HR-10764-119
Referred to the House Committee on the Judiciary.
Sponsored by Gwen Moore (D-WI)
What it does
The bill would bar a compromise settlement or award of $250,000 or more, or any nonmonetary relief, to a "covered person" unless the person follows new procedures. Covered persons include the President, Vice President, cabinet members, senior White House staff (GS-15 pay or above), political appointees, certain special government employees, some former officials, their close family members, and affiliated entities. Such claims would have to be filed before a 3-judge D.C. federal district court panel, with appeals to the D.C. Circuit. Any proposed settlement would have to be published in the Federal Register for 60 days of public comment and filed with the court. Before approving it, the court would have to find it not against the public interest and set aside settlements it finds arbitrary, unfair, collusive, or larger than a non-covered plaintiff would expect.
Who benefits
Taxpayers, who may gain if scrutiny reduces settlements the government might otherwise pay to insiders. Government-oversight groups, journalists, and members of the public, who would get access to settlement terms, evidence, and communications between the parties. Courts and Congress, which would gain a clearer record on settlements involving senior officials. Non-covered plaintiffs, who would see covered plaintiffs' awards benchmarked against theirs.
Who is hurt
Covered officials, former officials, their family members, and affiliated businesses, who would face slower, more public, and less certain resolution of claims against the government. The Justice Department and executive agencies, which would lose flexibility to settle quietly and would take on added filing and response duties. The D.C. federal courts, which would take on extra workload from three-judge panels and special masters. Covered persons with privacy or sensitive-information concerns, since case briefs would have to describe communications between the parties. The text's broad definition may also reach lower-level political appointees and affiliated entities that have little influence over settlements.
Supporters argue
Supporters argue that settlements paid from the Treasury to senior officials, their families, and their businesses create a conflict of interest when the same executive branch defends the government and answers to the claimant. They contend that public notice, 60 days of comment, and independent judicial review, modeled on the Tunney Act process for antitrust consent decrees, would deter collusive deals and give taxpayers a transparent record of how public money is spent.
Opponents argue
Opponents argue that the bill singles out one class of claimants for special burdens, and that its broad definition of covered persons, including relatives and affiliated entities, would reach many people with legitimate claims. They contend that forcing claims into a single D.C. three-judge court, overriding the Court of Federal Claims' jurisdiction, and requiring disclosure of all party communications would chill settlement, raise litigation costs, and intrude on the Executive's authority to resolve litigation.
Constitutional context
Congress's power over claims against the United States and federal court jurisdiction rests on Article I (including the Appropriations Clause) and Article III, but requiring courts to approve settlements raises questions about the executive's litigation discretion under Article II. Cases such as United States v. Nixon (1974) and Morrison v. Olson (1988) concern separation of powers between the branches, and the bill's burdens on a defined group of claimants may also draw Fifth Amendment equal protection and due process arguments, though rational-basis review would likely apply. I am not certain of a single controlling case for court review of executive settlements.
Checks and balances
The bill would shift power from the executive branch (the Justice Department's settlement authority) to the federal judiciary and, through public comment, to the public, while Congress sets the rules; the executive's checks include arguing separation-of-powers objections in court and the usual appeals process.
Historical precedent
The Tunney Act of 1974 similarly requires publication, public comment, and a court finding of "public interest" before antitrust consent decrees are entered.