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[Federal Register: March 24, 2010 (Volume 75, Number 56)]
[Rules and Regulations]               
[Page 14070-14072]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24mr10-2]                         


[[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]
BILLING CODE 4410-12-P
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