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Union Calendar No. 574

106TH CONGRESS

2D SESSION H. R. 1924

[Report No. 106–976]

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

judicial courts.

IN THE HOUSE OF REPRESENTATIVES

MAY 25, 1999

Mr. GEKAS introduced the following bill; which was referred to the Committee

on the Judiciary

OCTOBER 12, 2000

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 May 25, 1999]

A BILL

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

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled,
2

•HR 1924 RH

1 SECTION 1. SHORT TITLE.

2 This Act may be cited as the ‘‘Federal Agency Compli3 ance Act’’.

4 SEC. 2. PROHIBITING AGENCY NON-ACQUIESCENCE IN AP5 PELLATE PRECEDENT.

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

7 Code, is amended by adding at the end the following:

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

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

10 (as defined in section 701(b)(1) of this title) shall in civil

11 matters, in administering a statute, rule, regulation, pro12 gram, or policy within a judicial circuit, adhere to the ex13 isting precedent respecting the interpretation and applica14 tion of such statute, rule, regulation, program, or policy,

15 as established by the decisions of the United States court

16 of appeals for that circuit.

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

18 from taking a position, either in an administrative pro19 ceeding or in litigation, that is at variance with precedent

20 established by a United States court of appeals if—

21 ‘‘(1) it is not certain whether the administration

22 of the statute, rule, regulation, program, or policy

23 will be subject to review exclusively by the court of

24 appeals that established that precedent or a court of

25 appeals for another circuit;
3

•HR 1924 RH

1 ‘‘(2) the Government did not seek further review

2 of the case in which that precedent was first estab3 lished, in that court of appeals or the United States

4 Supreme Court, because—

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

6 agency or officer thereof was a party to the case;

7 or

8 ‘‘(B) the Solicitor General determines or the

9 agency officer responsible for such determination

10 determines the decision establishing that prece11 dent was otherwise substantially favorable to the

12 agency; or

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

14 validity of that precedent in light of a subsequent de15 cision of that court of appeals or the United States

16 Supreme Court, a subsequent change in any pertinent

17 statute or regulation, or any other subsequent change

18 in the public policy or circumstances on which that

19 precedent was based.’’.

20 (b) CLERICAL AMENDMENT.—The table of sections for

21 chapter 7 of title 5, United States Code, is amended by add22 ing at the end the following new item:

‘‘707. Adherence to court of appeals precedent.’’.
4

•HR 1924 RH

1 SEC. 3. AVOIDING UNNECESSARILY REPETITIVE LITIGA2 TION.

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

4 Code, is amended by adding at the end the following:

5 ‘‘§ 708. Avoiding unnecessarily repetitive litigation

6 ‘‘In supervising the conduct of civil litigation, the offi7 cers of any agency of the United States authorized to con8 duct litigation, including the Department of Justice acting

9 under sections 516 and 519 of title 28, United States Code,

10 should seek to ensure that the initiation, defense, and con11 tinuation of proceedings in the courts of the United States,

12 within, or subject to the jurisdiction of, a particular judi13 cial circuit, avoids unnecessarily repetitive litigation on

14 questions of law already uniformly resolved against the

15 United States in 3 or more courts of appeals. A decision

16 on whether to iniate, defend, or continue litigation is not

17 subject to review in any court by mandamus or otherwise

18 on the grounds that the decision violates this section.’’.

19 (b) CLERICAL AMENDMENT.—The table of sections for

20 chapter 7 of title 5, United States Code, is amended by add21 ing at the end the following new item:

‘‘708. Avoiding unnecessarily repetitive litigation.’’.

Union Calendar No. 574

106TH CONGRESS

2D SESSION H. R. 1924

[Report No. 106–976]

A BILL

To prevent Federal agencies from pursuing policies

of unjustifiable nonacquiescence in, and relitigation of, precedents established in the Federal judicial courts.

OCTOBER 12, 2000

Reported with an amendment, committed to the Committee of the Whole House on the State of the Union,

and ordered to be printed