1-20.000 - Civil Settlement Agreements and Consent Decrees Involving State and Local Governmental Entities

1-20.010 - Introduction

In certain contexts, Congress has authorized the Department of Justice to file lawsuits against state and local governmental entities to obtain legal and equitable relief to remedy violations of federal law.  The Department has used such authorities to secure equal opportunity in education, protect the environment, ensure constitutional policing practices, defend the free exercise of religion, eliminate discriminatory housing practices, redress sexual harassment and other forms of discrimination in the workplace, make water safe to drink, increase access for people with disabilities, guard voting rights, and vindicate the rights of servicemembers.

When the Department identifies a violation of federal law by a state or local governmental entity, the Department generally seeks to reach a resolution that avoids litigation.  A resolution can take the form of a “settlement agreement,” which involves an out-of-court resolution, including a memorandum of agreement or memorandum of understanding, that requires performance by a state or local governmental entity and is enforced through the filing of a lawsuit for breach of contract.  A resolution can also take the form of a “consent decree,” which is a negotiated resolution that is entered as a court order and is enforceable through a motion for contempt.  A consent decree ensures independent judicial review and approval of the resolution and, if necessary, allows for prompt and effective enforcement if its terms are breached.  In some cases, monitors are used to provide technical assistance and assess compliance with a settlement agreement or consent decree.

[added January 2023]

1-20.100 - Approval of Settlement Agreements, Consent Decrees, and the Use of Monitors in Cases Involving State and Local Governmental Entities

With limited exceptions, the Department has long placed authority to determine the form and substance of civil resolutions with state and local governmental entities in the heads of litigating components and United States Attorneys.  It has done so because they are the Department officials most familiar with and best able to assess each particular case.

In keeping with longstanding regulations, protocols, and practices, the relevant Assistant Attorney General will generally handle such approvals.  See, e.g., 28 C.F.R. §§ 0.160(a), 0.50(a), and 0.65(a); JM 5-1.300 and 8-2.100.  That approval authority may be delegated to the United States Attorneys, generally on a case-by-case basis.  See, e.g., JM 5-1.322; see also Memorandum from the Assistant Attorney General, Proposed Authorization of Case by Case Redelegation of Civil Civil Rights Matters to United States Attorney’s Offices (July 19, 2013).

Also pursuant to Department regulations, however, a settlement agreement or consent decree with a state or local governmental entity must be referred to the Deputy Attorney General or the Associate Attorney General if the component head “is of the opinion that[,] because of a question of law or policy presented . . . or for any other reason, the proposed [resolution] should receive the personal attention of the Deputy Attorney General or the Associate Attorney General, as appropriate.”  28 C.F.R. § 0.160(d)(2).  In addition, care should be taken to comply with the notification requirements set forth in JM 1-14.000, which requires advance notice to the Deputy Attorney General for certain affirmative civil resolutions that meet specified significance thresholds.  See JM 1-14.000 et seq.

[added January 2023]

1-20.200 – Resolving Civil Matters with State and Local Governmental Entities by Settlement Agreements and Consent Decrees

If Department attorneys believe that an investigation of a state or local governmental entity may result in a civil settlement agreement or consent decree, they must, at an appropriate time, notify the subject jurisdiction of the material allegations against it and afford the jurisdiction an opportunity to respond.

Before presenting a consent decree with a state or local governmental entity to a court for approval, Department attorneys must ensure that the remedies outlined in the decree are designed to “protect[] federal interests.”  Frew v. Hawkins, 540 U.S. 431, 437 (2004).  “[A] federal consent decree must spring from, and serve to resolve, a dispute within the court’s subject-matter jurisdiction; must come within the general scope of the case made by the pleadings; and must further the objectives of the law upon which the complaint was based.”  Id. (citing Firefighters v. Cleveland, 478 U.S. 501, 525 (1986)).

In cases in which entering into either a settlement agreement or a consent decree with a state or local governmental entity would be lawful and reasonable and would serve the public interest, the following factors may help Department attorneys assess which type of resolution to pursue.  These factors are designed to help guide internal decisionmaking about whether to propose, or agree to, a particular resolution.  In many cases, only a few of these factors will be relevant.  Not all factors must be present and no one factor is determinative in guiding whether to pursue a settlement agreement or consent decree.  This list does not create or confer any rights or benefits that may be invoked or relied upon by any individual or party in litigation with the United States or against any government agency or officer.

• The nature of the underlying violation(s).  Attorneys should consider the nature of the federal interest and underlying violation or violations and whether: (i) a jurisdiction’s unlawful conduct is egregious or widespread; (ii) the violation or violations are ongoing; and (iii) there is a risk or likelihood of a future violation or violations.
• The nature and scope of the proposed remedies.  Attorneys should consider the time reasonably required to durably implement the proposed remedies.  Attorneys should also consider whether: (i) implementation of the remedies will span the term or tenure of multiple state or local officials; (ii) implementation of the remedies requires coordination among or supervision by various persons or organizations; (iii) protection against third-party challenges is necessary; (iv) the jurisdiction has failed to demonstrate sufficient commitment to implementing the remedies; and (v) implementation of the remedies requires preemption of state or local law.
• The Government’s interest in the form of the resolution.  In light of the potential complexity, length, expense, and risk of litigation accompanying the settlement agreement or consent decree, attorneys should consider whether: (i) the resolution is likely to gain court approval under applicable legal standards; and (ii) the remedies and termination provisions are specific, clear, and well understood by the parties.
• The nature of the public interest in the violation(s) and remedies.  Attorneys should consider whether the public interest will be best served by: (i) the process of publicly lodging a consent decree with the court and participating in a public process to enter the decree; and (ii) the transparency of a court-administered resolution throughout the course of its implementation.

[added January 2023]

1-20.300 – Ensuring that Monitors are Independent, Highly Qualified, and Free of Conflicts of Interest

Some settlement agreements and consent decrees with state and local governmental entities may involve the use of a monitor.  The Department has a significant interest in ensuring that the monitor selected is independent, highly qualified, and free of conflicts of interest.

Monitors serve a crucial role as an independent validator of a jurisdiction’s progress in implementing the reforms required by a settlement.  They are generally selected after an extensive negotiation between the parties, with approval by the supervising federal court.  Because they are officers of the court, monitors act as neutral arbiters of a jurisdiction’s compliance with a decree, a process that can increase the confidence the court and stakeholders have in the settlement process.

For consent decrees and settlement agreements involving governmental entities, the Department’s use of monitors has largely been confined to three types of cases brought by the Civil Rights Division and United States Attorneys’ offices: (1) pattern or practice matters involving unconstitutional or unlawful policing, pursuant to 34 U.S.C. § 12601; (2) cases addressing conditions at corrections or other public residential facilities under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. § 1997, and other statutes; and (3) lawsuits regarding the rights of people with disabilities pursuant to Title II of the American with Disabilities Act, 42 U.S.C. § 12132, et seq., and Olmstead v. L.C., 527 U.S. 581 (1999).

Because of the complexities involved in the Department’s law enforcement consent decrees, the following principles and recommendations were crafted specifically with monitorships of state and local law enforcement agencies in mind.  However, in any given case, Department litigating components should consider whether these principles may also help ensure that monitorships are independent, highly qualified, and free of conflicts of interest.

• Monitorships should be designed to minimize the cost to jurisdictions and to avoid any appearance of a conflict of interest.  Consent decrees should include an annual cap on monitors’ fees.  Monitorships should be structured to encourage the use of pro bono time or reduced rates, and Department attorneys should explore the use of partnerships with academic institutions and non-profit organizations.  Department attorneys should also explore whether use of alternative fee arrangements may be appropriate.  In addition, consent decrees should restrict the ability of individuals already serving as lead monitors for an existing decree from serving on other monitoring teams.
• Monitors must be accountable to the court, the parties, and the public.  Monitorship selection should be structured to collect public input.  Consent decrees should include monitorship term limits of two or three years, which can be renewed through judicial evaluation and reappointment.  Monitoring documents such as the monitoring plan, assessments, bills, and methodologies should be made publicly available.
• Sustained, meaningful engagement with the community is critical to the success of a monitorship.  During monitor selection, priority should be given to candidates who demonstrate project management experience and a willingness and ability to solicit stakeholder input, including from impacted communities, law enforcement, and victims of official misconduct.  Once the monitoring team is in place, they must continually seek such input.
• Monitoring must be structured to efficiently move jurisdictions into compliance.  Consent decrees should provide for a hearing to assess termination after no more than five years, after which the monitored entity should be expressly invited to provide evidence to the court of the progress it has made and, if it chooses, to demonstrate that it can be released from the decree.  Consent decrees and monitorships should be structured to encourage the use of partial termination provisions in decrees, and consent decrees and monitorships should be structured to transition monitoring responsibilities to the jurisdiction over time.

As described above in Section 1-20.100, the relevant Assistant Attorney General will generally handle approvals of monitorships, though that approval authority may be delegated to the United States Attorneys, generally on a case-by-case basis.

Department attorneys seeking approval to use a monitor in a case involving a state or local law enforcement agency should explain how the proposed monitorship complies with this guidance.  Departure from this guidance is presumptively the type of “question of … policy presented” that “should receive the personal attention of the Deputy or Associate Attorney General, as appropriate.”  See 28 C.F.R. § 0.160(d)(2).

[added January 2023]