Redelegation by Civil Division of Authority to Compromise Civil Claims

DEPARTMENT OF JUSTICE

28 CFR Part 0

[Civil Division Directive No. 14-95]

Redelegation by Civil Division of Authority to Compromise Civil

Claims

AGENCY: Department of Justice, Civil Division.

ACTION: Final rule.

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SUMMARY: This Directive implements a recent Attorney General order that

increased settlement and compromise authority that the Assistant

Attorneys General of the litigating divisions may redelegate to United

States Attorneys in civil matters. This Directive, which supersedes

Civil Division Directive 176-91, is being promulgated in order to

increase Department efficiency.

EFFECTIVE DATE: April 6, 1995.

FOR FURTHER INFORMATION CONTACT:

Robert M. Hollis, Assistant Director, Commercial Litigation Branch,

Civil Division, Department of Justice, room 11022, 550 11th Street NW.,

Washington, DC 20530; (202) 307-1100.

SUPPLEMENTARY INFORMATION: This Directive implements on behalf of the

Civil Division the increase in the dollar amount of settlement

authority which the Assistant Attorneys General may redelegate to

United States Attorneys in civil matters. This increase in United

States Attorney authority will further the efficient operation of the

Department of Justice.

As a regulation related to internal Department of Justice

management, this rule may become effective without provision for public

comment pursuant to 5 U.S.C. Sec. 553(b)(A). This Directive is not a

``significant regulatory action'' under section 3(f) of Executive Order

12866 and, accordingly, it has not been reviewed by the Office of

Management and Budget. Pursuant to 5 U.S.C. Sec. 605(b), the Assistant

Attorney General for the Civil Division certifies that because the

effect of this Directive is internal to the Department of Justice it

will not have a significant adverse economic impact on a substantial

number of small business entities. [[Page 17457]]

This rule will not have substantial direct effects on the states,

on the relationship between the national government and the states, or

on the distribution of power and responsibilities among the various

levels of government. Therefore, in accordance with Executive Order

12612, it is determined that this rule does not have sufficient

federalism implications to warrant the preparation of a Federalism

Assessment.

List of Subjects in 28 CFR Part 0

Authority delegations (government agencies), Government employees,

Organization and functions (government agencies), Whistleblowing.

PART 0--[AMENDED]

1. The authority citation for part 0 continues to read as follows:

Authority: 5 U.S.C. Sec. 301, 28 U.S.C. Secs. 509, 510, 515-519.

2. In the Appendix to Subpart Y, Civil Division Directive No. 176-

91 is removed and Civil Division Directive 14-95 is added in its place

to read as follows:

Appendix to Subpart Y--Redelegations of Authority To Compromise and

Close Civil Claims

* * * * *

[Directive No. 14-95]

By virtue of the authority vested in me by part 0 of title 28 of

the Code of Federal Regulations, particularly Secs. 0.45, 0.160,

0.164, and 0.168, it is hereby ordered as follows:

Section 1. Authority To Compromise or Close Cases and to File Suits

and Claims

(a) Delegation to Deputy Assistant Attorneys General. The Deputy

Assistant Attorneys General are authorized to act for, and to

exercise the authority of, the Assistant Attorney General in charge

of the Civil Division with respect to the institution of suits, the

acceptance or rejection of compromise offers, and the closing of

claims or cases, unless any such authority is required by law to be

exercised by the Assistant Attorney General personally or has been

specifically delegated to another Department official.

(b) Delegation to United States Attorneys, Branch, Office and

Staff Directors and Attorneys-in-Charge of Field Offices. Subject to

the limitations imposed by 28 CFR 0.160(c), and 0.164(a) and section

4(c) of this directive, and the authority of the Solicitor General

set forth in 28 CFR 0.163,

(1) Branch, Office, and Staff Directors, and Attorneys-in-Charge

of Field Offices with respect to matters assigned or delegated to

their respective components are hereby delegated the authority to:

(a) Accept offers in compromise of claims on behalf of the

United States;

(i) In all cases in which the gross amount of the original claim

did not exceed $500,000; and,

(ii) In all cases in which the gross amount of the original

claim was between $500,000 and $5,000,000, so long as the difference

between the gross amount of the original claim and the proposed

settlement does not exceed $500,000 or 15 percent of the original

claim, whichever is greater;

(b) Accept offers in compromise of, or settle administratively,

claims against the United States in all cases where the principal

amount of the proposed settlement does not exceed $500,000; and,

(c) Reject any offers.

(2) United States Attorneys with respect to matters assigned or

delegated to their respective components are hereby delegated the

authority to:

(a) Accept offers in compromise of claims on behalf of the

United States;

(i) In all cases in which the gross amount of the original claim

did not exceed $1,000,000 and,

(ii) In all cases in which the gross amount of the original

claim does not exceed $5,000,000, and in which the difference

between the gross amount of the original claim and the proposed

settlement does not exceed $1,000,000;

(b) Accept offers in compromise of, or settle administratively,

claims against the United States in all cases where the principal

amount of the proposed settlement does not exceed $1,000,000 and,

(c) Reject any offers.

(3) With respect to claims asserted in bankruptcy proceedings,

the term gross amount of the original claim in (1) (a) and (b), and

(2) (a) and (b) above means liquidation value. Liquidation value is

the forced sale value of the collateral, if any, securing the

claim(s) plus the dividend likely to be paid for the unsecured

portion of the claim(s) in an actual or hypothetical liquidation of

the bankruptcy estate.

(c) Subject to the limitations imposed by sections 1(e) and 4(c)

of this directive, United States Attorneys, Directors, and

Attorneys-in-Charge are authorized to file suits, counterclaims, and

cross-claims, to close, or to take any other action necessary to

protect the interests of the United States in all routine

nonmonetary cases, in all routine loan collection and foreclosure

cases, and in other monetary claims or cases where the gross amount

of the original claim does not exceed $500,000, or in the case of

United States Attorneys, $1,000,000. Such actions in nonmonetary

cases which are other than routine will be submitted for the

approval of the Assistant Attorney General, Civil Division.

(d) United States Attorneys may redelegate in writing the above-

conferred compromise and suit authority to Assistant United States

Attorneys who supervise other Assistant United States Attorneys who

handle civil litigation.

(e) Limitations on delegations. The authority to compromise

cases, file suits, counter-claims, and cross-claims, to close cases,

or take any other action necessary to protect the interests of the

United States, delegated by paragraphs (a) and (b) of this section,

may not be exercised, and the matter shall be submitted for

resolution to the Assistant Attorney General, Civil Division, when:

(1) For any reason, the proposed action, as a practical matter,

will control or adversely influence the disposition of other claims

totaling more than the respective amounts designated in the above

paragraphs.

(2) Because a novel question of law or a question of policy is

presented, or for any other reason, the proposed action should, in

the opinion of the officer or employee concerned, receive the

personal attention of the Assistant Attorney General, Civil

Division.

(3) The agency or agencies involved are opposed to the proposed

action. The views of an agency must be solicited with respect to any

significant proposed action if it is a party, if it has asked to be

consulted with respect to any such proposed action, or if such

proposed action in a case would adversely affect any of its

policies.

(4) The U.S. Attorney involved is opposed to the proposed action

and requests that the matter be submitted to the Assistant Attorney

General for decision.

(5) The case is on appeal, except as determined by the Director

of the Appellate Staff.

Section 2. Action Memoranda

(a) Whenever an official of the Civil Division or a United

States Attorney accepts a compromise, closes a claim or files a suit

or claim pursuant to the authority delegated by this Directive, a

memorandum fully explaining the basis for the action taken shall be

executed and placed in the file. In the case of matters compromised,

closed, or filed by United States Attorneys, a copy of the

memorandum must be sent to the appropriate Branch or Office of the

Civil Division.

(b) The compromising of cases or closing of claims or the filing

of suits for claims, which a United States Attorney is not

authorized to approve, shall be referred to the appropriate Branch

or Office within the Civil Division, for decision by the Assistant

Attorney General or the appropriate authorized person within the

Civil Division. The referral memorandum should contain a detailed

description of the matter, the United States Attorney's

recommendation, the agency's recommendation where applicable, and a

full statement of the reasons therefor.

Section 3. Return of Civil Judgment Cases to Agencies

Claims arising out of judgments in favor of the United States

which cannot be permanently closed as uncollectible may be returned

to the referring Federal agency for servicing and surveillance

whenever all conditions set forth in USAM 4-2.230 have been met.

Section 4. Authority for Direct Reference and Delegation of Civil

Division Cases to United States Attorneys

(a) Direct reference to United States Attorneys by agencies. The

following civil actions under the jurisdiction of the Assistant

Attorney General, Civil Division, may be referred by the agency

concerned directly to the appropriate United States Attorney for

[[Page 17458]] handling in trial courts, subject to the limitations

imposed by paragraph (c) of this section. United States Attorneys

are hereby delegated the authority to take all necessary steps to

protect the interests of the United States, without prior approval

of the Assistant Attorney General, Civil Division, or his

representations, subject to the limitations set forth in section

1(e) of this directive. Agencies may, however, if special handling

is desired, refer these cases to the Civil Division. Also, when

constitutional questions or other significant issues arise in the

course of such litigation, or when an appeal is taken by any party,

the Civil Division should be consulted.

(1) Money claims by the United States, except claims involving

penalties and forfeitures, where the gross amount of the original

claim does not exceed $1,000,000.

(2) Single family dwelling house foreclosures arising out of

loans made or insured by the Department of Housing and Urban

Development, the Veterans Administration and the Farmers Home

Administration.

(3) Suits to enjoin violations of, and to collect penalties

under, the Agricultural Adjustment Act of 1938, 7 U.S.C. 1376, the

Packers and Stockyards Act, 7 U.S.C. 203, 207(g), 213, 215, 216,

222, and 228a, the Perishable Agricultural Commodities Act, 1930, 7

U.S.C. 499c(a) and 499h(d), the Egg Products Inspection Act, 21

U.S.C. 1031 et seq., the Potato Research and Promotion Act, 7 U.S.C.

2611 et seq., the Cotton Research and Promotion Act of 1966, 7

U.S.C. 2101 et seq., the Federal Meat Inspection Act, 21 U.S.C. 601

et seq., and the Agricultural Marketing Agreement Act of 1937, as

amended, 7 U.S.C. 601 et seq.

(4) Suits by social security beneficiaries under the Social

Security Act, 42 U.S.C. 402 et seq.

(5) Social Security disability suits under 42 U.S.C. 423 et seq.

(6) Black lung beneficiary suits under the Federal Coal Mine

Health and Safety Act of 1969, 30 U.S.C. 921 et seq.

(7) Suits by Medicare beneficiaries under 42 U.S.C. 1395ff.

(8) Garnishment actions authorized by 42 U.S.C. 659 for child

support or alimony payments and actions for general debt, 5 U.S.C.

5520a.

(9) Judicial review of actions of the Secretary of Agriculture

under the food stamp program, pursuant to the provisions of 7 U.S.C.

2022 involving retail food stores.

(10) Cases referred by the Department of Labor for the

collection of penalties or for injunctive action under the Fair

Labor Standards Act of 1938 and the Occupational Safety and Health

Act of 1970.

(11) Cases referred by the Department of Labor solely for the

collection of civil penalties under the Farm Labor Contractor

Registration Act of 1963, 7 U.S.C. 2048(b).

(12) Cases referred by the Interstate Commerce Commission to

enforce orders of the Interstate Commerce Commission or to enjoin or

suspend such orders pursuant to 28 U.S.C. 1336.

(13) Cases referred by the United States Postal Service for

injunctive relief under the nonmailable matter laws, 39 U.S.C. 3001

et seq.

(b) Delegation to United States Attorneys. Upon the

recommendation of the appropriate Director, the Assistant Attorney

General, Civil Division may delegate to United States Attorneys suit

authority involving any claims or suits where the gross amount of

the original claim does not exceed $5,000,000 where the

circumstances warrant such delegations. United States Attorneys may

compromise any case redelegated under this subsection in which the

gross amount of the original claim does not exceed $5,000,000, so

long as the difference between the gross amount of the original

claim and the proposed settlement does not exceed $1,000,000. United

States Attorneys may close cases redelegated to them under this

subsection only upon the authorization of the appropriate authorized

person within the Department of Justice. All delegations pursuant to

this subsection shall be in writing and no United States Attorney

shall have authority to compromise or close any such delegated case

or claim except as is specified in the required written delegation

or in section 1(c) of this directive. The limitations of section

1(e) of this directive also remain applicable in any case or claim

delegated hereunder.

(c) Cases not covered. Regardless of the amount in controversy,

the following matters normally will not be delegated to United

States Attorneys for handling but will be personally or jointly

handled or monitored by the appropriate Branch or Office within the

Civil Division:

(1) Civil actions in the Court of Federal Claims.

(2) Cases within the jurisdiction of the Commercial Litigation

Branch involving patents, trademarks, copyrights, etc.

(3) Cases before the United States Court of International Trade.

(4) Any case involving bribery, conflict of interest, breach of

fiduciary duty, breach of employment contract, or exploitation of

public office.

(5) Any fraud or False Claims Act case where the amount of

single damages, plus civil penalties, if any, exceeds $1,000,000.

(6) Any case involving vessel-caused pollution in navigable

waters.

(7) Cases on appeal, except as determined by the Director of the

Appellate Staff.

(8) Any case involving litigation in a foreign court.

(9) Criminal proceedings arising under statutes enforced by the

Food and Drug Administration, the Consumer Product Safety

Commission, the Federal Trade Commission, and the National Highway

Traffic Safety Administration (relating to odometer tampering),

except as determined by the Director of the Office of Consumer

Litigation.

(10) Nonmonetary civil cases, including injunction suits,

declaratory judgment actions, and applications for inspection

warrants, and cases seeking civil penalties including but not

limited to those arising under statutes enforced by the Food and

Drug Administration, the Consumer Product Safety Commission, the

Federal Trade Commission, and the National Highway Traffic Safety

Administration (relating to odometer tampering), except as

determined by the Director of the Office of Consumer Litigation.

(11) Administrative claims arising under the Federal Tort Claims

Act.

Section 5. Adverse Decisions

All final judicial decisions adverse to the Government involving

any direct reference or delegated case must be reported promptly to

the Assistant Attorney General, Civil Division, attention Director,

Appellate Staff. Consult title 2 of the United States Attorney's

Manual for procedures and time limitations. An appeal cannot be

taken without approval of the Solicitor General. Until the Solicitor

General has made a decision whether an appeal will be taken, the

Government attorney handling the case must take all necessary

procedural actions to preserve the Government's right to take an

appeal, including filing a protective notice of appeal when the time

to file a notice of appeal is about to expire and the Solicitor

General has not yet made a decision. Nothing in the foregoing

directive affects this obligation.

Section 6. Supersession

This directive supersedes Civil Division Directive No. 176-91

regarding redelegation of the Assistant Attorney General's authority

in Civil Division cases to Branch Directors, heads of offices and

United States Attorneys.

Section 7. Applicability

This directive applies to all cases pending as of the date of

this directive and is effective immediately.

Approved: March 27, 1995.

Frank W. Hunger,

Assistant Attorney General, Civil Division.

Dated March 27, 1995.

John R. Schmidt,

Associate Attorney General.

[FR Doc. 95-8482 Filed 4-5-95; 8:45 am]

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