Text: H.R.469 — 115th Congress (2017-2018)All Information (Except Text)

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Referred in Senate (10/26/2017)


115th CONGRESS
1st Session
H. R. 469


IN THE SENATE OF THE UNITED STATES

October 26, 2017

Received; read twice and referred to the Committee on the Judiciary


AN ACT

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.

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

SECTION 1. Short title; table of contents.

(a) Short title.—This Act may be cited as the “Congressional Article I Powers Strengthening Act”.

(b) Table of contents.—The table of contents of this Act is as follows:


Sec. 1. Short title; table of contents.

Sec. 101. Short title.

Sec. 102. Definitions.

Sec. 103. Consent decree and settlement reform.

Sec. 104. Motions to modify consent decrees.

Sec. 105. Effective date.

Sec. 201. Short title.

Sec. 202. Judgment fund transparency.

Sec. 301. Short title.

Sec. 302. Congressional intervention as of right.

Sec. 303. Intervention and amicus authority for house of representatives.

SEC. 101. Short title.

This title may be cited as the “Sunshine for Regulations and Regulatory Decrees and Settlements Act of 2017”.

SEC. 102. Definitions.

In this title—

(1) the terms “agency” and “agency action” have the meanings given those terms under section 551 of title 5, United States Code;

(2) the term “covered civil action” means a civil action—

(A) seeking to compel agency action;

(B) alleging that the agency is unlawfully withholding or unreasonably delaying an agency action relating to a regulatory action that would affect the rights of—

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government; and

(C) brought under—

(i) chapter 7 of title 5, United States Code; or

(ii) any other statute authorizing such an action;

(3) the term “covered consent decree” means—

(A) a consent decree entered into in a covered civil action; and

(B) any other consent decree that requires agency action relating to a regulatory action that affects the rights of—

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government;

(4) the term “covered consent decree or settlement agreement” means a covered consent decree and a covered settlement agreement; and

(5) the term “covered settlement agreement” means—

(A) a settlement agreement entered into in a covered civil action; and

(B) any other settlement agreement that requires agency action relating to a regulatory action that affects the rights of—

(i) private persons other than the person bringing the action; or

(ii) a State, local, or tribal government.

SEC. 103. Consent decree and settlement reform.

(a) Pleadings and preliminary matters.—

(1) IN GENERAL.—In any covered civil action, the agency against which the covered civil action is brought shall publish the notice of intent to sue and the complaint in a readily accessible manner, including by making the notice of intent to sue and the complaint available online not later than 15 days after receiving service of the notice of intent to sue or complaint, respectively.

(2) ENTRY OF A COVERED CONSENT DECREE OR SETTLEMENT AGREEMENT.—A party may not make a motion for entry of a covered consent decree or to dismiss a civil action pursuant to a covered settlement agreement until after the end of proceedings in accordance with paragraph (1) and subparagraphs (A) and (B) of paragraph (2) of subsection (d) or subsection (d)(3)(A), whichever is later.

(b) Intervention.—

(1) REBUTTABLE PRESUMPTION.—In considering a motion to intervene in a covered civil action or a civil action in which a covered consent decree or settlement agreement has been proposed that is filed by a person who alleges that the agency action in dispute would affect the person, the court shall presume, subject to rebuttal, that the interests of the person would not be represented adequately by the existing parties to the action.

(2) STATE, LOCAL, AND TRIBAL GOVERNMENTS.—In considering a motion to intervene in a covered civil action or a civil action in which a covered consent decree or settlement agreement has been proposed that is filed by a State, local, or tribal government, the court shall take due account of whether the movant—

(A) administers jointly with an agency that is a defendant in the action the statutory provisions that give rise to the regulatory action to which the action relates; or

(B) administers an authority under State, local, or tribal law that would be preempted by the regulatory action to which the action relates.

(c) Settlement negotiations.—Efforts to settle a covered civil action or otherwise reach an agreement on a covered consent decree or settlement agreement shall—

(1) be conducted pursuant to the mediation or alternative dispute resolution program of the court or by a district judge other than the presiding judge, magistrate judge, or special master, as determined appropriate by the presiding judge; and

(2) include any party that intervenes in the action.

(d) Publication of and comment on covered consent decrees or settlement agreements.—

(1) IN GENERAL.—Not later than 60 days before the date on which a covered consent decree or settlement agreement is filed with a court, the agency seeking to enter the covered consent decree or settlement agreement shall publish in the Federal Register and online—

(A) the proposed covered consent decree or settlement agreement; and

(B) a statement providing—

(i) the statutory basis for the covered consent decree or settlement agreement; and

(ii) a description of the terms of the covered consent decree or settlement agreement, including whether it provides for the award of attorneys’ fees or costs and, if so, the basis for including the award.

(2) PUBLIC COMMENT.—

(A) IN GENERAL.—An agency seeking to enter a covered consent decree or settlement agreement shall accept public comment during the period described in paragraph (1) on any issue relating to the matters alleged in the complaint in the applicable civil action or addressed or affected by the proposed covered consent decree or settlement agreement.

(B) RESPONSE TO COMMENTS.—An agency shall respond to any comment received under subparagraph (A).

(C) SUBMISSIONS TO COURT.—When moving that the court enter a proposed covered consent decree or settlement agreement or for dismissal pursuant to a proposed covered consent decree or settlement agreement, an agency shall—

(i) inform the court of the statutory basis for the proposed covered consent decree or settlement agreement and its terms;

(ii) submit to the court a summary of the comments received under subparagraph (A) and the response of the agency to the comments;

(iii) submit to the court a certified index of the administrative record of the notice and comment proceeding; and

(iv) make the administrative record described in clause (iii) fully accessible to the court.

(D) INCLUSION IN RECORD.—The court shall include in the court record for a civil action the certified index of the administrative record submitted by an agency under subparagraph (C)(iii) and any documents listed in the index which any party or amicus curiae appearing before the court in the action submits to the court.

(3) PUBLIC HEARINGS PERMITTED.—

(A) IN GENERAL.—After providing notice in the Federal Register and online, an agency may hold a public hearing regarding whether to enter into a proposed covered consent decree or settlement agreement.

(B) RECORD.—If an agency holds a public hearing under subparagraph (A)—

(i) the agency shall—

(I) submit to the court a summary of the proceedings;

(II) submit to the court a certified index of the hearing record; and

(III) provide access to the hearing record to the court; and

(ii) the full hearing record shall be included in the court record.

(4) MANDATORY DEADLINES.—If a proposed covered consent decree or settlement agreement requires an agency action by a date certain, the agency shall, when moving for entry of the covered consent decree or settlement agreement or dismissal based on the covered consent decree or settlement agreement, inform the court of—

(A) any required regulatory action the agency has not taken that the covered consent decree or settlement agreement does not address;

(B) how the covered consent decree or settlement agreement, if approved, would affect the discharge of the duties described in subparagraph (A); and

(C) why the effects of the covered consent decree or settlement agreement on the manner in which the agency discharges its duties is in the public interest.

(e) Submission by the government.—

(1) IN GENERAL.—For any proposed covered consent decree or settlement agreement that contains a term described in paragraph (2), the Attorney General or, if the matter is being litigated independently by an agency, the head of the agency shall submit to the court a certification that the Attorney General or head of the agency approves the proposed covered consent decree or settlement agreement. The Attorney General or head of the agency shall personally sign any certification submitted under this paragraph.

(2) TERMS.—A term described in this paragraph is—

(A) in the case of a covered consent decree, a term that—

(i) converts into a nondiscretionary duty a discretionary authority of an agency to propose, promulgate, revise, or amend regulations;

(ii) commits an agency to expend funds that have not been appropriated and that have not been budgeted for the regulatory action in question;

(iii) commits an agency to seek a particular appropriation or budget authorization;

(iv) divests an agency of discretion committed to the agency by statute or the Constitution of the United States, without regard to whether the discretion was granted to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties; or

(v) otherwise affords relief that the court could not enter under its own authority upon a final judgment in the civil action; or

(B) in the case of a covered settlement agreement, a term—

(i) that provides a remedy for a failure by the agency to comply with the terms of the covered settlement agreement other than the revival of the civil action resolved by the covered settlement agreement; and

(ii) that—

(I) interferes with the authority of an agency to revise, amend, or issue rules under the procedures set forth in chapter 5 of title 5, United States Code, or any other statute or Executive order prescribing rulemaking procedures for a rulemaking that is the subject of the covered settlement agreement;

(II) commits the agency to expend funds that have not been appropriated and that have not been budgeted for the regulatory action in question; or

(III) for such a covered settlement agreement that commits the agency to exercise in a particular way discretion which was committed to the agency by statute or the Constitution of the United States to respond to changing circumstances, to make policy or managerial choices, or to protect the rights of third parties.

(f) Review by court.—

(1) AMICUS.—A court considering a proposed covered consent decree or settlement agreement shall presume, subject to rebuttal, that it is proper to allow amicus participation relating to the covered consent decree or settlement agreement by any person who filed public comments or participated in a public hearing on the covered consent decree or settlement agreement under paragraph (2) or (3) of subsection (d).

(2) REVIEW OF DEADLINES.—

(A) PROPOSED COVERED CONSENT DECREES.—For a proposed covered consent decree, a court shall not approve the covered consent decree unless the proposed covered consent decree allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

(B) PROPOSED COVERED SETTLEMENT AGREEMENTS.—For a proposed covered settlement agreement, a court shall ensure that the covered settlement agreement allows sufficient time and incorporates adequate procedures for the agency to comply with chapter 5 of title 5, United States Code, and other applicable statutes that govern rulemaking and, unless contrary to the public interest, the provisions of any Executive order that governs rulemaking.

(g) Annual reports.—Each agency shall submit to Congress an annual report that, for the year covered by the report, includes—

(1) the number, identity, and content of covered civil actions brought against and covered consent decrees or settlement agreements entered against or into by the agency; and

(2) a description of the statutory basis for—

(A) each covered consent decree or settlement agreement entered against or into by the agency; and

(B) any award of attorneys fees or costs in a civil action resolved by a covered consent decree or settlement agreement entered against or into by the agency.

SEC. 104. Motions to modify consent decrees.

If an agency moves a court to modify a covered consent decree or settlement agreement and the basis of the motion is that the terms of the covered consent decree or settlement agreement are no longer fully in the public interest due to the obligations of the agency to fulfill other duties or due to changed facts and circumstances, the court shall review the motion and the covered consent decree or settlement agreement de novo.

SEC. 105. Effective date.

This title shall apply to—

(1) any covered civil action filed on or after the date of enactment of this title; and

(2) any covered consent decree or settlement agreement proposed to a court on or after the date of enactment of this title.

SEC. 201. Short title.

This title may be cited as the “Judgment Fund Transparency Act of 2017”.

SEC. 202. Judgment fund transparency.

(a) Transparency requirement.—Section 1304 of title 31, United States Code, is amended by adding at the end the following:

“(d) (1) Unless the disclosure of such information is otherwise prohibited by law (other than section 552a of title 5, United States Code) or court order, the Secretary of the Treasury shall make available to the public on a website, as soon as practicable, but not later than 30 days after the date on which a payment under this section is tendered on or after January 1, 2016, the following information with regard to that payment:

“(A) The name of the specific agency or entity whose actions gave rise to the claim or judgment.

“(B) The name of the plaintiff or claimant.

“(C) The name of counsel for the plaintiff or claimant.

“(D) The amount paid representing principal liability, and any amounts paid representing any ancillary liability, including attorney fees, costs, and interest.

“(E) A brief description of the facts that gave rise to the claim.

“(F) The name of the agency that submitted the claim.

“(G) Any information available on reports generated by the Judgment Fund Payment Search administered by the Treasury Department.

“(2) In addition to the information described in paragraph (1), if a payment under this section is made to a foreign state on or after January 1, 2016, the Secretary of the Treasury shall make available to the public in accordance with paragraph (1), the following information with regard to that payment:

“(A) A description of the method of payment.

“(B) A description of the currency denominations used for the payment.

“(C) The name and location of each financial institution owned or controlled, directly or indirectly, by a foreign state or an agent of a foreign state through which the payment passed or from which the payment was withdrawn, including any financial institution owned or controlled, directly or indirectly, by a foreign state or an agent of a foreign state that is holding the payment as of the date on which the information is made available.

“(3) Not later than January 1, 2018, and annually thereafter, the Secretary of the Treasury shall make available to the public on the website described in paragraph (1)—

“(A) the total amount paid under this section during the year preceding the date of the report; and

“(B) the amount paid under this section during the year preceding the date of the report—

“(i) for attorney fees;

“(ii) for interest; and

“(iii) for all other payments.

“(4) In this subsection, the term ‘foreign state’ has the meaning given the term in section 1603 of title 28.

“(e) Except with regard to children under eighteen, the disclosure of information required in this section shall not be considered a ‘clearly unwarranted invasion of personal privacy’ for purposes of title 5, United States Code.

“(f) No payment may be made under this section to a state sponsor of terrorism, as defined in section 1605A(h) of title 28, or to an organization that has been designated as a foreign terrorist organization under section 219 of the Immigration and Nationality Act (8 U.S.C. 1189).”.

(b) Implementation.—The Secretary of the Treasury shall carry out the amendment made by this section by not later than 60 days after the date of enactment of this title.

SEC. 301. Short title.

This title may be cited as the “Article I Amicus and Intervention Act of 2017”.

SEC. 302. Congressional intervention as of right.

(a) Deadline for report on limitation on enforcement of laws.—Paragraph (2) of section 530D(b) of title 28, United States Code, is amended to read as follows:

“(2) under subsection (a)(1)(B), within such time as will reasonably enable the House of Representatives and the Senate to take action, separately or jointly, to intervene in a timely fashion in the proceeding, but in no event—

“(A) later than 30 days after the making of each determination; and

“(B) later than 21 days before any applicable deadline for filing any pleading necessary—

“(i) to defend or assert the constitutionality of the provision at issue; or

“(ii) to request review of any judicial, administrative, or other determination adversely affecting the constitutionality of such provision;”.

(b) Intervention as of right.—Section 530D of title 28, United States Code, is amended by adding at the end the following:

“(f) Intervention as of right.—The Senate or House of Representatives may intervene as of right in any proceeding referenced in subsection (a)(1)(B) in order to defend or assert the constitutionality of any provision of any Federal statute, rule, regulation, program, policy, or other law, or to appeal or request review of any judicial, administrative, or other determination adversely affecting the constitutionality of any such provision. Notwithstanding any otherwise applicable time limits or other provisions of law to the contrary, if such intervention is filed not later than 21 days after receipt of the notice required by this section the intervention shall be deemed timely and shall preserve the right of the Senate or House of Representatives to advance any applicable legal arguments in favor of the constitutionality of any such provision.”.

SEC. 303. Intervention and amicus authority for house of representatives.

Section 101 of the Legislative Branch Appropriations Act, 2000 (2 U.S.C. 5571), is amended—

(1) by striking subsection (d); and

(2) by inserting after subsection (b) the following (and redesignating succeeding subsections accordingly):

“(c) House of representatives intervention and amicus authority.—

“(1) ACTIONS OR PROCEEDINGS.—When directed to do so in accordance with the Rules of the House of Representatives, the General Counsel of the House of Representatives shall intervene or appear as amicus curiae in the name of the House, or in the name of an officer, committee, subcommittee, or chair of a committee or subcommittee of the House, or other entity of the House, in any legal action or proceeding pending in any court of the United States or of a State or political subdivision thereof.

“(2) INTERVENTION OR APPEARANCE AS OF RIGHT.—Intervention as a party or appearance as amicus curiae shall be of right and may be denied by a court only upon an express finding that such intervention or appearance is untimely and would significantly delay the pending action or, in the case of intervention, that standing to intervene is required and has not been established under section 2 of article III of the Constitution of the United States.

“(3) RULE OF CONSTRUCTION.—Nothing in this section shall be construed to confer standing on any party seeking to bring, or jurisdiction on any court with respect to, any civil or criminal action against Congress, either House of Congress, a Member of Congress, a committee or subcommittee of a House of Congress, any office or agency of Congress, or any officer or employee of a House of Congress or any office or agency of Congress.”.

Passed the House of Representatives October 25, 2017.

    Attest: karen l. haas,   
    Clerk