Human Rights News

Letter Opposing Consent Decree Fairness Act

Dear Senator or Representative:  

" Rather than encouraging litigants to enter into voluntary, enforceable settlements, the bill almost compels plaintiffs to go to trial so that they may obtain litigated judgments that cannot be so easily modified. "
Leadership Conference on Civil Rights spokesperson
On behalf of the undersigned organizations, we write to urge you to oppose the Federal Consent Decree Fairness Act (S. 489/ H.R.1229), recently introduced by Senator Lamar Alexander (R-TN) and Representative Roy Blunt (R-MO). If enacted, this bill would eviscerate a crucial means of resolving meritorious claims involving state and local governments without expensive and time-consuming litigation. In addition, the proposed legislation would impose grossly unfair burdens on the federal government, the federal courts, and beneficiaries of a wide array of federal protections in areas such as environmental, consumer, health care, and civil rights laws.  
The Proposed Legislation Would Virtually Eliminate Consent Decrees Involving State and Local Governments  
The Federal Consent Decree Fairness Act allows a state or local government to file a motion to vacate or modify a consent decree four years after the decree is entered or after the election of a new state or local official. Under the legislation, a consent decree will lapse if the federal court overseeing the decree does not rule on this issue within 90 days. The bill’s language creates an ominous situation for federal and private plaintiffs, who could be required to re-prove their entire case every four years or every time the voters elect a new administration. In addition, the 90-day period for a court to issue a ruling would place undue pressure on an already overburdened federal judicial system. The legislation would also punish plaintiffs unjustly if a federal court is unable to issue a decision within the 90-day period.  
The proposed bill would eliminate the value and effectiveness of consent decrees by restricting the ability of the litigating parties to enter into settlement agreements. Under the proposed legislation, at the time a defendant moves for dissolution or modification of a consent decree, a plaintiff can keep the decree in place only by showing that his or her federal rights continue to be violated. This burden of proof provision—which reverses decades of existing law that places the burden on the defendants—creates an additional disincentive for plaintiffs to settle because plaintiffs, knowing that they will be effectively forced to prove their case at trial on the merits after either four years or a change in administration, will justifiably question what benefits they will receive through consent decrees. The proposed bill also provides defendants with a new incentive to “run out the clock.” Rather than encouraging litigants to enter into voluntary, enforceable settlements, the bill almost compels plaintiffs to go to trial so that they may obtain litigated judgments that cannot be so easily modified. By creating disincentives to settle and forcing matters to contested litigation, the bill will further clog federal courts.  
Moreover, with many consent decrees, a four-year time limit is a woefully inadequate period to correct the history of government practices or policies that created the harm. In many cases, the ability to fulfill the terms of a consent decree within the artificial time period imposed by the bill may either be impossible to achieve, or, require drastic steps that would not be desirable to the defendants or the plaintiffs.  
The Proposed Legislation Purports to Fix a Problem That Does Not Exist  
Existing federal law already permits the modification and dissolution of consent decrees. The courts currently apply a generous and flexible standard for allowing state and local governments to modify or terminate existing consent decrees. A party need only show that a significant unanticipated change in circumstances warrants revision of the decree. Examples of changed circumstances include a change in underlying law, when the goals of the consent decree have been achieved or when a consent decree proves to be detrimental to the public interest.  
S. 489/H.R. 1229 inappropriately seeks to overturn Frew v. Hawkins, a recent unanimous decision by the U.S. Supreme Court that affirms flexible, common-sense standards for administering consent decrees involving state and local governments.1 In Frew, the U.S. Supreme Court noted, “If the State establishes reason to modify the decree, the court should make the necessary changes; where it has not done so, however, the decree should be enforced according to its terms.”2 The Supreme Court emphasized in Frew that state and local governments have a court remedy that allows them to modify or terminate a consent decree when a significant change in circumstances has occurred.  
The Proposed Legislation Would Affect a Wide Range of Litigation and Have a Damaging Effect on Many Communities  
The bill would affect most litigation brought by the U.S. Department of Justice (DOJ) against state and local governments, as well as litigation brought by private parties. For example, it would allow local governments to avoid implementation of consent decrees that govern long-standing and productive efforts by the DOJ to bring water, sewage, and air pollution control systems into compliance with federal environmental standards. The bill would complicate current and future efforts to ensure that billions of dollars in federal funds for transportation, economic development, and other programs are spent in conformance with applicable requirements specified by Congress. Enforcement of the Voting Rights Act would be very burdensome. The bill would also impact discrimination cases involving employment, housing, health care, state and local hospitals, universities, or other institutions that receive federal Title VI and Title IX funding and adversely affect agreements that have been protecting children’s health, safety, and education for years. Indeed, the bill would negatively affect a wide spectrum of cases brought to secure federal rights in federal court against state and local governments.  
The bill, if enacted, would potentially result in the dissolution of the following constructive consent decrees:  
  • United States of America v. City of Los Angeles3—consent decree entered following a DOJ investigation of allegedly widespread police corruption, including brutality and planting of evidence, in the Rampart Division of the Los Angeles Police Department. The decree, which was negotiated in 2000 and entered in 2001, creates procedures for, among other things, insuring that those arrested are examined for injuries (para 73) and that citizens have a viable mechanism for filing complaints against the LAPD (para 74). James Hahn was the City Attorney at the time decree was entered, and then became the Mayor of Los Angeles. Thus, if S. 489/H.R. 1229 were law, the City could now seek relief from the decree while offering no evidence that anything has changed since it agreed to the decree.
  • United States v. Mercer County, NJ4—earlier this year, DOJ entered into a consent decree to settle a case it brought against a county-run nursing facility under the Civil Rights of Institutionalized Persons Act, for alleged gross violations of the standards of care and responsibility expected of those caring for the elderly and disabled. DOJ entered into a consent decree with the county designed to put in place sufficient staffing and attention to insure that those in the county’s custody received the level and quality of care required by several federal statutes, including the Medicare and Medicaid Acts. Both sides declared that they were entering into the consent decree to avoid “protracted litigation.” If S. 489/H.R. 1229 were to become law, the county could have the decree vacated as soon as there is a change in county administration, thus exposing the elderly and disabled in its care to renewed danger while the federal government sought to once again prove its case.
  • United States and League of Women Voters of New Orleans, et al. v. Sewerage & Water Board of New Orleans, et al.—consent decree growing out of a suit5 by DOJ under the Clean Water Act for modernization of an antiquated sewage collection system that spewed raw sewage onto city streets. The long-term clean-up commitment by the City could be severely compromised by this legislation.
Contrary to views of the bill’s supporters, consent decrees are an efficient means for willing parties to enter into a carefully negotiated agreement without litigation. Consent decrees reflect the litigating parties’ reasoned judgment that a consensual resolution is preferable to full-blown litigation. The Federal Consent Decree Act misrepresents the consensual nature of consent decrees and the well-established legal precedent on the practicality and efficiency of this settlement tool. Consistent with this precedent, federal courts currently apply a reasonable and flexible standard when asked to modify or dissolve consent decrees. Congress should not enact legislation simply to correct what some perceive as a few onerous consent decrees. Therefore, we urge you to oppose this bill and any similar amendments.  
David Certner, Director of Federal Affairs  
Benjamin Wolf, Associate Legal Director  
ACLU of Illinois  
Ramona Ripston, Executive Director  
ACLU of Southern California  
Janis Spire, Executive Director  
Alliance for Children's Rights  
Nan Aron, President  
Alliance for Justice  
Helena R. Berger, Chief Operating Officer  
American Association of People with Disabilities  
Laura W. Murphy, Director  
American Civil Liberties Union – Washington Legislative Office  
Scott Barstow, Director of Public Policy and Legislation  
American Counseling Association  
Barry Lynn, Executive Director  
Americans United for Separation of Church and State  
Janna Starr, Director of Disability Rights, Family and Technology Policy  
The Arc and United Cerebral Palsy Disability Policy Collaboration  
Lewis Golinker, Esq., Director  
Assistive Technology Law Center – Ithaca, NY  
Robert Bernstein, Ph.D., Executive Director  
Bazelon Center for Mental Health Law  
Tom Gerety, Executive Director & Brennan Center Professor  
Brennan Center for Justice at New York University School of Law  
Robin G. Steinberg, Executive Director  
The Bronx Defenders  
Terri L. Stangl, Executive Director  
Center for Civil Justice  
Patricia B. Nemore, Senior Policy Attorney  
Center for Medicare Advocacy, Inc.  
Robert C. Fellmeth, Executive Director  
Children's Advocacy Institute  
Miriam Krinsky, Executive Director  
Children's Law Center of Los Angeles  
Susan L. Gates, General Counsel  
Children's Defense Fund  
Marcia Robinson Lowry, Executive Director  
Children's Rights  
Shirley Bergert, Public Benefits Task Force Director  
Connecticut Legal Services, Inc.  
Philip Warburg, President  
Conservation Law Foundation – Boston  
Philip Fornaci, Executive Director  
DC Prisoners Legal Services, Inc  
Rodger Schlickeisen, President  
Defenders of Wildlife  
James Cox, Legislative Counsel  
Earth Justice  
Craig B. Futterman, Associate Clinical Professor of Law  
Edwin F. Mandel Legal Aid Clinic – University of Chicago Law School  
Alexandra K. Finucane, Esq.,VP of Legal and Government Affairs  
Epilepsy Foundation  
Robert Sable  
Greater Boston Legal Services, Inc.  
Greg Bass , Litigation Director  
Greater Hartford Legal Aid – CT  
Anne Erickson, Executive Director  
Greater Upstate Law Project/  
Public Interest Law Office of Rochester – Albany, NY  
Jamie Fellner, Director U.S. Program  
Human Rights Watch  
Sara Weinstein, Low-income Access Project Coordinator  
The Institute for Reproductive Health Access  
Robert Rubin, Legal Director  
Lawyers' Committee for Civil Rights of the San Francisco Bay Area  
Barbara Arnwine, Executive Director  
Lawyers’ Committee for Civil Rights Under Law  
Wade Henderson, Executive Director  
Leadership Conference on Civil Rights  
Lisalyn R. Jacobs, Vice President for Government Relations  
Legal Momentum (formerly NOW Legal Defense)  
Kenneth Schorr, Executive Director  
Legal Services of Southern Piedmont – Charlotte, NC  
Michael Ferrera, Executive Director  
LifeWorks Mentoring –W. Hollywood, CA  
Barbara Lott-Holland, Co-Chair  
Los Angeles Bus Riders Union  
Eric Mann, Director  
Los Angeles Labor/Community Strategy Center  
Cyn Yamashiro, Director  
Loyola Law School Center for Juvenile Law and Policy  
Gary Weston, Executive Director  
Maryland Disability Law Center  
Allan Rodgers, Executive Director  
Massachusetts Law Reform Institute  
James Preis, Executive Director  
Mental Health Advocacy Services, Inc – Los Angeles  
Ann Marie Tallman, President & General Counsel  
Mexican American Legal Defense and Educational Fund  
Hilary O. Shelton, Director  
NAACP Washington Bureau  
Karen K. Narasaki, President and Executive Director  
National Asian Pacific American Legal Consortium  
Kathleen H. McGinley, Ph.D., Deputy Executive Director for Public Policy National Association of Protection and Advocacy Systems  
Elizabeth J Clark, PhD, ACSW, Executive Director  
National Association of Social Workers  
Patrick Gardner, Deputy Director  
National Center for Youth Law  
John Lancaster, Executive Director  
National Council on Independent Living  
Janet Murguia, President and CEO  
National Council of La Raza  
Marissa M. Tirona, Program Director  
National Employment Lawyers Association  
Shanna L. Smith, President and CEO  
National Fair Housing Alliance  
Laurence Lavin, Director  
National Health Law Program, Inc.  
Michael Avery, President  
National Lawyers Guild  
Don Saunders, Director of Civil Legal Services  
National Legal Aid & Defender Association  
Debra Ness, President  
National Partnership for Women & Families  
Simon Lazarus, Public Policy Counsel  
National Senior Citizens Law Center  
Stephanie J. Jones, Executive Director  
National Urban League Institute for Opportunity and Equality  
Dina Lassow, Senior Counsel  
National Women’s Law Center  
Karen Wayland, Legislative Director  
Natural Resources Defense Council  
Patricia Kaplan, Executive Director  
New Haven Legal Assistance Association  
Ralph G. Neas, President  
People For the American Way  
Philip Tegeler, Executive Director  
Poverty & Race Research Action Council  
Don Specter, Director  
Prison Law Office – California  
Paul Wright, Editor  
Prison Legal News  
Karen L. Murtagh-Monks, Litigation Coordinator  
Prisoners' Legal Services of New York  
Joan Claybrook, President  
Public Citizen  
Debra Gardner, Legal Director  
Public Justice Center – Baltimore  
Paul Freese, Jr., Director of Litigation & Advocacy  
Public Counsel – Los Angeles  
Cesar Perales, Executive Director  
Puerto Rican Legal Defense & Education Fund  
Rabbi David Saperstein, Director and Counsel  
Religious Action Center of Reform Judaism  
Meredith Dodson, Director of Domestic campaigns  
J. Richard Cohen, President & CEO  
Southern Poverty Law Center  
Javier N. Maldonado, Executive Director  
Texas Lawyers' Committee for Civil Rights  
Scott Cummings, Acting Professor of Law  
UCLA School of Law  
Jeremy Chwat, Director of Public Policy  
United Spinal Association  
(formerly Eastern Paralyzed Veterans Association)  
Belinda Belcher, Executive Director  
Uptown People's Law Center – Chicago  
Helen Gonzales, Policy Director  
Deborah Stein, Director of Federal Policy and Advocacy  
Voices for America's Children  
Timothy Stoltzfus Jost, Robert L. Willett Family Professor  
Washington & Lee University School of Law  
Eve Hill, Executive Director  
Western Law Center for Disability Rights  
Melissa Josephs, Director of Equal Opportunity Policy  
Women Employed – Chicago  
Kimberly Lewis, Staff Attorney  
Western Center on Law and Poverty  

[1]Frew v. Hawkins, 540 U.S. 431 (2004).  
[2]Id. at 442.  
[3](C.D. Cal. - no case number given), at  
[4](D.N.J.) (consent decree at  
[5]United States and League of Women Voters of New Orleans, et al. v. Sewerage & Water Board of New Orleans, et al., Civil Action No. 93-3212, 63 Fed. Reg. 26825-26826 (May 8, 1998).