around the bar
February 16, 2012

ABA Urges Defeat of Anti-Consent Decree Bill

A bill in the U.S. House of Representatives, if enacted, could be the “death knell” for federal court consent decrees to which state or local governments are parties, according to the _, which is recommending its defeat.

H.R. 3041, the Federal Consent Decree Fairness Act, “would permit state and local governments to challenge and re-litigate—for any reason—existing federal court consent decrees to which they are a party,” the ABA Governmental Affairs Office wrote in a Feb. 1 letter [PDF] to the House Judiciary Subcommittee on Courts, Commercial and Administrative Law, which is considering the bill.

If enacted, “this legislation would strongly discourage settlements, encourage expensive and protracted litigation, and create undue burdens on the federal court system,” the letter stated.

The ABA urged members of Congress to oppose the bill and defended the use of consent decrees.

“For many years, consent decrees have been very helpful in resolving a wide variety of claims brought by the federal government, including suits to preserve public health and safety, enforce environmental regulations, and protect individual rights,” the ABA wrote.

The letter noted that consent decrees, which are essentially settlement agreements that courts then approve and enter as final judgments, are beneficial to both plaintiffs and defendants, especially in complex disputes. Consent decrees are a useful tool that allows defendants “to avoid the enormous expenses, delays, and liability risks associated with protracted litigation,” the letter stated.

The ABA bases its opposition to H.R. 3041 on policy adopted by the ABA House of Delegates in February 2006. The policy and related background report [PDF] supports the use of consent decrees as an important and effective means of resolving litigation and opposes legislation that constrains their use when state, local or territorial governments are parties.

No further action has been scheduled on the bill since hearings were held Feb. 3. Similar legislation failed to pass during the 109th and 110th Congresses when the ABA worked closely with a coalition of more than 80 legal and public policy organizations to defeat the measures.