28 U.S.C. § 519 — Supervision of litigation

Page 191 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 519 ney General to any State or district in the United States to attend to the interests of the United States in a suit pending in a court of the United States, or in a court of a State, or to at- tend to any other interest of the United States. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 613.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 316. R.S. § 367. § 518. Conduct and argument of cases (a) Except when the Attorney General in a particular case directs otherwise, the Attorney General and the Solicitor General shall conduct and argue suits and appeals in the Supreme Court and suits in the United States Court of Federal Claims or in the United States Court of Appeals for the Federal Circuit and in the Court of International Trade in which the United States is interested. (b) When the Attorney General considers it in the interests of the United States, he may per- sonally conduct and argue any case in a court of the United States in which the United States is interested, or he may direct the Solicitor Gen- eral or any officer of the Department of Justice to do so. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 613; amended Pub. L. 96–417, title V, § 503, Oct. 10, 1980, 94 Stat. 1743; Pub. L. 97–164, title I, § 117, Apr. 2, 1982, 96 Stat. 32; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 309. R.S. § 359. The words ‘‘and writs of error’’ are omitted on au- thority of the Act of Jan. 31, 1928, ch. 14, § 1, 45 Stat. 54. The word ‘‘considers’’ is substituted for ‘‘deems’’. Editorial Notes AMENDMENTS 1992—Subsec. (a). Pub. L. 102–572 substituted ‘‘United States Court of Federal Claims’’ for ‘‘United States Claims Court’’. 1982—Subsec. (a). Pub. L. 97–164 substituted ‘‘United States Claims Court or in the United States Court of Appeals for the Federal Circuit’’ for ‘‘Court of Claims’’. 1980—Subsec. (a). Pub. L. 96–417 required the Attorney General and the Solicitor General to conduct and argue suits in the Court of International Trade. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1980 AMENDMENT Amendment by Pub. L. 96–417 effective Nov. 1, 1980, and applicable with respect to civil actions pending on or commenced on or after such date, see section 701(a) of Pub. L. 96–417, set out as a note under section 251 of this title. § 519. Supervision of litigation Except as otherwise authorized by law, the At- torney 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 attor- neys, and special attorneys appointed under sec- tion 543 of this title in the discharge of their re- spective duties. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 614.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 28 U.S.C. 507(b). [None]. 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. Statutory Notes and Related Subsidiaries INTELLIGENCE AND NATIONAL SECURITY ASPECTS OF ESPIONAGE PROSECUTIONS Pub. L. 108–177, title III, § 341(b), Dec. 13, 2003, 117 Stat. 2616, as amended by Pub. L. 108–458, title I, § 1071(g)(3)(A)(v), Dec. 17, 2004, 118 Stat. 3692; Pub. L. 109–177, title V, § 506(a)(9), Mar. 9, 2006, 120 Stat. 248; Pub. L. 115–31, div. N, title IV, § 401(g), May 5, 2017, 131 Stat. 819, provided that: ‘‘The Attorney General, acting through the Assistant Attorney General for National Security, and in consultation with the Director of Na- tional Intelligence, acting through the National Coun- terintelligence and Security Center, shall establish policies and procedures to assist the Attorney General in the consideration of intelligence and national secu- rity-related equities in the development of charging documents and related pleadings in espionage prosecu- tions.’’ USE OF ANNUITY BROKERS IN STRUCTURED SETTLEMENTS Pub. L. 107–273, div. C, title I, § 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 pro- viding 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 in- clusion on the list. The Attorney General shall trans- mit 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 settle- ment that is not negotiated exclusively through the Civil Division of the Department of Justice, the United States Attorney (or his designee) involved in any set- tlement negotiations shall have the exclusive author- ity to select an annuity broker from the list of such brokers established by the Attorney General, provided Page 192 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 519 that all documents related to any settlement comply with Department of Justice requirements.’’ CASE MANAGEMENT INFORMATION AND TRACKING SYS- TEMS FOR FEDERAL JUDICIAL DISTRICTS AND DIVI- SIONS OF DEPARTMENT; PREPARATION, SUBMISSION, ETC., OF PLAN Pub. L. 96–132, § 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 Attor- neys as appropriate, to prepare and submit to the Com- mittees on the Judiciary of the Senate and the House of Representatives a plan for the activation and coordi- nation, within the Department of Justice, of compat- ible, 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, § 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 Con- gress 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 declara- tion that such opinion of the Attorney General regard- ing the constitutionality of those provisions of law in- volved constitutes the opinion of the executive branch of the government with respect to such matter. Similar provisions were contained in Pub. L. 95–624, § 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, § 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 Com- mittee on the Judiciary of the Senate and the House of Representatives not later than Oct. 1, 1979. Executive Documents 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 regula- tions which did not unduly burden the Federal court system and for promotion of just and efficient adminis- trative adjudications, was revoked by Ex. Ord. No. 12988, § 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 ad- ministrative adjudicatory tribunals to resolve disputes, to facilitate the just and efficient resolution of civil claims involving the United States Government, to en- courage the filing of only meritorious civil claims, to improve legislative and regulatory drafting to reduce needless litigation, to promote fair and prompt adju- dication before administrative tribunals, and to pro- vide 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 Gov- ernment Civil Litigation. To promote the just and effi- cient resolution of civil claims, those Federal agencies and litigation counsel that conduct or otherwise par- ticipate 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 coun- sel 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 at- tempt 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 in- clude 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 U.S.C. App.] in an attempt to resolve the dispute without ad- ditional civil litigation. (c) Alternative Methods of Resolving the Dispute in Liti- gation. Litigation counsel shall make reasonable at- tempts to resolve a dispute expeditiously and properly before proceeding to trial. (1) Whenever feasible, claims should be resolved through informal discussions, negotiations, and settle- ments 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, liti- gation counsel should suggest the use of an appropriate ADR technique to the parties. (2) It is appropriate to use ADR techniques or proc- esses 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 coun- sel shall make every reasonable effort to streamline and expedite discovery in cases under counsel’s super- vision and control. (1) Review of Proposed Document Requests. Each agency within the executive branch shall establish a coordi- nated procedure for the conduct and review of docu- ment discovery undertaken in litigation directly by that agency when that agency is litigation counsel. The procedure shall include, but is not necessarily lim- ited to, review by a senior lawyer prior to service or fil- ing 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 con- venient, less burdensome, or less expensive. (2) Discovery Motions. Before petitioning a court to re- solve a discovery motion or petitioning a court to im- pose 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 unsuc- cessful 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 Page 193 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 519 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 sanc- tions officer, or his or her designee, within the litiga- tion 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 ter- ritory 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 tech- niques and shall make reasonable efforts to expedite civil litigation in cases under that counsel’s super- vision 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 ju- risdictional 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 per- formed on their own time, including attorneys, as per- mitted by statute, regulation, or other rule or guide- line. 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 ex- ecutive branch coordination mechanisms and proce- dures established in OMB Circular A-19 and Executive Order No. 12866 [5 U.S.C. 601 note], each agency promul- gating new regulations, reviewing existing regulations, developing legislative proposals concerning regula- tions, 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 sim- plification and burden reduction. (b) Specific Issues for Review. In conducting the re- views required by subsection (a), each agency formu- lating 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 con- duct; (E) specifies whether private arbitration and other forms of private dispute resolution are appropriate under enforcement and relief provisions; subject to con- stitutional requirements; (F) specifies whether the provisions of the law are severable if one or more of them is found to be uncon- stitutional; (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 pri- vate 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 condi- tions 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 ex- haustion 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 Di- rector of the Office of Management and Budget (‘‘OMB’’) and after consultation with affected agencies, that are determined to be in accordance with the pur- poses 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 provi- sions repealed, circumscribed, displaced, impaired, or modified; (C) provides a clear legal standard for affected con- duct 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 ex- haustion of administrative remedies; (F) defines key terms, either explicitly or by ref- erence 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 Di- rector 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 sec- tion, 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 Adminis- trative Adjudications. (a) Implementation of Administrative Conference Rec- ommendations. In order to promote just and efficient resolution of disputes, an agency that adjudicates ad- ministrative claims shall, to the extent reasonable and practicable, and when not in conflict with other sec- tions of this order, implement the recommendations of the Administrative Conference of the United States, Page 194 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 520 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 ad- judicatory processes and develop specific procedures to reduce delay in decision-making, to facilitate self-rep- resentation 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 ad- ministrative adjudicatory processes to identify any type of bias on the part of the decision-makers that re- sults in an injustice to persons who appear before ad- ministrative adjudicatory tribunals; regularly train all fact-finders, administrative law judges, and other deci- sion-makers to eliminate such bias; and establish ap- propriate mechanisms to receive and resolve com- plaints of such bias from persons who appear before ad- ministrative adjudicatory tribunals. (d) Public Education. All Federal agencies should de- velop 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 an- nounced by this order, the Attorney General is author- ized to issue guidelines implementing sections 1 and 4 of this order for the Department of Justice. Such guide- lines 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 coun- sel 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 assist- ance 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 in- tended only to improve the internal management of the executive branch in resolving disputes, conducting liti- gation in a reasonable and just manner, and reviewing legislation and regulations. This order shall not be con- strued 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 com- pliance 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 obli- gate the United States to accept a particular settle- ment 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 delega- tion 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 mat- ters 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 liti- gation brought by or against the United States in for- eign courts or tribunals. (b) Application of Notice Provision. Notice pursuant to subsection (a) of section 1 is not required (1) in any ac- tion to seize or forfeit assets subject to forfeiture or in any action to seize property; (2) in any bankruptcy, in- solvency, conservatorship, receivership, or liquidation proceeding; (3) when the assets that are the subject of the action or that would satisfy the judgment are sub- ject to flight, dissipation, or destruction; (4) when the defendant is subject to flight; (5) when, as determined by litigation counsel, exigent circumstances make pro- viding such notice impracticable or such notice would otherwise defeat the purpose of the litigation, such as in actions seeking temporary restraining orders or pre- liminary injunctive relief; or (6) in those limited class- es 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 Gen- eral shall have the authority to issue further guidance as to the scope of this order, except section 3, con- sistent 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 U.S.C. App.], Tax Court Rules of Practice and Procedure, 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 effec- tive 90 days after the date of signature. This order shall not apply to litigation commenced prior to the effec- tive date. SEC. 12. Revocation. Executive Order No. 12778 is here- by revoked. WILLIAM J. CLINTON. § 520. Transmission of petitions in United States Court of Federal Claims or in United States Court of Appeals for the Federal Circuit; statement furnished by departments (a) In suits against the United States in the United States Court of Federal Claims or in the United States Court of Appeals for the Federal Circuit founded on a contract, agreement, or transaction with an executive department or military department, or a bureau, officer, or agent thereof, or when the matter or thing on which the claim is based has been passed on and decided by an executive department, military department, bureau, or officer authorized to ad- just it, the Attorney General shall send to the department, bureau, or officer a printed copy of the petition filed by the claimant, with a re- quest that the department, bureau, or officer furnish to the Attorney General all facts, cir- cumstances, and evidence concerning the claim in the possession or knowledge of the depart- ment, bureau, or officer. (b) Within a reasonable time after receipt of the request from the Attorney General, the ex- ecutive department, military department, bu- reau, or officer shall furnish the Attorney Gen- eral with a written statement of all facts, infor- mation, and proofs. The statement shall contain a reference to or description of all official docu- ments and papers, if any, as may furnish proof of facts referred to in it, or may be necessary and proper for the defense of the United States against the claim, mentioning the department, office, or place where the same is kept or may be secured. If the claim has been passed on and de- cided by the department, bureau, or officer, the statement shall briefly state the reasons and