Affirmative Litigation

Two basic differences between affirmative and defensive suits require particular attention. First, with the exception of the Direct Referral Cases discussed in

JM 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

JM 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 Referral 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.

[updated April 2018]