EDWARD M. KENNEDY, Massachusetts ALAN K. SIMPSON, Wyoming ROMANO ROMANI, Staff Director ROBERT E. FEIDLER, Chief Counsel SALLY ROGERS, Minority Legislative Assistant (II) CONTENTS Swain, Frank S., legislative counsel, National Federation of Independent Grijalva, Richard, representing the National Economic Development Robb, Robert, Arizona Chamber of Commerce_ Shilling, Perry, Independent Business Committee, Phoenix Chamber of Calamaro, Raymond S., Deputy Assistant Attorney General, Office of Legislative Affairs, Department of Justice, accompanied by W. R. King, Office for Improvements in the Administration of Justice, DOJ.-- Swain, Frank S., legislative counsel, National Federation of Independent Bodine, Ralph, citrus grower, Phoenix, Ariz.. Quarles, William, vice president, Sunkist Growers. Zachariae, Barbara, rancher, Young, Ariz.__. Brantingham, John, businessman, Phoenix, Ariz.. 65 SATURDAY, APRIL 21, 1979 STATEMENTS Opening statement of Senator DeConcini. TESTIMONY Bratton, Judge Howard, U.S. district judge... Goldberg, Prof. Joseph, University of New Mexico Law School__ Hertzler, Mr. and Mrs. Bruce, Albuquerque, N. Mex... Swain, Frank, counsel, National Federation of Independent Business...- Ed Jory, Earl Crist, Jim Hudson, Bill Carroll, E. D. Nunns, Harold National Labor Relations Board.. COMMENTS FROM FEDERAL AGENCIES Civil Aeronautics Board... 158 160 162 Securities and Exchange Commission.. 164 169 Small Business Administration__ 175 ADDITIONAL SUBMISSIONS FOR THE RECORD Submission of Ed Bundrick... 179 Submission of Donald C. Alexander.. 196 EQUAL ACCESS TO JUSTICE ACT OF 1979, S. 265 THURSDAY, APRIL 19, 1979 U.S. SENATE, SUBCOMMITTEE ON IMPROVEMENTS IN JUDICIAL MACHINERY, Washington, D.C. The subcommittee met, pursuant to notice, at 9:55 a.m., in the Tucson City Council chambers, Tucson City Hall, Tucson, Ariz., Senator Dennis DeConcini (chairman of the subcommittee) presiding. Also present: Romano Romani, staff director, Subcommittee on Improvements in Judicial Machinery, and Pamela Eldred, counsel. Senator DECONCINI. The Subcommittee on Improvements in Judicial Machinery will come to order. OPENING STATEMENT OF SENATOR DeCONCINI I want to thank the city of Tucson, the other fine people who helped us set this up, the clerk and the secretary for the city council, the mayor and the city council, and I also want to thank Senator Kennedy for authorizing these hearings to be held in Arizona and New Mexico by the Judiciary Committee and by the subcommittee, and the ranking members of those committees, both the Republicans and the Democrats, for their support of these hearings. It is a real pleasure to be back in Tucson today to hold hearings on S. 265, a bill that is pending before the Subcommittee on Improvements in Judicial Machinery, which I chair. Senate bill 265, which is titled the Equal Access to Justice Act, represents a vital weapon in our struggle to tame Government regulations, and I hope it will mark a new era in the development of a responsive and responsible bureaucracy. Under this bill, if the citizen prevails in a civil action or agency proceedings brought by or against the U.S. Government, he or she will be able to recover attorneys' fees from the Government unless the Government can show that its actions were substantially justified. The fee award will come directly from the operating budget of the offending agency. The purpose of the bill is twofold. First, it is intended to provide citizens with effective legal and administrative remedies where none now exist. It is clear that in many situations under the present law, citizens do not have viable remedies. It simply costs too much to resort to agencies or court proceedings to vindicate our rights. Under these circumstances the only realistic alternative left to the citizen is to capitulate to the Government, even when you believe the Government is wrong, unreasonable, or irresponsible. The bill is intended. to overcome those financial obstacles and thus to provide citizens and small businesses with an opportunity to stand up for their rights. It would, I hope, at least make it a fair fight for all concerned by increasing citizens access. In this way, the bill will achieve its second purpose to make the bureaucracy more accountable to the exercise of its regulatory powers and more responsive to its citizens' needs. As I mentioned, the fee award will be taken from the budget of the agency involved. The bill thus recognizes that the most persuasive way to make an agency assume a more responsible posture is to affect its pocketbook. Agencies which are paying awards under this bill will have good cause to evaluate their rules, their procedures, and their staff. Even more importantly, the awards will provide an objective gage of whether or not an agency is engaging in excessive, unreasonable regulations and will also allow Congress to carefully scrutinize that agency's budget request each year. We are not seeking to dismantle the governmental authorities to regulate, nor are we seeking to provide an opportunity for General Motors or Exxon to challenge the Government on every regulation. What we are seeking is more responsibility on the part of the Government in enforcing its rules, and a fair shake for the corner grocery store and the husband-and-wife shoe repair shop. I hope these hearings in Arizona will help the Congress to pass an effective piece of legisla tion. Again, I want to welcome you, the witnesses and the public, and particularly want to thank the many people who have taken time to put these hearings together including Pam Eldred and Romano Romani of my staff in Washington, and the staff here, Judy Berman in my office. I would like to ask that a copy of S. 265 be inserted in the record, and it will so be ordered. [A copy of S. 265 can be found in the appendix.] Our first witnesses today: this morning we will have a group of witnesses and then a panel. This afternoon we will have a public hearing starting at 2:30 where anyone will be available to come and give their opinion on such legislation and where it should be modified or changed, or anything else that's on their mind. Our first witness this morning is Frank S. Swain, legislative counsel, National Federation of Independent Business. STATEMENT OF FRANK S. SWAIN, LEGISLATIVE COUNSEL, NA TIONAL FEDERATION OF INDEPENDENT BUSINESS Mr. SWAIN. Thank you very much, Senator. We appreciate the opportunity to lead off these hearings this morning on S. 265 and we congratulate you and your staff on the time and effort that you have put in in sponsoring this legislation. NFIB, the National Federation of Independent Business, is the largest individual membership organization in the Nation with over 580,000 small and independent businessmen including over 7,000 members right here in Arizona. NFIB represents your average Main Street type of business, small wholesaler, retailer, construction, small manufacturer, professionals, and nonprofessionals. Most of our members have an average of seven or eight employees and a yearly gross of less than $250,000. |