Justice Department Releases Memorandum on Litigation Guidelines for Civil Consent Decrees and Settlement Agreements
Attorney General Jeff Sessions signed a memorandum yesterday providing direction to all civil litigating components and United States Attorneys’ Offices (USAOs) on the principles that should be followed when resolving a civil lawsuit against a state or local governmental entity. State and local governments have unique roles under the Constitution, and the Department is committed to ensuring that its practices in these cases are transparent, impartial, and consistent with fundamental constitutional principles, including democratic control and accountability.
The memo includes guidelines on:
- How civil litigating components and USAOs should handle investigations and reports of allegations;
- The notice, approval, and substantive requirements for consent decrees and settlement agreements, as well as constitutional and policy considerations;
- Use and limits of monitors for state and local governmental entities.
These guidelines are designed to ensure that consent decrees with state and local governments are narrowly tailored to remedy the alleged violations, and are not used to extract greater relief from the state or local government than the Department could obtain through litigation. They are also structured to ensure that, where appropriate, responsibility is returned to democratically accountable state and local institutions. Requirements include, but are not limited to, limits on duration of a consent decree, clear triggers for termination, and prohibitions on using consent decrees to achieve general policy goals. The memo also clarifies the approval process for both consent decrees and settlement agreements, to ensure that they receive appropriate review by the Office of the Deputy Attorney General, the Associate Attorney General, and other senior Department leadership.
The full text of the memo can be found here.
 A consent decree is a negotiated agreement entered as a court order that is enforceable by the court. A settlement agreement is an out-of-court resolution that requires a signed agreement, or memorandum of understanding, and performance by the defendant. Required periodic assessment of compliance or noncompliance is handled by consultation of the parties without involving a court. If there is a breach of contract by the defendant, the government may file a lawsuit to enforce the agreement.