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How Does the Division Decide What Cases to Bring?

Generally, section attorneys review incoming complaints and conduct research to identify potential civil investigations. Based on that work, the attorney may recommend that the section chief authorize an investigation. If the section chief approves the investigation, the chief assigns one or more attorneys to it. The attorney interviews witnesses and other people with information about the investigation and requests documents and information related to the investigation. Depending on the complexity, investigations can last from a few months to more than one year. There are a few types of investigations, most notably those involving police misconduct and treatment of people in institutions, which are approved by the Office of the AAG instead of the section chief.

After completing the investigation, the investigating attorney may recommend filing suit or closing the investigation.  If the attorney recommends closing the investigation, he or she writes a memorandum to the section chief that explains the reasons for that recommendation.  To recommend filing suit, an attorney writes a justification memorandum (“j-memo”) describing the facts and legal arguments supporting a lawsuit and a proposed formal complaint to file with a federal court.  The section chief reviews the j-memo and determines whether to forward it to the Office of the AAG.  When deciding whether to forward the j-memo to the Office of the AAG, the section chief may consider several factors, such as: 

  • Could a suit end a significant or wide-spread discriminatory practice, clarify existing law, or apply existing law to new situations?
  • Has an unusually serious violation of civil rights law occurred?
  • Does the section have enough staff and other resources to bring the case and litigate it thoroughly? 
  • Can a private plaintiff or organization bring the case or does it require the Division’s expertise and resources? 

If approved, the section chief sends the j-memo and draft complaint to the Office of the AAG where it is reviewed by the Deputy Assistant Attorney General (deputy) assigned to supervise the section. If the deputy has questions about the j-memo, he or she talks with the section chief. After the deputy reviews the j-memo, he or she recommends that the AAG approve it, disapprove it, or discuss the recommendation further. 

If the AAG approves the recommendation, the section is authorized to bring suit. In some cases, the section may try to negotiate a settlement before filing suit in federal court. In other cases, the section may have tried unsuccessfully to negotiate a settlement before preparing the j-memo and draft complaint.

Updated July 28, 2017