5-5.000 - Procedures

5-5.100 General Procedures in District Court Litigation
5-5.111 Transmittal of Pleadings and Memoranda
5-5.112 Stipulations
5-5.121 Suits Against the United States, Federal Agencies or Officials—Appearances by United States Attorneys
5-5.122 Suits Against the United States, Federal Agencies or Officials—Removal of State Court Actions
5-5.124 Service of Process
5-5.125 Suits Against the United States, Federal Agencies or Officials—Counterclaims
5-5.130 Proposed Findings of Fact and Conclusions of Law
5-5.140 Costs
5-5.151 Recording Judgments
5-5.152 Perfecting Lien of Judgments
5-5.161 Decisions and Appeals—Copies of Decisions to be Forwarded to Supervising Section
5-5.162 Recommendation With Respect to Appeal
5-5.210 Settlement Authority

5-5.100 - General Procedures in District Court Litigation

The instructions set forth in Sections 5-5.111 apply to all cases under supervision of the Division, whether they be cases directly referred to the United States Attorney, cases for which primary responsibility has been assigned or delegated to United States Attorneys by the Assistant Attorney General in accordance with ENRD Directive No. 2016-04, cases which are the joint responsibility of the Division and the United States Attorneys or cases which are the primary responsibility of the Division

[cited in JM 5-7.120; JM 5-7.500; JM 5-9.500]

[Updated April 2018]


5-5.111 - Transmittal of Pleadings and Memoranda

In cases directly referred to the United States Attorney and cases for which primary responsibility has been assigned or delegated to United States Attorneys, except for such papers as are originally prepared in the Division and then transmitted to the United States Attorneys for filing or where a Division attorney has appeared in the case or otherwise receives filings directly from the court’s Case Management/Electronic Case File system, the United States Attorneys should provide by e-mail to the appropriate Section the complaint, information or indictment, and all other papers filed by any party or by the court including pleadings, orders, proposed findings, judgments, opinions, briefs, memoranda, offers in compromise, plea offers, and any other instrument or record. Procedures applicable to each Section of the Division can be found in JM 5-6.000 to 5-15.000.

[Updated April 2018]


5-5.112 - Stipulations

The United States Attorney may stipulate to any fact required to be proved by the government, or to the authenticity of government records. In no case except certain direct referral matters should a United States Attorney enter into a stipulation concluding the substantive rights of the United States, or consent to entry of judgment in favor of the adverse party, without specific authority from the Environment and Natural Resources Division. Specific authority from the Environment and Natural Resources Division to enter into such stipulations, or consent to judgment, is required in all delegated matters and in direct referral matters involving enforcement of wildlife-related statutes listed in 5-10.120.

[Updated April 2018]


5-5.121 - Suits Against the United States, Federal Agencies or Officials—Appearances by United States Attorneys

Upon being served with the complaint designating the United States or a federal official or agency as a defendant, the United States Attorney shall immediately take such steps as are necessary to protect the federal interest, and shall immediately transmit by email the complaint and other papers to the relevant section of ENRD. However, when time permits, no appearance should be made until instructions from the Division are obtained.

[Updated April 2018]


5-5.122 - Suits Against the United States, Federal Agencies or Officials—Removal of State Court Actions

An action against the United States, a federal agency, or a federal official, brought in a state court, may be removed to a federal court (28 U.S.C. § 1442). The United States Attorney immediately should seek from the relevant section of ENRD instructions as to whether an action in a state court should be removed to a federal court, and before receiving instructions, he/she should take no steps in the state court which would prevent removal.

[Updated April 2018]


5-5.124 - Service of Process

Service upon the United States requires: (1) service upon the United States Attorney in the manner specified by Fed. R. Civ. P. 4(i)(1)(A); and (2) “by also sending a copy of the summons and of the complaint by registered or certified mail to the Attorney General of the United States at Washington, District of Columbia.” Fed. R. Civ. P. 4(i)(1)(B).

The Attorney General has designated the Assistant Attorney General for Administration, Justice Management Division, to accept service of summonses and complaints for him/her. See 28 C.F.R. § 0.77(j). United States Attorneys have no authority to accept service on behalf of the Attorney General. In any action attacking the validity of an order of an officer or agency of the United States not made a party to the suit, service must be made "by also sending a copy of the summons and of the complaint by registered or certified mail to the officer or agency." Fed. R. Civ. P. 4(i)(1)(C).

[Updated April 2018]


5-5.125 - Suits Against the United States, Federal Agencies or Officials—Counterclaims

In suits against federal agencies, or federal employees acting in their official capacity, United States Attorneys should evaluate whether there is a basis for a counterclaim (especially a compulsory counterclaim) or a separate suit on behalf of the defendant agency or other federal agency. Such action typically should be filed in the name of the United States and may be filed only with the prior approval of the Assistant Attorney General for the Environment and Natural Resources Division.

[Updated April 2018]


5-5.140 - Costs

Payment of costs should generally not be waived. Whenever money is accepted as full or partial payment, or in compromise, it should be applied first to court costs.

[updated April 2018]


5-5.151 Recording Judgments

Whenever a judgment is obtained by the United States affecting title to its property, the United States Attorney should consider recording the judgment as appropriate and in accordance with applicable law.

[cited in JM 5-7.530]

[Updated April 2018]


5-5.152 - Perfecting Lien of Judgments

Whenever a judgment for money is recovered by the United States, the United States Attorney should consider taking the necessary action to perfect and preserve the lien of the judgment upon all property of the judgment debtor in the district in which the judgment has been entered or in any other district where the property of the defendant may be found as appropriate and in accordance with applicable law.

[Updated April 2018]


5-5.161 - Decisions and Appeals—Copies of Decisions to be Forwarded to Supervising Section

In cases subject to the supervision of the Environment and Natural Resources Division in which an appealable decision (either final or interlocutory) is rendered, the United States Attorney shall forward by email a copy of the decision to the Chief of the Section involved and any Division attorney assigned to the case. The United States Attorney must also immediately transmit a copy of the decision to the Appellate Section of ENRD if the decision is adverse to the government's position, or if any other party to the case files a notice of appeal from the decision (whether or not the decision is adverse to the United States). Procedures for the handling of appeals are set out in JM Title 2, APPEALS, and JM 5-8.320 and 5-11.117.

[Updated April 2018]


5-5.162 - Recommendation With Respect to Appeal

In any case in which a United States Attorney has had lead responsibility (either by direct referral, delegation or otherwise) and in which an appealable decision (either final or interlocutory) is rendered, the United States Attorney shall proceed in accordance with the provisions of JM 2-2.000, 5-8.320, and 5-11.116 concerning consideration of, and the procedures for, an appeal of a decision that is adverse in whole or in part to the United States.

{updated May 2018]


5-5.210 - Settlement Authority

The authority delegated by the Attorney General to the Assistant Attorney General to compromise suits is set forth in 28 C.F.R. §§ 0.65 through 0.69c and 28 C.F.R. §§ 0.160 through 0.172. The Assistant Attorney General has redelegated to the Deputy Assistant Attorneys General, the Section Chiefs and Deputy Chiefs, and to the United States Attorneys, authority to compromise, close, or dismiss, certain types of cases pursuant to ENRD Directive No. 2016-04 and ENRD Directive No. 2016-03 (applicable to the Environmental Enforcement Section and the Environmental Defense Section). These directives specify procedures for the compromise, closing or dismissal of certain cases, as well as limitations on these delegations.

Except for those claims expressly and specifically authorized to be compromised, closed or dismissed by the United States Attorneys, no claim or case within the area of responsibility of the Environment and Natural Resources Division may be compromised, closed or dismissed without the specific authority of the Attorney General, the Assistant Attorney General, or the appropriate Section Chief or Deputy Chief. Instructions with respect to submitting proposed settlements or compromises for approval, and for authorization to dismiss cases, are set forth in JM 5-6.000 to 5.15.000 for the various Sections of the Division.  See also ENRD Memorandum, “Settlement Payments to Third Parties in ENRD Cases” (Jan. 8, 2018).

[cited in JM 5-7.600; JM 5-8.600; JM 5-9.600; JM 5-10.600; JM 5-10.620; JM 5-10.630]

[Updated April 2018]

Updated September 19, 2018