II

105TH CONGRESS

1ST SESSION S. 1166

To prevent Federal agencies from pursuing policies of unjustifiable nonacquiescence in, and relitigation of, precedents established in the Federal

judicial circuits.

IN THE SENATE OF THE UNITED STATES

SEPTEMBER 11, 1997

Mr. CAMPBELL introduced the following bill; which was read twice and

referred to the Committee on the Judiciary

A BILL

To prevent Federal agencies from pursuing policies of unjustifiable nonacquiescence in, and relitigation of, precedents established in the Federal judicial circuits.

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 ‘‘Federal Agency Com5 pliance Act’’.
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1 SEC. 2. PROHIBITING INTRACIRCUIT AGENCY NON2 ACQUIESCENCE IN APPELLATE PRECEDENT.

3 (a) IN GENERAL.—Chapter 7 of title 5, United

4 States Code, is amended by adding at the end the follow5 ing:

6 ‘‘§ 707. Adherence to court of appeals precedent

7 ‘‘(a) Except as provided in subsection (b), an agency

8 (as defined in section 701(b)(1) of this title) shall, in ad9 ministering a statute, rule, regulation, program, or policy

10 within a judicial circuit, adhere to the existing precedent

11 respecting the interpretation and application of such stat12 ute, rule, regulation, program, or policy, as established by

13 the decisions of the United States court of appeals for that

14 circuit.

15 ‘‘(b) An agency is not precluded under subsection (a)

16 from taking a position, either in administration or litiga17 tion, that is at variance with precedent established by a

18 United States court of appeals if—

19 ‘‘(1) it is not certain whether the administra20 tion of the statute, rule, regulation, program, or pol21 icy will be subject to review by the court of appeals

22 that established that precedent or a court of appeals

23 for another circuit;

24 ‘‘(2) the Government did not seek further re25 view of the case in which that precedent was first es-
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1 tablished, in that court of appeals or the United

2 States Supreme Court, because—

3 ‘‘(A) neither the United States nor any

4 agency or officer thereof was a party to the

5 case; or

6 ‘‘(B) the decision establishing that prece7 dent was otherwise substantially favorable to

8 the Government; or

9 ‘‘(3) it is reasonable to question the continued

10 validity of that precedent in light of a subsequent

11 decision of that court of appeals or the United

12 States Supreme Court, a subsequent change in any

13 pertinent statute or regulation, or any other subse14 quent change in the public policy or circumstances

15 on which that precedent was based.’’.

16 (b) CLERICAL AMENDMENT.—The table of sections

17 at the beginning of chapter 7 of title 5, United States

18 Code, is amended by adding at the end of following new

19 item:

‘‘707. Adherence to court of appeals precedent.’’.

20 SEC. 3. PREVENTING UNNECESSARY AGENCY RELITIGA21 TION IN MULTIPLE CIRCUITS.

22 (a) IN GENERAL.—Chapter 7 of title 5, United

23 States Code, as amended by section 2(a), is amended by

24 adding at the end the following:
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1 ‘‘§ 708. Supervision of litigation; limiting unnecessary

2 relitigation of legal issues

3 ‘‘(a) In supervising the conduct of litigation, the offi4 cers of any agency of the United States authorized to con5 duct litigation, including the Department of Justice acting

6 under sections 516 and 519 of title 28 shall ensure that

7 the initiation, defense, and continuation of proceedings in

8 the courts of the United States within, or subject to the

9 jurisdiction of, a particular judicial circuit avoids unneces10 sarily repetitive litigation on questions of law already con11 sistently resolved against the position of the United

12 States, or an agency or officer thereof, in precedents es13 tablished by the United States courts of appeals for 3 or

14 more other judicial circuits.

15 ‘‘(b) Decisions on whether to initiate, defend, or con16 tinue litigation for purposes of subsection (a) shall take

17 into account, among other relevant factors, the following:

18 ‘‘(1) The effect of intervening changes in perti19 nent law or the public policy or circumstances on

20 which the established precedents were based.

21 ‘‘(2) Subsequent decisions of the United States

22 Supreme Court or the courts of appeals that pre23 viously decided the relevant question of law.

24 ‘‘(3) The extent to which that question of law

25 was fully and adequately litigated in the cases in

26 which the precedents were established.
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1 ‘‘(4) The need to conserve judicial and other

2 parties’ resources.

3 ‘‘(c) The Attorney General shall report annually to

4 the Committees on the Judiciary of the Senate and the

5 House of Representatives on the efforts of the Department

6 of Justice and other agencies to comply with subsection

7 (a).

8 ‘‘(d) A decision on whether to initiate, defend, or con9 tinue litigation is not subject to review in a court, by man10 damus or otherwise, on the grounds that the decision vio11 lates subsection (a).’’.

12 (b) CLERICAL AMENDMENT.—The table of sections

13 at the beginning of chapter 7 of title 5, United States

14 Code, as amended by section 2(b), is amended by adding

15 at the end of following new item:

‘‘708. Supervision of litigation; limiting unnecessary relitigation of legal issues.’’.

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