Affirmative Cases—Suits Against State Governments, Agencies or Entities

As stated in JM 1.10.100, 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: (a) 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, (b) 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.  Exceptions to the notice requirements are appropriate only when the authorizing official determines that good cause for such an exception exists and notifies the Deputy (and, where appropriate, Associate) Attorney General of that determination. 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.

[updated April 2018]