[Congressional Bills 115th Congress]
[From the U.S. Government Publishing Office]
[H.R. 469 Referred in Senate (RFS)]

<DOC>
115th CONGRESS
  1st Session
                                H. R. 469


_______________________________________________________________________


                   IN THE SENATE OF THE UNITED STATES

                            October 26, 2017

  Received; read twice and referred to the Committee on the Judiciary

_______________________________________________________________________

                                 AN ACT


 
    To impose certain limitations on consent decrees and settlement 
  agreements by agencies that require the agencies to take regulatory 
  action in accordance with the terms thereof, and for other purposes.

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

SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

    (a) Short Title.--This Act may be cited as the ``Congressional 
Article I Powers Strengthening Act''.
    (b) Table of Contents.--The table of contents of this Act is as 
follows:

Sec. 1. Short title; table of contents.
     TITLE I--SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND 
                              SETTLEMENTS

Sec. 101. Short title.
Sec. 102. Definitions.
Sec. 103. Consent decree and settlement reform.
Sec. 104. Motions to modify consent decrees.
Sec. 105. Effective date.
                  TITLE II--JUDGMENT FUND TRANSPARENCY

Sec. 201. Short title.
Sec. 202. Judgment fund transparency.
              TITLE III--ARTICLE I AMICUS AND INTERVENTION

Sec. 301. Short title.
Sec. 302. Congressional intervention as of right.
Sec. 303. Intervention and amicus authority for house of 
                            representatives.

     TITLE I--SUNSHINE FOR REGULATIONS AND REGULATORY DECREES AND 
                              SETTLEMENTS

SEC. 101. SHORT TITLE.

    This title may be cited as the ``Sunshine for Regulations and 
Regulatory Decrees and Settlements Act of 2017''.

SEC. 102. DEFINITIONS.

    In this title--
            (1) the terms ``agency'' and ``agency action'' have the 
        meanings given those terms under section 551 of title 5, United 
        States Code;
            (2) the term ``covered civil action'' means a civil 
        action--
                    (A) seeking to compel agency action;
                    (B) alleging that the agency is unlawfully 
                withholding or unreasonably delaying an agency action 
                relating to a regulatory action that would affect the 
                rights of--
                            (i) private persons other than the person 
                        bringing the action; or
                            (ii) a State, local, or tribal government; 
                        and
                    (C) brought under--
                            (i) chapter 7 of title 5, United States 
                        Code; or
                            (ii) any other statute authorizing such an 
                        action;
            (3) the term ``covered consent decree'' means--
                    (A) a consent decree entered into in a covered 
                civil action; and
                    (B) any other consent decree that requires agency 
                action relating to a regulatory action that affects the 
                rights of--
                            (i) private persons other than the person 
                        bringing the action; or
                            (ii) a State, local, or tribal government;
            (4) the term ``covered consent decree or settlement 
        agreement'' means a covered consent decree and a covered 
        settlement agreement; and
            (5) the term ``covered settlement agreement'' means--
                    (A) a settlement agreement entered into in a 
                covered civil action; and
                    (B) any other settlement agreement that requires 
                agency action relating to a regulatory action that 
                affects the rights of--
                            (i) private persons other than the person 
                        bringing the action; or
                            (ii) a State, local, or tribal government.

SEC. 103. CONSENT DECREE AND SETTLEMENT REFORM.

    (a) Pleadings and Preliminary Matters.--
            (1) In general.--In any covered civil action, the agency 
        against which the covered civil action is brought shall publish 
        the notice of intent to sue and the complaint in a readily 
        accessible manner, including by making the notice of intent to 
        sue and the complaint available online not later than 15 days 
        after receiving service of the notice of intent to sue or 
        complaint, respectively.
            (2) Entry of a covered consent decree or settlement 
        agreement.--A party may not make a motion for entry of a 
        covered consent decree or to dismiss a civil action pursuant to 
        a covered settlement agreement until after the end of 
        proceedings in accordance with paragraph (1) and subparagraphs 
        (A) and (B) of paragraph (2) of subsection (d) or subsection 
        (d)(3)(A), whichever is later.
    (b) Intervention.--
            (1) Rebuttable presumption.--In considering a motion to 
        intervene in a covered civil action or a civil action in which 
        a covered consent decree or settlement agreement has been 
        proposed that is filed by a person who alleges that the agency 
        action in dispute would affect the person, the court shall 
        presume, subject to rebuttal, that the interests of the person 
        would not be represented adequately by the existing parties to 
        the action.
            (2) State, local, and tribal governments.--In considering a 
        motion to intervene in a covered civil action or a civil action 
        in which a covered consent decree or settlement agreement has 
        been proposed that is filed by a State, local, or tribal 
        government, the court shall take due account of whether the 
        movant--
                    (A) administers jointly with an agency that is a 
                defendant in the action the statutory provisions that 
                give rise to the regulatory action to which the action 
                relates; or
                    (B) administers an authority under State, local, or 
                tribal law that would be preempted by the regulatory 
                action to which the action relates.
    (c) Settlement Negotiations.--Efforts to settle a covered civil 
action or otherwise reach an agreement on a covered consent decree or 
settlement agreement shall--
            (1) be conducted pursuant to the mediation or alternative 
        dispute resolution program of the court or by a district judge 
        other than the presiding judge, magistrate judge, or special 
        master, as determined appropriate by the presiding judge; and
            (2) include any party that intervenes in the action.
    (d) Publication of and Comment on Covered Consent Decrees or 
Settlement Agreements.--
            (1) In general.--Not later than 60 days before the date on 
        which a covered consent decree or settlement agreement is filed 
        with a court, the agency seeking to enter the covered consent 
        decree or settlement agreement shall publish in the Federal 
        Register and online--
                    (A) the proposed covered consent decree or 
                settlement agreement; and
                    (B) a statement providing--
                            (i) the statutory basis for the covered 
                        consent decree or settlement agreement; and
                            (ii) a description of the terms of the 
                        covered consent decree or settlement agreement, 
                        including whether it provides for the award of 
                        attorneys' fees or costs and, if so, the basis 
                        for including the award.
            (2) Public comment.--
                    (A) In general.--An agency seeking to enter a 
                covered consent decree or settlement agreement shall 
                accept public comment during the period described in 
                paragraph (1) on any issue relating to the matters 
                alleged in the complaint in the applicable civil action 
                or addressed or affected by the proposed covered 
                consent decree or settlement agreement.
                    (B) Response to comments.--An agency shall respond 
                to any comment received under subparagraph (A).
                    (C) Submissions to court.--When moving that the 
                court enter a proposed covered consent decree or 
                settlement agreement or for dismissal pursuant to a 
                proposed covered consent decree or settlement 
                agreement, an agency shall--
                            (i) inform the court of the statutory basis 
                        for the proposed covered consent decree or 
                        settlement agreement and its terms;
                            (ii) submit to the court a summary of the 
                        comments received under subparagraph (A) and 
                        the response of the agency to the comments;
                            (iii) submit to the court a certified index 
                        of the administrative record of the notice and 
                        comment proceeding; and
                            (iv) make the administrative record 
                        described in clause (iii) fully accessible to 
                        the court.
                    (D) Inclusion in record.--The court shall include 
                in the court record for a civil action the certified 
                index of the administrative record submitted by an 
                agency under subparagraph (C)(iii) and any documents 
                listed in the index which any party or amicus curiae 
                appearing before the court in the action submits to the 
                court.
            (3) Public hearings permitted.--
                    (A) In general.--After providing notice in the 
                Federal Register and online, an agency may hold a 
                public hearing regarding whether to enter into a 
                proposed covered consent decree or settlement 
                agreement.
                    (B) Record.--If an agency holds a public hearing 
                under subparagraph (A)--
                            (i) the agency shall--
                                    (I) submit to the court a summary 
                                of the proceedings;
                                    (II) submit to the court a 
                                certified index of the hearing record; 
                                and
                                    (III) provide access to the hearing 
                                record to the court; and
                            (ii) the full hearing record shall be 
                        included in the court record.
            (4) Mandatory deadlines.--If a proposed covered consent 
        decree or settlement agreement requires an agency action by a 
        date certain, the agency shall, when moving for entry of the 
        covered consent decree or settlement agreement or dismissal 
        based on the covered consent decree or settlement agreement, 
        inform the court of--
                    (A) any required regulatory action the agency has 
                not taken that the covered consent decree or settlement 
                agreement does not address;
                    (B) how the covered consent decree or settlement 
                agreement, if approved, would affect the discharge of 
                the duties described in subparagraph (A); and
                    (C) why the effects of the covered consent decree 
                or settlement agreement on the manner in which the 
                agency discharges its duties is in the public interest.
    (e) Submission by the Government.--
            (1) In general.--For any proposed covered consent decree or 
        settlement agreement that contains a term described in 
        paragraph (2), the Attorney General or, if the matter is being 
        litigated independently by an agency, the head of the agency 
        shall submit to the court a certification that the Attorney 
        General or head of the agency approves the proposed covered 
        consent decree or settlement agreement. The Attorney General or 
        head of the agency shall personally sign any certification 
        submitted under this paragraph.
            (2) Terms.--A term described in this paragraph is--
                    (A) in the case of a covered consent decree, a term 
                that--
                            (i) converts into a nondiscretionary duty a 
                        discretionary authority of an agency to 
                        propose, promulgate, revise, or amend 
                        regulations;
                            (ii) commits an agency to expend funds that 
                        have not been appropriated and that have not 
                        been budgeted for the regulatory action in 
                        question;
                            (iii) commits an agency to seek a 
                        particular appropriation or budget 
                        authorization;
                            (iv) divests an agency of discretion 
                        committed to the agency by statute or the 
                        Constitution of the United States, without 
                        regard to whether the discretion was granted to 
                        respond to changing circumstances, to make 
                        policy or managerial choices, or to protect the 
                        rights of third parties; or
                            (v) otherwise affords relief that the court 
                        could not enter under its own authority upon a 
                        final judgment in the civil action; or
                    (B) in the case of a covered settlement agreement, 
                a term--
                            (i) that provides a remedy for a failure by 
                        the agency to comply with the terms of the 
                        covered settlement agreement other than the 
                        revival of the civil action resolved by the 
                        covered settlement agreement; and
                            (ii) that--
                                    (I) interferes with the authority 
                                of an agency to revise, amend, or issue 
                                rules under the procedures set forth in 
                                chapter 5 of title 5, United States 
                                Code, or any other statute or Executive 
                                order prescribing rulemaking procedures 
                                for a rulemaking that is the subject of 
                                the covered settlement agreement;
                                    (II) commits the agency to expend 
                                funds that have not been appropriated 
                                and that have not been budgeted for the 
                                regulatory action in question; or
                                    (III) for such a covered settlement 
                                agreement that commits the agency to 
                                exercise in a particular way discretion 
                                which was committed to the agency by 
                                statute or the Constitution of the 
                                United States to respond to changing 
                                circumstances, to make policy or 
                                managerial choices, or to protect the 
                                rights of third parties.
    (f) Review by Court.--
            (1) Amicus.--A court considering a proposed covered consent 
        decree or settlement agreement shall presume, subject to 
        rebuttal, that it is proper to allow amicus participation 
        relating to the covered consent decree or settlement agreement 
        by any person who filed public comments or participated in a 
        public hearing on the covered consent decree or settlement 
        agreement under paragraph (2) or (3) of subsection (d).
            (2) Review of deadlines.--
                    (A) Proposed covered consent decrees.--For a 
                proposed covered consent decree, a court shall not 
                approve the covered consent decree unless the proposed 
                covered consent decree allows sufficient time and 
                incorporates adequate procedures for the agency to 
                comply with chapter 5 of title 5, United States Code, 
                and other applicable statutes that govern rulemaking 
                and, unless contrary to the public interest, the 
                provisions of any Executive order that governs 
                rulemaking.
                    (B) Proposed covered settlement agreements.--For a 
                proposed covered settlement agreement, a court shall 
                ensure that the covered settlement agreement allows 
                sufficient time and incorporates adequate procedures 
                for the agency to comply with chapter 5 of title 5, 
                United States Code, and other applicable statutes that 
                govern rulemaking and, unless contrary to the public 
                interest, the provisions of any Executive order that 
                governs rulemaking.
    (g) Annual Reports.--Each agency shall submit to Congress an annual 
report that, for the year covered by the report, includes--
            (1) the number, identity, and content of covered civil 
        actions brought against and covered consent decrees or 
        settlement agreements entered against or into by the agency; 
        and
            (2) a description of the statutory basis for--
                    (A) each covered consent decree or settlement 
                agreement entered against or into by the agency; and
                    (B) any award of attorneys fees or costs in a civil 
                action resolved by a covered consent decree or 
                settlement agreement entered against or into by the 
                agency.

SEC. 104. MOTIONS TO MODIFY CONSENT DECREES.

    If an agency moves a court to modify a covered consent decree or 
settlement agreement and the basis of the motion is that the terms of 
the covered consent decree or settlement agreement are no longer fully 
in the public interest due to the obligations of the agency to fulfill 
other duties or due to changed facts and circumstances, the court shall 
review the motion and the covered consent decree or settlement 
agreement de novo.

SEC. 105. EFFECTIVE DATE.

    This title shall apply to--
            (1) any covered civil action filed on or after the date of 
        enactment of this title; and
            (2) any covered consent decree or settlement agreement 
        proposed to a court on or after the date of enactment of this 
        title.

                  TITLE II--JUDGMENT FUND TRANSPARENCY

SEC. 201. SHORT TITLE.

    This title may be cited as the ``Judgment Fund Transparency Act of 
2017''.

SEC. 202. JUDGMENT FUND TRANSPARENCY.

    (a) Transparency Requirement.--Section 1304 of title 31, United 
States Code, is amended by adding at the end the following:
    ``(d)(1) Unless the disclosure of such information is otherwise 
prohibited by law (other than section 552a of title 5, United States 
Code) or court order, the Secretary of the Treasury shall make 
available to the public on a website, as soon as practicable, but not 
later than 30 days after the date on which a payment under this section 
is tendered on or after January 1, 2016, the following information with 
regard to that payment:
            ``(A) The name of the specific agency or entity whose 
        actions gave rise to the claim or judgment.
            ``(B) The name of the plaintiff or claimant.
            ``(C) The name of counsel for the plaintiff or claimant.
            ``(D) The amount paid representing principal liability, and 
        any amounts paid representing any ancillary liability, 
        including attorney fees, costs, and interest.
            ``(E) A brief description of the facts that gave rise to 
        the claim.
            ``(F) The name of the agency that submitted the claim.
            ``(G) Any information available on reports generated by the 
        Judgment Fund Payment Search administered by the Treasury 
        Department.
    ``(2) In addition to the information described in paragraph (1), if 
a payment under this section is made to a foreign state on or after 
January 1, 2016, the Secretary of the Treasury shall make available to 
the public in accordance with paragraph (1), the following information 
with regard to that payment:
            ``(A) A description of the method of payment.
            ``(B) A description of the currency denominations used for 
        the payment.
            ``(C) The name and location of each financial institution 
        owned or controlled, directly or indirectly, by a foreign state 
        or an agent of a foreign state through which the payment passed 
        or from which the payment was withdrawn, including any 
        financial institution owned or controlled, directly or 
        indirectly, by a foreign state or an agent of a foreign state 
        that is holding the payment as of the date on which the 
        information is made available.
    ``(3) Not later than January 1, 2018, and annually thereafter, the 
Secretary of the Treasury shall make available to the public on the 
website described in paragraph (1)--
            ``(A) the total amount paid under this section during the 
        year preceding the date of the report; and
            ``(B) the amount paid under this section during the year 
        preceding the date of the report--
                    ``(i) for attorney fees;
                    ``(ii) for interest; and
                    ``(iii) for all other payments.
    ``(4) In this subsection, the term `foreign state' has the meaning 
given the term in section 1603 of title 28.
    ``(e) Except with regard to children under eighteen, the disclosure 
of information required in this section shall not be considered a 
`clearly unwarranted invasion of personal privacy' for purposes of 
title 5, United States Code.
    ``(f) No payment may be made under this section to a state sponsor 
of terrorism, as defined in section 1605A(h) of title 28, or to an 
organization that has been designated as a foreign terrorist 
organization under section 219 of the Immigration and Nationality Act 
(8 U.S.C. 1189).''.
    (b) Implementation.--The Secretary of the Treasury shall carry out 
the amendment made by this section by not later than 60 days after the 
date of enactment of this title.

              TITLE III--ARTICLE I AMICUS AND INTERVENTION

SEC. 301. SHORT TITLE.

    This title may be cited as the ``Article I Amicus and Intervention 
Act of 2017''.

SEC. 302. CONGRESSIONAL INTERVENTION AS OF RIGHT.

    (a) Deadline for Report on Limitation on Enforcement of Laws.--
Paragraph (2) of section 530D(b) of title 28, United States Code, is 
amended to read as follows:
            ``(2) under subsection (a)(1)(B), within such time as will 
        reasonably enable the House of Representatives and the Senate 
        to take action, separately or jointly, to intervene in a timely 
        fashion in the proceeding, but in no event--
                    ``(A) later than 30 days after the making of each 
                determination; and
                    ``(B) later than 21 days before any applicable 
                deadline for filing any pleading necessary--
                            ``(i) to defend or assert the 
                        constitutionality of the provision at issue; or
                            ``(ii) to request review of any judicial, 
                        administrative, or other determination 
                        adversely affecting the constitutionality of 
                        such provision;''.
    (b) Intervention as of Right.--Section 530D of title 28, United 
States Code, is amended by adding at the end the following:
    ``(f) Intervention as of Right.--The Senate or House of 
Representatives may intervene as of right in any proceeding referenced 
in subsection (a)(1)(B) in order to defend or assert the 
constitutionality of any provision of any Federal statute, rule, 
regulation, program, policy, or other law, or to appeal or request 
review of any judicial, administrative, or other determination 
adversely affecting the constitutionality of any such provision. 
Notwithstanding any otherwise applicable time limits or other 
provisions of law to the contrary, if such intervention is filed not 
later than 21 days after receipt of the notice required by this section 
the intervention shall be deemed timely and shall preserve the right of 
the Senate or House of Representatives to advance any applicable legal 
arguments in favor of the constitutionality of any such provision.''.

SEC. 303. INTERVENTION AND AMICUS AUTHORITY FOR HOUSE OF 
              REPRESENTATIVES.

    Section 101 of the Legislative Branch Appropriations Act, 2000 (2 
U.S.C. 5571), is amended--
            (1) by striking subsection (d); and
            (2) by inserting after subsection (b) the following (and 
        redesignating succeeding subsections accordingly):
    ``(c) House of Representatives Intervention and Amicus Authority.--
            ``(1) Actions or proceedings.--When directed to do so in 
        accordance with the Rules of the House of Representatives, the 
        General Counsel of the House of Representatives shall intervene 
        or appear as amicus curiae in the name of the House, or in the 
        name of an officer, committee, subcommittee, or chair of a 
        committee or subcommittee of the House, or other entity of the 
        House, in any legal action or proceeding pending in any court 
        of the United States or of a State or political subdivision 
        thereof.
            ``(2) Intervention or appearance as of right.--Intervention 
        as a party or appearance as amicus curiae shall be of right and 
        may be denied by a court only upon an express finding that such 
        intervention or appearance is untimely and would significantly 
        delay the pending action or, in the case of intervention, that 
        standing to intervene is required and has not been established 
        under section 2 of article III of the Constitution of the 
        United States.
            ``(3) Rule of construction.--Nothing in this section shall 
        be construed to confer standing on any party seeking to bring, 
        or jurisdiction on any court with respect to, any civil or 
        criminal action against Congress, either House of Congress, a 
        Member of Congress, a committee or subcommittee of a House of 
        Congress, any office or agency of Congress, or any officer or 
        employee of a House of Congress or any office or agency of 
        Congress.''.

            Passed the House of Representatives October 25, 2017.

            Attest:

                                                 KAREN L. HAAS,

                                                                 Clerk.