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Union Calendar No. 428 

112TH CONGRESS 

2D SESSION H. R. 3862 

[Report No. 112–593] 

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 

JULY 11, 2012 

Additional sponsors: Mr. GALLEGLY, Mr. HUIZENGA of Michigan, Mr. KINGSTON, Mr. MCHENRY, Mr. ROKITA, Mrs. BLACKBURN, Mr. FLORES, Mr. 

HARRIS, Mr. YODER, Mr. PETERSON, Mr. SCHWEIKERT, Mr. SCALISE, 

Mr. MILLER of Florida, Mr. PITTS, and Mrs. BLACK

JULY 11, 2012 

Reported with an amendment, committed to the Committee of the Whole 

House on the State of the Union, and ordered to be printed 

[Strike out all after the enacting clause and insert the part printed in italic] 

[For text of introduced bill, see copy of bill as introduced on February 1, 2012] 

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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. 

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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 Regulatory 

5 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— 

9 (1) a consent decree or settlement agreement in 

10 an action to compel agency action alleged to be un11 lawfully withheld or unreasonably delayed that per12 tains to a regulatory action that affects the rights of 

13 private parties other than the plaintiff or the rights 

14 of State, local or Tribal government entities— 

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

16 United States Code; or 

17 (B) brought under any other statute author18 izing such an action; and 

19 (2) any other consent decree or settlement agree20 ment that requires agency action that pertains to a 

21 regulatory action that affects the rights of private 

22 parties other than the plaintiff or the rights of State, 

23 local or Tribal government entities. 

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1 (b) IN GENERAL.—In the case of an action to be re2 solved by a consent decree or a settlement agreement de3 scribed in paragraph (1), the following shall apply: 

4 (1) The complaint in the action, the consent de5 cree or settlement agreement, the statutory basis for 

6 the consent decree or settlement agreement and its 

7 terms, and any award of attorneys’ fees or costs shall 

8 be published, including electronically, in a readily ac9 cessible manner. 

10 (2) Until the conclusion of an opportunity for 

11 affected parties to intervene in the action, a party 

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

13 decree or to dismiss the case pursuant to a settlement 

14 agreement. 

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

16 party that would be affected by the agency action in 

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

18 that the interests of that party would not be rep19 resented adequately by the current parties to the ac20 tion. In considering a motion to intervene filed by a 

21 State, local or Tribal government entity, the court 

22 shall take due account of whether the movant— 

23 (A) administers jointly with the defendant 

24 agency the statutory provisions that give rise to 

25 the regulatory duty alleged in the complaint; or 

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1 (B) administers State, local or Tribal regu2 latory authority that would be preempted by the 

3 defendant agency’s discharge of the regulatory 

4 duty alleged in the complaint. 

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

6 the action, the court shall include the plaintiff, the de7 fendant agency, and the intervenors in settlement dis8 cussions. Settlement efforts conducted shall be pursu9 ant to a court’s mediation or alternative dispute reso10 lution program, or by a district judge, magistrate 

11 judge, or special master, as determined by the as12 signed judge. 

13 (5) The defendant agency shall publish in the 

14 Federal Register and by electronic means any pro15 posed consent decree or settlement agreement for no 

16 fewer than 60 days of public comment before filing it 

17 with the court, including a statement of the statutory 

18 basis for the proposed consent decree or settlement 

19 agreement and its terms, allowing comment on any 

20 issue related to the matters alleged in the complaint 

21 or addressed or affected by the consent decree or settle22 ment agreement. 

23 (6) The defendant agency shall— 

24 (A) respond to public comments received 

25 under paragraph (5); and 

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1 (B) when moving that the court enter the 

2 consent decree or for dismissal pursuant to the 

3 settlement agreement— 

4 (i) inform the court of the statutory 

5 basis for the proposed consent decree or set6 tlement agreement and its terms; 

7 (ii) submit to the court a summary of 

8 the public comments and agency responses; 

9 (iii) certify the administrative record 

10 of the notice and comment proceeding to the 

11 court; and 

12 (iv) make that record fully accessible to 

13 the court. 

14 (7) The court shall include in the judicial record 

15 the administrative record certified by the agency 

16 under paragraph (6). 

17 (8) If the consent decree or settlement agreement 

18 requires an agency action by a date certain, the agen19 cy shall, when moving for entry of the consent decree 

20 or dismissal based on the settlement agreement— 

21 (A) inform the court of any uncompleted 

22 mandatory duties to take regulatory action that 

23 the decree or agreement does not address; 

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1 (B) how the decree or agreement, if ap2 proved, would affect the discharge of those duties; 

3 and 

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

5 on the order in which the agency discharges its 

6 mandatory duties is in the public interest. 

7 (9) The court shall presume, subject to rebuttal, 

8 that it is proper to allow amicus participation by 

9 any party who filed public comments on the consent 

10 decree or settlement agreement during the court’s con11 sideration of a motion to enter the decree or dismiss 

12 the case on the basis of the agreement. 

13 (10) The court shall ensure that the proposed 

14 consent decree or settlement agreement allows suffi15 cient time and procedure for the agency to comply 

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

17 other applicable statutes that govern rule making and, 

18 unless contrary to the public interest, the provisions 

19 of any executive orders that govern rule making. 

20 (11) The defendant agency may, at its discre21 tion, hold a public hearing pursuant to notice in the 

22 Federal Register and by electronic means, on whether 

23 to enter into the consent decree or settlement agree24 ment. If such a hearing is held, then, in accordance 

25 with paragraph (6), a summary of the proceedings 

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1 and certification of the hearing record shall be pro2 vided to the court, access to the hearing record shall 

3 be given to the court, and the full hearing record shall 

4 be included in the judicial record. 

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

6 the Department of Justice, or the head of the defend7 ant Federal agency, in cases litigated independently 

8 by that agency, shall certify to the court his or her 

9 approval of any proposed consent decree or settlement 

10 agreement that contains any of the following terms— 

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

12 that— 

13 (i) convert into mandatory duties the 

14 otherwise discretionary authorities of an 

15 agency to propose, promulgate, revise or 

16 amend regulations; 

17 (ii) commit the agency to expend funds 

18 that Congress has not appropriated and 

19 that have not been budgeted for the action 

20 in question, or commit an agency to seek a 

21 particular appropriation or budget author22 ization; 

23 (iii) divest the agency of discretion 

24 committed to it by Congress or the Constitu25 tion, whether such discretionary power was 

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1 granted to respond to changing cir2 cumstances, to make policy or managerial 

3 choices, or to protect the rights of third par4 ties; or 

5 (iv) otherwise afford relief that the 

6 court could not enter on its own authority 

7 upon a final judgment in the litigation; or 

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

9 terms that— 

10 (i) interfere with the agency’s author11 ity to revise, amend, or issue rules through 

12 the procedures set forth in chapter 5 of title 

13 5, United States Code, or any other statute 

14 or executive order prescribing rule making 

15 procedures for rule makings that are the 

16 subject of the settlement agreement; 

17 (ii) commit the agency to expend funds 

18 that Congress has not appropriated and 

19 that have not been budgeted for the action 

20 in question; or 

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

22 failure to comply with the terms of the set23 tlement agreement other than the revival of 

24 the action resolved by the settlement agree25 ment, if the agreement commits the agency 

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1 to exercise its discretion in a particular 

2 way and such discretionary power was com3 mitted to the agency by Congress or the 

4 Constitution to respond to changing cir5 cumstances, to make policy or managerial 

6 choices, or to protect the rights of third par7 ties. 

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

9 annual report to Congress on the number, identity, and con10 tent of complaints, consent decrees, and settlement agree11 ments described in paragraph (1) for that year, the statu12 tory basis for each consent decree or settlement agreement 

13 and its terms, and any awards of attorneys fees or costs 

14 in actions resolved by such decrees or agreements. 

15 SEC. 3. MOTIONS TO MODIFY CONSENT DECREES. 

16 When a defendant agency moves the court to modify 

17 a previously entered consent decree described under section 

18 2 and the basis of the motion is that the terms of the decree 

19 are no longer fully in the public interest due to the agency’s 

20 obligations to fulfill other duties or due to changed facts 

21 and circumstances, the court shall review the motion and 

22 the consent decree de novo. 

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1 SEC. 4. EFFECTIVE DATE. 

2 The provisions of this Act apply to any covered consent 

3 decree or settlement agreement proposed to a court after the 

4 date of enactment of this Act. 

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Union Calendar No. 428 

112TH CONGRESS 

2D SESSION H. R. 3862 

[Report No. 112–593] 

A BILL 

To impose certain limitations on consent decrees 

purposes. accordance with the terms thereof, and for other quire the agencies to take regulatory action in and settlement agreements by agencies that reJULY 11, 2012 

Reported with an amendment, committed to the Comand ordered to be printed mittee of the Whole House on the State of the Union, 

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