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Defensive Litigation

     The Civil Division of the United States Attorney's Office in the District of New Hampshire has three Assistant U.S. Attorneys, one Paralegal Specialist and several support staff responsible for defense work. Their mission is to represent the interests of the United States in lawsuits brought against it or its agencies and employees. These cases include tort cases filed against the United States under the Federal Tort Claims Act; claims against individual employees of the United States alleging constitutional violations; discrimination cases based on race, color, sex, religion, national origin, disability or age brought by federal employees; Administrative Procedures Act litigation; Freedom of Information Act/Privacy Act cases, appeals of denial of Social Security disability claims, and tax cases. The defensive component of the Civil Division also handles summons enforcement cases, writs of entry and ejectment actions.

Tort Cases

     A tort, or negligence, claim against the United States must be brought pursuant to the Federal Tort Claims Act (FTCA), 28 U.S.C. §§ 1346(b), 2671, et seq. Examples of tort claims include a slip and fall-type injury which occurred on federal property, an automobile accident involving a government-owned vehicle or driver, and medical malpractice committed by a federal employee or occurring at a federal facility. A recent change in the law has also provided FTCA coverage to many federally-funded community health care centers.

     The FTCA is a waiver of the United States' sovereign immunity. There are administrative requirements that must be met prior to bringing suit, as well as several exceptions to the FTCA's authority to sue the United States. The exceptions include ones for injury arising out of the discretionary functions of the United States Government; third-party contractors; misrepresentation, libel and slander; law enforcement; and the Feres doctrine, which forbids suit against the U.S. for injuries incident to military service. The White Mountains and several flood control areas, which are all federally-owned, provide places of recreation to residents of and visitors to the State of New Hampshire. Injuries suffered on these federally-owned properties may be subject to New Hampshire's Recreational Use Statute.

Constitutional Violations

     A percentage of the cases handled by the defensive component of the Civil Division in New Hampshire consists of cases brought by those who believe that their civil rights have been violated by employees of the United States. A claim for constitutional violations against employees of the United States is likely to be met with a defense of absolute or qualified immunity. A great number of the actions taken by federal employees in the course of their employment with the United States are protected by these defenses.

     Another avenue available to individuals who believe that their constitutional rights have been violated by non-federal individuals or entities is to request the assistance of the U.S. Department of Justice Civil Rights Division or local Federal Bureau of Investigation (FBI) offices. Those offices will consider the complaint and take whatever further action or investigation as may be appropriate.

The Civil Rights Division can be reached at:

Civil Rights Division
U.S. Department of Justice
10th & Pennsylvania Avenue, N.W.
Washington, DC 20530.

The address for the FBI is:

Resident Agent in Charge
Federal Bureau of Investigation
Independence Place
15 Constitution Drive
Bedford, NH 03110.

Discrimination Cases

     In the last few years, the number of employment discrimination cases brought in the District of New Hampshire has increased. These are cases brought by federal employees or potential federal employees who believe they have been the victims of discrimination or retaliation during the course of their federal employment. The claims can fall within Title VII of the Civil Rights Act (race, color, sex, religion, national origin), the Rehabilitation Act (disability), or the Age Discrimination in Employment Act (age).

     To invoke the jurisdiction of the United States District Court, a discrimination plaintiff must exhaust his or her administrative remedies. The federal agencies in New Hampshire, as in all states, have procedures in place by which to facilitate a potential plaintiff's journey through the administrative process. The Equal Employment Opportunity guidelines are widely available to all federal employees. Potential plaintiffs should seek the advice of their agency's EEO counselor.

Administrative Procedures Act Cases

     The Administrative Procedures Act (APA), 5 U.S.C. § 701, et seq., is a vehicle by which a plaintiff may seek to challenge a federal agency's decision. An APA action occurs most frequently as a challenge to the way an agency interprets its own regulations. The Court is asked to make a determination as to whether the interpretation or decision of the agency was "arbitrary or capricious, an abuse of discretion, or otherwise not in accordance with the law." These are record review cases and discovery is rarely permitted. For the most part, these cases are decided on motions and trial is not required.

Freedom of Information Act/Privacy Act Cases

     The Freedom of Information Act (FOIA), 5 U.S.C. § 552, is a statute which promotes public access to the records of the federal government. A written FOIA request is first made to the agency which maintains the requested records. Each agency has a component which is responsible for processing FOIA requests. There are several categories of documents which are protected from release pursuant to the FOIA exemptions. These exemptions include, but are not limited to, law enforcement, litigation privileges, and privacy concerns. If a requester is not satisfied with a FOIA determination made by any agency, a civil complaint may be filed in United States District Court. At that time, an AUSA with the Civil Division will take over responsibility for representing the interests of the United States. In this District, FOIA suits are often assigned to the administrative track and move quickly. They are generally decided on motions and trial is not necessary.

     The Privacy Act, 5 U.S.C. § 552a, is the mirror image of the FOIA. The Privacy Act places a burden on the federal government to protect information about individuals within its records release of which would violate the privacy of the person to whom it pertains. Also, the Privacy Act limits the types of records which the government may maintain on any individual and requires that the maintained records be accurate records. A claim for a believed Privacy Act violation is brought directly to the United States District Court. As with FOIA cases, Privacy Act cases move quickly and are generally decided without trial.

Social Security

     The United States Attorney's Office has responsibility for representing the Commissioner of the Social Security Administration in appeals of denials of Social Security benefits. These appeals are brought pursuant to Titles II and XVI of the Social Security Act, 42 U.S.C. § 405. A Social Security plaintiff will first have filed an application for benefits and have proceeded through the administrative process. A federal court complaint is an appeal of a final decision of the Commissioner of Social Security. Processing of the federal court complaint is governed by Rule 9.1 of the Local Rules of the United States District Court for the District of New Hampshire. The District Court decides whether the Commissioner's decision is supported by substantial evidence. The cases are decided on motions and based upon the certified copy of the administrative proceedings. There has been a steady increase of these types of appeals in New Hampshire in the last five years.

Summons Enforcement

     Although affirmative in nature, the defensive section of the Civil Division is responsible for bringing actions to enforce administrative summonses. A great majority of these requests come from the Internal Revenue Service. An agency will issue an administrative summons requesting information it needs to complete its mission. Should the summoned entity or individual choose not to comply, the agency will ask the Department of Justice, acting through the U.S. Attorney, to have the federal court enforce the summons. After petition of the U.S. Attorney, the Court will schedule a show cause hearing at which time the respondent will have the opportunity to present any defenses he or she might have to obeying the administrative summons. The Court will then decide whether the defenses have any merit and, if not, order compliance with the summons. Failure to comply with court-ordered compliance may result in a contempt finding.

Updated April 20, 2015

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