II 

109TH CONGRESS 

1ST SESSION S. 489 

To amend chapter 111 of title 28, United States Code, to limit the duration 

of Federal consent decrees to which State and local governments are 

a party, and for other purposes. 

IN THE SENATE OF THE UNITED STATES 

MARCH 1, 2005 

Mr. ALEXANDER (for himself, Mr. KYL, and Mr. CORNYN) introduced the following bill; which was read twice and referred to the Committee on the 

Judiciary 

A BILL 

To amend chapter 111 of title 28, United States Code, 

to limit the duration of Federal consent decrees to which 

State and local governments are a party, 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 ‘‘Federal Consent De5 cree Fairness Act’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds that: 
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1 (1) Consent decrees are for remedying viola2 tions of rights, and they should not be used to ad3 vance any policy extraneous to the protection of 

4 those rights. 

5 (2) Consent decrees are also for protecting the 

6 party who faces injury and should not be expanded 

7 to apply to parties not involved in the litigation. 

8 (3) In structuring consent decrees, courts 

9 should take into account the interests of State and 

10 local governments in managing their own affairs. 

11 (4) Consent decrees should be structured to 

12 give due deference to the policy judgments of State 

13 and local officials as to how to obey the law. 

14 (5) Whenever possible, courts should not impose 

15 consent decrees that require technically complex and 

16 evolving policy choices, especially in the absence of 

17 judicially discoverable and manageable standards. 

18 (6) Consent decrees should not be unlimited, 

19 but should contain an explicit and realistic strategy 

20 for ending court supervision. 

21 SEC. 3. LIMITATION ON CONSENT DECREES. 

22 (a) IN GENERAL.—Chapter 111 of title 28, United 

23 States Code, is amended by adding at the end the fol24 lowing: 
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1 ‘‘§ 1660. Consent decrees 

2 ‘‘(a) DEFINITIONS.—In this section: 

3 ‘‘(1) The term ‘consent decree’— 

4 ‘‘(A) means any final order imposing in5 junctive relief against a State or local govern6 ment or a State or local official sued in their 

7 official capacity entered by a court of the 

8 United States that is based in whole or part 

9 upon the consent or acquiescence of the parties; 

10 ‘‘(B) does not include private settlements; 

11 and 

12 ‘‘(C) does not include any final order en13 tered by a court of the United States to imple14 ment a plan to end segregation of students or 

15 faculty on the basis of race, color, or national 

16 origin in elementary schools, secondary schools, 

17 or institutions of higher education. 

18 ‘‘(2) The term ‘special master’ means any per19 son, regardless of title or description given by the 

20 court, who is appointed by a court of the United 

21 States under rule 53 of the Federal Rules of Civil 

22 Procedure, rule 48 of the Federal Rules of Appellate 

23 Procedure, or similar Federal law. 

24 ‘‘(b) LIMITATION ON DURATION.— 

25 ‘‘(1) IN GENERAL.—A State or local govern26 ment or a State or local official, or their successor, 
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1 sued in their official capacity may file a motion 

2 under this section with the court that entered a con3 sent decree to modify or vacate the consent decree 

4 upon the earlier of— 

5 ‘‘(A) 4 years after a consent decree is 

6 originally entered by a court of the United 

7 States, regardless if the consent decree has 

8 been modified or reentered during that period; 

9 or 

10 ‘‘(B) in the case of a civil action in 

11 which— 

12 ‘‘(i) a State is a party (including an 

13 action in which a local government is also 

14 a party), the expiration of the term of of15 fice of the highest elected State official 

16 who authorized the consent of the State in 

17 the consent decree; or 

18 ‘‘(ii) a local government is a party and 

19 the State encompassing the local govern20 ment is not a party, the expiration of the 

21 term of office of the highest elected local 

22 government official who authorized the 

23 consent of the local government to the con24 sent decree. 
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1 ‘‘(2) BURDEN OF PROOF.—With respect to any 

2 motion filed under paragraph (1), the burden of 

3 proof shall be on the party who originally filed the 

4 civil action to demonstrate that the continued en5 forcement of a consent decree is necessary to uphold 

6 a Federal right. 

7 ‘‘(3) RULING ON MOTION.—Not later than 90 

8 days after the filing of a motion under this sub9 section, the court shall rule on the motion. 

10 ‘‘(4) EFFECT PENDING RULING.—If the court 

11 has not ruled on the motion to modify or vacate the 

12 consent decree during the 90-day period described 

13 under paragraph (3), the consent decree shall have 

14 no force or effect for the period beginning on the 

15 date following that 90-day period through the date 

16 on which the court enters a ruling on the motion. 

17 ‘‘(c) SPECIAL MASTERS.— 

18 ‘‘(1) COMPENSATION.—The compensation to be 

19 allowed to a special master overseeing any consent 

20 decree under this section shall be based on an hourly 

21 rate not greater than the hourly rate established 

22 under section 3006A of title 18, for payment of 

23 court-appointed counsel, plus costs reasonably in24 curred by the special master. 
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1 ‘‘(2) TERMINATION.—In no event shall the ap2 pointment of a special master extend beyond the ter3 mination of the relief granted in the consent de4 cree.’’. 

5 (b) TECHNICAL AND CONFORMING AMENDMENT.— 

6 The table of sections for chapter 111 of title 28, United 

7 States Code, is amended by adding at the end the fol8 lowing: 

‘‘§ 1660. Consent decrees.’’. 

9 SEC. 4. EFFECTIVE DATE. 

10 The amendments made by this Act shall take effect 

11 on the date of enactment of this Act and apply to all con12 sent decrees regardless of— 

13 (1) the date on which the final order of a con14 sent decree is entered; or 

15 (2) whether any relief has been obtained under 

16 a consent decree before the date of enactment of this 

17 Act. 

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