5-5.100
General Procedures in District Court Litigation
The instructions set forth in Sections 5-5.111 et seq. are
applicable to all cases under supervision of the Division, whether they be
cases directly referred to the United States Attorney, cases for which
primary responsibility has been assigned to United States Attorneys by the
Assistant Attorney General, cases which are the joint responsibility of the
Division and the United States Attorneys or cases which are the primary
responsibility of the Division
[cited in USAM 5-7.120;
USAM 5-7.500;
USAM 5-9.500]
[updated October 2001]
5-5.111
Transmittal of Pleadings and Memoranda
Except for such papers as are originally prepared in the Department and
then transmitted to the United States Attorneys for filing, the United
States Attorneys should submit to the appropriate Section of the Environment
and Natural Resources Division in each case involving matters under the
jurisdiction of the Section, one copy of the complaint, information or
indictment, and one copy of all other papers filed by any party or by the
court including pleadings, orders, proposed findings, judgments, opinions,
briefs, memoranda, offers in compromise, plea offers, and any other
instrument or record.
5-5.112
Stipulations
The United States Attorney may stipulate to any fact required to be
proved by the government, or to the authenticity of government records. In
no case except certain direct referral matters should a United States
Attorney enter into a stipulation concluding the substantive rights of the
United States, or consent to entry of judgment in favor of the adverse
party, without specific authority from the Environment and Natural
Resources Division. Specific authority from the Environment and Natural
Resources Division to enter into such stipulations, or consent to judgment,
is required in all nondirect referral matters and in the following direct
referral matters: Direct referral wildlife import, export, Airborne
Hunting Act, Bald and Golden Eagle Protection Act, and Wild Horses and
Burros Act actions.
5-5.113
Assistance by Other Attorneys
United States Attorneys and their Assistants shall themselves conduct
and direct all cases within the jurisdiction of this Division handled by
them. There is no objection to United States Attorneys receiving assistance
from attorneys connected with other offices of the government in the
preparation and trial of cases, but it should be understood that such
attorneys assist only, and do not conduct, direct, or control cases in
which they may be interested. 28 U.S.C. §§ 509, 516 and 547.
Unless designated as Special Assistant United States Attorneys, such trial
attorneys are only "of counsel" to the United States Attorney; they do not
control or direct the conduct of cases in which they are interested, and
they may not sign pleadings or briefs on behalf of the government or its
officers, employees, or agents.
5-5.121
Suits Against the United States, Federal
Agencies
or OfficialsAppearances by United States Attorneys
Upon being served with the complaint designating the United States or a
federal official or agency as a defendant, the United States Attorney shall
immediately take such steps as are necessary to protect the federal
interest, and shall immediately transmit copies of the complaint and other
papers to the supervisory section of the Environment and Natural Resources
Division. However, when time permits, no appearance should be made until
instructions from the Department are obtained. If necessary, the request
for instruction should be only by telephone or telefax directed to the
Chief of the Section having jurisdiction over the type of action involved.
5-5.122
Suits Against the United States, Federal
Agencies
or OfficialsRemoval of State Court Actions
An action against the United States, a federal agency, or a federal
official, brought in a state court, may be removed to a federal court (28
U.S.C. § 1442). The United States Attorney should seek instructions
immediately as to whether an action in a state court should be removed to a
federal court, and before receiving instructions, he/she should take no
steps in the state court which would prevent removal.
5-5.123
Suits Against the United States, Federal
Agencies
or OfficialsSovereign Immunity Not Waivable
Neither the Department of Justice nor any United States Attorney may
consent to suits against the United States, its officers or agents. A
statute having some effects upon the doctrine of sovereign immunity is the
Act of October 21, 1976, Pub.L. No. 94-574.
5-5.124
Suits Against the United States, Federal
Agencies
or OfficialsService of Process on the Attorney General
The Attorney General has designated the Deputy Attorney General and the
Administrative Assistant to the Attorney General to accept service of
pleadings and process for him/her. In the absence of specific authority
from the Attorney General or his/her designees, United States Attorneys
have no authority to accept such service.
5-5.125
Suits Against the United States, Federal
Agencies
or OfficialsCounterclaims
In suits against federal agencies, or federal employees acting in their
official capacity, counterclaims shall not be filed in the name of the
defendants. If a basis for a counterclaim exists in such a suit, a
separate action may be filed in the name of the United States, but such
action may be filed only with the prior approval of the Assistant Attorney
General.
5-5.130
Proposed Findings of Fact and Conclusions of Law
In all actions in the federal courts tried upon the merits without a
jury, care should be taken to have proper findings of fact and conclusions
of law entered by the court as provided by Rule 52(a), Fed.R.Civ.P. When
possible, two copies of the requests for findings should be transmitted to
the section of the Environment and Natural Resources Division involved in
the case for comment and discussion before filing.
5-5.140
Costs
In no case may payment of costs be waived. Whenever money is accepted
as full or partial payment, or in compromise, it must be applied first to
court costs.
5-5.151
Recording Judgments
Whenever a judgment is obtained by the United States affecting title to
its property, the necessary recordation should be made promptly in
accordance with the requirements of local law and the provisions of 28
U.S.C. § 1962 et seq.
[cited in USAM 5-7.530]
5-5.152
Perfecting Lien of Judgments
Whenever a judgment for money is recovered by the United States, the
necessary action shall be taken in accordance with the provisions of local
law to perfect and preserve the lien of the judgment upon all property of
the judgment debtor in the district in which the judgment has been entered
or in any other district where the property of the defendant may be found.
See 28 U.S.C. §§ 1962 and 1963, and Rhea v.
Smith, 274 U.S. 434 (1927).
5-5.153
Collection of Claims or Judgments
Except when required by the circumstances of a particular case, no
property other than money should be accepted in full or part payment of a
claim, compromise, or judgment and in no event shall property other than
money be accepted until all incurred court costs are paid. The procedure
followed in the collection and transmittal of funds is set forth in the
title to this Manual relating to the Administrative Division.
5-5.154
Execution to Enforce Collection of Judgments
Whenever necessary to enforce collection of a money judgment, the United
States Attorney or the field attorney should ascertain such facts as the
facilities of his/her office will permit to determine whether the judgment
debtor has property subject to execution and whenever necessary should
invoke the aid of the field officer of the agency at whose instance the
action originally was instituted. If property subject to execution is
found, execution should be issued and a levy made. If no property subject
to execution is found, execution should not be issued unless required by
local law to perfect or protect the judgment lien or its priority, or unless
the United States Attorney has reason to believe the issuance of execution
will induce voluntary payment. If no distrainable property is found, the
Department should be informed of the results of the investigation and the
case should be held in abeyance until a determination can be made as to what
further action should be taken.
5-5.155
Execution to Enforce Judgments for Possession
A judgment for possession of property owned by the United States should
be served upon all defendant trespassers, including those in privity with
such defendants. If they fail to vacate the property in accordance with the
judgment, a writ of assistance should be obtained from the clerk of the
court and delivered to the U.S. Marshal for execution. When justified by
unusual circumstances, an injunction may be obtained against the unlawful
occupants. If they refuse to vacate the premises as required by the
injunction, contempt proceedings may be instituted. Service of the
injunction upon each respondent is a prerequisite to the institution of
contempt proceedings.
5-5.156
Post-Judgment Collection Efforts
The instructions issued by the Civil Division governing actions to be
taken for the collection of judgments, set forth in Title 11, Debt
Collections, are applicable to all judgments entered in favor of the United
States, and reference is made to them for appropriate guidelines to be
followed in collection activities to be undertaken after the entry of
judgment in favor of the United States in Environment and Natural Resources
Division cases. This does not enlarge the authority related to these cases
beyond the limits stated in USAM 5-2.000.
[cited in USAM 5-7.530]
5-5.161
Decisions and AppealsCopies of Decisions
to be Forwarded to Supervising Section
In cases subject to the supervision of the Environment and Natural
Resources Division in which an appealable decision (either final or
interlocutory) is rendered, the United States Attorney shall, by the most
expeditious means, forward a copy of the decision to the Chief of the
Section involved. The United States Attorney must also immediately transmit
a copy of the decision to the Appellate Section of ENRD if the decision is
adverse to the government's position, or if any other party to the case
files a notice of appeal from the decision (whether or not the decision is
adverse to the United States). Procedures for the handling of appeals are
set out in USAM Title 2, APPEALS, and USAM 5-8.320 and
5-11.116.
5-5.162
Recommendation With Respect to Appeal
In any case in which a United States Attorney has had lead
responsibility (either by direct referral, delegation or otherwise) and in
which an appealable decision (either final or interlocutory) is rendered,
the United States Attorney shall proceed in accordance with the provisions
of USAM 2-2.000, 5-8.320, and 5-11.116 concerning consideration of, and
the procedures for, an appeal of a decision that is adverse in whole or in
part to the United States.
5-5.210
Settlement Authority of the Assistant Attorney General
The authority delegated by the Attorney General to the Assistant
Attorney General to compromise suits is set forth in 28 C.F.R.
§§§ 0.016 through 0.172. As is hereinafter set forth, the
Assistant Attorney General has redelegated to the Deputy Assistant
Attorneys General, the Section Chiefs and Deputy Chiefs, and to the United
States Attorneys, authority to compromise, close, or dismiss, certain types
of cases pursuant to ENRD Directive 16-99 (Mar. 27, 1999) (see USAM 5-1.300), and supplemented by ENRD
Directive 01-2 (January 18, 2001) (see USAM
5-5.220). Except for those claims expressly and specifically
authorized to be compromised, closed or dismissed by the United States
Attorneys, no claim or case within the area of responsibility of the
Environment and Natural Resources Division may be compromised, closed or
dismissed without the specific authority of the Attorney
General, the Assistant Attorney General, the appropriate Section Chief or
Deputy Chief. Instructions with respect to submitting proposed settlements
or compromises for approval, and for authorization to dismiss cases, are
set forth in USAM 5-15.600 for cases
under the supervision of the Land Acquisition Section; USAM 5-14.310(C) for cases under the
supervision of the Indian Resources Section; USAM 5-10.620 and 5-10.630 for cases under the supervision of
the Wildlife and Marine Resources Section; and USAM 5-7.600 for cases under the supervision
of the General Litigation Section.
[cited in USAM 5-7.600;
USAM 5-8.600;
USAM 5-9.600;
USAM 5-10.600;
USAM 5-10.620;
USAM 5-10.630]
5-5.220
Settlement Authority of Officers Within the
Environment and Natural Resources Division
Certain authority of the Assistant Attorney General to compromise claims
has been delegated to the Deputy Assistant Attorneys General and the Chiefs
and Deputy Chiefs of the various litigating sections. The most recent such
delegation of authority was effected on January 18, 2001, by Environment and
Natural Resources Directive No. 01-2, which supersedes and rescinds
Environment and Natural Resources Division Directive No. 16-96, and
supplements Directive No. 16-99. The No. 01-2 Directive provides generally
as follows:
Section II Authority to Compromise, dismiss or close
cases.
- Delegation to Deputy Assistant Attorney General:
Subject to the limitations imposed by USAM
5-5.240, the Deputy Assistant Attorneys General in the Environment and
Natural Resources Division are hereby authorized, with respect to matters
assigned to the Environment and Natural Resources Division:
- (1) to accept or reject offers in compromise of claims against the
United States in which the amount of the proposed settlement does not exceed
$1,500,000;
- (2) to accept or reject offers relating to claims on
behalf of the United States in cases in which the gross amount of the
original claim does not exceed $1,500,000;
- (3) to accept or reject offers relating to claims on behalf of the
United States in all cases in which the gross amount of the original claim
does not exceed $10,000,000, provided that the difference between the gross
amount of the original claim and the proposed settlement does not exceed
$1,500,000.
- Delegation to Section Chiefs, and Deputy Section
Chiefs
: Subject to the limitations imposed by USAM
5-5.240 and unless otherwise provided for in other section-specific
redelegations of settlement authority, the Chiefs and Deputy Chiefs of the
Appellate, Environmental Enforcement, Environmental Defense, General
Litigation, Indian Resources, Land Acquisition and Wildlife and Marine
Resources Sections of the Environment and Natural Resources Division are
hereby authorized, with respect to matters assigned to their respective
sections:
- (1) to accept or reject offers in compromise of claims against the
United States in which the amount of the proposed settlement does not exceed
$1,000,000;
- (2) to accept or reject offers relating to claims on behalf of the
United States in cases in which the gross amount of the original claim does
not exceed $1,000,000;
- (3) to accept or reject offers relating to 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, provided that the difference between the gross
amount of the original claim and the proposed settlement does not exceed
$1,000,000.
[cited in USAM 5-5.210;
USAM 5-5.240]
[updated October 2001]
5-5.230
Settlement and Dismissal Authority of United
States Attorneys
Environment and Natural Resources Division Directive No. 16-99, as
supplemented by Directive No. 01-2 authorizes United States Attorneys to
compromise, close or dismiss certain cases. Pertinent portions of the
Directive, as amended, provide generally as follows:
Delegations to United States Attorneys
(1) Compromise of Cases in General
Subject to the limitations set forth in paragraph D of this section and
in section 0.160 of Title 28 of the Code of Federal Regulations, United
States Attorneys in compromise of direct referral ENRD cases listed in USAM 5-1.310 subparagraph 1.A., and cases that
are directly referred to them by the Coast Guard in accordance with USAM 5-1.310 subparagraph B.(3)(a), are
authorized, without the prior approval of the Environment and Natural
Resources Division:
(a) to accept or reject offers in compromise
of, or settle administratively, claims against the United States in which
the amount of the proposed settlement does not exceed $1,000,000;
(b) to accept or reject offers relating to claims on behalf of the
United States in cases in which the gross amount of the original claim does
not exceed $1,000,000;
(c) to accept or reject offers relating to
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, provided that the
difference between the gross amount of the original claim and the proposed
settlement does not exceed $1,000,000.
Such authority to settle claims against the United States may be
exercised only with the written concurrence of a person authorized to
provide such concurrence on behalf of the field office of the department or
agency concerned. When the United States is a plaintiff, a United States
Attorney may accept an offer without the concurrence of such a person if
the acceptance is based solely upon the financial circumstances of the
defendant.
(2) Compromise of Certain Civil Environmental Cases
Except where the U.S. Attorney has been delegated authority pursuant to
USAM 5-1.300 subparagraph 1.D and as
provided in USAM 5-5.230 subparagraph(4),
all offers in compromise of cases in which the Department of Justice
represents the Environmental Protection Agency, or the Administrator or
any other official of that Agency, shall be submitted to the Assistant
Attorney General of the Environment and Natural Resources Division.
Similarly, all offers in compromise of cases in which the Department of
Justice represents the Secretary of the Army, acting through the Corps of
Engineers pursuant to USAM 5-1.310
subparagraph B.(1), shall be submitted to the Assistant Attorney General
of the Environment and Natural Resources Division.
(3) Compromise of Condemnation Cases
(a) Subject to the limitations imposed in USAM
5-5.240, United States Attorneys are authorized, without the prior
approval of the Environment and Natural Resources Division, to accept or
reject offers in compromise of condemnation proceedings in any case in
which:
(i) the gross amount of the proposed settlement
does not exceed $1,000,000;
(ii) the settlement is approved in
writing (the written approval to be retained in the file of the United
States Attorney concerned) by the authorized field representative of the
acquiring agency if the amount of the settlement exceeds the amount
deposited with the declaration of taking as to the particular tract of
land involved;
(iii) the amount of the settlement is compatible with the sound appraisal,
or appraisals, upon which the United States would rely as evidence in the
event of trial, due regard being had for probable minimum trial costs and
risks; and
(iv) the case does not involve the revestment of any land
or improvements or any interest, or interests, in land under the Act of
October 21, 1942, 56 Stat. 797 (40 U.S.C. § 258f).
(b) When a United States Attorney has settled a condemnation proceeding
under the authority conferred by USAM 5-5.230, subparagraph (3)(a), the
United States Attorney shall promptly secure the entry of judgment and
distribution of the award, and shall take all other steps necessary to
dispose of the matter completely.
(c) The United States Attorney concerned shall immediately forward to
the Department a report, in the form of a letter or memorandum, bearing the
United States Attorney's signature or showing personal approval, stating the
action taken and containing an adequate statement of the reasons therefor.
In routine cases, a form containing the elements of the required report may
be used in lieu of a letter or memorandum. In any case, special care shall
be taken to see that the report contains a statement as to what the
valuation testimony of the United States would have been if the case had
been tried.
(4) Compromise of CERCLA Contribution Claims
(a) Subject to the limitations imposed in USAM
5-5.240, United States Attorneys are authorized, without prior approval
of the Environment and Natural Resources Division, to accept or reject
offers in compromise of CERCLA actions, 42 U.S.C. § 4321 et seq.,
in which the United States, or its agencies, is sued for contribution, and
over which the United States Attorney has been given the lead by the
Environment and Natural Resources Division, in any case in which the gross
amount of the proposed settlement does not exceed $1,000,000.
(b) The United States Attorney concerned shall immediately forward to
the Department a report, in the form of a letter or randum, bearing the
United States Attorney's signature or showing personal approval, stating the
action taken and containing an adequate statement of the reasons
therefor.
(5) Closing or Dismissal of Matters and Cases.
Subject to the limitations imposed in USAM 5-5.240,
a direct referral matter described in USAM
5-1.310 Section 1.A may be closed without action by the United States
Attorney or, if filed in court, may be dismissed by the United States
Attorney, if written concurrence that the matter is without merit factually
or legally is provided by a person authorized to concur on behalf of the
field office of the department or agency concerned. Except for claims
brought for the benefit of Indians or Indian tribes, the United States
Attorney may close a claim without consulting the field office of the
department or agency concerned if the claim is for money only and the
United States Attorney concludes: (a) that the cost of collection under the
circumstances would exceed the amount of the claim, or (b) that the claim is
uncollectible. With respect to claims asserted for the benefit of
individual Indians or Indian tribes, the United States Attorney may close a
claim without consulting the field office of the department or agency
concerned if the claim is for money only and the United States Attorney
concludes that the claim is uncollectible; claims brought for the benefit of
Indian individuals and tribes may not be closed merely because the cost of
collection might exceed the amount of the claim.
[cited in
USAM 3-8.130;
USAM 5-5.230;
USAM 5-5.240;
USAM 5-7.630;
USAM 5-9.630;
USAM 5-10.600;
USAM 5-10.630]
[updated October 2001]
5-5.240
Limitations on Delegations
(1) The authority to compromise, close or dismiss cases delegated in
USAM 5-5.220 and
USAM 5-5.230, may not be exercised when:
(a) 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 sections;
(b) a novel question of law or a question of policy is presented, or
for any other reason, the settlement should, in the opinion of the officer
or employee concerned, receive the personal attention of the Assistant
Attorney General for the Environment and Natural Resources Division;
(c) the agency or agencies involved are opposed to the proposed
compromise of a claim;
(d) the proposed settlement converts into a mandatory duty an otherwise
discretionary authority of a department or agency to promulgate, revise, or
rescind regulations;
(e) the proposed settlement commits a department or agency to expend
funds that Congress has not appropriated and that have not been budgeted for
the action in question, or commits a department or agency to seek particular
appropriation or budget authorization;
(f) the proposed settlement
otherwise limits the discretion of a department or agency to make policy or
managerial decisions committed to the department or agency by Congress or
by the Constitution; or
(g) the proposed settlement exceeds $2,000,000 or 15% of the original
claim, whichever is greater. In such circumstance, the Section managers
must seek approval from the Associate Attorney General, through the office
of the Assistant Attorney General.
(2) In addition to where specified above, for purposes of maintaining
accurate statistics, exercise of the following settlement authority shall be
reported by forwarding a copy of the signed approval memorandum to the
Assistant Attorney General immediately after approval of (a) settlements of
more than $300,000 with respect to Section Chiefs and United States
Attorneys; and (b) all settlements with respect to the Deputy Assistant
Attorneys General.
[cited in USAM 5-5.220;
USAM 5-5.230;
USAM 5-10.600;
USAM 5-10.630]
[updated October 2001]
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