Union Calendar No. 230
105TH CONGRESS
1ST SESSION
H. R. 1544
[Report No. 105–395]
A BILL
To prevent Federal agencies from pursuing policies
of unjustifiable nonacquiescence in, and relitiga-
tion of, precedents established in the Federal ju-
dicial circuits.
NOVEMBER 8, 1997
Reported with an amendment, committed to the Commit-
tee of the Whole House on the State of the Union, and
ordered to be printed
IB
Union Calendar No. 230
105TH CONGRESS
1ST SESSION
H. R. 1544
[Report No. 105–395]
To prevent Federal agencies from pursuing policies of unjustifiable non-
acquiescence in, and relitigation of, precedents established in the Federal
judicial circuits.
IN THE HOUSE OF REPRESENTATIVES
MAY 7, 1997
Mr. GEKAS (for himself and Mr. FRANK of Massachusetts) introduced the
following bill; which was referred to the Committee on the Judiciary
NOVEMBER 8, 1997
Additional sponsors: Mr. COOK, Mr. TALENT, Mr. GOODLATTE, Mr. SES-
SIONS, Mr. CALVERT, Mr. ENGLISH of Pennsylvania, Mr. SENSEN-
BRENNER, Mr. STARK, Mr. WICKER, Mr. CANADY of Florida, Mr.
BONIOR, Mr. SANDERS, Mr. NADLER, and Mr. BENTSEN
NOVEMBER 8, 1997
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 7, 1997]
A BILL
To prevent Federal agencies from pursuing policies of un-
justifiable nonacquiescence in, and relitigation of, prece-
dents established in the Federal judicial circuits.
Be it enacted by the Senate and House of Representa-
tives of the United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ‘‘Federal Agency Compli-
ance Act’’.
SEC. 2. PROHIBITING INTRACIRCUIT AGENCY NONACQUIES-
CENCE IN APPELLATE PRECEDENT.
(a) IN GENERAL.—Chapter 7 of title 5, United States
Code, is amended by adding at the end the following:
‘‘§ 707. Adherence to court of appeals precedent
‘‘(a) Except as provided in subsection (b), an agency
(as defined in section 701(b)(1) of this title) shall, in ad-
ministering a statute, rule, regulation, program, or policy
within a judicial circuit, adhere to the existing precedent
respecting the interpretation and application of such stat-
ute, rule, regulation, program, or policy, as established by
the decisions of the United States court of appeals for that
circuit. All officers and employees of an agency, including
administrative law judges, shall adhere to such precedent.
‘‘(b) An agency is not precluded under subsection (a)
from taking a position, either in administration or litiga-
tion, that is at variance with precedent established by a
United States court of appeals if—
‘‘(1) it is not certain whether the administration
of the statute, rule, regulation, program, or policy
will be subject to review by the court of appeals that
established that precedent or a court of appeals for
another circuit;
‘‘(2) the Government did not seek further review
of the case in which that precedent was first estab-
lished, in that court of appeals or the United States
Supreme Court, because neither the United States nor
any agency or officer thereof was a party to the case
or because the decision establishing that precedent
was otherwise substantially favorable to the Govern-
ment; or
‘‘(3) it is reasonable to question the continued
validity of that precedent in light of a subsequent de-
cision of that court of appeals or the United States
Supreme Court, a subsequent change in any pertinent
statute or regulation, or any other subsequent change
in the public policy or circumstances on which that
precedent was based.’’.
(b) CLERICAL AMENDMENT.—The table of sections at
the beginning of chapter 7 of title 5, United States Code,
is amended by adding at the end of following new item:
‘‘707. Adherence to court of appeals precedent.’’.
SEC. 3. PREVENTING UNNECESSARY AGENCY RELITIGA-
TION IN MULTIPLE CIRCUITS.
(a) IN GENERAL.—Chapter 7 of title 5, United States
Code, as amended by section 2(a), is amended by adding
at the end the following:
‘‘§ 708. Supervision of litigation; limiting unnecessary
relitigation of legal issues
‘‘(a) In supervising the conduct of litigation, the offi-
cers of any agency of the United States authorized to con-
duct litigation, including the Department of Justice acting
under sections 516 and 519 of title 28, United States Code,
shall ensure that the initiation, defense, and continuation
of proceedings in the courts of the United States within,
or subject to the jurisdiction of, a particular judicial circuit
avoids unnecessarily repetitive litigation on questions of
law already consistently resolved against the position of the
United States, or an agency or officer thereof, in precedents
established by the United States courts of appeals for 3 or
more other judicial circuits.
‘‘(b) Decisions on whether to initiate, defend, or con-
tinue litigation for purposes of subsection (a) shall take into
account, among other relevant factors, the following:
‘‘(1) The effect of intervening changes in perti-
nent law or the public policy or circumstances on
which the established precedents were based.
‘‘(2) Subsequent decisions of the United States
Supreme Court or the courts of appeals that pre-
viously decided the relevant question of law.
‘‘(3) The extent to which that question of law
was fully and adequately litigated in the cases in
which the precedents were established.
‘‘(4) The need to conserve judicial and other par-
ties’ resources.
‘‘(c) The Attorney General shall report annually to the
Committees on the Judiciary of the Senate and the House
of Representatives on the efforts of the Department of Jus-
tice and other agencies to comply with subsection (a).
‘‘(d) A decision on whether to initiate, defend, or con-
tinue litigation is not subject to review in a court, by man-
damus or otherwise, on the grounds that the decision vio-
lates subsection (a).’’.
(b) CLERICAL AMENDMENT.—The table of sections at
the beginning of chapter 7 of title 5, United States Code,
as amended by section 2(b), is amended by adding at the
end of following new item:
‘‘708. Supervision of litigation; limiting unnecessary relitigation of legal issues.’’.