[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
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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
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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.
____________________