[Congressional Record Volume 144, Number 150 (Tuesday, October 20, 1998)]
[Senate]
[Pages S12720-S12721]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]

      By Mr. CAMPBELL:
  S. 2641. A bill to prevent Federal agencies from pursuing policies of 
unjustifiable nonacquiescence in relitigation of precedents established 
in the Federal judicial courts; to the Committee on the Judiciary.


                   THE FEDERAL AGENCY COMPLIANCE ACT

  Mr. CAMPBELL. Mr. President, today I introduce the Federal Agency

[[Page S12721]]

Compliance Act. This legislation is the redraft of prior legislation 
that I introduced, S. 1166, the Federal Agency Compliance Act, which 
was the subject of a hearing on June 15, 1998 before the Senate 
Judiciary Subcommittee on Administrative Oversight and the Courts, 
chaired by Senator Grassley.
  At the June 15 hearing, Lynn Conforti from Denver, CO, testified on 
behalf of the thousands of Social Security disability claimants, who 
are denied their claims not on the basis of Federal circuit court 
opinions but on the basis of agency policy that is contrary to Federal 
law. In November 1996, Ms. Conforti was forced to quit work because of 
severe pain due to failed surgery on her back to correct corvature of 
the spine, scoliosis. Until that time. Ms. Conforti had been employed 
her entire life since she was 19 years old and paid her FICA taxes into 
the Social Security Disability Program for 27 years. At the hearing, 
she described her 32-month struggle with the Social Security 
Administration that had twice denied her benefits, because they did not 
give due weight to the medical opinion of her treating physicians or 
the severity of her pain, contrary to Federal court decisions. Ms. 
Conforti described her physical ordeal, having two back surgeries, 
removing 10 discs, two sets of surgical rods and screws, 38 days in the 
hospital, 334 physical therapy visits, 128 physician visits, and 16 
months of chronic pain. Despite her disability, Ms. Conforti hopes to 
be able to return to work in the future, but she needs the disability 
resources to continue rehabilitation efforts.
  Finally, in July 1998, Ms. Conforti was awarded her disability 
benefits by an administrative law judge (ALJ) in an on-the-record 
determination. The ALJ, unlike lower level decisionmakers at SSA, was 
able to apply Federal court decisions to her case. For this reason, the 
bill I am introducing today contains a provision included in a similar 
bill, H.R. 1544, that states that agency employees and ALJ's shall 
adhere to court of appeals precedent within the circuit, insuring that 
Ms. Conforti and thousands of other claimants will no longer be victims 
of agency intracircuit nonacquiescence with the passage of this 
legislation.
  I want to thank my colleagues, Senator Sessions and Senator Durbin, 
for their support for this important legislation and for their 
assistance in revising the legislation that I introduce today. Through 
the effort of Senator Sessions, the bill clarifies that adherence by 
agencies to court of appeals precedent shall be in civil cases and 
there is no prohibition on an agency relitigating a matter in more than 
three circuits if such relitigation is necessary. Also, Senator Durbin 
clarified that certain agencies, such as the National Labor Relations 
Board [NLRB], are not bound by adherence to court of appeals precedent 
when it is not certain that the court of appeals that established the 
NLRB precedent has exclusive jurisdiction over the matter or by another 
circuit. Again, I want to thank my colleagues for these clariications 
and for their support of the bill I introduce today.
  Intracircuit agency nonacquiescence to appellate precedent is not 
limited to the Social Security Administration, which was described at 
our hearing, but has been a long-term problem with all agencies and one 
that the Congress has struggled with since the early 1980's. Finally, 
we have a consensus on legislation that will solve this problem and 
return us to the rule of law that we expect and that citizens deserve. 
I ask my colleagues to support this legislation to ensure Federal 
agencies follow the law.
  Mr. President, I ask unanimous consent that the text of the 
legislation be printed in the Record.
  There being no objection, the bill was ordered to be printed in the 
Record, as follows:

                                S. 2641

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

     SECTION 1. PROHIBITING INTRACIRCUIT AGENCY NON-ACQUIESCENCE 
                   IN APPELLATE PRECEDENT.

       (a) Short Title.--This Act may be cited as the ``Federal 
     Agency Compliance Act''.
       (b) 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 civil 
     cases, 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 administrative 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 exclusively by the court of appeals that 
     established that precedent or a court of appeals for another 
     circuit;
       ``(2) the Government did not seek further review of the 
     case in which that precedent was first established, in that 
     court of appeals or the United States Supreme Court, 
     because--
       ``(A) neither the United States nor any agency or officer 
     thereof was a party to the case; or
       ``(B) the decision establishing that precedent was 
     otherwise substantially favorable to the Government; or
       ``(3) it is reasonable to question the continued validity 
     of that precedent in light of a subsequent decision of that 
     court of appeals or the United States Supreme Court, a 
     subsequent change in any pertinent statute or regulation, or 
     any other subsequent change in the public policy or 
     circumstances on which that precedent was based.''.
       (c) Clerical Amendment.--The table of sections for chapter 
     7 of title 5, United States Code, is amended by adding at the 
     end the following new item:

``707. Adherence to court of appeals precedent.''.
                                 ______