SPEAKERS CONTENTS INSERTS
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27–743 PDF
2006
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
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Serial No. 109–126
Printed for the use of the Committee on the Judiciary
Available via the World Wide Web: http://judiciary.house.gov
COMMITTEE ON THE JUDICIARY
F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
LAMAR SMITH, Texas
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
STEVE CHABOT, Ohio
DANIEL E. LUNGREN, California
WILLIAM L. JENKINS, Tennessee
CHRIS CANNON, Utah
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
JOHN N. HOSTETTLER, Indiana
MARK GREEN, Wisconsin
RIC KELLER, Florida
DARRELL ISSA, California
JEFF FLAKE, Arizona
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MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
STEVE KING, Iowa
TOM FEENEY, Florida
TRENT FRANKS, Arizona
LOUIE GOHMERT, Texas
JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
SHEILA JACKSON LEE, Texas
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ROBERT WEXLER, Florida
ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
CHRIS VAN HOLLEN, Maryland
DEBBIE WASSERMAN SCHULTZ, Florida
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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
ELTON GALLEGLY, California
BOB GOODLATTE, Virginia
WILLIAM L. JENKINS, Tennessee
SPENCER BACHUS, Alabama
BOB INGLIS, South Carolina
RIC KELLER, Florida
DARRELL ISSA, California
CHRIS CANNON, Utah
MIKE PENCE, Indiana
J. RANDY FORBES, Virginia
HOWARD L. BERMAN, California
JOHN CONYERS, Jr., Michigan
RICK BOUCHER, Virginia
ZOE LOFGREN, California
MAXINE WATERS, California
MARTIN T. MEEHAN, Massachusetts
ROBERT WEXLER, Florida
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ANTHONY D. WEINER, New York
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California
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
The Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Chairman, Subcommittee on Courts, the Internet, and Intellectual Property
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
WITNESSES
Mr. Ryan W. Bounds, Chief of Staff, Office of Legal Policy, Department of Justice
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Oral Testimony
Prepared Statement
Mr. Michael Farris, J.D., Chairman and General Counsel, Home School Legal Defense Association
Oral Testimony
Prepared Statement
Mr. Jonathan Hiatt, General Counsel, American Federation of Labor, Congress of Industrial Organizations, AFL-CIO
Oral Testimony
Prepared Statement
Mr. James M. Knott, Sr., President and Chairman of the Board, Riverdale Mills Corporation
Oral Testimony
Prepared Statement
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
The Honorable John Conyers, Jr., a Representative in Congress from the State of Michigan and Ranking Member, Committee on the Judiciary
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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
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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
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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
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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
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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.
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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.
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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.
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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.
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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.]
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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.
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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
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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.
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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.
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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.
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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.
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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——
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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.
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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]
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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.
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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.
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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.
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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.
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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.
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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.
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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:]
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[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
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THE HONORABLE JOHN CONYERS, JR., A REPRESENTATIVE IN CONGRESS FROM THE STATE OF MICHIGAN AND RANKING MEMBER, COMMITTEE ON THE JUDICIARY
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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
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NEWS ALERT FROM THE NATIONAL ASSOCIATION OF MANUFACTURERS
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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
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STATEMENT OF THE HONORABLE DONALD A. MANZULLO, CHAIRMAN, U.S. HOUSE OF REPRESENTATIVES, AND CHAIRMAN, COMMITTEE ON SMALL BUSINESS
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SUPPLEMENTAL STATEMENT OF THE HONORABLE DONALD A. MANZULLO, CHAIRMAN, U.S. HOUSE OF REPRESENTATIVES, AND CHAIRMAN, COMMITTEE ON SMALL BUSINESS
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
LETTER FROM LAURA W. MURPHY, DIRECTOR LASHAWN WARREN, LEGISLATIVE COUNSEL, AMERICAN CIVIL LIBERITIES UNION
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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
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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
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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
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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
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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
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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
[Note: Image(s) not available in this format. See PDF version of this file for complete hearing record.]
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
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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
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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
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LETTER FROM THE SMALL BUSINESS EQUAL ACCESS TO JUSTICE COALITION TO THE HONORABLE F. JAMES SENSENBRENNER, JR., CHAIRMAN, HOUSE JUDICIARY COMMITTEE
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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
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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
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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
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STATEMENT OF THE HONORABLE EARL BLUMENAUER, MEMBER OF CONGRESS, U.S. HOUSE OF REPRESENTATIVES
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