The Federal Programs Branch of the Civil Division represents the Executive Branch in civil litigation in district courts throughout the United States. The Branch defends civil actions against the Executive Office of the President, Cabinet and other government officials, and virtually all of the approximately 100 federal agencies and departments of the Executive Branch in actions attacking the legality of government policies and decisions.
As part of its practice, the Branch handles issues at the cutting edge of constitutional law, including the scope of the powers of Congress, the President, and the Federal Courts as well as the limitations imposed by the First, Second, Fourth, Fifth, Tenth, Eleventh, and Fourteenth Amendments. Some examples include cases involving the Freedom of Information and Privacy Acts, classified information and the protection of national security interests, terrorism financing and designation, Executive privileges, and large-scale housing, education, health care, and agricultural programs, among others. Many Branch cases, such as regulatory disputes under the Medicare program, implicate billions of dollars in federal funds and affect the lives of millions of Americans. The Branch also represents the government, as the nation’s largest employer, in employment litigation, including cases alleging discrimination under the Civil Rights Act, the Age Discrimination in Employment Act, and the Rehabilitation Act, and cases alleging a variety of claims under the Civil Service Act and a panoply of labor laws. Although the majority of Branch litigation is defensive, the Branch brings affirmative proceedings 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 high-profile, fast-paced, and resource-intensive, and includes cases ranging from single plaintiffs raising significant issues of national importance to complex nationwide class actions. It requires coordination with involved agencies, the White House, and the Department’s leadership offices.
The Branch is composed of almost 120 attorneys and approximately 25 support personnel. It is headed by three Directors. Twelve litigation areas are managed by 3 Deputy Directors and 10 Assistant Directors.
Area 1: Affirmative Litigation, Regulatory Enforcement, & Third Party Subpoenas/Touhy Requests
Area 2: Non-Discrimination Personnel Litigation
Area 3: Government Information
Area 4: Human Resources (Principally HHS & 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
AREA 1: AFFIRMATIVE LITIGATION, REGULATORY ENFORCEMENT, & THIRD PARTY SUBPOENAS/TOUHY REQUESTS
Area 1 primarily involves bringing suits 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. It also includes actions to enforce administrative subpoenas as well as suits for civil penalties under such statutes as the Ethics in Government Act. Area 1 also involves defending the interests of the United States when government agencies or federal employees are served with third-party subpoenas/Touhy requests.
AREA 2: NON-DISCRIMINATION PERSONNEL LITIGATION
Nondiscrimination personnel litigation includes a wide variety of suits involving constitutional, statutory, regulatory and other issues related to federal employment. Challenges to the appointment and removal of officers and employees of the United States, including the President’s constitutional appointment authority and related separation of powers, delegation and ratification issues, are included in this area. This area also includes First Amendment, Fourth Amendment, Fifth Amendment due process and equal protection, and other constitutional and statutory challenges to government-wide statutes, regulations, and personnel programs and actions, such as claims of retaliation for speech, association or whistleblowing, revocations or denials of security clearances and related decisions, challenges to government employee ethical rules or personnel forms, denials of government pension and health benefits, job qualification standards, drug testing requirements for employees in sensitive positions, and claims regarding the impact of government shutdowns and other budgetary events on federal personnel and functions. This area routinely addresses the preclusive effect of the comprehensive and exclusive Civil Service Reform Act scheme and its various provisions, including the Whistleblower Protection Act, the Civil Service Retirement Act, and the Federal Service Labor-Management Relations Act, on the ability to bring direct challenges in district court to federal personnel disputes. This area also addresses mixed cases, that is, the area of overlap between the civil service scheme and employment discrimination law. This area sometimes includes defense of personnel actions taken by Department of Justice before the Merit Systems Protection Board.
AREA 3: GOVERNMENT INFORMATION
Government Information 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.
The largest volume of information cases involve the FOIA, 5 U.S.C. § 552. Those FOIA cases that are handled by the Branch either present novel or unsettled questions of law, are exceptionally complex, or are particularly sensitive due to the nature of the documents requested. A large number of these FOIA matters seek disclosure of sensitive national security information. Such cases have included demands under FOIA for information about surveillance programs and the FBI’s confidential operating guidelines for domestic counter-terrorism and intelligence activities; records and information relating to specifically identified counter-terrorism investigations; requests to the Intelligence Community for documents related to the Senate Select Intelligence Committee’s investigation and report on detention and interrogation; requests pertaining to Guantanamo Bay detainees; requests for information relating to the use and legality of drone strikes, including data on civilian casualties; suits against the State Department and FBI seeking email records of former Secretary Clinton and several of her State Department advisors; requests for records related to immigration Executive Orders; and requests for records related to the investigation into Russian interference in the election.
The Branch also handles high-profile Privacy Act matters. These cases often involve an alleged improper disclosure of personal information, frequently an alleged leak to the media. Examples of past disclosure cases include Hatfill v. Mukasey, a Privacy Act claim related to the 2001 anthrax attack, and Kelley v. FBI, a Privacy Act case related to the Petraeus investigation. Other Privacy Act cases focus on the Act’s safeguards provision, which requires agencies to properly safeguard protected information. An example of such a case that the Branch handled was a series of putative class actions, consolidated in the District of Columbia by the Judicial Panel for Multidistrict Litigation, brought as a result of the data breach at the Office of Personnel Management.
The Federal Advisory Committee Act (FACA) has generated fewer but no less significant cases. The FACA generally requires that advisory committees not comprised wholly of government employees be open to the public and comply with various procedural requirements. The Branch routinely advises agencies regarding the FACA implications of their work, and defends litigation nationwide. Recent examples include the defense of the EPA in a case brought by Pebble Limited, which was seeking to build and operate a mine in areas of Alaska traditionally used by the native population for salmon fishing, and the defense of numerous suits involving the Presidential Advisory Commission on Election Integrity in FACA litigation.
The Right to Financial Privacy 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. 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. Although cases under both the Right to Financial Privacy Act and the Sunshine Act occasionally arise, the Branch has no current cases under these statutes.
The Federal Records Act, 44 U.S.C. §§ 2901, et seq. (FRA), governs the maintenance and management of records that document agency policies and decisions and provide essential information about agency activities. The National Archives and Records Administration is responsible for government-wide compliance with the FRA. Although the FRA provides no private right of action, case law provides for a limited claim under the APA to enforce 44 U.S.C. § 3106, which addresses the unlawful removal and destruction of records. Examples of FRA cases the Branch has handled are cases pertaining to former Secretary of States Clinton and Powell’s use of private email in lieu of an official State Department email system.
AREA 4: HUMAN RESOURCES (PRINCIPALLY HHS & EDUCATION)
Area 4 includes all constitutional, statutory and Administrative Procedure Act (APA)-based challenges to programs administered by the Department of Health and Human Services (HHS) and the Department of Education (DOE).
The HHS cases include challenges to the Affordable Care Act (ACA) and its implementing regulations, as well as to individual HHS decisions involving the interpretation of provisions of the ACA, challenges to the Medicare statute and implementing regulations, to individual HHS coverage and payment determinations, often involving potentially billions of dollars, and to the procedures and practices followed in making those coverage and payment determinations.
Challenges by states regarding their federal Medicaid matching payments as well as suits concerning federal Medicaid requirements, policies and procedures are also within Area 4, as are challenges to federal decisions to approve or disapprove Medicaid State plan amendments. The area also encompasses challenges by states and individuals under other federal/state government programs such as Temporary Assistance to Needy Families (TANF); Foster Care, Adoption Assistance and Refugee Assistance, among others. Suits involving the Public Health Service (including some suits against the National Institutes of Health, the Indian Health Service, The National Health Scholarship Program, and others) are also in Area 4.
Area 4 Department of Education (DOE) cases include those brought under the Higher Education Act (including various federal grant and student loan programs), the Individuals with Disabilities Education Act, and various other DOE programs.
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. Much of the HUD litigation involves class actions by residents of, and applicants for, federally assisted public housing. Other cases involve challenges to HUD’s mortgage insurance program and other HUD or HUD-funded programs and regulations. The USDA litigation focuses on the farm credit operations of the Farm Services Agency and its predecessor, the Farmers Home Administration. The VA litigation involves VA mortgages, and the FEMA litigation concerns challenges to the agency’s disaster assistance and flood insurance programs.
AREA 6: NATIONAL SECURITY, NATIONAL DEFENSE & FOREIGN POLICY
National Security and Foreign Relations Litigation (Area 6) handled by the Federal Programs Branch includes a wide range of challenges to policies and actions relating to the national security, national defense, and foreign policies of the United States, typically seeking declaratory and injunctive relief. In these actions, the Branch represents several agencies and officials sued in their official capacity, including the President, the Department of State, the Department of Defense and its various components, the Armed Forces of the United States, and the Intelligence Community, including the Federal Bureau of Investigation, Central Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence. In such litigation, the Department of Justice defends the statutory and constitutional authority of the President and the Executive Branch in the areas of national security, national defense, and foreign policy, as well as the authority of Congress to establish personnel policies for the Armed Forces.
Litigation in this area has included defense of United States’ foreign intelligence surveillance activities undertaken under the Foreign Intelligence Surveillance Act; the protection of classified national security information through the state secrets privilege; the defense of military personnel policies and actions; the defense of United States’ watch-listing policies to protect U.S. transportation systems, including challenges to the No Fly List and Terrorist Screening Database; the defense of the counter-terrorism investigative actions of the Federal Bureau of Investigation; and the defense of foreign policy interests of the United States, including the presentation the United States’ position in cases raising challenges against foreign states under the Foreign Sovereign Immunity Act, and assertions of immunity by the United States for certain foreign officials and international organizations subject to judicial process in U.S. courts. This area also includes the defense of the United States’ interests and actions in habeas proceedings brought by terrorist detainees held by the United States at the United States Naval Station, Guantanamo Bay, Cuba.
AREA 7: AGRICULTURE, ENERGY & INTERIOR
This area includes the programmatic litigation of the Departments of Agriculture, Interior, and Energy. USDA cases in this area include matters pertaining to food safety and inspection, genetically modified crops, animal and plant health and inspection, agricultural marketing and promotion programs, commodity subsidy programs, and food programs such as food stamps. The Interior Department programs in this area are generally those programs not pertaining to natural resources, including 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 have included cases involving the transportation and disposition of nuclear materials and the Energy Star program.
AREA 8: FOREIGN AND DOMESTIC COMMERCE
Area 8 involves the defense of a broad range of 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. Much of our work in this area 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 the sanctions, including designations of persons and freezing of their assets pursuant to the Trading with the Enemy Act and the International Emergency Economic Powers Act, actions denying licenses to access blocked property, as well as challenges to civil penalties imposed for sanctions violations.
This area also includes matters involve Bureau of the Census; Export Administration Act; National Weather Service; and miscellaneous Commerce and Treasury litigation or other matters.
AREA 9: MISCELLANEOUS LITIGATION
This area includes actions involving regulatory agencies and issues not otherwise covered by other litigation areas handled by the Branch. Suits in this area frequently involve claims challenging actions by Congress or the Executive Branch under the Free Speech, Free Exercise, and Establishment Clauses of the First Amendment. Typical client agencies in this area include the Federal Communications Commission, the Federal Elections 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 significant 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 (prohibiting disability discrimination), Executive Order 11246, and other statutes. This area also includes non-employment disability discrimination challenges, such as those under Section 504 of the Rehabilitation Act to programs or activities conducted by federal agencies and under Title VI regarding claims of discrimination by recipients of federal funds. Our office is typically responsible for nationwide class actions and actions that implicate agency-wide policies or raise issues of first impression. Area 10 also provides significant advice, assistance, and training to US Attorney’s Offices and agencies nationwide and to client agencies. In particularly important or sensitive cases, the Branch represents the Department and other agencies in administrative litigation brought under federal employment discrimination laws and regulations. In addition, this area devotes substantial time to reviewing proposed legislation, regulations, and Executive orders for litigation risk, and also reviews certain proposed filings by the Civil Rights Division and the Equal Employment Opportunity Commission to ensure consistency with the Department’s litigation position and to ensure that the Department’s defensive interests are not compromised.
AREA 11: SOCIAL SECURITY ADMINISTRATION AND DEPARTMENTS OF LABOR, TRANSPORTATION, AND VETERANS AFFAIRS
Included in this area is litigation involving four major agencies - the Department of Labor, the Department of Veterans Affairs, the Department of Transportation, and the Social Security Administration. In addition, historically, certain special litigation has been assigned. While three of the four agencies administer massive benefits programs, all four have many varied programs not related to disability benefits. Federal Programs does not generally handle the defense of individual benefits claims decisions that constitute the vast majority of federal court cases in which these agencies are defendants. Instead, we defend new policy initiatives enacted by Congress or promulgated in regulations, or attacks on existing programs that have wide application or involve significant pecuniary exposure. On occasion, we handle litigation involving individual claims if the unique circumstances of a case warrant such handling.
AREA 12: DEPARTMENT OF JUSTICE & DEPARTMENT OF HOMELAND SECURITY
Area 12 includes litigation concerning Department of Justice programs (excluding most FBI cases, which are covered generally as part of Area 6), Second Amendment challenges, and Department of Homeland Security cases. Litigation in this area often involves constitutional challenges (such as claims with respect to border searches, immigration regulations, and law enforcement programs). Client agencies in this area of litigation include components of these Departments (such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Bureau of Prisons (BOP), Customs and Border Patrol (CBP), and Citizen and Immigration Services (USCIS)).