[Federal Register Volume 62, Number 140 (Tuesday, July 22, 1997)]
[Notices]
[Pages 39250-39254]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-19232]
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DEPARTMENT OF JUSTICE
[Order No. 2096-97]
Office of the Attorney General; Memorandum of Guidance on
Implementation of the Litigation Reforms of Executive Order No. 12988
AGENCY: Department of Justice.
ACTION: Notice with request for comments.
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SUMMARY: This memorandum implements those provisions of Executive Order
No. 12988 (the ``Order'') that govern the conduct of civil litigation
with the United States Government, including the methods by which
attorneys for the government conduct discovery, seek sanctions, and
attempt to settle cases. The Order authorizes the Attorney General to
issue guidelines carrying out the Order's provisions on civil and
administrative litigation. The Order revoked Executive Order No. 12778
(October 23, 1991) and became effective May 6, 1996. These interim
guidelines supersede guidelines issued under Executive Order No. 12778
(58 FR 6015, January 25, 1993). The Attorney General requests comments
from federal agencies so that final guidelines may be drafted in light
of the
[[Page 39251]]
agencies' experience in implementing Executive Order No. 12988.
EFFECTIVE DATE: These interim guidelines are effective on July 22,
1997. Comments are requested from federal agencies on or before October
20, 1997.
ADDRESSES: Comments should be sent to Colonel Richard D. Rosen, Civil
Division, Department of Justice, 950 Pennsylvania Avenue, NW.,
Washington, DC 20530.
FOR FURTHER INFORMATION CONTACT:
Colonel Richard D. Rosen, Civil Division, Department of Justice, 950
Pennsylvania Avenue, NW., Washington, DC 20530, (202) 616-0929.
SUPPLEMENTARY INFORMATION: Executive Order No. 12988 (61 FR 4729,
February 7, 1996), which President Clinton signed on February 5, 1996,
is intended to ``facilitate the just and efficient resolution of civil
claims involving the United States Government.'' 61 FR 4729. The Order
mandates, inter alia, reforms in the methods by which attorneys for the
government conduct discovery, seek sanctions, and attempt to settle
cases. Revoking Executive Order No. 12778 (56 FR 55195, October 25,
1991), these reforms apply to litigation begun on or after May 6, 1996.
The Order requires agencies to implement civil justice reforms
applicable to each agency's civil litigation. Sections 5(a), 5(b), and
8(c) authorize the Attorney General to coordinate efforts by federal
agencies to implement the litigation process reforms, to promulgate
guidelines to promote just and efficient civil litigation and
administrative adjudications, and to issue further guidance as to the
scope of the Order. Final guidelines will be most useful, however, if
they incorporate comments from federal agencies and their litigation
counsel after they have had experience in applying Executive Order No.
12988. That experience will offer a valuable basis for deciding how the
final guidelines can best refine implementation of the Order.
These guidelines provide interim direction for implementing the
Order. They supersede the guidelines issued under Executive Order No.
12778. See 58 FR 6015 (January 25, 1993). Executive Order No. 12988
differs from Executive Order 12778 in a number of important respects,
each of which is reflected in the new guidelines. For example, in
contrast to Executive Order No. 12778, Executive Order No. 12988 does
not include sections on ``core'' discovery, expert witnesses, and fee
shifting. In addition, Executive Order No. 12988 enhances the section
dealing with alternative dispute resolution, including lifting the
prohibition against binding arbitration.
Agencies and their litigation counsel are requested to provide
comments concerning their experience in carrying out the new Order and
their recommendations for revising this interim guidance. Moreover,
since this interim guidance incorporates, where applicable, the civil
litigation guidelines implemented under Executive Order No. 12778,
agencies and their litigation counsel should also consider their
experience under those portions of Executive Order No. 12778 and its
guidelines when developing their comments.
Agencies should note in particular the requirements imposed by both
Executive Order No. 12988 and Executive Order No. 12778 concerning the
designation of persons within each agency to act on litigation
documents and sanctions motions. First, each agency must establish ``a
coordinated procedure''--including review by a ``senior lawyer''--for
the conduct of document discovery undertaken by that agency in
litigation to determine that it meets the substantive criteria of the
Order. Executive Order No. 12988, Sec. 1(d)(1); see also Executive
Order No. 12778, Sec. 1(d)(2). Second, to implement the Order, each
agency must designate a ``sanctions officer'' to review sanctions
motions filed either by or against the government. Executive Order No.
12988, Sec. 1(e)(2); see also Executive Order No. 12778, Sec. 1(f)(2);
see generally Fed. R. Civ. P. 11(c), 37(a)(4). The Attorney General
recommends that each agency designate a specific individual to serve as
the agency coordinator for implementation of Executive Order. No.
12988. Details regarding this designation and other guidelines are
contained in this memorandum.
Although the Department is authorized to issue guidelines on
administrative adjudications under sections 4 (b)-(d) of the Order, it
is not presently planning to do so. If such guidelines become necessary
or appropriate in the future, the Department may issue them at that
time.
By virtue of the authority vested in me by law, including Executive
Order No. 12988, I hereby issue the following memorandum:
Department of Justice Memorandum of Guidance on Implementation of the
Litigation Reforms of Executive Order No. 12988
Introduction
Executive Order No. 12988 (the ``Order''), which President Clinton
signed on February 5, 1996, is intended to ``facilitate the just and
efficient resolution of civil claims involving the United States
Government.'' 61 FR 4729 (February 7, 1996). The Order mandates inter
alia, reforms in the methods by which attorneys for the government
conduct discovery, seek sanctions, and attempt to settle cases. The
Order applies to litigation begun on or after May 6, 1996, and
supersedes guidelines (58 FR 6015, January 25, 1993) promulgated under
Executive Order No. 12778 (56 FR 55195, October 25, 1991).
The Order authorizes the Attorney General to issue guidelines
carrying out the Order's provisions on civil and administrative
litigation. Final guidelines can most usefully be issued, however, if
they incorporate comments from agencies after they have had experience
in applying the Order. That experience will offer valuable insight into
how the final guidelines can best implement the Order.
Therefore, this memorandum provides interim guidelines for
implementing the Order's provisions governing the conduct of civil
litigation by the United States Government. Agencies are requested to
provide comments on or before October 20, 1997 concerning their
experience in carrying out the Order and their recommendations for
revising this interim guidance. In developing comments, agencies should
also consider, where appropriate, their experience under Executive
Order No. 12778 and its implementing civil litigation guidelines.
Comments should be sent to Colonel Richard D. Rosen, who has been
designated the Justice Department's coordinator for implementing the
Order. Each agency should designate its own coordinator for
implementing the Order.
Pre-filing Notice of a Complaint
[Section 1(a)]
The objective of section 1(a) of the Order is to ensure that a
reasonable effort is made to notify prospective disputants of the
government's intent to sue, and to provide disputants with an
opportunity to settle the dispute without litigation. ``Disputants''
means persons from whom relief is to be sought by the government in a
contemplated civil action.
Section 1(a) requires that either the agency or litigation counsel
notify each disputant of the government's contemplated action, unless
an exception to the notice requirement (set forth in section 8(b) of
the Order) applies.
Under section 1(a), a reasonable effort to notify disputants and to
attempt to
[[Page 39252]]
achieve a settlement may be made either by the referring agency in
administrative or conciliation processes or by litigation counsel. For
example, many debt collection cases, tax cases, and non-monetary
disputes are the subject of extensive agency efforts to notify the
other party or parties and to resolve the dispute before litigation. If
the referring agency has provided notice, it should supply
documentation of the notice to litigation counsel. Such efforts by the
agency may satisfy the requirements of section 1(a). In those cases,
litigation counsel need not repeat the notice, although litigation
counsel should consider whether additional notice may be productive
(for example, if a substantial period has elapsed since the prior
notice).
The section requires a ``reasonable'' effort to provide
notification and to attempt to achieve a settlement. The timing,
content, and means of a ``reasonable'' effort depend upon the
particular circumstances. Litigation counsel normally has the
discretion to determine which is reasonable under the circumstances of
each case. Unless notice is not required because one of the exceptions
set forth in section 8(b) of the order applies, however, complete
failure to make an effort is not ``reasonable.''
If pre-complaint settlement efforts by government counsel require
information in the possession of disputants, litigation counsel or
client agency counsel may request such information from such disputants
before or during settlement efforts. If disputants refuse, or fail, to
provide such information upon request within a reasonable time,
government counsel shall have no further obligation to attempt to
settle the case before filing suit.
Executive Order No. 12988 expressly exempts from the notice
provision: (1) Actions to seize or forfeit assets subject to forfeiture
or actions to seize property; (2) bankruptcy, insolvency,
conservatorship, receivership, or liquidation proceedings; (3) cases in
which assets that are the subject of the action or that would satisfy
the judgment are subject to flight, dissipation, or destruction; (4)
cases in which the disputant is subject to flight; (5) cases in which
litigation counsel determines that ``exigent circumstances'' make
providing notice impractical or that such notice would otherwise defeat
the purpose of the litigation, such as actions seeking temporary
restraining orders or preliminary injunctions; and (6) those limited
classes of cases where the Attorney General determines that providing
notice would defeat the purposes of the litigation.
``Exigent circumstances'' include, but are not limited to, statute
of limitations or laches concerns, prior dealings with the same party
suggesting that notice would be futile, attempts by the disputant to
avoid service or to hide or dissipate assets, and cases where immediate
action--such as injunctive relief--is required to prevent imminent and
irreparable harm so as to preclude notice and discussion before filing.
The Attorney General delegates to the Assistant Attorneys General
her authority under section 8(b) to exclude classes or types of cases
from the notice provision.
The Department of Justice retains authority to approve or
disapprove settlements proposed by the client agency or litigation
counsel consistent with existing law, guidelines, and delegations. The
Order confers no litigating or settlement authority on agencies beyond
any authority existing under law or provided for by an explicit
agreement with the Department.
Settlement Conferences
[Section 1(b)]
Section 1(b) of the Order requires litigation counsel to evaluate
the possibilities of settlement as soon as adequate information is
available to permit an accurate evaluation of the government's
litigation position. Thereafter, litigation counsel has a continuous
obligation to evaluate settlement possibilities and to initiate a
settlement conference when settlement discussions are appropriate.
Under section 1(b), litigation counsel shall evaluate settlement
possibilities at the outset of the litigation. Litigation counsel shall
thereafter, and throughout the course of the litigation, make
reasonable efforts to settle the litigation, including by offering to
participate in, or moving the court for, a settlement conference.
Litigation counsel should determine, however, the most appropriate
timing for a settlement conference consistent with the goal of
promoting just and efficient resolution of civil claims by avoiding
unnecessary delay and cost. To that end, and in keeping with section
1(f) of the Order (``Improved Use of Litigation Resources''), early
filing of motions that may resolve the litigation is encouraged. In
those cases, litigation counsel may initiate settlement conference
efforts after resolution of dispositive motions, thereby avoiding the
cost and delay associated with an unnecessary settlement conference.
Before any settlement conference, litigation counsel should consult
both with the client agency and with his or her supervisor regarding
appropriate terms of settlement. At the conference, litigation counsel
should clearly state the terms upon which litigation counsel is
prepared to recommend that the government conclude the litigation, but
normally should not be expected to have the authority to bind the
government finally. See Fed. R. Civ. Proc. 16(c) advisory committee's
note (``[p]articularly in litigation in which government agencies * * *
are involved, there may be no one with on-the-spot settlement
authority, and the most that should be expected is access to a person
who would have a major role in submitting a recommendation to the body
or board with ultimate decision-making responsibility''). Some courts,
however, by local rule or by order, may require that persons with full
settlement authority be present at settlement conferences. Nothing in
the Order should be construed to relieve litigation counsel or agencies
of their obligation to comply with such a requirement. See Executive
Order No. 12988, Sec. 9.
Final settlement authority is governed by regulations and may be
exercised only by the officials designated in those regulations. The
Order does not change regulations governing final settlement authority.
The Order does not constrain the government's discretion to
determine which government counsel will represent the government at a
settlement conference. Normally, a trial attorney assigned to the case
will attend on behalf of the United States. Section 1(b) does not
permit settlement of litigation on terms that are not in the interest
of the government; while ``reasonable efforts'' to settle are required,
no unreasonable concession or offer should be extended. The section
also does not countenance evasion of established agency procedures for
development of litigation positions.
Alternative Methods of Resolving the Dispute in Litigation
[Section 1(c)]
Section 1(c) of the Order encourages prompt and fair settlement of
disputes. Section 1(c)(1) states: ``Whenever feasible, claims should be
resolved through informal discussions, negotiations, and settlements
rather than through utilization of any formal court proceeding. Where
the benefits of alternative dispute resolution (``ADR'') may be
derived, and after consultation with the agency referring the matter,
[[Page 39253]]
litigation counsel should suggest the use of an appropriate ADR
technique to the parties.''
The Order recognizes that ADR is another tool to resolve disputes,
subject to any applicable approval process. Specifically, ADR can be
used to: expedite negotiations and hence settlement, obtain better
settlements for the government, and obtain settlements in cases that
would otherwise not settle. Moreover, ADR can be employed to resolve
the issues underlying the dispute in the litigation and thus resolve
future cases. ADR can also serve as an effective case management tool.
ADR can help streamline discovery or be used to obtain discovery. It
can also eliminate or narrow issues. Above all, however, ADR allows the
parties and the government to fashion their own procedures for
resolving disputes and their own resolutions of these disputes--
creative resolutions beyond what courts can offer. In some cases,
courts may even be able to dictate the use of alternative procedures in
an attempt to resolve disputes without trial. See generally Fed. R.
Civ. P. 16(c)(9) and note.
When considering ADR, litigation counsel should confer with his or
her supervisor and with the referring agency; litigation counsel may
also wish to confer with Senior Counsel for ADR at the Department of
Justice. As with settlement conferences, litigation counsel should
consider ADR as soon as adequate information is available to evaluate
the litigation and settlement, as well as throughout the course of the
litigation. Counsel may consider the full panoply of alternative
procedures, including binding arbitration, when contemplating ADR. When
considering binding arbitration, litigation counsel should consult
their supervisors, the affected agency or agencies, and any applicable
guidance on binding arbitration as may hereafter be promulgated. The
Order's encouragement of the use of ADR does not, of course, authorize
litigation counsel to agree to resolve a dispute in any manner or on
any terms not in the interest of the United States.
Section 9 of the Administrative Dispute Resolution Act of 1996,
Pub. L. No. 104-320, 110 Stat. 3879, 3872 (the ``Act''), permanently
reauthorized the Administrative Dispute Resolution Act of 1990. Section
8(c) of the Act requires agencies to promulgate, ``in consultation with
the Attorney General,'' guidelines on the appropriate use of binding
arbitration to resolve administrative disputes. Nothing in these Civil
Litigation guidelines are intended to affect or modify agency
responsibilities under the Act or the agency's implementing guidelines.
The costs associated with ADR, such as the neutral arbitrator's fee
and related expenses, may be payable as ordinary costs of litigation
out of general litigation funds, out of funds designated for ADR, or
out of funds provided by the agency, as appropriate.
Review of Proposed Document Requests
[Section 1(d)(1)]
Under section 1(d)(1) of the order, litigation counsel shall pursue
document discovery only after complying with review procedures designed
to ensure that the proposed document discovery is reasonable under the
circumstances of the litigation.
When an agency's attorneys act as litigation counsel, the agency
must establish a coordinated procedure for the conduct and review of
document discovery, including review by a senior lawyer, before service
or filing of any request for document discovery. The senior lawyer is
to determine whether the proposed discovery meets the substantive
criteria of section 1(d)(1). Each agency must designate senior lawyers
to perform this review function. While the Order does not mandate a
particular title, level, or grade of senior lawyer, the persons
designated should have both substantial experience in document
discovery and supervisory authority. If not already designated, such
designations should be made forthwith. If a designated senior lawyer is
personally preparing the document discovery, further oversight is not
necessary.
The designated senior lawyer reviewing document discovery proposals
is to determine whether the requests are cumulative or duplicative,
unreasonable, oppressive, or unduly burdensome or expensive, taking
into account the requirements of the litigation, the amount in
controversy, the importance of the issues at stake in the litigation,
and whether the documents can be obtained in a manner that is more
convenient, less burdensome, or less expensive to the government or
opposing parties than pursuit of the documentary discovery as proposed.
In conducting this review of document requests, the senior lawyer
is entitled to rely in good faith upon factual representations of
agency counsel and the trial attorney. Review by a senior lawyer should
not deter the pursuit of reasonable document discovery in accord with
the procedures established in the Order.
Discovery Motions
[Section 1(d)(2)]
Pursuant to section 1(d)(2) of the order, litigation counsel shall
not ask the court to resolve a discovery dispute or impose sanctions
for discovery abuses unless he or she first attempts to resolve the
dispute with opposing counsel or pro se parties. If litigation counsel
files a discovery motion, he or she must represent in the motion that
pre-motion efforts at resolution were unsuccessful or impractical. See
Fed. R. Civ. P. 26 (c), 37(a)(2)(A). Litigation counsel, however,
should not compromise a discovery dispute unless the terms of the
compromise are reasonable.
Sanctions Motions
[Section 1(e)]
Where appropriate, litigation counsel shall take steps to seen
sanctions against opposing counsel and opposing parties for improper or
abusive litigation practices, subject to the procedures set forth in
section 1(e) of the Order regarding agency review of proposed motions
for sanctions. See, e.g., Fed. R. Civ. P. 11(c), 37(a)(4). Before
filing a motion for sanctions, litigation counsel should normally
attempt to resolve disputes with opposing counsel. Sanctions motions
should not be used as vehicles to intimidate or coerce counsel when the
dispute can be resolved on a reasonable basis.
To implement section 1(e)(2) of the Order, each agency with
attorneys acting as litigation counsel must designate a ``sanctions
officer'' to review motions for sanctions that litigation counsel
prepare for filing, as well as motions for sanctions filed against
litigation counsel, the United States, its agencies, or its officers.
The section requires that the sanctions officer or his or her designee
``shall be a senior supervisory attorney within the agency, and shall
be licensed to practice law before a State court, courts of the
District of Columbia, or courts of any territory or Commonwealth of the
United States.'' The sanctions officer or his or her designee should be
a senior lawyer with substantial litigation experience and supervisory
authority. By way of illustration, rather than limitation, a Senior
Executive Service level attorney with substantial litigation experience
should satisfy these criteria.
Persons acting as sanctions officers within each agency should be
designated specifically by title or name. If not already designated,
agencies with attorneys acting as litigation counsel shall designate
sanctions officers
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forthwith. Cabinet or subcabinet officers, such as Assistant Attorneys
General or Assistant Secretaries, officials or equivalent rank, the
United States Attorneys are authorized to designate sanctions officers
meeting the criteria of this Memorandum.
Improved Use of Litigation Resources
[Section 1(f)]
Litigation counsel must use efficient case management techniques
and make reasonable efforts to expedite civil litigation, as set forth
in section 1(f) of the Order. Litigation counsel must move for summary
judgment where appropriate to resolve litigation or narrow the issues
to be tried. This rule is not intended to suggest, however, that
summary judgment should be sought prematurely in a manner that will
permit opposing counsel to defeat summary judgment.
Litigation counsel are also to make reasonable efforts to stipulate
to facts that are not in dispute, and must move for early trial dates
where practicable. Referring agencies should identify facts not in
dispute and inform litigation counsel of the lack of dispute and the
basis for concluding that there is no factual dispute, as soon as it is
feasible to do so. Litigation counsel should seek agreement to fact
stipulations as early as practicable, taking into account the progress
of discovery and their sound judgment as to the most appropriate and
efficient timing for such stipulations.
At reasonable intervals, litigation counsel shall review and revise
submissions to the court to ensure that they are accurate and that they
reflect any narrowing of issues resulting from discovery or otherwise,
and shall apprise the court and all counsel accordingly. Litigation
counsel also should make an effort, where appropriate, to involve the
court early in case management and issue-focusing. This effort may
include apprising the court, during conferences under Federal Rule of
Civil Procedure 16, of core issues and contemplated methods of
resolution, such as settlement, ADR, stipulation, dispositive motion,
or trial. Counsel must consistently review and revise pleadings and
other filings to ensure that unmeritorious threshold defenses and
jurisdictional arguments that result in unnecessary delay are not
raised, bearing in mind counsels obligation to bring defects in
jurisdiction to the court's attention.
These requirements are not intended to suggest that litigation
counsel should concede facts or issues as to which there is reasonable
dispute or uncertainty, or which cannot be corroborated.
Principles to Promote Just and Efficient Administrative Adjudications
[Section 4]
Section 4 of the Order requires agencies to implement the
recommendations of the Administrative Conference of the United States,
entitled ``Case Management as a Tool for Improving Agency
Adjudication'' (1 CFR Sec. 305.86-7 (1991)), to the extent reasonable
and practicable and not in conflict with any other provision of the
Order. Proceedings within the ambit of section 4 are adjudications
before a presiding officer or official, including, but not limited to,
an administrative law judge.
The Order does not impose the requirements of section 1 on such
agency proceedings; however, applying the relevant provisions of
section 1 would have a salutary effect and would be in concert with the
reforms required by the Order. Agencies are encouraged to extend the
application of section 1 to administrative adjudications where
appropriate (for example, where an evidentiary hearing is required by
law and where, in litigation counsel's best judgment, such extension is
reasonable and practicable).
In addition, agencies are to review their administrative
adjudicatory processes and develop specific procedures to reduce delay
in decision-making, facilitate self-representation where appropriate,
expand non-lawyer counseling and representation where appropriate, and
invest maximum discretion in fact-finding officers to encourage
appropriate settlement of claims as early as possible. Agencies also
shall review their administrative adjudicatory processes to identify
any bias on the part of decision-makers that results in injustice to
persons who appear before agency administrative adjudicatory tribunals;
regularly train fact-finders, administrative law judges, and other
decision-makers to eliminate bias; and establish appropriate mechanisms
to receive and resolve complaints of bias.
Agencies should develop effective and simple methods--including
through use of electronic technology-to educate the public about agency
benefits and claims policies and procedures.
Although no specific guidelines are being issued at this time for
section 4, they may be issued in the future if they become necessary or
appropriate.
Exceptions to the Executive Order
The Order does not apply either to criminal matters or to
proceedings in foreign courts, and shall not be construed to require or
authorize litigation counsel or any agency to act contrary to
applicable law. Sections 8(a) and 9. Attorneys for the federal
government are directed to follow the requirements of the Order unless
compliance would be contrary to the Federal Rules of Civil Procedure,
Tax Court Rules of Practice and Procedure, federal or state law, other
applicable rules of practice or procedure, or court order. Section 9.
The Order defines the term ``agency'' as the term ``executive
agency'' is defined in 5 U.S.C. Sec. 105. Section 6(a). Thus, agencies
and litigation counsel, including private attorneys representing the
government, are subject to the provisions of the Order, even where the
agency is considered ``independent'' for other purposes. The President
has the authority to supervise and guide the exercise of core executive
functions such as litigation by government agencies.
The Order does not compel or authorize disclosure of privileged
information or any other information the disclosure of which is
prohibited by law. Section 10. The Order and these guidelines are
solely intended to improve the internal management of the executive
branch. Neither the Order nor these guidelines should be construed to
create any right or benefit, substantive or procedural, enforceable
against the United States, its agencies, its officers, or any other
person. Further, neither the order nor these guidelines shall be
construed to create any right to judicial review of the compliance or
noncompliance of the United States, its agencies, its officers, or any
other person with either the Order or these guidelines. Finally,
nothing in the Order or these guidelines shall be construed to obligate
the United States to accept a particular settlement or resolution of a
dispute, to alter its standards for accepting settlements, to forego
seeking a consent decree or other relief, or to alter any existing
delegation of settlement or litigating authority. Section 7.
Dated: July 16, 1997.
Janet Reno,
Attorney General.
[FR Doc. 97-19232 Filed 7-21-97; 8:45 am]
BILLING CODE 4410-12-M
