[Congressional Record Volume 144, Number 10 (Wednesday, February 11, 1998)]
[Extensions of Remarks]
[Pages E148-E149]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




 CONCERNING ATTORNEYS' FEES, COSTS, AND SANCTIONS PAYABLE BY THE WHITE 
                      HOUSE HEALTH CARE TASK FORCE

                                 ______
                                 

                               speech of

                        HON. FORTNEY PETE STARK

                             of california

                    in the house of representatives

                      Wednesday, February 4, 1998

       The House in Committee of the Whole House on the State of 
     the Union had under consideration the joint resolution (H.J. 
     Res. 107) expressing the sense of the Congress that the award 
     of attorneys' fees, costs, and sanctions of $285,864.78 
     ordered by United States District Judge Royce C. Lamberth on 
     December 18, 1997, should not be paid with taxpayer funds:

  Mr. STARK. Mr. Chairman, February 4, the House wasted an afternoon 
debating a totally meaningless ``sense of the Congress'' that the 
taxpayer ``should'' not have to pay about $300,000 in lawyers' fees for 
a group which had sued the White House over the make-up and secrecy of 
the long-defunct Health Care Task Force.
  It was pure partisan bashing of the Clinton's health reform efforts. 
I repeatedly offered a unanimous consent amendment (the parliamentary 
rules of germaneness prevented a regular amendment) to make the 
Resolution real: to save the taxpayers from paying this fine. 
Repeatedly the Republicans rejected the offer to do what they claimed 
their Resolution was ``trying'' to do.
  All in all, their position on this Resolution was the most 
transparent political nonsense that the Congress has seen in years.

[[Page E149]]

  The following memo from the American Law Division of the Library of 
Congress makes the silliness of their Resolution clear:

                                              Library of Congress,


                               Congressional Research Service,

                                 Washington, DC, February 4, 1998.
     To: House Committee on the Judiciary.
     From: American Law Division.
     Subject: Draft Joint Resolution Expressing the Sense of 
         Congress that the Award of Attorneys' Fees in the 
         Magaziner Case Not be Paid With Taxpayer Funds.
       This memorandum is furnished in response to your request 
     for an analysis of the above draft joint resolution, which 
     was prompted by a recent federal district court decision. In 
     Association of American Physicians and Surgeons, Inc. v. 
     Clinton, 1997 U.S. Dist. LEXIS 20604 (D.D.C. Dec. 18, 1997), 
     the plaintiffs sued for an injunction declaring that the 
     President's Task Force on National Health Care Reform did 
     ``not qualify for an exemption from the Federal Advisory 
     Committee Act [FACA, 5 U.S.C. App. 2 Sec. Sec. 1-15] as an 
     advisory group composed solely of `full-time officers or 
     employees' of the government.'' During the litigation, Ira C. 
     Magaziner, Senior Advisor to President Clinton, submitted a 
     sworn declaration that all working group members were federal 
     employees. The court found that this declaration was false, 
     and that ``the most outrageous conduct by the government in 
     this case is what happened when it never corrected or up-
     dated the Magaziner declaration.'' Eventually, however, the 
     government took action that amounted to what the court called 
     a ``total capitulation.''
       The plaintiff then filed an application with the court for 
     an award of attorneys' fees; i.e., it asked the court to 
     order the government to pay its attorneys' fees. A federal 
     court may not order the United States to pay the attorneys' 
     fees of another party, unless a statute authorizes it to do 
     so. FACA contains no such authorization. However, the Equal 
     Access to Justice Act (EAJA) authorizes awards of attorneys 
     fees against the United States in two instances. First, under 
     28 U.S.C. Sec. 2412(b), it authorizes federal courts to order 
     the United States, when it acts in bad faith, to pay the 
     attorneys' fees of the prevailing party. Second, under 28 
     U.S.C. Sec. 2412(d), it provides that, in any civil action 
     (other than tort cases) brought by or against the United 
     States, ``a court shall award to a prevailing party other 
     than the United States fees and other expenses . . . 
     unless the court finds that the position of the United 
     States was substantially justified or that special 
     circumstances make an award unjust.'' Under Sec. 2412(d), 
     but not under Sec. 2412(b), fees are capped at $125 per 
     hour, and only individuals whose net worth did not exceed 
     $2 million at the time the civil action was filed, and 
     organizations whose net worth did not exceed $7 million 
     and that had not more than 500 employees, may recover 
     fees.
       In response to the plaintiff's motion for an award of 
     attorneys' fees, the court found that, prior to August 1994, 
     the United States had acted in bad faith, and therefore was 
     liable for the plaintiff's attorney's fees for that period 
     without regard to the $125 per hour cap. As to the subsequent 
     period, the court found that the plaintiff had prevailed, 
     that it was an organization with a new worth below $7 million 
     and fewer than 500 employees, and that the position of the 
     United States, though taken in good faith, was not 
     substantially justified. It therefore awarded fees for the 
     subsequent period, subject to the cap. The total award, for 
     both periods, came to $285,864.78.
       The draft joint resolution expresses ``the sense of the 
     Congress that the award of $285,864.78 in attorneys' fees, 
     costs, and sanctions that Judge Royce C. Lamberth ordered the 
     defendants to pay in Association of American Physicians and 
     Surgeons, Inc., et al. versus Hillary Rodham Clinton, et al., 
     should not be paid with taxpayer funds.'' As a sense of 
     Congress expressed in a joint resolution, this proposal will 
     have no legal effect if it is enacted. If its language were 
     introduced as a bill and enacted as a public law, then its 
     effect, provided it were upheld as constitutional, would be 
     to preclude the United States from complying with the 
     district court's order to pay the plaintiff its attorney's 
     fees. This hypothetical statute, by itself, would not require 
     anyone to pay the attorney's fees, because, as EAJA permits 
     fee awards only against the United States, there would be no 
     legal basis to assess the fees against anyone else.
       An argument might be made, however, that this hypothetical 
     statute would violate the Takings Clause of the Fifth 
     Amendment, which provides: ``nor shall private property be 
     taken for public use, without just compensation.'' The 
     hypothetical statute arguably would deprive the plaintiff of 
     its private property, in the form of a fee award that a court 
     had ordered paid to it. However, Association of American 
     Physicians and Surgeons, Inc. v. Clinton remains subject to 
     appeal, and, if it were reversed on appeal, the plaintiff 
     would lose its entitlement to a fee award. See, Poelker v. 
     Doe, 432 U.S. 519, 521 n.2 (1977). Consequently this property 
     may not be ``vested,'' and, if the hypothetical statute were 
     to take effect prior to its vesting, then, arguably, no 
     unconstitutional taking would occur. In Hammon v. United 
     States, 786 F.2d 8, 12 (1st Cir. 1986), the court of appeals 
     wrote: ``No person has a vested interest in any rule of law 
     entitling him to insist that it remain unchanged for his 
     benefit.'' [Citations omitted]. This is true after suit has 
     been filed and continues to be true until a final, 
     unreviewable judgment is obtained. Chief Justice Marshall 
     first announced that principle in The Schooner Peggy, 5 U.S. 
     (1 Cranch) 103, 110, 2 L. Ed. 49 (1801). The Supreme Court 
     held in that case that a court must apply the law in force at 
     the time of its decision, even if it is hearing the case on 
     appeal from a judgment entered pursuant to prior law.
       A caveat, however: the preceding quotation states only the 
     majority view as to when ``property'' status attaches to a 
     cause of action. There is also case law supporting the 
     ``contention that one has a vested property right in a cause 
     of action once it has somehow accrued. [Citations omitted] 
     Those cases are conceptually difficult to reconcile with 
     cases that hold that a plaintiff does not have a vested 
     property right in a claim unless there is a final 
     nonreviewable judgment.'' Jefferson Disposal Co. v. Parish of 
     Jefferson, LA, 603 F. Supp. 1125, 1137 n.31 (E.D. La. 1985).
       A cause of action accrues once the injury that gives rise 
     to the cause of action has occurred. Therefore, those cases 
     that find accrual sufficient for vesting would ipso facto 
     find a final lower court judgment sufficient for vesting. 
     Other cases do not make clear whether final judgments trigger 
     property status only once they are no longer reviewable. For 
     example, in O'Brien v. J.I. Kislak Mortgage Corp., 934 F. 
     Supp. 1348, 1362 (S.D. Fla. 1996), the district court wrote: 
     ``Reviewing the relevant Eleventh Circuit case law, it 
     appears clear that a mere legal claim affords no enforceable 
     property right until a final judgment has been obtained.'' 
     One might argue that, even if mere accrual is not sufficient 
     to trigger property status, and a final judgment is 
     necessary, a nonreviewable judgment may not be necessary. 
     Again, however, the majority view appears to be that a 
     nonreviewable judgment is necessary. Consequently, it appears 
     that the stronger argument would be that a statute that 
     overturned the award of attorneys' fees in Association of 
     American Physicians and Surgeons, Inc. v. Clinton, before a 
     final appeal had been decided or the time in which to appeal 
     had run, would be constitutional.
       The draft joint resolution, we reiterate, does not purport 
     to overturn the award of attorneys' fees; it would merely 
     express the sense of Congress that the government not pay the 
     fee award, and does not express the sense of Congress that 
     anyone else pay it.

     

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