another thing to be
hurting the even smaller party.
Mr. Farris.I think that the government should do what is
right in every circumstance.
If it has to pay attorney fees for doing what it thinks is
right, you are not going to have an absolutely perfect system,
whichever way you go, and basically we have to decide as a
matter of principle, whether or not the government pays
attorney fees when it has wronged someone.
I don't favor personally the small or big rule. I do not
think it should matter. I think the principle is the same, and
the government should act on behalf of all of the citizens
whether it is a small group or a large group and should
vigorously enforce the law that is before it.
But when it is found that the government has behaved
illegally, I think the government should pay, period.
Mr. Berman. These words, ``found that the government has
behaved illegally,'' I mean, if that is--if that is true, I
do--I think I have great sympathy for what you are saying. But
the fact that a particular enforcement case and a close
question before an independent judge is found against the
government does not mean the government acted illegally, and in
a weird way the substantial justification test is sort of a
term of art in a process that decides whether the government
was acting in good faith or not.
Mr. Farris.Let me give you an example.
Mr. Smith. Mr. Farris, please be quick. I want to have time
for Mr. Forbes to ask questions.
Mr. Farris. I will not respond to that.
Mr. Smith. Okay. Thank you, Mr. Berman.
The gentleman from Virginia, Mr. Forbes, is recognized for
his questions.
Mr. Forbes. Thank you, Mr. Chairman, and thank all of you
for being here today.
My comment and question is a little bit bigger in scope
than just this bill. Mr. Farris mentioned something that I
think is important, that we forget when it is the government we
are interested in doing what is right, not always just what is
legal.
And, Mr. Bounds, you talked to us about political
oversight. That is why I am here today. This may not be a
perfect bill, but I am groping for, really my question is not
the close calls that you have talked about, but what I am
worried about is what I see oftentimes as unfair balance of
power and sheer heavy-handedness that the government brings.
I mean, I could bring a notebook of cases that I have
actually seen, but three of them I am going to do real quick,
and they are not all ones that would be pertinent to this
legislation.
I watched a young man, just a short period of time ago,
late 20's; the government came at him, and they acknowledged
because they thought his father was wealthy, they had seven
lawyers coming at him. It cost him $1.4 million to defend. At
the end, he has to reach a plea agreement because they threaten
to go after his father and his mother if he did not do it, and
he to this day doesn't think that he was guilty.
In the late 1990's, DOJ--and this was before your time
maybe--but they went after hospitals across the country for
coding violations. And if you remember, this was an enforcement
situation. But they sent out to the hospitals demand letters
that basically said, if you do not pay this amount of money, we
are coming after you for treble damages and attorneys' fees,
and we are going to get you the PR for your hospital.
I bet you 80 percent of the hospitals that got those
letters paid them and did not feel they were liable because of
the unfair balance they felt they had to go against.
Mr. Berman raised an excellent point when he talked about,
sometimes you have a small guy going after a corporation. I
watched that enforcement action go against a small Dunkin
Donuts franchise owner, mom-and-pop operation. I watched him go
in three times where the government just continued the case
each time.
He looks at me finally and says, How can I do this? How can
I possibly stand up? And the government even looks at him and
says, We know you have done nothing wrong, but we want you to
reach a settlement anyway.
And the question I have for you is, you mentioned in your
testimony the negative consequences of this bill would not be
offset by any significant improvements in EAJA.
What will get significant improvements in what the Justice
Department is doing, one? And are you doing anything internally
to adjust that balance of power when you see situations like
Mr. Knott talked about, you see these situations where you know
the government is going at it with just absolutely unfair,
unequal balance against some of these?
What are your suggestions? What are you guys doing
internally so we do not have to take this kind of action?
Because that is what the political oversight is. If you cannot
police yourself, we have got to do it. What are you doing?
Mr. Bounds. Well, I want to assure the Committee that when
cases involving excessive force or overbearing prosecutions or
miscarriage of the law come to the attention of the Attorney
General and the leadership of the Department, those cases are
taken very seriously; and obviously there is a managerial
function, a supervising prosecutor in the U.S. Attorneys'
Offices around the country as well as within the Department of
Justice offices.
And that is this entire point of my testimony, which is
that is how it should function. You will never have an attorney
fee shifting statute that is going to overcome the disparity
between a single individual and the government. So the
management of these cases has to be a political oversight,
which means the President and the Congress, and the members of
the Cabinet have to police the actions of the government in
particular cases.
And so to the extent that any specific case comes to
someone's attention, it would be reviewed and remedies would be
sought. But without any specific case, I really cannot----
Mr. Forbes. But just to understand, that is what we are
here today trying to do, to do that oversight. And my time is
running out too.
But the question I would ask you, do you have any reports
or anything that you can get back to us of what efforts you
have been making in DOJ to do that policing effort that you are
talking about, and maybe give us a list of, you know, what
remedies that you have put out and how you have tried to stop
it.
I would be interested to see how many cases you guys have
looked at and what you have done over the last year or so, if
you could do that.
Mr. Bounds. I would be happy to look into it. Thank you.
[The information referred to follows:]
[The Department of Justice did not provide the Subcommittee
with a response to this inquiry, as was requested, prior to the
closing of the Hearing Record]
Mr. Forbes. Thank you, Mr. Chairman.
Mr. Smith. Thank you, Mr. Forbes.
We, as you just heard, have had some votes called. In fact,
we have six votes coming up, and we will need to head over to
the House floor. Thank you all for your testimony. It has been
very helpful, very instructive, and perhaps there will be some
ways, as we have discussed today, that we can have some reforms
at least to the process.
Thank you all.
[Whereupon, at 4:55 p.m., the Subcommittee was adjourned.]
A P P E N D I X
----------
Material Submitted for the Hearing Record
The Honorable Howard L. Berman, a Representative in Congress from the
State of California, and Ranking Member, Subcommittee on Courts, the
Internet, and Intellectual Property
----------
The Honorable John Conyers, Jr., a Representative in Congress from the
State of Michigan and Ranking Member, Committee on the Judiciary
----------
Statement of the Honorable Edwin Meese III, Ronald Reagan Distinguished
Fellow in Public Policy and Chairman, Center for Legal and Judicial
Studies, The Heritage Foundation
----------
News Alert from the National Association of Manufacturers
----------
A Dear Colleague from the United States Senate on Organizations
supporting the Equal Access to Justice Reform Act of 2005, H.R. 435/S.
2017
----------
Statement of the Honorable Donald A. Manzullo, Chairman, U.S. House of
Representatives, and Chairman, Committee on Small Business
----------
Supplemental Statement of the Honorable Donald A. Manzullo, Chairman,
U.S. House of Representatives, and Chairman, Committee on Small
Business
----------
Letter from Colby M. May, Director, American Center for Law & Justice
to the Honorable Donald A. Manzullo, Chairman, U.S. House of
Representatives, and Chairman, Committee on Small Business
----------
Letter from Laura W. Murphy, Director LaShawn Warren, Legislative
Counsel, American Civil Liberities Union
----------
Letter from Richard Lessner, Ph.D., Executive Director, The American
Conservative Union to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business
----------
Letter from Richard Haught, D.D.S., President and James B. Bramson,
D.D.S., Executive Director, American Dental Association to the
Honorable Donald A. Manzullo, U.S. House of Representatives, and
Chairman, Committee on Small Business
----------
Letter from Michael D. Maves, MD, MBA, American Medical Association to
the Honorable Donald A. Manzullo, U.S. House of Representatives, and
Chairman, Committee on Small Business
----------
Letter to Susan Steinman, Linda Lipsen, Daniel Cohen, Association of
Trial Lawyers of America from the Honorable Donald A. Manzullo, U.S.
House of Representatives, and Chairman, Committee on Small Business
----------
Letter from R. Bruce Josten, Executive Vice President, Government
Affairs, Chamber of Commerce of the United States of American to the
Honorable Donald A. Manzullo, U.S. House of Represetatives, and
Chairman, Committee on Small Business
----------
Letter from the Honorable Edwin Meese III, Ronald Reagan Distinguished
Fellow in Public Policy and Chairman, Center for Legal and Judicial
Studies, The Heritage Foundation to the Honorable Donald A. Manzullo,
U.S. House of Representatives, and Chairman, Committee on Small
Business
----------
Letter from J. Michael Smith, Esq., President, National Center for Home
Education to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business
----------
Letter from Jim Covington III, Director of Legislative Affairs,
Illinois State Bar Association to the Honorable Donald A. Manzullo,
U.S. House of Representatives, and Chairman, Committee on Small
Business
----------
Letter from Wade Henderson, Executive Director and Nancy Zirkin, Deputy
Director of the Leadership Conference on Civil Rights to the Honorable
Donald A. Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business and the Honorable Earl Blumenauer, Member
of Congress, U.S. House of Representatives
----------
Letter from Hilary O. Shelton, Director, Washington Bureau, National
Assosication for the Advancement of Colored People to the Honorable
Donald A. Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business and the Honorable Earl Blumenauer, Member
of Congress, U.S. House fo Representatives
----------
Letter from John Engler, President and CEO, the National Assosciation
of Manufacturers to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business
----------
Letter from Dan Danner, Senior Vice President, Federal Public Policy,
The National Federation of Independent Business (NFIB) to the Honorable
Donald A. Manzullo, U.S. House of Representatives, and Chairman,
Committee on Small Business
----------
Letter from Drew Caputo, Senior Attorney, The Natural Resources Defense
Counsel to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business and the Earl
Blumenauer, Member of Congress, U.S. House of Representatives
----------
Letter from Patrick Gallagher, Director of Environmental Law, Sierra
Club to the Honorable Donald A. Manzullo, U.S. House of
Representatives, and Chairman, Committee on Small Business and the
Honorable Earl Blumenauer, Member of Congress, U.S. House of
Represenatives
----------
Letter from the Small Business Equal Access to Justice Coalition to the
Honorable F. James Sensenbrenner, Jr., Chairman, House Judiciary
Committee
----------
Letter from J. William Lauderback, Executive Vice President, The
American Conservative Union to the Honorable Donald A. Manzullo, U.S.
House of Representatives, and Chairman, Committee on Small Business
----------
Letter from Caroline Fredrickson, Director, LaShawn Warren, Legislative
Counsel, American Civil Liberities Union, to the Honorable F. James
Sensenbrenner, Jr., Chairman, U.S. House of Representatives, House
Judiciary Committee and the Honorable John Conyers, Jr., a
Representative in Congress from the State of Michigan, Ranking Member,
House Judiciary Committee
----------
Letter from the Honorable Donald A. Manzullo, U.S. House of
Representatives and Chairman, Committee on Small Business and the
Honorable Earl Blumenauer, Member of Congress, U.S. House of
Representatives, the Honorable Olympia Snowe, Chair, Committee on Small
Business and Entrepreneurship, United States Senate, and the Honorable
Russell Feingold, United States Senate to the Honorable Arlen Specter,
Senate Judiciary and the Honorable F. James Sensenbrenner, Jr.,
Chairman, House Judiciary Committee
----------
Statement of the Honorable Earl Blumenauer, Member of Congress, U.S.
House of Representatives