H. R. 3862
IN THE HOUSE OF REPRESENTATIVES
February 1, 2012
Mr. Quayle (for himself, Mr. Coble, and Mr. Ross of Florida) introduced the following bill; which was referred to the Committee on the Judiciary
To impose certain limitations on consent decrees and settlement agreements by agencies that require the agencies to take regulatory action in accordance with the terms thereof, and for other purposes.
This Act may be cited as the
Sunshine for Regulatory Decrees and
Settlements Act of 2012.
Consent decree and settlement reform
The provisions of this section apply in the case of—
a consent decree or settlement agreement in an action to compel agency action alleged to be unlawfully withheld or unreasonably delayed that pertains to a regulatory action that affects the rights of private parties other than the plaintiff or the rights of State or local governments—
brought under chapter 7 of title 5, United States Code; or
brought under any other statute authorizing such an action; and
any other consent decree or settlement agreement that requires agency action that pertains to a regulatory action that affects the rights of private parties other than the plaintiff or the rights of State or local governments.
In the case of an action to be resolved by a consent decree or a settlement agreement described in paragraph (1), the following shall apply:
The complaint in the action, the consent decree or settlement agreement, and any award of attorneys’ fees or costs shall be published, including electronically, in a readily accessible manner.
Until the conclusion of an opportunity for affected parties to intervene in the action, a party may not file with the court a motion for a consent decree or to dismiss the case pursuant to a settlement agreement.
In considering a motion to intervene by any party that would be affected by the agency action in dispute, the court shall presume, subject to rebuttal, that the interests of that party would not be represented adequately by the current parties to the action.
If the court grants a motion to intervene in the action, the court shall refer the action to its mediation program or a magistrate judge to facilitate settlement discussions, which shall include the plaintiff, the defendant agency, and the intervenors.
The defendant agency shall publish any proposed consent decree or settlement agreement for public comment before filing it with the court, allowing comment on any issue related to the matters alleged in the complaint or addressed or affected by the consent decree or settlement agreement.
The defendant agency shall—
respond to public comments received under paragraph (5); and
when moving that the court enter the consent decree or for dismissal pursuant to the settlement agreement—
submit to the court a summary of the public comments and agency responses;
certify the administrative record of the notice and comment proceeding to the court; and
make that record fully accessible to the court.
The court shall include in the judicial record the administrative record certified by the agency under paragraph (6).
If the consent decree or settlement agreement requires an agency action by a date certain, the agency shall, when moving for entry of the consent decree or dismissal based on the settlement agreement—
inform the court of any uncompleted mandatory duties to take regulatory action that the decree or agreement does not address;
how the decree or agreement, if approved, would affect the discharge of those duties; and
why the decree’s or agreement’s effects on the order in which the agency discharges its mandatory duties is in the public interest.
The court shall presume, subject to rebuttal, that it is proper to allow amicus participation by any party who filed public comments on the consent decree or settlement agreement during the court’s consideration of a motion to enter the decree or dismiss the case on the basis of the agreement.
The court shall ensure that the proposed consent decree or settlement agreement allow sufficient time and procedure for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rule making and, unless contrary to the public interest, the provisions of any executive orders that govern rule making.
The defendant agency may, at its discretion, hold a public hearing on whether to enter into the consent decree or settlement agreement. If such a hearing is held, then, in accordance with paragraph (6), a summary of the proceedings and certification of the hearing record shall be provided to the court, access to the hearing record shall be given to the court, and the full hearing record shall be included in the judicial record.
The Attorney General, in cases litigated by the Department of Justice, or the head of the defendant Federal agency, in cases litigated independently by that agency, shall certify to the court his or her approval of any proposed consent decree or settlement agreement that contains any of the following terms—
in the case of a consent decree, terms that—
convert into mandatory duties the otherwise discretionary authorities of an agency to propose, promulgate, revise or amend regulations;
commit the agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question, or commit an agency to seek a particular appropriation or budget authorization;
divest the agency of discretion committed to it by Congress or the Constitution, whether such discretionary power was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties; or
otherwise afford relief that the court could not enter on its own authority upon a final judgment in the litigation; or
in the case of a settlement agreement, terms that—
interfere with the agency’s authority to revise, amend, or issue rules through the procedures set forth in chapter 5 of title 5, United States Code, or any other statute or executive order prescribing rule making procedures for rule makings that are the subject of the settlement agreement;
commit the agency to expend funds that Congress has not appropriated and that have not been budgeted for the action in question; or
provide a remedy for the agency’s failure to comply with the terms of the settlement agreement other than the revival of the action resolved by the settlement agreement, if the agreement commits the agency to exercise its discretion in a particular way and such discretionary power was committed to the agency by Congress or the Constitution to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties.
Each agency shall submit an annual report to Congress on the number, identity, and content of complaints, consent decrees and settlement agreements described in paragraph (1) for that year, and any awards of attorneys fees or costs in actions resolved by such decrees or agreements.
Motions to modify consent decrees
When a defendant agency moves the court to modify a previously entered consent decree described under section 2 and the basis of the motion is that the terms of the decree are no longer fully in the public interest due to the agency’s obligations to fulfill other duties or due to changed facts and circumstances, the court shall review the motion and the consent decree de novo.
The provisions of this Act apply to any covered consent decree or settlement agreement proposed to a court after the date of enactment of this Act.