§ 519. — Supervision of litigation.
[Laws in effect as of January 24, 2002]
[Document not affected by Public Laws enacted between
January 24, 2002 and December 19, 2002]
[CITE: 28USC519]
TITLE 28--JUDICIARY AND JUDICIAL PROCEDURE
PART II--DEPARTMENT OF JUSTICE
CHAPTER 31--THE ATTORNEY GENERAL
Sec. 519. Supervision of litigation
Except as otherwise authorized by law, the Attorney General shall
supervise all litigation to which the United States, an agency, or
officer thereof is a party, and shall direct all United States
attorneys, assistant United States attorneys, and special attorneys
appointed under section 543 of this title in the discharge of their
respective duties.
(Added Pub. L. 89-554, Sec. 4(c), Sept. 6, 1966, 80 Stat. 614.)
Historical and Revision Notes
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Revised Statutes and
Derivation U.S. Code Statutes at Large
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28 U.S.C. 507(b). [None].
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The words ``Except as otherwise authorized by law,'' are added to
provide for existing and future exceptions (e.g., section 1037 of title
10).
The words ``or officer'' are added for clarity and to align this
section with section 516 which is of similar import.
The words ``special attorneys appointed under section 543'' are
substituted for ``attorneys appointed under section 543'' to reflect the
revision of this title.
Use of Annuity Brokers in Structured Settlements
Pub. L. 107-273, div. C, title I, Sec. 11015, Nov. 2, 2002, 116
Stat. 1824, provided that:
``(a) Establishment and Transmission of List of Approved Annuity
Brokers.--Not later than 6 months after the date of enactment of this
Act [Nov. 2, 2002], the Attorney General shall establish a list of
annuity brokers who meet minimum qualifications for providing annuity
brokerage services in connection with structured settlements entered by
the United States. This list shall be updated upon request by any
annuity broker that meets the minimum qualifications for inclusion on
the list. The Attorney General shall transmit such list, and any updates
to such list, to all United States Attorneys.
``(b) Authority To Select Annuity Broker for Structured
Settlements.--In any structured settlement that is not negotiated
exclusively through the Civil Division of the Department of Justice, the
United States Attorney (or his designee) involved in any settlement
negotiations shall have the exclusive authority to select an annuity
broker from the list of such brokers established by the Attorney
General, provided that all documents related to any settlement comply
with Department of Justice requirements.''
Case Management Information and Tracking Systems for Federal Judicial
Districts and Divisions of Department; Preparation, Submission, Etc., of
Plan
Pub. L. 96-132, Sec. 11, Nov. 30, 1979, 93 Stat. 1047, required the
Attorney General, not later than Apr. 15, 1980, after consultation with
the Director of the Executive Office of United States Attorneys and such
Assistant Attorneys as appropriate, to prepare and submit to the
Committees on the Judiciary of the Senate and the House of
Representatives a plan for the activation and coordination, within the
Department of Justice, of compatible, comprehensive case management
information and tracking systems for each of the judicial districts of
the United States and for each of the divisions of the Department.
Report to Congress Regarding Provisions of Law Considered
Unconstitutional by the Department of Justice; Declaration of Such
Position
Pub. L. 96-132, Sec. 21, Nov. 30, 1979, 93 Stat. 1049, required the
Attorney General, during the fiscal year ending Sept. 30, 1980, to
transmit a report to each House of Congress in any case in which the
Attorney General considered the provisions of law enacted by the
Congress and at issue to be unconstitutional and in such cases required
a representative of the Department of Justice participating in such case
to make a declaration that such opinion of the Attorney General
regarding the constitutionality of those provisions of law involved
constitutes the opinion of the executive branch of the government with
respect to such matter.
Similar provisions were contained in Pub. L. 95-624, Sec. 13, Nov.
9, 1978, 92 Stat. 3464.
Study and Report to Congress on Extent to Which Violations of Federal
Criminal Laws Are Not Prosecuted
Pub. L. 95-624, Sec. 17, Nov. 9, 1978, 92 Stat. 3465, provided that
the Attorney General undertake a study and make recommendations
concerning violations of Federal criminal laws which have not been
prosecuted and present such study and recommendations to the Committee
on the Judiciary of the Senate and the House of Representatives not
later than Oct. 1, 1979.
Executive Order No. 12778
Ex. Ord. No. 12778, Oct. 23, 1991, 56 F.R. 55195, which prescribed
guidelines for promotion of just and efficient Government civil
litigation and set forth principles for enactment of legislation and
promulgation of regulations which did not unduly burden the Federal
court system and for promotion of just and efficient administrative
adjudications, was revoked by Ex. Ord. No. 12988, Sec. 12, Feb. 5, 1996,
61 F.R. 4734, set out below.
Ex. Ord. No. 12988. Civil Justice Reform
Ex. Ord. No. 12988, Feb. 5, 1996, 61 F.R. 4729, provided:
By the authority vested in me as President by the Constitution and
the laws of the United States of America, including section 301 of title
3, United States Code, and in order to improve access to justice for all
persons who wish to avail themselves of court and administrative
adjudicatory tribunals to resolve disputes, to facilitate the just and
efficient resolution of civil claims involving the United States
Government, to encourage the filing of only meritorious civil claims, to
improve legislative and regulatory drafting to reduce needless
litigation, to promote fair and prompt adjudication before
administrative tribunals, and to provide a model for similar reforms of
litigation practices in the private sector and in various states, it is
hereby ordered as follows:
Section 1. Guidelines to Promote Just and Efficient Government Civil
Litigation. To promote the just and efficient resolution of civil
claims, those Federal agencies and litigation counsel that conduct or
otherwise participate in civil litigation on behalf of the United States
Government in Federal court shall respect and adhere to the following
guidelines during the conduct of such litigation:
(a) Pre-filing Notice of a Complaint. No litigation counsel shall
file a complaint initiating civil litigation without first making a
reasonable effort to notify all disputants about the nature of the
dispute and to attempt to achieve a settlement, or confirming that the
referring agency that previously handled the dispute has made a
reasonable effort to notify the disputants and to achieve a settlement
or has used its conciliation processes.
(b) Settlement Conferences. As soon as practicable after
ascertaining the nature of a dispute in litigation, and throughout the
litigation, litigation counsel shall evaluate settlement possibilities
and make reasonable efforts to settle the litigation. Such efforts shall
include offering to participate in a settlement conference or moving the
court for a conference pursuant to Rule 16 of the Federal Rules of Civil
Procedure [28 App. U.S.C.] in an attempt to resolve the dispute without
additional civil litigation.
(c) Alternative Methods of Resolving the Dispute in Litigation.
Litigation counsel shall make reasonable attempts to resolve a dispute
expeditiously and properly before proceeding to trial.
(1) 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, litigation counsel
should suggest the use of an appropriate ADR technique to the parties.
(2) It is appropriate to use ADR techniques or processes to resolve
claims of or against the United States or its agencies, after litigation
counsel determines that the use of a particular technique is warranted
in the context of a particular claim or claims, and that such use will
materially contribute to the prompt, fair, and efficient resolution of
the claims.
(3) To facilitate broader and effective use of informal and formal
ADR methods, litigation counsel should be trained in ADR techniques.
(d) Discovery. To the extent practical, litigation counsel shall
make every reasonable effort to streamline and expedite discovery in
cases under counsel's supervision and control.
(1) Review of Proposed Document Requests. Each agency within the
executive branch shall establish a coordinated procedure for the conduct
and review of document discovery undertaken in litigation directly by
that agency when that agency is litigation counsel. The procedure shall
include, but is not necessarily limited to, review by a senior lawyer
prior to service or filing of the request in litigation to determine
that the request is not cumulative or duplicative, unreasonable,
oppressive, 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 from some other source that is more
convenient, less burdensome, or less expensive.
(2) Discovery Motions. Before petitioning a court to resolve a
discovery motion or petitioning a court to impose sanctions for
discovery abuses, litigation counsel shall attempt to resolve the
dispute with opposing counsel. If litigation counsel makes a discovery
motion concerning the dispute, he or she shall represent in that motion
that any attempt at resolution was unsuccessful or impracticable under
the circumstances.
(e) Sanctions. Litigation counsel shall take steps to seek sanctions
against opposing counsel and opposing parties where appropriate.
(1) Litigation counsel shall evaluate filings made by opposing
parties and, where appropriate, shall petition the court to impose
sanctions against those responsible for abusive practices.
(2) Prior to filing a motion for sanctions, litigation counsel shall
submit the motion for review to the sanctions officer, or his or her
designee, within the litigation counsel's agency. Such officer or
designee shall be a senior supervising 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 designee shall also review
motions for sanctions that are filed against litigation counsel, the
United States, its agencies, or its officers.
(f) Improved Use of Litigation Resources. Litigation counsel shall
employ efficient case management techniques and shall make reasonable
efforts to expedite civil litigation in cases under that counsel's
supervision and control. This includes but is not limited to:
(1) making reasonable efforts to negotiate with other parties about,
and stipulate to, facts that are not in dispute;
(2) reviewing and revising pleadings and other filings to ensure
that they are accurate and that they reflect a narrowing of issues, if
any, that has resulted from discovery;
(3) requesting early trial dates where practicable;
(4) moving for summary judgment in every case where the movant would
be likely to prevail, or where the motion is likely to narrow the issues
to be tried; and
(5) reviewing and revising pleadings and other filings to ensure
that unmeritorious threshold defenses and jurisdictional arguments,
resulting in unnecessary delay, are not raised.
Sec. 2. Government Pro Bono and Volunteer Service. All Federal
agencies should develop appropriate programs to encourage and facilitate
pro bono legal and other volunteer service by government employees to be
performed on their own time, including attorneys, as permitted by
statute, regulation, or other rule or guideline.
Sec. 3. Principles to Enact Legislation and Promulgate Regulations
Which Do Not Unduly Burden the Federal Court System.
(a) General Duty to Review Legislation and Regulations. Within
current budgetary constraints and existing executive branch coordination
mechanisms and procedures established in OMB Circular A-19 and Executive
Order No. 12866 [5 U.S.C. 601 note], each agency promulgating new
regulations, reviewing existing regulations, developing legislative
proposals concerning regulations, and developing new legislation shall
adhere to the following requirements:
(1) The agency's proposed legislation and regulations shall be
reviewed by the agency to eliminate drafting errors and ambiguity;
(2) The agency's proposed legislation and regulations shall be
written to minimize litigation; and
(3) The agency's proposed legislation and regulations shall provide
a clear legal standard for affected conduct rather than a general
standard, and shall promote simplification and burden reduction.
(b) Specific Issues for Review. In conducting the reviews required
by subsection (a), each agency formulating proposed legislation and
regulations shall make every reasonable effort to ensure:
(1) that the legislation, as appropriate--
(A) specifies whether all causes of action arising under the law are
subject to statutes of limitations;
(B) specifies in clear language the preemptive effect, if any, to be
given to the law;
(C) specifies in clear language the effect on existing Federal law,
if any, including all provisions repealed, circumscribed, displaced,
impaired, or modified;
(D) provides a clear legal standard for affected conduct;
(E) specifies whether private arbitration and other forms of private
dispute resolution are appropriate under enforcement and relief
provisions; subject to constitutional requirements;
(F) specifies whether the provisions of the law are severable if one
or more of them is found to be unconstitutional;
(G) specifies in clear language the retroactive effect, if any, to
be given to the law;
(H) specifies in clear language the applicable burdens of proof;
(I) specifies in clear language whether it grants private parties a
right to sue and, if so, the relief available and the conditions and
terms for authorized awards of attorney's fees, if any;
(J) specifies whether State courts have jurisdiction under the law
and, if so, whether and under what conditions an action would be
removable to Federal court;
(K) specifies whether administrative proceedings are to be required
before parties may file suit in court and, if so, describes those
proceedings and requires the exhaustion of administrative remedies;
(L) sets forth the standards governing the assertion of personal
jurisdiction, if any;
(M) defines key statutory terms, either explicitly or by reference
to other statutes that explicitly define those terms;
(N) specifies whether the legislation applies to the Federal
Government or its agencies;
(O) specifies whether the legislation applies to States,
territories, the District of Columbia, and the Commonwealths of Puerto
Rico and of the Northern Mariana Islands;
(P) specifies what remedies are available such as money damages,
civil penalties, injunctive relief, and attorney's fees; and
(Q) addresses other important issues affecting clarity and general
draftsmanship of legislation set forth by the Attorney General, with the
concurrence of the Director of the Office of Management and Budget
(``OMB'') and after consultation with affected agencies, that are
determined to be in accordance with the purposes of this order.
(2) that the regulation, as appropriate--
(A) specifies in clear language the preemptive effect, if any, to be
given to the regulation;
(B) specifies in clear language the effect on existing Federal law
or regulation, if any, including all provisions repealed, circumscribed,
displaced, impaired, or modified;
(C) provides a clear legal standard for affected conduct rather than
a general standard, while promoting simplification and burden reduction;
(D) specifies in clear language the retroactive effect, if any, to
be given to the regulation;
(E) specifies whether administrative proceedings are to be required
before parties may file suit in court and, if so, describes those
proceedings and requires the exhaustion of administrative remedies;
(F) defines key terms, either explicitly or by reference to other
regulations or statutes that explicitly define those items; and
(G) addresses other important issues affecting clarity and general
draftsmanship of regulations set forth by the Attorney General, with the
concurrence of the Director of OMB and after consultation with affected
agencies, that are determined to be in accordance with the purposes of
this order.
(c) Agency Review. The agencies shall review such draft legislation
or regulation to determine that either the draft legislation or
regulation meets the applicable standards provided in subsections (a)
and (b) of this section, or it is unreasonable to require the particular
piece of draft legislation or regulation to meet one or more of those
standards.
Sec. 4. Principles to Promote Just and Efficient Administrative
Adjudications.
(a) Implementation of Administrative Conference Recommendations. In
order to promote just and efficient resolution of disputes, an agency
that adjudicates administrative claims shall, to the extent reasonable
and practicable, and when not in conflict with other sections of this
order, implement the recommendations of the Administrative Conference of
the United States, entitled ``Case Management as a Tool for Improving
Agency Adjudication,'' as contained in 1 C.F.R. 305.86-7 (1991).
(b) Improvements in Administrative Adjudication. All Federal
agencies should review their administrative adjudicatory processes and
develop specific procedures to reduce delay in decision-making, to
facilitate self-representation where appropriate, to expand non-lawyer
counseling and representation where appropriate, and to invest maximum
discretion in fact-finding officers to encourage appropriate settlement
of claims as early as possible.
(c) Bias. All Federal agencies should review their administrative
adjudicatory processes to identify any type of bias on the part of the
decision-makers that results in an injustice to persons who appear
before administrative adjudicatory tribunals; regularly train all fact-
finders, administrative law judges, and other decision-makers to
eliminate such bias; and establish appropriate mechanisms to receive and
resolve complaints of such bias from persons who appear before
administrative adjudicatory tribunals.
(d) Public Education. All Federal agencies should develop effective
and simple methods, including the use of electronic technology, to
educate the public about its claims/benefits policies and procedures.
Sec. 5. Coordination by the Department of Justice.
(a) The Attorney General shall coordinate efforts by Federal
agencies to implement sections 1, 2 and 4 of this order.
(b) To implement the principles and purposes announced by this
order, the Attorney General is authorized to issue guidelines
implementing sections 1 and 4 of this order for the Department of
Justice. Such guidelines shall serve as models for internal guidelines
that may be issued by other agencies pursuant to this order.
Sec. 6. Definitions. For purposes of this order:
(a) The term ``agency'' shall be defined as that term is defined in
section 105 of title 5, United States Code.
(b) The term ``litigation counsel'' shall be defined as the trial
counsel or the office in which such trial counsel is employed, such as
the United States Attorney's Office for the district in which the
litigation is pending or a litigating division of the Department of
Justice. Special Assistant United States Attorneys are included within
this definition. Those agencies authorized by law to represent
themselves in court without assistance from the Department of Justice
are also included in this definition, as are private counsel hired by
any Federal agency to conduct litigation on behalf of the agency or the
United States.
Sec. 7. No Private Rights Created. This order is intended only to
improve the internal management of the executive branch in resolving
disputes, conducting litigation in a reasonable and just manner, and
reviewing legislation and regulations. This order shall not be construed
as creating any right or benefit, substantive or procedural, enforceable
at law or in equity by a party against the United States, its agencies,
its officers, or any other person. This order shall not be construed to
create any right to judicial review involving the compliance or
noncompliance of the United States, its agencies, its officers, or any
other person with this order. Nothing in this order 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.
Sec. 8. Scope.
(a) No Applicability to Criminal Matters or Proceedings in Foreign
Courts. This order is applicable to civil matters only. It is not
intended to affect criminal matters, including enforcement of criminal
fines or judgments of criminal forfeiture. This order does not apply to
litigation brought by or against the United States in foreign courts or
tribunals.
(b) Application of Notice Provision. Notice pursuant to subsection
(a) of section 1 is not required (1) in any action to seize or forfeit
assets subject to forfeiture or in any action to seize property; (2) in
any bankruptcy, insolvency, conservatorship, receivership, or
liquidation proceeding; (3) when the assets that are the subject of the
action or that would satisfy the judgment are subject to flight,
dissipation, or destruction; (4) when the defendant is subject to
flight; (5) when, as determined by litigation counsel, exigent
circumstances make providing such notice impracticable or such notice
would otherwise defeat the purpose of the litigation, such as in actions
seeking temporary restraining orders or preliminary injunctive relief;
or (6) in those limited classes of cases where the Attorney General
determines that providing such notice would defeat the purpose of the
litigation.
(c) Additional Guidance as to Scope. The Attorney General shall have
the authority to issue further guidance as to the scope of this order,
except section 3, consistent with the purposes of this order.
Sec. 9. Conflicts with Other Rules. Nothing in this order shall be
construed to require litigation counsel or any agency to act in a manner
contrary to the Federal Rules of Civil Procedure [28 App. U.S.C.], Tax
Court Rules of Practice and Procedure [26 App. U.S.C.], State or Federal
law, other applicable rules of practice or procedure, or court order.
Sec. 10. Privileged Information. Nothing in this order shall compel
or authorize the disclosure of privileged information, sensitive law
enforcement information, information affecting national security, or
information the disclosure of which is prohibited by law.
Sec. 11. Effective Date. This order shall become effective 90 days
after the date of signature. This order shall not apply to litigation
commenced prior to the effective date.
Sec. 12. Revocation. Executive Order No. 12778 is hereby revoked.
William J. Clinton.
Section Referred to in Other Sections
This section is referred to in title 7 section 943; title 12 section
4243; title 19 section 1920; title 31 section 3718; title 38 sections
3730, 5316; title 42 section 8412.
