Mr. PATTISON. There is a problem within the judiciary. All of a sudden the lawyer is pleading his case before the judge who later on is going to make a determination as to whether or not he should get a fee or not. I think that might inhibit you a little bit if you wanted to take issue with the judge about the authority of things. In representing your client, you might want to use sharp words, for instance, during a case-which we all do from time to time. You might be quite inhibited if the judge later on was going to have something to say about the attorney's fee, about just how much

Mr. MAUSE. Generally, though, the attorney's fee would be awarded to the party and not directly to the attorney. The attorney's arrangement with the party would be independent. We know that often prospects of receiving compensation would, to some extent, depend upon what the judge's decision was.

Mr. PATTISON. Where I come from, a great deal more than just to some extent.

Thank you.

Mr. DRINAN. Thank you.

Mr. Mause, I wonder if you have any thoughts on a bill that was filed in the Senate by Senator Kennedy and several others that would extend the recovery of lawyers' fees to administrative procedures. Senator Kennedy, in introducing it on November 20, notes over 50 Federal laws provide parties that secure compliance with national policies through litigation do, in fact, get awarded attorneys' fees. This extends it to the Federal regulatory agencies, with precautions and so

on.

I wonder if you have any thoughts on that.

Mr. MAUSE. I do because my major practice has been in regulatory matters, although not before Federal agencies, but largely before State utility commissions. This proposal has been debated on the State level in a number of States. I generally would favor it, bearing in mind the kinds of considerations I indicated in my filing.

One of the difficulties when you move to regulatory agencies is the definition of "winner" and "loser" becomes, perhaps, even more unclear. We intervene in a number of regulatory cases and advocate the adoption of peak load pricing for public utility rates. We have an array of changes we think should be made in the rate structure, and some of these are made and some of these are not made, and sometimes, the Commission concludes it will study the problem or commence a generic proceeding to deal with the question.

I think the test would have to be whether the impact of the party's intervention was to provide a decisionmaker with a more complete and balanced record on which to make the decision. I think that defining "prevailing" and "losing" in a number of administrative proceedings with which I am familiar, at least, is a very difficult thing.

Mr. DRINAN. The proposed bill would operate this way, that a person, whether it is a class or an individual, would qualify for fees and costs where he substantially contributed to a fair determination of that proceeding in the light of the number and complexity of the issues presented, the importance of widespread public participation and the need for representation on the part of the consumers in order to get a fair balance of interest.

Mr. MAUSE. That would be very close to it.

Mr. DRINAN. Someone has to determine that, I suppose, in this agency.

Mr. MAUSE. That is right. It would leave discretion within the agency to make the determination. I assume there would be judicial review of an abuse of that discretion, and then you could get an argument over whether you receive attorneys' fees after you convince the court the agency was wrong in not giving you the attorneys' fees within the agency.

Mr. DRINAN. For the appropriation for 1976, this bill proposes a sum of $10 million, and such funds as may be necessary for each fiscal year thereafter.

I thank you, Mr. Mause.

Does counsel have any questions?

MS. HIGGINS. None, thank you.

Mr. DRINAN. I thank you for your very, very good testimony, Mr. Mause. Once again, I apologize about the delay, and your testimony has been very helpful. Thank you.

The meeting is adjourned.

[Whereupon, at 12:50 p.m., the subcommittee recessed to reconvene at the call of the Chair.]

APPENDIXES

APPENDIX 1

H.R. 7826 (identical to H.R. 8221), H.R. 7827 (identical to H.R. 8219), H.R. 7828 (identical to H.R. 8220), H.R. 7968 (identical to H.R. 8743), H.R. 7969 (identical to H.R. 8742), H.R. 8368, H.R. 9093 (identical to H.R. 4675, H.R. 8378, and H.R. 8821), and H.R. 9552.

94TH CONGRESS 1ST SESSION

H. R. 7826

IN THE HOUSE OF REPRESENTATIVES

JUNE 11, 1975

Mr. SEIBERLING introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To amend title 28 of the United States Code to authorize the awarding of attorneys' fees in civil actions before the Federal courts where the interests of justice so require, and for other purposes.

1

Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That this Act may be cited as the "Federal Court Attorneys' 4 Fees Act of 1975”.

5

SEC. 2. Chapter 123 (respecting fees and costs) of title

6 28 of the United States Code is amended by adding at the

7 end the following new section:

8 "81930. Attorneys' fees in certain civil actions

9

"If in a civil action the court determines the interests

2

1 of justice so require, the court shall award reasonable attor

2

3

4

neys' fees to the prevailing party. The United States shall

be liable for such fees the same as a private party.".

SEC. 2. The table of sections for chapter 123 of title

5 28 of the United States Code is amended by adding at the

6 end the following new item:

"1930. Attorneys' fees in certain civil cases.".

94TH CONGRESS 1ST SESSION

H. R. 7827

IN THE HOUSE OF REPRESENTATIVES

JUNE 11, 1975

Mr. SEIBERLING introduced the following bill; which was referred to the Committee on the Judiciary

A BILL

To authorize the awarding of attorneys' fees in actions for injunctive relief under the Clayton Act, and for other purposes.

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 3 That the Act entitled "An Act to supplement existing laws 4 against unlawful restraints and monopolies, and for other 5 purposes", approved October 15, 1914 (15 U.S.C. 12 et 6 seq.), is amended by adding at the end of section 16 (15 7 U.S.C. 26) the following sentence: "In any action under 8 this section, the court may award reasonable attorneys' fees 9 to a prevailing plaintiff.".

I

80-603 - 77-16