[Congressional Record Volume 144, Number 15 (Wednesday, February 25, 1998)]
[House]
[Pages H589-H598]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
FEDERAL AGENCY COMPLIANCE ACT
The committee resumed its sitting.
Mr. GEKAS. Madam Chairman, I yield such time as he might consume to
the gentleman from Kentucky (Mr. Bunning).
Mr. BUNNING. Madam Chairman, I thank the gentleman from Pennsylvania
for yielding, and I thank him for the opportunity to comment on H.R.
1544, the Federal Agency Compliance Act.
Madam Chairman, I appreciate the committee's effort to prevent
agencies from refusing to follow controlling precedents of the United
States Courts of Appeal in the course of program administration. I
fully agree that Federal agencies, including the Social Security
Administration, must follow circuit court decisions. However, I do not
support legislation that compromises the fair and impartial treatment
of Social Security claimants.
This bill seeks to allow administrative law judges and other
adjudicators the latitude to apply their own interpretation of circuit
court decisions. As chairman of the Subcommittee on Social Security, I
have grave concerns about the impact this legislation would have on
Social Security disability decision-making and particularly on the
Americans' public right to unbiased treatment.
Currently, when the U.S. Circuit Court of Appeals publishes a
decision that conflicts with the Social Security Administration policy,
Social Security can either, one, issue an acquiescent ruling to apply
the case in that circuit or, two, change its policies to apply the case
nationwide or seek Supreme Court review.
SSA's acquiescent ruling process is the means by which SSA provides
all decision makers with directions on how to uniformly and fairly
apply courts' decisions which conflicts with SSA's nationwide policy.
SSA takes over 2 million new disability claims a year and processes
over 600,000 disability appeals. SSA has over 20,000 decision makers.
H.R. 1544 would authorize SSA, more than 20,000 adjudicators, to apply
their own individual interpretation of a circuit court decision.
As we all know, court decisions are often subject to various
interpretations. If all 20,000 SSA adjudicators were permitted to apply
their own interpretations of court decisions, different standards would
be applied to individuals with similar circumstances across this
Nation.
I am not in favor of SSA adjudicators applying conflicting standards.
Not only does H.R. 1544 jeopardize the right of individuals seeking SSA
benefit, the bill also undermines the statutory authority of the
Commissioner of SSA to establish rules and policies. In order to insure
that similarly situated individuals are treated in a consistent manner,
SSA would have to devote additional resources to monitor its
adjudication process.
Total SSA resources are limited. Any shift in resources to account
for new work loads would likely have untold effects. Those untold
effects could include delays in retirement claims, claims filed by
widows or claims filed by severely disabled individuals waiting for
their disability decisions. SSA's disability work load is of such
staggering proportion that any proposal that would have even the
slightest impact on processing time delays must be carefully examined
and deliberated by Congress.
The American public should not have to tolerate additional delays in
the process that already takes too long. The American public should not
be subjected to inconsistent and possible biased decision-making. The
public deserves better.
We are all aware of the challenges facing the Social Security Trust
Fund. CBO has stated that they cannot predict the budgetary impact of
H.R. 1544. I say we cannot move forward until we know how this
legislation will impact the long term solvency of the Social Security
Trust Funds.
Therefore, I urge my colleagues to vote no on H.R. 1544, and I thank
the gentleman from Pennsylvania (Mr. Gekas) for the time.
Mr. GEKAS. Madam Chairman, having reserved some time, I now yield
myself such time as I may consume. The gentleman from Kentucky has
brought up some issues that require a response.
First of all, the Social Security Administration has told us in
different ways repeatedly that they are willing to acquiesce and that
they have changed their procedures and are turning towards a policy of
acquiescence rather than the nonacquiescence which we seek to cure by
this legislation. But even if they did, if they took a complete turn
around and now are acquiescing in full, that does not make our
legislation obsolete because this would carry to all agencies across
the board where all of them would be bound by the circuit court and
other court decisions.
So if the Social Security Administration itself says they are
acquiescing, then opposition to this bill comes empty handed because
all this does would be in effect codify what the Social Security
Administration has asserted to us it is trying to do anyway. But in the
meantime, while we pass this legislation, we are codifying their new
system if they are acquiescing, while at the same time applying it to
other agencies across the board whereby we would know that the court
opinions would be respected and in which acquiescence would be a
routine matter.
Another point which has to be made is that from the standpoint of the
administrative judges, and the gentleman from New York (Mr. Nadler)
first noted this very important aspect of what we are about here, the
administrative law judges, in the first instance, are the first
battleground. They, too, should have a cognizance that the precedents
already set by the circuit court should apply to them as they
deliberate on the adjudicative level within an agency on a particular
matter.
So all of this helps the entire system of justice from the standpoint
of the claimant, who makes the first claim would know that the chances
of having to litigate and relitigate the claim that that individual is
making for disability, for Social Security benefits, for Medicare, for
land management questions, for labor questions, any kind of question
that comes up before agencies would have the sweep of this law to help
protect them against the cost. And the aggravation and the time
involved in relitigation over and over again for a precedent that has
already been set by the courts and should be adhered to in the first
place, thereby saving all the time and energy and cost that would be
involved in pursuing the case time and time again.
{time} 1115
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 believe that, subject to the amendment I am going
to offer in a few moments, as soon as the bill is open to amendments,
that this is an excellent bill, a bill worthy of support, and,
unfortunately, an unnecessary bill.
I say unfortunately because we should not have to do this. Agencies
should not continue to deny benefits to people when the Circuit Court
has said you are wrong in your interpretation of the law. That is not
what Congress meant. Congress meant under these circumstances, whatever
they may be, the person is entitled to Medicare or Social Security or
disability or whatever the case may be.
But we know that, under administrations of both parties, this has
happened. It has happened repeatedly, even recently; and we should
protect people from the necessity and the taxpayers, too. Because when
there is a relitigation of the same points, the taxpayers are paying
the money on one side, the individual on the other; and this is wrong.
So I strongly support this bill; and I hope the majority, the
distinguished chairman, will see his way clear to accepting the
amendment so that we will have the votes to make sure that this bill is
enacted into law.
[[Page H590]]
Ms. JACKSON-LEE of Texas. Madam Chairman, I rise today in opposition
to H.R. 1544, the Federal Agency Compliance Act. My primary point of
contention with this bill, is that this legislation could potentially
cause drastic harm to our federal agencies' ability to enforce and
protect many of our essential labor, environmental and civil rights
laws. The fact of the matter is that our federal agencies already have
systematic procedures to determine which cases should be challenged in
federal appellate court, and which should not. If we were to add
another (unnecessary) set of criteria which restricts when our federal
agencies can seek appellate review, ultimately, we will disadvantage
these agencies' ability to protect some of our most fundamental civil
rights.
Actually, many federal agencies rely upon the Department of Justice
to be their ``arm of litigation'', because any desired appeal by a
federal agency to an appellate court must be approved by the Solicitor
General's office. Additionally, a court can hold these agencies to be
financially responsible for their opposing parties' attorney's fees if
their legal challenge is deemed to be ``substantially unjustified''.
The fact remains that there is little incentive for federal agencies to
bring frivolous challenges to standing circuit court precedents.
Critics, however, respond to this evidence by saying, then why don't
these federal agencies choose to comply with the various precedential
decisions in the many federal judicial circuits?
Even though, I agree wholeheartedly, with the spirit of this concern,
I can not in good conscience, agree with its substance. The Social
Security Administration, widely considered to be the main target of
this legislation, has already enacted a new regulation that in effect
is a model of H.R. 1544, so why is it a necessity to potentially
endanger our collective civil rights? Furthermore, what sense does it
make to pass a law to restrict circuit court appeals by federal
agencies, which then requires these same federal agencies to challenge
potential exemptions to this new statutory rule in federal court? What
is the added value? If an agency feels that it meets the standards for
exemption and files an appeal in federal circuit court, a federal
court, again, is the only available source of clarification and dispute
resolution.
If this bill's intent is simply to prevent the relitigation of
certain claims that affect individual grievances against federal
agencies such as Health and Human Services or the Social Security
Administration it should do that, and only that. However, as is clear
from these many impassioned polemics against this bill, H.R. 1544 ends
up doing far more. At least, the supporters of this bill should be able
to say that even though this proposed legislation may very well
endanger some of our most sacred Constitutionally-protected rights, it
is motivated by an overwhelmingly meritorious reason. Unfortunately,
neither I, nor anyone else that has questions about the necessity of
this bill, has been able to find evidence of a desperate need for this
legislation.
I believe that my colleagues simply have failed to ask and answer a
series of important questions in their haste to pass this bill. For
example, what will the immediate effect of H.R. 1544 probably be? If a
federal agency is going to acquiesce according to the letter of this
bill, it must adopt differing policies for the many judicial circuits
which have made rulings about a particular issue. Under these rules, it
is highly unlikely that a federal agency could ever have a singular,
national regulatory policy again. In the bureaucratic maelstrom that is
our federal government, is further complication of regulatory policies
either prudent, or pragmatic? Ultimately, how is it different for an
aggrieved party? If a circuit court rules disfavorably to one
claimant's position, all similarly situated parties will be judged (in
that particular judicial circuit) by that same standard. If we agree
that aggrieved parties are too often unaware, if not financially
unable, to pursue any further review of their claim in a court of law,
how does this new statute help their plight?
And finally, the Supreme Court often has very good reasons for
granting or not granting certiorari in matters involving controversial
issues of law. Why enact a law that would require a multi-faceted
standard for relief among the many judicial circuits, if we do not
really know which is the appropriate standard of review? Often it takes
several years for a rule of law to mature completely or even be
overturned, so why should we force all claimants in a judicial district
to experience the far too erratic ``growing pains'' of our federal
judicial process.
For all of these reasons, I would implore my colleagues to vote
against H.R. 1544, there must be a better way to solve this problem. A
better way, a more efficient way than jeopardizing our most fundamental
civil rights and liberties.
Mr. NADLER. Madam Chairman, I yield back the balance of my time.
Mr. GEKAS. Madam Chairman, I yield back the balance of my time.
The CHAIRMAN. All time for general debate has expired.
The committee amendment in the nature of a substitute printed in the
bill shall be considered by section as an original bill for the purpose
of amendment, and pursuant to the rule each section is considered read.
During consideration of the bill for amendment, the Chair may accord
priority in recognition to a Member offering an amendment that he or
she has printed in the designated place in the Congressional Record.
Those amendments will be considered read.
The Chairman of the Committee of the Whole may postpone a request for
a recorded vote on any amendment and may reduce to a minimum of 5
minutes the time for voting on any postponed question that immediately
follows another vote, provided that the time for voting on the first
question shall be a minimum of 15 minutes.
Mr. GEKAS. Madam Chairman, I ask unanimous consent that the committee
amendment in the nature of a substitute be printed in the Record and
open to amendment at any point.
The CHAIRMAN. Is there objection to the request of the gentleman from
Pennsylvania?
There was no objection.
The text of the committee amendment in the nature of a substitute is
as follows:
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. All officers and employees of an agency,
including administrative law judges, shall adhere to such
precedent.
``(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
neither the United States nor any agency or officer thereof
was a party to the case or because 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, United States
Code, 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.
[[Page H591]]
``(c) The Attorney General shall report annually to the
Committees on the Judiciary of the Senate and the House of
Representatives on the efforts of the Department of Justice
and other agencies to comply with subsection (a).
``(d) A decision on whether to initiate, defend, or
continue litigation is not subject to review in a court, by
mandamus or otherwise, on the grounds that the decision
violates subsection (a).''.
(b) Clerical Amendment.--The table of sections at the
beginning of chapter 7 of title 5, United States Code, as
amended by section 2(b), is amended by adding at the end of
following new item:
``708. Supervision of litigation; limiting unnecessary relitigation of
legal issues.''.
Amendment Offered by Mr. Cox of California.
Mr. COX of California. Madam Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Cox of California:
On page 5, line 16, strike the final period and insert ``of
section 707 or 708.''
Mr. COX of California. Madam Chairman, I thank the gentleman from
Pennsylvania (Mr. Gekas), the chairman of the committee, for discussing
with me my concerns about this bill and for his good work in bringing
this bill to the floor.
Madam Chairman, the Federal Agency Compliance Act, H.R. 1544, is
intended to do two things: first, to ensure that the executive branch
obeys the law, a good purpose; second, to discourage the relitigation
of settled questions and to avoid the needless expense for both the
government and private parties of unnecessary and wasteful litigation.
As one who has worked long and hard on civil justice reform, I could
not agree with the gentleman more about the importance of reducing
needless, wasteful and expensive litigation, both for the benefit of
the parties and for the taxpayers, who, in the case of government
litigation, of course, are footing the bill.
The Federal Agency Compliance Act contains essentially two parts, one
dealing with the relitigation of decisions of the courts within a
judicial circuit and another dealing with the relitigation of questions
that have been decided in one circuit but perhaps not in all others, or
that have been decided in others but where multi-circuit litigation is
undertaken to address the question anew.
In the inter-circuit, the multi-circuit part of the bill, there is
the following sentence: ``A decision on whether to initiate, defend or
continue litigation is not subject to a review in the court by mandamus
or otherwise on the grounds that the decision violates subsection A''.
In other words, there will not be collateral litigation, a new cause
of action created, by virtue of the alleged violation of section 708,
the decision by the government whether to continue to defend or to
initiate a lawsuit.
That is a very good part of this bill. It relies upon not only the
good faith of the executive branch in making decisions whether or not
to litigate inter-circuit but also upon the notion that it is the
responsibility not of private litigants but of the government to take
care, and the President is head of the executive branch of government,
to take care that the laws are faithfully executed. That is the
executive branch's constitutional responsibility.
The prohibition against that kind of wasteful, needless collateral
litigation in this bill ought to apply not to just half of it but all
of it.
So my amendment makes clear that the sentence that I just read, that
decisions whether to litigate or continue litigation are not subject to
review, not subject to additional collateral litigation, that will
apply to both the inter- and intra-circuit parts of this legislation
under my amendment.
As a consequence, I offer it for the consideration of the Members. I
believe that, absent this provision, we would do two things that we
ought not to do. Number one, we would unnecessarily and deeply intrude
upon the constitutional prerogative of the executive branch to take
care that the laws are faithfully executed; and, number two, we would
be actually fomenting additional wasteful, expensive litigation.
It is the very purpose of this bill to do just the opposite. Reading
from the purpose and summary of the bill: ``Unnecessary litigation is a
needless expense, for both the government and private parties.''
I could not agree more. Hence, my amendment, and I urge my colleagues
to consider it.
Madam Chairman, I should add, having just discussed this for the
first time with the chairman and ranking member, I understand their
reticence in accepting it, although they have been gracious in
discussing the merits with me and understanding the purpose by which I
offer it now.
Because there is similar legislation pending in the other body,
because I expect that we have an opportunity to resolve this during
conference, I will not be disheartened if my amendment is defeated
today, but I do look forward to working with the chairman and the
ranking member as well as our colleagues in the other body to see if we
can improve the bill in this respect.
Mr. GEKAS. Madam Chairman, will the gentleman yield?
Mr. COX of California. I yield to the gentleman from Pennsylvania.
Mr. GEKAS. Madam Chairman, I thank the gentleman for yielding.
Madam Chairman, I would respectfully request that the gentleman seek
unanimous consent to withdraw the amendment, only on the basis that he
has already asserted, namely, he has brought a good point to our
attention. In fact, this point may have been raised subliminally during
our testimony, and, therefore, it does require our attention.
But because it has come up at this juncture and we do not know the
full consequences of accepting the amendment or even debating it, I
would ask the gentleman to ask unanimous consent to withdraw his
amendment, with the promise of the chairman and others that we are
going to duly consider it in the pathway of this legislation all the
way to the end.
Mr. COX of California. Madam Chairman, reclaiming my time, I
appreciate the gesture that the chairman has made; and, inasmuch as I
have not been able to alert my colleagues to my concern about this, I
myself just discussed this with lawyers in recent days and in our
leadership meeting yesterday, Madam Chairman, I would accept the
chairman's generous offer.
I will note that because I will just now, as the gentleman suggested,
ask unanimous consent to withdraw the amendment, that because the
underlying bill lacks this amendment, I will not be able to support it
today.
Madam Chairman, I ask unanimous consent that my amendment be
withdrawn.
The CHAIRMAN. Is there objection to the request of the gentleman from
California?
There was no objection.
Amendment Offered by Mr. Nadler
Mr. NADLER. Madam Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Mr. Nadler:
Page 5, insert after line 20 the following:
SEC. 4. APPLICATION.
The amendments made by section 2 shall apply only with
respect to agency actions which involve a Federal health
benefit programs, a Federal program under which cash is paid
based on need or insurance benefits are paid, or the Internal
Revenue Code of 1986 and the amendments made by section 3
shall apply on with respect to proceedings in courts which
involve a Federal health benefit programs, a Federal program
under which cash is paid based on need or insurance benefits
are paid, or the Internal Revenue Code of 1986.
Page 3, line 4 and beginning in line 10, strike
``Government'' and insert ``agency''.
Page 4, beginning in line 7, strike ``neither the United
States nor any agency or officer thereof was,'' and insert
``the agency was not''.
Page 3, line 21, strike ``of following'' and insert ``the
following''.
Page 5, line 20, strike ``of following'' and insert ``the
following''.
Page 4, line 19, insert before the period the following:
``unless the precedents in a majority of other United States
courts of appeals supports the position of the agency''.
Mr. NADLER (during the reading). Madam Chairman, I ask unanimous
consent that the amendment be considered as read and printed in the
Record.
The CHAIRMAN. Is there objection to the request of the gentleman from
New York?
There was no objection.
Mr. NADLER. Madam Chairman, I am offering this amendment today, which
would narrow the scope of this bill, to those areas where the record of
abuse is clear, to those areas which in fact are the areas that
motivated the introduction of the development of this bill over these
many years.
[[Page H592]]
Those areas are the areas of benefits and where the public actually
deals with the government on a daily basis, the areas of health care,
Medicare benefits, the areas of Social Security and disability
benefits, the area of dealing with the Internal Revenue Service.
In those areas I think we clearly need a bill such as this to say to
the agencies, to the Internal Revenue Service, to the Health Care
Financing Administration, to the Social Security Administration, that
you may not deny a benefit, you may not harass a taxpayer by insisting
on the interpretation of the law denying the benefit or imposing the
tax when the Court of Appeals has said you are wrong. You should not
require the taxpayer or the person seeking Social Security or
disability benefits to relitigate that on an individual basis.
That is what this bill is about. But I think it is a mistake to apply
the bill more broadly in other areas, because there may be unforeseen
effects, and it would really require more congressional study to
determine the need and the implications.
For example, independent agencies such as the Securities and Exchange
Commission play no role in government litigation and by virtue of their
independence, this bill, without the amendment, might saddle them with
rules without bringing important issues to the court's attention. The
majority agrees there would be a mistake and has a manager's amendment
to solve this problem, this particular problem. But we really do not
know how many additional such issues there may be, and I think it would
be a mistake to pass an overly broad bill where no compelling need has
been demonstrated. The compelling need is with regard to benefits and
with regard to the benefits that may be denied to people who need them
and with regard to taxpayers dealing with the Internal Revenue Service.
That is certainly 95 percent of the problem. It is what brought this
bill here. It is the subject matter of the hearings that we held to
determine the need for this bill, and I say let us fix the problem at
hand and do it right.
I will say one other thing on this amendment. Without this amendment,
there will be very substantial opposition to this bill from the labor
movement, opposition, I believe, not to be correct but, nonetheless,
very substantial opposition, which will probably be more than
sufficient opposition to prevent this bill from being enacted into law,
especially given the fact that the administration has already told us
they do not like the bill at all, with or without the amendment.
So we have the problem of getting this bill into law to deal with the
problem that we know needs dealing with in the face of very substantial
opposition that would be eliminated by this amendment.
Since this amendment would not eliminate any of the solutions to the
problems the bill was designed to deal with, I urge the majority, I
urge my friend, the gentleman from Pennsylvania (Mr. Gekas) to accept
the amendment so we can enact the bill into law and deal with the
problems it is intended to deal with.
That is the argument. Let us deal with the problems we know are out
there and let us do it in a way that is realistic in terms of being
able to enact the bill into law so we have an accomplishment and so
that we help the people that have to deal with the IRS and help the
people that need benefits from Medicare, Medicaid, Social Security and
disability and solve the problems and not simply have a debate on the
floor of the House but have a real bill that helps real people.
So I urge all Members to accept this amendment.
{time} 1130
Mr. GEKAS. Madam Chairman, I rise in opposition to the amendment.
Madam Chairman, when we undertook this measure from the start, most
of us were convinced of the egregious problems that have existed for a
long period of time under both Republican and Democrat administrations.
What charged us into final action on this type of legislation was the
action of the Judicial Conference.
The Judicial Conference, in recommending this proceeding to us, this
process to us, made no distinction among agencies. It did not
contemplate any other visitation of these benefits on this agency or
that agency or that type of claimant or this type of claimant, but
rather, noted a serious problem in the enforcement of our laws, and
said, in effect, to us, ``Please, enact legislation that would cause
the administrative agencies to acquiesce in the precedents that the
court system set.'' They even felt it was inadequate for themselves to
rely on the sanctions that they are able to impose and still preferred
that we enact legislation to do so.
But here is the key. Here is the key. The gentleman from
Massachusetts (Mr. Frank) and I, on a radio symposium, touched upon
this matter. Not only do we feel that it should apply across the board
to all agencies, but we maintain that the language in the bill allows
anyone who is disaffected with a problem of nonacquiescence or
acquiescence, like the labor people to which the gentleman from New
York alluded, the language in our bill provides for loopholes, as it
were, which we crafted purposely; to say that if some agency, like
whatever labor is saying should be exempted, or the Securities and
Exchange Commission, which others say has to be exempted, the loopholes
that we apply are the exceptions to the mandatory adherence to court of
appeals precedent.
And we say, for instance, ``An agency is not precluded under section
A from taking a position, either in administration or litigation, that
is at variance with precedent established by United States court of
appeals if,'' and then we cite three provisions which give that option
to whoever the gentleman from New York (Mr. Nadler) is alluding to
would feel threatened by a general law that asks for acquiescence in
law.
Therefore, we have envisioned the moment that would come that some
agency would feel that it would be threatened in the execution of its
duties or the administration of its responsibilities by acquiescence
with court decisions. And if it comes to that irony, that they are
worried about acquiescing to court precedent, which is a wild thought,
even in that circumstance we give them the option to opt out if they
can demonstrate the rationale that is embodied in our own legislation,
the one to which the gentleman from New York has acquiesced as
necessary in the new processes that we want to see established among
the agencies.
First, I would like to see all citizens be able to approach every
single agency in the Nation, every single one, with equal justice
available to all. That means no exceptions to acquiescence in the law.
And in those egregious circumstances, which I cannot even envision,
that acquiescence would be a terrible thing to follow the law, how
terrible it would be to have to follow the law, in those cases the
provisions in our bill which have envisioned that kind of circumstance
allow an option out.
But we ought to start with general application of the recommendations
of the Judicial Conference that all the agencies should adhere to the
law, should obey the law, like every citizen must. And we start from
there, and then back away only if, under our bill, those exceptions can
be proved.
Mr. FRANK of Massachusetts. Madam Chairman, I move to strike the last
word.
Madam Chairman, I rise to disagree with the gentleman from
Pennsylvania, but first, to praise him. This bill first came to my
attention when I chaired the relevant subcommittee several Congresses
ago, and I began to move on it. I want to pay tribute to the gentleman
from Pennsylvania, because it is his determination, as chairman of the
subcommittee, that got us to this point. I think there is need for
legislation. He showed a great deal of diligence and brought it
forward.
But I believe in the interests of getting legislation we ought to be
adopting the amendment. I will acknowledge that when I brought the bill
out it looked like this, when we had it in committee, and generated a
lot of opposition. At the time the opposition was so strong, and that
was why it did not get anywhere. I believe we will run into the same
wall of resistance if we do not make some changes.
I originally got interested in this subject as the result of unfair
decisions by which disabled people were denied disability benefits, in
conflict with
[[Page H593]]
court opinions. That was something that began under the Reagan
administration, and I must acknowledge that it, sadly, continued under
the Clinton administration. I felt conscience bound to continue to
support this bill, because I had originally dealt with it when it was a
Republican administration, and it seems to me the same rules ought to
apply to a Democratic administration.
But I should also acknowledge that virtually all of the discussion
and evidence I have seen on this bill, having been through hearings on
it and been through debates, had to do with the denial of benefits,
most particularly through the Social Security Administration, where it
seemed to me the pattern had been the most egregious.
While the Social Security Administration has from time to time, and
the various administrations, promised us they will stop doing this, I
do not believe them. And since we do not have a Secretary General of
the U.N. to go get them to sign an agreement, I think legislation is
necessary.
So with regard to people who should be beneficiaries of subsistence
dollars, yes, one cannot allow the nonacquiescence policy, because it
does damage to individuals. But I must acknowledge that in all of the
hearings I have been at, the discussion focused on benefits.
At the most recent full committee markup some other agencies finally
awakened to this. Maybe they had not taken it seriously before. It is
to the credit of the gentleman from Pennsylvania that his diligence
brought the bill forward and made them focus on it.
The Securities and Exchange Commission and some other agencies
expressed some problems with the bill. I agree, we have tried to deal
with them. The gentleman from Pennsylvania has outlined some ways to do
that, but I do not think we have done it fully yet.
I do believe very strongly that both in terms of the information that
we have had about the bill and the impact, there is a difference
between nonacquiescence when it denies beneficiaries who are
desperately in need of the benefits they should get, and the questions
involved the Securities and Exchange Commission, the National Labor
Relations Board, where we are not talking about anything quite so
desperate, and where there is a legitimate right to relitigate.
The gentleman from Pennsylvania acknowledges this. He has from the
beginning. Yes, we do not think that once a certain number of circuit
courts have decided something, that is it forever. Even the Supreme
Court of the United States has been known to reverse itself and within
a fairly short period of time. The dilemma for us is how do you work
out a method of protecting fairness for individuals without preventing
legitimate relitigation. That is part of our process.
I believe that there is a compromise between this amendment and the
bill that can deal with it. I do not think we have time to work this
out now. I would hope if this amendment were adopted we might be able
to revisit this before the bill finally went to conference.
But I can say this, if the bill goes forward as is, I believe it will
be vetoed. It might be vetoed in any case, because this President, as
his Republican predecessors, does not like the idea of Congress
mandating that their agencies follow the law. It is more of an
executive-legislative dispute than it is a partisan one.
The point I would make to my friend, the gentleman from Pennsylvania,
who I honor for his work on this, is this: if we pass it in this form
and it is vetoed, we cannot override. If we accept the amendment of my
friend, the gentleman from New York, and leave open the possibility of
working out some other method of dealing with the agency questions of a
broader sort of litigation, the SEC and NLRB, then we will reach a
point where we can override a veto.
But if the only thing we can get would be what the amendment would be
limited by my friend gentleman's amendment, it would be an enormous
accomplishment. Because I would remind everybody again, the impetus for
this bill came from actions of the Social Security Administration. We
are dealing here with people who are disabled. They are least able to
relitigate, least able to hire a lawyer to get the benefit of a court
opinion.
Where we are talking about litigants in the NLRB situation or the SEC
situation, even if they have to go to court, they are better able to do
it.
The CHAIRMAN. The time of the gentleman from Massachusetts (Mr.
Frank) has expired.
(By unanimous consent, Mr. Frank of Massachusetts was allowed to
proceed for 1 additional minute.)
Mr. FRANK of Massachusetts. So, Madam Chairman, there is an urgency
to providing this protection for the recipients and benefits, which is
not the same as for more sophisticated, better financed litigants who
were dealing with public policy in the field of labor law, securities
law, et cetera.
I would hope the amendment would be adopted. I would hope to work
with the gentleman. I must say I was almost surprised the bill came up
too soon. I think one of the issues was that we had some time to fill.
I was hoping we could have worked a little bit more on some amendments.
Faced with this choice now, I think it would be important for us to
adopt the amendment because, otherwise, we run the risk of a
nonoverrideable veto that would deny the people whose plight led us to
get into this years ago, the beneficiaries of disability programs and
others who were being hurt. I do not want to put their right to get the
benefit of this good legislation at risk, and that is why I hope the
amendment is adopted.
Mr. CONYERS. Madam Chairman, I move to strike the requisite number of
words.
(Mr. CONYERS asked and was given permission to revise and extend his
remarks.)
Mr. CONYERS. Madam Chairman, I rise in support of the amendment. I am
delighted to participate in this debate with my friend, the gentleman
from Pennsylvania (Mr. Gekas), who I think has worked in a very good
spirit to try to deal with a set of problems that were ones that we all
agreed with.
I think the problem here, though, is that we have gone too far, that
we move now to cover every agency, department, bureau. I think that
might lead to some results that we would regret, especially without the
Nadler amendment.
I am prepared to say now that, if the Nadler amendment is supported,
that I will support the bill. But I want to remind the gentleman from
Pennsylvania (Mr. Gekas), who is one of the more senior members of the
Committee on the Judiciary, that there have been dangerous legal
precedents that, had this bill been law without the Nadler amendment,
and there was a determination by the United States Government and the
Department of Justice to go forward on the Dredd Scott case, which
denied African American slaves and former slaves constitutional rights,
or the Plessy versus Ferguson case, which upheld separate but legal
facilities in the United States, or the Korematsu versus United States
case, which gave court approval to the Japanese American internment
during World War II, the agencies or the departments that would have
gone to the Department of Justice to challenge these legal precedents
would have been barred under the gentleman's proposal.
My view is that the gentleman did not and does not intend to do that,
but the fact of the matter is this would be the result. Because of
that, without Nadler, we cannot support Gekas.
The Administration is opposed to it, and I think correctly so. The
Department of Justice is opposed to it; I think rightly so. I recall
that one of our colleagues, the gentlewoman from Texas (Ms. Jackson-
Lee), in the committee pointed out how civil rights litigation might be
impacted negatively with this kind of bar that the gentleman suggests
here.
How would a legislative initiative of this kind limit the ability of
Federal entities to address the encroachment of the judicial branch on
civil liberties? The Department of Justice, in its Civil Rights
Division, the Department of Health and Human Services, those would be
her primary focus in this objection to the language in the gentleman's
bill and the thrust of it.
The limitation of these agencies' ability to appeal seemingly unjust
court decisions to the Supreme Court, in addition to their ability to
create novel and ingenious ways of protecting the rights of citizens,
is literally sacred.
[[Page H594]]
{time} 1145
That should be regulated only with the greatest amount of reluctance
and the highest level of scrutiny.
And so we must do all we can to ensure the efficient and effective
government, but not at the expense of civil liberties and civil rights.
Now, one of our colleagues that sponsored the version of this
language I do not think is motivated as the author of the bill is on
the House side, because the gentleman from Colorado, Senator Ben
Nighthorse Campbell, made it perfectly clear one of his reasons for
introducing this bill.
The CHAIRMAN. The time of the gentleman from Michigan (Mr. Conyers)
has expired.
(By unanimous consent, Mr. Conyers was allowed to proceed for 3
additional minutes.)
Mr. CONYERS. Madam Chairman, the author of the legislation on the
other side in the other body telegraphed his intention of limiting the
ability of the Bureau of Land Management to protect lands from grazing
damage.
When that bureau recently proposed reform regulations for grazing
permits, they were challenged by ranchers. After exhausting
administrative remedies, the ranchers went to court. And after costly
and lengthy litigation, the appellate court ruled in favor of the
ranchers. However, with the nonacquiescence policy, the Bureau of Land
Management could have refused to abide by this ruling each and every
time the issue arises.
So I urge, for these reasons, that the Nadler amendment to this bill
be accepted.
Ms. JACKSON-LEE of Texas. Madam Chairman, I rise today in support of
the Frank-Nadler Amendment to H.R. 1544, the Federal Agency Compliance
Act. My primary point of contention with the original H.R. 1544 bill,
as I have expressed previously, is that it could potentially cause
drastic harm to our federal agencies' ability to enforce and protect
many of our essential labor, environmental and civil rights laws.
However, the Frank-Nadler Amendment is a breath of fresh air to a
legislative initiative that I once thought hopeless. This amendment
would tailor H.R. 1544 in such a way that it would benefit those who
need certain federal agencies to recognize the precedential justice
that is handed down by our federal circuit courts, yet not harm the
most fundamental civil rights of those who are completely disconnected
from this entire process.
Since the initial authorship of this bill, I have been an advocate of
limiting the scope of H.R. 1544 to only those agencies whose non-
acquiescence has a detrimental effect on the claims of aggrieved
parties, and finally we have a proposed amendment that seems to do
that. Many people have tried to urge me that my concerns were
unfounded, but the bottom line is why should we take so dangerous of a
chance with something as important as our Constitutionally-granted
rights? I can not think of a compelling reason why.
I know that this proposed threat to our collective civil rights was
completely accidental. I am confident that no one who is a supporter of
H.R. 1544 wants to intentionally cripple the pursuit of justice in this
country. No one would maliciously try to impede the protection of the
discouraged, mistreated and abused that is so much a part of the
responsibilities of the civil rights divisions of our many federal
agencies. The initial purpose of H.R. 1544, to my knowledge, was to
force the government bureaucracy to recognize the rights of those who
are being unjustly treated in particular claims, because of the
unwillingness of certain federal agencies to acquiesce to standing
circuit court precedents across the country.
Obviously, this bill was created to protect those who are often
unable to protect themselves, but how are we helping these people if we
diminish the ability of other parts of our government to defend their
rights to fair labor, a clean and safe environment, and a series of
their most fundamental Constitutional rights. The answer is clear, we
must amend H.R. 1544. For these reasons, I would ask my colleagues to
please support the Frank-Nadler Amendment to H.R. 1544, and in turn,
protect the sacred civil rights and liberties of the American people.
The CHAIRMAN. The question is on the amendment offered by the
gentleman from New York (Mr. Nadler).
The question was taken; and the Chairman announced that the ayes
appeared to have it.
Recorded Vote
Mr. GEKAS. Madam Chairman, I demand a recorded vote.
A recorded vote was ordered.
The vote was taken by electronic device, and there were--ayes 172,
noes 238, not voting 20, as follows:
[Roll No. 19]
AYES--172
Abercrombie
Ackerman
Allen
Andrews
Baesler
Baldacci
Barcia
Barrett (WI)
Becerra
Bentsen
Berman
Blagojevich
Blumenauer
Bonior
Borski
Brown (CA)
Brown (OH)
Cardin
Carson
Clay
Clayton
Clyburn
Conyers
Coyne
Cummings
Danner
Davis (IL)
DeFazio
DeGette
Delahunt
Deutsch
Dicks
Dingell
Dixon
Doggett
Doyle
Edwards
Engel
Eshoo
Etheridge
Evans
Farr
Fattah
Fazio
Filner
Fox
Frank (MA)
Frost
Furse
Gilman
Green
Gutierrez
Hall (OH)
Hamilton
Harman
Hastings (FL)
Hefner
Hilliard
Hinchey
Hinojosa
Holden
Hooley
Hoyer
Jackson (IL)
Jackson-Lee (TX)
Jefferson
Johnson (WI)
Johnson, E. B.
Kanjorski
Kaptur
Kennedy (MA)
Kennedy (RI)
Kildee
Kilpatrick
Kind (WI)
Kleczka
Kucinich
LaFalce
Lampson
Lantos
Levin
Lewis (GA)
LoBiondo
Lofgren
Lowey
Maloney (CT)
Maloney (NY)
Manton
Markey
Martinez
Mascara
McCarthy (MO)
McCarthy (NY)
McDermott
McGovern
McHale
McHugh
McIntyre
McKinney
McNulty
Meehan
Meek (FL)
Meeks (NY)
Menendez
Millender-McDonald
Mink
Moakley
Mollohan
Moran (VA)
Morella
Murtha
Nadler
Neal
Oberstar
Obey
Olver
Ortiz
Owens
Pallone
Pascrell
Pastor
Payne
Petri
Pomeroy
Price (NC)
Quinn
Rahall
Rangel
Reyes
Rivers
Rothman
Roybal-Allard
Rush
Sabo
Sanchez
Sanders
Sandlin
Sawyer
Schumer
Scott
Serrano
Sherman
Skaggs
Skelton
Slaughter
Snyder
Spratt
Stabenow
Stark
Stokes
Strickland
Stupak
Tauscher
Thompson
Thurman
Tierney
Torres
Towns
Turner
Velazquez
Vento
Visclosky
Walsh
Waters
Watt (NC)
Waxman
Wexler
Weygand
Wise
Woolsey
Wynn
Yates
NOES--238
Aderholt
Archer
Armey
Bachus
Baker
Ballenger
Barr
Barrett (NE)
Bartlett
Barton
Bass
Bateman
Bereuter
Berry
Bilbray
Bilirakis
Bishop
Bliley
Blunt
Boehlert
Boehner
Bonilla
Boswell
Boyd
Brady
Bryant
Bunning
Burr
Burton
Buyer
Callahan
Calvert
Camp
Campbell
Canady
Cannon
Castle
Chabot
Chambliss
Chenoweth
Christensen
Clement
Coble
Coburn
Collins
Combest
Condit
Cook
Cooksey
Costello
Cox
Cramer
Crane
Crapo
Cubin
Cunningham
Davis (FL)
Davis (VA)
Deal
DeLay
Diaz-Balart
Dickey
Dooley
Doolittle
Dreier
Duncan
Dunn
Ehlers
Ehrlich
Emerson
English
Ensign
Everett
Ewing
Fawell
Foley
Forbes
Fossella
Fowler
Franks (NJ)
Frelinghuysen
Gallegly
Ganske
Gekas
Gibbons
Gilchrest
Gillmor
Goode
Goodlatte
Goodling
Gordon
Goss
Graham
Granger
Greenwood
Gutknecht
Hall (TX)
Hansen
Hastert
Hastings (WA)
Hayworth
Hefley
Herger
Hill
Hilleary
Hobson
Hoekstra
Horn
Hostettler
Houghton
Hulshof
Hunter
Hutchinson
Hyde
Inglis
Istook
Jenkins
John
Johnson (CT)
Johnson, Sam
Jones
Kasich
Kelly
Kim
King (NY)
Kingston
Klug
Knollenberg
Kolbe
LaHood
Largent
Latham
LaTourette
Lazio
Leach
Lewis (CA)
Linder
Lipinski
Livingston
Lucas
Manzullo
Matsui
McCollum
McCrery
McDade
McInnis
McIntosh
McKeon
Metcalf
Miller (FL)
Minge
Moran (KS)
Myrick
Nethercutt
Neumann
Ney
Northup
Norwood
Nussle
Oxley
Packard
Pappas
Parker
Paul
Pease
Peterson (MN)
Peterson (PA)
Pickering
Pickett
Pitts
Pombo
Porter
Portman
Pryce (OH)
Radanovich
Ramstad
Regula
Riley
Roemer
Rogan
Rogers
Rohrabacher
Ros-Lehtinen
Roukema
Royce
Ryun
Salmon
Sanford
Saxton
Scarborough
Schaefer, Dan
Schaffer, Bob
Sensenbrenner
Sessions
Shadegg
Shaw
Shays
Shimkus
Shuster
Sisisky
Skeen
Smith (MI)
Smith (NJ)
Smith (OR)
Smith (TX)
Smith, Adam
Smith, Linda
Snowbarger
Solomon
Souder
Spence
Stearns
Stenholm
Stump
Sununu
Talent
Tanner
Tauzin
Taylor (MS)
Taylor (NC)
Thomas
Thornberry
Thune
Tiahrt
Traficant
Upton
Wamp
Watkins
Watts (OK)
Weldon (FL)
Weldon (PA)
Weller
White
Whitfield
Wicker
Wolf
Young (AK)
Young (FL)
[[Page H595]]
NOT VOTING--20
Boucher
Brown (FL)
DeLauro
Ford
Gejdenson
Gephardt
Gonzalez
Kennelly
Klink
Lewis (KY)
Luther
Mica
Miller (CA)
Paxon
Pelosi
Poshard
Redmond
Riggs
Rodriguez
Schiff
{time} 1214
Mr. KASICH changed his vote from ``aye'' to ``no.''
Ms. HARMAN, Mr. DEUTSCH, Mr. DAVIS of Illinois, Ms. MILLENDER-
McDONALD, and Messrs. SHERMAN, McHUGH, MURTHA, BAESLER, McINTYRE and
HILLIARD changed their vote from ``no'' to ``aye.''
So the amendment was rejected.
The result of the vote was announced as above recorded.
amendment offered by ms. jackson-lee of texas
Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Ms. Jackson-Lee of Texas:
Page 3, line 11 strike ``or'', line 18 strike the period,
close quotation marks and period following and insert ``;
or'', and after line 18 insert the following:
``(4) the substance of the agency matter is under
consideration by a United States court of appeals and
involves issues of civil rights, labor rights, or
environmental protection.''.
Ms. JACKSON-LEE of Texas. Mr. Chairman, the intentions of H.R. 1544
are good intentions. I supported the Nadler-Frank legislation, and I am
sorry that we did not see fit to add, I think, a very strong component
to this legislation. But now, Mr. Chairman, I have to come and say that
we need to understand that this legislation has as a potential, it may
not be the desire, but the potential to negatively impact on some very
serious rights of Americans.
I am a product of civil rights laws. Many of my constituents, many
Americans, are the product of civil rights laws. Hispanic Americans who
recently have seen a flood of legislation dealing with immigration
laws, dealing with laws regarding their voting privileges and as we
look toward the renewal of the Voter Rights Act of 1965, our civil
rights are being impacted every single day. The working men and women
of the 18th Congressional District and of this Nation are impacted by
labor rights. All of us, every single day, are impacted by
environmental protection laws as implemented under the laws of this
Nation. I am concerned that this legislation gives us the potential of
overturning or disallowing good laws that may have been ruled against.
I believe it is imperative that we understand the importance of
separating out the impact on civil rights, labor rights and
environmental protection. Allow me to read from the subcommittee markup
my statement:
The bottom line is how would a legislative initiative of this kind
limit the ability of Federal entities to address the systematic
encroachment of the judicial branch upon the civil liberties of the
average citizen, particularly the Department of Justice, its Civil
Rights Division and the civil rights division of various agencies? The
Department of Health and Human Services will be my primary focus in
this categorical objection to the language of H.R. 1544, the limitation
on these agencies' ability to appeal seemingly unjust circuit court
decisions to the Supreme Court. For example, autonomy of relitigation
in addition to their ability to create novel and ingenious ways of
protecting the rights of citizens is a sacred craft that should be
regulated only with the highest and most hesitant level of scrutiny. We
must do all we can to ensure efficient and effective government, but
not at the expense of our civil rights and liberties and, might I add,
our labor rights and environmental laws. The primary source of my
problem with this bill is that our trained public servants working in
Federal Government agencies will not be allowed the discretion to
determine whether a potential threat to standing civil rights and
liberties posed by the new circuit court precedent should be challenged
by the relitigation of that issue in open court.
I am sure, Mr. Chairman, that many are saying, what if the shoe is on
the other foot, for I do realize that in years past the courts came to
our rescue in environmental law, civil rights and labor protection.
Tragically sometimes we have to look at the cup being half full. That
means now we have gone full swing. Now our courts are interfering with
civil rights around the Nation.
In particular, as we watched the litigation of Proposition 209 in
California, we found that as our Justice Department attempted to
intervene in that instance, we determined and saw the results, cases
going on in the Southern District of Texas where our administrative
agencies are not even allowed to intervene on cases dealing with
affirmative action and civil rights, where courts have single-handedly
dismantled the civil rights legacy of all that occurred in the sixties
and seventies.
I think it is imperative as the shoe is shifted to the other foot
that we still give our agencies if they are appealing decisions that
infringe upon the civil rights of our citizens and infringe upon the
labor rights of our citizens and infringe upon environmental rights.
Under its present language H.R. 1544 would potentially restrict
agency divisions assigned the task of protecting civil rights and
liberties from contesting a host of adverse and intolerable circuit
court precedents in open court. I do not oppose the stated purpose of
this bill, but simply question whether in its current form it is the
best way to achieve its author's desired end. Again, my primary concern
is how this bill will affect an agency's ability to contest those
circuit court precedents which unjustly result in the denial or refusal
of previously acknowledged civil rights or liberties. It is good that
the previous amendment limited it to the IRS, Social Security benefits
and Medicare, which is what I truly believe in, but unfortunately such
amendment did not pass. Now we have a situation where legislation has a
potential to run away with our rights.
Mr. Chairman, I offer this amendment out of concern of the human and
civil rights and labor rights and environmental rights of our citizens.
I ask my colleagues to join me in upholding these rights by supporting
this amendment.
Mr. GEKAS. Mr. Chairman, I rise in opposition to the amendment.
Not only do I oppose the amendment from the basic tenets of the bill
that we have introduced here which has as its foundation, Mr. Chairman,
equal treatment for all of our citizens in front of the various
agencies of the Federal Government. We start with that premise, that
that is what we are trying to protect, and then say that in the
furtherance of policy on the part of any agency, that they must
acquiesce to the court decisions in their circuit or elsewhere when
opposition to it would be, in effect, nonacquiescence in the law that
is already established. That is a fair premise upon which to start.
That is one reason that I oppose it.
Secondly, to chop out of the purview of the bill this agency or that
agency, whether it has to do with labor or environmental protection or
any issue of the day, would mean that that would render the bill
useless and toothless. For that reason, added to the first, we should
have enough reason to oppose the amendment. But there is a third one,
and the one that it seems to me allows this amendment to crash down as
being one that we should be voting down.
The gentlewoman herself makes the strongest argument when she says
that the courts have historically been the last resort of our citizens
and those who felt that the legislative process was inadequate to meet
the problems of civil rights were exhilarated when in case after case
the courts found that the agencies were incorrect and that the civil
rights of individuals were paramount. It was court decisions to which
acquiescence was preached on behalf of civil rights in the past.
Now, the gentlewoman says the shoe is on the other foot and she seeks
to, in effect, preach nullification, if she says that now I am
appraising, she says that the court system is no longer able to protect
the rights of citizens; therefore, we have to look to an agency in the
Federal Government, in the administration, to thwart the prospective
judgment of the court. In other words, she is preaching
nonacquiescence, which is the reason we are here in this bill in the
first place, because there has been too much nonacquiescence, a point
that the Judicial Conference well noted in urging us to do something
about this.
The last point that I wish to make, that even if we were to give
credence to all that the gentlewoman from Texas
[[Page H596]]
has said, that there are cases in which, my goodness, acquiescence in
the law would be horrid, would be terrible to contemplate, to obey the
law would be ridiculously harmful, I say to her, as I have said before,
that in the very language of this bill, we have those exceptions
carvable that would protect the gentlewoman's worries about what the
court might do. Because in the last section of our bill, we say that an
agency is not precluded in making a decision at variance with the court
actions if, and then we list 3 exceptions that would allow a kind of
nonacquiescence, the third one being they would be able to nonacquiesce
if it is reasonable to question the continued validity of that
precedent in light of the subsequent decision of that Court of Appeals
or the United States Supreme Court, a subsequent change in any
pertinent statute or regulation, and here is the crucial language, or
any other subsequent change in the public policy or circumstances on
which that precedent was based.
The gentlewoman's concerns are addressed by the very bill which she
is aiming to destroy by offering an amendment that would render the
bill useless. I say to her that she should work with us in the
implementation of this bill and to be able to in the forefront of her
advocacy for any one of these concerns, environmental protection or
civil rights, turn to that portion of this bill which would allow her
to show that acquiescence would not be in the best interests of our
people.
Mr. NADLER. Mr. Chairman, I move to strike the last word.
Ms. JACKSON-LEE of Texas. Mr. Chairman, will the gentleman yield?
Mr. NADLER. I yield to the very distinguished gentlewoman from Texas,
the sponsor of this amendment.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the ranking member
very much both for his leadership and for his kindness. Mr. Chairman, I
wish in the best of all worlds we had been able to accept the Nadler-
Frank amendment that would have clarified that this legislation
pertains to programs such as Social Security and Medicare and that it
would not interfere with the rights, the life and death rights of many
Americans. In fact, I disagree with my chairman, not on his leadership
but on his interpretation. I am not advocating nullification for an
agency to be able to ignore a circuit court precedent, but I do argue
to preserve their right to contest unjust decisions.
As I have said, we are now moving to the cup is half full, to the
shoe on the other foot. I recognize that we are in different times. As
we moved in the civil rights movement, we looked to the Department of
Justice to send in and to be able to have FBI agents. We looked to the
Department of Justice to go into courts and argue our cases. In that
instance, those cases prevailed in some circumstances and generated
legislative authority under the Civil Rights Act of 1964 and the Voting
Rights Act of 1965. We now have a circumstance where tragically the
civil rights of our citizens, laws are being legislated, courts are
determining the other direction. I would not want to see those
individuals in the Federal Government who are pressing forward on
issues dealing with the labor rights of my community and this Nation,
with the civil rights of those children who will come behind me and the
environmental laws that I need to protect every single citizen of this
Nation to be denied by this legislation.
{time} 1230
Mr. Chairman, I ask my colleagues would they want to have a
constituent in their district denied the expertise of the Department of
Justice or the Environmental Protection Agency or the NLRB, the
National Labor Relations Board, and those other agencies that are
needed?
Allow me to put into the Record and read very briefly a letter, Mr.
Chairman, from the Mexican-American Legal Defense and Education Fund.
The letter referred to follows:
Mexican American Legal
Defense, and Educational Fund,
Washington, DC, February 23, 1998.
Dear Representative: On behalf of the Mexican American
Legal Defense and Educational Fund (MALDEF), I urge your
opposition to H.R. 1544, the ``Federal Agency Compliance
Act.''
Because of your historical respect for the integrity of the
legal system, it is important that you consider the problems
inherent in the changes proposed by H.R. 1544 with respect to
both intracircuit and intercircuit nonacquiescence and the
litigation needs of those represented by various governmental
agencies.
H.R. 1544 purports to address the problem of governmental
agencies' failure to explicitly comply with appellate court
rulings both within and outside a particular circuit. While
there is both a need for individuals to have their claims
heard as well as having a consistent result within each
agency, this bill does nothing to promote internal procedure
to address more efficient internal rulemaking and guidance,
nor enhance the ability of an agency to pursue a full
determination of an individual claim. By limiting each
agency's discretion in determining the cases it will appeal,
agencies such as the U.S. Department of Justice and the
Social Security Administration can only do less to adequately
and legally interpret and pursue particular cases deemed to
be significant in determining substantive policy.
Furthermore, in its vagueness, this bill may instead
require more litigation to determine whether decisions are
``substantially favorable to the government'' or whether a
``substantial change in public policy'' has occurred. Because
most agencies have already adopted internal guidance
requiring intracircuit acquiescence, this legislation fails
to do that which it allegedly seeks, namely require agencies
to avoid unnecessary litigation.
While the needs of both agencies and individuals require a
clear and equitable means by which to resolve pending
litigation, I urge your consideration of the inherent
problems of this bill that limits the ability of agencies to
seek appropriate legal remedies.
Sincerely,
Antonia Hernandez,
President and General Counsel.
Mr. Chairman, I will just simply say that their opposition to this
legislation because of historical respect for the integrity of the
legal system is important. They consider the problems inherent in the
changes proposed by H.R. 1544 with respect to both intracircuit and
intercircuit nonacquiescence and the litigation needs of those
represented by various governmental agencies.
While the needs of both agencies and individuals require clear and
equitable means by which to resolve pending litigation, I urge
consideration of the inherent problems of this bill that limits the
ability of agencies to seek appropriate legal remedies, and I will add
the rest into the Record at some point, Mr. Chairman.
Let me conclude and say that this legislation is legislation that
could be good, but it cannot be good if it denies the rights of
citizens who need the protection of our civil rights laws, need the
protection sometimes of the Federal Government and its expertise, need
the protection of labor laws, need the protection of environmental
laws. I ask my colleagues would they want to vote for legislation that
slams the door of justice on those citizens who stand before our court
systems and need the kind of justice that can be implemented by a
strong fight on their behalf in the Federal Government? I would think
not.
Mr. Chairman, to make this legislation better I would ask that my
amendment be voted on as well as approved by this body.
Mr. Chairman, I rise today to speak in support of my amendment to
H.R. 1544, the Federal Agency Compliance Act. The primary source of my
problem with this bill, is that our trained public servants working in
federal government agencies will not be allowed the discretion to
determine whether a potential threat to standing civil rights and
liberties posed by a new circuit court precedent, should be challenged
by the relitigation of that issue in open court. I believe that the
discretion that our federal agencies and the experts they employ
currently wield in matters of civil justice, is, at its core, a
political necessity that no good government can do without.
Under its present language, H.R. 1544 would potentially restrict
agency divisions assigned the task of protecting civil rights and
liberties, from contesting a host of adverse and intolerable circuit
court precedents in open court. I do not oppose the stated purpose of
this bill, but simply question whether in its current form it is the
best way to achieve its authors' desired end. Again, my primary concern
is how this bill will affect an agency's ability to contest those
circuit court precedents which unjustly result in the denial or refusal
of a previously acknowledged civil right or liberty. In essence, the
only reason that these sub-agencies were created was so that they could
be champions of justice for the uninformed, disadvantaged, and
mistreated. If this Congress moves to prevent the full exercise of
these agencies' discretion to litigate, by passing H.R. 1544, they will
effectively deem the civil rights divisions of these various federal
agencies as impotent, if not irrelevant.
[[Page H597]]
My proposed amendment to this bill will, in turn, allow federal
agencies to proceed with appellate challenges to those matters in which
issues of civil rights or liberties are centrally involved. I have not
proposed an amendment that would allow only those decisions that I
disagree with to be challenged in Circuit Court, but instead, I have
offered an alternative to the present language of H.R. 1544 that is in
the defense of the fair process of government. I may not agree with
every appellate challenge made by federal agencies to federal court
decisions, but I am surely not prepared to suspend their right to make
such challenges in every possible regard because of my displeasure. If
the purpose of H.R. 1544 is not to inhibit the exercise of our civil
rights and liberties in this country, then its language should be
changed accordingly. If it is, then the authors of this bill should
have the courage to say so. If civil rights, and all of their many
forms, are not the target of this legislation, passing this amendment
is the simplest way to take them out of play.
Furthermore, I fear that if the Civil Rights Divisions in the
Department of Justice, Department of Health and Human Services, and the
Department of Education, among others, are barred from relitigating
those claims deemed ``off-limits'' by the letter of H.R. 1544, we will
start down a slippery slope of ineffectual and indifferent regard for
our most sacred, long-standing civil rights that will eventually
marginalize the entire federal government's civil rights agenda. We
must remember that the government exists not simply to protect us
against each other, but at times to protect us against the encroachment
of government itself. In this case, an exception for civil rights cases
is necessary so that the government through our federal agencies can
seek, when necessary, to defend the rights of the American people
against the often highly-prejudiced decisions of our federal circuit
courts. Often our federal agencies, and their activism in the arena of
civil rights, is the only thing keeping our struggle for social justice
in this country in balance.
Even though, I believe that this limitation on the purview of civil
rights activism by federal agencies was an unfortunate by-product of
this legislation and not the original intent of this bill, it is a
lurking problem, nonetheless. During the Judiciary Committee Mark-Up of
this bill, my efforts to try to amend the language of this bill so that
the effects of this potentially dangerous threat to all of our civil
and political rights might be mitigated proved unsuccessful. So now, I
am giving the supporters of this bill a final warning. If we are going
to make an error in the enactment of this legislation, it is my belief
that we should err on the side of the civil rights and liberties of the
American people, and not in favor of a more efficient bureaucracy. Our
government, through the vehicle of its federal agencies, must be
allowed the full discretion to propose novel and ingenious criticisms
of adverse civil rights precedents when it deems such action to be
necessary. Rogue circuit court decisions like the Hopwood versus Texas
decision in the 5th Circuit, which affects the exercise of affirmative
action in educational settings throughout the entire state of Texas,
must not escape the legal scrutiny of relevant federal agencies when
such scrutiny is applicable.
In light of these facts, I urge all of my colleagues, whether you are
supporters of H.R. 1544 or still undecided, to keep these concerns in
mind as you review the merits of this legislation, again. Ask yourself
the question, why should we harm the civil rights of the many in order
to expedite or eliminate the interaction with the judicial process for
the few? There must be a better way to achieve this goal. So I ask you
to oppose H.R. 1544 as it stands, and pass the Jackson-Lee Amendment.
Mr. NADLER. Mr. Chairman, reclaiming my time, I want to, first of
all, commend the gentlewoman from Texas (Ms. Jackson-Lee) for the work
she has done in bringing this problem to the attention of the committee
and now to the House, and I wish that the amendment that I sponsored
that was defeated a few moments ago had been passed. It would have
taken, this is one of the problems that it would have taken care of,
and one source of opposition to the bill in chief that would have been
removed, and I hope that as we move forward with this bill in
conference, if it passes the House, that we can work to alleviate the
problems presented or illustrated by this amendment and by the
amendment that I offered earlier so that we have a bill that in the end
we can support, especially since we will need that support on final
passage.
The CHAIRMAN pro tempore. The time of the gentleman from New York
(Mr. Nadler).
(By unanimous consent, Mr. Nadler was allowed to proceed for 30
additional seconds.)
Mr. NADLER. Mr. Chairman, we will need all that bipartisan support in
both Houses at the end of the day.
So I look forward to working with the gentlewoman and I hope with the
majority in trying to work these problems out. In the meantime, I urge
the adoption of this amendment as resolving one of the problems with
the bill, and even with this amendment adopted, the bill will still
deal with the core problem with the 98 percent for which it was, of the
problem for which it was designed, and it would be more likely to be
passed. So I urge the adoption of the amendment.
The CHAIRMAN pro tempore (Mr. Snowbarger). The question is on the
amendment offered by the gentlewoman from Texas (Ms. Jackson-Lee).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to House Resolution 367, further
proceedings on the amendment offered by the gentlewoman from Texas (Ms.
Jackson-Lee) will be postponed.
Amendment Offered by Ms. Jackson-Lee of Texas
Ms. JACKSON-LEE of Texas. Mr. Chairman, I offer an amendment.
The Clerk read as follows:
Amendment offered by Ms. Jackson-Lee of Texas:
Page 5, insert after line 20 the following:
SEC. 4. APPLICATION.
The amendments made by sections 2 and 3 shall not apply to
an agency in its actions involving a commercial transaction
with a business located in a foreign country.
Ms. JACKSON-LEE of Texas. Mr. Chairman, let me first say that we all
want to see positive results coming from this legislation, but my
concern is that I think it makes no sense to limit the ability of
critical government agencies such as the National Labor Relations
Board, as I spoke earlier, and the Environmental Protection Agency,
along with our civil rights agencies, not to be able to protect the
rights of our citizens, and of course that is the basis of the Nadler
amendment previously and my amendment that was just on the floor.
This amendment that I now have goes to a much narrower point. That
point deals with the provisions that apply to an agency dealing with
the foreign governments and foreign businesses. Whatever justification
there might be for forcing line adherence to legal precedents when the
cases involve U.S. citizens and companies, there is no reason for these
entities to be forbidden when it comes to a foreign company. This
simply says that someone who is here in America has a right to have the
protection of their government when dealing with a foreign entity, one
that is larger, one that is stronger, one that has the backing of its
government. That is, I think, a clear, a clear principle that we should
advocate, is that our citizens have our protection both by the agencies
and both by the courts.
For example, it is a possibility in a trade or a dumping dispute
against a foreign company. We need to make sure the Commerce Department
or other agency is fully armed to protect American jobs and American
goods, and if the Agriculture Department is seeking to rid the country
of disease through foreign products, that we need to make sure that we
are fully prepared to protect American consumers.
This Nation faces a record and growing deficit. In the wake of the
recent turn down or turmoil in Asia, we might expect, for example,
dumping claims. We do not want them, we hope we do not get them, but we
need to have the protection of the Federal Government and agencies who
again have the expertise to protect in these two-person situations.
When foreign companies fight our government in court, they are forced
to challenge work in adverse or work with adverse court precedence.
This will not be true of our government under this bill, however. All
my amendment does is create a level playing field with foreign
companies, and this should be done to protect our citizens.
Again, I say do we want justice to be slammed in the face of our
citizens or do we want them to have the opportunity to have the
expertise, the power of Federal agencies on their side in pressing the
point dealing with foreign companies? I hope that my colleagues will
join me in supporting a very fair and balanced amendment that simply
[[Page H598]]
says it gives our citizens, our businesses a working chance, a viable
chance, in a contest with foreign entities in this instance of doing
business in a new world order.
Mr. GEKAS. Mr. Chairman, I rise in opposition to the amendment
offered by the gentlewoman from Texas.
First of all, I want to thank the gentlewoman from Texas for bringing
to the attention of the Members another region of the Federal agency
world which is covered and should be covered by our bill; namely, the
Commerce Department. That is one example that I had not yet had the
time to show the Members should also be covered by our bill as well as
every other agency to provide equal justice for our citizens no matter
in which agency they appear to claim certain benefits and rights and
privileges.
Secondly, the Department of Commerce, for example, which is alluded
to by the gentlewoman from Texas (Ms. Jackson-Lee) could make decisions
that would disfavor American citizens as much as it could make
decisions that would benefit them. And so the gentlewoman says do not
bother with the courts, leave them out of it, let the Department of
Commerce decide finally what is best for the American citizen. Even if
a decision of the Commerce Department under her analogy finds against
the American citizen and says in favor of a foreign business entity.
Well, to make the decision as to whether it is beneficial to an
American citizen or not historically and constitutionally and
pragmatically and with the separation of powers in tact, it will be the
court that will determine the relative merits of the proposition to
either protect an American citizen against a foreign company or deny
benefits to an American citizen because of a foreign company. The court
will decide whether the Commerce Department decision is appropriate or
not.
But that is not the basic issue. The basic issue is should we allow
the Department of Commerce or any other agency in the Federal
Government to look at the court decision on a proposition that is now
before them that is lying on the desk for immediate action and say nuts
to that decision, we are going to apply what we think is the best
possible plan for this claimant even if it is to the detriment of that
claimant, and if it is depriving of a benefit, all the more reason why
they should acquiesce to the judgment of the court.
So we are saying follow the law, Commerce Department, follow the law,
and then if for some egregious invisible rationale we again determine,
my gosh, it might be disastrous to have to obey the law, then we can
revert to the language of the bill that we have so carefully crafted
that would allow those special circumstances in which it can be proved
that following the policy of the Commerce Department and the example
that the gentlewoman has given, to follow the policy would be strong
enough to allow an exception to the purview of the bill. That is the
way to approach this.
We believe that in order to provide equal justice at the start, we
also allow justice to prevail if some great wrong would be committed by
acquiescence to the law. But the way we have crafted it, that has to be
proved, it has to be demonstrated, and that is fair in itself.
I urge rejection of the amendment and adherence to final passage in
favor of the bill.
Mr. NADLER. Mr. Chairman, I move to strike the last word.
Mr. Chairman, I yield 2 minutes to the distinguished gentlewoman from
Texas (Ms. Jackson-Lee).
Ms. JACKSON-LEE of Texas. Mr. Chairman, I thank the ranking member
very much, and I appreciate the argument of the chairman, but let me
just simply say we do not allow foreign nationals to give monies to
politicians; why then should we allow foreign companies to fight our
Government in court, and they have a better leg up or greater standing
than our own Federal agencies to be able to protect or contest the
kinds of decisions that may negatively impact on our companies,
citizens, and others doing business.
As Fuji Film comes into our court system, it seems that they may have
a greater standing in our court system than our Department of Commerce
or Department of Justice. We are simply trying to protect jobs here. We
are trying to give an equal playing field, if my colleagues will, which
all of America believes in, give us an equal playing field, allow our
agencies to go in, but again with their expertise and fight fairly in
court against decisions that may be adverse to our business community,
to those who are doing international trade, to those who find
themselves in a litigation mode against a foreign entity, and why give
that foreign entity, if my colleagues will, the chance to come and
overcome our maybe small- or medium-sized business or maybe large
corporation who stands by themselves without the clout and protection
of the Federal Government.
One of the points that we have noted when we do international
business is that the governments of our foreign countries are
intimately interwoven in their countries doing business. Why then, if
we are in trouble here in the United States and have a litigation
matter without businesses should we not allow our clout, Federal
agencies, to be engaged in the fight and to have the ability to be in
the fight on an equal playing field.
Mr. Chairman, I ask my colleagues to join me in support on behalf of
American businesses and American citizens to give them an equal playing
field in the court of international thought, international business and
making sure that they have the clout of the American Government behind
them.
Announcement by the Chairman Pro Tempore
The CHAIRMAN pro tempore. The Chair informs the gentleman from New
York (Mr. Nadler) that although time is not controlled, the time has
passed. He cannot yield blocks of time when we are in the Committee of
the Whole, but must remain on his feet under the five minute rule.
The gentleman from New York (Mr. Nadler) is recognized for the
remainder of his time.
Mr. NADLER. Mr. Chairman, I want to simply observe that this
amendment, like the last amendment offered by the distinguished
gentlewoman from Texas, is a worthy amendment and improves the bill. I
urge its adoption. I urge all my colleagues to vote for it.
The CHAIRMAN pro tempore. The question is on the amendment offered by
the gentlewoman from Texas (Ms. Jackson-Lee).
The question was taken; and the Chairman pro tempore announced that
the noes appeared to have it.
Ms. JACKSON-LEE of Texas. Mr. Chairman, I demand a recorded vote.
The CHAIRMAN pro tempore. Pursuant to House Resolution 367, further
proceedings on the amendment offered by the gentlewoman from Texas (Ms.
Jackson-Lee) will be postponed.
Mr. GEKAS. Mr. Chairman, I move that the Committee do now rise.
The motion was agreed to.
Accordingly, the Committee rose; and the Speaker pro tempore (Mr.
Combest) having assumed the chair, Mr. Snowbarger, Chairman pro tempore
of the Committee of the Whole House on the State of the Union, reported
that that Committee, having had under consideration 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, had come to no resolution
thereon.
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