Executive Order 12988--Civil Justice Reform
[Federal Register: February 7, 1996 (Volume 61, Number 26)]
[Presidential Documents]
[Page 4727-4734]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07fe96-108]
[[Page 4727]]
_______________________________________________________________________
Part V
The President
_______________________________________________________________________
Executive Order 12988--Civil Justice Reform
Presidential Documents
___________________________________________________________________
Title 3--
The President
[[Page 4729]]
Executive Order 12988 of February 5, 1996
Civil Justice Reform
By the authority vested in me as President by the
Constitution and the laws of the United States of
America, including section 301 of title 3, United
States Code, and in order to improve access to justice
for all persons who wish to avail themselves of court
and administrative adjudicatory tribunals to resolve
disputes, to facilitate the just and efficient
resolution of civil claims involving the United States
Government, to encourage the filing of only meritorious
civil claims, to improve legislative and regulatory
drafting to reduce needless litigation, to promote fair
and prompt adjudication before administrative
tribunals, and to provide a model for similar reforms
of litigation practices in the private sector and in
various states, it is hereby ordered as follows:
Section 1. Guidelines to Promote Just and Efficient
Government Civil Litigation. To promote the just and
efficient resolution of civil claims, those Federal
agencies and litigation counsel that conduct or
otherwise participate in civil litigation on behalf of
the United States Government in Federal court shall
respect and adhere to the following guidelines during
the conduct of such litigation:
(a) Pre-filing Notice of a Complaint. No litigation
counsel shall file a complaint initiating civil
litigation without first making a reasonable effort to
notify all disputants about the nature of the dispute
and to attempt to achieve a settlement, or confirming
that the referring agency that previously handled the
dispute has made a reasonable effort to notify the
disputants and to achieve a settlement or has used its
conciliation processes.
(b) Settlement Conferences. As soon as practicable
after ascertaining the nature of a dispute in
litigation, and throughout the litigation, litigation
counsel shall evaluate settlement possibilities and
make reasonable efforts to settle the litigation. Such
efforts shall include offering to participate in a
settlement conference or moving the court for a
conference pursuant to Rule 16 of the Federal Rules of
Civil Procedure in an attempt to resolve the dispute
without additional civil litigation.
(c) Alternative Methods of Resolving the Dispute in
Litigation. Litigation counsel shall make reasonable
attempts to resolve a dispute expeditiously and
properly before proceeding to trial.
(1) Whenever feasible, claims should be resolved
through informal discussions, negotiations, and
settlements rather than through utilization of any
formal court proceeding. Where the benefits of
Alternative Dispute Resolution (``ADR'') may be
derived, and after consultation with the agency
referring the matter, litigation counsel should suggest
the use of an appropriate ADR technique to the parties.
(2) It is appropriate to use ADR techniques or
processes to resolve claims of or against the United
States or its agencies, after litigation counsel
determines that the use of a particular technique is
warranted in the context of a particular claim or
claims, and that such use will materially contribute to
the prompt, fair, and efficient resolution of the
claims.
(3) To facilitate broader and effective use of
informal and formal ADR methods, litigation counsel
should be trained in ADR techniques.
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(d) Discovery. To the extent practical, litigation
counsel shall make every reasonable effort to
streamline and expedite discovery in cases under
counsel's supervision and control.
(1) Review of Proposed Document Requests. Each
agency within the executive branch shall establish a
coordinated procedure for the conduct and review of
document discovery undertaken in litigation directly by
that agency when that agency is litigation counsel. The
procedure shall include, but is not necessarily limited
to, review by a senior lawyer prior to service or
filing of the request in litigation to determine that
the request is not cumulative or duplicative,
unreasonable, oppressive, unduly burdensome or
expensive, taking into account the requirements of the
litigation, the amount in controversy, the importance
of the issues at stake in the litigation, and whether
the documents can be obtained from some other source
that is more convenient, less burdensome, or less
expensive.
(2) Discovery Motions. Before petitioning a court
to resolve a discovery motion or petitioning a court to
impose sanctions for discovery abuses, litigation
counsel shall attempt to resolve the dispute with
opposing counsel. If litigation counsel makes a
discovery motion concerning the dispute, he or she
shall represent in that motion that any attempt at
resolution was unsuccessful or impracticable under the
circumstances.
(e) Sanctions. Litigation counsel shall take steps
to seek sanctions against opposing counsel and opposing
parties where appropriate.
(1) Litigation counsel shall evaluate filings
made by opposing parties and, where appropriate, shall
petition the court to impose sanctions against those
responsible for abusive practices.
(2) Prior to filing a motion for sanctions,
litigation counsel shall submit the motion for review
to the sanctions officer, or his or her designee,
within the litigation counsel's agency. Such officer or
designee shall be a senior supervising attorney within
the agency, and shall be licensed to practice law
before a State court, courts of the District of
Columbia, or courts of any territory or Commonwealth of
the United States. The sanctions officer or designee
shall also review motions for sanctions that are filed
against litigation counsel, the United States, its
agencies, or its officers.
(f) Improved Use of Litigation Resources.
Litigation counsel shall employ efficient case
management techniques and shall make reasonable efforts
to expedite civil litigation in cases under that
counsel's supervision and control. This includes but is
not limited to:
(1) making reasonable efforts to negotiate with
other parties about, and stipulate to, facts that are
not in dispute;
(2) reviewing and revising pleadings and other
filings to ensure that they are accurate and that they
reflect a narrowing of issues, if any, that has
resulted from discovery;
(3) requesting early trial dates where
practicable;
(4) moving for summary judgment in every case
where the movant would be likely to prevail, or where
the motion is likely to narrow the issues to be tried;
and
(5) reviewing and revising pleadings and other
filings to ensure that unmeritorious threshold defenses
and jurisdictional arguments, resulting in unnecessary
delay, are not raised.
Sec. 2. Government Pro Bono and Volunteer Service. All
Federal agencies should develop appropriate programs to
encourage and facilitate pro bono legal and other
volunteer service by government employees to be
performed on their own time, including attorneys, as
permitted by statute, regulation, or other rule or
guideline.
Sec. 3. Principles to Enact Legislation and Promulgate
Regulations Which Do Not Unduly Burden the Federal
Court System.
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(a) General Duty to Review Legislation and
Regulations. Within current budgetary constraints and
existing executive branch coordination mechanisms and
procedures established in OMB Circular A-19 and
Executive Order No. 12866, each agency promulgating new
regulations, reviewing existing regulations, developing
legislative proposals concerning regulations, and
developing new legislation shall adhere to the
following requirements:
(1) The agency's proposed legislation and
regulations shall be reviewed by the agency to
eliminate drafting errors and ambiguity;
(2) The agency's proposed legislation and
regulations shall be written to minimize litigation;
and
(3) The agency's proposed legislation and
regulations shall provide a clear legal standard for
affected conduct rather than a general standard, and
shall promote simplification and burden reduction.
(b) Specific Issues for Review. In conducting the
reviews required by subsection (a), each agency
formulating proposed legislation and regulations shall
make every reasonable effort to ensure:
(1) that the legislation, as appropriate--
(A) specifies whether all causes of action
arising under the law are subject to statutes of
limitations;
(B) specifies in clear language the preemptive
effect, if any, to be given to the law;
(C) specifies in clear language the effect on
existing Federal law, if any, including all provisions
repealed, circumscribed, displaced, impaired, or
modified;
(D) provides a clear legal standard for affected
conduct;
(E) specifies whether private arbitration and
other forms of private dispute resolution are
appropriate under enforcement and relief provisions;
subject to constitutional requirements;
(F) specifies whether the provisions of the law
are severable if one or more of them is found to be
unconstitutional;
(G) specifies in clear language the retroactive
effect, if any, to be given to the law;
(H) specifies in clear language the applicable
burdens of proof;
(I) specifies in clear language whether it grants
private parties a right to sue and, if so, the relief
available and the conditions and terms for authorized
awards of attorney's fees, if any;
(J) specifies whether State courts have
jurisdiction under the law and, if so, whether and
under what conditions an action would be removable to
Federal court;
(K) specifies whether administrative proceedings
are to be required before parties may file suit in
court and, if so, describes those proceedings and
requires the exhaustion of administrative remedies;
(L) sets forth the standards governing the
assertion of personal jurisdiction, if any;
(M) defines key statutory terms, either
explicitly or by reference to other statutes that
explicitly define those terms;
(N) specifies whether the legislation applies to
the Federal Government or its agencies;
(O) specifies whether the legislation applies to
States, territories, the District of Columbia, and the
Commonwealths of Puerto Rico and of the Northern
Mariana Islands;
(P) specifies what remedies are available such as
money damages, civil penalties, injunctive relief, and
attorney's fees; and
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(Q) addresses other important issues affecting
clarity and general draftsmanship of legislation set
forth by the Attorney General, with the concurrence of
the Director of the Office of Management and Budget
(``OMB'') and after consultation with affected
agencies, that are determined to be in accordance with
the purposes of this order.
(2) that the regulation, as appropriate--
(A) specifies in clear language the preemptive
effect, if any, to be given to the regulation;
(B) specifies in clear language the effect on
existing Federal law or regulation, if any, including
all provisions repealed, circumscribed, displaced,
impaired, or modified;
(C) provides a clear legal standard for affected
conduct rather than a general standard, while promoting
simplification and burden reduction;
(D) specifies in clear language the retroactive
effect, if any, to be given to the regulation;
(E) specifies whether administrative proceedings
are to be required before parties may file suit in
court and, if so, describes those proceedings and
requires the exhaustion of administrative remedies;
(F) defines key terms, either explicitly or by
reference to other regulations or statutes that
explicitly define those items; and
(G) addresses other important issues affecting
clarity and general draftsmanship of regulations set
forth by the Attorney General, with the concurrence of
the Director of OMB and after consultation with
affected agencies, that are determined to be in
accordance with the purposes of this order.
(c) Agency Review. The agencies shall review such
draft legislation or regulation to determine that
either the draft legislation or regulation meets the
applicable standards provided in subsections (a) and
(b) of this section, or it is unreasonable to require
the particular piece of draft legislation or regulation
to meet one or more of those standards.
Sec. 4. Principles to Promote Just and Efficient
Administrative Adjudications.
(a) Implementation of Administrative Conference
Recommendations. In order to promote just and efficient
resolution of disputes, an agency that adjudicates
administrative claims shall, to the extent reasonable
and practicable, and when not in conflict with other
sections of this order, implement the recommendations
of the Administrative Conference of the United States,
entitled ``Case Management as a Tool for Improving
Agency Adjudication,'' as contained in 1 C.F.R. 305.86-
7 (1991).
(b) Improvements in Administrative Adjudication.
All Federal agencies should review their administrative
adjudicatory processes and develop specific procedures
to reduce delay in decision-making, to facilitate self-
representation where appropriate, to expand non-lawyer
counseling and representation where appropriate, and to
invest maximum discretion in fact-finding officers to
encourage appropriate settlement of claims as early as
possible.
(c) Bias. All Federal agencies should review their
administrative adjudicatory processes to identify any
type of bias on the part of the decision-makers that
results in an injustice to persons who appear before
administrative adjudicatory tribunals; regularly train
all fact-finders, administrative law judges, and other
decision-makers to eliminate such bias; and establish
appropriate mechanisms to receive and resolve
complaints of such bias from persons who appear before
administrative adjudicatory tribunals.
(d) Public Education. All Federal agencies should
develop effective and simple methods, including the use
of electronic technology, to educate the public about
its claims/benefits policies and procedures.
Sec. 5. Coordination by the Department of Justice.
(a) The Attorney General shall coordinate efforts
by Federal agencies to implement sections 1, 2 and 4 of
this order.
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(b) To implement the principles and purposes
announced by this order, the Attorney General is
authorized to issue guidelines implementing sections 1
and 4 of this order for the Department of Justice. Such
guidelines shall serve as models for internal
guidelines that may be issued by other agencies
pursuant to this order.
Sec. 6. Definitions. For purposes of this order:
(a) The term ``agency'' shall be defined as that
term is defined in section 105 of title 5, United
States Code.
(b) The term ``litigation counsel'' shall be
defined as the trial counsel or the office in which
such trial counsel is employed, such as the United
States Attorney's Office for the district in which the
litigation is pending or a litigating division of the
Department of Justice. Special Assistant United States
Attorneys are included within this definition. Those
agencies authorized by law to represent themselves in
court without assistance from the Department of Justice
are also included in this definition, as are private
counsel hired by any Federal agency to conduct
litigation on behalf of the agency or the United
States.
Sec. 7. No Private Rights Created. This order is
intended only to improve the internal management of the
executive branch in resolving disputes, conducting
litigation in a reasonable and just manner, and
reviewing legislation and regulations. This order shall
not be construed as creating any right or benefit,
substantive or procedural, enforceable at law or in
equity by a party against the United States, its
agencies, its officers, or any other person. This order
shall not be construed to create any right to judicial
review involving the compliance or noncompliance of the
United States, its agencies, its officers, or any other
person with this order. Nothing in this order shall be
construed to obligate the United States to accept a
particular settlement or resolution of a dispute, to
alter its standards for accepting settlements, to
forego seeking a consent decree or other relief, or to
alter any existing delegation of settlement or
litigating authority.
Sec. 8. Scope.
(a) No Applicability to Criminal Matters or
Proceedings in Foreign Courts. This order is applicable
to civil matters only. It is not intended to affect
criminal matters, including enforcement of criminal
fines or judgments of criminal forfeiture. This order
does not apply to litigation brought by or against the
United States in foreign courts or tribunals.
(b) Application of Notice Provision. Notice
pursuant to subsection (a) of section 1 is not required
(1) in any action to seize or forfeit assets subject to
forfeiture or in any action to seize property; (2) in
any bankruptcy, insolvency, conservatorship,
receivership, or liquidation proceeding; (3) when the
assets that are the subject of the action or that would
satisfy the judgment are subject to flight,
dissipation, or destruction; (4) when the defendant is
subject to flight; (5) when, as determined by
litigation counsel, exigent circumstances make
providing such notice impracticable or such notice
would otherwise defeat the purpose of the litigation,
such as in actions seeking temporary restraining orders
or preliminary injunctive relief; or (6) in those
limited classes of cases where the Attorney General
determines that providing such notice would defeat the
purpose of the litigation.
(c) Additional Guidance as to Scope. The Attorney
General shall have the authority to issue further
guidance as to the scope of this order, except section
3, consistent with the purposes of this order.
Sec. 9. Conflicts with Other Rules. Nothing in this
order shall be construed to require litigation counsel
or any agency to act in a manner contrary to the
Federal Rules of Civil Procedure, Tax Court Rules of
Practice and Procedure, State or Federal law, other
applicable rules of practice or procedure, or court
order.
Sec. 10. Privileged Information. Nothing in this order
shall compel or authorize the disclosure of privileged
information, sensitive law enforcement infor
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mation, information affecting national security, or information the
disclosure of which is prohibited by law.
Sec. 11. Effective Date. This order shall become
effective 90 days after the date of signature. This
order shall not apply to litigation commenced prior to
the effective date.
Sec. 12. Revocation. Executive Order No. 12778 is
hereby revoked.
(Presidential Sig.)
THE WHITE HOUSE,
February 5, 1996.
[FR Doc. 96-2755
Filed 2-6-96; 8:45 am]
Billing code 3195-01-P
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