Date: 1985-05-13
Speaker: SAM B. HALL (democrat)
Chamber: H

Mr. Speaker. I yield myself such time as I may consume. Mr. Speaker. the purpose of H.R. 439 is to simplify the selection of the proper court to handle the judicial appeal of an agency order in those cases where petitions for review are filed in more than one court of appeals. When a Federal agency issues an order. two or more parties often file judicial challenges to the validity of that order. Because many statutes do not specify a particular circuit as the court to- handle these challenges. venue for the Judicial challenge is proper in any of the Federal circuits in which challenges are filed. If appeals are filed in more than one circuit. a single circuit must be selected to handle the appeal. Until 1958. each agency had the option of selecting which circuit would have venue when appeals of the agencys order were filed in more than one circuit. Since this appeared to result In an unfair advantage for the agency. title 28 was amended in 1958 to provide that the circuit of venue would be the circuit where the appeal of an agency order was filed first. This "firsttofile" rule was intended to assure that the agency had no special advantage over the challenger. However. the 1958 amendment had an unintended effect. Many lawyers believed that a certain circuit would be more sympathetic to their clients arguments than other circuits. Thus. "races to the courthouse" began to occur. with each lawyer trying to file first in the circuit he or she felt would be sympathetic. These races to the courthouse have become highly sophisticated. Messengers are assigned to hover around cases which are filed in the district agency offices waiting for the exact courts. moment an order is issued. Other mes- During the period before the sengers. armed with forms for filing random selection. any court of appeals the appeal. are stationed at the offices in which a proceeding has been filed of the clerks of various circuits. The may stay the effective date of the two are often connected with by open agency order. Any such stays may longdistance telephone lines or thereafter be modified. revoked. or exwalkietalkies so that the appeal will tended by the selected court in which be filed the instant the agency order is the proceedings are consolidated. H.R. issued. The result is that filings are 439 does not alter the current standfrequently made in various circuits ards by which courts determihe within minutes. or even seconds. of whether to grant a stay. each other. No random selection will be required Races to the courthouse have result- if a second proceeding is commenced ed in unfortunate consequences for more than 10 days after issuance of the system of justice. Since they are the agency order or if all proceedings based on the theory that one court are filed later than ten days after the will interpret the law differently from issuance of the order. In these cases. another court. these races detract the "firsttofile" rule will continue in from the publics perception of the effect since no real "race to the courtFederal courts as impartial. consistent house" is involved. arbiters of justice. In addition. these In the 98th Congress. the House races produce no economic benefit. yet passeda measure identical to H.R. 439 often cost private participants tqns of . Also. in the 96th and 97th thousands of dollars. Finally. once the Congresses. the Committee on the Jurace is complete. the partiesas well diciary favorably reported a provision as the Federal courts and agencies- similar to that contained. in H.R. 439 must expend more resources on waste- as part of the omnibus regulatory ful litigation to determine who won reform bill. A similar measure was also the race and thus which is the appro- adopted by the Senate in the 97th priate circuit for review. Congress as part of the Senate regulaH.R. 439 remedies this situation by tory reform bill. The basic approach of removing the Incentive to "race" to the bill has had strong bipartisan supthe courthouse. It does this by modify- port. ing the "first to file" rule so that when more than one appeal of an agency r. 43 tan a sinicateiorder is filed. all petitions will stand me in he wa vene is dteron the same footing in the determina- mined n ca e of es tion of which circuit will handle the suppotediatheoDerent of Jue appeal. with one of the circuits select- tice . the Amnernce ot ed at random to do so. United StatesUtheeAdministrav Con The Judicial Panel on Multidistrict fern of theoUiatent Litigation will handle the random selection from among those circuits in The Judiciary Committee recoiwhich petitions have been filed. A mends its enactment. party wishing to. qualify for the Mr. Speaker. I urge the adoption of random selection procedure will have H.R. 439. to meet two conditions. First. the Mr. KINDNESS. Mr. Speaker. I party will have to file an appeal of the yield myself such time as I may conagency order within 10 days after issu- sume: ance of the order. Second. the party Mr. Speaker. from the annals of the will also have to file a copy of the peti- history of that period of our Nations tion for review with the agency within past. when the west was being settled. the same 10day period. we can conjure up notions of the cayThe random selection will include airy coming thundering across the one entry for each circuit in which hills to the rescue of the settlers proceedings are pending. rather than family as the cabin bums to the one entry for each petitioner. After ground. the selection. the judicial panel will But today we have the modern elecissue an order consolidating all peti- tronic equivalent to that sort of scene tions for review in the selected circuit. in the races to the courthouses deThe judicial panel is required to estab- scribed so aptlyand ably by the genlish rules to govern these selection tleman from Texas (Mr. SAM B. HALL. procedures after providing the public JR.]. with notice and an opportunity to We have people. lawyers instead of comment on such rules. cavalrymen. talking to each other by The circuit in which the proceedings walkietalkie and open longdistance are consolidated will take jurisdiction telephone lines trying to save the Reover all review proceedings dealing - public from this order Issued by an with the same order. This court will agency seconds before. retain its existing power to transfer Perhaps it was more appropriate to proceedings for the convenience of the have the cavalry save the settlers in parties In the interest of justice. H.R. the old days of the West. It Is certain439 does not change current standards ly not appropriate to have the kind of for transfer. Moreover. does not cover race to the courthouse that we see occases were venue Is specified by stat- curring every now and then as agency ute to lie in one particular circuit or orders are issued and the lawyers scramble to see who can be first in the court. Surely it is not always to save the Republic. Sometimes it is to save or attempt to save those yvho are going to be affected :by the agency order. of course. and that is not always the public at large. The amount- of resources that are devoted to such Taces to the courthouse seem outlandish at times. In the overall context of things. it may not be the most important sort of thing that goes on ino our society from day to day. but it is one more thing that tends to detract from the dignity and respect accorded to our judicial system. and indeed the administrative workings of our Government as well. H.R. 439 is designed to eliminate the unseemliness of the race to the courthouse. The gentleman from Texas and I have worked together on this legislation and legislation like it in the last Congress or two. I think it is simple and relatively reasonable way to resolve a problem that exists that detracts from the dignity of the administrative process and the court system. and I would hope that the House would indeed support passage of H.R. 439. I would. however. Mr. Speaker. be greatly remiss if -I closed my remarks without commenting upon the somewhat subdued nature of my conduct today. which arises at least in part perhaps from the realization that the gentleman from Texas . my esteemed friend. my highly respected friend. will be leaving soon this House to assume a position on the Federal bench in the U.S. District Court for the Eastern District of Texas. I am somewhat reminded of the remark that was attributed. I believe. to Sam Houston upon the removal of Davey Crockett from Tennessee to Texas when he said that by making that move. Crockett greatly uplifted the intellectual climate of both States. Perhaps thatWe will let you think about that for a moment. Mr. Speakerthe gentleman from Texas has graced us with his presence. he has worked hard at his job. he has represented well the people of his part of east Texas. he has before him a career on the bench that I think will prove once again the great ability of this gentleman to serve the public and serve the public well. We shall miss him very much in the Committee on the Judiciary. and in the House of Representatives. and certainly on the Administrative Law Subcommittee which he chaired in these last two Congresses. I wish our respected colleague the very. very best as he assumes a new position in public service. and hope that the opportunity will be there to visit. whether it be in Washington. in Texas. or anyplace else on the face of the globe. from time to time. The gentleman will indeed be mised. Mr. Speaker. I have no further requests for time. and I yield back the balance of my time.