[Federal Register Volume 75, Number 56 (Wednesday, March 24, 2010)]
[Rules and Regulations]
[Pages 14070-14072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5816]
[[Page 14070]]
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DEPARTMENT OF JUSTICE
28 CFR Part 0
[Directive No. 1-10]
Redelegation of Authority of Assistant Attorney General, Civil
Division, to Branch Directors, Heads of Offices and United States
Attorneys in Civil Division Cases
AGENCY: Office of the Assistant Attorney General, Civil Division,
Department of Justice.
ACTION: Final rule.
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SUMMARY: This final rule amends Civil Directive 14-95, published in the
Appendix to Subpart Y of Part 0, which sets forth the redelegation of
authority by the Assistant Attorney General of the Civil Division to
branch directors, heads of offices, and United States Attorneys. On May
20, 2009, the President signed the Fraud Enforcement and Recovery Act
(FERA), which authorized the Attorney General to delegate his authority
to issue civil investigative demands (CIDs). As a result, the Attorney
General signed Order No. 3134-2010 (Jan. 15, 2010) delegating to the
Assistant Attorney General for the Civil Division the Attorney
General's authority to issue CIDs, and permitting that authority to be
redelegated to other Department officials, including United States
Attorneys. Pursuant to FERA and the Attorney General's order, the new
rule would redelegate the authority of the Assistant Attorney General
for the Civil Division to issue CIDs in monitored and delegated cases
to United States Attorneys, with a notice and reporting requirement.
The new rule also eliminates certain differences between the
authorities of branch directors and United States Attorneys to file,
close, or compromise Civil Division cases, revise the documentation
requirements in cases delegated to the latter, and make a few
``housekeeping'' revisions.
DATES: Effective Date: This rule is effective March 24, 2010 and is
applicable beginning March 8, 2010.
FOR FURTHER INFORMATION CONTACT: Joyce R. Branda, Director, Commercial
Litigation Branch, Civil Division, Department of Justice, Washington,
DC 20530; 202-305-2335.
SUPPLEMENTARY INFORMATION: This rule is a matter of internal Department
management. It has been drafted and reviewed in accordance with section
1(b) of Executive Order 12866. The Assistant Attorney General for the
Civil Division has determined that this rule is not a ``significant
regulatory action'' under section 3(f) of Executive Order 12866 and
accordingly this rule has not been reviewed by the Office of Management
and Budget. In accordance with the Regulatory Flexibility Act (5 U.S.C.
605(b)), the Assistant Attorney General for the Civil Division has
reviewed this rule, and by approving it certifies that this rule will
not have a significant economic impact on a substantial number of small
entities. 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 13132, 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,
International agreements, Organization and functions (Government
agencies), Treaties, Whistleblowing.
0
Accordingly, for the reasons stated in the preamble, title 28, chapter
I, part 0, of the Code of Federal Regulations is amended as set forth
below:
PART 0--ORGANIZATION OF THE DEPARTMENT OF JUSTICE
0
1. The authority citation for part 0 continues to read as follows:
Authority: 5 U.S.C. 301; 28 U.S.C. 509, 510, 515-519.
0
2. Appendix to Subpart Y is amended by removing Civil Directive No. 14-
95 and adding Civil Directive No. 1-10, to read as follows:
Appendix to Subpart Y--Redelegations of Authority To Compromise and
Close Civil Claims
* * * * *
[Directive No. 1-10]
By virtue of the authority vested in me by part 0 of title 28 of
the Code of Federal Regulations, particularly Sec. Sec. 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:
(i) Accept offers in compromise of claims on behalf of the
United States in all cases 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;
(ii) 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,
(iii) Reject any offers.
(2) United States Attorneys with respect to matters assigned or
delegated to their respective components are hereby delegated the
authority to:
(i) Accept offers in compromise of claims on behalf of the
United States;
(A) In all cases in which the gross amount of the original claim
does not exceed $1,000,000 and,
(B) In all cases 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;
(ii) 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,
(iii) Reject any offers.
(3) With respect to claims asserted in bankruptcy proceedings,
the term gross amount of the original claim in subparagraphs (1)(i)
and (2)(i) of this paragraph 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 $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.
[[Page 14071]]
(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, pursuant to the authority delegated by this
Directive, an official of the Civil Division or a United States
Attorney accepts a compromise, closes a claim or files a suit or
claim, 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, upon request therefrom, 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
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 representatives,
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 Department of Veterans Affairs and the Farm Service
Agency.
(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 Surface Transportation Board to
enforce orders of the Surface Transportation Board 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) Cases 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 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
[[Page 14072]]
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. Civil Investigative Demands
Authority relating to Civil Investigative Demands issued under
the False Claims Act is hereby delegated to United States Attorneys
in cases that are delegated or assigned as monitored to their
respective components. In accordance with guidelines provided by the
Assistant Attorney General, each United States Attorney must provide
notice and a report of Civil Investigative Demands issued by the
United States Attorney. When a case is jointly handled by the Civil
Division and a United States Attorney's Office, the Civil Division
will issue a Civil Investigative Demand only after requesting the
United States Attorney's recommendation.
Section 6. 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 7. Supersession
This directive supersedes Civil Division Directive No. 14-95
regarding redelegation of the Assistant Attorney General's authority
in Civil Division cases to Branch Directors, heads of offices and
United States Attorneys.
Section 8. Applicability
This directive applies to all cases pending as of the date of
this directive and is effective immediately.
Section 9. No Private Right of Action
This directive consists of rules of agency organization,
procedure, and practice and does not create a private right of
action for any private party to challenge the rules or actions taken
pursuant to them.
* * * * *
Dated: March 8, 2010.
Tony West,
Assistant Attorney General, Civil Division.
[FR Doc. 2010-5816 Filed 3-23-10; 8:45 am]
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