UNITED STATES ENVIRONMENTAL PROTECTION AGENCY
WSG69
Date Signed: April 8, 1993
MEMORANDUM
SUBJECT: Guidance on Section 1 of the Civil Justice Reform
Executive Order No. 12778
FROM: Robert Van Heuvelen
Acting Deputy Assistant Administrator
TO: Regional Counsel, Regions I - X
Enforcement Counsel
Attached is the Office of Enforcement's Guidance on Section I of the Civil Justice
Reform Executive Order No. 12778. This Guidance reflects the comments of the Enforcement
Counsel, Regional Counsel and the Environmental Enforcement Section of the Justice
Department's Environment and Natural Resources Division.
Please direct any questions with respect to this Guidance to my Special Assistant Linda
Breggin. She can be reached at (202) 260-4 931.
Attachment
cc: John Cruden
Howard Corcoran
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GUIDANCE ON SECTION 1 OF THE CIVIL JUSTICE REFORM
EXECUTIVE ORDER NO. 12776
The following is the Office Of Enforcement's (OE) Guidance on the implementation of
Section I of the Civil Justice Reform Executive Order ("Executive Order") entitled "Guidelines
to Promote Just and Efficient Government Civil Litigation." Only those Subsections of Section
1 that impact on the procedures to be followed in processing cases and case referrals in
affirmative Environmental Protection Agency (EPA) enforcement cases handled by OE and the
Offices of Regional Counsel are addressed in this Guidance. This Guidance does not govern
administrative actions which are covered by Section 3 of the Executive order. This OE
Guidance on Section 1 of the Executive order should be used as a supplement to the Guidance
issued by the Department of Justice (DOJ).1
I. Section l(a): Pre-filing Notice of a Complaint
Section l(a) requires that prior to the filing of a complaint either litigation counsel2 or the
referring agency must make a "reasonable effort" to notify the disputants about the nature of the
dispute and attempt to achieve settlement.
DOJ's Guidance provides that if pre-filing settlement efforts by government counsel
require information in the possession of proposed defendants, litigating counsel or client agency
counsel may request such information from defendants as a condition to settlement efforts.3 If
proposed defendants refuse or fail to provide such information upon request within a reasonable
time, counsel shall have no further obligation to attempt to settle the case prior to filing.
As described below in further detail, OE encourages Regional Counsel to provide notice
and attempt to achieve settlement with proposed defendants. In the event, however, that notice is
not given prior to referral, DOJ will provide t-he notice and make attempt to achieve settlement.
The Procedures outlined below should be followed by OE Headquarters and Regional
attorneys (herein referred to collectively as "attorneys") in implementing Section l(a) of the
Executive Order.
1 See DOJ Memorandum of Guidance on Implementation of the Litigation Reforms of
Executive Order No. 12778. 58 Fed. Reg. 6,015 (Jan. 25,1993).
2 For purposes of this Guidance, it is assumed that Agency attorneys do not serve as
litigation counsel except in cases that are part of the Pilot Program. OE may issue additional
guidance on the Executive order in the event that an Agency attorney becomes litigation counsel
due to DOJ's failure to file a complaint within a reasonable time, as set out in Section 9 of the
Memorandum of Understanding Between DOJ and EPA.
3 OE encourages its attorneys to request information regarding a defendant's ability to pay
inappropriate cases.
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A. Exceptions to Notice Requirements:
Attorneys should ensure that the exceptions to the pre-filing notice requirements, which
are set out in Section 7(b) of the Executive Order, do not apply. A check list is attached
hereto which contains the six circumstances under which pre-filing notice is not required.
This check list should be used in each case before providing notice to a proposed
defendant, and should be maintained in the case file. In brief, the circumstances under
which notice is not required are as follows:
1. In actions to seize or forfeit assets subject to forfeiture or in actions to seize
property;
2. in bankruptcy, insolvency, conservatorship, receivership, or liquidation
proceedings;
3. in actions in which the assets that are the subject of the action or the assets that
would satisfy the judgement are subject to flight, dissipation, or destruction;
4. in actions in which the defendant is subject to flight;
5. in actions in which "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;
6. "in those limited classes of cases where the Attorney General determines that
providing such notice would defeat the purpose of the litigation."
A. Pre-referral Negotiation ("PRN") Policies
The Agency has issued two PRN policies. See memorandum from James M. Strock and
Don R. Clay on Pre-Referral Negotiation Procedures for Superfund Enforcement Cases
dated October 12, 1990; Memorandum from Thomas L. Adams, Adams, Jr. entitled
"Process for Conducting Pre-Referral Settlement Negotiations on Civil Judicial
Enforcement Cases, (memo transmits Agreement between EPA and DOJ on the Process
for Conducting Settlement Negotiation) dated April 13, 1988.
1. In order to satisfy the notice requirements of the Executive order, Regional
Counsel may opt to follow existing PRN policies. The time frames set out in the
PRN Policies should be strictly followed. The pre-filing notice and settlement
requirements of the Executive Order are met when PRN is pursued but fails to
result in the settlement of a case.
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2. In the alternative, the streamlined notice procedures outlined in Section D below
may be followed in routine cases, in order to comply with the pre-filing notice
and settlement requirements of Section l(a) of the Executive Order.
a. However, PRN procedures must be followed, rather than the streamlined
procedure, if the PRN Policies provide that formal P RN is mandatory.
See, e.g.. October 12, 1990 Policy ("procedures are hereby required for all
judicial settlements providing for privately-financed remedial activities").
C. Statutorily Required Notice
For those cases that are governed by a law or regulation that contains requirements with
respect to notice or settlement negotiations, attorneys should adhere to the procedures set
out in the governing statutory or regulatory provisions. See, e.g.. Section 122(e) of
CERCLA, 42 U.S.C. §9622(e).4
D. Notice Procedures
The following notice procedures should be followed in those routine cases5 in which the
Regional Counsel determined that PRN procedures will not be followed and that there
are no applicable statutory notice provisions.
1. OE recommends, in the interest of expediting the filing of enforcement cases, that
Regional counsel provide notice and attempt to reach settlement with Potential
defendants.6 If a Regional Counsel elects to provide the requisite notice, notice
should be provided as soon as possible. Cases should not be referred to DOJ until
notice and the attempt to achieve settlement have been completed. If a Regional
counsel defers to DOJ and does not provide notice prior to the time of referral, the
Agency's interests will be best served if notice is given by DOJ as expeditiously
as
4 In those cases in which the governing statute requires that the State be named as a party
even though the State is not the real party in interest, notice does not need to be given to the
State because the State lacks the authority to settle the case. See Section 309(e) of the Clean
Water Act, 33 U.S.C. §1319(e).
5 Routine cases are those cases which: 1) raise no issues of first impression; 2) are single
media cases; 3) seek penalties where the statutory maximum is under $1 million; 4) can be
referred directly to DOJ rather than through Headquarters. See GM-69, "Expansion of Direct
Referral of Cases to the Department of Justice," January 14, 1988.
6 In order to expedite coordinated filing, OE strongly encourages the Regional Counsel to
provide notice in cases that are part of cluster filings or initiatives.
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practicable after referral, and in a time frame consistent with the Memorandum of
Understanding between EPA and DOJ.
2. In providing notice, Regional Counsel should inform the proposed defendant that
it must advise EPA in writing within 14 days that it desires to enter into a
settlement and the precise terms of its offer. See attached model notice letter. In
the event that the proposed defendant does not avail itself of this opportunity, the
case must be referred to DOJ.
3. As early as possible in the negotiation process, potential defendants should be
presented with a draft consent decree which conforms to all applicable national
standards and guidance, and which sets out the terms of a settlement. OE will
develop, in consultation with Regional and Program offices, model-consent
decrees which should be used to the extent possible. Consent decree terms not
previously approved by EPA and DOJ should be approved by Enforcement
Counsel, in consultation with the appropriate Assistant Section Chief at DOJ.
4. OE will respond to Regional requests for approval of bottom line penalty
amounts and settlement positions within 35 calendar days of receiving the
requests. Regional requests should include a full description of the defendant,
violations, evidence relied upon, law, injunctive relief, and economic benefit and
gravity penalty analyses. A copy should also be forwarded to the appropriate
Assistant Section Chief at DOJ.
5. Regional Counsel or Enforcement Counsel should make telephonic contact with
the appropriate Assistant Section Chief at DOJ, in an effort to seek informal
concurrence on the Agency's proposed settlement positions. DOJ non-
concurrence should be promptly reported to OE for final resolution.
6. If a settlement in principle is reached within 30 days of the first meeting with the
potential defendant, the Regional Counsel may grant the litigation team an
additional 45 days within which to reach agreement on the final terms of the
Consent Decree. If necessary, Regional Counsel may extend, with the
concurrence of the Director of Civil Enforcement, the settlement period for up to
30 additional days. Agreements in principle should be promptly reported to DOJ.
7. If a final settlement is not reached within the designated time period, the case
must be referred to DOJ. All settlements are subject to approval of the Assistant
Administrator for Enforcement and/or the Assistant Attorney General for the
Environment and Natural Resources Division at DOJ, per the applicable
settlement delegations. Complaints should be filed as expeditiously as possible
after pre-filing negotiations with proposed defendants have failed, and in a time
frame consistent with the Memorandum of Understanding between EPA and DOJ.
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8. If a case is referred to DOJ, the following information regarding compliance with
the Executive order must be provided in the litigation report:
a. Specific considerations that make it unreasonable or unnecessary under
the Executive Order to engage in pre-filing negotiations;
b. Documentation of any notice and achieve settlement, including copies of
the notice letters, and the terms of any settlement offers;
c. Descriptions of any consultations with, or concurrences from, OE or DOJ
regarding proposed settlement positions;
d. The Agency's specific recommendations for injunctive, monetary
(including economic benefit of non-compliance), or other relief and a
statement of the Agency's minimum settlement requirements (including
pollution prevention, audit or other "SEP-type" relief), based on the
information available at the time of referral.
II. Section Kb): Settlement Conferences
Section l(b) requires litigation counsel to evaluate settlement possibilities and make
reasonable efforts to reach settlement throughout litigation. In order to assist DOJ in complying
with the Executive Order and to expedite filing and resolution of civil complaints, attorneys
should coordinate through the appropriate management structure including through the Regional
Counsel and the appropriate OE Enforcement Counsel, to develop initial settlement positions, as
well as to provide periodic updates to DOJ on the Agency's settlement positions. These updates
should set out the Agency's desired relief and minimum settlement requirements.
III. Section l(c): Alternative Methods of Resolving Dispute in Litigation
Section l(c) provides that -in situations in which the use of an alternative dispute
resolution (ADR) technique may contribute to the prompt, fair and efficient resolution of a
dispute, litigation counsel, in consultation with the referring agency, should suggest the use of an
appropriate ADR technique to private parties. Section l(c) does not apply to any action to seize
or forfeit assets subject to forfeiture, or to any debt Collection cases (including any action for
civil penalties and taxes) involving an amount in controversy less than $100,000. In addition,
although authorizing the use of arbitral techniques, the Executive Order prohibits the use of
binding arbitration or any other equivalent ADR technique.
In order to comply with this requirement, attorneys should include in the litigation reports
that accompany all referrals to DOJ the following information:
1) Identification of any ADR technique(s) that have been used or proposed by the
Agency or proposed defendants to attempt resolution of the dispute prior to
referral;
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2) Description of the status of any ADR used;
3) An identification of ADR technique(s) if any, Agency believes may be useful in
attempting to resolve the dispute either before or after the filing of a complaint.
See Final Guidance on Use of Alternative Dispute Resolution Techniques in
Enforcement Actions (August 14, 1987); Arbitration Procedures for Small
Superfund Cost Recovery Claims (54 Fed. Reg. 23,174 (1989)); and related
policy statements.
IV. Section l(d)(l): Disclosure of Core Information
Section l(d)(l) requires litigation counsel, under certain circumstances, to make
reasonable efforts to arrange with other parties for a mutual exchange of a disclosure statement
containing core information relevant to the dispute. Core information is defined as "the names
and addresses of people having information that is relevant to the proffered claims and defenses,
and the location of documents most relevant to the case." Core information should not be
disclosed in cases while a dispositive motion is pending. In addition, Section l(d) does not apply
to any action to seize or forfeit assets subject to forfeiture, or to any debt collection cases
(including any action for civil penalties and taxes) involving an amount in controversy less than
$100,000. DOJ's Guidance explains that litigation counsel "should emphasize that the
government is willing to be bound to exchange core information as defined in the section if, and
only if, other parties agree to disclose the same core information and the court adopts the
agreement as a stipulated order."
DOJ's Guidance provides that referrals to DOJ from the Agency should include core
information. The identification of the location of the documents should be specific enough to
enable litigation counsel to locate and retrieve the documents, and should specify the name,
business address and telephone number of the custodians of the documents. The identification of
people having information that is relevant to the claims and defenses should include, if possible,
last known telephone numbers. The Guidance provides that [IJitigation counsel is entitled to rely
in good faith on the representations of agency counsel as to the existence, extent, and location of
core information."
DOJ's Guidance further states that in those cases in which the scope of judicial review is
limited to the agency's administrative record, it is sufficient to provide the location of the
administrative record and afford defendants access to the record. See, e.g.. Section 113(j) of
CERCLA 42 U.S.C. § 9613(j) (judicial review of remedy decision limited to the administrative
record compiled by EPA).
The Executive Order and DOJ Guidance confirm the requirements of the Agency's Model
Litigation Report which already requires attorneys to include core information in every litigation
report. See Model Litigation Report §§ 12e and 12f.
V. Section I (dĽ2): Review of Proposed Document Requests
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Section l(d)(2) requires agencies that serve as litigation counsel to establish a coordinated
procedure for the conduct and review of document discovery in federal civil judicial litigation.
The Executive order requires that the procedure include review by a senior lawyer prior to
service or filing of the request 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."
In order to meet the requirements of Section l(d)(2) of the Executive Order, litigation
reports that accompany civil judicial referrals to DOJ should include a list of the documents, or
the categories of documents, that are relevant to the case and that are in EPA's possession. In
addition, attorneys should assist DOJ, if requested, in reviewing proposed document requests to
verify that the documents sought from the opposing parties are not available from EPA or
another convenient source.
VI. Section l(e): Expert Witnesses
Section l(e) requires that litigation counsel refrain from presenting expert testimony from
experts who base their conclusions on explanatory theories that are not widely accepted.
"Widely accepted" theories are defined as those theories that are "propounded by at least a
substantial minority of the experts in the relevant field." Section l(e) further requires that
litigation counsel present testimony "only from those experts whose knowledge, background,
research, or other expertise lies in the particular field about which they are testifying." Section
l(e) also provides for the mutual disclosure of information regarding experts that the parties
expect to call as expert witnesses at trial. Finally, Section l(e) bans the use of contingency fees
for expert witnesses.
DOJ's Guidance clarifies that expert testimony on newly emerging issues is permissible.
It only the theory relied upon by the expert that must be widely accepted, rather than the
conclusion reached by the expert. Accordingly, the Guidance explains: "litigation counsel may
offer expert testimony that uses a widely accepted explanatory theory to support a conclusion in
a novel area based on the qualifications of the expert to testify on that issue, the extent of peer
acceptance or recognition of the expert's past work in the field, particularly of any work that is
related to the issue on which the testimony is to be offered, and any other available indicia of the
reliability of the proffered testimony."
The litigation reports accompanying all case referrals to DOJ that involve expert
testimony on behalf of the government, or for which EPA recommends an expert for the pending
litigation, should include the following information to the extent that it available at the time of
referral:
1) a description of the general and specific qualifications of any expert who is
expected to testify;
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2) if an expert has been retained, the relation of the expert's particular field of
expertise to the issues on which his or her testimony will be offered;
3) if an expert has been retained, a statement noting the degree of acceptance of the
theories on which the expert is expected to rely among experts in the relevant
field (i.e.. whether the expert's theories are "widely accepted");
4) if an expert has been retained, a statement clarifying whether the expert's
expected testimony will involve any new or controversial theories, or unsealed
issues of science, engineering, or other disciplines, including but not limited to
unsettled issues regarding risk assessment, innovative technology, or economic
analysis;
5) if an expert has been retained, citations to relevant literature and studies, or peer
review analysis, supporting or opposing the theories of the anticipated expert
testimony.
VII. Section l(g)(4): Improved Use of Litigation Resources
Section l(g)(4) requires litigation counsel to make reasonable efforts to expedite civil
litigation in the cases to which they are assigned including, inter alia: 1) making reasonable
efforts to negotiate with other parties about, and stipulate to, facts that are not in dispute; and 2)
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 be tried.
DOJ's Guidance provides for referring agencies to identify facts not in dispute and inform
litigation counsel of the lack of dispute and the basis of concluding that there is no factual
dispute, as soon as it is feasible to do so.7
Accordingly, in preparing litigation reports, attorneys should make sure to include the
information required by DOJ's Guidance. To the extent possible, the following should be
included in all litigation reports:
1) a list of all relevant and material facts that the attorneys believe are unlikely to be
disputed and which fact simulations would be appropriate;
2) a list of any issues on which the attorneys believe the United States could win
summary judgment.
In the event that an attorney receives additional information regarding facts not in dispute, the
attorney should notify litigation counsel as soon as possible.
7 The Agency's Model Litigation Report, Section 12c, already requires that attorneys
indicate if a case has potential for summary judgement and, if so, to describe why, and how the
case can be prepared for filing.
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VIII. Purpose and Use of This Guidance
This Guidance and any internal procedures adopted for its implementation are intended
solely as guidance for employees of the United States Environmental Protection Agency. They
do not constitute rulemaking by the Agency and may not be relied upon to create a right or
benefit, substantive or procedural, enforceable at law or in equity, by any person. The Agency
may take action at variance with this Guidance or its internal implementing procedures.
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Attachment 1
MODEL NOTICE LETTER
PRIVILEGED AND CONFIDENTIAL - FOR SETTLEMENT PURPOSES ONLY
Ms. Mary Smith
General Counsel
XYZ Corporation
1200 Broadway
New York, New York
Re: XYZ Chemical Facility, Brooklyn, N.Y.
Dear Ms. Smith:
You are hereby notified that the Environmental Protection Agency (EPA) has identified
your company has violated/is in violation of the Clean Water Act. Accordingly, it is our intent
to refer this matter to the Department Of Justice for appropriate enforcement action in the
applicable U.S. federal district court. Specifically, the EPA believes that XYZ Company has
violated the Clean Water Act and you should immediately refrain from unpermitted discharges
from the XYZ Chemical facility in Brooklyn, N.Y. into New York Harbor. [Give specifics,
including dates of offenses. Note, supplemental environmental projects should not be included
at this stage].
We would like to extend to the opportunity to settle this matter before litigation, to save
both your company and the federal government the burden and expense of litigation. Any
settlement,, of course, must include the company's agreement to cease its unpermitted discharges
and comply with the injunctive relief we are seeking, specifically [describe, if appropriate]. In
addition, we will be seeking an appropriate amount of civil penalties for the alleged violations.
In that regard, you should note that EPA believes XYZ company has committed 37 violations of
the federal permit, for which the statutory penalty is $25,000 per day. [Stating the statutory
maximum does not require advance coordination with the Department of Justice of the Office of
Enforcement - however, any specific dollar amount requires advance approval of both offices].
Any settlement must be in the form of a consent decree entered in federal district court, to
be filed simultaneously with the governments complaint in this action. [Optional alternative,
where appropriate: In order for us to determine an appropriate resolution of this matter, we will
need additional information from XYZ Company. Accordingly, your settlement response should
express a willingness to provide the additional information, specifically ].
If you are willing to make the required commitments to settle this case before litigation,
please advise the undersigned immediately. Your response must be in writing and include a
specific settlement offer that is responsive to the government's settlement requirements outlined
above. [Optional: be prepared to complete settlement negotiations within 2 weeks from the date
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you receive this letter]. Any settlement agreement we enter will be contingent upon the approval
of the Assistant Administrator for Enforcement, EPA, and the final settlement authority of the
Assistant Attorney General, Environment and Natural Resources Division, Department of
Justice.
If we do not receive what we characterize to be a good faith settlement offer from you
by , we will proceed to immediately refer this matter to the Department of Justice
for their action. Thank you very much for your prompt attention to this important matter.
Sincerely,
Joseph White
Assistant Regional Counsel
cc: Mary Matthews, EPA, Office of Enforcement
Gerald Hobson, EES, Department of Justice
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Federal Register/Vol. 58, No. 14/Monday, January 25, 1993/Notices
pp. 6015-6019
Office of the Attorney General
[Order No. 1658-93]
Memorandum of Guidance on
Implementation of the Litigation Reforms of
Executive Order No. 12778
AGENCY: Department of Justice
ACTION: Notice.
SUMMARY: This notice promulgates a
memorandum providing guidance to Federal
agencies regarding the implementation of
those provisions of Executive Order No.
12778 (Order) that concern the conduct of
civil litigation with the United States
Government, including the methods by which
attorneys for the government conduct
discover, seek sanctions, present witnesses at
trial, 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.
EFFECTIVE DATE: This action is
effective on January 25, 1993.
FOR FURTHER INFORMATION
CONTACT: Jeffrey Axelrad, Director,
Torts Branch, Civil Division, Department of
Justice, 601 "D" street NW., Washington,
DC 20004-2904 (mailing address: Benjamin
Franklin Station, P.O. Box 888, Washington,
DC 20044), (202)501-7075.
SUPPLEMENTARY INFORMATION:
Executive Order No. 12778 (56 FR 55195,
October 25, 1991), which President Bush
signed on October 23, 199 1, is intended to
"facilitate the just and efficient resolution of
civil claims involving the United States
Government. 56 FR 55195. The Order, inter
alia, mandates reforms in the methods by
which attorneys for the government conduct
discovery, seek sanctions, present witnesses
at trial, and attempt to settle cases. These
reforms apply to litigation begun on or after
January 21, 1992.
The Order requires agencies to implement
civil justice reforms applicable to each
agency's civil litigation. It provides, in
sections 4(a), 4(b) and 7(d), that the Attorney
General has both the duty to coordinate
efforts by Federal agenciestoimplement the
litigation process reforms and the authority to
issue further guidelines implementing the
Order, and to provide guidance as to the
scope of the order.
Preliminary guidelines were issued as
interim direction for applying the Order. A
Memorandum of Preliminary Guidance on
Implementation of the Litigation Reforms of
Executive Order No. 12778 (Memorandum
of Preliminary Guidance) was signed on
January 24, 1 992 and has been published in
the Federal Register. 57 FR 3640 (January
30, 1992). Agencies were requested to
provide comments concerning their
experience in carrying out the Order and their
recommendations for revising the
preliminary guidance. Numerous helpful
comments have been received from agencies,
United States Attorneys, and other persons
and organizations.
The present Memorandum has been
prepared after consideration of comments
and in the light of experience to date under
the Order. This Memorandum incorporates
much of the prior Memorandum of
Preliminary Guidance. In addition, the
present Memorandum also includes
elaboration on matters included in the
Memorandum of Preliminary Guidance and
additional guidance and direction. In
particular, additional commentary has been
included in the discussion of sections l(a),
l(b), l(c), l(d)(l), l(e) and 3 of the Order,
and in the text pertaining to exclusions from
the Order. Thus, the present Memorandum
supersedes the prior Memorandum of
Preliminary Guidance and should be utilized
in lieu of that earlier Memorandum.
During the relatively brief period since the
January 21, 1992 effective date of the Order,
it has not been possible to assess fully the
impact of reforms in the Order as initiated.
Therefore, further guidance may be
developed in light of experience. Comments
on implementation of the Order continue to
be welcomed.
By virtue of the authority vested in my by
law, excluding Executive Order No. 12778,1
hereby issue the following Memorandum:
Department of Justice Memorandum of
Guidance and Implementation of the
Litigation Reforms of Executive Order No.
12778
Introduction
Executive order No. 12778, which
President Bush signed on October 23, 1991,
is intended to "facilitate the just and efficient
resolution of civil claims involving the
United States Government. 56 FR 55195,
October25 1991. The Order, inter alia,
mandates reforms in the methods by which
attorneys for the government conduct
discovery, seek sanctions, present witnesses
at trial, and attempt to settle cases. These
reforms apply to litigation begun on or after
January 21, 1992.
The Order authorizes the Attorney
General to issue guidelines carrying out the
Order's provisions on civil and
administrative litigation.
The present Memorandum provides
guidance for applying the Order's provisions
concerning the conduct of civil litigation
involving the United States Government.
Pre-filing Notice of Complaint
[Section l(a)]
The objective of section l(a)ofthe 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 in a contemplated civil action.
Section l(a) requires either the agency or
litigation counsel to notify each disputant of
the government's contemplated action
unless an exception to the notice
requirement (set forth in section 7(b) of the
Order) applies. The notifying person shall
offer to attempt to resolve the dispute
without litigation. However, it is not
appropriate to compromise litigation by
providing pre-filing notice if the notice
would defeatthe purpose of the litigation.
Under section l(a), a reasonable effort to
notify disputants and to attempt to achieve a
settlement may be provided either by the
referring agency in administrative or
conciliation processes or by litigation
counsel. For example, many debt collection
cases and tax cases are the subject of
extensive agency efforts to notify the debtor
and resolve the dispute prior to litigation. If
the referring agency has provided notice, it
should supply the documentation of the
notice to litigation counsel. Such efforts by
the agency may well satisfy the requirements
of section l(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. Both the timing and
the content of a reasonable effort depend
upon the particular circumstances.
However, unless an exception set forth in
section 7 of the Order (or otherwise
provided for by the Attorney General) is
applicable, complete failure to make an
effort can not be deemed "reasonable."
If pre-complaint settlement efforts by
government counsel require information in
the possession of prospective defendants,
litigating counsel or client agency counsel
may request such information from such
defendants as a condition of settlement
efforts. If prospective defendants refuse, or
fail, to provide such information upon
request within a reasonable time,
government counsel shall have no further
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obligation to attempt to settle the case prior
to filing.
The Department of Justice retains
authority to approve or disapprove any
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 existing authority
under law or explicit agreement with the
Department.
Settlement Conference
[Section l(b)]
Section l(b) ofthe 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. Litigation counsel is to offer to
participate in a settlement conference or,
when it is reasonable to do so, move the
court for such a conference.
Under section l(b), settlement
possibilities shall be evaluated by litigation
counsel at the outset ofthe litigation.
Litigation counsel shall thereafter, and
throughout the course ofthe litigation, use
reasonable efforts to settle the litigation,
including the use of settlement conferences
by offering or moving to do so. However,
the most appropriate timing of a settlement
conference should be determined by
litigation counsel consistent with the goal of
promoting just and efficient resolution of
civil claims by avoiding unnecessary delay
and cost. To that end, in keeping with
section l(g) ofthe Order ("Improved Use of
Litigation Resources"), early filing of
motions that potentially will resolve the
litigation is encouraged. In those cases,
litigation counsel should initiate settlement
conference efforts after resolution of
dispositive motions, thereby avoiding the
cost and delay associated with an
unnecessary settlement conference.
Prior to any such conference, litigation
counsel should consult with the affected
agency and with litigation counsel's
supervisor. 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 should not be expected to
obtain authority to bind the government
finally at settlement conferences. Final
settlement authority is the subject of
applicable regulations and may be exercised
only by those officials designated in those
regulations. The Order does not change
those regulations regarding final settlement
authority.
The Order does not constrain the
government's full discretion to determine
which government counsel represents the
government at settlement conferences.
Normally, a trial attorney assigned to the case
will attend on behalf of the United States.
Section l(b) does not permit settlement of
litigation on terms that are not in the interest
ofthe government: while "reasonable
efforts" to settle are required, no
unreasonable concession or offer should be
extended. The section does not countenance
evasion of established agency procedures for
development of litigation positions.
Alternative Methods of Resolving the Dispute
in Litigation
[Section l(c)]
Section l(c) ofthe Order encourages
prompt and proper settlement of disputes.
The section states: "Whenever feasible,
claims should be resolved through informal
discussions, negotiations, and settlements
rather than through utilization of any formal
or structured Alternative Dispute Resolution
(ADR) process or court proceeding."
The order does not permit litigation
counsel to agree that ADR will result in a
binding determination as to the government,
without exercise of an agency's discretion.
Further, the Order's authorization ofthe use
of ADR does not authorize litigation council
to agree to resolve a dispute in any manner or
on any terms not in the interest ofthe United
States.
Each agency should seek to use the skills
of litigation counsel, including skills gained
through training, to bring the same high level
of expertise to ADR proceedings that they
bring to formal judicial proceedings.
Disputes will be resolved reasonably if an
ADR technique is used when the technique
holds out a likelihood of success. Litigation
council should consult with the affected
agency as to the desirability of using ADR if
resort to ADR offers a reasonable prospect of
success.
When evaluating whether proceeding with
ADR is likely to lead to a prompt, fair, and
efficient resolution ofthe action and thus be
in the best interest ofthe government,
government counsel should consider the
amount and allocation ofthe cost of
employing ADR.
Normally, the costs associated with ADR,
such as the neutral's fee and related
expenses, will be payable as an ordinary cost
of litigation. Litigation counsel can
voluntarily agree to share the payment of
ADR costs, even when the court mandates
ADR. Litigation counsel should assert
sovereign immunity when costs are
involuntarily imposed on the United States.
Disclosure of Core Information
[Section l(d)(l)]
Section l(d)(l) ofthe Order requires
litigation counsel, to the extent practicable, to
make the offer to participate at an early
stage ofthe litigation in a mutual exchange
of "core information" (as defined in section
l(d)(l) ofthe Order). Reasonable efforts
shall be made to obtain the agreement of
other parties to such an exchange. When
making the offer, litigation counsel should
emphasize that the government is willing to
be bound to disclose core information as
defined in the section if, and only if, other
parties agree to disclose the same core
information and the court adopts the
agreement as a stipulated order.
A mutually agreed-upon exchange of
core information should occur reasonably
early in the litigation, so as to serve the
Order's purpose of expediting and
streamlining discovery. However, when the
government is plaintiff, disclosure of core
information need not be requested prior to
receipt of opposing parties' answers to the
complaint. Litigation counsel should not
permit the core information disclosure offer
requirement to delay the initiation of
necessary discovery on behalfof the
government when the parties to whom the
offer is directed have not accepted it within
a reasonable period of time.
Offers to exchange core information are
not mandated if a dispositive motion is
pending or if the exceptions to the ADR and
core disclosure provisions set forth in
section 7(c) ofthe order (involving asset
forfeiture proceedings and debt collection
cases involving less than SI 00,000) apply.
Nothing in section l(d)(l) requires
disclosure of information that litigation
counsel does not consider reasonably
relevant to the claims for relief set forth in
the complaint.
In cases involving multiple opposing
parties, the government may agree to
exchange disclosures of core information
with one or more opposing parties. The
government need not delay disclosure
pending agreement by all ofthe parties
unless individual exchange of core
information would unfairly undermine the
government's case.
Except when local practice warrants
anothermeans of memorializing the
agreement, and agreement to provide core
information ordinarily should be in the form
of a consent order to ensure enforcement by
the court. The consent order should also
provide for use ofthe core information in
the same manner as material discovered
pursuant to Rules 26 through 36 ofthe
Federal Rules of Civil Procedure.
All referrals from agencies requesting
litigation counsel to file suit should include
the core information described in section
l(d)(l) ofthe Order. The identification of
the location of documents most relevant to
the case should be specific enough to enable
litigation counsel to locate and, if necessary,
retrieve the documents, and should specify
the name, business address, and telephone
number of the custodians of the documents.
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The identification of individuals having
information relevant to the claims and
defenses should include, where possible,
current or last-known telephone numbers at
which such persons can be reached.
In determining the extent to which
compliance with the requirements of section
l(d)(l) of the Order is "practicable" in a
given case, litigation counsel shall consider,
inter alia, the utility of early issue-narrowing
motions and devices, and scope and
complexity of the disclosures that will be
required, the time available to comply with
the provisions of the section, the extent to
which disclosure of core information will
expedite or limit the scope of subsequent
discovery, and the cost to the government of
compliance.
In cases where the government takes the
position that the scope of judicial review of
one or more issues involved in the litigation
is limited to an agency's administrative
record, identifying and affording access to
the administrative record shall satisfy the
requirements of section l(d)(l) with respect
to such issues.
Litigation counsel is entitled to rely in
good faith on the representations of the
agency counsel as to the existence, extent,
and location of core information.
Nothing in section 1 (d)(l) prevents
government counsel from seeking other
discovery pursuant to the Federal Rules of
Civil Procedure simultaneously with
providing, or seeking, disclosure of core
information to the section.
Review of Proposed Document Requests
[Section l(d)(2)]
Under section l(d)(2) of the Order,
government council 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, that agency must establish
a coordinated procedure, 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 l(d)(2). Senior lawyers
must be designated within each agency to
perform this review function. While no
particular title, level, or grade of senior
lawyer is mandated, the persons designated
should have substantial experience with
regard to document discovery and should
have supervisory authority. This designation
should be made forthwith. If the designated
senior lawyer is personally preparing the
document discovery, further oversite is not
necessary.
The designated senior lawyer reviewing
document discovery proposals should
determine whether the requests are
cumulative or duplicative, unreasonable,
oppressive, or unduly burdensome or
expensive, and in doing so shall consider 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 that pursuit of the documentary
discovery as proposed. Consideration of
whether documents can be obtained in a
more convenient, less burdensome, or less
expensive manner shall include consideration
of the convenience, burden, and expense to
both the government and the opposing
parties.
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. The
review system should not be permitted to
deter the pursuit of reasonable document
discovery in accord with the procedures
established in the Order.
Discovery Motions
[Section l(d)(3)]
Section l(d)(3) of the Order provides that
litigation counsel shall not ask the court to
resolve a discovery dispute, including
imposition of sanctions as well as the
underlying discovery dispute, unless
litigation counsel first attempts to resolve the
dispute with opposing counsel or pro se
parties. If pre-motion efforts at resolution are
unsuccessful or impractical, a description of
those efforts shall be set forth in the
government's motion papers.
Litigation counsel, however, should not
compromise a discovery dispute unless the
terms of the compromise are reasonable.
Expert Witnesses
[Section (l)(e)]
The function of Section l(e) of the Order
is to ensure that litigation counsel proffer
only reliable expert testimony in judicial
proceedings. This practice, already widely
used by the government, will enhance the
credibility of the government's position in
litigation and improve the prospects for a
reasonable outcome of the disputes
warranting utilization of expert witnesses.
Litigation counsel shall use experts who
have knowledge, background, research, or
other expertise in the particular field of the
subject of their testimony, and who base
conclusions on widely accepted explanatory
theories, i.e., those that are propounded by at
least a substantial minority of experts in the
relevant field.
In cases requiring expert testimony on
newly emerging issues, litigation counsel
shall ensure that the proffered expert and his
or her testimony are reliable and meet the
requirements of Rule 702 of the Federal
Rules of Evidence. In evaluating the
reliability of an expert's conclusions in new
areas where there are no established
majority or minority views, it is important
for the trial attorney to keep in mind that,
under section 1 (e), only the theory, not the
conclusion based on the theory, need be
"widely accepted." Litigation counsel may
offer expert testimony that uses a widely
accepted explanatory theory to support a
conclusion in a novel area, based on the
qualifications of the expert to testify on that
issue, the extent of peer acceptance or
recognition of the expert's past work in the
field, particularly of any work that is related
to the issue on which the testimony is to be
offered, and any other available indicia of
the reliability of the proffered testimony.
However, if an expert is unable to support
the conclusion with any "widely accepted"
theories, the expert's testimony shall not be
offered.
Litigation counsel shall offer to engage in
mutual disclosure of expert witness
information pertaining to experts a party
expects to call at trial. "Expert witness
information" within the meaning of section
l(e) of the Order should ordinarily include
the information specified in Rule
26(4)(A)(in) of the Federal Rules of Civil
Procedure, the expert's resume or
curriculum vitae, a list of the expert's
relevant publications, data, test results, or
other information on which the expert is
expected to rely in the case at issue, the fee
arrangements between the party and the
expert and any written reports or other
materials prepared by the expert that the
party expects to offer into evidence.
An agreement to provide expert witness
information should be memorialized in a
consent order, except when local practice
warrants another means of memorializing
the agreement, with the same provisions
concerning enforceability and use at trial are
as provided in consent order for disclosure
of core information. The requirements to
offer mutual disclosure of expert witness
information can be satisfied by an agreement
to take depositions of experts that the parties
plan to call to testify.
Litigation counsel shall not offer to pay
an expert witness based on the success of
the litigation. Section l(e)(4). Similarly,
litigation counsel should ordinarily object to
testimony on the part of an expert whose
compensation is linked to a successful
outcome in the litigation and should bring
out on cross-examination of the expert such
compensation arrangements or agreements.
Sanctions Motions
[Section l(f)]
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Litigation counsel shall take steps to seek
sanctions against opposing counsel and
parties where appropriate, subject to the
procedures set forth in section l(f) of the
Order regarding agency review of proposed
sanction filings. Before filing a motion for
sanctions., litigation counsel should normally
attempt to resolve disputes with the opposing
counsel. Sanctions motions should not be
used as a vehicle to intimidate or coerce
government counsel or counsel adverse to the
government when dispute can be resolved on
a reasonable basis.
Section l(f)(2) of the Order mandates that
each agency which has attorneys acting as
litigation counsel designate a "sanctions
officer" to review proposed sanctions
motions and motions for sanctions that are
filed against litigation counsel., the United
States, its agencies, or its officers. The
section also requires that the sanctions officer
or designee "shall be a senior supervision
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 should meet these
criteria.
The persons acting as sanctions officers
within each agency should be designated
specifically by title or name. Action shall be
take forthwith to designate sanctions officers
within each agency. Cabinet or subcabinet
officers, such as Assistant Attorneys General
or Assistant Secretaries, officials of
equivalent rank, and United States Attorneys
are authorized pursuant to the Memorandum
to designate sanctions officers meeting the
criteria of this Memorandum.
Improved Use of Litigation Resources
[Section l(g)]
Litigation counsel are to use efficient case
management techniques and make reasonable
efforts to expedite civil litigation as set forth
in section l(g) of the Order.
In appropriate cases, litigation counsel
should move for summary judgement to
resolve litigation or narrow the issues to be
tried. This rule is not intended to suggest
that summary judgement practice should be
used prematurely in a manner which will
permit opposing counsel to defeat summary
judgement.
Litigation counsel should seek to stipulate
to facts that are not in dispute and 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 after exercising sound
judgement to determine the most appropriate
and efficient timing for such stipulations.
At reasonable intervals, litigation counsel
should review and revise submissions to the
court and should advise the court and all
counsel of any narrowing of issues, resulting
from discovery or otherwise.
Fees and Expenses
[Section l(b)]
Section l(b) of the Order provides that
litigation counsel shall offer to enter into a
two-way fee shifting agreement with
opposing parties in cases involving disputes
over certain federal contracts or in any civil
litigation initiated by the United States.
Under such an agreement, the losing party
would pay the prevailing party's fees and
costs, subject to reasonable terms and
conditions. This section is to be
implemented only "(t)o the extent
permissible by law." The section also
requires the Attorney General to review the
legal authority for entering into such
agreement. Because no legislation currently
provides specific authority for these
agreements, litigation counsel shall not offer
to enter into a two-way fee shifting
agreement until legislation is enacted or other
authority is provided by the Attorney
General.
Principles to Promote Just and Efficient
Administrative Adjudications
[Section 3]
Section 3 of the Order encourages
agencies to implement the recommendations
of the Administrative Conference of the
United States, entitled "Case Management as
a Tool for Improving Agency Adjudication"
to the extent it is reasonable and practicable
to do so (and to the extent id does not
conflict with any provisions of the Order).
The agency proceedings within the ambit of
section 3 are adjudications before a presiding
officer, such as an administrative law judge.
The order does not require the application
of section 1 to such agency proceedings.
However, it has become apparent that
application of 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
therefore encouraged to extend the
application of section 1 to agency counsel in
administrative adjudications where
appropriate, for example where an
evidentiary hearing is required by lay, and
where, in agency counsel's best judgement,
such extension is reasonable and practicable.
Exceptions to the Executive Order
The order does not apply to criminal
matters or 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 7(a)
and 8.
Attorneys for the Federal Government
are obligated to follow the requirements of
the Order unless compliance would be
contrary to the law. In the event of an
overlap between the requirements of the
Order and any local rules or court orders,
attorneys for the Federal government are
obligated to comply with both the provisions
of the Order and the provisions of the
applicable rules or court orders.
In section 5(a), the Order defines
"agency" to include each establishment
within the definition of "agency" in 28
U.S.C. 41; establishments in the legislative
or judicial branches are excluded. Thus
litigation counsel, including private
attorneys representing the government, and
the agency are subject to the provisions of
the Order even where the agency is
considered "independent" for other
purposes. The President clearly 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
disclusire of privileged information or any
other information the disclosure of which is
prohibited by law. Section 9
Dated: January 15,1993.
Wiliam P. Barr,
Attorney General
[FR Doc. 93-1654 Filed 1-22-93; 8:45 am]
BILLING CODE 44 10-01-M
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