John Warner

Mr. WARNER

Mr. WARNER. We can have it sequenced. I will submit the amendment and the Senator can establish a time.

Mr. WARNER. Equally divided.

Mr. WARNER. Will the leader put that in, that it be taken in sequence after Senator Breaux? Could it be amended so my amendment could be brought up after Senator Breaux?

Mr. WARNER. Reserving the right to object, I had discussed with one of our managers the appropriate time at which we could consider the amendment which I have at the desk, in sequence, and the yeas and nays have been ordered. What would be a time that you could indicate to the Senator from Virginia it could be taken up?

Mr. WARNER

Mr. WARNER. Madam President, I ask for the yeas and nays before I take the action.

Mr. WARNER. Mr. President, parliamentary inquiry: Does the Senator from Virginia have an amendment pending at the desk?

Mr. WARNER. Mr. President, I send to the desk a modification to that amendment.

Mr. WARNER. Madam President, I ask unanimous consent that the order for the quorum call be rescinded.

Mr. WARNER. Madam President, I ask unanimous consent the order for the quorum call be rescinded.

Mr. WARNER. Madam President, I will do something unusual. I am actually going to read the amendment myself such that colleagues and those observing floor operations from their offices can have a clear understanding of exactly what is in the amendment. Further, I do not desire to consume a great deal of time in the debate because we have just had a very thorough debate on the generic subject of attorney's fees. Therefore, the Senate has pretty well framed in their minds the parameters in which they will or will not accept an amendment that has the effect of, in my judgment, preserving a reasonable amount of attorney's fees and at the same time allowing such awards as those attorneys obtain for their clients to be given; again, with the thought that it is a Patients' Bill of Rights and they have a right to get a reasonable amount of such recovery as is obtained from them. I shall read from the amendment--it is very short--and say a few words, and then rest my case: On page 154, insert the following: Limitation on award of attorneys' fees---- (A) In general.--Subject to subparagraph (C), with respect to a participant or beneficiary (or the estate of such participant or beneficiary) who brings a cause of action under this subsection and prevails in that action, the amount of attorneys' fees that a court may award to such participant, beneficiary, or estate under subsection (g)(1) (not including the reimbursement of actual out-of-pocket expenses of an attorney as approved by the court in such action)-- In other words, that would be awarded by the court without any restriction except to the court itself---- may not exceed the sum of the amounts described in paragraph (B). The sums I am about to recite, we carefully researched all types of actions similar to this to get a scale of attorney fees which I felt was clearly reasonable. (B) Amounts Described.--For purposes of subparagraph (A), the amounts described in this subparagraph are as follows: (i) With respect to a recovery in a cause of action described in subparagraph (A) that does not exceed $100,000, the amount of the attorneys' fees awarded may not exceed an amount equal to one-third of the amount of the recovery. In years previous to coming to the Senate and other various jobs, I was actually a member of the bar and practiced law. I was assistant U.S. attorney in a modest trial practice myself. That has sort of been a standard for many years in the bar, the one-third. (ii) With respect to recovery in such a cause of action that exceeds $100,000 but does not exceed $500,000, the amount of the attorneys' fees awarded may not exceed an amount equal to 25 percent of such excess recovery above $100,000. (iii) With respect to recovery in such a cause of action that exceeds $500,000, the amount of the attorneys' fees awarded may not exceed an amount equal to 15 percent of such excess recovery above $500,000. (C) Equitable discretion.--A court in its discretion may adjust the amount of an award of attorneys' fees required under subsection (A) as equity and the interests of justice may require. In other words, a judge may look at this fee schedule and decide, this particular counsel has done a great deal of work and, therefore, I believe I should raise his fee within the parameters of the section itself. Further: (9) Limitation on Attorneys' Fees.-- (A) In general.--Notwithstanding any other provision of law, or any arrangement, agreement, or contract regarding attorneys' fees, subject to subparagraph (B), a court shall limit the amount of attorneys' fees that may be incurred for the representation of a participant or beneficiary (or the estate of such participant or beneficiary) who brings a cause of action under paragraph (1) to the amount of the attorneys' fees that may be awarded under section 502(n)(11). (B) Equitable discretion.--A court in its discretion may adjust the amount of attorneys' fees allowed under subparagraph (A) as equity and interests of justice may require. This amendment simply sets, in my judgment, a reasonable category of fees. I have tried, as best I can, not to tread, by virtue of States rights, on the right of the State to administrate its own bar and the like. I felt that discretion should be given to the trial judges, Federal and State, such as they can adjust that schedule of fees as they see fit. The Senate, again, has, in a very thorough discussion under the Bond amendment, covered these issues and has in mind, again, its own framework wherein we can legislate on this matter by amendment or not legislate. At this point, I yield the floor.

Mr. WARNER. Madam President, in consultation with the managers of the bill, it has been indicated to me this will be an appropriate time for this amendment to be raised. I send it to the desk and ask that it be given immediate consideration. However, we have to set aside, as I understand it, the standing order with regard to the Snowe amendment. I first ask unanimous consent that it be set aside.

Mr. WARNER. Madam President, I ask unanimous consent that reading of the amendment be dispensed with.

Mr. WARNER. I ask for the yeas and nays on the amendment, as modified.

Mr. WARNER. Madam President, if I might reply to my friend and colleague, there was no intention of the Senator from Virginia to repeat what is an historically important case on tobacco. I studied that case very carefully. There were, I think, three votes. My recollection is it was $4,000 per hour, at which time the Senate finally accepted. I would not participate in such a process. I just struck the one-third for the lower amounts of the recovery and basically scaled it to 25 and the other percentage as the rate of recovery increase. I would be happy to work with colleagues. It goes to the question of just how much will be eventually given to the recipients who need these funds.

Mr. WARNER. Mr. President, it will be voted on whenever the managers desire.

Mr. WARNER. Yes, of course.

Mr. WARNER. That is exemplified by the leadership the Senator shows time and time again on this floor. I don't view this as a partisan issue. This is an honest effort by the Members of the Senate to recognize that individuals should be given their rewards and the attorneys should be given fair compensation. Therefore, Madam President, unless other Senators wish to speak at this time, I will----

Mr. WARNER. I am agreeable. I ask unanimous consent that this amendment be set aside.

Mr. WARNER

Mr. WARNER. Mr. President, I am pleased to introduce legislation today to provide relief from the pay compression affecting career Federal employees serving in the Senior Executive Service, SES. It is nearing a decade since Senior Executive Service members have seen a meaningful adjustment in pay. The salaries earned by these employees are, on average, well below those earned by their peers in private industry. Pay caps for the Senior Executive Service and certain other positions in the government are tied to the Executive Schedule which includes senior level officials as well as Members. Pay freezes for positions on the Executive Schedule in five of the past eight years has resulted in pay compression so severe that 60 percent of the entire executive corps earns essentially the same salary despite differences in obligation and executive level. Over the past eight years, pay increases for these executives would average 1 percent per year. There is not much of an incentive to accept a higher position with added responsibilities and increased work hours for little or no increase in pay. Many senior executives leave Federal service to begin second careers in the private sector because of the salary compression. Others find that retirement is a more sensible option, whereas Federal annuitants receive an average two and a half percent cost of living adjustment every year compared to the average one percent per year pay increase a senior executive may receive if she or he remained in Federal service. I have heard from many SES employees relating their own stories as to how the problem of pay compression has affected them. I would like to share a few of these personal accounts. From an ES-6 with the Department of Defense: ``My pay has been capped and I have not been receiving raises. This year I received a surprise. I turned 55 and I subsequently experienced a $115.16 decrease in pay in January because my life insurance increased considerably, along with the contribution to retirement increase. Age 55 is not old! I expect to work a few more years and I expect my pay to increase so that I can enjoy my retired years with a reasonable retirement income that has not been eroded by the pay cap.'' A Senior Executive at the Department of Health and Human Services: ``The highest career Deputy General Counsel position in my agency became vacant, and I was called by the General Counsel to seriously consider taking it. Aside from the many family issues involved in any move to Washington, an overriding aspect is the fact that I am already at the pay cap. Thus, a move into a position with more responsibility would provide no financial incentive. Although I'm obviously not in government serve for any huge financial rewards, I don't want to go backward financially. Thus, I have decided to forgo this very challenging opportunity that would be a fitting pinnacle to my career with the Federal Government.'' Private Contractor, Department of Defense: ``I turned down a job at the US Nuclear Command and Control System Support Staff, where I'd been stationed on active duty as a Regular Air Force Officer. I retired from the NSS four years ago after over 23 years in the Air Force, and was honored to get offered a Civil Service position back at the office. Instead, I reluctantly turned down the job. The reason was primarily monetary. In order to take the job, it would have been necessary to give up part of my Air Force retirement pay because I retired as a regular officer. To make matters worse, my pay would have been capped. The bottom line is I would have taken a pay cut with no prospect of a pay raise in the foreseeable future. My family and I were asked to sacrifice pay and time together which we willingly did for over 23 years. Instead, I'm supporting the government in the role of a private sector contractor, where I'm fairly compensated for my expertise.'' These are just a few examples which illustrate how the freeze on executive pay and resulting pay compression have seriously eroded the government's ability to attract and retain the most highly-competent career executives. This is a very timely issue for the Federal Government, seventy percent of the SES corps is eligible to retire over the next four years and almost half are expected to retire upon eligibility. Agencies are being forced to make special requests to increase salaries for their managers and supervisors. They recognize that when someone leaves Federal service, their knowledge and experience goes with them. The legislation I am introducing increases base pay for Senior Executives from Executive Level IV to Executive Level III, extends locality pay to the Executive Schedule, increases the locality cap from Executive Level III to Executive Level III plus locality pay, and increases the overall limit on compensation that can be received in a single year by career executives from Executive Level I to the Vice- Presidential level. The bill also includes certain positions in the Federal judiciary which have been impacted by the pay caps. The actual raises career executives would receive would continue to be determined at the President's discretion. The legislation does not, in and of itself, raise senior executive pay and does not increase the salaries of Members of Congress. It is also my intention to ensure that this issue remains a priority for the incoming Director at the Office of Personnel Management. During the confirmation hearing before the Senate Governmental Affairs Committee last week for Mrs. Kay Coles James, President Bush's nominee to head the Office of Personnel Management, Mrs. James indicated her willingness to work with Members to address the problem of pay compression. Pay compression within the Senior Executives Service is one of the more pressing issues facing the Federal employee workforce and must be addressed as the situation will only get worse. The only means to alleviate pay compression for the Senior Executives at this time is through legislation. Therefore, I encourage my Senate colleagues to support the bill. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WARNER

Mr. WARNER. Mr. President, I am pleased to introduce legislation today to provide relief from the pay compression affecting career Federal employees serving in the Senior Executive Service, SES. It is nearing a decade since Senior Executive Service members have seen a meaningful adjustment in pay. The salaries earned by these employees are, on average, well below those earned by their peers in private industry. Pay caps for the Senior Executive Service and certain other positions in the government are tied to the Executive Schedule which includes senior level officials as well as Members. Pay freezes for positions on the Executive Schedule in five of the past eight years has resulted in pay compression so severe that 60 percent of the entire executive corps earns essentially the same salary despite differences in obligation and executive level. Over the past eight years, pay increases for these executives would average 1 percent per year. There is not much of an incentive to accept a higher position with added responsibilities and increased work hours for little or no increase in pay. Many senior executives leave Federal service to begin second careers in the private sector because of the salary compression. Others find that retirement is a more sensible option, whereas Federal annuitants receive an average two and a half percent cost of living adjustment every year compared to the average one percent per year pay increase a senior executive may receive if she or he remained in Federal service. I have heard from many SES employees relating their own stories as to how the problem of pay compression has affected them. I would like to share a few of these personal accounts. From an ES-6 with the Department of Defense: ``My pay has been capped and I have not been receiving raises. This year I received a surprise. I turned 55 and I subsequently experienced a $115.16 decrease in pay in January because my life insurance increased considerably, along with the contribution to retirement increase. Age 55 is not old! I expect to work a few more years and I expect my pay to increase so that I can enjoy my retired years with a reasonable retirement income that has not been eroded by the pay cap.'' A Senior Executive at the Department of Health and Human Services: ``The highest career Deputy General Counsel position in my agency became vacant, and I was called by the General Counsel to seriously consider taking it. Aside from the many family issues involved in any move to Washington, an overriding aspect is the fact that I am already at the pay cap. Thus, a move into a position with more responsibility would provide no financial incentive. Although I'm obviously not in government serve for any huge financial rewards, I don't want to go backward financially. Thus, I have decided to forgo this very challenging opportunity that would be a fitting pinnacle to my career with the Federal Government.'' Private Contractor, Department of Defense: ``I turned down a job at the US Nuclear Command and Control System Support Staff, where I'd been stationed on active duty as a Regular Air Force Officer. I retired from the NSS four years ago after over 23 years in the Air Force, and was honored to get offered a Civil Service position back at the office. Instead, I reluctantly turned down the job. The reason was primarily monetary. In order to take the job, it would have been necessary to give up part of my Air Force retirement pay because I retired as a regular officer. To make matters worse, my pay would have been capped. The bottom line is I would have taken a pay cut with no prospect of a pay raise in the foreseeable future. My family and I were asked to sacrifice pay and time together which we willingly did for over 23 years. Instead, I'm supporting the government in the role of a private sector contractor, where I'm fairly compensated for my expertise.'' These are just a few examples which illustrate how the freeze on executive pay and resulting pay compression have seriously eroded the government's ability to attract and retain the most highly-competent career executives. This is a very timely issue for the Federal Government, seventy percent of the SES corps is eligible to retire over the next four years and almost half are expected to retire upon eligibility. Agencies are being forced to make special requests to increase salaries for their managers and supervisors. They recognize that when someone leaves Federal service, their knowledge and experience goes with them. The legislation I am introducing increases base pay for Senior Executives from Executive Level IV to Executive Level III, extends locality pay to the Executive Schedule, increases the locality cap from Executive Level III to Executive Level III plus locality pay, and increases the overall limit on compensation that can be received in a single year by career executives from Executive Level I to the Vice- Presidential level. The bill also includes certain positions in the Federal judiciary which have been impacted by the pay caps. The actual raises career executives would receive would continue to be determined at the President's discretion. The legislation does not, in and of itself, raise senior executive pay and does not increase the salaries of Members of Congress. It is also my intention to ensure that this issue remains a priority for the incoming Director at the Office of Personnel Management. During the confirmation hearing before the Senate Governmental Affairs Committee last week for Mrs. Kay Coles James, President Bush's nominee to head the Office of Personnel Management, Mrs. James indicated her willingness to work with Members to address the problem of pay compression. Pay compression within the Senior Executives Service is one of the more pressing issues facing the Federal employee workforce and must be addressed as the situation will only get worse. The only means to alleviate pay compression for the Senior Executives at this time is through legislation. Therefore, I encourage my Senate colleagues to support the bill. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WARNER

Mr. WARNER. Mr. President, I rise today to introduce a bill that will redesignate Building 1500 at the Norfolk Naval Shipyard, Portsmouth, Virginia, as the Norman Sisisky Engineering and Management Building. I am joined by my Virginia Senate colleague, George Allen. As a Navy veteran of World War II, Congressman Sisisky was proud to be a part of one of the most extraordinary chapters in American history, when America was totally united at home in support of our 16 million men and women in uniform on battlefields in Europe and on the high seas in the Pacific, all, at home and abroad, fighting to preserve freedom. During our 18 years serving together, Congressman Sisisky's goal, our goal, was to provide for the men and women in uniform and their families. The last 50 years have proven time and again that one of America's greatest investments was the G.I. Bill of Rights, originated during World War II, which enabled service men and women to gain an education such that they could rebuild America's economy. The G.I. Bill was but one of the many benefits that Congressman Sisisky fought for and made a reality for today's soldiers, sailors, airmen, and Marines. His strength in public life was supported by his wonderful family; his lovely wife Rhoda and four accomplished children. They were always by his side offering their love, support, and counsel. He worked tirelessly throughout Virginia's 4th District, however, there was always a special bond to the military installations under his charge. As a former sailor, the Norfolk Naval Shipyard was high among his priorities. He knew the workers by name and the monthly workload in the yard. In consultation with his family and delegation members, we chose this building at the shipyard as a most appropriate memorial to our friend and colleague. I waited until the special election was concluded so the entire Virginia delegation could join together on this legislation. Norman Sisisky was always a leader for the delegation on matters of national security. We are honored to join in this bi-partisan effort to remember Congressman Norman Sisisky and his life's work; ensuring the nation's security and the welfare of the men and women in uniform and their families. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WARNER

Mr. WARNER. Mr. President, I rise today to introduce a bill that will redesignate Building 1500 at the Norfolk Naval Shipyard, Portsmouth, Virginia, as the Norman Sisisky Engineering and Management Building. I am joined by my Virginia Senate colleague, George Allen. As a Navy veteran of World War II, Congressman Sisisky was proud to be a part of one of the most extraordinary chapters in American history, when America was totally united at home in support of our 16 million men and women in uniform on battlefields in Europe and on the high seas in the Pacific, all, at home and abroad, fighting to preserve freedom. During our 18 years serving together, Congressman Sisisky's goal, our goal, was to provide for the men and women in uniform and their families. The last 50 years have proven time and again that one of America's greatest investments was the G.I. Bill of Rights, originated during World War II, which enabled service men and women to gain an education such that they could rebuild America's economy. The G.I. Bill was but one of the many benefits that Congressman Sisisky fought for and made a reality for today's soldiers, sailors, airmen, and Marines. His strength in public life was supported by his wonderful family; his lovely wife Rhoda and four accomplished children. They were always by his side offering their love, support, and counsel. He worked tirelessly throughout Virginia's 4th District, however, there was always a special bond to the military installations under his charge. As a former sailor, the Norfolk Naval Shipyard was high among his priorities. He knew the workers by name and the monthly workload in the yard. In consultation with his family and delegation members, we chose this building at the shipyard as a most appropriate memorial to our friend and colleague. I waited until the special election was concluded so the entire Virginia delegation could join together on this legislation. Norman Sisisky was always a leader for the delegation on matters of national security. We are honored to join in this bi-partisan effort to remember Congressman Norman Sisisky and his life's work; ensuring the nation's security and the welfare of the men and women in uniform and their families. I ask unanimous consent that the text of the bill be printed in the Record.

Mr. WARNER

Mr. WARNER. Mr. President, I rise today to recognize and pay tribute to Captain Richard F. Walsh, Judge Advocate General's Corp, United States Navy. Captain Walsh will retire from the Navy on July 1, 2001, having completed a distinguished 30 year career of service to our Nation. Captain Walsh was born in New York City, and is a graduate of the United States Naval Academy and the University of Virginia School of Law. He also earned a Master of Laws degree from the Judge Advocate General's School of the Army. During his military career, Captain Walsh excelled at all facets of his chosen professions of law and naval service. As a line officer, he served as Combat Information Center Officer onboard USS LUCE (DLG-7), completing two U.S. Sixth Fleet deployments, and qualifying as a Surface Warfare Officer. As a judge advocate, Captain Walsh has served in a variety of challenging assignments. As the senior litigator at Naval Legal Service Office, Subic Bay, Republic of the Philippines, Captain Walsh faithfully preserved the fairness of the military justice system. Later in his career, he returned to the courtroom as a member of the General Litigation Division, Office of Judge Advocate General, and argued many important cases in numerous Federal Circuits. As a staff judge advocate, he provided legal counsel to SEABEE Commanding Officers stationed in Gulfport, Mississippi, and was later selected to serve as Counsel to the Chief of Naval Personnel. A superb manager of people and mission, Captain Walsh headed the JAG Corps' accession program and later assumed command of Naval Legal Service Office, National Capital Region, where he continued to lead and inspire young judge advocates. I am sure that many of my colleagues remember and appreciate Captain Walsh's service as Director of Legislation in the Navy's Office of Legislative Affairs, followed by his tour of duty as Executive Director for Senate Affairs under the Assistant Secretary of Defense for Legislative Affairs. During these assignments, he directly contributed to clear and concise communication between Congress and the Departments of the Navy and Defense on a broad range of legislative matters. So noteworthy are his talents, knowledge, and integrity, that Captain Walsh has been chosen to serve on the staff of the Senate Armed Services Committee. The Navy's loss is certainly the Senate's gain, and we look forward to working with Dick Walsh for many years to come. The Nation, the United States Navy, and the Judge Advocate General's Corps have been made better through the talent and dedication of Captain Richard F. Walsh. I know all of my colleagues join me in congratulating Dick on the completion of his outstanding military career, and we welcome him to the Senate staff.

Mr. WARNER

Mr. WARNER. Mr. President, will the Senator entertain a question on that point?

Mr. WARNER. Having had some modest comparison to my distinguished colleague in the trial courtroom, I know that is a key phrase. I am not sure just how it is going to end up, or not end up, in the legislation, depending on the amendments, but I think it would be helpful to have some legislative history on what the meaning is of an employer participating in the medical decisions of an employee. Let's take the example of a small employer. Most often, that employer has a great deal of personal contact with his employees, has a great deal of empathy for the employee or his family stricken with some type of problem. Suppose I were an employer, and my longtime secretary appears to be ill, and I say: I think we had better go to the hospital. So I drive her to the hospital. Maybe some other employee in the firm drives her. Then, while in the hospital, I went to call on her, and somehow I am involved in the discussion as to whether or not an operation should be performed. What are the circumstances by which the employer could be drawn into this type of litigation? Depending on how the bill is finally written and the law is enacted, it could well be that an employer henceforth just almost has to sever all personal relationships with employees for fear of getting drawn into a legal case. I say to the Senator, it would be helpful, based on his experience, if he would elaborate on that issue and, indeed, point to other references in the debate or elsewhere so that we might have a legislative history to guide those who are going to follow this law in the future.