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Federal Programs Branch

The Civil Division’s Federal Programs Branch represents the Executive Branch in civil litigation in district courts throughout the United States. The Branch defends the Executive Office of the President, the Cabinet, other government officials, and virtually all of the approximately 100 federal agencies and departments of the Executive Branch in civil actions challenging the legality of government policies and decisions. 

Much of the Branch’s work arises in high-profile lawsuits involving cutting edge issues of administrative and constitutional law, including the scope of congressional and executive power. Many Branch cases involve Administrative Procedure Act (APA) claims that implicate billions of dollars in federal funds and affect the lives of millions of Americans, or otherwise have far-reaching public policy implications. For example, the following recent Supreme Court cases were handled by Branch attorneys at the district-court level: Nat’l Fed’n of Indep. Bus. v. Sebelius (“NFIB”), 567 U.S. 519 (2012) (challenging the legality of the Affordable Care Act); Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020) (challenging the attempted rescission of DACA policy); and Biden v. Missouri, 142 S. Ct. 647 (2022) (challenging healthcare workers’ COVID-19 vaccine mandate). The Branch also brings affirmative litigation to enjoin actions of state and local governments that conflict with the Supremacy Clause and to enforce a variety of agency statutory and regulatory powers.

Branch litigation is fast-paced and resource-intensive, and ranges from single-plaintiff actions to complex nationwide class actions. It requires coordination with involved agencies, the White House, and the Department of Justice’s leadership offices.

The Branch’s name originated in 1978, when the Civil Division’s litigation sections were reorganized and divided into three broad branches: Commercial, Torts, and Federal Programs. As their names suggest, the Commercial and Torts branches were directed to handle litigation arising principally from commercial activities and sounding in tort, respectively. The Civil Division’s remaining litigation would be handled by the Federal Programs Branch, including “litigation against cabinet officers, agencies or officials challenging their programmatic activities,” “enforcement litigation aimed at remedying statutory or regulatory violations,” “personnel actions involving Title VII,” and “litigation relating to the disposition of government records.”[1] The Civil Division and the Branch have undergone several reorganizations since 1978—including when the Branch’s appellate litigation function was separated to become the Appellate Staff and later when separate Branches were established to handle consumer protection and certain immigration litigation—but the Branch has kept its name.

The Branch is headed by three directors, who oversee a staff of approximately 110 attorneys and 25 support personnel. The Branch’s twelve litigation areas are managed by two deputy directors and twelve assistant directors. Branch attorneys can specialize their practice but are expected to, and typically maintain, case dockets across any of these litigation areas.

Area 1:  Affirmative Litigation, Regulatory Enforcement, & Third Party Subpoenas/Touhy Requests
Area 2:  Non-Discrimination Personnel Litigation
Area 3:  Government Information
Area 4:  Health and Education
Area 5:  Housing and Community Development
Area 6:  National Security, National Defense & Foreign Policy
Area 7:  Agriculture, Energy & Interior
Area 8:  Foreign and Domestic Commerce
Area 9:  Miscellaneous Litigation
Area 10:  Employment Discrimination Litigation
Area 11:  Social Security Administration and Departments of Labor, Transportation, and Veteran Affairs
Area 12:  Department of Justice & Department of Homeland Security

 


[1] See Memorandum from Barbara Allen Babcock, Assistant Att’y Gen, Civ. Div., to General Counsel, Dep’t of Just. (Aug. 23, 1978).

Area 1:  Affirmative Litigation, Regulatory Enforcement, & Third Party Subpoenas/Touhy Requests

This area primarily includes suits that the Branch brings for injunctive relief on behalf of federal agencies seeking to enforce statutory and regulatory programs (such as suits to enjoin state statutes and local ordinances that are preempted under federal law) or to enforce administrative subpoenas and government ethics law. See, e.g., United States v. Texas, 566 F. Supp. 3d 605 (W.D. Tex. 2021) (challenging state abortion law, including for alleged violations of Supremacy Clause and Fourteenth Amendment); United States v. Newman, 594 F. Supp. 3d 1(D.D.C. 2022) (granting summary judgment and imposing statutory maximum civil penalty of $61,585 for failure to file required financial disclosures under the Ethics in Government Act, 5 U.S.C. app. 4 § 101 et seq.); United States v. Washington, No. 4:18-cv-5189 (E.D. Wash.) (challenging state workers’ compensation statute for discriminating against federal contractors in contravention of the intergovernmental immunity doctrine), aff’d 971 F.3d 856 (9th Cir. 2020), rev’d and remanded, 142 S. Ct. 1976 (2022) (declaring workers’ compensation statute unconstitutional); United States v. King County, No. 2:20-cv-00203-RJB, 2023 WL 2711846 (W.D. Wash. Mar. 30, 2023) (enjoining a county executive order that discriminated against airport fixed base operators based on their relationship with the Federal Government).


Area 2:  Nondiscrimination Personnel Litigation

This area includes a wide variety of suits involving constitutional, statutory, regulatory, and other issues related to federal employment, such as challenges to the appointment and removal of officers and employees of the United States. Recent examples include Nat’l Treasury Empls. Union v. United States, 444 F. Supp. 3d 108 (D.D.C. 2020) (challenge related to 2018 government shutdown), and English v. Trump, 279 F. Supp. 3d 307 (D.D.C. 2018) (challenge to the President’s designation of an acting agency head). A key part of this practice includes  pre-litigation counseling in and defense of sensitive matters involving high-level officials and novel legal questions, including issues arising under the First Amendment and the Due Process Clause.


Area 3:  Government Information

This area includes litigation arising under myriad statutes, including the Freedom of Information Act (FOIA), the Privacy Act, the Government in Sunshine Act, the Federal Records Act, the Presidential Records Act, the Right to Financial Privacy Act, and the Federal Advisory Committee Act. It also includes suits involving assertions of executive privilege in response to congressional subpoenas. Recent examples of work in this area include FOIA litigation regarding requests for records related to the investigation into Russian interference in federal elections and for records related to the January 6 investigation, Privacy Act cases concerning alleged improper disclosure of information, Strzok v. Garland, No. 19-cv-2367 (D.D.C. filed Aug. 2, 2019), and alleged improper maintenance of computer systems, In re OPM Data Security Breach, 15-mc-1394 (D.D.C. filed Oct. 9, 2015), as well as executive privilege disputes, Trump v. Thompson, 573 F. Supp. 3d 1 (D.D.C. 2021).


Area 4:  Health and Education

This area includes all constitutional, statutory, and APA challenges to programs administered by the Department of Health and Human Services and its sub-agencies (like CDC and FDA) and the Department of Education.  Programs challenged include those implemented under the Medicare and Medicaid statutes, the Affordable Care Act, the Higher Education Act, Title IX, and the Individuals with Disabilities Education Act. Aside from NFIB and Biden v. Missouri, recent examples include Alabama Ass’n of Realtors v. U.S. Dep’t of Health & Hum. Servs., 141. S. Ct. 2485 (2021) (challenging CDC’s eviction moratorium), Adventist Health Sys./Sunbelt, Inc. v. HHS, 17 F.4th 793 (8th Cir. 2021) (challenging the revised policy for allocating donated kidneys to transplant patients), and Nebraska v. Biden, 52 F.4th 1044 (8th Cir. 2022) (challenging the President’s one-time student loan forgiveness plan).


Area 5:  Housing and Community Development

This area includes all housing and credit related cases filed against HUD, FEMA, USDA, VA, and other government agencies. Examples include class actions by residents of federally assisted public housing, challenges to HUD’s mortgage insurance program, claims involving the farm credit operations of the Farm Services Agency, and challenges to the government’s disaster assistance and flood insurance programs.


Area 6:  National Security, National Defense & Foreign Policy

This area includes challenges relating to the national security, national defense, and foreign policy of the United States, typically seeking declaratory and injunctive relief against agencies and officials sued in their official capacity. Litigation examples include protecting classified national security information, including through assertions of the state secrets privilege; defending activities of the U.S. Intelligence Community; defending military personnel policies and actions; addressing challenges to terrorist watchlist placement including the no-fly list; defending against challenges to national security investigative actions of the FBI; defending against habeas corpus challenges by national security detainees held by the military; and the defense of foreign policy interests of the United States in federal and state courts.


Area 7:  Agriculture, Energy & Interior

This area includes the programmatic litigation of the Departments of Agriculture (USDA), Interior, and Energy. USDA cases include matters pertaining to food safety and inspection, animal and plant health and inspection, agricultural marketing and promotion programs, and food programs such as Supplemental Nutrition Assistance Program benefits. The Branch’s Interior Department matters generally involve programs of the Bureau of Indian Affairs, programs in the former Pacific trust territories, and issues regarding the use of national parks. Energy Department matters include cases involving the transportation and disposition of nuclear materials and the Energy Star program.


Area 8:  Foreign and Domestic Commerce

This area involves constitutional and APA challenges to programmatic actions of the Departments of Treasury and Commerce that fall primarily within the ambit of foreign and domestic commerce. This often involves consultation with the Departments of State and Treasury (including the Office of Foreign Assets Control) on economic sanctions issues and defense of lawsuits challenging various aspects of sanctions. Litigation regarding the decennial Census also falls within this area. 


Area 9:  Miscellaneous Litigation

This area frequently involves First Amendment claims challenging actions by Congress or the Executive Branch. Typical client agencies in this area include the Federal Communications Commission, the Election Assistance Commission, the National Credit Union Administration, and the National Mediation Board. This area also includes actions against officials and entities from both the Legislative and Judicial Branches.       


Area 10:  Employment Discrimination Litigation

This area includes discrimination suits challenging government decisions, policies, practices, or regulations affecting employment, including suits based on Title VII, the Equal Pay Act, the Age Discrimination in Employment Act, the Rehabilitation Act, and Executive Order 11246, as well as nonemployment disability discrimination challenges. The Branch is typically responsible for nationwide class actions and actions that implicate agency-wide policies or raise issues of first impression. Examples of recent cases include Nat’l Ass’n of the Deaf v. Trump, 486 F. Supp. 3d 45 (D.D.C. 2020) (section 504 of the Rehabilitation Act action challenging absence of ASL interpreters for Covid briefings) and Hannah P. v. Haines, 577 F. Supp. 3d 429 (E.D. Va. 2021) (scope of damages for a claim of Family Medical Leave Act interference).


Area 11:  Social Security Administration and Departments of Labor, Transportation, and Veteran Affairs

This area comprises litigation involving the Departments of Labor, Veterans Affairs, and Transportation, as well as the Social Security Administration. The Branch generally defends new policy initiatives enacted by Congress or promulgated in regulations, or attacks on existing programs that have wide application or involve significant pecuniary exposure.


Area 12:   Department of Justice & Department of Homeland Security

This area includes litigation concerning Department of Justice programs, the Second Amendment, and the Department of Homeland Security. Litigation in this area often involves constitutional challenges, such as claims regarding border searches, immigration regulations, conditions of confinement in the federal corrections system, and law enforcement programs.

Updated April 19, 2023