1-10.000 - Litigation Against State Governments; Relations With Client Agencies

1-10.100 - Litigation Against State Governments, Agencies, or Entities

In order to enhance productive communications with state governments and to avoid inter-governmental litigation whenever possible, the Attorney General has advised the Assistant Attorneys General for the Antitrust, Civil, Civil Rights, Criminal, Environment and Natural Resources, and Tax Divisions that it shall be Department of Justice policy to give timely notifications to the Governor and Attorney General of a state prior to the filing of a suit or claim against a state government, agency or entity. United States Attorneys should observe the same policy for cases delegated to them by those divisions.

The foremost goal in applying this policy to individual cases shall be to provide fair warning to state Governors and Attorneys General and thus to afford these leaders the opportunity both to resolve matters prior to litigation and to prepare for inquiries from local officials and the news media if an action is commenced.

Specifically, each United States Attorney or the Assistant Attorney General in charge of such litigation shall:

1. Prior to the filing of each action or claim against a state government, agency or entity;
   • Advise the Governor and the Attorney General of the affected state of the nature of the contemplated action or claim and terms of the remedy sought; and
   • Notify the Deputy Attorney General and, if appropriate, the Associate Attorney General of compliance with subsection (a).
2. Ensure that such prior notice is given sufficiently in advance of the filing of the suit or claim to:
   • Permit the state government, agency or entity to bring to the Department's attention facts or issues relevant to whether the action or claim should be filed; or
   • Result in settlement of the action or claim in advance of its filing on terms acceptable to the United States.
3. Ensure that each attorney in his/her respective office or division reads, becomes familiar with, and complies with, this directive.

Exceptions to the notice requirements of this section are appropriate only when the United States Attorney or Assistant Attorney General determines that good cause for such an exception exists and notifies the Deputy Attorney General and, if appropriate, the Associate Attorney General of that determination. 

[updated April 2018]