Civil Justice Reform

• Citation: 61 FR 4729
• Executive Order No.: 12988
• Published date: 07 February 1996
• Date: 05 February 1996
• Year: 1996
• Pages: 4729-4734
• FR Document: 96-2755
• Issuer: Executive Office of the President,Defense Department
• Section: Presidential Documents

4729
Federal Register
Presidential Documents
Vol. 61, No. 26
Wednesday, February 7, 1996
Title 3—
Executive Order 12988 of February 5, 1996
The President
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 tribu-
nals 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 Litiga-
tion. 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 dis-
cussions, 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 appro-
priate 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.

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(d) Discovery. To the extent practical, litigation counsel shall make every
reasonable effort to streamline and expedite discovery in cases under coun-
sel’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.

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4731
(a) General Duty to Review Legislation and Regulations. Within current
budgetary constraints and existing executive branch coordination mecha-
nisms and procedures established in OMB Circular A-19 and Executive
Order No. 12866, each agency promulgating new regulations, reviewing exist-
ing 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 dis-
pute 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 jurisdic-
tion, 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

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(Q) addresses other important issues affecting clarity and general drafts-
manship 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 accord-
ance 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 drafts-
manship of regulations set forth by the Attorney General, with the concur-
rence 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 prac-
ticable, 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 spe-
cific procedures to reduce delay in decision-making, to facilitate self-rep-
resentation where appropriate, to expand non-lawyer counseling and rep-
resentation 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 adjudica-
tory processes to identify any type of bias on the part of the decision-
makers that results in an injustice to persons who appear before administra-
tive 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.

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(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 author-
ized 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 legisla-
tion 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 proce-
dure, or court order.
Sec. 10. Privileged Information. Nothing in this order shall compel or author-
ize the disclosure of privileged information, sensitive law enforcement infor-

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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.
œ–
THE WHITE HOUSE,
February 5, 1996.
[FR Doc. 96–2755
Filed 2–6–96; 8:45 am]
Billing code 3195–01–P

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