[Congressional Bills 105th Congress]
[From the U.S. Government Publishing Office]
[S. 1166 Introduced in Senate (IS)]







105th CONGRESS
  1st Session
                                S. 1166

  To prevent Federal agencies from pursuing policies of unjustifiable 
nonacquiescence in, and relitigation of, precedents established in the 
                       Federal judicial circuits.


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                           September 11, 1997

 Mr. Campbell introduced the following bill; which was read twice and 
               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 circuits.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Agency Compliance Act''.

SEC. 2. PROHIBITING INTRACIRCUIT AGENCY NONACQUIESCENCE IN APPELLATE 
              PRECEDENT.

    (a) In General.--Chapter 7 of title 5, United States Code, is 
amended by adding at the end the following:
``Sec. 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 administering a statute, 
rule, regulation, program, or policy within a judicial circuit, adhere 
to the existing precedent respecting the interpretation and application 
of such statute, rule, regulation, program, or policy, as established 
by the decisions of the United States court of appeals for that 
circuit.
    ``(b) An agency is not precluded under subsection (a) from taking a 
position, either in administration or litigation, 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 established, in that 
        court of appeals or the United States Supreme Court, because--
                    ``(A) neither the United States nor any agency or 
                officer thereof was a party to the case; or
                    ``(B) the decision establishing that precedent was 
                otherwise substantially favorable to the Government; or
            ``(3) it is reasonable to question the continued validity 
        of that precedent in light of a subsequent decision 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 RELITIGATION 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:
``Sec. 708. Supervision of litigation; limiting unnecessary 
              relitigation of legal issues
    ``(a) In supervising the conduct of litigation, the officers of any 
agency of the United States authorized to conduct litigation, including 
the Department of Justice acting under sections 516 and 519 of title 28 
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 continue 
litigation for purposes of subsection (a) shall take into account, 
among other relevant factors, the following:
            ``(1) The effect of intervening changes in pertinent 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 previously 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 parties' 
        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 Justice and other agencies to comply with 
subsection (a).
    ``(d) A decision on whether to initiate, defend, or continue 
litigation is not subject to review in a court, by mandamus or 
otherwise, on the grounds that the decision violates 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.''.
                                 <all>