I 

112TH CONGRESS 

2D SESSION H. R. 3862 

To impose certain limitations on consent decrees and settlement agreements 

by agencies that require the agencies to take regulatory action in accordance with the terms thereof, and for other purposes. 

IN THE HOUSE OF REPRESENTATIVES 

FEBRUARY 1, 2012 

Mr. QUAYLE (for himself, Mr. COBLE, and Mr. ROSS of Florida) introduced 

the following bill; which was referred to the Committee on the Judiciary 

A BILL 

To impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies 

to take regulatory action in accordance with the terms 

thereof, 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 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Sunshine for Regu5 latory Decrees and Settlements Act of 2012’’. 

6 SEC. 2. CONSENT DECREE AND SETTLEMENT REFORM. 

7 (a) APPLICATION.—The provisions of this section 

8 apply in the case of— 


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1 (1) a consent decree or settlement agreement in 

2 an action to compel agency action alleged to be un3 lawfully withheld or unreasonably delayed that per4 tains to a regulatory action that affects the rights of 

5 private parties other than the plaintiff or the rights 

6 of State or local governments— 

7 (A) brought under chapter 7 of title 5, 

8 United States Code; or 

9 (B) brought under any other statute au10 thorizing such an action; and 

11 (2) any other consent decree or settlement 

12 agreement that requires agency action that pertains 

13 to a regulatory action that affects the rights of pri14 vate parties other than the plaintiff or the rights of 

15 State or local governments. 

16 (b) IN GENERAL.—In the case of an action to be re17 solved by a consent decree or a settlement agreement de18 scribed in paragraph (1), the following shall apply: 

19 (1) The complaint in the action, the consent de20 cree or settlement agreement, and any award of at21 torneys’ fees or costs shall be published, including 

22 electronically, in a readily accessible manner. 

23 (2) Until the conclusion of an opportunity for 

24 affected parties to intervene in the action, a party 

25 may not file with the court a motion for a consent 


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1 decree or to dismiss the case pursuant to a settle2 ment agreement. 

3 (3) In considering a motion to intervene by any 

4 party that would be affected by the agency action in 

5 dispute, the court shall presume, subject to rebuttal, 

6 that the interests of that party would not be rep7 resented adequately by the current parties to the ac8 tion. 

9 (4) If the court grants a motion to intervene in 

10 the action, the court shall refer the action to its me11 diation program or a magistrate judge to facilitate 

12 settlement discussions, which shall include the plain13 tiff, the defendant agency, and the intervenors. 

14 (5) The defendant agency shall publish any pro15 posed consent decree or settlement agreement for 

16 public comment before filing it with the court, allow17 ing comment on any issue related to the matters al18 leged in the complaint or addressed or affected by 

19 the consent decree or settlement agreement. 

20 (6) The defendant agency shall— 

21 (A) respond to public comments received 

22 under paragraph (5); and 

23 (B) when moving that the court enter the 

24 consent decree or for dismissal pursuant to the 

25 settlement agreement— 


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1 (i) submit to the court a summary of 

2 the public comments and agency responses; 

3 (ii) certify the administrative record 

4 of the notice and comment proceeding to 

5 the court; and 

6 (iii) make that record fully accessible 

7 to the court. 

8 (7) The court shall include in the judicial 

9 record the administrative record certified by the 

10 agency under paragraph (6). 

11 (8) If the consent decree or settlement agree12 ment requires an agency action by a date certain, 

13 the agency shall, when moving for entry of the con14 sent decree or dismissal based on the settlement 

15 agreement— 

16 (A) inform the court of any uncompleted 

17 mandatory duties to take regulatory action that 

18 the decree or agreement does not address; 

19 (B) how the decree or agreement, if ap20 proved, would affect the discharge of those du21 ties; and 

22 (C) why the decree’s or agreement’s effects 

23 on the order in which the agency discharges its 

24 mandatory duties is in the public interest. 


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1 (9) The court shall presume, subject to rebut2 tal, that it is proper to allow amicus participation by 

3 any party who filed public comments on the consent 

4 decree or settlement agreement during the court’s 

5 consideration of a motion to enter the decree or dis6 miss the case on the basis of the agreement. 

7 (10) The court shall ensure that the proposed 

8 consent decree or settlement agreement allow suffi9 cient time and procedure for the agency to comply 

10 with chapter 5 of title 5, United States Code, and 

11 other applicable statutes that govern rule making 

12 and, unless contrary to the public interest, the provi13 sions of any executive orders that govern rule mak14 ing. 

15 (11) The defendant agency may, at its discre16 tion, hold a public hearing on whether to enter into 

17 the consent decree or settlement agreement. If such 

18 a hearing is held, then, in accordance with para19 graph (6), a summary of the proceedings and certifi20 cation of the hearing record shall be provided to the 

21 court, access to the hearing record shall be given to 

22 the court, and the full hearing record shall be in23 cluded in the judicial record. 

24 (12) The Attorney General, in cases litigated by 

25 the Department of Justice, or the head of the deVerDate Mar 15 2010 02:47 Feb 02, 2012 Jkt 019200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\H3862.IH H3862

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1 fendant Federal agency, in cases litigated independ2 ently by that agency, shall certify to the court his 

3 or her approval of any proposed consent decree or 

4 settlement agreement that contains any of the fol5 lowing terms— 

6 (A) in the case of a consent decree, terms 

7 that— 

8 (i) convert into mandatory duties the 

9 otherwise discretionary authorities of an 

10 agency to propose, promulgate, revise or 

11 amend regulations; 

12 (ii) commit the agency to expend 

13 funds that Congress has not appropriated 

14 and that have not been budgeted for the 

15 action in question, or commit an agency to 

16 seek a particular appropriation or budget 

17 authorization; 

18 (iii) divest the agency of discretion 

19 committed to it by Congress or the Con20 stitution, whether such discretionary power 

21 was granted to respond to changing cir22 cumstances, to make policy or managerial 

23 choices, or to protect the rights of third 

24 parties; or 


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1 (iv) otherwise afford relief that the 

2 court could not enter on its own authority 

3 upon a final judgment in the litigation; or 

4 (B) in the case of a settlement agreement, 

5 terms that— 

6 (i) interfere with the agency’s author7 ity to revise, amend, or issue rules through 

8 the procedures set forth in chapter 5 of 

9 title 5, United States Code, or any other 

10 statute or executive order prescribing rule 

11 making procedures for rule makings that 

12 are the subject of the settlement agree13 ment; 

14 (ii) commit the agency to expend 

15 funds that Congress has not appropriated 

16 and that have not been budgeted for the 

17 action in question; or 

18 (iii) provide a remedy for the agency’s 

19 failure to comply with the terms of the set20 tlement agreement other than the revival 

21 of the action resolved by the settlement 

22 agreement, if the agreement commits the 

23 agency to exercise its discretion in a par24 ticular way and such discretionary power 

25 was committed to the agency by Congress 


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1 or the Constitution to respond to changing 

2 circumstances, to make policy or manage3 rial choices, or to protect the rights of 

4 third parties. 

5 (c) ANNUAL REPORTS.—Each agency shall submit an 

6 annual report to Congress on the number, identity, and 

7 content of complaints, consent decrees and settlement 

8 agreements described in paragraph (1) for that year, and 

9 any awards of attorneys fees or costs in actions resolved 

10 by such decrees or agreements. 

11 SEC. 3. MOTIONS TO MODIFY CONSENT DECREES. 

12 When a defendant agency moves the court to modify 

13 a previously entered consent decree described under sec14 tion 2 and the basis of the motion is that the terms of 

15 the decree are no longer fully in the public interest due 

16 to the agency’s obligations to fulfill other duties or due 

17 to changed facts and circumstances, the court shall review 

18 the motion and the consent decree de novo. 

19 SEC. 4. EFFECTIVE DATE. 

20 The provisions of this Act apply to any covered con21 sent decree or settlement agreement proposed to a court 

22 after the date of enactment of this Act. 

Æ 


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