I 

112TH CONGRESS 

1ST SESSION H. R. 3041 

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 HOUSE OF REPRESENTATIVES 

SEPTEMBER 23, 2011 

Mr. COOPER (for himself, Mr. DAVIS of Kentucky, Mr. PAUL, and Mr. SMITH

of Texas) introduced the following bill; which was 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’’. 


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1 SEC. 2. FINDINGS. 

2 Congress finds that the United States Supreme 

3 Court, in its unanimous decision in Frew v. Hawkins, 540 

4 U.S. 431 (2004), found the following: 

5 (1) Consent decrees may ‘‘lead to federal court 

6 oversight of state programs for long periods of time 

7 even absent an ongoing violation of federal law,’’. 

8 540 U.S. 431, 441. 

9 (2) ‘‘If not limited to reasonable and necessary 

10 implementations of federal law, remedies outlined in 

11 consent decrees involving state officeholders may im12 properly deprive future officials of their designated 

13 legislative and executive powers.’’. 540 U.S. 431, 

14 441. 

15 (3) ‘‘The federal court must exercise its equi16 table powers to ensure that when the objects of the 

17 decree have been attained, responsibility for dis18 charging the State’s obligations is returned promptly 

19 to the State and its officials.’’. 540 U.S. 431, 442. 

20 (4) ‘‘As public servants, the officials of the 

21 State must be presumed to have a high degree of 

22 competence in deciding how best to discharge their 

23 governmental responsibilities.’’. 540 U.S. 431, 442. 

24 (5) ‘‘A State, in the ordinary course, depends 

25 upon successor officials, both appointed and elected, 

26 to bring new insights and solutions to problems of 


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1 allocating revenues and resources. The basic obliga2 tions of federal law may remain the same, but the 

3 precise manner of their discharge may not.’’. 540 

4 U.S. 431, 442. 

5 SEC. 3. LIMITATION ON CONSENT DECREES. 

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

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

9 ‘‘§ 1660. Consent decrees 

10 ‘‘(a) DEFINITION.—In this section, the term ‘consent 

11 decree’— 

12 ‘‘(1) means any order imposing injunctive or 

13 other prospective relief against a State or local gov14 ernment, or a State or local official against whom 

15 suit is brought, that is entered by a court of the 

16 United States and is based in whole or part upon 

17 the consent or acquiescence of the parties; and 

18 ‘‘(2) does not include— 

19 ‘‘(A) any private settlement agreement; 

20 ‘‘(B) any order arising from an action filed 

21 against a government official that is unrelated 

22 to his or her official duties; 

23 ‘‘(C) any order entered by a court of the 

24 United States to implement a plan to end seg25 regation of students or faculty on the basis of 


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1 race, color, or national origin in elementary 

2 schools, secondary schools, or institutions of 

3 higher education; and 

4 ‘‘(D) any order entered in any action in 

5 which one State is an adverse party to another 

6 State. 

7 ‘‘(b) LIMITATION ON DURATION.— 

8 ‘‘(1) IN GENERAL.—A State or local govern9 ment, or a State or local official who is a party to 

10 a consent decree (or the successor to that individual) 

11 may file a motion under this section with the court 

12 that entered the consent decree to modify or termi13 nate the consent decree upon the earliest of— 

14 ‘‘(A) 4 years after the consent decree is 

15 originally entered by a court of the United 

16 States, regardless of whether the consent decree 

17 has been modified or reentered during that pe18 riod; 

19 ‘‘(B) in the case of a civil action in which 

20 a State or an elected State official is a party, 

21 the date of expiration of the term of office of 

22 the highest elected State official who is a party 

23 to the consent decree; 

24 ‘‘(C) in the case of a civil action in which 

25 a local government or elected local government 


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1 official is a party, the date of expiration of the 

2 term of office of the highest elected local gov3 ernment official who is a party to the consent 

4 decree; 

5 ‘‘(D) in the case of a civil action in which 

6 the consent to the consent decree was author7 ized by an appointed State or local official, the 

8 date of expiration of the term of office of the 

9 elected official who appointed that State or 

10 local official, or the highest elected official in 

11 that State or local government; or 

12 ‘‘(E) the date otherwise provided by law. 

13 ‘‘(2) BURDEN OF PROOF.— 

14 ‘‘(A) IN GENERAL.—With respect to any 

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

16 proof shall be on the party who originally filed 

17 the civil action to demonstrate that the denial 

18 of the motion to modify or terminate the con19 sent decree or any part of the consent decree is 

20 necessary to prevent the violation of a require21 ment of Federal law that— 

22 ‘‘(i) was actionable by such party; and 

23 ‘‘(ii) was addressed in the consent de24 cree. 


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1 ‘‘(B) FAILURE TO MEET BURDEN OF

2 PROOF.—If a party fails to meet the burden of 

3 proof described in subparagraph (A), the court 

4 shall terminate the consent decree. 

5 ‘‘(C) SATISFACTION OF BURDEN OF

6 PROOF.—If a party meets the burden of proof 

7 described in subparagraph (A), the court shall 

8 ensure that any remaining provisions of the 

9 consent decree represent the least restrictive 

10 means by which to prevent such a violation. 

11 ‘‘(3) RULING ON MOTION.— 

12 ‘‘(A) IN GENERAL.—The court shall rule 

13 expeditiously on a motion filed under this sub14 section. 

15 ‘‘(B) SCHEDULING ORDER.—Not later 

16 than 30 days after the filing of a motion under 

17 this subsection, the court shall enter a sched18 uling order that— 

19 ‘‘(i) limits the time of the parties to— 

20 ‘‘(I) file motions; and 

21 ‘‘(II) complete any required dis22 covery; and 

23 ‘‘(ii) sets the date or dates of any 

24 hearings determined necessary. 


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1 ‘‘(C) STAY OF INJUNCTIVE OR PROSPEC2 TIVE RELIEF.—In addition to any other orders 

3 authorized by law, the court may stay the in4 junctive or prospective relief set forth in the 

5 consent decree in an action under this sub6 section if a party opposing the motion to modify 

7 or terminate the consent decree seeks any con8 tinuance or delay that prevents the court from 

9 entering a final ruling on the motion within 180 

10 days after the date on which the motion is filed. 

11 ‘‘(c) OTHER FEDERAL COURT REMEDIES.—The pro12 visions of this section shall not be interpreted to prohibit 

13 a Federal court from entering a new order for injunctive 

14 or prospective relief to the extent that it is otherwise au15 thorized by Federal law. 

16 ‘‘(d) AVAILABLE STATE COURT REMEDIES.—The 

17 provisions of this section shall not prohibit the parties to 

18 a consent decree from seeking appropriate relief under 

19 State law.’’. 

20 (b) CONFORMING AMENDMENT.—The table of sec21 tions for chapter 111 of title 28, United States Code, is 

22 amended by adding at the end the following: 

‘‘1660. Consent decrees.’’. 

23 SEC. 4. GENERAL PRINCIPLES. 

24 (a) NO EFFECT ON OTHER LAWS RELATING TO

25 MODIFYING OR VACATING CONSENT DECREES.—Nothing 


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1 in the amendments made by section 3 shall be construed 

2 to preempt or modify any other provision of law providing 

3 for the modification or vacating of a consent decree. 

4 (b) FURTHER PROCEEDINGS NOT REQUIRED.— 

5 Nothing in the amendments made by section 3 shall be 

6 construed to affect or require further judicial proceedings 

7 relating to prior adjudications of liability or class certifi8 cations. 

9 SEC. 5. DEFINITION. 

10 In this Act, the term ‘‘consent decree’’ has the mean11 ing given that term in section 1660(a) of title 28, United 

12 States Code, as added by section 3 of this Act. 

13 SEC. 6. EFFECTIVE DATE. 

14 This Act and the amendments made by this Act shall 

15 take effect on the date of the enactment of this Act and 

16 apply to any consent decree regardless of— 

17 (1) the date on which the order of the consent 

18 decree is entered; or 

19 (2) whether any relief has been obtained under 

20 the consent decree before such date of enactment. 

Æ 


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