[Congressional Record Volume 144, Number 15 (Wednesday, February 25, 1998)]
[House]
[Pages H585-H588]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                     FEDERAL AGENCY COMPLIANCE ACT

  Mr. McINNIS. Madam Speaker, by direction of the Committee on Rules, I 
call up House Resolution 367 and ask for its immediate consideration.
  The Clerk read the resolution, as follows:

                              H. Res. 367

       Resolved, That at any time after the adoption of this 
     resolution the Speaker may, pursuant to clause 1(b) of rule 
     XXIII, declare the House resolved into the Committee of the 
     Whole House on the state of the Union for consideration of 
     the bill (H.R. 1544) to prevent Federal agencies from 
     pursuing policies of unjustifiable nonacquiescence in, and 
     relitigation of, precedents established in the Federal 
     judicial circuits. The first reading of the bill shall be 
     dispensed with. General debate shall be confined to the bill 
     and shall not exceed one hour equally divided and controlled 
     by the chairman and ranking minority member of the Committee 
     on the Judiciary. After general debate the bill shall be 
     considered for amendment under the five-minute rule. It shall 
     be in order to consider as an original bill for the purpose 
     of amendment under the five-minute rule the amendment in the 
     nature of a substitute recommended by the Committee on the 
     Judiciary now printed in the bill. Each section of the 
     committee amendment in the nature of a substitute shall be 
     considered as read. During consideration of the bill for 
     amendment, the Chairman of the Committee of the Whole may 
     accord priority in recognition on the basis of whether the 
     Member offering an amendment has caused it to be printed in 
     the portion of the Congressional Record designated for that 
     purpose in clause 6 of rule XXIII. Amendments so printed 
     shall be considered as read. The Chairman of the Committee of 
     the Whole may: (1) postpone until a time during further 
     consideration in the Committee of the Whole a request for a 
     recorded vote on any amendment; and (2) reduce to five 
     minutes the minimum time for electronic voting on any 
     postponed question that follows another electronic vote 
     without intervening business, provided that the minimum time 
     for electronic voting on the first in any series of questions 
     shall be fifteen minutes. At the conclusion of consideration 
     of the bill for amendment the Committee

[[Page H586]]

     shall rise and report the bill to the House with such 
     amendments as may have been adopted. Any Member may demand a 
     separate vote in the House on any amendment adopted in the 
     Committee of the Whole to the bill or to the committee 
     amendment in the nature of a substitute. The previous 
     question shall be considered as ordered on the bill and 
     amendments thereto to final passage without intervening 
     motion except one motion to recommit with or without 
     instructions.

  The SPEAKER pro tempore (Mrs. Emerson). The gentleman from Colorado 
(Mr. McInnis) is recognized for 1 hour.
  Mr. McINNIS. Madam Speaker, for purposes of debate only, I yield the 
customary 30 minutes to the fine gentleman from the State of 
Massachusetts (Mr. Moakley), pending which I yield myself such time as 
I may consume. During the consideration of this resolution, all time 
yielded is for the purpose of debate only.
  House Resolution 367 is a very simple resolution. The proposed rule 
is an open rule providing for 1 hour of general debate divided equally 
between the chairman and ranking minority member of the Committee on 
the Judiciary. After general debate, it shall be in order to consider 
the Committee on the Judiciary's amendment in the nature of a 
substitute as an original bill for the purpose of amendment under the 
5-minute rule. House Resolution 367 allows the Chair to accord priority 
recognition to Members who have preprinted their amendments in the 
Congressional Record.
  Additionally, House Resolution 367 allows for the chairman of the 
Committee of the Whole to postpone votes during consideration of the 
bill and reduce voting time to 5 minutes on a postponed question, if 
the vote follows a 15-minute vote.
  Finally, Madam Speaker, the rule provides one motion to recommit with 
or without instructions.
  Madam Speaker, this open rule was reported out of the Committee on 
Rules by a unanimous voice vote. The underlying legislation, the 
Federal Agency Compliance Act, is a bill which makes a great deal of 
sense. This legislation generally prevents agencies from refusing to 
follow controlling precedents of the United States Courts of Appeals in 
the course of program administration and litigation of their programs.
  In my opinion, citizens have the right to expect that Federal 
agencies will follow the law as interpreted by the courts of this 
country. Sadly, the Federal agencies often prefer to relitigate settled 
questions of law in multiple circuits at one time, creating needless 
expense for both the government and private parties.
  I urge my colleagues to support this rule, it is an open rule, as 
well as the underlying legislation.
  Madam Speaker, I reserve the balance of my time.
  Mr. MOAKLEY. Madam Speaker, I thank my colleague, my dear friend from 
Colorado (Mr. McInnis), for yielding me the customary half-hour, and I 
yield myself such time as I may consume.
  Madam Speaker, I rise in support of this open rule; and I 
congratulate the chairman and the majority members of the committee for 
bringing this rule to the floor in its present condition. It will 
enable Members to offer amendments to what has the potential of being a 
very good bill with very small changes.
  This bill was written to stop some of the abuses that began in the 
1980s when people were denied benefits by the Social Security and the 
Veterans Administrations.
  For example, Madam Speaker, people who were seriously disabled were 
either arbitrarily dropped from the disability rolls or denied their 
benefits entirely. Once the courts determined that the agencies should 
neither have dropped the people nor denied them coverage, the agencies 
still did not fix all their mistakes.
  Madam Speaker, there is no reason on earth that people who risked 
their lives defending this country or who work hard and pay into the 
Social Security system should have to go to court to get the benefits 
to which they are entitled; and there is certainly no reason that once 
the mistakes are found out that they should not be fixed immediately.
  Because of the potential for abuse, this bill is a great idea, but it 
needs a few changes. And, Madam Speaker, since it is being brought up 
under the open rule, Members of this House will be able to offer 
amendments to improve the bill on the House floor and make these very 
needed changes.
  For one thing, Madam Speaker, the way the bill stands now, this bill 
puts huge restrictions on all Federal agencies in order to stop the 
abuses of just a very few Federal agencies.
  Madam Speaker, this bill is something like killing a mosquito with a 
sledgehammer. In this case, I am not saying the mosquito should not be 
killed, but maybe we could find a way to do it without creating an even 
more severe problem in the process.
  Federal agencies should certainly be required to comply with court 
decisions about eligibility for benefits, such as Social Security and 
veterans' disability, but the implementation will be far from easy. And 
if we are not careful, Madam Speaker, this bill, as it stands now, 
might hurt the enforcement of labor, environmental and civil rights 
laws. So I look forward to supporting an amendment protecting the 
enforcement of these mechanisms, and I urge my colleagues to support 
this open rule.
  Madam Speaker, I reserve the balance of my time.
  Mr. McINNIS. Madam Speaker, I yield myself such time as I may 
consume.
  I think it is worth our time to spend a few minutes this morning 
looking into the question that motivated this legislation. It is 
important because the question here is whether or not Federal agencies 
should respect and abide by case law precedent established by the 
Federal Courts of Appeal.
  The answer to that question, in my opinion, should be self-evident. 
But apparently it is not; and, of course, the self-evident answer is 
these Federal agencies should be bound by court precedents; and I think 
that is probably the opinion shared by most of the people that we 
represent in this country.
  Chief Justice John Marshall stated in the case of Marbury versus 
Madison, and that case has become one of the cornerstones of our 
democracy, that it is emphatically the providence and the duty of the 
judicial department to say what the law is. The courts having said what 
the law is, it is the duty of every citizen, and that just as 
emphatically includes the executive branch, to follow the law.
  It would seem strange that the question has arisen as to whether or 
not our Federal agencies, who by the way work for our people, who are 
bound by the courts, that there is some question as to whether they are 
bound to follow the law as determined by the courts. But for many years 
now agencies have asserted it is their right to determine whether or 
not they should acquiesce in court decisions. It is a right that has 
been granted or conceded to agencies by neither the courts nor 
Congress, and the result is an unwarranted exercise that has been the 
infliction of needless hardship on many of our most disadvantaged 
citizens, not to mention the destructive effect on the American legal 
system and the confidence that the ordinary people have in their 
government.

                              {time}  1045

  The ordinary people in this country face the consequences of a court 
action. They cannot defy a court action. Why on goodness earth should 
the Federal agencies be able to ignore Federal court decisions? The 
Judicial Conference of the United States, which is chaired by the Chief 
Justice, has identified agency nonacquiescence as a policy that 
undermines certainty and fair application of the law. It has 
recommended in strong terms that the Congress enact a law to control 
it.
  Thus, the bill that we consider today, supported by the Judicial 
Conference, not to mention other groups, such as the American Bar 
Association, attempts to put some order back into the situation by 
prohibiting agencies from engaging in a general policy of 
nonacquiescence. We have attempted to provide agencies the latitude 
necessary in the administration of their various programs, but we have 
considered just as importantly the legitimate expectation of persons 
who appear before and whose lives are affected by Federal agencies. 
Disadvantaged supplicants face insurmountable hardships when a

[[Page H587]]

Federal agency reserves that right to follow its own policy despite the 
fact that an appellate court has decided a question of law against it. 
The aged, the disabled, the impoverished not to mention most ordinary 
citizens who are affected by an agency's policy of nonacquiescence lack 
the resources to carry out a fight against an agency through the courts 
to receive what the Court of Appeals has already said is their right. 
In fact, few, if any, citizens, no matter what their status is in our 
society, have the time or the resources to battle the agency 
juggernaut. That is why it is so important to ensure that agencies 
follow applicable precedent absent a good reason to the contrary.
  I think that this bill, with bipartisan cosponsorship that includes 
the distinguished ranking member, represents a fair and workable 
measure that will ensure that those who administer our laws also 
realize that they have a duty to follow them. The bill recognizes 
circumstances may sometimes warrant limited nonacquiescence by an 
agency and those situations are provided and addressed in this bill. 
H.R. 1544 takes a stronger position against intracircuit 
nonacquiescence than it does against intercircuit nonacquiescence 
because it recognizes that an agency's decision not to obey a Circuit 
Court of Appeals precedent within that circuit is an extraordinary 
attack on the principle of stare decisis, which must be controlled by 
the courts. Needless and repetitive litigation, seeking to create 
intercircuit conflicts with respect to the administration of a program 
or rule can also have destructive effects. But these are such that I 
think we can rely upon the Attorney General to prevent by placing upon 
her the duty to report annually to us on government compliance.
  I know in the last few minutes I have been using a lot of legal 
terms, but to put it very simply in the language that a lot of us 
understand, that is that if the average ordinary person out there is 
ordered by a Federal court to do something, they have to follow that. 
They have to acquiesce to the Federal court's orders. We have a history 
of Federal agencies deciding they do not have to agree, or acquiesce, 
that is the word that has been used in the testimony we have had, they 
make a decision of nonacquiescence, that they do not have to follow the 
same kind of court orders that the ordinary citizen that we represent 
has to.
  That is what this bill is trying to correct. That is what this bill, 
with assistance from other people like the American Bar Association and 
so on, is trying to curb, to force Federal agencies to live within the 
same bounds that the ordinary person has to. Some might argue that 
agencies which have in the past been so nonacquiescent, nonagreeable, 
should be trusted to change their spots. I do not think so. I do not 
think we can depend upon them to do it. I think that time after time 
though we have complained about it and no action has been taken. It is 
now time for us in the United States Congress to take action and pass 
this bill.
  I have of interest here a letter from the American Bar Association. 
That is pretty controlling authority. That is the body of attorneys 
throughout the United States. They form an association that carries a 
lot of weight. They have experts in this area. I would like to read 
that letter. It is dated February 24, 1998. It is from the American Bar 
Association. It is addressed to the gentleman from Pennsylvania (Mr. 
Gekas), the chairman.

       Dear Mr. Chairman: We understand that on Thursday, February 
     26, 1998, the House of Representatives will consider H.R. 
     1544, the Federal Agency Compliance Act legislation that 
     would, among other things, require the Social Security 
     Administration to comply with Federal court precedents within 
     the same circuit. I am writing on behalf of the American Bar 
     Association to express our strong support, strong support 
     from the American Bar Association, that is my own add in 
     there, for legislation that would require the Social Security 
     Administration to cease its policy of nonacquiescence and to 
     follow Court of Appeals decisions within that circuit subject 
     to seeking review in the United States Supreme Court. The 
     provisions of H.R. 1544 addressing the SSA issue are 
     consistent with the ABA goal of requiring the SSA, Social 
     Security Administration, to cease its practice of 
     nonacquiescence to the legal interpretations of the Court of 
     Appeals within each circuit.

  I will not go ahead and read the rest of this letter. I know that we 
would like to move on. We do have an open rule here. I would ask for 
Members' support on that open rule. But it is important that we 
remember the concept, and that is that the law that the ordinary person 
has to follow, as issued by the Federal courts, should very well be 
expected to be followed by the Federal agencies when the Federal court 
renders a decision involving those agencies.
  Mr. MOAKLEY. Mr. Speaker, I have no further requests for time, and I 
yield back the balance of my time.
  Mr. McINNIS. Mr. Speaker, I yield back the balance of my time, and I 
move the previous question on the resolution.
  The previous question was ordered.
  The resolution was agreed to.
  A motion to reconsider was laid on the table.
  The SPEAKER pro tempore (Mr. Bunning). Pursuant to House Resolution 
367 and rule XXIII, the Chair declares the House in the Committee of 
the Whole House on the State of the Union for the consideration of the 
bill, H.R. 1544.

                              {time}  1052


                     In the Committee of the Whole

  Accordingly, the House resolved itself into the Committee of the 
Whole House on the State of the Union for the consideration of the bill 
(H.R. 1544) to prevent Federal agencies from pursuing policies of 
unjustifiable nonacquiescence in, and relitigation of, precedents 
established in the Federal judicial circuits, with Mrs. Emerson in the 
chair.
  The Clerk read the title of the bill.
  The CHAIRMAN. Pursuant to the rule, the bill is considered as having 
been read the first time.
  Under the rule, the gentleman from Pennsylvania (Mr. Gekas) and the 
gentleman from New York (Mr. Nadler) each will control 30 minutes.
  The Chair recognizes the gentleman from Pennsylvania (Mr. Gekas).
  Mr. GEKAS. Madam Chairman, I yield myself such time as I may consume. 
This is the time that is now set for a full debate on the merits of the 
legislation that is before us which would for the first time make it a 
part of our law that administrative agencies who have established 
policies and who establish policy every day in the furtherance of their 
domains, that that policy when it clashes with precedent that has been 
set by the courts in a particular area should comply with what the 
courts have said. That is, that the agencies, just like every other 
citizen, should comply with the law.
  How has this arisen and why is it such a problem? We would not be 
here on the floor today, Madam Chairman, if it were not for the fact 
that the Judicial Conference, which is made up of the Supreme Court 
Chief Justice and Federal judges across the Nation, they have 
discovered that it is a source of worry to them, more than worry, one 
in which they have pledged to take action and have, that some Federal 
agencies refuse to acquiesce to a circuit court decision which compels, 
or should compel, the agency to act one way or another in future cases 
based on the precedent that has been set. Yet we see time after time 
that the agency ignoring the precedent set, follows its own policy in 
the second, third, fourth and subsequent cases that come up, thus 
forcing litigation, forcing expenditures of time and money on the part 
of claimants, and, therefore, leads to uncertainty in the law.
  Let me give my colleagues a quick example. I think this would set the 
stage for what we attempt to do here. This is based on an actual case 
but I am going to do it in hypothetical terms. If an individual 
claiming Social Security disability demonstrates through the medical 
reports that there is a lot of pain involved in the particular injury 
that this individual has but the pain, everyone agrees, is only 
subjective in that claimant's psyche, that it is totally subjective, 
the administrative agency, in this case the Social Security 
Administration, has found in the past that they will not grant benefits 
on the basis of a subjective claim of pain, and so they rejected a 
claimant's similar claim. The claimant now appeals. The circuit court 
then rules that the agency was wrong. Although pain may not be the 
final determinant as to whether that benefit should be conferred, it 
has to be considered whether it is subjective or not. The

[[Page H588]]

pain level as asserted by the claimant is an element that has to be 
considered in the administrative level. Well, notwithstanding that, the 
next few cases that come by, the administrative agency sought to 
continue denying such claims based on pain even though the circuit 
court has acted on it and has set a precedent for at least that 
circuit. And so what do we have here? We have the vision of a 
nonacquiescence, as it is called. That is, that the Social Security 
Administration in the hypothetical that I gave chooses to pursue its 
own policies of how to deal with pain and ignore the precedent that has 
been set by the bona fide court decision.
  This has worried the Judicial Conference. They suggested that the 
Congress deal with it. That is what we are trying to do. In the lowest 
common denominator that we can place this debate, Madam Chairman, is 
that everyone expects everyone to obey the law. If the law states, as 
it did in this case, this hypothetical that I gave, that pain has to be 
considered, then not just individuals have to comply with the law but 
the agencies which are charged with the responsibility of executing the 
law as the Congress and the courts have adjudicated, or have stated.
  That is why we are here. We also enjoy the support of other bar 
association groups and other litigation groups and recipient groups; 
that is, of the benefits that are conferred by most of our agencies in 
the contemplation of this very serious problem. I must say that we have 
worked on this problem for perhaps 10 to 12 years now. We think that we 
have been spurred into action finally by reason of the fact that at 
last the judiciary itself, from the Supreme Court down, became alarmed 
at what was occurring. Although there are certain sanctions that the 
Supreme Court and the court system can apply to an agency that 
nonacquiesces, as we are wont to say, their recommendation that we 
craft it into law is why we have had hearings, we had good debate in 
both the subcommittee and in the full committee in Judiciary and by 
overwhelming vote, the matter carries to the floor here today.
  Madam Chairman, I reserve the balance of my time.
  Mr. NADLER. Madam Chairman, I yield myself such time as I may 
consume.
  Madam Chairman, I rise in support of this bill. I want to commend the 
gentleman from Pennsylvania (Mr. Gekas), the chairman of the 
subcommittee, for the fair and adequate consideration this bill has 
gotten in the subcommittee and in the committee. I want to commend the 
gentleman from Massachusetts (Mr. Frank), who did so much work for over 
a dozen years in originating the concept of this bill and in bringing 
it to where it is now. The gentleman from Massachusetts (Mr. Frank) and 
I are going to offer an amendment in a while which we will discuss at 
that time but let me say in general about the bill now, there has been 
a serious problem.

                              {time}  1100

  Madam Chairman, it is generally, but not completely, but almost 
completely, with respect to benefits programs where an agency adopts an 
interpretation of the law, a perhaps overly restrictive interpretation 
of the law, and based upon that denies someone a benefit that he is 
entitled to, denies Social Security benefits. We had a lot of problems 
in the mid-1980s during the Reagan Administration about Social Security 
problems. We are having apparently currently a lot of problems about 
Medicare problems.
  Someone sues, someone gets a lawyer, goes to court and sues and says 
the agency is wrong and I am entitled to this benefit under these 
circumstances, and the court agrees. The agency appeals. The Court of 
Appeals agrees. So that person gets his benefit. But the next person, 
the agency does not change their policy. They deny the next person 
their benefit, and he or she has to go to court. And every individual 
has to litigate up to the Court of Appeals.
  Now this is wrong. Most people will not be able to afford attorneys 
or to get free legal help and to go through the problems, nor should 
they have to waste the money and the time, and especially a right 
delayed is often a right denied.
  Federal Agencies have long asserted the right to ignore the law of 
the circuit in order to advance issues of public policy, recognizing 
that the United States speaks for all Americans, and it is in that 
sense a litigant different from all others.
  While that is a debatable point, what is not debatable is that the 
so-called right of nonacquiescence has been abused under 
administrations of both parties. That abuse has been especially 
egregious in the areas of Social Security benefits, Medicare benefits 
and IRS enforcement where agencies for private citizens repeatedly have 
required private citizens to repeatedly relitigate settled issues of 
law. No one should have to spend years in court to win a right already 
recognized under law.
  The purpose of this bill is to establish precisely that point, that 
no one should have to spend years in court to win a right already 
recognized under law. That is why this bill, if we pass the amendments 
that we will talk about in a few minutes, should become law, and that 
is why I rise in tentative support of it pending the outcome of the 
amendment.
  Madam Chairman, I reserve the balance of my time.
  Mr. GEKAS. Madam Chairman, I yield 2\1/2\ minutes to the gentleman 
from Virginia (Mr. Goodlatte) a member of the committee.
  Mr. GOODLATTE. Madam Chairman, I thank the gentleman from 
Pennsylvania (Mr. Gekas) for yielding this time to me, and I commend 
him for his hard work in this important issue and join him in 
supporting his legislation. Nonacquiescence by Federal agencies has 
been an ongoing problem for most of this century dating as far back as 
the 1920s. Many Federal agencies, in particular the Internal Revenue 
Service and the Social Security Administration, have repeatedly held 
themselves to be outside the rules on which our system of justice is 
based.
  They claim to be bound only by Federal, district and appellate court 
decisions in a particular circuit as they affect the particular 
litigant in the specific case under consideration. Beyond that, these 
agencies act without check until either the Congress or the Supreme 
Court intervenes.
  This arrogance flies in the face of the reliance on judicial 
precedent that our system of justice presupposes and undermines the 
integrity and efficiency of the appeals process, while guaranteeing the 
claimant due process. By continuing to pursue its policy of 
nonacquiescence, these agencies are limiting access to the justice 
system for the claimant, who must pursue lengthy appeals to obtain a 
decision on an issue of the law that could have been resolved at the 
agency level, the claimants whose cases are delayed because the 
agency's resources are spent on duplicative efforts and claimants who 
may be denied timely access to the Federal court system because the 
court is forced to reconsider issues of law that it has already 
decided.
  The Federal Agency Compliance Act generally bars intracircuit 
nonacquiescence while at the same time addressing the need in special 
cases for agencies to relitigate a precedent. In addition, the bill 
circumscribes the practice of intercircuit nonacquiescence. H.R. 1544 
applies to all agencies, thereby recognizing that the policy on 
nonacquiescence, whether inter or intra, has been applied by various 
agencies and could be asserted by any agency.
  In addition, this legislation provides a balanced approach by 
including exceptions to give Federal agencies sufficient flexibility to 
adhere to valid established precedent so as not to interfere with 
continued development of the law. This important legislation preserves 
the judiciary's constitutional role of interpreting the law. This 
important legislation preserves the judiciary's constitutional role of 
interpreting the law while allowing Federal agencies to administer 
fairly their programs.
  Madam Chairman, I urge my colleagues to support the passage of H.R. 
1544, and I thank the gentleman from Pennsylvania (Mr. Gekas) for 
having yielded this time to me.
  The CHAIRMAN. The committee will rise informally in order that the 
House may receive a message.
  The SPEAKER pro tempore (Mr. Goodlatte) assumed the chair.




                          ____________________