[Federal Register Volume 61, Number 26 (Wednesday, February 7, 1996)]
[Presidential Documents]
[Pages 4729-4734]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-2755]




[[Page 4727]]

_______________________________________________________________________

Part V





The President





_______________________________________________________________________



 Executive Order 12988--Civil Justice Reform
 
 
                         Presidential Documents 
 
 

  Federal Register / Vol. 61, No. 26 / Wednesday, February 7, 1996 / 
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. 
                
[[Page 4730]]

                    (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. 
                
[[Page 4731]]


                    (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 
                
[[Page 4732]]

                      (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. 
                
[[Page 4733]]

                    (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

[[Page 4734]]
                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