EQUAL ACCESS TO JUSTICE ACT AMENDMENTS

CIS RECORD ONLY:

HEARING

BEFORE THE

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES,
AND THE ADMINISTRATION OF JUSTICE

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

NINETY-EIGHTH CONGRESS

SECOND SESSION

ON

H.R. 5059

EQUAL ACCESS TO JUSTICE ACT AMENDMENTS

41-826 O

LIBRARY OF GOVT

Printed for the use of the Committee on the Judiciary

U.S. GOVERNMENT PRINTING OFFICE

WASHINGTON: 1986

For sale by the Superintendent of Documents, Congressional Sales Office
U.S. Government Printing Office, Washington, DC 20402

DOCUMENTS

SUBCOMMITTEE ON COURTS, CIVIL LIBERTIES, AND THE ADMINISTRATION OF JUSTICE

ROBERT W. KASTENMEIER, Wisconsin, Chairman

MICHAEL J. REMINGTON, Chief Counsel
GAIL HIGGINS FOGARTY, Counsel

DAVID W. BEIER, Counsel
DEBORAH LEAVY, Counsel

THOMAS MOONEY, Associate Counsel
JOSEPH V. WOLFE, Associate Counsel

CONTENTS

WITNESSES

Aron, Nan, executive director, Alliance for Justice......

Prepared statement

Kuhl, Hon. Carolyn B., Deputy Assistant Attorney General, Civil Division,

U.S. Department of Justice

Page

Prepared statement.

Stewart, David O., Small Business Legal Defense Committee and Small Busi-

ness United.....

Macklin, Laura, assistant professor and associate director, Institute for Public

Representation, Georgetown University Law Center

Prepared statement

Swain, Frank S., Chief Counsel for Advocacy, U.S. Small Business Adminis-

tration.....

Prepared statement

66

85

20

25

66

66

20

47

ADDITIONAL MATERIALS

Statement of National Federation of Independent Business, March 14, 1984 .....
Statement of J.H. McQuiston, McQuiston Associates, March 14, 1984

APPENDIX I-SELECTED LEGISLATIVE MATERIALS

3

15

A. Legislative History, H.R. 5059/H.R. 5479, Equal Access to Justice Act

Amendments (98th Congress)...

104

105

113

B. H.R. 5059, 98th Cong., 2d Sess., introduced March 7, 1984.

C. H.R. Rept. No. 98-992, 98th Cong., 2d Sess. (filed September 6, 1984)..........

D. H.R. 5479, 98th Cong., 2d Sess., enrolled bill, as sent to President on

October 28, 1984....

E. H. Cohen, "Awards of Attorneys' Fees Against the United States: The

Equal Access to Justice Act, as Amended in 1984," American Law Divi-

sion, Congressional Research Service, The Library of Congress, October

18, 1984..

F. Department of Justice Memorandum Recommending the President Not

Approve Legislation Reauthorizing the Equal Access to Justice Act, from

Hon. Robert A. McConnell, Assistant Attorney General, Office of Legisla-

tive and Intergovernmental Affairs, U.S. Department of Justice, to David

A. Stockman, Director, Office of Management and Budget, dated October

23, 1984, published by Bureau of National Affairs, Inc., 42 Federal Con-

tracts Report 788-790 (October 29, 1984)

139

143

151

G. President Ronald Reagan, Memorandum of Disapproval (H.R. 5479), dated

November 9, 1984.

156

H. President Ronald Reagan, Memorandum for the Heads of Executive De-

partments and Agencies (Equal Access to Justice Act), dated November 9,

1984....

158

APPENDIX II-SUPPLEMENTAL MATERIALS INCLUDING CORRESPONDENCE

A. Charts relating to Equal Access to Justice Act.

1. EAJA Applications/Awards (FY 1982 and 1983) (October 1, 1983)

2. Chart on EAJA Awards (October 1, 1984).....

B. Excerpt, U.S. Small Business Administration, Office of Advocacy, "Small

Business Attorneys' Fees Recovery: Report on the Equal Access to Justice

Act," March 1984..

C. Reports from the Administrative Office of the United States Courts.

1. Letter from William E. Foley, director, Administrative Office of the

United States Courts to Hon. Robert W. Kastenmeier (Chairman,

Subcommittee on Courts, Civil Liberties and the Administration of

Justice), dated September 23, 1983, and enclosed Report on EAJA

(July 1, 1982-June 30, 1983)..

2. Letter from William E. Foley to Hon. Peter W. Rodino, Jr. (Chair-

man, Committee on the Judiciary), dated September 24, 1984, and

enclosed Report on EAJA (July 1, 1983-June 30, 1984).

D. Materials from the Administrative Conference of the United States (ACUS)

1. Letter to Hon. Robert W. Kastenmeier, from Loren A. Smith (Chair-

man, Administrative Conference of the United States), dated

March 16, 1984 ........

2. Equal Access to Justice Act Regulations (March 14, 1984)..

3. Report of the Chairman of ACUS on Agency Activities under the

Equal Access to Justice Act, October 1, 1982-September 30, 1983......

4. Report of the Chairman of ACUS on Agency Activities under the

Equal Access to Justice Act, October 1, 1983-September 30, 1984......

E. Additional Materials from the Administration and to the Administration

relating to EAJA and Attorneys' Fees......

1. Memorandum re: Multi-Ågency Equal Access to Justice Act Award

Procedure from Joseph R. Wright, Jr., Deputy Director, Office of

Management and Budget, to Heads of Departments and Agencies,

dated June 20, 1983.

2. Letter from F. Henry Habicht II, Assistant Attorney General, Lands

and Natural Resources Division, U.S. Department of Justice, to

Hon. Robert W. Kastenmeier, dated March 21, 1984, with attach-

ment

3. Letter from David A. Stockman to Hon. Peter W. Rodino, Jr., dated

May 11, 1984.

4. Letter from Robert A. McConnell to Hon. Thomas P. O'Neill, Jr.,

Speaker of the House of Representatives, dated May 31, 1984, with

attachment..

5. H.R. 5757, 98th Cong., 2d Sess., introduced on May 31, 1984, by

request

6. Letter from Robert A. McConnell to Hon. Charles E. Grassley (a

Senator from the State of Iowa), Chairman, Subcommittee on Ad-

ministrative Practice and Procedure, Committee on the Judiciary,

U.S. Senate, dated September 19, 1984, with attachment.

7. Letter from Hon. Carlos J. Moorhead (Ranking Minority Member,

Subcommittee on Courts, Civil Liberties and the Administration of

Justice) and Hon. Thomas N. Kindness (a Representative from the

State of Ohio) to the President, dated October 12, 1984...

8. Letter from Hon. Peter Domenici (a Senator from the State of New

Mexico), Hon. Paul Laxalt (a Senator from the State of Nevada),

Hon. Robert Dole (a Senator from the State of Kansas), Hon. Strom

Thurmond, and Hon. Charles Grassley, to President Ronald

Reagan, dated October 12, 1984

F. Materials from the Comptroller General of the United States...

1. Letter to Hon. Peter W. Rodino, Jr., dated October 5, 1984 (File No.

B-40342.4).....

2. Decision of the Comptroller General of the United States Re: Attor-

ney Fees-Judicial Awards under Equal Access to Justice Act,

dated March 19, 1984 (63 Comp. Gen. 260, File No. B-40342.3)..

G. Materials relating to Coverage of Social Security Claimants

1. Letter from John Percy, Freedom of Information Officer, Social

Security Administration, Department of Health and Human Serv-

ices, to Nancy G. Shor, National Organization for Social Security

Claimants and Recipients (NOSSCR), dated March 1, 1984, with

attachment.

2. Letter from Hon. Dan Rostenkowski (Chairman, Committee on Ways

and Means, U.S. House of Representatives) and others to Hon.

Robert W. Kastenmeier, dated May 14, 1984

3. Letter from Hon. Dan Rostenkowski and Hon. J.J. Pickle (Chairman,

Subcommittee on Social Security, Committee on Ways and Means,

U.S. House of Representatives), to Hon. Bruce A. Morrison (a Rep-

resentative from the State of Connecticut), dated May 22, 1984......

Page

208

208

216

224

224

226

227

239

248

248

249

276

278

309

323

326

327

328

328

332

340

340

343

345

H. Materials relating to Coverage of Tax Cases

1. Letter from Hon. Fortney H. (Pete) Stark (Chairman, Subcommittee
on Select Revenue Measures, Committee on Ways and Means, U.S.
House of Representatives) to Hon. Charles E. Grassley, dated April
14, 1983.

2. Letter from Hon. Robert W. Kastenmeier to Hon. Dan Rostenkowski,
dated May 11, 1984, with attachments.

3. Letter from Hon. Dan Rostenkowski and Hon. Barber B. Conable, Jr.
(Ranking Republican Member, Committee on Ways and Means) to
Hon. Robert W. Kastenmeier, dated May 14, 1984

4. Letter from Hon. Howard A. Dawson, Jr. (Chief Judge, United
States Tax Court) to Hon. Robert W. Kastenmeier, dated Septem-
ber 28, 1984..

5. Letter from Hon. R.T. McNamar Deputy Secretary of the Treasury,
to Hon. Dan Rostenkowski, dated September 28, 1984, with attach-
ment

6. Letter from Hon. Dan Rostenkowski to Hon. Thomas P. O'Neill, Jr.,
dated September 28, 1984...

Page

347

347

349

353

356

359

363

7. Letter from Hon. Robert J. Dole to Hon. Dan Rostenkowski, dated
October 3, 1984.

365

366

I. Additional Correspondence, Statements, and Articles..........

1. Letter from F. Wm. McCalpin, secretary, American Bar Association,
to Hon. Robert W. Kastenmeier, dated February 22, 1983, with
attachment...

2. Letter from Stephen C. Stark, Deputy Administrative Assistant, The
Council of the City of New York, to Hon. Thomas J. O'Neill, Jr.,
dated September 27, 1983, with Attached Resolution of the Council,
dated September 15, 1983...

366

368

3. Letter from John Berthelesen, president, Suttle Press, to Hon.
Robert W. Kastenmeier, dated February 3, 1984.

370

4. Statement of the Independent Business Association of Wisconsin,
submitted by Cliff G. Russell, dated March 22, 1984.

371

5. Letter from Robert D. Evans, director, Governmental Affairs Group,
American Bar Association to Hon. Robert W. Kastenmeier, dated
April 4, 1984, with Attached Statement of the American Bar Asso-
ciation (Martin F. Richman, Chairman, Section of Administrative
Law, and Reuben B. Robertson, Chairman, Committee on Public
Advocates and Public Representation, Section of Administrative
Law).

6. Letter from John J. Motley, III, Director of Federal Legislation,
National Federation of Independent Business, to Hon. Peter W.
Rodino, Jr., dated April 24, 1984..

7. Letter from Richard L. Breault, Group Vice President, Policy, Cham-
ber of Commerce of the United States of America, to Hon. Robert
W. Kastenmeier, dated April 24, 1984.

8. Excerpt, Small Business United, "Creating Jobs for American's
Future," Washington Presentation, May 1 and 2, 1984.

9. Letter from Richard L. Lesher, president, Chamber of Commerce of
the United States of America, to the President, dated October 15,
1984.......

10. Letter from Herbert Liebenson, president, National Small Business
Association, to the President, dated November 13, 1984..................

377

405

406

408

412

413