[Congressional Record Volume 143, Number 120 (Thursday, September 11, 1997)]
[Senate]
[Pages S9211-S9212]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL:
  S. 1166. A bill to prevent Federal agencies from pursuing policies of 
unjustifiable nonacquiescence in, and relitigation of, precedents 
established in the Federal judicial circuits; to the Committee on the 
Judiciary.


                   The Federal Agency Compliance Act

  Mr. CAMPBELL. Mr. President, because the concept of nonacquiescence 
is so often mired and hidden in the bureaucratic processes of our 
Government agencies, few realize the magnitude of its true 
implications. I am extremely concerned that so many Federal agencies 
currently fail to comply with established case law when dealing with 
American's rights and legal claims. Instead, the very agencies whose 
function it is to serve the people of this country have been ignoring 
the law through the policy of nonacquiescence. Specifically, 
nonacquiescence occurs when an agency refuses to comply with judicial 
precedent and instead, relies on agency policy to determine the outcome 
of a claim. For example, if a beneficiary has a social security claim, 
the agency can rule against the claimant even if the judicial precedent 
in that circuit is entirely in favor of the beneficiary. Agency wins--
claimant loses--end of story. The only recourse that beneficiary has is 
to relitigate that same issue in court. The beneficiary can't bypass 
the agency and go directly to court, because he or she must first 
exhaust all administrative remedies. This is an extremely expensive 
burden on any person with a claim against an agency. In fact, it is a 
financial burden on the entire judicial system and on the American 
taxpayer who eventually pays the cost of relitigation.
  Stare decisis--``let the decision stand''--is the fundamental 
doctrine of law upon which our entire judicial system is based. It is a 
concept of fairness and equity that has withstood the test of time. We 
require the American people and courts to adhere to judicial precedent. 
This policy of nonacquiescence completely undermines that principle. It 
allows the agency to completely ignore judicial precedent and instead 
rely solely on agency interpretation. The most glaring examples of 
nonacquiescence have surfaced in a select few agencies, such as the 
Social Security Administration, the National Labor Relations Board, and 
the Internal Revenue Service. This year alone, the Social Security 
Administration itself indicates that tens of thousands of claims 
involving nonacquiescence may be litigated. In a recent judicial 
opinion, the appellate judge stated that ``if a [social security] 
claimant has the determination and financial and physical strength and 
lives long enough to make it through the administrative process he can 
turn to the courts * * *'' and ultimately prevail. Similarly, the NLRB 
and the IRS have invoked this policy and were the subject of inquiry 
during a recent House hearing which investigated the alarming rise of 
agency nonacquiescence.
  The true residual dangers of the nonacquiescence policy, however, lie 
in its more far-reaching implications. Theoretically, any agency can 
invoke this policy to avoid the law. When the Bureau of Land Management 
recently proposed reform regulations for grazing permits, ranchers 
challenged the new provisions. After exhausting all administrative 
remedies, the ranchers took their case to court. Following lengthy and 
costly litigation, the appellate court ruled in favor of the ranchers. 
However, under the nonacquiescence policy, the BLM could refuse to 
abide by this ruling each and every time this issue arises. Now grazing 
permits may not seem like a big deal to people here in Washington, but 
like many Western States, more than 30 percent of all the land in my 
home State of Colorado is Government-owned and under the control of a 
Federal agency. In western Colorado, almost 60 percent of the land 
falls into this arrangement. A rancher waiting for a grazing permit may 
be unable to get a loan or conduct necessary planning, which could 
force that rancher out of the livestock industry altogether. At the 
very least, each time a claim is relitigated, it involves tens of 
thousands of dollars and years of financial uncertainty for the 
claimant. Such a refusal to adhere to judicial precedent sends a clear 
message to the American people--a message of unfairness and inequality 
which in turn breeds mistrust against the Government. If the people 
must adhere to judicial precedent, we should require no less of 
Government agencies.
  This problem has been around for decades, but Congress first 
addressed this issue when it was considering the Social Security Act of 
1984. The conference report for that legislation highlighted the 
magnitude of concern over this policy when it stated:

       By refusing to apply circuit court interpretations and by 
     not promptly seeking review by the Supreme Court, the 
     Secretary forces beneficiaries to re-litigate the same issue 
     over and over again in the circuit, at a substantial expense 
     to both beneficiaries and the federal government. This is 
     clearly an undesirable consequence.

  At that time, Congress allowed the agencies to address this problem 
internally rather than by statute. Now in

[[Page S9212]]

1997, 13 years later, nonacquiescence is alive and well and it would be 
a gross understatement to say that this problem continues to be an 
undesirable consequence. In fact, Congress' failure to act 13 years ago 
has allowed the nonacquiescence policy to grow into a bureaucratic 
nightmare. This is nothing less than bureaucracy run amuck. It is now 
our duty to address this situation before any more time and money is 
wasted.
  Because I believe it is important to hold Federal agencies 
accountable, today I am introducing legislation which would require a 
Federal agency to comply with Federal court precedents within the 
circuit where a claim is filed. However, this bill also allows an 
agency to deviate from such precedent under certain circumstances, thus 
giving the agency additional avenues when there is a conflict between 
judicial precedent and agency regulations. In contrast to the present 
policy of nonacquiescence, in which the general public has no 
additional avenue except to relitigate an issue at personal expense, my 
bill upholds the fundamental concept of stare decisis and will in turn 
provide stability, economy and equality for all Americans.
  The House version of this legislation was introduced earlier in this 
Congress by Congressman Gekas and Congressman Frank and has been 
reported favorably out of the Subcommittee on Commercial and 
Administrative Law. This bill is supported by the Judicial Conference 
of the United States, Americans for Tax Reform, the Association of 
Administrative Law Judges, and the American Bar Association.
  I urge my colleagues to support this important legislation.
  Mr. President, I ask unanimous consent, that the text of the bill be 
printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 1166

       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 
     the following new item:

``708, Supervision of litigation; limiting unnecessary relitigation of 
              legal issues.''.
                                 ______