4-1.100
Responsibilities of the Attorney General re Civil Litigation
|
The Office of the Attorney General was established by the Judiciary Act
of 1789. Act of September 24, 1789, 1 Stat. 73. Section 35 of that Act
vested the Attorney General (AG) with plenary authority to "prosecute and
conduct all suits in the Supreme Court in which the United States shall be
concerned" and to give advice and opinions upon questions of law when
requested by the President or the heads of various Departments.
The AG's statutory authority to conduct litigation to which the United
States, its departments or agencies is a party was expanded and more fully
developed by Congress in 1870 in the same legislation that provided for the
creation of the Department of Justice Act of June 22, 1870, 16 Stat. 162.
Among other things, the Act forbade the Secretaries of the Executive
Departments to employ other attorneys or outside counsel at government
expense, and required them to
call upon the Department of Justice ... and no counsel or attorney
fees shall hereafter be allowed to any person ... besides the
respective district attorneys. . . for services in such capacity to the
United States ... unless hereafter authorized by law, and then only
on the certificate of the Attorney-General that such services could not be
performed by the Attorney-General ... or the officers of the
Department of Justice....
Section 17, 16 Stat. 164.
The initial motivation for this legislation was the desire to centralize
the conduct and supervision of all litigation in which the government was
involved, as well as to eliminate the need for highly-paid outside counsel
when government-trained attorneys could perform the same function. Other
objectives of the legislation advanced in the congressional debates were to
ensure the presentation of uniform positions with respect to the laws of the
United States ("a unity of decision, a unity of jurisprudence in the
executive law of the United States"), and to provide the AG with authority
over lower court proceedings involving the United States so that litigation
would be better handled on appeal, and before the Supreme Court. See Cong.
Globe, 41st Cong., 2d Sess. 3035-39, 3065-66 (1870). See generally
Bell, "The Attorney General: The Federal Government's Chief Lawyer and
Chief Litigator, Or One Among Many?", 46 Fordham L. Rev. 1049 (1978); Key,
"The Legal Work of the Federal Government," 25 Va. L. Rev. 165 (1938).
See also United States v. San Jacinto Tin Co., 125 U.S. 273, 279
(1888) (Attorney General "undoubtedly the officer who has charge of the
institution and conduct of the pleas of the United States, and of the
litigation which is necessary to establish the rights of the government");
Perry v. United States, 28 Ct. Cl. 483, 491 (1893); Sutherland v.
International Insurance Co., 43 F.2d 969, 970-71 (2d Cir. 1930),
cert. denied, 282 U.S. 890 (1930).
The present statutory authority vesting plenary litigating authority
with the Attorney General, including 28 U.S.C. §§ 516, 519 and 5
U.S.C. § 3106, parallels that found in the 1870 Act. Except as
otherwise authorized by law, only attorneys of the Department of Justice
under the supervision of the Attorney General may represent the United
States or its agencies or officers in litigation. Counsel for other
government agencies may not be heard in opposition. See In re
Confiscation Cases, 74 U.S. 454, 458 (1868); The Gray Jacket, 72 U.S. 370,
371 (1866). Nor, in the absence of statutes to the contrary, may any suit
be brought on behalf of the United States except by the Attorney General or
an attorney under his/her superintendence. Sutherland v. International
Ins. Co., supra; F.T.C. v. Guignon, 390 F.2d 323 (8th Cir. 1968);
I.C.C. v. Southern Railway Co., 543 F.2d 534 (5th Cir. 1976), reh. en
banc denied, 551 F.2d 95 (5th Cir. 1977). The completeness of the Attorney
General's authority is further illustrated by the fact that once a matter
has been referred to the Department of Justice, the referring agency ceases
to have control over it. See United States v. Sandstrom, 22 F. Supp.
190, 191 (N.D. Okla. 1938).
See USAM 4-3.000 for additional
authorities with respect to the Attorney General's inherent authority to
compromise and close civil cases. Presidential Reorganization Plan No. 2 of
1950, 64 Stat. 1261, effected a Hoover Commission type reorganization
whereby all functions of other employees and units in the Department,
including Presidential appointees, were placed in the Attorney General to be
redelegated by him/her. See 28 U.S.C. § 509, which is of
continuing effectiveness, parallels the language of Reorganization Plan No.
2 and provides that "[a]ll functions of other officers of the Department of
Justice and all functions of agencies and employees of the Department of
Justice are vested in the Attorney General."
4-1.200
Responsibilities of the Assistant Attorney General for the Civil
Division
|
The Attorney General has delegated to the Assistant Attorney General for
the Civil Division authority for the conduct, handling or supervision of the
matters catalogued at 28 C.F.R. § 0.45, as well as those in 28
C.F.R. § 0.47 (alien property matters), 28 C.F.R. § 0.49
(international judicial assistance), 28 C.F.R. § 0.171(a)
(collection of judgments, fines, penalties and forfeitures), and 28 C.F.R.
§ 0.46, "all other civil litigation including claims by or
against the United States, its agencies or officers, in domestic or foreign
courts, special proceedings, and similar civil matters not otherwise
assigned." (emphasis supplied).
[cited in USAM 4-1.300]
4-1.210
Responsibilities of Organizational Units in the Civil Division
|
The majority of civil litigation in certain categories is handled in the
field by United States Attorneys (USA) under the ultimate and overall
responsibility of the Assistant Attorney General for the Civil Division.
The litigation not handled by United States Attorney's is assigned primarily
to components within the Civil Division, subject to the supervision and
direction of the Assistant Attorney General. These components are the Torts
Branch, Commercial Litigation Branch, Federal Programs Branch, Office of
Immigration Litigation, Office of Consumer Litigation, and the Appellate
Staff, each of which is directed by a Deputy Assistant Attorney General and
a management team of senior supervisory attorneys. The specific matters
assigned to each component, insofar as they may be significant to the United
States Attorney's, are summarized in USAM
4-1.211 through 4-1.217.
The compromise and closing authority exercised by the Assistant Attorney
General and subordinate Civil Division officials is described in USAM 4-3.110 through 4-3.140.
4-1.211
Torts Branch
|
The Torts Branch represents the United States, its agencies, and persons
sued in their individual capacities when government representation is
appropriate in suits sounding in tort. This includes not only suits under
the Federal Tort Claims Act, but also litigation under the Suits in
Admiralty and Public Vessels Act, as well as suits seeking money damages
against individual government employees. See 28 C.F.R.
§ 0.45. The Torts Branch also handles some contract matters in
the environmental area.
Four Staffs are responsible for the Torts Branch's litigative
responsibilities as follows:
Aviation and Admiralty
Post Office Box 14271
Benjamin Franklin Station
Washington, D.C. 20044-4271
(202) 616-4000
Constitutional and Specialized Torts
Post Office Box 7146
Benjamin Franklin Station
Washington, D.C. 20044
(202) 616-4140
Environmental Torts (formerly Environmental
& Occupational Disease Litigation) Staff
Post Office Box 340
Benjamin Franklin Station
Washington, D.C. 20044
(202) 616-4200
FTCA Staff
Post Office Box 888
Benjamin Franklin Station
Washington, D.C. 20044
(202) 616-4400
NOTE: Federal Torts Claims Act matters pertaining to aviation or
environmental issues are within the responsibilities of the Aviation and
Admiralty and Environmental Torts staffs, respectively. All other FTCA
matters are the responsibility of the FTCA Staff.
[cited in USAM 4-1.210]
4-1.212
Commercial Litigation Branch
|
The Commercial Litigation Branch is responsible for litigation arising
principally from a broad variety of governmental undertakings of a
"commercial" nature. The work of this Branch encompasses contract actions,
whether brought by or against the government; most affirmative monetary and
property claims (including foreclosures, reclamation claims, and actions to
recover damages for conversion of government property) arising from
government loan, grant, subsidy, and insurance programs; all non-tax
bankruptcy litigation; and a broad variety of other monetary litigation,
including patent or copyright infringement suits. The Branch is also
responsible for the government's affirmative civil claims arising from fraud
and bribery and other official misconduct, as well as for the collection of
civil fines and penalties in the areas assigned to the Civil Division.
Commercial Litigation Branch attorneys handle all commercial litigation in
the United States Court of Federal Claims, the United States Court of
Appeals for the Federal Circuit, and the United States Court of
International Trade. See 28 C.F.R. § 0.45. The Office of
Foreign Litigation is part of the Commercial Litigation Branch.
4-1.213
Federal Programs Branch
|
The Federal Programs Branch represents the United States, its agencies
and officials in a broad range of litigation involving the constitutionality
of federal statutes and the administration of statutory and other federal
programs by federal agencies. This includes litigation against Cabinet
officers and agencies under the Administrative Procedure Act, and
institution of affirmative suits to enforce federal laws or regulations or
to impose civil penalties. The Branch handles cases involving national
security and defense, personnel issues and discrimination claims, government
information and privacy suits, housing and human services cases, and
miscellaneous claims challenging other programmatic activities of agencies.
Most of the defensive litigation seeks injunctive or declaratory relief.
4-1.214
Appellate Staff
|
The Appellate Staff is responsible for the appellate work within the
jurisdiction of the Civil Division.
The basic functions performed by the Appellate Staff
include:
- Briefing and arguing cases in the United States Courts of
Appeals and various state appellate courts;
- Preparation of memoranda from the Assistant Attorney General to the
Solicitor General recommending for or against appeal, or for or against
rehearing en banc or certiorari in cases where the government has lost in
the lower courts;
- Preparation of draft merits briefs, petitions for certiorari, and briefs
in opposition in Civil Division cases in the Supreme Court;
- Providing advice and assistance to persons within the Civil Division,
other components of the Department of Justice, United States Attorneys'
offices, senior Department officials, and client agencies.
Contacts:
Robert E. Kopp, Director, (202) 514-3311
William G. Kanter, Deputy Director, (202) 514-4575
Assistant Director, Barbara C. Biddle, (202) 514-2541;
Robert S. Greenspan, (202) 514-5428;
Barbara L. Herwig, (202) 514-5425;
Leonard Schaitman, (202) 514-3441;
Michael Jay Singer, (202) 514-5432;
Anthony J. Steinmeyer, (202) 514-3388.
Appellate Litigation Counsel:
Douglas N. Letter, (202) 514-3602;
Mark B. Stern, (202) 514-5089.
Special Counsels:
John F. Daly, (202) 514-2496;
Marleigh D. Dover, (202) 514-3511;
John C. Hoyle, (202) 514-3469;
Jacob M. Lewis, (202) 514-5090;
Scott R. McIntosh, (202) 514-4052.
Senior Appellate Counsels:
Freddi Lipstein, (202) 514-4815;
Alfred R. Mollin, (202) 514-0236.
4-1.216
Office of Consumer Litigation
|
All functions and responsibilities formerly assigned to the Consumer
Affairs Staff of the Antitrust Division, including responsibility for
criminal cases (48 Fed. Reg. 9522 (1983)), are now the responsibility of the
Civil Division's Office of Consumer Litigation. The Office coordinates
district court litigation referred to the Department by the Federal Trade
Commission, the Food and Drug Administration, National Highway Traffic
Safety Administration, and the Consumer Product Safety Commission.
Pertinent statutes include the Federal Food, Drug and Cosmetic Act, Federal
Trade Commission Act, the Disclosure of Automobile Information Act, the
odometer requirements section of the Motor Vehicle Information and Costs
Savings Act, the Consumer Credit Protection Act, and the Consumer Product
Safety Act. See 28 C.F.R. § 0.45(j).
4-1.217
Office of Immigration Litigation
|
Because of the transfer from the Criminal Division (48 Fed. Reg. 9522
(1983)) of certain litigation arising under the Immigration and Nationality
Act, the Civil Division has established an Office of Immigration Litigation.
The Office has assumed the Department's responsibility for virtually all
civil litigation arising under the immigration laws, including court of
appeals petitions for review of final removal orders, citizenship and visa
disputes, matters pertaining to legalization and employer sanctions under
the Immigration Reform and Control Act, Pub.L. No. 99-603 (Nov. 6, 1986),
100 Stat. 3359, and cases arising under the enforcement reforms of the
Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No.
104-828, 110 Stat. 3009 (September 30, 1996). The Criminal Division retains
jurisdiction over criminal cases, denaturalization cases concerning persons
believed to have been involved in Nazi war crimes, civil INS forfeiture
actions and remission petitions, and certain other civil matters bearing on
criminal law enforcement. See 28 C.F.R. § 0.45(k). The
Civil Rights Division has responsibility for discrimination claims under the
1986 reforms.
4-1.300
Division of Responsibility Between the Civil Division and the United
States Attorneys for the Handling of Civil Litigation
|
The responsibility of the Attorney General for civil litigation which
has been delegated to the Assistant Attorney General for the Civil Division
(USAM 4-1.200), has in a great many
instances been redelegated to the United States Attorney's (28 C.F.R. §
0.168). Civil Division Directive No. 14-95, published in the Appendix to
Subpart Y immediately following 28 C.F.R. § 0.172, presently
details this redelegation of authority to United States Attorney's, 60 Fed.
Reg. 17456 (1995). Where authority for direct handling has been redelegated
to the United States Attorney's, they are authorized to take all necessary
steps to protect the interests of the United States without prior approval
of the Assistant Attorney General, Civil Division, or his/her representative
(see Directive 14-95 §§ 4(a) and 4(b)), except as may
otherwise be specified in a redelegation letter or as provided in Directive
14-95, §§ 4(a) and 4(b). Compromise or closing of such
redelegated cases is handled as set forth in
USAM 4-3.000.
A great number of matters not specifically delegated to the United
States Attorney will, in fact, be handled in the field by the United States
Attorney's Office (USAO) under the supervision of the Assistant Attorney
General of the Civil Division. Liaison between the United States Attorney's
and the Civil Division on such cases is discussed at
USAM 4-1.513. If an agency makes an emergency
referral or request as to the nondelegated case to the USAO, and the United
States Attorney is satisfied that the requested action is proper but time
does not permit contact with the Civil Division, protective action should be
taken by the United States Attorney. See
USAM 4-1.514.
4-1.310
Direct Referral Cases
Pursuant to section 4(a) of Civil Division Directive No. 14-95, 60 Fed.
Reg. 17456 (1995), and subject to the limitations of section 4(c), the
following civil actions under the jurisdiction of the Assistant Attorney
General, Civil Division, may be referred by the agency concerned directly to
the United States Attorney for handling in trial courts, and United States
Attorney's have been delegated the authority to take all necessary steps to
protect the interests of the United States, without prior approval of the
Assistant Attorney General, Civil Division, or his/her representatives.
Agencies may, however, if special handling is desired, refer these cases to
the Civil Division. Also, when constitutional questions or other significant
issues arise in the course of such litigation, or when an appeal is taken by
any party, the Civil Division must be consulted.
- Money claims by the United States (except penalties and forfeitures)
where the gross amount of the original claim does not exceed $1 million.
- Single family dwelling house foreclosures arising out of loans made or
insured by the Department of Housing and Urban Development, the Department
of Veteran Affairs and the Farmer's Home Administration, now called the
Rural Housing and Community Development Service (RHCDS).
- Suits to enjoin violations of, and to collect penalties under the
Agricultural Adjustment Act of 1938, 7 U.S.C. § 1376; Packers and
Stockyards Act, 7 U.S.C. §§ 203, 207(g), 213, 215, 216, 222,
and 228a; Perishable Agricultural Commodities Act, 1930, 7 U.S.C.
§§ 499c(a) and 499h(d); Egg Products Inspection Act, 21
U.S.C. § 1031, et seq.; Potato Research and Promotion Act,
7 U.S.C. § 2611, et seq.; Cotton Research and Promotion Act
of 1966, 7 U.S.C. § 2101, et seq.; Federal Meat Inspection Act, 21
U.S.C. § 601, et seq.; and Agricultural Marketing
Agreements Act of 1937, as amended, 7 U.S.C. § 671, et
seq.
- Suits by social security beneficiaries under the Social Security Act, 42
U.S.C. § 402, et seq.
- Social security disability suits under 42 U.S.C. § 423, et
seq.
- Black lung beneficiary suits under the Federal Coal Mine Health and
Safety Act of 1969, 30 U.S.C. § 921, et seq.
- Suits by Medicare beneficiaries under 42 U.S.C. § 1395ff.
- Garnishment actions authorized by 42 U.S.C. § 659 for child
support or alimony payments and actions for general debt under 5 U.S.C.
§ 5520a.
- Judicial review of actions of the Secretary of Agriculture under the
food stamp program, pursuant to the provisions of 7 U.S.C. § 2023
involving retail stores.
- Cases referred by the Department of Labor solely for the collection of
penalties or for injunctive action under the Fair Labor Standards Act of
1938, 29 U.S.C. § 201, et seq., and the Occupational Safety
and Health Act of 1970, 29 U.S.C. § 651, et seq.
- Cases referred by the Department of Labor solely for collection of civil
penalties under the Farm Labor Contractor Registration Act of 1963, 7 U.S.C.
§ 2048.
- Cases referred by the United States Postal Service for injunctive relief
under the non-mailable matter laws, 39 U.S.C. § 3001, et
seq.
[cited in USAM 3-8.130;
USAM 4-5.200]
4-1.312
Delegated Cases
|
Where the circumstances warrant, the Assistant Attorney General, Civil
Division, may delegate to United States Attorney's pursuant to section 4(b),
Civil Division Directive No. 14-95, 60 Fed. Reg. 17456 (1995), suit
authority for any claims or suits where the gross amount of the original
claim does not exceed $5 million, upon the recommendation of branch, office,
or staff directors. United States Attorneys may compromise any case
redelegated under section 4(b) in which the gross amount of the original
claim does not exceed $5,000,000, so long as the difference between the
gross amount of the original claim and the proposed settlement does not
exceed $1,000,000. All delegations pursuant to section 4(b) must be in
writing, and no United States Attorney has authority to compromise or close
any such delegated case or claim except as is specified in the required
written delegation or in section 1(e) of the Directive (discussed below at
USAM 4-3.120. The limitations of section
1(e) of the Directive (discussed below at USAM
4-3.130) also remain applicable in any case or claim delegated under
section 4(b).
[cited in USAM 4-1.600]
4-1.313
Retained Cases
|
Pursuant to section 4(b) of the Civil Division Directive No. 14-95, 60
Fed. Reg. 17456 (1995), and regardless of the amount in controversy, the
following matters will normally not be delegated to the United States
Attorney's for handling but will be personally or jointly handled or
monitored by the appropriate branch or office within the Civil Division:
- Civil actions in the United States Court of Federal Claims;
- Cases within the jurisdiction of the Commercial Litigation Branch
involving patents, trademarks, copyrights, etc.;
- Cases before the United States Court of International Trade;
- Any case involving bribery, conflict of interest, breach of fiduciary
duty, breach of employment contract, or exploitation of public office, or
any fraud or False Claims Act case where the amount of single damages
exceeds $1 million.
- Any case involving vessel-caused pollution in navigable waters;
- Cases on appeal, except as determined by the Director of the Appellate
Staff (see USAM, Title 2);
- Any case involving litigation in a foreign court;
- Criminal proceedings arising under statutes enforced by the Food and
Drug Administration, the Consumer Product Safety Commission, the Federal
Trade Commission, and the National Highway Traffic Safety Administration
(relating to odometer tampering), except as determined by the Director of
the Office of Consumer Litigation;
- Non-monetary civil cases, including injunction suits, declaratory
judgment actions, and applications for inspection warrants, and cases
seeking civil penalties, including, but not limited to those arising under
statutes enforced by the Food and Drug Administration, the Consumer Product
Safety Commission, the Federal Trade Commission, and the National Highway
Traffic Safety Administration (relating to odometer tampering), except as
determined by the Director of the Office of Consumer Litigation.
- Asbestos and other toxic tort litigation (i.e., Agent Orange, lead,
groundwater contamination, etc.)
- Administrative claims arising under the Federal Tort claims Act.
4-1.320
United States Attorney Responsibilities—Assistance Concerning
Deposited Funds
|
In connection with the distribution of funds deposited in court, the
United States Attorney may be asked to assist the court as amicus curiae.
In the case of petitions for the return of funds of deceased or deserting
sailors pursuant to 46 U.S.C. §§ 626 to 628, copies of the
petition should be served on the United States Attorney, the Attorney
General, and the United States Shipping Commissioner. In such cases, the
United States Attorney should appear as attorney for the United States as
another claimant to the funds. Information for use in asserting the
government's claim will be provided by the United States Shipping
Commissioner attached to the Coast Guard at the locale.
4-1.322
| United States Attorney Responsibilities—Assistance to Civil
Division Attorneys
| |
From time to time, Civil Division attorneys involved in the handling of
litigation, including litigation before specialized courts, may need to
perform their duties at places within various judicial districts. Such
attorneys are asked to apprise the United States Attorney in advance of
their visit to his/her district. United States Attorney's are requested to
aid such attorneys in obtaining office space, stenographic facilities, and
related assistance on request, when this is feasible.
4-1.323
United States Attorney Responsibilities—Briefs Amicus Curiae
|
An action in a state or federal court, to which neither the United
States nor one of its officers or agencies is a party, may involve an issue
affecting the interests of the United States. When the interpretation or
application of an Act of Congress or a departmental regulation or the
Attorney General's authority to conduct litigation is involved, the
Department may wish to file a brief amicus curiae to inform the court of the
government's position. Cf. F.T.C v. Guignon, 390 F.2d 323 (8th Cir.
1968); Faubus v. United States, 254 F.2d 797 (8th Cir. 1958),
cert. denied, 358 U.S. 829 (1958). United States Attorney's are
requested to notify the Civil Division promptly whenever they learn of such
cases. If an amicus brief is filed, the Civil Division will forward a copy
of the brief to the United States Attorney in the district in which the suit
is pending.
4-1.324
United States Attorney Responsibilities—Constitutional
Questions—Certification to the Attorney General
|
In any action, suit, or proceeding in a court of the United States, to
which the United States or an agency or employee thereof is not a party, the
court is required to certify to the Attorney General when the
constitutionality of an Act of Congress is called into question, and the
court must permit the United States to intervene to submit evidence or
argument on the issue of constitutionality. See 28 U.S.C.
§ 2403. The Civil Division should be promptly advised of any case
in which the United States Attorney learns that the pleadings challenge the
constitutionality of an Act of Congress, a regulation or any other federal
action.
[cited in Civil Resource Manual 69]
4-1.325
United States Attorney Responsibilities—Judicial Assistance to
Foreign Tribunals
|
Section 1782 of Title 28 authorizes the United States district court for
the district in which a person resides or is found to order such person to
give his/her testimony or to produce documents or other things for use in a
proceeding in a foreign or international tribunal. Requests for
international judicial assistance are executed either on the basis of treaty
obligations assumed by the United States (see, e.g., the Convention
between the United States and other Governments on the Taking of Evidence
Abroad in Civil and Commercial Matters, TIAS 7444, 23 UST 2555) or on the
basis of international comity and courtesy. Requests for international
judicial assistance from foreign tribunals in civil matters will be referred
to United States Attorney's by the Office of Foreign Litigation, Civil
Division. See 28 C.F.R. § 0.49. United States Attorney's
should not attempt to execute foreign evidence requests in civil cases
without obtaining the approval of the Office of Foreign Litigation.
In addition to processing evidence requests, the Office of Foreign
Litigation also performs the functions of the "Central Authority" under the
Hague Convention on the Service Abroad of Judicial and Extrajudicial
Documents in Civil and Commercial Cases, TIAS 6638, and the Inter-American
Convention on Letters Rogatory, Treaties in Force, U.S. Department
of State, 351 (1993). USAOs will only infrequently become involved in
service requests, which are referred to the United States Marshals Service
for execution.
[cited in USAM 4-1.600]
4-1.326
United States Attorney Responsibilities—Protection of the
Government's Fiscal and Property Interests
|
United States Attorney's are requested to report any infringement of, or
dereliction with respect to, the property or other interest of the United
States warranting the institution of civil proceedings, when such matters
have not been referred for handling. Most non-fraud claims normally should
be processed for collection by the administrative agency involved, pursuant
to the Debt Collection Act, 31 U.S.C. § 3711, and implementing
joint regulations, 4 C.F.R. §§ 101.1 to 105.5. See
USAM 4-4.430, infra.
Non-fraud claims should normally be reported to the affected
administrative agency. Fraud claims are excluded from the coverage of the
joint regulations implementing the Debt Collection Act. See 31
U.S.C. § 3711(c)(1). United States Attorney's should be particularly
alert to report to the Civil Division all claims involving fraud against the
government that are not within the United States Attorneys' original
authority, and all claims involving bribery, and the conversion of
government property.
4-1.327
Settlement of Tort Claims Asserted Against the Department of Justice
Administratively
|
In cases involving serious personal injuries, death, or major property
damage, as to which a claim may possibly be asserted against the Department
of Justice under the Federal Tort Claims Act, the responsible component
should be notified as soon as possible after the accident and asked to cause
an investigation to be commenced. Any tort claim arising from any USAO's
employee's acts or omissions should be forwarded to EOUSA. Any tort claim
alleging acts or omissions on the part of any other government employee
should be forwarded to the appropriate agency.
4-1.410
Responsibilities of Client Agencies—Compromise and Dismissal or
Closing
|
Authority over the disposition of a civil matter, once it is referred to
the Department of Justice, resides in the Attorney General or his/her
delegate, and the client agency may not control its handling or disposition.
See United States v. Sandstrom, 22 F. Supp. 190, 191 (N.D. Okla.
1938); FTC v. Guignon, supra; E.O. 6166 § 5, June 10, 1933.
In rare cases a statute may provide continuing settlement or other authority
in the referring agency. Cf. 28 U.S.C. § 2348. An agency's
recommendation (which may be couched in terms such as "we have accepted the
offer of settlement," for example) should not be construed as an acceptance
but rather only as a recommendation. Such powers as other officials of the
government had theretofore with respect to litigation were withdrawn by E.O.
6166, June 10, 1933, leaving the Attorney General with complete authority.
See Duncan v. United States, 39 F. Supp. 962, 964 (W.D. Ky 1941);
Aviation Corp. v. United States, 46 F. Supp. 491, 494 (Ct. Cl. 1942),
cert. denied, 318 U.S. 771 (1943); 38 Op. Att'y Gen. 124, 125. Where
the authority of the Attorney General has been redelegated to United States
Attorney's, and the client agency involved objects to the compromise,
dismissal, or closing, the case may not be compromised, dismissed, or closed
without the consent of the Assistant Attorney General of the Civil Division.
"Consult" within the meaning of Civil Division Directive 14-95, means to
discuss with the agency in good faith, in order to decide or plan an
appropriate course of action. In Tort cases, although all agencies should
be consulted, the agency "involved" for purposes of requiring referral to
the Assistant Attorney General, Civil Division does not construe "agency or
agencies involved" to ordinarily encompass the agency whose acts or
omissions gave rise to the tort since the agency is not a proper party to an
FTCA suit.
[cited in USAM 3-8.130]
4-1.420
Responsibilities of Client Agencies—Court Appearances
|
No suit may be brought on behalf of the government, absent an unusual
express statutory authorization, except by the Attorney General or an
attorney under his/her supervision. See Sutherland v. International Ins.
Co., supra; E.O. 6166 § 5, June 10, 1933. Accordingly, in
matters assigned to United States Attorney's for handling, the
responsibility is that of the United States Attorney, and that
responsibility may not be delegated to agency counsel.
The same principles apply when the government (through government
corporations or the Maritime Administration) enjoys the benefit of
insurance. Underwriters may nominate trial counsel. However, such trial
attorneys are only "of counsel" to the United States Attorney. They do not
control or direct the conduct of cases, which must remain with the United
States Attorney. The United States Attorney or one of his/her assistants
should monitor the course of such litigation carefully.
4-1.430
Responsibilities of Client Agencies—Litigation Reports
|
Agency personnel are generally in the best position to know the facts
involved in a case arising in connection with the activities of their
agency. Agency counsel should have a great familiarity with agency practices
and the statutes and regulations of the agency which may be relevant to a
particular case. Obviously, records of the agency relevant to the case can
best be assembled and certifications obtained by agency counsel. Thus, it
has been the policy of the Division that the involved agencies be asked to
provide litigation reports and recommendations as to any affirmative relief
which should be requested or defenses which should be asserted.
In cases being directly handled by Assistant United States Attorney's,
agency counsel should be instructed to furnish copies of litigation reports
directly to the USAOs. Copies of litigation reports should also be
furnished to Civil Division components that request them. In suits brought
against the government, United States Attorney's are encouraged to make
early contact with appropriate agency counsel. Excessive delays by
government agencies in furnishing litigation reports should be brought to
the attention of the Assistant Attorney General for the Civil Division.
4-1.440
Responsibilities of Client Agencies—Pleadings and
Interrogatories
|
Agency counsel may offer to prepare suggested pleadings and papers for
civil cases. It is appropriate to receive such suggestions, or even to
request agency preparation of suggested pleadings and papers, if this will
facilitate the disposition of litigation rather than delay it. However,
agency counsel are not required to provide this service. Pleadings and
papers prepared by agency counsel should be critically examined, and
rewritten as necessary, to assert the proper litigating position for the
government and conform with proper practice and local rules.
Agency representatives generally should prepare the answers to
interrogatories and sign such answers. See Fed. R. Civ. P. 33.
Agency answers to interrogatories, if any, should not be submitted to the
court pro forma, but should be critically examined, and recast if necessary,
to reflect accurately the facts and the appropriate litigating position
which should be taken under the circumstances.
4-1.450
Responsibilities of Client Agencies—Referrals
|
Agency referrals for litigation should be accompanied by sufficient
information, whether in the form of a litigation report or otherwise, to
permit an intelligent evaluation of the factual and legal merits of the
case. Agency counsel should be alert to apprise the Department of
anticipated defenses, their strengths, and the best rebuttal to them.
Non-fraud referrals for the recovery of money should comply with the Federal
Claims Collection Standards (see 4 C.F.R. §§ 101.1 to
105.5) implementing the Debt Collection Act, 31 U.S.C.
§§ 3701 to 3720A. Where they involve amounts coming within
the United States Attorneys' authority, the referrals should be made by the
agencies directly to the National Central Intake Facility. Referrals of
cases in excess of the United States Attorneys' authority should be made
through the Civil Division.
[cited in USAM 4-6.200]
4-1.500
Liaison of United States Attorneys with Civil Division
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The degree of liaison which should be maintained with the Civil Division
varies substantially from one type of case to another. Most civil cases,
claims, and judgments have been delegated to the United States Attorney's
for handling, though the Assistant Attorney General for the Civil Division
remains responsible for their effective handling. Little liaison is
required as to these cases. However, the Civil Division remains ready to
advise and assist on these cases upon request.
Significant matters of policy, important questions of first impression,
serious differences of views with client agencies, and adverse court
decisions, should be brought to the attention of the Civil Division,
regardless of the amounts involved, the method of referral, or whether the
case is delegated or nondelegated. The Civil Division will communicate with
client agencies to effect changes, clarification or consistency in policies,
endeavor to make available the latest precedents which may not otherwise be
available, attempt to assure reasonable uniformity of positions and
procedures among United States Attorney's, advise whether particular cases
should be used to test new propositions, and make available expertise
developed in certain specialties over the years.
4-1.511
Cases Delegated to United States Attorneys
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Although the Civil Division does not monitor the conduct of delegated
cases and, with the exceptions set forth below, is not to be advised of
litigation events in such cases, the Civil Division stands ready to advise
and assist on these cases. Communications regarding delegated cases should
be directed to the section or unit in the Civil Division bearing
responsibility for the particular type of case.
Copies of pleadings and other communications on delegated cases are not
to be furnished to the Civil Division routinely, except that the Torts
Branch should always be advised of the date and method of disposition of
suits under the Federal Tort Claims Act, and be furnished copies of the
order, opinion, or stipulation which resulted in the disposition of the
suit, and that the Office of Immigration Litigation should always be
similarly advised of the disposition of suits under the Immigration and
Nationality Act, as amended. Also, with regard to qui tam False Claims Act
cases, the Fraud Section of the Commercial Litigation Branch should be
notified of (1) a decision whether the government has intervened, or
declined to intervene, in the case, (2) any legal or procedural issues that
arise concerning the qui tam provisions, (3) settlement proposals by the
parties and (4) the resolution of the case. The Division generally has no
individual files on delegated cases. Therefore, inquiries directed to the
Division on these cases should be accompanied with sufficient background,
copies of pleadings, and briefs, to permit an informed appraisal of the
nature and posture of the case and the problem. If the United States
Attorney has had a previous communication on a particular case or on a
general problem, the file numbers and initials or names appearing in the
upper corner of the Civil Division's last communication should be used when
writing the Department again. Disposition of delegated cases, like the
disposition of nondelegated cases, must be accurately reported on the
Department's statistical reporting system. In particular, all money and
property collected for the government should be reported. Advice (in
writing) of final, appealable adverse court rulings and orders, and a
recommendation as to appeal, with supporting documents and explanation, must
be promptly furnished to the appropriate Branch Directors.
Cases in which an interlocutory appeal may be desirable pursuant to 28
U.S.C. § 1292 should be discussed with the Appellate Staff
telephonically, in order that the proper certification can be obtained on a
timely basis if it appears that strong consideration will likely be given to
such an appeal. Final appealable orders whose review will be by the United
States District Court, as in bankruptcy cases, or by trial de novo in a
state tribunal, should be reported to the Branch (rather than the Appellate
Staff) having cognizance of that type of litigation, preferably by
telephone. Prompt determinations as to appeal will be quickly communicated
to the United States Attorney's in these short-deadline cases.
See USAM, Title 2, for procedures
pertaining to adverse decisions in individual cases in which the claim is
for benefits under the Social Security Act.
4-1.512
Cases Monitored by Civil Division
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