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109th Congress                                             Rept. 109-61
                        HOUSE OF REPRESENTATIVES
 1st Session                                                     Part 2
======================================================================


 
OCCUPATIONAL SAFETY AND HEALTH SMALL EMPLOYER ACCESS TO JUSTICE ACT OF 
                                  2005

                                _______
                                

  May 20, 2005.--Committed to the Committee of the Whole House on the 
              State of the Union and ordered to be printed

                                _______
                                

 Mr. Sensenbrenner, from the Committee on the Judiciary, submitted the 
                               following

                              R E P O R T

                             together with

                            DISSENTING VIEWS

                        [To accompany H.R. 742]

      [Including cost estimate of the Congressional Budget Office]

  The Committee on the Judiciary, to whom was referred the bill 
(H.R. 742) to amend the Occupational Safety and Health Act of 
1970 to provide for the award of attorneys' fees and costs to 
small employers when such employers prevail in litigation 
prompted by the issuance of a citation by the Occupational 
Safety and Health Administration, having considered the same, 
reports favorably thereon without amendment and recommends that 
the bill do pass.

                                CONTENTS

                                                                   Page
Purpose and Summary..............................................     2
Background and Need for the Legislation..........................     2
Hearings.........................................................     3
Committee Consideration..........................................     3
Vote of the Committee............................................     3
Committee Oversight Findings.....................................     4
New Budget Authority and Tax Expenditures........................     4
Congressional Budget Office Cost Estimate........................     4
Performance Goals and Objectives.................................     6
Constitutional Authority Statement...............................     7
Section-by-Section Analysis and Discussion.......................     7
Changes in Existing Law Made by the Bill, as Reported............     7
Markup Transcript................................................     8
Dissenting Views.................................................    23

                          Purpose and Summary

    The purpose of H.R. 742, the ``Occupational Safety and 
Health Small Employer Access to Justice Act of 2005,'' is to 
increase the ability of small businesses to obtain 
reimbursement for their legal costs when they prevail in cases 
brought against them by the Occupational Safety and Health 
Administration (``OSHA''). The bill provides that a small 
business (defined as a business with less than 100 employees 
and a net worth of no more than $7 million) shall recover 
attorneys' fees when it prevails in an adjudicatory action 
brought by OSHA. The legislation is intended to prevent non-
meritorious lawsuits from proceeding, to encourage OSHA to 
ensure that the cases it brings against small businesses are 
meritorious, and to provide small businesses the means to 
adequately represent themselves when confronted by adjudicatory 
actions brought by a Federal agency with overwhelmingly 
superior legal resources.

                Background and Need for the Legislation

    Small businesses have repeatedly complained that when faced 
with government investigations of their workplaces, that it is 
often far easier and cheaper to settle than to dispute a claim. 
The result is that small businesses are often pressured to 
settle even when they possess a reasonable basis for disputing 
the action. Congress enacted the Equal Access to Justice Act 
(``EAJA'') in 1980 to provide for Federal reimbursement of 
small businesses faced with non-meritorious complaints or 
actions by Federal agencies under a ``not substantially 
justified'' standard. H.R. 742 modifies the existing statute by 
creating a separate standard for EAJA cases at OSHA. Under H.R. 
742, EAJA cases would result in an award of attorneys' fees and 
costs if an employer is the prevailing party and had less than 
100 employees with a net worth of less than $7 million when the 
adversarial adjudication was initiated by OSHA.
    H.R. 742 demonstrates that Congress is aware that small 
business owners are sometimes forced to settle OSHA claims even 
when these claims lack merit. This pressure to settle stems 
from the fact that small businesses typically possess limited 
financial resources and are unable to sustain protracted 
litigation against a well-financed, well-represented government 
agency. This burden is most acutely felt by small businesses 
that would be better served by reinvesting financial resources 
into their employees and organizations, rather than expending 
precious resources litigating non-meritorious citations. Small 
businesses should be focused on what they do best, creating 
jobs for working Americans, rather than diverting their 
resources to defend against incessant, sometimes non-
meritorious claims by Federal officials with vastly superior 
legal resources.
    It is critical to note that H.R. 742 does not insulate 
small businesses from legal expenses when OSHA prevails in its 
adjudicatory actions against these firms. Rather, the 
legislation is narrowly tailored to provide OSHA an incentive 
to more carefully examine the cases it brings against small 
businesses to ensure that they are meritorious. The National 
Federation of Independent Businesses (which includes 600,000 
members) strongly supports this legislation.
    The Committee notes that a similar bill, H.R. 2731, was 
passed by the House during the 108th Congress by a vote of 233 
to 194 on May 18, 2004.

                                Hearings

    The Committee held no hearings on H.R. 742.

                        Committee Consideration

    On May 11, 2005, the Committee met in open session and 
ordered favorably reported the bill H.R. 742 by a vote of 18 to 
11, a quorum being present.

                         Vote of the Committee

    In compliance with clause 3(b) of Rule XIII of the Rules of 
the House of Representatives, the Committee notes that there 
was a recorded vote for reporting the bill during the committee 
consideration of H.R.742.

                                                 ROLLCALL NO. 1
----------------------------------------------------------------------------------------------------------------
                                                                       Ayes            Nays           Present
----------------------------------------------------------------------------------------------------------------
Mr. Hyde........................................................
Mr. Coble.......................................................              X
Mr. Smith (Texas)...............................................              X
Mr. Gallegly....................................................              X
Mr. Goodlatte...................................................              X
Mr. Chabot......................................................              X
Mr. Lungren.....................................................              X
Mr. Jenkins.....................................................              X
Mr. Cannon......................................................              X
Mr. Bachus......................................................
Mr. Inglis......................................................
Mr. Hostettler..................................................              X
Mr. Green.......................................................              X
Mr. Keller......................................................              X
Mr. Issa........................................................
Mr. Flake.......................................................
Mr. Pence.......................................................              X
Mr. Forbes......................................................              X
Mr. King........................................................              X
Mr. Feeney......................................................              X
Mr. Franks......................................................              X
Mr. Gohmert.....................................................              X
Mr. Conyers.....................................................                              X
Mr. Berman......................................................                              X
Mr. Boucher.....................................................
Mr. Nadler......................................................                              X
Mr. Scott.......................................................                              X
Mr. Watt........................................................                              X
Ms. Lofgren.....................................................                              X
Ms. Jackson Lee.................................................
Ms. Waters......................................................                              X
Mr. Meehan......................................................
Mr. Delahunt....................................................
Mr. Wexler......................................................
Mr. Weiner......................................................                              X
Mr. Schiff......................................................                              X
Ms. Sanchez.....................................................                              X
Mr. Smith (Washington)..........................................
Mr. Van Hollen..................................................                              X
Mr. Sensenbrenner, Chairman.....................................              X
                                                                 -----------------------------------------------
    Total.......................................................             18              11
----------------------------------------------------------------------------------------------------------------

                      Committee Oversight Findings

    In compliance with clause 3(c)(1) of Rule XIII of the Rules 
of the House of Representatives, the Committee reports that the 
findings and recommendations of the Committee, based on 
oversight activities under clause 2(b)(1) of Rule X of the 
Rules of the House of Representatives, are incorporated in the 
descriptive portions of this report.

               New Budget Authority and Tax Expenditures

    Clause 3(c)(2) of Rule XIII of the Rules of the House of 
Representatives is inapplicable because this legislation does 
not provide new budgetary authority or increased tax 
expenditures.

               Congressional Budget Office Cost Estimate

    In compliance with clause 3(c)(3) of Rule XIII of the Rules 
of the House of Representatives, the Committee sets forth, with 
respect to the bill, H.R. 742, the following estimate and 
comparison prepared by the Director of the Congressional Budget 
Office under section 402 of the Congressional Budget Act of 
1974:

                                     U.S. Congress,
                               Congressional Budget Office,
                                      Washington, DC, May 19, 2005.
Hon. F. James Sensenbrenner, Jr., Chairman,
Committee on the Judiciary,
House of Representatives, Washington, DC.
    Dear Mr. Chairman: The Congressional Budget Office has 
prepared the enclosed cost estimate for H.R. 742, the 
Occupational Safety and Health Small Employer Access to Justice 
Act of 2005.
    If you wish further details on this estimate, we will be 
pleased to provide them. The CBO staff contact is Tom Bradley, 
who can be reached at 226-9010.
            Sincerely,
                                       Douglas Holtz-Eakin.

Enclosure

cc:
        Honorable John Conyers, Jr.
        Ranking Member
H.R. 742--Occupational Safety and Health Small Employer Access to 
        Justice Act of 2005.

                                SUMMARY

    H.R. 742 would amend the Occupational Safety and Health Act 
to permit small employers with 100 or fewer employers and net 
worth of not more than $7 million to be awarded attorney fees 
and expenses if they prevail against the Occupational Safety 
and Health Agency (OSHA) in administrative or court 
proceedings.
    CBO estimates that implementing H.R. 742 would cost $4 
million in 2006 and $39 million over the 2006-2010 period, 
subject to the availability of appropriated funds. H.R. 742 
would not affect direct spending or revenues.
    H.R. 742 contains no intergovernmental or private-sector 
mandates as defined in the Unfunded Mandates Reform Act (UMRA) 
and would impose no costs on state, local, or tribal 
governments.

                ESTIMATED COST TO THE FEDERAL GOVERNMENT

    The estimated budgetary impact of H.R. 742 is shown in the 
following table. The costs of this legislation fall within 
budget function 550 (health).

                 By Fiscal Year, in Millions of Dollars
------------------------------------------------------------------------
                                 2005   2006   2007   2008   2009   2010
------------------------------------------------------------------------
SPENDING SUBJECT TO APPROPRIATION
OSHA Spending Under Current
 Law
  Estimated Authorization         464    478    491    505    519    533
 Level\1\
  Estimated Outlays               467    471    484    498    512    526

Proposed Changes
  Estimated Authorization           0      9      9      9      9     10
 Level
  Estimated Outlays                 0      4      7      9      9     10

OSHA Spending Under H.R. 742
  Estimated Authorization         464    487    500    514    528    543
 Level
  Estimated Outlays               467    475    491    507    521    536
------------------------------------------------------------------------
1. The 2005 level is the amount appropriated for that year for the
  Occupational Safety and Health Agency. The amounts for 2006 through
  2010 are baseline projections that assume annual increases for
  anticipated inflation.

                           BASIS OF ESTIMATE

    For this estimate, CBO assumes that the bill will be 
enacted in the fall of 2005, that the estimated amounts will be 
appropriated for each year, and that outlays will follow 
historical spending patterns for similar activities authorized 
under the Equal Access to Justice Act (EAJA).
    H.R. 742 would amend the Occupational Safety and Health Act 
to allow employers with 100 or fewer employees and less than $7 
million in net worth to be awarded reasonable attorney fees and 
expenses if they prevail in an adversarial adjudication or a 
court proceeding in which they contest a citation made by OSHA. 
Under the EAJA, the payment of fees and expenses would be made 
from the agency's discretionary appropriations. CBO estimates 
that implementing H.R. 742 would cost $4 million in 2006 and 
$39 million over the 2006-2010 period, subject to the 
availability of appropriated funds.
    Currently under the EAJA, a prevailing party with fewer 
than 500 employees and less than $7 million in net worth may 
recover their legal expenses, but only when it is found that 
the action brought by the United States is not substantially 
justified or when special circumstances would make an award 
unjust. In practice, OSHA actions (that is, citations pursuant 
to the Occupational Safety and Health Act) have nearly always 
met those standards. (Only a handful of employers with 100 or 
fewer employees were awarded fees and expenses after prevailing 
against OSHA in 2003.) Regardless of whether OSHA's actions 
were substantially justified or the award unjust, OSHA would be 
required, under H.R. 742, to pay fees and expenses of small 
employers who prevail in administrative or court proceedings.
    According to data from the agency, each year OSHA issues 
citations in about 28,000 cases across all employer groups. 
Employers with fewer than 101 employees accounted for about 70 
percent of that caseload. (Most small employers cited by OSHA 
are construction-related firms.) Only about 7 percent of the 
citations made to small firms are contested, or about 1,400 
cases per year. Of these contested cases, CBO estimates that 
about 400 would involve either adjudication in an 
administrative proceeding or judicial review, based on the 
percentage of all contested cases that reached these levels 
over the past 2 years.
    In addition, CBO assumes that small employers would prevail 
against OSHA on at least one count in over half of the cases 
that reach the required administrative or judicial level. This 
assumption is based on the historical rate at which all 
employers prevail when they contest OSHA citations. In 2006, 
CBO assumes OSHA would reimburse small employers about $40,000 
in legal costs, on average, when they prevail in overturning 
OSHA actions. That assumption is based on a survey of OSHA 
awards to small employers in 2003 and the expectation that the 
awards will grow with inflation. CBO assumed the average award 
under H.R. 742 would be 50 percent higher than under current 
law because reductions for substantial justification would be 
removed.

              INTERGOVERNMENTAL AND PRIVATE-SECTOR IMPACT

    H.R. 742 contains no intergovernmental or private-sector 
mandates as defined in UMRA and would impose no costs on state, 
local, or tribal governments.

                         PREVIOUS CBO ESTIMATE

    On April 15, 2005, CBO transmitted a cost estimate for H.R. 
742 as ordered reported by the House Committee on Energy and 
Commerce on April 13, 2005. The version of H.R. 742 approved by 
House Committee on the Judiciary is identical to the version 
approved by the Committee on Energy and Commerce, as is CBO's 
estimate of the budgetary effect of implementing the bill.

                         ESTIMATE PREPARED BY:

Federal Costs: Tom Bradley (226-9010)
Impact on State, Local, and Tribal Governments: Leo Lex (225-
    3220)
Impact on the Private Sector: Peter Richmond (226-2666)

                         ESTIMATE APPROVED BY:

Peter H. Fontaine
Deputy Assistant Director for Budget Analysis

                    Performance Goals and Objectives

    The Committee states that pursuant to clause 3(c)(4) of 
Rule XIII of the Rules of the House of Representatives, H.R. 
742 is designed to improve the effectiveness of the Equal 
Access to Justice Act regarding OSHA cases.

                   Constitutional Authority Statement

    Pursuant to clause 3(d)(1) of Rule XIII of the Rules of the 
House of Representatives, the Committee finds the authority for 
this legislation in Article one, section eight, clause three of 
the Constitution.

               Section-by-Section Analysis and Discussion

                          SEC. 1. SHORT TITLE.

    This section designates the legislation the ``Occupational 
Safety and Health Small Employer Access to Justice Act of 
2005.''

              SEC. 2. AWARD OF ATTORNEYS' FEES AND COSTS.

    This section amends the Occupational Safety and Health Act 
of 1970 by adding a new section 32 and renumbering sections 32 
through 34 as 33 through 35. The new section 32 provides that 
an employer who is the prevailing party in an adversary 
adjudication commenced on or after the date of enactment under 
the OSH Act, which at the time the action was initiated had not 
more than 100 employees and a net worth of not more than $7 
million, shall be awarded attorneys' fees pursuant to the 
section 504 of title 5 of U.S. Code irrespective of whether the 
position taken by OSHA was ``substantially justified.''

         Changes in Existing Law Made by the Bill, as Reported

  In compliance with clause 3(e) of rule XIII of the Rules of 
the House of Representatives, changes in existing law made by 
the bill, as reported, are shown as follows (existing law 
proposed to be omitted is enclosed in black brackets, new 
matter is printed in italics, existing law in which no change 
is proposed is shown in roman):

OCCUPATIONAL SAFETY AND HEALTH ACT OF 1970

           *       *       *       *       *       *       *


                   AWARD OF ATTORNEYS' FEES AND COSTS

    Sec. 32.
    (a) Administrative Proceedings.--An employer who--
            (1) is the prevailing party in any adversary 
        adjudication instituted under this Act, and
            (2) had not more than 100 employees and a net worth 
        of not more than $7,000,000 at the time the adversary 
        adjudication was initiated,
shall be awarded fees and other expenses as a prevailing party 
under section 504 of title 5, United States Code, in accordance 
with the provisions of that section, but without regard to 
whether the position of the Secretary was substantially 
justified or special circumstances make an award unjust. For 
purposes of this section the term ``adversary adjudication'' 
has the meaning given that term in section 504(b)(1)(C) of 
title 5, United States Code.
    (b) Proceedings.--An employer who--
            (1) is the prevailing party in any proceeding for 
        judicial review of any action instituted under this 
        Act, and
            (2) had not more than 100 employees and a net worth 
        of not more than $7,000,000 at the time the action 
        addressed under subsection (1) was filed,
shall be awarded fees and other expenses as a prevailing party 
under section 2412(d) of title 28, United States Code, in 
accordance with the provisions of that section, but without 
regard to whether the position of the United States was 
substantially justified or special circumstances make an award 
unjust. Any appeal of a determination of fees pursuant to 
subsection (a) of this subsection shall be determined without 
regard to whether the position of the United States was 
substantially justified or special circumstances make an award 
unjust.
    (c) Applicability.--
            (1) Commission proceedings.--Subsection (a) shall 
        apply to proceedings commenced on or after the date of 
        enactment of this section.
            (2) Court proceedings.--Subsection (b) shall apply 
        to proceedings for judicial review commenced on or 
        after the date of enactment of this section.

                              separability

      Sec. [32] 33. If any provision of this Act, or the 
application of such provision to any person of circumstance, 
shall be held invalid, the remainder of this Act, or the 
application of such provision to persons or circumstances other 
than those as to which it is held invalid, shall not be 
affected thereby.

                             appropriations

      Sec. [33] 34. There are authorized to be appropriated to 
carry out this Act for each fiscal year such sums as the 
Congress shall deem necessary.

                             effective date

      Sec. [34] 35. This Act shall take effect one hundred and 
twenty days after the date of its enactment.

                           Markup Transcript



                            BUSINESS MEETING

                              MAY 18, 2005

                  House of Representatives,
                                Committee on the Judiciary,
                                                    Washington, DC.
    The Committee met, pursuant to notice, at 10:07 a.m., in 
Room 2141, Rayburn House Office Building, Hon. F. James 
Sensenbrenner, Jr. [Chairman of the Committee] presiding.
    Chairman Sensenbrenner. The Committee will be in order. A 
working quorum is present.
    [Intervening business.]
    Chairman Sensenbrenner. Pursuant to notice, I now call up 
the bill H.R. 742, the ``Occupational Safety and Health Small 
Employer Access to Justice Act of 2005,'' for purposes of 
markup and move its favorable recommendation to the House. 
Without objection, the bill will be considered as read and open 
for amendment at any point.
    [The bill, H.R. 742, follows:]
    
    
    Chairman Sensenbrenner. And the Chair recognizes himself 
for 5 minutes to explain the bill.
    Enacted in 1980, the Equal Access to Justice Act requires 
Federal agencies to reimburse the legal costs of small 
businesses that successfully challenge actions brought against 
them by a Federal agency. The reason for passage of that 
legislation was clear. Small businesses have fewer resources to 
defend themselves against the virtually unlimited financial and 
legal resources of Government agencies, even when they have a 
strong basis for proclaiming their innocence.
    Even with the cost recovery provisions of the Equal Access 
to Justice Act, when faced with Government investigations at 
their workplaces by OSHA, it is often far cheaper and easier 
for small businesses to settle than to dispute a claim. The 
result is that small businesses are often pressured to settle, 
even when they possess a reasonable basis for disputing the 
action.
    Additionally, the current practice has the perverse 
incentive of encouraging less than qualified OSHA actions 
against small businesses since Government regulators know that 
small businesses with limited resources will routinely settle 
with the Government regardless of the merits of their dispute.
    This bill will help restore the balance between OSHA and 
small businesses by making it easier for the small businesses 
to obtain Government reimbursement. The bill was reported by 
the Committee on Education and the Workforce on April 27. The 
Committee on the Judiciary received a sequential referral of 
this legislation which expires on Friday, which means we have 
to act today in order to preserve jurisdiction.
    I ask unanimous consent that a letter to me from the 
600,000 members of the NFIB expressing strong support with this 
legislation and requesting that it be passed by the Committee 
without amendment be included in the record, and without 
objection, that is so ordered.
    [The letter referred to follows:]
    
    

    Chairman Sensenbrenner. I urge my colleagues to favorably 
report the legislation and recognize the gentleman from 
Michigan.
    Mr. Conyers. Mr. Chairman, this is our first legislation 
which constitutes the wolf in sheep's clothing because I 
consider this a very dangerous measure because it actually 
creates an incentive for employers to litigate with OSHA rather 
than to correct any safety flaws in the workplace.
    Unfortunately, this measure will undermine the goal of 
OSHA, which is to assure, so far as possible, every worker in 
the Nation safe and healthful working conditions, because what 
we will do is, in effect, penalize OSHA for any instance in 
which it attempts to safeguard worker safety and losses that 
even for technical reasons may exist.
    Now, let's look at the picture. First of all, this is going 
to harm small employees of which most workers are employed in 
this country. It applies to any company with less than 100 
employees, without regard for their safety record, and 
currently over 6.5 million small businesses fall into this 
category. That is 97 percent of all employers. The companies 
employ more than 55 million workers.
    Many of these businesses have maybe billions of dollars in 
annual revenues, certainly millions, and have no business being 
covered by a small business bill.
    Now, curiously enough--and here's where the wolf in sheep's 
clothing description comes in--the Committee has received no 
evidence that OSHA has been acting in any incorrect way or that 
they pursued unwarranted litigation or that they have abused 
its prosecutorial discretion. To the contrary, 60 percent of 
all OSHA citations are settled, and those that go to trial, 
OSHA wins 4 out of 5 cases. And so employers are already 
entitled to recovery of legal fees under the law and--which 
further specifies that the Government must pay the prevailing 
party's fees and costs in any situation in which the 
Government's position was not substantially justified.
    So we have before us an unwarranted bill that lashes out 
against an effective agency and places our workers in this 
country in further jeopardy. And it's for these reasons it is 
my position that the bill is dangerous, that it is--and 
assuming that it's well intended, is going to very much 
frustrate OSHA in the very good job in this area that they're 
doing in terms of seeking more safe and more healthful working 
conditions.
    I urge the Members to consider these points as we move this 
measure in the Committee on the Judiciary, and I return my 
time.
    Chairman Sensenbrenner. Without objection, all Members' 
opening statements can appear in the record at this point in 
time.
    Are there amendments?
    [No response.]
    Chairman Sensenbrenner. If there are no amendments----
    Mr. Watt. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from North Carolina.
    Mr. Watt. I would just move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Watt. I won't take 5 minutes. I just think this is bad 
public policy, and I intend to vote against it. And I know what 
the outcome is going to be. I just wanted to be on record.
    I yield back.
    Ms. Waters. Mr. Chairman?
    Chairman Sensenbrenner. The gentlewoman from California.
    Ms. Waters. I move to strike the last word.
    Chairman Sensenbrenner. The gentlewoman is recognized for 5 
minutes.
    Ms. Waters. I know that there perhaps are great changes in 
policy taking place in the Congress of the United States on any 
number of subjects and issue areas. But one of the things that 
I think we can be proud of in this country is the fact that we 
moved a long time ago to protect workers in the workplace, and 
because of OSHA, I believe that we have avoided the loss of 
limb, we have protected workers from being placed in situations 
where they could have their eyes basically lost, all kinds of 
protections that I think we can be very proud of as a country 
as it relates to protections we give our workers.
    And so to move in this direction and to try and frame it as 
protecting small businesses is an absolute misinterpretation of 
what is really happening here. First of all, this legislation 
goes way beyond what is small business. It does not in anyway 
define small business in the same way that we define small 
businesses in Title 7 of the Civil Rights Act or the Americans 
with Disabilities Act where we're talking about small 
businesses, 15 employees or 20 employees. This is far-reaching 
and what it simply does is it puts a chill on OSHA's being able 
to protect the workers.
    There's no real evidence that's been presented that OSHA's 
prosecutorial discretion warrants its paying--its paying of 
attorneys' fees in cases it loses, and so I just think that we 
need to take a real close look a this and not proceed in this 
fashion to just run roughshod over much of the good public 
policy that we have developed over the years. I would ask for a 
no vote on----
    Mr. Weiner. Would the gentlelady yield before she yields 
back?
    Ms. Waters. Yes, I will yield.
    Mr. Weiner. You know, this does perhaps, though, give us 
some food for thought about the way we deal with State 
proceedings before the NLRB. If a company is trying to stop a 
union from organizing and it turns out they were unsuccessful 
or they get violations, maybe it should be treble damages or 
maybe they should have to pay the legal fees of the workers who 
are trying to organize. So perhaps--you know, consistency has 
never been a strength of this Committee, I would say to the 
gentlelady, but perhaps it gives us some opportunities later 
on.
    Ms. Waters. That is a good thought. Thank you very much. I 
yield back the balance of my time.
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. Are there amendments?
    [No response.]
    Chairman Sensenbrenner. If there are no amendments, a 
reporting quorum----
    Mr. Scott. Mr. Chairman?
    Chairman Sensenbrenner. The gentleman from Virginia.
    Mr. Scott. Did someone seek recognition?
    Mr. Lungren. Mr. Chairman?
    Mr. Scott. I move to strike the last word unless somebody 
on that----
    Chairman Sensenbrenner. The gentleman from California.
    Mr. Lungren. I move to strike the last word.
    Chairman Sensenbrenner. The gentleman is recognized for 5 
minutes.
    Mr. Lungren. Mr. Chairman, just in response to the comments 
that we just heard, there's nothing in this bill that undoes 
anything that OSHA can do. There's nothing that restricts its 
jurisdiction here. There's nothing that tries to refine what it 
does. This bill simply says that for small businesses--and they 
are defined as has been stated--they may recover attorneys' 
fees when they prevail in an adjudicatory action brought by 
OSHA.
    Why is this important? During part of the time that I was 
absent from this body, I practiced law in the private sector 
and had the opportunity to represent some private parties 
dealing with the Federal Government. And it is a fact of life 
that the Federal Government's size, staying power, strength 
overwhelms many individuals in the private sector, that 
oftentimes what has been stated is absolutely true, and I've 
seen it. You settle rather than going through all of that which 
is necessary to deal with the Federal Government on issues 
before them.
    It's not a condemnation of the Federal Government. It's not 
a condemnation of the agencies involved. But to allow someone 
to recover attorneys' fees is a relatively simple fix on----
    Mr. Watt. Would the gentleman yield?
    Mr. Lungren.--a problem that may otherwise exist.
    Mr. Watt. Would the gentleman yield?
    Mr. Lungren. I'll be happy to yield.
    Mr. Watt. Is the gentleman aware that currently if there is 
a showing of--that fees are substantially justified or where, 
quote, special circumstances would make----
    Mr. Lungren. Yes.
    Mr. Watt.--shifting unjust, that the court already has 
discretion to crack the whip on OSHA----
    Mr. Lungren. Yes, I understand that. Reclaiming my time, I 
would say this----
    Mr. Watt. You got 90 percent of the loaf; you want the 
other 10 percent now.
    Mr. Lungren. No. What I want is something which fairly 
shifts a balance, that allows people to be heard, requires the 
Federal Government in these instances to take a second look as 
to the seriousness of their case, and, frankly, just allows 
people to be treated fairly. As I said, if I hadn't been in the 
private sector, if I hadn't represented people in adversarial 
positions with the Federal Government, if I hadn't seen one of 
the tactics of the Federal Government, which is to squeeze 
individuals basically with the threat of just the staying power 
of the Federal Government, I would not be supporting this. But 
I've seen this, and unfortunately I think we need to do this 
sort of thing and----
    Mr. Berman. Would the gentleman yield?
    Mr. Lungren. I'd be happy to yield.
    Mr. Berman. I'm curious. If--I have two questions. If OSHA 
prevails and, in fact, an employer, large or small, is found to 
have violated safety standards, can OSHA collect attorneys' 
fees on behalf of the taxpayers against that small employer 
under existing law?
    Mr. Lungren. I'm not certain of that, but they can 
certainly get fines, and fines that I have seen in the past are 
certainly significant. They can take civil action against them 
for----
    Mr. Berman. No, there are penalties for----
    Mr. Lungren. That's what I mean.
    Mr. Berman. But for the costs of having to litigate that 
which the employer could have acknowledged in the beginning and 
paid the fines for, can the Federal Government get reimbursed 
for the attorneys' fees expended?
    Mr. Lungren. Under normal circumstances I don't believe so.
    Mr. Berman. I think that's right.
    If a group of workers go to their union and their union 
hires an attorney to present to OSHA the evidence of safety 
code violations and OSHA brings an action and prevails, should 
the union members or the union be able to--or the employees be 
able to recover the attorneys' fees they expended in pursuing a 
claim which vindicated Federal rights and turned out to have 
demonstrated OSHA violations by an employer?
    Mr. Lungren. I hadn't thought about that. I'd be happy to 
talk with the gentleman another time on that.
    Mr. Berman. Is there a time when the majority might want to 
propose a bill that's evenhanded on this subject?
    Mr. Lungren. I understand that's a rhetorical question by 
the gentleman. I would say that from the perspective of 
individuals who have been on the other side of cases such as 
this by the Federal Government, in this respect OSHA, this is 
an attempt to try and balance the case.
    I yield back the balance of my time.
    [Intervening business.]
    Chairman Sensenbrenner. We will now return to H.R. 742. Are 
there amendments? The gentleman from Virginia, Mr. Scott.
    Mr. Scott. Mr. Chairman, very briefly--and some of these 
points have been covered--the Equal Access to Justice Act 
already provides for attorneys' fees when the OSHA is not 
substantially justified. In fact, there is no problem because 
the findings are that virtually every cases--virtually every 
case, the OSHA is justified, and so we're looking for a problem 
that does not exist. The fact is that this will--this has the 
effect of discouraging OSHA from bringing cases.
    Now, there is no independent right of action under OSHA, so 
the employees depend on OSHA to protect them from--for safety 
and health. And relying on OSHA, if we're discouraging OSHA, 
we're putting these workers at risk.
    I would hope that we would rely on the present law, the 
Equal Access to Justice Act, which provides just about 
everything this bill does without discouraging OSHA from 
enforcing the law. I yield to the gentleman from Michigan.
    Mr. Conyers. I thank Mr. Scott for yielding.
    Ladies and gentlemen of the Committee, we have no evidence 
before us that OSHA has been bringing unwarranted litigation or 
that they have abused prosecutorial discretion. This is a great 
idea with no foundation. And let me tell you what a lot of 
people are beginning to think.
    This is an anti-worker bill in which people injured in the 
workplace are going to be made more vulnerable as a result of 
our concern about allowing many private businesses, many of 
whom are very large in size, to use this as a further way of 
intimidating OSHA. And so I hope that the Occupational Safety 
and Health organization will not change its policy of moving 
aggressively if this measure happens to get out of the House or 
out of--become law. It's just unfair for us to say that we're 
now going to protect bamboozled employers, but there's nothing 
that proves that that's the case at all. This is--this is a 
phantom issue, and I think it's a move to encircle and 
intimidate the Occupational Safety and Health Administration.
    I thank the gentleman for yielding.
    Mr. Scott. I yield back.
    Chairman Sensenbrenner. The gentleman from New York, Mr. 
Nadler.
    Mr. Nadler. Thank you, Mr. Speaker. I'll be brief.
    Mr. Speaker, I think the gentleman from Michigan is, as is 
customary, very mild. The fact of the matter is OSHA has too 
few prosecutions of businesses. Thousands and thousands, tens 
of thousands of American workers are injured in preventable 
accidents every year because the law isn't adequately enforced. 
This bill is simply a measure to try to intimidate OSHA from 
enforcing the law, even to the extent it does now. It is a bill 
designed to get more American workers injured or killed on the 
job. It is a disgraceful bill. I hope we don't report it.
    I yield back.
    Chairman Sensenbrenner. The question--a reporting quorum is 
present. The question occurs on the motion to report the bill 
H.R. 742 favorably. All in favor will say aye? Opposed, no?
    The noes appear to have it. A rollcall is ordered. Those in 
favor of reporting the bill favorably will, as your names are 
called, answer aye, those opposed no, and the clerk will call 
the roll.
    The Clerk. Mr. Hyde?
    [No response.]
    The Clerk. Mr. Coble?
    Mr. Coble. Aye.
    The Clerk. Mr. Coble, aye. Mr. Smith?
    [No response.]
    The Clerk. Mr. Gallegly?
    Mr. Gallegly. Aye.
    The Clerk. Mr. Gallegly, aye. Mr. Goodlatte?
    Mr. Goodlatte. Aye.
    The Clerk. Mr. Goodlatte, aye. Mr. Chabot?
    Mr. Chabot. Aye.
    The Clerk. Mr. Chabot, aye. Mr. Lungren?
    Mr. Lungren. Aye.
    The Clerk. Mr. Lungren, aye. Mr. Jenkins?
    Mr. Jenkins. Aye.
    The Clerk. Mr. Jenkins, aye. Mr. Cannon?
    Mr. Cannon. Aye.
    The Clerk. Mr. Cannon, aye. Mr. Bachus?
    [No response.]
    The Clerk. Mr. Inglis?
    [No response.]
    The Clerk. Mr. Hostettler?
    Mr. Hostettler. Aye.
    The Clerk. Mr. Hostettler, aye. Mr. Green?
    Mr. Green. Aye.
    The Clerk. Mr. Green, aye. Mr. Keller?
    Mr. Keller. Aye.
    The Clerk. Mr. Keller, aye. Mr. Issa?
    [No response.]
    The Clerk. Mr. Flake?
    [No response.]
    The Clerk. Mr. Pence?
    Mr. Pence. Aye.
    The Clerk. Mr. Pence, aye. Mr. Forbes?
    [No response.]
    The Clerk. Mr. King?
    Mr. King. Aye.
    The Clerk. Mr. King, aye. Mr. Feeney?
    Mr. Feeney. Aye.
    The Clerk. Mr. Feeney, aye. Mr. Franks?
    Mr. Franks. Aye.
    The Clerk. Mr. Franks, aye. Mr. Gohmert?
    Mr. Gohmert. Aye.
    The Clerk. Mr. Gohmert, aye. Mr. Conyers?
    Mr. Conyers. No.
    The Clerk. Mr. Conyers, no. Mr. Berman?
    Mr. Berman. No.
    The Clerk. Mr. Berman, no. Mr. Boucher?
    [No response.]
    The Clerk. Mr. Nadler?
    Mr. Nadler. No.
    The Clerk. Mr. Nadler, no. Mr. Scott?
    Mr. Scott. No.
    The Clerk. Mr. Scott, no. Mr. Watt?
    Mr. Watt. No.
    The Clerk. Mr. Watt, no. Ms. Lofgren?
    Ms. Lofgren. No.
    The Clerk. Ms. Lofgren, no. Ms. Jackson Lee?
    [No response.]
    The Clerk. Ms. Waters?
    Ms. Waters. No.
    The Clerk. Ms. Waters, no. Mr. Meehan?
    [No response.]
    The Clerk. Mr. Delahunt?
    [No response.]
    The Clerk. Mr. Wexler?
    [No response.]
    The Clerk. Mr. Weiner?
    Mr. Weiner. No.
    The Clerk. Mr. Weiner, no. Mr. Schiff?
    Mr. Schiff. No.
    The Clerk. Mr. Schiff, no. Ms. Sanchez?
    Ms. Sanchez. No.
    The Clerk. Ms. Sanchez, no. Mr. Smith?
    [No response.]
    The Clerk. Mr. Van Hollen?
    Mr. Van Hollen. No.
    The Clerk. Mr. Van Hollen, no. Mr. Chairman?
    Chairman Sensenbrenner. Aye.
    The Clerk. Mr. Chairman, aye.
    Chairman Sensenbrenner. Members in the chamber who wish to 
cast or change their votes? The gentleman from Virginia, Mr. 
Forbes?
    Mr. Forbes. Aye.
    The Clerk. Mr. Forbes, aye.
    Chairman Sensenbrenner. The gentleman from Texas, Mr. 
Smith.
    Mr. Smith of Texas. Aye.
    The Clerk. Mr. Smith, aye.
    Chairman Sensenbrenner. Further Members in the chamber who 
wish to cast or change their votes? If not, the clerk will 
report.
    The Clerk. Mr. Chairman, there are 18 ayes and 11 noes.
    Chairman Sensenbrenner. And the motion to report favorably 
is agreed to. Without objection, the staff is directed to make 
any technical and conforming changes, and all Members will be 
given 2 days as provided by the House rules in which to submit 
additional, dissenting, supplemental, or minority views.
    [Intervening business.]
    Chairman Sensenbrenner. The Committee stands adjourned.
    [Whereupon, at 11:41 a.m., the Committee adjourned.]
                            Dissenting Views

    We strongly dissent from H.R. 742, the ``Occupational 
Safety and Health Small Employers Access to Justice Act of 
2005.'' H.R. 742, as the title suggests, does nothing to 
enhance workers' safety and health protections or safeguard 
small business. H.R. 742 will weaken the Occupational Safety 
and Health Administration's (OSHA) ability to protect workers 
by discouraging the agency from exercising its enforcement and 
labor standard setting responsibilities. H.R. 742 will result 
in greater workplace fatalities, injuries, and illnesses.
    The Bureau of Labor Statistics reports that in 2003, 5,559 
workers were killed by traumatic injuries. This means that on 
average, 15 workers were fatally injured each day in 2003.\1\ 
In 2003, 4.4 million workers were injured on the job and 2.3 
million of these workers had to spend days away from work or 
experience job transfers or restrictions as a result of 
injuries.\2\ The AFL-CIO reports that Federal OSHA currently 
has 861 safety and health inspectors and can inspect workplaces 
on an average of once every 108 years.\3\ OSHA's current budget 
for fiscal year 2005 of almost $462 million amounts to $4.33 
per worker in the private sector.\4\ H.R. 742 will do nothing 
to rectify these numbers, but rather force taxpayers to pay the 
legal costs of employers and jeopardize workplace health and 
safety.
---------------------------------------------------------------------------
    \1\Bureau of Labor Statistics, National Census of Fatal 
Occupational Injuries in 2003, September 22, 2004.
    \2\Bureau of Labor Statistics, Workplace Injuries and Illnesses in 
2003, December 14, 2004.
    \3\AFL-CIO, Death on the Job, 14th Edition, April 2005.
    \4\Budget of the U.S. Government, Fiscal Year 2005, Appendix, Pages 
725-727.
---------------------------------------------------------------------------
    We oppose this legislation for several reasons. First, H.R. 
742 will severely limit OSHA's ability to protect workers. 
Second, H.R. 742, which has been characterized as a small 
business bill, is not limited to small business. Third, the 
need for H.R. 742 is unsupported by evidence that OSHA has 
pursued unwarranted litigation or abused its prosecutorial 
discretion. And fourth, H.R. 742 is unnecessary because 
employers are already entitled to recovery of legal fees under 
the Equal Access to Justice Act.

                       DESCRIPTION OF LEGISLATION

    Section I of H.R. 742 designates the bill as the 
``Occupational Safety and Health Small Employer Access to 
Justice Act of 2005.''
    Section II of H.R. 742 requires that OSHA pay the 
attorneys' fees and costs of employers with 100 or fewer 
employees and a net worth of up to $7 million when such 
employers prevail in any administrative or enforcement case 
brought by OSHA or any challenge to an OSHA standard. Employers 
will be entitled to attorneys' fees and costs in cases in which 
it prevails against OSHA regardless of whether OSHA's action 
was substantially justified.
    H.R. 742 was introduced on February 10, 2005 by 
Representative Charles Norwood (R-GA). The bill was referred to 
the Committee on Education and the Workforce and on April 13, 
2005, the bill was ordered favorably reported to the House by a 
party-line vote of 27-18. On April 27, 2005, the bill was 
reported by the Committee on Education and the Workforce and 
referred sequentially to the Committee on the Judiciary. On May 
18, 2005, the Committee on the Judiciary, which did not hold 
any hearings on H.R. 742, reported the bill favorably by a 
party-line vote of 18-11.
    Organizations that oppose H.R. 742 include the 57 national 
and international unions that comprise the American Federation 
of Labor-Congress of Industrial Organizations (AFL-CIO), such 
as the American Federation of State, County, and Municipal 
Employees (AFSCME), Service Employees International Union 
(SEIU), United Automobile Workers (UAW), and International 
Brotherhood of Teamsters (IBT).\5\
---------------------------------------------------------------------------
    \5\Letter from William Samuel, Director, Department of Legislation, 
AFL-CIO to Representative John Conyers, Jr., May 17, 2005.
---------------------------------------------------------------------------

     I. H.R. 742 SEVERELY LIMITS OSHA'S ABILITY TO PROTECT WORKERS

    Since OSHA was created in 1970, its mission has been clear: 
``to assure the safety and health of America's workers by 
setting and enforcing standards; providing training, outreach, 
and education; establishing partnerships; and encouraging 
continual improvement in workplace health and safety''\6\ 
OSHA's mission to save lives, prevent injuries and illnesses, 
and to protect the health of America's workers remains 
essential today. H.R. 742 will stifle OSHA's exercise of 
statutory responsibility to enforce the Occupational and Safety 
Health Act of 1970 (OSH Act)\7\ by penalizing the agency for 
every instance in which it attempts to do so unsuccessfully. 
H.R. 742 will enure that an agency that is already pursuing too 
few prosecutions, will pursue even fewer.
---------------------------------------------------------------------------
    \6\Occupational Safety and Health Administration, Mission 
Statement, www.osha.gov/oshainfo/mission.html, May 19, 2005.
    \7\29 USC Sec. 651.
---------------------------------------------------------------------------
    H.R. 472 will have a chilling effect on both OSHA 
enforcement and OSHA standard setting because attorneys' fees 
would be available to prevailing employers in both types of 
actions. OSHA would be hesitant to cite employers for 
violations of the OSH Act unless there is absolute certainty 
that the enforcement action will be upheld in its entirety. 
Similarly, unless OSHA is certain that a standard will not be 
challenged, it would be reluctant to develop and issue rules on 
any hazard no matter how dangerous a threat to workers. Rather 
than foster cooperation between employers and OSHA, H.R. 742 
will encourage defendants to litigate matters with OSHA. To the 
detriment of our American workers, this legislation will result 
in fewer settlements and lengthier litigation, as well as 
delayed compliance with the OSH Act.
    H.R. 472 represents yet another bill that places worker 
safety and lives at risk. During the last 5 years, the labor 
community has witnessed workplace protections and job safety 
programs weakened. Each year, the labor community has had to 
fight proposed cuts to OSHA, the Mine Safety and Health 
Administration (MSHA), and the National Institute for 
Occupational Safety and Heath (NIOSH) budgets.\8\ H.R. 472 will 
drain resources away from an agency that has perpetually 
struggled to do its job with the limited resources available to 
do it. The Congressional Budget Office estimates that H.R. 472 
will cost $4 million for fiscal year 2006 and $39 million for 
fiscal years 2006-2010, which must come out of OSHA's 
budget.\9\ This would require Congress to appropriate 
additional money to OSHA's budget to cover the cost of the bill 
or to cut OSHA's enforcement budget or reduce compliance 
assistance to businesses.
---------------------------------------------------------------------------
    \8\AFL-CIO Safety and Health Fact Sheet, Norwood Reintroduces Four 
OSHA Deform Bills, Worker Safety Threatened, March 2005.
    \9\Congressional Budget Office Cost Estimate for H.R. 742, the 
Occupational Safety and Health Small Employer Access to Justice Act of 
2005, as ordered by the House Committee on the Judiciary on May 18, 
2005.
---------------------------------------------------------------------------

             II. H.R. 742 IS NOT LIMITED TO SMALL BUSINESS

    H.R. 742 has been characterized as a small business bill, 
but this bill actually will apply to the majority of private 
sector employers. The bill defines a small business as an 
employer with fewer than 100 employees and a net worth of up to 
$7 million dollars. Businesses with fewer than 100 employees 
make up almost 98% of all private sector establishments.\10\ 
These businesses have a higher rate of fatal occupational 
injury than do establishments with 100 or more workers.\11\ As 
a result, H.R. 472 will result in even higher rates of worker 
fatalities, injury, and illness.
---------------------------------------------------------------------------
    \10\U.S. Census Bureau, Statistics of U.S. Businesses: 2001, U.S.--
All Industries by Employment Size of Enterprise.
    \11\AFL-CIO Safety and Health Fact Sheet, Norwood Reintroduces Four 
OSHA Deform Bills, Worker Safety Threatened, March 2005.
---------------------------------------------------------------------------
    Furthermore, Congress traditionally defines ``small 
business'' for the purpose of establishing coverage under a 
wide range of employment related laws by imposing a far smaller 
ceiling on the size of the workforce. The Age Discrimination in 
Employment Act applies to employers who have ``twenty or more 
employees for each working day in each of twenty or more 
calendar weeks in the current or preceding calendar year.''\12\ 
Also, the Americans with Disabilities Act\13\ and Title VII of 
the Civil Rights Act of 1964\14\ cover employers with fifteen 
or more employees.
---------------------------------------------------------------------------
    \12\29 USC Sec. 621.
    \13\42 USC Sec. 12101.
    \14\42 USC Sec. 2000.
---------------------------------------------------------------------------

III. H.R. 742 IS UNSUPPORTED BY EVIDENCE THAT OSHA ABUSES PROSECUTORIAL 
                               DISCRETION

    There is no evidence that OSHA's prosecutorial discretion 
warrants its paying of attorneys' fees and costs in cases it 
loses. Indeed, the statistics demonstrate otherwise. Out of 
nearly 77,000 total violations cited in fiscal year 1998, only 
2,061 inspections resulted in citations that were contested. In 
fiscal year 1998, Federal OSHA conducted more than 34,000 
inspections, 16,396 of which resulted in citations at 
workplaces with fewer than 100 employees. Sixty percent of 
these citations were settled between OSHA and the employer in 
informal conferences. Employers contested just 1,275 or 8% of 
the citations before the Occupational Safety and Health Review 
Commission. Furthermore, in fiscal year 1998, 19 OSHA 
enforcement cases were decided by Federal appellate courts. 
OSHA won a total of 77%, or four out of five, of these 
cases.\15\
---------------------------------------------------------------------------
    \15\U.S. Department of Labor, Data from The Office of the Solicitor 
For Records, 1998.
---------------------------------------------------------------------------
    These numbers suggest that OSHA neither issues citations 
nor enters into litigation against employers in a capricious 
manner. Since OSHA either settles or wins the vast majority of 
enforcement cases, there is no justification for assuming that 
employers need to be protected against an overzealous 
prosecutorial agency. Instead of encouraging cooperation 
between employers and OSHA, H.R. 742 encourages defendants to 
litigate. Fewer settlements and lengthier litigation would 
delay compliance with the OSH Act. Altering OSHA's 
prosecutorial discretion could prove to be extremely 
counterproductive and disastrous to millions of workers.

IV. H.R. 742 IS UNNECESSARY BECAUSE GOVERNMENT AGENCIES SUBJECT TO EAJA

    OSHA, like most other government agencies is already 
subject to the Equal Access to Justice Act (EAJA). Under EAJA 
businesses must pay the prevailing party's fees and costs only 
in those situations in which the government's position was not 
``substantially justified,'' or where ``special circumstances'' 
would make fee-shifting unjust.\16\ Congress has never seen fit 
simply to shift the financial burdens of litigation to the 
government when it does not prevail without regard to the 
merits of the government's position. There is no evidence 
warranting that proceedings involving OSHA be singled out for 
imposition of the new rule that H.R. 742 will impose. 
Furthermore, OSHA is not entitled to attorneys' fees and costs 
when it prevails in a claim against an employer.
---------------------------------------------------------------------------
    \16\5 USC Sec. 504.
---------------------------------------------------------------------------
    There is no evidence that EAJA is failing to achieve 
Congressional intent, nor is there any evidence that EAJA works 
differently at OSHA than it does in any other agency. There is 
also a lack of data indicating that businesses have 
underutilized EAJA with respect to administrative and judicial 
actions under the OSH Act. According to a 1998 GAO study, the 
Department of Labor ranked fifth out of 15 Federal agencies in 
the number of judicial decisions issued with respect to EAJA 
applications in fiscal year 1994. Specifically, OSHA awarded 
approximately $192, 494 in EAJA fees during fiscal years 1987-
1997 in 28 cases.\17\ This amounts to an average of $6,874, a 
statistic which hardly demonstrates that employers, small or 
large, have spent large amounts of money in defense of 
frivolous lawsuits under the OSH Act.
---------------------------------------------------------------------------
    \17\General Accounting Office, Equal Access to Justice Act: Its Use 
in Selected Agencies, GAO/HEHS-98-58R, January 14, 1998.
---------------------------------------------------------------------------

                               CONCLUSION

    H.R. 742 does nothing to address the serious job safety 
hazards that millions of American workers face everyday. H.R. 
742 will only stifle any attempt of OSHA's to carry out its 
mission of assuring the health and safety of America's workers. 
It should not be in the interest of this country to deprive 
OSHA of the resources and authority that it needs to do its 
job. Rather, we should work to improve safety and health 
protections for the millions of workers in this country.

                                   John Conyers, Jr.
                                   Jerrold Nadler.
                                   Robert C. Scott.
                                   Melvin L. Watt.
                                   Zoe Lofgren.
                                   Sheila Jackson Lee.
                                   Maxine Waters.
                                   Anthony D. Weiner.
                                   Adam B. Schiff.
                                   Linda T. Sanchez.