The Federal Programs Branch litigates on behalf of
approximately 100
departments and federal agencies, Cabinet officers, and other
government
officials. The Branch's caseload consists primarily of defending
suits
that challenge actions of Government agencies and officers in which
the
plaintiffs seek injunctive or declaratory relief. Since the
enactment of
the amendments to the Civil Rights Act in 1991, however, the Branch
has
seen an increase in Title VII litigation. In addition, the Federal
Programs Branch brings actions in the name of the United States or
federal agencies to enforce Government rights, functions and
certain
claims for monetary relief. The Branch's eleven subject matter
areas are
as follows:
--Affirmative Litigation and Regulatory Enforcement
Director: David J. Anderson, Room 1064, 901 E Street, (202)
514-3354.
Assistant Director: Arthur R. Goldberg, Room 1066, 901 E Street,
(202)
514-4783.
Area 2 -- Non-Discrimination Personnel Litigation
Director: Felix V. Baxter, Room 972, 901 E Street, (202)
514-4651.
Assistant Director: Susan K. Rudy, Room 970, 901 E Street, (202)
514-2071.
Area 3 -- Government Information (Includes Freedom of
Information
Act, Privacy Act, Government in Sunshine Act, Federal Advisory
Committee
Act and Defense to Third Party Subpoena Litigation)
Director: David J. Anderson, Room 1064, 901 E Street, (202)
514-3354.
Assistant Director: Anne L. Weismann, Room 1034, 901 E Street,
(202) 514-3395.
Area 4 -- Human Resources (Includes Department of Health and
Human
Services and Department of Education)
Director: David J. Anderson, Room 1064, 901 E Street, (202)
514-3354.
Deputy Director: Sheila Lieber, Room 974, 901 E Street, (202)
514-3786.
Area 5 -- Housing and Community Development (Includes Department
of
Housing and Urban Development and Federal Emergency Management
Agency)
Director: Dennis G. Linder, Room 980, 901 E Street, (202)
514-3314.
Assistant Director: Michael Sitcov, Room 1022, 901 E Street, (202)
514-1944.
Area 6 -- National Security, Military and Foreign Relations
Director: David J. Anderson, Room 1064, 901 E street, (202)
514-3354.
Deputy Director: Vincent M. Garvey, Room 1062, 901 E Street, (202)
514-3449.
Area 7 -- Agriculture, Energy and Interior
Director: Dennis G. Linder, Room 980, 901 E Street, (202)
514-3314.
Assistant Director: Thomas W. Millet, Room 982, 901 Street, (202)
514-3313.
Area 8 -- Foreign and Domestic Commerce (Includes Departments of
Commerce, Labor, Treasury and Transportation)
Director: Dennis G. Linder, Room 980, 901 E Street, (202)
514-3314.
Assistant Director: Sandra Schraibman, Room 976, 901 E Street,
(202) 514-3315.
Area 9 -- Government Corporations and Regulatory Agencies
Director: Dennis G. Linder, Room 980, 901 E Street, (202)
514-3314.
Assistant Director: Theodore Hirt, Room 906, 901 E Street, (202)
514-4785.
Area 10 -- Employment Discrimination Litigation
Director: Felix V. Baxter, Room 972, 901 E Street, (202) 514-4651.
Assistant Directors: Anne M. Gulyassy, Room 968, 901 E Street,
(202)
514-3527; Jennifer D. Rivera, Room 978, 901 E Street, (202)
514-3671.
Area 11 -- Disability Benefits and Employment Litigation
Director: Felix V. Baxter, Room 972, 901 E Street, (202)
514-4657.
Assistant Director: Richard Lepley, Room 966, 901 E Street, (202)
514-3492.
With the exception of the categories of Direct Reference Cases
discussed in Section 4-1.310, as soon as a USAO is served with a
summons
and complaint in a new action which falls within the jurisdiction
of the
Federal Programs Branch, the USAO should transmit copies of the
pleadings to the Branch. Upon receipt of the pleadings, the Branch
will
determine the type of handling the case is to receive. Federal
Programs
Branch cases will be designated for one of the following types of
handling:
- Personally Handled (P) cases are handled by Branch
attorneys.
These cases will often involve serious or novel constitutional or
statutory challenges to federal programs, cases challenging a
nationwide
program, with potentially far-reaching implications, cases in which
either the client agency or the USAO has requested assistance, or
cases
that for whatever additional reason justify the use of resources of
the
Civil Division from Washington, D.C. Where practical, the Federal
Programs Branch will consult with the United States Attorney before
designating a case to be personally handled. See section 4(c) of
Civil
Division Directive No. 163-86 (published in the Appendix to Subpart
Y
immediately following 28 C.F.R. § 0.172) for types of cases
that are
frequently retained for personal handling by Civil Division
attorneys.
- Jointly Handled (JH) cases are those in which both a Branch
attorney
and an Assistant United States Attorney will each personally handle
aspects of the litigation.
- Monitored (M) cases are handled by Assistant United States
Attorneys, with Civil Division attorneys responsible for being
knowledgeable about case developments and strategy and available
for
advice and consultation.
- Delegated (D) cases are handled by Assistant United States
Attorneys, with involvement by Branch attorneys only on request.
See
Section 4(b) of Civil Division Directive No. 163-86, for criteria
for
delegation of cases to USAOs.
As soon as the type of handling is determined, the Federal
Programs
Branch will request that the client agency prepare a litigation
report
for the case, and a copy of that request will be forwarded to the
appropriate USAO. In delegated and monitored cases, the litigation
report request letter will be the first official notification to
the
USAO that office, rather than the Civil Division, will have primary
litigation responsibility for the case. That request letter from
the
Branch will request that the agency forward the litigation report,
with
supporting documents, to the appropriate USAO.
In personally handled and jointly handled cases, the Assistant
Branch Director assigned to the case will notify the USAO that the
Civil
Division will retain litigation responsibility for the case. In
those
cases, the Federal Programs Branch attorney assigned to the case
will
receive the litigation report from the client agency.
Two basic differences between affirmative and defensive suits
require particular attention. First, with the exception of the
Direct
Reference Cases discussed in Section 4-1.310 et seq., all
affirmative
cases must be authorized by the Civil Division. Second, several
categories of affirmative cases are routinely handled by client
agencies, pursuant to Memoranda of Understanding with the Justice
Department.
To receive authorization for commencement of an affirmative
suit,
the client agency should prepare a written referral to the Civil
Division. See USAM 4-1.450 for
discussion of contents of referrals. If a referral is made directly
to a
USAO and the case is not within the category of Direct Reference
cases,
the USAO should request that the agency formally refer the matter
to the
Civil Division for suit authorization. Upon receipt of a referral,
the
Branch will assign the referral to a Branch attorney for
preparation of
a suit authorization recommendation.
Once suit authorization is received, the Federal Programs
Branch
will determine whether the suit will be handled by the Branch, by
a
USAO, or by the client agency. The most common categories of
affirmative
suits in the Branch, and the procedures for suit authorization and
case
handling, are discussed below.
Delegated affirmative cases will usually be of three types: (1)
those delegated to USAOs for handling by those offices; (2) those
for
which the agency has statutory litigating authority; and (3) those
for
which the agency is delegated litigating authority pursuant to a
Memorandum of Understanding with the Justice Department. The most
common
delegated affirmative cases are:
- Department of Labor
(cases brought under the
Employee Retirement Income Security Act, the Occupational Health
and
Safety Act, the Migrant and Seasonal Agricultural Worker Protection
Act,
and the Federal Coal Mine Health and Safety Act). Suits under each
of
these statutes will normally be handled by Labor Department
attorneys.
In such cases, a Branch attorney will review the referral and
proposed
pleadings for form and content. If the papers indicate that the
proposed
suit has an adequate factual and legal basis, after conferring with
the
Assistant Director for Area 1, the Branch attorney will prepare
letters
to the agency and United States Attorney authorizing the filing of
the
suit, and delegating the case to the agency. (In those cases where
time
will not permit a letter authorizing that suit be filed, after
conferring with the reviewer, authorization may be given by phone,
with
confirmation letters to follow.) In most cases under these
statutes, it
will not be necessary to obtain formal authorization for the suit
from
the Assistant Attorney General. However, if any of these cases
present
novel or sensitive issues, it may be appropriate to notify the
Assistant
Attorney General of the proposed litigation.
Cases under the Labor Management Reporting and Disclosure
Act. Most LMRDA suits are handled by the USAOs. After reviewing
the
referral and proposed pleadings for an LMRDA suit, the Branch
attorney
will confer with the Assistant Director about whether the proposed
litigation has an adequate factual and legal basis. If it is
appropriate
to authorize suit, the Branch attorney will prepare a letter to the
appropriate United States Attorney, indicating that the suit is
authorized and is delegated to that office, and requesting that a
referral acknowledgement form be returned, which shows the date of
filing and the name of the Assistant United States Attorney to whom
the
case is assigned. A copy of the letter will be sent to the Labor
Department. In most cases, the letter to the United States Attorney
will
request that the suit be filed within two weeks of receipt, unless
extenuating circumstances are present.
Subpoena Enforcement Suits. Most routine subpoena
enforcement actions are handled by the USAOs and are authorized by
the
Director in charge of Area 1. A Branch attorney will review the
referral
and proposed pleadings, and then prepare a memorandum from the
assistant
director to the director, recommending whether the suit should be
filed.
If the subpoena enforcement action is approved by the director,
the
Branch attorney will write the agency and the United States
Attorney,
stating whether the suit has been authorized or not, and, if so,
that it
is delegated to the United States Attorney. In cases in which suit
is
authorized, a referral acknowledgement form will also be sent to
the
United States Attorney, as well as a copy of papers received from
the
agency.
Other Delegated Affirmative Suits. For all other
delegated
affirmative cases, such as Department of Energy enforcement
actions,
suits under the various Department of Agriculture statutes, and
miscellaneous affirmative litigation, the assigned Branch attorneys
will
review the litigation request and analysis, and prepare a suit
authorization memorandum for the Assistant Attorney General. If the
suit
is authorized, the Branch attorney will prepare a delegation letter
with
acknowledgement form to the United States Attorney, and a follow-up
letter to the agency.
Referrals of monitored affirmative cases will be handled in the
same
manner as delegated case referrals. However, the letter to the USAO
or
to the agency will advise that a Branch attorney will follow the
litigation closely and request that the Branch attorney be kept
informed
about the status of the case.
Personally handled and jointly handled affirmative cases are
referred and authorized in the same manner as delegated and
monitored
cases. The Assistant Director for affirmative litigation in the
Federal
Programs Branch will notify the appropriate USAO that the Branch
will
retain primary litigation responsibility in these cases. On
occasion, it
may become necessary for the Branch to request assistance from the
USAOs
in filing the summons and complaint in affirmative cases.
It is the policy of the Justice Department that, prior to
filing
suit against a state government, agency or entity, each Division
will
undertake the following steps:
- Advise the governor and attorney general of the
affected
state of the nature of the contemplated action or claim and the
terms of
the remedy sought;
- Notify the Deputy Attorney General and, if appropriate, the
Associate Attorney General that such prior notification has been
given;
and
- Ensure that such prior notice is given sufficiently in advance
of the filing of the suit or claim to:
- Permit the state government, agency or entity to bring to
the
Department's attention facts or issues relevant to whether the
action or
claim should be filed or,
- Result in settlement of the action or claim in advance of its
filing on terms acceptable to the United States.
See Attorney General Policy Directive, Litigation Against
State
Governments, Agencies or Entities, August 7, 1981.
- When referrals are received for suits against states, the
Branch
will prepare a suit authorization memorandum to the Assistant
Attorney
General for the Civil Division, and will also prepare notification
letters to the governor and attorney general of the state. Suit
will be
filed in such cases only after written suit authorization is given,
prior notification has been provided the state, the Deputy (and,
where
appropriate, Associate) Attorney General has been notified, and the
state has been given the opportunity to confer and attempt to
compromise
the claim without litigation. The Civil Division will supply the
interested United States Attorney with copies of the notification
letters.
Client agency requests to assert counterclaims in pending
defensive
litigation, to participate as amicus curiae, or to intervene in
on-going
state or federal court litigation are authorized in the same manner
as
affirmative cases. The Civil Division should also be provided the
factual and legal basis supporting the cause of action or position
the
client wishes to assert. Referrals for such litigation must be made
as
expeditiously as possible, since the federal government's right to
participate in on-going litigation will often depend on the status
of
the underlying case.
This area includes all affirmative litigation assigned to the
Branch
in which the United States or an agency or official of the United
States
initiates a legal action to enforce compliance with federal
statutory
and regulatory programs, including, for example, actions to enforce
administrative subpoenas, suits by the Department of Labor to
enforce
the Employee Retirement Income Security Act, the Occupational
Health and
Safety Act, the Migrant and Seasonal Agricultural Worker Protection
Act,
the Federal Coal Mine Health and Safety Act, and the Labor
Management
Reporting and Disclosure Act, enforcement actions brought on behalf
of
the National Highway Traffic Safety Administration, affirmative
Department of Agriculture litigation, suits on behalf of the
Department
of Housing and Urban Development to enjoin violations of the
Interstate
Land Sales Full Disclosure Act, and suits to enjoin state and local
interference with federal functions.
This area includes suits arising from federal governmental
employment including constitutional and other issues of appointment
and
removal of officers and employees of the United States. Also
included in
this area are cases challenging Office of Personnel Management
regulations, actions under the Federal Employee Health Benefits
Act, and
actions challenging various disciplinary and adverse actions
brought by
employees pursuant to the Civil Service Reform Act and the
Whistleblower
Protection Act. Litigation in this area arises primarily in
district
court and before the Merit Systems Protection Board.
- Contacts in Civil Division:
General: Anne L.
Weismann, Assistant Director (514-3395); David J. Anderson,
Director
(514-3354). Right to Financial Privacy Act: Arthur R. Goldberg
(514-4783). Federal Advisory Committee Act: Eric Goulian
(514-4686).
Civil Division Policies regarding handling of these types
of
cases: United States Attorneys should inform the appellate
staff
(Leonard Schaitman, 514-3441) immediately if a stay pending appeal
of an
order couched in terms of an injunction is denied in FOIA or
Privacy Act
suits. Otherwise, the cases should be handled administratively like
any
other defensive cases.
- FOIA.
- Pre-litigation FOIA Requests for Documents.
See 28
C.F.R.
§§ 16.1 through 16.10, for detailed instructions for
responding
to pre-litigation Freedom of Information Act requests. See
also 5
U.S.C. § 552, as amended. Nine categories of government
records are exempt from disclosure under the FOIA. See 28 C.F.R.
§
16.10(b)(3), as to the necessity for referring requests for
information
classified by another agency to that agency.
- In the event of a request for documents from a USAO, the
request
should be forwarded to the Executive Office for United States
Attorneys,
FOIA/PA Unit, pursuant to 28 C.F.R. Part 16.3(a). The Federal
Programs
Branch is responsible for litigation and does not have any
responsibilities relating to the administrative processing of FOIA
or
Privacy Act requests for documents in USAOs.
- FOIA Suits.
Expedited handling is essential in FOIA
suits,
inasmuch as the Act provides that such litigation is to take
precedence.
See 5 U.S.C. § 552(a)(4)(D). Because the time for
serving an
Answer or Motion to Dismiss is reduced to thirty days, care should
be
taken to ensure that the government's time to respond is protected.
The
Federal Programs Branch can provide advice and assistance if
necessary.
Interim relief is generally not permitted under the FOIA;
therefore, in
the event an emergency hearing is scheduled, the relief requested
should
ordinarily be opposed.
- Branch attorneys directly handle a number of FOIA cases.
However,
United States Attorneys should anticipate that the majority of FOIA
cases filed in their respective districts will be assigned to the
United
States Attorneys for handling. This responsibility contemplates
that the
Assistant United States Attorney assigned to the case will conduct
a
full review of the withheld documents to determine whether
withholding
is legally justified. The Assistant United States Attorney is also
responsible, with assistance from the agency General Counsel, for
drafting and reviewing affidavits, preparing responses to
interrogatories, preparing pleadings, and oral argument.
- A general discussion of the requirements of the FOIA and
current
caselaw is available in the "Freedom of Information Case List"
published
by DOJ's Office of Information and Privacy each September. Copies
can be
ordered from that office (514-4251).
- Exhaustion of administrative remedies is required before suit
may be
brought, but exhaustion may be deemed to have occurred if the
agency
exceeds statutory time limits in processing FOIA requests or
appeals.
See 5 U.S.C. § 552(a)(6). The statute generally provides
for
de novo review without reference to any administrative record made
in
the agency. 5 U.S.C. § 552(a)(4)(B). You should note, however,
that
in challenges to agency determinations regarding waiver of fees for
processing FOIA requests, the 1986 amendment to the statute
provides for
de novo review on the record made before the agency. 5 U.S.C. §
552(a)(4)(vii). "Reverse" FOIA cases, in which a submitter of
information sues to prevent an agency's proposed release of the
information under the FOIA are brought pursuant to the APA, and the
APA
standard of review applies.
- Orders for disclosure in FOIA suits will ordinarily be phrased
as
injunctions. Thus, it is necessary to seek a stay from such an
adverse
order to preserve the right of appeal. If a stay is denied,
telephonic
notice should be given the Federal Programs Branch. It is important
to
furnish immediately to the Branch a copy of all opinions and orders
entered. This is essential to assure appropriate appellate
consideration
and to enable the Department to satisfy its statutory reporting
requirements. See 5 U.S.C. § 552(e).
- Privacy Act.
The Privacy Act imposes stringent
requirements
affecting the maintenance of records concerning individuals.
See
5 U.S.C. § 552a. Subsection (b) sets forth eleven circumstances
under which records concerning an individual can be disclosed
without
the individual's prior written consent. Subsection (e)(8) requires
that
there be "reasonable efforts to serve notice on an individual when
any
record on such individual is made available to any person under
compulsory legal process when such process becomes a matter of
public
record." Subsection (g) establishes judicial remedies available to
persons aggrieved under the Act. OMB guidelines are published at 40
Fed.
Reg. 28948, et seq.
- Exhaustion of administrative remedies is required. See
5
U.S.C. § 552a(g)(1). Jurisdiction for Privacy Act suits covers
suits
for both money and specific relief. Access to government records of
an
individual, and the amendment of such records, are provided for by
5
U.S.C. 552a(g). A plaintiff is entitled to a trial de novo.
Jurisdiction
includes express authorization for injunctive actions, both to
prevent a
government agency from withholding records and to compel their
production. See 5 U.S.C. § 552a(g)(3). In an action
brought
for failure to maintain an individual's record with accuracy, or
for
failure to comply with any of the Act's other provisions in such a
way
as to have an adverse effect on the individual, the individual can
recover damages if the agency acted intentionally or willfully.
Damages
can in no event be less than $1000 together with costs and
reasonable
attorney fees. Venue is set forth in 5 U.S.C. § 552a(g)(5), as
is
the limitations provision.
- If a court order is adverse and phrased as an injunction, a
stay
should be timely sought to preserve the right of appeal. It is
important
to furnish immediately to the Branch a copy of all opinions and
orders
entered.
- Awareness of the Privacy Act is also important during discovery
in
non-Privacy Act cases since documents requested in discovery in a
variety of cases can be subject to the Privacy Act. This is
particularly
true in cases involving personnel issues or personnel files.
Documents
subject to the Privacy Act should not be produced in discovery
until the
Act's requirements involving disclosure of such information have
been
met. Note that many agencies have published "routine uses" under
the Act
(5 U.S.C. § 552a(b)(3)) which provide for the release of
certain
records to the Department of Justice or to parties in litigation.
The
agency should be able to provide citations in the federal register
to
such publications.
- Right to Financial Privacy Act.
There are no
administrative
remedies to be exhausted as a prerequisite to litigation under the
Right
to Financial Privacy Act. Jurisdiction for such suits covers
actions for
both money damages and specific injunctive relief. The Act
prohibits any
agency or department from obtaining (or any private "financial
institution" as defined in 12 U.S.C. § 3401(1) from disclosing)
the
financial records of a financial institution's "customer" as
defined in
12 U.S.C. § 3401(5), except where access is authorized by one
of the
express exceptions to the Act or is accomplished through one of the
five
access mechanisms mandated by the Act: (1) customer authorization;
(2)
administrative summons or subpoena; (3) search warrant; (4)
judicial
subpoena; or (5) formal written request. For further information on
transfer restrictions and remedies under the Act, see Civil Resource Manual at 90.
- Government In The Sunshine Act.
The Government in the
Sunshine Act, 5 U.S.C. § 552b, sets forth specific requirements
pertaining to notices of agency meetings and requirements for
record
keeping of such meetings. Sunshine Act litigation is discussed in
the
Civil Division Practice Manual at § 3-46.1, et seq. See
also
Berg and Klitzman. An Interpretive Guide to the Government in the
Sunshine Act, published by the Administrative Conference of the
United
States in June 1978.
- Production of Documents of Other Departments and Agencies
in
Non-FOIA Litigation.
On occasion, litigants in private lawsuits
may
issue a subpoena for deposition or trial testimony, or a subpoena
duces
tecum requiring production of information or documents which a
client
agency deems confidential or otherwise privileged from disclosure.
Protection against the compulsory disclosure of such documents or
information is recognized in various circumstances. See 5
U.S.C.
§ 301; Jencks v. United States, 353 U.S. 657 (1957);
United States v. Reynolds, 345 U.S. 1 (1953); Touhy v.
Ragen, 340 U.S. 462 (1951); Bowman Dairy Co. v. United
States, 341 U.S. 214 (1951); Saunders v. Great Western Sugar
Co., 396 F.2d 794 (10th Cir. 1968).
- If a government employee served with such a subpoena seeks
advice
from the United States Attorney, he/she should be told to contact
his/her own agency for instructions, because, if the agency does
not
object to compliance, the Department of Justice usually will not.
If the
agency wishes to object, however, it usually will have pertinent
regulations (promulgated under 5 U.S.C. § 301), similar to the
DOJ
regulations at 28 C.F.R. § 16.21, et seq., instructing
employees not
to produce or testify unless authorized to do so by a designated
official (usually the head of the agency or his/her designee). Such
regulations are ordinarily recognized as a valid basis on which to
refuse to produce documents or testify. See Touhy v.
Ragen, 340 U.S. at 657; Saunders v. Great Western Sugar
Co.,
396 F.2d at 794. State courts also usually honor such regulations.
See People v. Parham, 60 Cal.2d 378, 384 P.2d 1001,
cert. denied, 377 U.S. 945, reh'g denied 379 U.S. 873
(1964). For the procedure to be followed in the event of an adverse
decision, see North Carolina v. Carr, 264 F. Supp. 75
(W.D.N.C.), appeal dism., 386 F.2d 129 (4th Cir. 1967).
- Requiring compliance with such regulations is not considered to
be a
claim of privilege, and the regulations do not create a privilege
against discovery. There are, however, several common law
privileges
available only to the government. These include the military or
state
secrets privilege, which is absolute if validly claimed, and the
deliberative process, informant's, law enforcement evidentiary, and
required reports privileges, which are qualified. There are also
privileges available for certain types of presidential documents.
- In certain instances, a formal claim of privilege may be
required to
be made by the head of the agency involved. See United
States
v. Reynolds, 345 U.S. 1, 7-8 (1953); Carl Zeiss Stiftung v.
V.E.B. Carl Zeiss Jena, 40 F.R.D. 318 (D.D.C. 1966),
aff'd,
384 F.2d 979 (D.C. Cir.), cert. denied, 389 U.S. 952 (1967).
It
is not necessary to make a "formal" claim of privilege in objecting
to
production of documents, but it is necessary in opposing a motion
to
compel or moving to quash a subpoena. United States Attorneys
should not
make a formal claim of a privilege available only to the government
in
any case without approval from the Civil Division.
- Justice Department Materials and Witnesses.
28 C.F.R.
§§ 16.21 to 16.28 regulate the production of DOJ
information or
records pursuant to subpoena or court demands when the United
States is
not a party to the lawsuit:
(N)o employee or former employee of the Department of
Justice shall, in response to a demand, produce any material
contained
in the files of the Department, or disclose any information or
produce
any material acquired as part of the performance of that person's
official status without prior approval of the proper Department
official
in accordance with 16.24 and 16.25 of this part.
This area includes all suits involving Medicare and Medicaid,
and
the various state-federal cash assistance or welfare programs
(e.g., Aid
to Families with Dependent Children, foster care, emergency
assistance
programs), as well as Public Health Service cases, Indian Health
Service
cases, and Randolph Shepard Act cases.
This area includes all equitable housing and housing-related
cases
involving the Department of Housing and Urban Development and other
government agencies. It includes cases involving Title VIII-Fair
Housing, suspension or debarments of HUD contractors and agents,
Federal
Housing Administration Insured Housing Programs (single and
multifamily), Government National Mortgage Association (GNMA),
National
Flood Insurance Act, Federal Crime Insurance Act, McKinney Act,
Interstate Land Sales Act-defensive suits, Housing and Community
Development Act-Section 8 leased housing program, Community
Development
Block Grant Program, conventional low rent public housing program,
tenants' rights, procedures and grievances regarding rent
increases,
utility rate conversions, evictions, etc., disaster relief (mobile
homes), HUD relocation benefits, challenges to HUD refusal to
expend
funds, nonjudicial foreclosure, miscellaneous HUD program
litigation and
Farmers Home Administration and Veterans Administration Housing
Program
litigation, and litigation under the McKinney Act.
This area includes suits involving the Department of Defense,
including the military departments, the Department of State, the
Central
Intelligence Agency, the Selective Service, cases arising out of
federal
law enforcement activities, "Bivens" litigation against Executive
Branch
officials, Legislative Branch officials and Judicial Branch
officials
where the main issue is not money damages, military base closing
and
realignment litigation, military discharge, enlistment contracts,
and
correction of military records cases, National Security Act,
secrecy
agreements, and miscellaneous intelligence litigation,
miscellaneous law
enforcement litigation, challenges to the Child Protection
Restoration
and Penalties Enhancement Act of 1990, Radiation Exposure
Compensation
Act claims, miscellaneous military litigation, foreign relations
litigation, Selective Service System, Army Corps of Engineers
projects,
military non-promotion and missing in action litigation, Military
Medical Program challenges, and enforcement of intelligence
subpoenas.
This area includes cases involving the programs of the
Departments
of Energy, Agriculture and Interior. Among the Agriculture cases in
this
area are those involving the Food Stamp Program, the Agricultural
Adjustment Act, Commodity Marketing Orders, Packers & Stockyards
Act,
Federal Crop Insurance Corporation, Animal Welfare Act, Federal
Meat
Inspection Act, Poultry Products Inspection Act, and Commodity
Price
Support programs. Area 7 does not include housing programs of the
Farmers Home Administration, which fall within Area 5. Energy
Department
cases in this area include those involving nuclear energy policy,
and
other energy research and development programs. A limited number of
cases arising from energy price control programs also remain. Most
Interior Department litigation is within the jurisdiction of the
Environment and Natural Resources Division. A limited number of
cases
not relating to environmental issues, such as First Amendment cases
on
the use of public property, are within this area.
This area includes challenges to the programs of the Department
of
Treasury, Labor, Commerce, and Transportation and other matters
involving interstate and foreign commerce that cross agency lines,
such
as the Davis-Bacon Act, the Service Contract Act, unemployment
compensation and other programs. Treasury Department matters
include
representation of the Office of Foreign Assets Control in cases
brought
under the Trading with the Enemy Act, International Emergency
Economic
Powers Act, and Foreign Assets Control Regulations; the Bureau of
Alcohol, Tobacco and Firearms in cases under the Brady Act, the
semiautomatic assault weapons ban of the 1994 Crime Act, firearms
license litigation and miscellaneous ATF cases; miscellaneous
Customs
Service litigation; and miscellaneous Treasury litigation and
matters.
Labor Department representation includes Employment and Training
Administration alien worker (H-1A, 1B, 2A) programs and other
litigation; Fair Labor Standards Act; Labor Management-Reporting &
Disclosure Act; Davis-Bacon Act; Office of Workers Compensation
Programs/ Federal Employees Compensation Act; Occupational Safety
&
Health Act; and miscellaneous Labor program challenges. Commerce
Department cases and matters involve Bureau of the Census; Export
Administration Act; National Weather Service; and miscellaneous
Commerce
litigation and matters. Department of Transportation representation
includes litigation and matters involving Federal Aviation
Administration; Coast Guard; Federal Highway Administration;
Maritime
Administration; Federal Railroad Administration; and miscellaneous
other
Transportation programs and issues.
This area includes actions against various regulatory agencies
and
corporations, and suits involving agencies or matters not otherwise
covered by the above subject matter areas which are handled by the
Federal Programs Branch, including Small Business Administration
cases,
Farm Credit Administration cases, Federal election laws, postal
fraud
and obscenity, Federal Communications Act, miscellaneous GSA cases,
veterans benefits cases, other Veterans Administration litigation,
Railway Labor Act, NASA cases, miscellaneous Postal Service
matters,
Federal Trade Commission, Religious Freedom Restoration Act and
other
religion issues, National Endowment for the Arts and Humanities
cases,
postal rates and classifications, TVA cases, miscellaneous cases
involving White House agencies and officials, and actions against
the
Legislative and Judicial branches and officials of those branches.
This area includes all suits challenging government employment
decisions or regulations affecting employment on the basis of
prohibited
discrimination, including Title VII, Equal Pay Act, Age
Discrimination
in Employment Act, Rehabilitation Act (handicapped
discrimination-federal employees), Executive Order 11246, Title VI,
Title IX, Civil Rights Attorneys' Fee Awards, and Equal Education
Opportunities litigation.
The passage of the Civil Rights Act of 1991 has significantly
affected the defense of employment discrimination suits by the
Department. The advent of compensatory damages for intentional
discrimination and the availability of jury trials have resulted in
a
greater number of cases being filed and a marked increase in the
number
of cases settled. While Landgraf v. USI Film Products, Inc.,
___
U.S. ___, 114 S.Ct. 1483 (1994), held that substantive changes to
the
law are not retroactive, numerous issues remain to be resolved
regarding
compensatory damages, taxability, interest, bifurcation of pre- and
post-Act claims, etc. In addition, there is a compelling need for
coordination between the Civil Division and the Civil Rights
Division on
issues which affect the Department's enforcement and defensive
litigation. Accordingly, Assistant United States Attorneys should
raise
issues of first impression with one of the Assistant Directors who
supervise Area 10 cases.
Frequently, plaintiffs also sue individual employees for
damages in
sexual harassment cases. When the individual defendant seeks
departmental representation, close examination of the facts and
circumstances is necessary to determine whether the employee's
action is
within the scope of employment and whether representation is in the
interest of the United States. In presenting such requests, the
individual defendant must deny the allegations of sexual harassment
or
explain the circumstances. Please assist agency counsel in
obtaining all
the necessary information in a timely manner to process such
requests
for representation.
Regulations issued by the Equal Employment Opportunity
Commission
expressly provide that claims of retaliation by federal employees
are
actionable under Title VII of the Civil Rights Act, 42 U.S.C. 2000e
et seq., the Age Discrimination in Employment Act (ADEA), 29
U.S.C. 633a, and the Rehabilitation Act, 42 U.S.C. 791. See
29
C.F.R. 1614.101; 1614.103(a). Moreover, the Solicitor General has
argued
in the Supreme Court that such claims are actionable. See
Brief
for the Respondent in Hunt v. Secretary of the Army, Sup.
Ct. No.
95-5801 (Nov. 29, 1995).
Questions may be directed to Anne Gulyassy of the Federal
Programs
Branch at (202) 514-3527; civ04(agulyass) or Marleigh Dover of the
Appellate Staff at (202) 514-3511; civ08(mdover).
In Section 102 of the Civil Rights Act of 1991, 42 U.S.C.
1981a(b),
Congress for the first time made compensatory damages available to
federal employees who establish that they have been victims of
intentional discrimination prohibited by Title VII and the
Rehabilitation Act. Section 1981a(a)(1)(b)(3) provides that "[i]n
an
action brought by a complaining party under section 706 or 717 of
the
Civil Rights Act of 1964 * * * the complaining party may recover
compensatory * * * damages as allowed in subsection (b) of this
section
* * *." Subsection (b) provides that in the case of an employer
with
more than 500 employees, "[t]he sum of the amount of compensatory
damages shall not exceed, for each complaining party" $300,000.
The Acting Solicitor General has determined that the $300,000
cap
applies per lawsuit, such that a plaintiff cannot recover more than
$300,000 in a single lawsuit, no matter how many claims are alleged
in
the complaint.
Questions may be directed to Jennifer Rivera of the Federal
Programs
Branch at (202) 514-3671; civ04(jrivera) or Marleigh Dover of the
Appellate Staff at (202)514-3511; civ08(mdover). Ms. Rivera or Ms.
Dover
should be advised of any decisions issued which address this issue.
Area 11 has two primary sub-units. Well over half of the cases
involve challenges to the $52 billion a year social security
benefits
program. This includes Social Security Act Title II (disability
insurance) and Title XVI (supplemental security income) benefits
litigation. Individual claims for benefits are delegated to the
USAOs,
with the Civil Division handling large class actions or other
significant challenges to the administrative scheme. Defense of
employment disability-related cases involving the Rehabilitation
Act of
1973, the Americans with Disabilities Act, and the Family and
Medical
Leave Act are the other large group of cases in this area. In 1992,
Congress amended the Rehabilitation Act to make the employment
standards
of Title I of the Americans with Disabilities Act (ADA) applicable
to
discrimination actions under sections 501 and 504 of the
Rehabilitation
Act, 29 U.S.C. 791(g), 794(d). The Civil Division coordinates with
the
Civil Rights Division on cases affecting the latter's enforcement
responsibilities under the ADA. Finally, discrete areas of
litigation
involving the Social Security Administration, such as challenges to
the
Coal Industry Retiree Health Benefits Act of 1992, are under this
section.
Over eight thousand actions were brought in federal district
courts
in 1995 challenging administrative determinations of the
Commissioner of
the Social Security Administration. See 42 U.S.C. § 405,
for
judicial review, 42 U.S.C. § 409 to 411, 416, for definitions,
and
42 U.S.C. § 423, for disability cases. Regulations promulgated
under
the authority of 42 U.S.C. § 405(a) dealing with disability
cases
appear in 20 C.F.R. Parts 400 to 499.
Title 42 U.S.C. § 405(g) contemplates an administrative
review
proceeding. Title 42 U.S.C. § 405(b) imposes on the
Commissioner of
Social Security the duty of making findings of fact and a decision
as to
the rights of any individual applying for payments. Title 42 U.S.C.
§ 405(g) requires that a certified copy of the transcript of
the
administrative record be filed with the government's answer to the
complaint and after completing administrative proceedings in
certain
remand cases. Judicial review must be had in accordance with 42
U.S.C.
§ 405(g). See Heckler v. Ringer, 466 U.S. 602
(1984).
Only "final decisions" of the Commissioner of Social Security
are
reviewable. 42 U.S.C. § 405(g) Normally a claimant must exhaust
his
or her administrative remedies. The Commissioner can waive the
exhaustion requirement, and the courts can waive the requirement
upon a
showing that the claim is collateral to a claim for benefits and
that
irreparable harm would ensue absent immediate relief. See
Mathews v. Eldridge, 424 U.S. 323 (1976). 42 U.S.C. §
405(g)
provides that judicial review must be sought within 60 days of the
Commissioner's final decision. The Supreme Court has held that this
is
not a jurisdictional requirement but is a period of limitations
which
can be tolled by the Commissioner and, in rare cases, by the
courts.
Bowen v. City of New York, 106 S.Ct. 2022, 90 L.Ed.2d 426
(1986).
If a motion to dismiss is to be filed for failure to exhaust
administrative remedies or untimely filing, the Office of Appellate
Operations, Office of Hearings and Appeals of the Social Security
Administration (SSA), can provide an affidavit reciting the
relevant
facts. Pursuant to P.L. No. 103-296, the Social Security
Independence
and Program Improvements Act of 1994, the function of the Secretary
of
Health and Human Services in Social Security cases was transferred
to
the Commissioner of Social Security effective March 31, 1995. In
accordance with section 106(d) of P.L. 103-296, Commissioner of
Social
Security, was substituted for the Secretary of Health and Human
Services, as the defendant in cases during the transition period
further
action needed to continue pending suits. For additional information
on
Social Security Act review procedures, see the Civil Resource Manual at 93.
Section 405(g) of Title 42 provides that a court may affirm,
reverse, or remand the decision of the Commissioner. Often
plaintiffs'
counsel will move for remand in order to adduce further evidence
for the
record. There must, however, be "good cause" for a remand (i.e.,
the
proffered evidence must be new and material, and that good cause
must be
shown by the proponent for the failure to incorporate such evidence
into
the record during the prior proceedings). See Cotton v.
Bowen, 799 F.2d 1403, 1409 (9th Cir. 1986); Willis v.
Secretary
of Health and Human Services, 727 F.2d 551, 553 (6th Cir.
1984);
Chandler v. Secretary of Health and Human Services, 722 F.2d
369
(8th Cir. 1983). The circuits have held that in order for the
proffered
evidence to be "material" there must be a reasonable possibility
that it
would have changed the outcome of the administrative determination
had
it been considered earlier. See, e.g., Cotton v.
Bowen,
799 F.2d 1403; Chaney v. Schweiker, 659 F.2d 676, 679 (5th
Cir.
1981). A lost or inaudible recording tape of the administrative
hearing
is also good cause for remand. H.R. Rep. No. 944, 96th Cong., 2d
Sess.
59 (1980), reprinted in 1980 U.S. Code Cong. & Ad. News
1392,
1406-07. For additional information on the types of judgments
authorized
under the Social Security Act, see the Civil
Resource Manual at 94.
Section 406(b) of Title 42 authorizes the award of reasonable
attorney fees, up to a maximum of 25 percent of past due benefits,
for
successful representation of social security claimants before the
court.
The majority rule is that the court can award fees only for
services
rendered in connection with proceedings before the court and may
not
award fees for services before the Social Security Administration.
See Gardner v. Menendex, 373 F.2d 488, 490 (1st Cir.
1967); Burgo v. Harris, 527 F. Supp. 1157 (E.D.N.Y. 1981);
Guido v. Schweiker, 775 F.2d 107 (3d Cir. 1985); Ray v.
Gardner, 387 F.2d 162, 165 (4th Cir. 1967); Gardner v.
Mitchell, 391 F.2d 582, 583 (5th Cir. 1968); Horenstein v.
Secretary of Health and Human Services, 35 F.3d 261 (6th Cir.
1994)
(en banc); Smith v. Sullivan, 986 F.2d 232 (8th Cir. 1993);
MacDonald v. Weinberger, 512 F.2d 144, 146 (9th Cir. 1975);
and
Harris v. Secretary of Health and Human Services, 836 F.2d
496 (10th Cir.
1987).
The Social Security Act § 206 fee is not in addition to the
benefits, but is subtracted from the claimant's award. Several
courts of
appeals have condemned the practice of routinely awarding the 25
percent
statutory maximum without examination of what fee is reasonable in
the
particular case. MacDonald v. Weinberger, 512 F.2d 144,
146-47
(9th Cir. 1975); Webb v. Richardson, 472 F.2d 529, 537-38
(6th
Cir. 1972) overruled on other grounds by Horenstein v. Secretary
of
Health and Human Services, 35 F.3d 261 (6th Cir. 1994) (en
banc);
McKittrick v. Gardner, 378 F.2d 872 (4th Cir. 1967). Equal
Access
to Justice Act fees, 28 U.S.C. § 2412, are not paid out of the
claimant's award. Additional cases which oppose routine 25-percent
fee
awards include: Wells v. Sullivan, 907 F.2d 367 (2d Cir.
1990);
Coup v. Heckler, 834 F.2d 313 (3d Cir. 1987); McGuire v.
Sullivan, 873 F.2d 974 (7th Cir. 1989); Cotter v. Bowen,
879
F.2d 359 (8th Cir. 1989); Starr v. Bowen, 831 F.2d 359 (9th
Cir.
1987); but see Rodriguez v. Bowen, 865 F.2d 739 (6th
Cir.
1989) (25 percent contingent fee agreement is rebuttable
presumption of
reasonable fee).
All applications for fee awards should, as a routine matter, be
forwarded to the General Counsel's office in the Social Security
Administration for review and determination of whether the
application
should be opposed. When the court enters an order awarding attorney
fees
in a Social Security Act review case, SSA will release the §
206
fees to plaintiff's attorney unless the United States Attorney
advises
the Civil Division and SSA within thirty days of SSA's receipt of
the
fee award that the award exceeds statutory limits or is excessive
under
the circumstances.
Because of the large volume of Social Security cases filed each
year, it is imperative that the Office of General Counsel (OGC),
Social
Security Administration (SSA) receive notification of suit within
three
days from service of the Summons and Complaint on a United States
Attorney. The telefax should be routed to Answer Staff of OGC (703)
305-1271 and to the Office of Hearings and Appeals (703) 305-0623
(4th,
5th, 6th, 7th, and 10th Cir); (703) 305-0739 (1st, 2d, 3rd, 8th,
9th,
11th and D.C. Cir.) please provide the following information:
- Case caption;
- Plaintiff's Social Security number;
- District court where case was filed;
- Date complaint was filed;
- Date United States Attorney was served;
- Name and telephone number of Assistant United States Attorney
handling the
case; and
- Date a petition in forma pauperis was filed, if
applicable.
Similarly, when a USAO is served with an order requiring
compliance
and action by SSA during the trial of the case, the following
information should be telefaxed via the same routing indicator as
above:
- Case caption;
- Plaintiff's Social Security number;
- Type of order issued;
- Operative time limits for SSA action; and
- Name and telephone number of the Assistant United States
Attorney handling the case.
Copies of summonses and complaints and other pleadings and
material
filed prior to the government's initial responses should be mailed
to:
Office of the General Counsel
Social Security Division
Answer Staff
5107 Leesburg Pike
Room 1704 Skyline Towers
Falls Church, VA 22041-3255
In addition, SSA has designated certain items as "critical" and
such
items are to be forwarded to a special post office box. Items
considered
to be "critical" include: adverse court orders such as Magistrate
and
court reversals, remands, motions for, or threats or contempt or
default, or any court order which contains a time limit for action
to be
commenced or completed by the Commissioner. Such items should be
forwarded to:
Office of the General Counsel
Social Security Administration
Post Office Box 17054
Baltimore, Maryland 21203
All other, non-critical items including non-program matters,
such as
tort actions, employment laws against SSA, should be addressed to:
Office of the General Counsel
Social Security Administration
6401 Security Boulevard
Room 611, Altmeyer Building
Baltimore, Maryland 21235
| May 1998
| USAM Chapter 4-6
|