Presidential 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
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.
(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.
(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
(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.
(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 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.
WILLIAM J. CLINTON
THE WHITE HOUSE
February 5, 1996
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