|4-6.010||Federal Programs Branch—Subject Matter Areas|
|4-6.210||Delegated Affirmative Cases|
|4-6.220||Monitored Affirmative Cases|
|4-6.230||Personally Handled and Jointly Handled Affirmative Cases|
|4-6.240||Affirmative Cases—Suits Against State Governments, Agencies or Entities|
|4-6.250||Affirmative Cases—Counterclaims, Amicus Participation and Motions to Intervene|
|4-6.300||Area 1—Affirmative Litigation and Regulatory Enforcement|
|4-6.320||Area 2—Federal Employment(Nondiscrimination)|
|4-6.330||Area 3—Government Information|
|4-6.332||Area 3—Government Information—General Information for Particular Case Types (Including Jurisdiction and Exhaustion of Administrative Remedies)|
|4-6.340||Area 4—Health, Human Services, and Education|
|4-6.350||Area 5—Housing & Community Development|
|4-6.360||Area 6—National Security, National Defense, & Foreign Policy|
|4-6.370||Area 7—Agriculture, Energy, & Interior|
|4-6.380||Area 8—Foreign and Domestic Commerce|
|4-6.385||Area 9—Government Corporations & Miscellaneous Litigation|
|4-6.390||Area 10—Employment Discrimination Litigation|
|4-6.395||Area 11—Labor, Transportation, Veterans Affairs & Social Security|
|4-6.396||Social Security Act Review Procedure|
|4-6.398||Social Security Act Attorney Fees|
|4-6.399||Notifying SSA of New Benefits Cases|
|4-6.400||Area 12—Department of Justice & Department of Homeland Security|
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. The Branch also handles sensitive Title VII employment discrimination cases, including class actions. 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 Federal Programs Branch is located at 20 Massachusetts Avenue, NW, Washington, DC 20530.The Branch's twelve subject matter areas are as follows:
Area 1—Affirmative Litigation, Regulatory Enforcement, Financial Institutions, & Third Party Subpoenas
Director: Joseph H. Hunt, (202) 514-1259.
Assistant Director: Jacqueline Coleman Snead, (202) 514-3418.
Area 2—Federal Employment (Non-Discrimination)
Director: Jennifer D. Ricketts, (202) 514-3671.
Assistant Director: Susan K. Rudy, (202) 514-2071.
Area 3—Government Information
Director: John R. Griffiths, (202) 514-1259.
Deputy Director: Elizabeth J. Shapiro, (202) 514-5302.
Assistant Director: Marcia Berman, (202) 514-2205.
Area 4—Health, Human Services, & Education
Director: Jennifer D. Ricketts, (202) 514-3671.
Deputy Director: Sheila M. Lieber, (202) 514-3786.
Assistant Director: Joel L. McElvain, (202) 514-2988.
Area 5—Housing & Community Development (includes HUD & FEMA)
Director: John R. Griffiths, (202) 514-4652.
Assistant Director: Lesley R. Farby, (202) 514-3481.
Area 6—National Security, National Defense, & Foreign Policy (includes Defense, State, FBI, & Intelligence Community)
Director: Joseph H. Hunt, (202) 514-1259.
Deputy Director: Anthony J. Coppolino, (202) 514-4782.
Assistant Director: Terry M. Henry, (202) 514-4107
Area 7—Agriculture, Energy, & Interior
Director: John R. Griffiths, (202) 514-4652.
Assistant Director: Eric R. Womack, (202) 514-4020.
Area 8—Foreign and Domestic Commerce (includes Commerce & Treasury)
Director: Joseph H. Hunt, (202) 514-4651.
Assistant Director: Diane Kelleher, (202) 514-4775.
Area 9—Government Corporations & Miscellaneous Litigation
Director: John R. Griffiths, (202) 514-4652.
Assistant Directors: Lesley R. Farby, (202) 514-3481; Eric R. Womack, (202) 514-4020.
Area 10—Employment Discrimination
Director: Jennifer D. Ricketts, (202) 514-3671.
Assistant Directors: Joshua E. Gardner, (202) 514-7583; Carlotta P. Wells, (202) 514-4522.
Area 11—Labor, Transportation, Veterans Affairs, & Social Security
Director: John R. Griffiths, (202) 514-4652.
Assistant Director: Judry L. Subar, (202) 514-3969.
Area 12—Department of Justice (BOP, ATF, Second Amendment Litigation, not FBI) & Department of Homeland Security
Director: Joseph H. Hunt, (202) 514-1259.
Assistant Director: John R. Tyler, (202) 514-2356.
[revised June 2015]
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:
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.
- 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.
- 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—Federal Employment (Nondiscrimination)
This area 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, programs, and actions relating to personnel or federal employment, 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.
[updated December 2015]
4-6.330 - Area 3—Government Information
Note. 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.
[revised July 2012] [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 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 provisions of the Affordable Care Act (ACA), the Medicare statute, and the Medicaid statute, and their implementing regulations. The area also includes individualized challenges regarding actions taken pursuant to these statutes or regulations, such as challenges to determinations concerning Medicare coverage and payment or the procedures used in making those determinations. States also bring challenges regarding their federal Medicaid matching payments, and various entities may challenge federal decisions to approve or disapprove Medicaid State plan amendments.
The area also encompasses challenges under other federal/state government programs administered by HHS such as Temporary Assistance to Needy Families (TANF), Foster Care, Adoption Assistance and Refugee Assistance. This area also includes suits involving the Public Health Service, the National Institutes of Health, the Indian Health Service, the National Health Scholarship Program, and other health-related agencies.
The DOE cases include those brought under the Higher Education Act (including various federal grant and student loan programs), the No Child Left Behind Act, the Individuals with Disabilities Education Act (IDEA), and various other DOE programs.
[updated September 2015]
4-6.350 - Area 5—Housing & Community Development
This area includes all equitable and housing-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 who contend that HUD has funded racially discriminatory public housing owned and operated by local public housing authorities, and/or that HUD has permitted the local public housing authorities to provide HUD-financed rental housing vouchers on a racially discriminatory basis. Other cases involve challenges to HUD’s reverse mortgage insurance program and other HUD or HUD-funded programs. 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 disaster assistance and flood insurance.
4-6.360 - Area 6—National Security, National Defense, & Foreign Policy
This area includes a wide range of challenges to policies and actions relating to the national security, national defense, and foreign policies of the United States. Suits in this area include constitutional, statutory and regulatory challenges to national security, foreign affairs, and military policies. Defense of these actions include representation of officials in their official capacities, of 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 Central Intelligence Agency, National Security Agency, and Office of the Director of National Intelligence. One of the main objectives in defending such suits is to protect the constitutional prerogatives of the Executive Branch in the areas of national security, national defense, and foreign policy.
This area includes litigation involving 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 and through the defense or enforcement of non-disclosure “pre-publication” review requirements; the defense of military personnel policies and actions; the defense of United States’ watchlisting policies to protect U.S. transportation systems, including challenges to the No Fly List and Terrorist Screening Database; the defense of the law enforcement and counter-terrorism investigative actions of the Federal Bureau of Investigation and related FBI information; and the defense of foreign policy interests of the United States, including the defense of U.S. policies being undertaken overseas, 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 in Guantanamo, Cuba.
[updated September 2015]
4-6.370 - Area 7—Agriculture, Energy, & Interior
This area includes the programmatic litigation of the Department 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 (which are within the jurisdiction of the Environment and Natural Resources Division), 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 of nuclear materials and the Energy Star program. A limited number of cases arising from energy price control programs also remain.
The statutes and government programs at issue in this area include 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.
[updated September 2015]
4-6.380 - Area 8—Foreign and Domestic Commerce
Area 8 involves the defense of a broad range of constitutional and Administrative Procedure Act 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 Treasury and State Departments (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 involving Bureau of the Census; Export Administration Act; National Weather Service; and miscellaneous Commerce and Treasury litigation or other matters.
[updated September 2015]
4-6.385 - Area 9—Government Corporations & 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, and the National Mediation Board. This area also includes actions against officials and entities from both the Legislative and Judicial Branches.
[updated September 2015]
4-6.390 - 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 under Section 504 of the Rehabilitation Act to programs or activities conducted by federal agencies. 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 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.
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 discrimination 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 discrimination or explain the circumstances. Please assist agency counsel in obtaining all the necessary information in a timely manner to process such requests for representation.
[new September 2015]
4-6.395 - Area 11—Labor, Transportation, Veterans Affairs & Social Security
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. Several of these agencies administer massive benefits programs, but all of them also have many varied programs not related to disability benefits. The defense of individual benefits claims decisions that constitute the vast majority of federal court cases in which these agencies are defendants is generally delegated to the USAOs or, in the case of the Veterans-related benefits, are generally handled by the Department of Veterans Affairs and/or the National Courts Section of the Civil Division’s Commercial Litigation Branch. Federal Programs defends district court cases involving 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.
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
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 - Notifying SSA of New Benefits Cases
Because of the large volume of Social Security individual benefits cases filed each year, it is imperative that the Office of General Counsel for the Social Security Administration (SSA), through the appropriate Regional Counsel's Office, receive notification of suit within five days from service of the Summons and Complaint on a United States Attorney.
Unless otherwise agreed to by SSA, for all lawsuits against SSA involving individual benefits, email (do not fax) notifications of suit to two offices:
- SSA's Civil Actions Branch, in the Office of Disability Appeals and Review (ODAR) (the central agency office that prepares all certified administrative records) and
- The SSA Regional Office of General Counsel responsible for litigation in your district.
Please include the plaintiff's first and last names in the subject line, and copy both the ODAR and the Regional Office of General Counsel on the same email. Include the following information in the notification email:
- Plaintiff's first and last names
- Plaintiff's full Social Security Number
- Civil action number and district
- Date of filing of complaint
- Date that service was effected on United States Attorney's Office (and any defects in service)
- Answer due date
- Name of Assistant U.S. Attorney
- Whether the plaintiff is pro se
- Date of any filing for petition for in forma pauperis status
If the plaintiff's full Social Security number is not listed on the complaint, please send the email notification to SSA but note the omission, and obtain this information from the Clerk's office or plaintiff's attorney. Without the full number, SSA cannot be sure that it is producing the proper record.
In almost all cases filed against the agency, SSA's Regional Office of General Counsel receives Notices of Electronic Filing (NEFs) through the "interested party" status with the courts. If you are aware of any cases filed against the agency in which Regional Office of General Counsel is not receiving NEFs from the court, please forward all such NEFs to the applicable email addresses for the Regional Office of General Counsel and, if appropriate, facilitate communication between the court and the Regional Office of General Counsel to ensure direct transmission of NEFs to the appropriate email address for the Regional Office of General Counsel. When the Regional Office of General Counsel receives NEFs, you do not need to forward emails or send copies of court decisions.
ODAR: The email addresses for the ODAR branches are as follows:
ODAR.OAO.Court.firstname.lastname@example.org—For suits in the 7th and 9th Circuits
ODAR.OAO.Court.email@example.com—For suits in the 1st, 3rd, 4th, and 10th Circuits
ODAR.OAO.Court.firstname.lastname@example.org—For suits in the 6th, 11th, and D.C. Circuits
ODAR.OAO.Court.email@example.com—For suits in the 2nd, 5th, and 8th Circuits
Regional Office of General Counsel: for the Regional Offices of General Counsel, the jurisdictional assignments may vary over time. Please contact your Regional Office of General Counsel for the correct current notification email address.
[updated August 2013]
4-6.400 - Area 12—Department of Justice & Department of Homeland Security
This area includes litigation concerning Department of Justice programs (excluding FBI cases, which are handled in Area 6), Department of Homeland Security programs, and Second Amendment claims. This litigation often includes constitutional challenges, such as claims regarding border searches, immigration regulations, law enforcement programs, or TSA screening methods. The Second Amendment cases involve a variety of challenges to various firearms statutes and regulations.
Clients include many components of these two departments, such as the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF), the Bureau of Prisons (BOP), Customs and Border Patrol (CBP), the Transportation Security Administration (TSA), and Citizen and Immigration Services (USCIS).
[updated September 2015]