I

106TH CONGRESS

1ST SESSION H. R. 1924

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

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,

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 AGENCY NON-ACQUIESCENCE IN AP2 PELLATE PRECEDENT.

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

4 States Code, is amended by adding at the end the fol5 lowing:

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 civil

9 matters, in administering a statute, rule, regulation, pro10 gram, or policy within a judicial circuit, adhere to the ex11 isting precedent respecting the interpretation and applica12 tion of such statute, rule, regulation, program, or policy,

13 as established by the decisions of the United States court

14 of appeals for that circuit. All officers and employees of

15 an agency, including administrative law judges, shall ad16 here to such precedent.

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 administra22 tion of the statute, rule, regulation, program, or pol23 icy will be subject to review exclusively by the court

24 of appeals that established that precedent or a court

25 of appeals for another circuit;
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1 ‘‘(2) the Government did not seek further re2 view of the case in which that precedent was first es3 tablished, in that court of appeals or the United

4 States Supreme Court, because—

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

6 agency or officer thereof was a party to the

7 case; or

8 ‘‘(B) the decision establishing that prece9 dent was otherwise substantially favorable to

10 the Government; or

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

12 validity of that precedent in light of a subsequent

13 decision of that court of appeals or the United

14 States Supreme Court, a subsequent change in any

15 pertinent statute or regulation, or any other subse16 quent change in the public policy or circumstances

17 on which that precedent was based.’’.

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

19 for chapter 7 of title 5, United States Code, is amended

20 by adding at the end the following new item:

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

21 SEC. 3. AVOIDING UNNECESSARILY REPETITIVE LITIGA22 TION.

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

24 States Code, is amended by adding at the end the fol25 lowing:
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1 ‘‘§ 708. Avoiding unnecessarily repetitive litigation

2 ‘‘In supervising the conduct of civil litigation, the offi3 cers of any agency of the United States authorized to con4 duct litigation, including the Department of Justice acting

5 under sections 516 and 519 of title 28, United States

6 Code, should seek to ensure that the initiation, defense,

7 and continuation of proceedings in the courts of the

8 United States, within, or subject to the jurisdiction of, a

9 particular judicial circuit, avoids unnecessarily repetitive

10 litigation on questions of law already consistently resolved

11 against the United States in 3 or more circuits.’’

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

13 for chapter 7 of title 5, United States Code, is amended

14 by adding at the end the following new item:

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

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