4-6.010
Federal Programs Branch—Subject Matter Areas
|
The Federal Programs Branch litigates on behalf of approximately 100
departments and federal agencies, Cabinet officers, and other government
officials. The Branch's caseload consists primarily of defending suits that
challenge actions of Government agencies and officers in which the
plaintiffs seek injunctive or declaratory relief. Since the enactment of the
amendments to the Civil Rights Act in 1991, however, the Branch has seen an
increase in Title VII litigation. In addition, the Federal Programs Branch
brings actions in the name of the United States or federal agencies to
enforce Government rights, functions and certain claims for monetary relief.
The Branch's eleven subject matter areas are as follows:
Area 1—Affirmative Litigation and Regulatory Enforcement
Director:
David J. Anderson, Room 1064, 901 E Street, (202) 514-3354.
Assistant
Director: Arthur R. Goldberg, Room 1066, 901 E Street, (202) 514-4783.
Area 2—Non-Discrimination Personnel Litigation Director: Felix
V. Baxter, Room 972, 901 E Street, (202) 514-4651.
Assistant Director:
Susan K. Rudy, Room 970, 901 E Street, (202) 514-2071.
Area 3—Government Information (Includes Freedom of Information Act,
Privacy Act, Government in Sunshine Act, Federal Advisory Committee Act and
Defense to Third Party Subpoena Litigation)
Director: David J.
Anderson, Room 1064, 901 E Street, (202) 514-3354.
Assistant Director:
Anne L. Weismann, Room 1034, 901 E Street, (202) 514-3395.
Area 4—Human Resources (Includes Department of Health and Human
Services and Department of Education)
Director: David J. Anderson,
Room 1064, 901 E Street, (202) 514-3354.
Deputy Director: Sheila
Lieber, Room 974, 901 E Street, (202) 514-3786.
Area 5—Housing and Community Development (Includes Department of
Housing and Urban Development and Federal Emergency Management
Agency) Director: Dennis G. Linder, Room 980, 901 E Street, (202)
514-3314.
Assistant Director: Michael Sitcov, Room 1022, 901 E Street,
(202) 514-1944.
Area 6—National Security, Military and Foreign Relations
Director: David J. Anderson, Room 1064, 901 E street, (202) 514-3354.
Deputy Director: Vincent M. Garvey, Room 1062, 901 E Street, (202)
514-3449.
Area 7—Agriculture, Energy and Interior
Director: Dennis
G. Linder, Room 980, 901 E Street, (202) 514-3314.
Assistant Director:
Thomas W. Millet, Room 982, 901 Street, (202) 514-3313.
Area 8—Foreign and Domestic Commerce (Includes Departments of
Commerce, Labor, Treasury and Transportation)
Director: Dennis G.
Linder, Room 980, 901 E Street, (202) 514-3314.
Assistant Director:
Sandra Schraibman, Room 976, 901 E Street, (202) 514-3315.
Area 9—Government Corporations and Regulatory Agencies
Director: Dennis G. Linder, Room 980, 901 E Street, (202) 514-3314.
Assistant Director: Theodore Hirt, Room 906, 901 E Street, (202) 514-4785.
Area 10—Employment Discrimination Litigation
Director:
Felix V. Baxter, Room 972, 901 E Street, (202) 514-4651.
Assistant
Directors: Anne M. Gulyassy, Room 968, 901 E Street, (202) 514-3527;
Jennifer D. Rivera, Room 978, 901 E Street, (202) 514-3671.
Area 11—Disability Benefits and Employment Litigation
Director: Felix V. Baxter, Room 972, 901 E Street, (202) 514-4657.
Assistant Director: Richard Lepley, Room 966, 901 E Street, (202) 514-3492.
4-6.100
Defensive Litigation
|
With the exception of the categories of Direct Reference Cases discussed
in Section 4-1.310, as soon as a USAO is served with a summons and complaint
in a new action which falls within the jurisdiction of the Federal Programs
Branch, the USAO should transmit copies of the pleadings to the Branch. Upon
receipt of the pleadings, the Branch will determine the type of handling the
case is to receive. Federal Programs Branch cases will be designated for one
of the following types of handling:
- Personally Handled (P) cases are handled by Branch attorneys. These
cases will often involve serious or novel constitutional or statutory
challenges to federal programs, cases challenging a nationwide program, with
potentially far-reaching implications, cases in which either the client
agency or the USAO has requested assistance, or cases that for whatever
additional reason justify the use of resources of the Civil Division from
Washington, D.C. Where practical, the Federal Programs Branch will consult
with the United States Attorney before designating a case to be personally
handled. See section 4(c) of Civil Division Directive No. 163-86 (published
in the Appendix to Subpart Y immediately following 28 C.F.R. § 0.172)
for types of cases that are frequently retained for personal handling by
Civil Division attorneys.
- Jointly Handled (JH) cases are those in which both a Branch attorney and
an Assistant United States Attorney will each personally handle aspects of
the litigation.
- Monitored (M) cases are handled by Assistant United States Attorneys,
with Civil Division attorneys responsible for being knowledgeable about case
developments and strategy and available for advice and consultation.
- Delegated (D) cases are handled by Assistant United States Attorneys,
with involvement by Branch attorneys only on request. See Section 4(b) of
Civil Division Directive No. 163-86, for criteria for delegation of cases to
USAOs.
As soon as the type of handling is determined, the Federal Programs
Branch will request that the client agency prepare a litigation report for
the case, and a copy of that request will be forwarded to the appropriate
USAO. In delegated and monitored cases, the litigation report request letter
will be the first official notification to the USAO that office, rather than
the Civil Division, will have primary litigation responsibility for the
case. That request letter from the Branch will request that the agency
forward the litigation report, with supporting documents, to the appropriate
USAO.
In personally handled and jointly handled cases, the Assistant Branch
Director assigned to the case will notify the USAO that the Civil Division
will retain litigation responsibility for the case. In those cases, the
Federal Programs Branch attorney assigned to the case will receive the
litigation report from the client agency.
4-6.200
Affirmative Litigation
|
Two basic differences between affirmative and defensive suits require
particular attention. First, with the exception of the Direct Reference
Cases discussed in Section 4-1.310 et seq., all affirmative cases must be
authorized by the Civil Division. Second, several categories of affirmative
cases are routinely handled by client agencies, pursuant to Memoranda of
Understanding with the Justice Department.
To receive authorization for commencement of an affirmative suit, the
client agency should prepare a written referral to the Civil Division. See
USAM 4-1.450 for discussion of contents of
referrals. If a referral is made directly to a USAO and the case is not
within the category of Direct Reference cases, the USAO should request that
the agency formally refer the matter to the Civil Division for suit
authorization. Upon receipt of a referral, the Branch will assign the
referral to a Branch attorney for preparation of a suit authorization
recommendation.
Once suit authorization is received, the Federal Programs Branch will
determine whether the suit will be handled by the Branch, by a USAO, or by
the client agency. The most common categories of affirmative suits in the
Branch, and the procedures for suit authorization and case handling, are
discussed below.
4-6.210
Delegated Affirmative Cases
|
Delegated affirmative cases will usually be of three types: (1) those
delegated to USAOs for handling by those offices; (2) those for which the
agency has statutory litigating authority; and (3) those for which the
agency is delegated litigating authority pursuant to a Memorandum of
Understanding with the Justice Department. The most common delegated
affirmative cases are:
- Department of Labor
(cases brought under the Employee
Retirement Income Security Act, the Occupational Health and Safety Act, the
Migrant and Seasonal Agricultural Worker Protection Act, and the Federal
Coal Mine Health and Safety Act). Suits under each of these statutes will
normally be handled by Labor Department attorneys. In such cases, a Branch
attorney will review the referral and proposed pleadings for form and
content. If the papers indicate that the proposed suit has an adequate
factual and legal basis, after conferring with the Assistant Director for
Area 1, the Branch attorney will prepare letters to the agency and United
States Attorney authorizing the filing of the suit, and delegating the case
to the agency. (In those cases where time will not permit a letter
authorizing that suit be filed, after conferring with the reviewer,
authorization may be given by phone, with confirmation letters to follow.)
In most cases under these statutes, it will not be necessary to obtain
formal authorization for the suit from the Assistant Attorney General.
However, if any of these cases present novel or sensitive issues, it may be
appropriate to notify the Assistant Attorney General of the proposed
litigation.
Cases under the Labor Management Reporting and Disclosure Act.
Most LMRDA suits are handled by the USAOs. After reviewing the referral and
proposed pleadings for an LMRDA suit, the Branch attorney will confer with
the Assistant Director about whether the proposed litigation has an adequate
factual and legal basis. If it is appropriate to authorize suit, the Branch
attorney will prepare a letter to the appropriate United States Attorney,
indicating that the suit is authorized and is delegated to that office, and
requesting that a referral acknowledgement form be returned, which shows the
date of filing and the name of the Assistant United States Attorney to whom
the case is assigned. A copy of the letter will be sent to the Labor
Department. In most cases, the letter to the United States Attorney will
request that the suit be filed within two weeks of receipt, unless
extenuating circumstances are present.
Subpoena Enforcement Suits. Most routine subpoena enforcement
actions are handled by the USAOs and are authorized by the Director in
charge of Area 1. A Branch attorney will review the referral and proposed
pleadings, and then prepare a memorandum from the assistant director to the
director, recommending whether the suit should be filed.
If the subpoena enforcement action is approved by the director, the
Branch attorney will write the agency and the United States Attorney,
stating whether the suit has been authorized or not, and, if so, that it is
delegated to the United States Attorney. In cases in which suit is
authorized, a referral acknowledgement form will also be sent to the United
States Attorney, as well as a copy of papers received from the agency.
Other Delegated Affirmative Suits. For all other delegated
affirmative cases, such as Department of Energy enforcement actions, suits
under the various Department of Agriculture statutes, and miscellaneous
affirmative litigation, the assigned Branch attorneys will review the
litigation request and analysis, and prepare a suit authorization memorandum
for the Assistant Attorney General. If the suit is authorized, the Branch
attorney will prepare a delegation letter with acknowledgement form to the
United States Attorney, and a follow-up letter to the agency.
4-6.220
Monitored Affirmative Cases
|
Referrals of monitored affirmative cases will be handled in the same
manner as delegated case referrals. However, the letter to the USAO or to
the agency will advise that a Branch attorney will follow the litigation
closely and request that the Branch attorney be kept informed about the
status of the case.
4-6.230
Personally Handled and Jointly Handled Affirmative Cases
|
Personally handled and jointly handled affirmative cases are referred
and authorized in the same manner as delegated and monitored cases. The
Assistant Director for affirmative litigation in the Federal Programs Branch
will notify the appropriate USAO that the Branch will retain primary
litigation responsibility in these cases. On occasion, it may become
necessary for the Branch to request assistance from the USAOs in filing the
summons and complaint in affirmative cases.
4-6.240
Affirmative Cases—Suits Against State Governments, Agencies or
Entities
|
It is the policy of the Justice Department that, prior to filing suit
against a state government, agency or entity, each Division will undertake
the following steps:
- Advise the governor and attorney general of the affected
state of the nature of the contemplated action or claim and the terms of the
remedy sought;
- Notify the Deputy Attorney General and, if appropriate, the Associate
Attorney General that such prior notification has been given; and
- Ensure that such prior notice is given sufficiently in advance of the
filing of the suit or claim to:
- Permit the state government, agency or entity to bring to the
Department's attention facts or issues relevant to whether the action or
claim should be filed or,
- Result in settlement of the action or claim in advance of its filing on
terms acceptable to the United States.
See Attorney General Policy Directive, Litigation Against State
Governments, Agencies or Entities, August 7, 1981.
- When referrals are received for suits against states, the Branch will
prepare a suit authorization memorandum to the Assistant Attorney General
for the Civil Division, and will also prepare notification letters to the
governor and attorney general of the state. Suit will be filed in such cases
only after written suit authorization is given, prior notification has been
provided the state, the Deputy (and, where appropriate, Associate) Attorney
General has been notified, and the state has been given the opportunity to
confer and attempt to compromise the claim without litigation. The Civil
Division will supply the interested United States Attorney with copies of
the notification letters.
4-6.250
Affirmative Cases—Counterclaims, Amicus Participation and
Motions to Intervene
|
Client agency requests to assert counterclaims in pending defensive
litigation, to participate as amicus curiae, or to intervene in on-going
state or federal court litigation are authorized in the same manner as
affirmative cases. The Civil Division should also be provided the factual
and legal basis supporting the cause of action or position the client wishes
to assert. Referrals for such litigation must be made as expeditiously as
possible, since the federal government's right to participate in on-going
litigation will often depend on the status of the underlying case.
4-6.300
Area 1—Affirmative Litigation and Regulatory Enforcement
|
This area includes all affirmative litigation assigned to the Branch in
which the United States or an agency or official of the United States
initiates a legal action to enforce compliance with federal statutory and
regulatory programs, including, for example, actions to enforce
administrative subpoenas, suits by the Department of Labor to enforce the
Employee Retirement Income Security Act, the Occupational Health and Safety
Act, the Migrant and Seasonal Agricultural Worker Protection Act, the
Federal Coal Mine Health and Safety Act, and the Labor Management Reporting
and Disclosure Act, enforcement actions brought on behalf of the National
Highway Traffic Safety Administration, affirmative Department of Agriculture
litigation, suits on behalf of the Department of Housing and Urban
Development to enjoin violations of the Interstate Land Sales Full
Disclosure Act, and suits to enjoin state and local interference with
federal functions.
4-6.320
Area 2—Nondiscrimination Personnel Litigation
|
This area includes suits arising from federal governmental employment
including constitutional and other issues of appointment and removal of
officers and employees of the United States. Also included in this area are
cases challenging Office of Personnel Management regulations, actions under
the Federal Employee Health Benefits Act, and actions challenging various
disciplinary and adverse actions brought by employees pursuant to the Civil
Service Reform Act and the Whistleblower Protection Act. Litigation in this
area arises primarily in district court and before the Merit Systems
Protection Board.
4-6.330
Area 3—Government Information
- Contacts in Civil Division:
General: Anne L.
Weismann, Assistant Director (514-3395); David J. Anderson, Director
(514-3354). Right to Financial Privacy Act: Arthur R. Goldberg (514-4783).
Federal Advisory Committee Act: Eric Goulian (514-4686).
Civil Division Policies regarding handling of these types of
cases: United States Attorneys should inform the appellate staff
(Leonard Schaitman, 514-3441) immediately if a stay pending appeal of an
order couched in terms of an injunction is denied in FOIA or Privacy Act
suits. Otherwise, the cases should be handled administratively like any
other defensive cases.
[cited in USAM 4-1.600]
4-6.332
Area 3—Government Information—General Information for
Particular Case Types (Including Jurisdiction and Exhaustion of
Administrative Remedies)
- FOIA.
- Pre-litigation FOIA Requests for Documents.
See 28 C.F.R.
§§ 16.1 through 16.10, for detailed instructions for responding to
pre-litigation Freedom of Information Act requests. See also 5 U.S.C.
§ 552, as amended. Nine categories of government records are
exempt from disclosure under the FOIA. See 28 C.F.R. § 16.10(b)(3), as
to the necessity for referring requests for information classified by
another agency to that agency.
- In the event of a request for documents from a USAO, the request should
be forwarded to the Executive Office for United States Attorneys, FOIA/PA
Unit, pursuant to 28 C.F.R. Part 16.3(a). The Federal Programs Branch is
responsible for litigation and does not have any responsibilities relating
to the administrative processing of FOIA or Privacy Act requests for
documents in USAOs.
- FOIA Suits.
Expedited handling is essential in FOIA suits,
inasmuch as the Act provides that such litigation is to take precedence.
See 5 U.S.C. § 552(a)(4)(D). Because the time for serving an
Answer or Motion to Dismiss is reduced to thirty days, care should be taken
to ensure that the government's time to respond is protected. The Federal
Programs Branch can provide advice and assistance if necessary. Interim
relief is generally not permitted under the FOIA; therefore, in the event an
emergency hearing is scheduled, the relief requested should ordinarily be
opposed.
- Branch attorneys directly handle a number of FOIA cases. However, United
States Attorneys should anticipate that the majority of FOIA cases filed in
their respective districts will be assigned to the United States Attorneys
for handling. This responsibility contemplates that the Assistant United
States Attorney assigned to the case will conduct a full review of the
withheld documents to determine whether withholding is legally justified.
The Assistant United States Attorney is also responsible, with assistance
from the agency General Counsel, for drafting and reviewing affidavits,
preparing responses to interrogatories, preparing pleadings, and oral
argument.
- A general discussion of the requirements of the FOIA and current caselaw
is available in the "Freedom of Information Case List" published by DOJ's
Office of Information and Privacy each September. Copies can be ordered from
that office (514-4251).
- Exhaustion of administrative remedies is required before suit may be
brought, but exhaustion may be deemed to have occurred if the agency exceeds
statutory time limits in processing FOIA requests or appeals. See 5
U.S.C. § 552(a)(6). The statute generally provides for de novo review
without reference to any administrative record made in the agency. 5 U.S.C.
§ 552(a)(4)(B). You should note, however, that in challenges to agency
determinations regarding waiver of fees for processing FOIA requests, the
1986 amendment to the statute provides for de novo review on the record made
before the agency. 5 U.S.C. § 552(a)(4)(vii). "Reverse" FOIA cases, in
which a submitter of information sues to prevent an agency's proposed
release of the information under the FOIA are brought pursuant to the APA,
and the APA standard of review applies.
- Orders for disclosure in FOIA suits will ordinarily be phrased as
injunctions. Thus, it is necessary to seek a stay from such an adverse order
to preserve the right of appeal. If a stay is denied, telephonic notice
should be given the Federal Programs Branch. It is important to furnish
immediately to the Branch a copy of all opinions and orders entered. This is
essential to assure appropriate appellate consideration and to enable the
Department to satisfy its statutory reporting requirements. See 5
U.S.C. § 552(e).
- Privacy Act.
The Privacy Act imposes stringent requirements
affecting the maintenance of records concerning individuals. See 5
U.S.C. § 552a. Subsection (b) sets forth eleven circumstances under
which records concerning an individual can be disclosed without the
individual's prior written consent. Subsection (e)(8) requires that there be
"reasonable efforts to serve notice on an individual when any record on such
individual is made available to any person under compulsory legal process
when such process becomes a matter of public record." Subsection (g)
establishes judicial remedies available to persons aggrieved under the Act.
OMB guidelines are published at 40 Fed. Reg. 28948, et seq.
- Exhaustion of administrative remedies is required. See 5 U.S.C.
§ 552a(g)(1). Jurisdiction for Privacy Act suits covers suits for both
money and specific relief. Access to government records of an individual,
and the amendment of such records, are provided for by 5 U.S.C. 552a(g). A
plaintiff is entitled to a trial de novo. Jurisdiction includes express
authorization for injunctive actions, both to prevent a government agency
from withholding records and to compel their production. See 5 U.S.C.
§ 552a(g)(3). In an action brought for failure to maintain an
individual's record with accuracy, or for failure to comply with any of the
Act's other provisions in such a way as to have an adverse effect on the
individual, the individual can recover damages if the agency acted
intentionally or willfully. Damages can in no event be less than $1000
together with costs and reasonable attorney fees. Venue is set forth in 5
U.S.C. § 552a(g)(5), as is the limitations provision.
- If a court order is adverse and phrased as an injunction, a stay should
be timely sought to preserve the right of appeal. It is important to furnish
immediately to the Branch a copy of all opinions and orders entered.
- Awareness of the Privacy Act is also important during discovery in
non-Privacy Act cases since documents requested in discovery in a variety of
cases can be subject to the Privacy Act. This is particularly true in cases
involving personnel issues or personnel files. Documents subject to the
Privacy Act should not be produced in discovery until the Act's requirements
involving disclosure of such information have been met. Note that many
agencies have published "routine uses" under the Act (5 U.S.C. §
552a(b)(3)) which provide for the release of certain records to the
Department of Justice or to parties in litigation. The agency should be able
to provide citations in the federal register to such publications.
- Right to Financial Privacy Act.
There are no administrative
remedies to be exhausted as a prerequisite to litigation under the Right to
Financial Privacy Act. Jurisdiction for such suits covers actions for both
money damages and specific injunctive relief. The Act prohibits any agency
or department from obtaining (or any private "financial institution" as
defined in 12 U.S.C. § 3401(1) from disclosing) the financial records of
a financial institution's "customer" as defined in 12 U.S.C. § 3401(5),
except where access is authorized by one of the express exceptions to the
Act or is accomplished through one of the five access mechanisms mandated by
the Act: (1) customer authorization; (2) administrative summons or subpoena;
(3) search warrant; (4) judicial subpoena; or (5) formal written request.
For further information on transfer restrictions and remedies under the Act,
see Civil Resource Manual at 90.
- Government In The Sunshine Act.
The Government in the Sunshine
Act, 5 U.S.C. § 552b, sets forth specific requirements pertaining to
notices of agency meetings and requirements for record keeping of such
meetings. Sunshine Act litigation is discussed in the Civil Division
Practice Manual at § 3-46.1, et seq. See also Berg and Klitzman.
An Interpretive Guide to the Government in the Sunshine Act, published by
the Administrative Conference of the United States in June 1978.
- Production of Documents of Other Departments and Agencies in
Non-FOIA Litigation.
On occasion, litigants in private lawsuits may
issue a subpoena for deposition or trial testimony, or a subpoena duces
tecum requiring production of information or documents which a client agency
deems confidential or otherwise privileged from disclosure. Protection
against the compulsory disclosure of such documents or information is
recognized in various circumstances. See 5 U.S.C. § 301;
Jencks v. United States, 353 U.S. 657 (1957); United States v.
Reynolds, 345 U.S. 1 (1953); Touhy v. Ragen, 340 U.S. 462 (1951);
Bowman Dairy Co. v. United States, 341 U.S. 214 (1951); Saunders
v. Great Western Sugar Co., 396 F.2d 794 (10th Cir. 1968).
- If a government employee served with such a subpoena seeks advice from
the United States Attorney, he/she should be told to contact his/her own
agency for instructions, because, if the agency does not object to
compliance, the Department of Justice usually will not. If the agency wishes
to object, however, it usually will have pertinent regulations (promulgated
under 5 U.S.C. § 301), similar to the DOJ regulations at 28 C.F.R. §
16.21, et seq., instructing employees not to produce or testify unless
authorized to do so by a designated official (usually the head of the agency
or his/her designee). Such regulations are ordinarily recognized as a valid
basis on which to refuse to produce documents or testify. See
Touhy v. Ragen, 340 U.S. at 657; Saunders v. Great Western Sugar
Co., 396 F.2d at 794. State courts also usually honor such regulations.
See People v. Parham, 60 Cal.2d 378, 384 P.2d 1001, cert.
denied, 377 U.S. 945, reh'g denied 379 U.S. 873 (1964). For the
procedure to be followed in the event of an adverse decision, see
North Carolina v. Carr, 264 F. Supp. 75 (W.D.N.C.), appeal
dism., 386 F.2d 129 (4th Cir. 1967).
- Requiring compliance with such regulations is not considered to be a
claim of privilege, and the regulations do not create a privilege against
discovery. There are, however, several common law privileges available only
to the government. These include the military or state secrets privilege,
which is absolute if validly claimed, and the deliberative process,
informant's, law enforcement evidentiary, and required reports privileges,
which are qualified. There are also privileges available for certain types
of presidential documents.
- In certain instances, a formal claim of privilege may be required to be
made by the head of the agency involved. See United States v.
Reynolds, 345 U.S. 1, 7-8 (1953); Carl Zeiss Stiftung v. V.E.B. Carl
Zeiss Jena, 40 F.R.D. 318 (D.D.C. 1966), aff'd, 384 F.2d 979
(D.C. Cir.), cert. denied, 389 U.S. 952 (1967). It is not necessary
to make a "formal" claim of privilege in objecting to production of
documents, but it is necessary in opposing a motion to compel or moving to
quash a subpoena. United States Attorneys should not make a formal claim of
a privilege available only to the government in any case without approval
from the Civil Division.
- Justice Department Materials and Witnesses.
28 C.F.R. §§
16.21 to 16.28 regulate the production of DOJ information or records
pursuant to subpoena or court demands when the United States is not a party
to the lawsuit:
(N)o employee or former employee of the Department of Justice
shall, in response to a demand, produce any material contained in the files
of the Department, or disclose any information or produce any material
acquired as part of the performance of that person's official status without
prior approval of the proper Department official in accordance with 16.24
and 16.25 of this part.
| 4-6.340
Area 4—Human Resources
|
This area includes all suits involving Medicare and Medicaid, and the
various state-federal cash assistance or welfare programs (e.g., Aid to
Families with Dependent Children, foster care, emergency assistance
programs), as well as Public Health Service cases, Indian Health Service
cases, and Randolph Shepard Act cases.
4-6.350
Area 5—Housing
|
This area includes all equitable housing and housing-related cases
involving the Department of Housing and Urban Development and other
government agencies. It includes cases involving Title VIII-Fair Housing,
suspension or debarments of HUD contractors and agents, Federal Housing
Administration Insured Housing Programs (single and multifamily), Government
National Mortgage Association (GNMA), National Flood Insurance Act, Federal
Crime Insurance Act, McKinney Act, Interstate Land Sales Act-defensive
suits, Housing and Community Development Act-Section 8 leased housing
program, Community Development Block Grant Program, conventional low rent
public housing program, tenants' rights, procedures and grievances regarding
rent increases, utility rate conversions, evictions, etc., disaster relief
(mobile homes), HUD relocation benefits, challenges to HUD refusal to expend
funds, nonjudicial foreclosure, miscellaneous HUD program litigation and
Farmers Home Administration and Veterans Administration Housing Program
litigation, and litigation under the McKinney Act.
4-6.360
Area 6—National Security, Military and Foreign Relations
|
This area includes suits involving the Department of Defense, including
the military departments, the Department of State, the Central Intelligence
Agency, the Selective Service, cases arising out of federal law enforcement
activities, "Bivens" litigation against Executive Branch officials,
Legislative Branch officials and Judicial Branch officials where the main
issue is not money damages, military base closing and realignment
litigation, military discharge, enlistment contracts, and correction of
military records cases, National Security Act, secrecy agreements, and
miscellaneous intelligence litigation, miscellaneous law enforcement
litigation, challenges to the Child Protection Restoration and Penalties
Enhancement Act of 1990, Radiation Exposure Compensation Act claims,
miscellaneous military litigation, foreign relations litigation, Selective
Service System, Army Corps of Engineers projects, military non-promotion and
missing in action litigation, Military Medical Program challenges, and
enforcement of intelligence subpoenas.
4-6.370
Area 7—Energy, Agriculture, Interior
|
This area includes cases involving the programs of the Departments of
Energy, Agriculture and Interior. Among the Agriculture cases in this area
are those involving the Food Stamp Program, the Agricultural Adjustment Act,
Commodity Marketing Orders, Packers & Stockyards Act, Federal Crop Insurance
Corporation, Animal Welfare Act, Federal Meat Inspection Act, Poultry
Products Inspection Act, and Commodity Price Support programs. Area 7 does
not include housing programs of the Farmers Home Administration, which fall
within Area 5. Energy Department cases in this area include those involving
nuclear energy policy, and other energy research and development programs. A
limited number of cases arising from energy price control programs also
remain. Most Interior Department litigation is within the jurisdiction of
the Environment and Natural Resources Division. A limited number of cases
not relating to environmental issues, such as First Amendment cases on the
use of public property, are within this area.
4-6.380
Area 8—Foreign and Domestic Commerce
|
This area includes challenges to the programs of the Department of
Treasury, Labor, Commerce, and Transportation and other matters involving
interstate and foreign commerce that cross agency lines, such as the
Davis-Bacon Act, the Service Contract Act, unemployment compensation and
other programs. Treasury Department matters include representation of the
Office of Foreign Assets Control in cases brought under the Trading with the
Enemy Act, International Emergency Economic Powers Act, and Foreign Assets
Control Regulations; the Bureau of Alcohol, Tobacco and Firearms in cases
under the Brady Act, the semiautomatic assault weapons ban of the 1994 Crime
Act, firearms license litigation and miscellaneous ATF cases; miscellaneous
Customs Service litigation; and miscellaneous Treasury litigation and
matters. Labor Department representation includes Employment and Training
Administration alien worker (H-1A, 1B, 2A) programs and other litigation;
Fair Labor Standards Act; Labor Management-Reporting & Disclosure Act;
Davis-Bacon Act; Office of Workers Compensation Programs/ Federal Employees
Compensation Act; Occupational Safety & Health Act; and miscellaneous Labor
program challenges. Commerce Department cases and matters involve Bureau of
the Census; Export Administration Act; National Weather Service; and
miscellaneous Commerce litigation and matters. Department of Transportation
representation includes litigation and matters involving Federal Aviation
Administration; Coast Guard; Federal Highway Administration; Maritime
Administration; Federal Railroad Administration; and miscellaneous other
Transportation programs and issues.
4-6.385
Area 9—Government Corporations and Regulatory Agencies
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This area includes actions against various regulatory agencies and
corporations, and suits involving agencies or matters not otherwise covered
by the above subject matter areas which are handled by the Federal Programs
Branch, including Small Business Administration cases, Farm Credit
Administration cases, Federal election laws, postal fraud and obscenity,
Federal Communications Act, miscellaneous GSA cases, veterans benefits
cases, other Veterans Administration litigation, Railway Labor Act, NASA
cases, miscellaneous Postal Service matters, Federal Trade Commission,
Religious Freedom Restoration Act and other religion issues, National
Endowment for the Arts and Humanities cases, postal rates and
classifications, TVA cases, miscellaneous cases involving White House
agencies and officials, and actions against the Legislative and Judicial
branches and officials of those branches.
4-6.390
Area 10—Employment Discrimination Litigation
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This area includes all suits challenging government employment decisions
or regulations affecting employment on the basis of prohibited
discrimination, including Title VII, Equal Pay Act, Age Discrimination in
Employment Act, Rehabilitation Act (handicapped discrimination-federal
employees), Executive Order 11246, Title VI, Title IX, Civil Rights
Attorneys' Fee Awards, and Equal Education Opportunities litigation.
The passage of the Civil Rights Act of 1991 has significantly affected
the defense of employment discrimination suits by the Department. The advent
of compensatory damages for intentional discrimination and the availability
of jury trials have resulted in a greater number of cases being filed and a
marked increase in the number of cases settled. While Landgraf v. USI
Film Products, Inc., ___ U.S. ___, 114 S.Ct. 1483 (1994), held that
substantive changes to the law are not retroactive, numerous issues remain
to be resolved regarding compensatory damages, taxability, interest,
bifurcation of pre- and post-Act claims, etc. In addition, there is a
compelling need for coordination between the Civil Division and the Civil
Rights Division on issues which affect the Department's enforcement and
defensive litigation. Accordingly, Assistant United States Attorneys should
raise issues of first impression with one of the Assistant Directors who
supervise Area 10 cases.
Frequently, plaintiffs also sue individual employees for damages in
sexual harassment cases. When the individual defendant seeks departmental
representation, close examination of the facts and circumstances is
necessary to determine whether the employee's action is within the scope of
employment and whether representation is in the interest of the United
States. In presenting such requests, the individual defendant must deny the
allegations of sexual harassment or explain the circumstances. Please assist
agency counsel in obtaining all the necessary information in a timely manner
to process such requests for representation.
4-6.391
Retaliation Claims Made By Federal Employees Under Title VII of the
Civil Rights Act, the Age Discrimination in Employment Act, and the
Rehabilitation Act
|
Regulations issued by the Equal Employment Opportunity Commission
expressly provide that claims of retaliation by federal employees are
actionable under Title VII of the Civil Rights Act, 42 U.S.C. 2000e et
seq., the Age Discrimination in Employment Act (ADEA), 29 U.S.C. 633a,
and the Rehabilitation Act, 42 U.S.C. 791. See 29 C.F.R. 1614.101;
1614.103(a). Moreover, the Solicitor General has argued in the Supreme Court
that such claims are actionable. See Brief for the Respondent in
Hunt v. Secretary of the Army, Sup. Ct. No. 95-5801 (Nov. 29, 1995).
Questions may be directed to Anne Gulyassy of the Federal Programs
Branch at (202) 514-3527; civ04(agulyass) or Marleigh Dover of the Appellate
Staff at (202) 514-3511; civ08(mdover).
4-6.392
Compensatory Damages Cap Under Section 102 of the Civil Rights Act
of 1991, 42 U.S.C. 1981a(b)
|
In Section 102 of the Civil Rights Act of 1991, 42 U.S.C. 1981a(b),
Congress for the first time made compensatory damages available to federal
employees who establish that they have been victims of intentional
discrimination prohibited by Title VII and the Rehabilitation Act. Section
1981a(a)(1)(b)(3) provides that "[i]n an action brought by a complaining
party under section 706 or 717 of the Civil Rights Act of 1964 * * * the
complaining party may recover compensatory * * * damages as allowed in
subsection (b) of this section * * *." Subsection (b) provides that in the
case of an employer with more than 500 employees, "[t]he sum of the amount
of compensatory damages shall not exceed, for each complaining party"
$300,000.
The Acting Solicitor General has determined that the $300,000 cap
applies per lawsuit, such that a plaintiff cannot recover more than $300,000
in a single lawsuit, no matter how many claims are alleged in the complaint.
Questions may be directed to Jennifer Rivera of the Federal Programs
Branch at (202) 514-3671; civ04(jrivera) or Marleigh Dover of the Appellate
Staff at (202)514-3511; civ08(mdover). Ms. Rivera or Ms. Dover should be
advised of any decisions issued which address this issue.
[updated May 1998]
4-6.395
Area 11—Disability Benefits and Employment Litigation
|
Area 11 has two primary sub-units. Well over half of the cases involve
challenges to the $52 billion a year social security benefits program. This
includes Social Security Act Title II (disability insurance) and Title XVI
(supplemental security income) benefits litigation. Individual claims for
benefits are delegated to the USAOs, with the Civil Division handling large
class actions or other significant challenges to the administrative scheme.
Defense of employment disability-related cases involving the Rehabilitation
Act of 1973, the Americans with Disabilities Act, and the Family and Medical
Leave Act are the other large group of cases in this area. In 1992, Congress
amended the Rehabilitation Act to make the employment standards of Title I
of the Americans with Disabilities Act (ADA) applicable to discrimination
actions under sections 501 and 504 of the Rehabilitation Act, 29 U.S.C.
791(g), 794(d). The Civil Division coordinates with the Civil Rights
Division on cases affecting the latter's enforcement responsibilities under
the ADA. Finally, discrete areas of litigation involving the Social Security
Administration, such as challenges to the Coal Industry Retiree Health
Benefits Act of 1992, are under this section.
4-6.396
Social Security Act Review Procedure
|
Over eight thousand actions were brought in federal district courts in
1995 challenging administrative determinations of the Commissioner of the
Social Security Administration. See 42 U.S.C. § 405, for judicial
review, 42 U.S.C. § 409 to 411, 416, for definitions, and 42 U.S.C.
§ 423, for disability cases. Regulations promulgated under the authority
of 42 U.S.C. § 405(a) dealing with disability cases appear in 20 C.F.R.
Parts 400 to 499.
Title 42 U.S.C. § 405(g) contemplates an administrative review
proceeding. Title 42 U.S.C. § 405(b) imposes on the Commissioner of
Social Security the duty of making findings of fact and a decision as to the
rights of any individual applying for payments. Title 42 U.S.C. § 405(g)
requires that a certified copy of the transcript of the administrative
record be filed with the government's answer to the complaint and after
completing administrative proceedings in certain remand cases. Judicial
review must be had in accordance with 42 U.S.C. § 405(g). See
Heckler v. Ringer, 466 U.S. 602 (1984).
Only "final decisions" of the Commissioner of Social Security are
reviewable. 42 U.S.C. § 405(g) Normally a claimant must exhaust his or
her administrative remedies. The Commissioner can waive the exhaustion
requirement, and the courts can waive the requirement upon a showing that
the claim is collateral to a claim for benefits and that irreparable harm
would ensue absent immediate relief. See Mathews v. Eldridge,
424 U.S. 323 (1976). 42 U.S.C. § 405(g) provides that judicial review
must be sought within 60 days of the Commissioner's final decision. The
Supreme Court has held that this is not a jurisdictional requirement but is
a period of limitations which can be tolled by the Commissioner and, in rare
cases, by the courts. Bowen v. City of New York, 106 S.Ct. 2022, 90
L.Ed.2d 426 (1986). If a motion to dismiss is to be filed for failure to
exhaust administrative remedies or untimely filing, the Office of Appellate
Operations, Office of Hearings and Appeals of the Social Security
Administration (SSA), can provide an affidavit reciting the relevant facts.
Pursuant to P.L. No. 103-296, the Social Security Independence and Program
Improvements Act of 1994, the function of the Secretary of Health and Human
Services in Social Security cases was transferred to the Commissioner of
Social Security effective March 31, 1995. In accordance with section 106(d)
of P.L. 103-296, Commissioner of Social Security, was substituted for the
Secretary of Health and Human Services, as the defendant in cases during the
transition period further action needed to continue pending suits. For
additional information on Social Security Act review procedures, see the Civil Resource Manual at 93.
4-6.397
Judgment Authorized
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Section 405(g) of Title 42 provides that a court may affirm, reverse, or
remand the decision of the Commissioner. Often plaintiffs' counsel will move
for remand in order to adduce further evidence for the record. There must,
however, be "good cause" for a remand (i.e., the proffered evidence must be
new and material, and that good cause must be shown by the proponent for the
failure to incorporate such evidence into the record during the prior
proceedings). See Cotton v. Bowen, 799 F.2d 1403, 1409 (9th
Cir. 1986); Willis v. Secretary of Health and Human Services, 727
F.2d 551, 553 (6th Cir. 1984); Chandler v. Secretary of Health and Human
Services, 722 F.2d 369 (8th Cir. 1983). The circuits have held that in
order for the proffered evidence to be "material" there must be a reasonable
possibility that it would have changed the outcome of the administrative
determination had it been considered earlier. See, e.g., Cotton v.
Bowen, 799 F.2d 1403; Chaney v. Schweiker, 659 F.2d 676, 679 (5th
Cir. 1981). A lost or inaudible recording tape of the administrative hearing
is also good cause for remand. H.R. Rep. No. 944, 96th Cong., 2d Sess. 59
(1980), reprinted in 1980 U.S. Code Cong. & Ad. News 1392, 1406-07.
For additional information on the types of judgments authorized under the
Social Security Act, see the Civil Resource Manual
at 94.
4-6.398
Social Security Act Attorney Fees
|
Section 406(b) of Title 42 authorizes the award of reasonable attorney
fees, up to a maximum of 25 percent of past due benefits, for successful
representation of social security claimants before the court. The majority
rule is that the court can award fees only for services rendered in
connection with proceedings before the court and may not award fees for
services before the Social Security Administration. See Gardner v.
Menendex, 373 F.2d 488, 490 (1st Cir. 1967); Burgo v. Harris, 527
F. Supp. 1157 (E.D.N.Y. 1981); Guido v. Schweiker, 775 F.2d 107 (3d
Cir. 1985); Ray v. Gardner, 387 F.2d 162, 165 (4th Cir. 1967);
Gardner v. Mitchell, 391 F.2d 582, 583 (5th Cir. 1968); Horenstein
v. Secretary of Health and Human Services, 35 F.3d 261 (6th Cir. 1994)
(en banc); Smith v. Sullivan, 986 F.2d 232 (8th Cir. 1993);
MacDonald v. Weinberger, 512 F.2d 144, 146 (9th Cir. 1975); and
Harris v. Secretary of Health and Human Services, 836 F.2d 496 (10th
Cir. 1987).
The Social Security Act § 206 fee is not in addition to the
benefits, but is subtracted from the claimant's award. Several courts of
appeals have condemned the practice of routinely awarding the 25 percent
statutory maximum without examination of what fee is reasonable in the
particular case. MacDonald v. Weinberger, 512 F.2d 144, 146-47 (9th
Cir. 1975); Webb v. Richardson, 472 F.2d 529, 537-38 (6th Cir. 1972)
overruled on other grounds by Horenstein v. Secretary of Health and Human
Services, 35 F.3d 261 (6th Cir. 1994) (en banc); McKittrick v.
Gardner, 378 F.2d 872 (4th Cir. 1967). Equal Access to Justice Act fees,
28 U.S.C. § 2412, are not paid out of the claimant's award. Additional
cases which oppose routine 25-percent fee awards include: Wells v.
Sullivan, 907 F.2d 367 (2d Cir. 1990); Coup v. Heckler, 834 F.2d
313 (3d Cir. 1987); McGuire v. Sullivan, 873 F.2d 974 (7th Cir.
1989); Cotter v. Bowen, 879 F.2d 359 (8th Cir. 1989); Starr v.
Bowen, 831 F.2d 359 (9th Cir. 1987); but see Rodriguez v.
Bowen, 865 F.2d 739 (6th Cir. 1989) (25 percent contingent fee agreement
is rebuttable presumption of reasonable fee).
All applications for fee awards should, as a routine matter, be
forwarded to the General Counsel's office in the Social Security
Administration for review and determination of whether the application
should be opposed. When the court enters an order awarding attorney fees in
a Social Security Act review case, SSA will release the § 206 fees to
plaintiff's attorney unless the United States Attorney advises the Civil
Division and SSA within thirty days of SSA's receipt of the fee award that
the award exceeds statutory limits or is excessive under the
circumstances.
4-6.399
Telefax Critical Mail Procedures
Because of the large volume of Social Security cases filed each year, it
is imperative that the Office of General Counsel (OGC), Social Security
Administration (SSA) receive notification of suit within three days from
service of the Summons and Complaint on a United States Attorney. The
telefax should be routed to Answer Staff of OGC (703) 305-1271 and to the
Office of Hearings and Appeals (703) 305-0623 (4th, 5th, 6th, 7th, and 10th
Cir); (703) 305-0739 (1st, 2d, 3rd, 8th, 9th, 11th and D.C. Cir.) please
provide the following information:
- Case caption;
- Plaintiff's Social Security number;
- District court where case was filed;
- Date complaint was
filed;
- Date United States Attorney was served;
- Name and
telephone number of Assistant United States Attorney handling the case;
and
- Date a petition in forma pauperis was filed, if
applicable.
Similarly, when a USAO is served with an order requiring compliance and
action by SSA during the trial of the case, the following information should
be telefaxed via the same routing indicator as above:
- Case caption;
- Plaintiff's Social Security number;
- Type of order issued;
- Operative time limits for SSA action;
and
- Name and telephone number of the Assistant United States
Attorney handling the case.
Copies of summonses and complaints and other pleadings and material
filed prior to the government's initial responses should be mailed to:
Office of the General Counsel
Social Security Division
Answer
Staff
5107 Leesburg Pike
Room 1704 Skyline Towers
Falls Church,
VA 22041-3255
In addition, SSA has designated certain items as "critical" and such
items are to be forwarded to a special post office box. Items considered to
be "critical" include: adverse court orders such as Magistrate and court
reversals, remands, motions for, or threats or contempt or default, or any
court order which contains a time limit for action to be commenced or
completed by the Commissioner. Such items should be forwarded to:
Office of the General Counsel
Social Security Administration
Post
Office Box 17054
Baltimore, Maryland 21203
All other, non-critical items including non-program matters, such as
tort actions, employment laws against SSA, should be addressed to:
Office of the General Counsel
Social Security Administration
6401
Security Boulevard
Room 611, Altmeyer Building
Baltimore, Maryland
21235
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