[Weekly Compilation of Presidential Documents Volume 32, Number 6 (Monday, February 12, 1996)]
[Pages 189-194]
[Online from the Government Publishing Office, www.gpo.gov]

<R04>
Executive Order 12988--Civil Justice Reform

February 5, 1996

    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 
effi- 

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cient 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.
    (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

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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.
    (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;

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    (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
    (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 proc- 

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esses 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.
    (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.

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    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 information, 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.
                                            William J. Clinton
The White House,
February 5, 1996.

[Filed with the Office of the Federal Register, 8:45 a.m., February 6, 
1996]

Note: This Executive order was published in the Federal Register on 
February 7.