Civil Justice Reform--Take 2

by Jeffrey S. Lubbers

On February 5, President Clinton signed Executive Order 12988, Civil Justice Reform (61 F.R. 4729, 2/7/96). This Order revokes and supersedes President Bush's similarly titled E.O. 12778. Both Orders seek to promote the efficient and expeditious resolution of disputes involving the federal government (whether in courts or agency proceedings) -- through greater emphasis on settlement and use of alternative dispute resolution (ADR). Reflecting the bipartisan nature of most of these issues, the Clinton Order tracks the Bush Order in many of its particulars, and does not differ fundamentally from its predecessor's general approach to reducing federal litigation. For example, both Orders require litigation counsel to make efforts to settle cases through prefiling notice of complaints, settlement conferences and use of ADR techniques. The provisions encouraging training in ADR and streamlined and expedited discovery procedures are also retained verbatim.

There are, however, several significant changes that reflect some distinct policy shifts. The new Order eliminates a paragraph prohibiting litigation counsel from agreeing to the use of binding arbitration, reflecting the Clinton Justice Department's more benign view on the constitutionality of such a process when the federal government is involved. E.O. 12988 also excises another section encouraging litigation counsel to enter into fee-shifting agreements by which the losing party would pay the prevailing party's fees and costs.

Also, the new Order's impact on agency rulemaking is modified in an important particular. Under the Bush Order, when agencies developed new regulations or proposed new legislation, agencies were required to consider a lengthy checklist of specifications concerning such things as pre-emptive effect, severability, retroactive effect, creation of private rights of action, remedies available, and even whether the legislation applied to the Commonwealths of Puerto Rico and the Northern Mariana Islands. While President Clinton has preserved (and even added to) the lengthy checklist in Section 3 that agencies must consider when developing new regulations or proposing new legislation, he made an administrative change that should make life a little easier for the agencies. The Bush Order required agencies formally to certify to OMB that they had reviewed regulations and laws against the checklist and that each requirement was met. This, in effect, required a "litigation impact statement" for every new legislative proposal and regulation -- adding to the various other impact statements that are already required in the rulemaking process. The Clinton Order requires agencies to conduct the review, but eliminates the formal certification requirement.

More intriguing are some of the new provisions in the new Order. Section 1(f)(5) admonishes litigation counsel to "ensure that unmeritorious threshold defenses and jurisdictional arguments, resulting in unnecessary delays, are not raised." This should be music to the ears of opposing counsel who are often hit with an arsenal of boilerplate standing, ripeness, exhaustion, and jurisdictional defenses when challenging agency action. Section 2 for the first time puts the President squarely behind pro bono activity by federal employees. It requires agencies to develop programs to facilitate such activity, and specifically cites pro bono legal services. What is especially encouraging is that the Department of Justice has already issued an enthusiastic policy statement carrying out this mandate, and giving guidance on relevant ethical considerations. It includes a 50-hour-per-year aspirational goal. See Office of the Attorney General, Department of Justice Policy Statement on Pro Bono Legal and Volunteer Services (March 6, 1996), and covering Memorandum from the Attorney General to all Department Employees (March 8, 1996).

Finally E.O. 12988 expands its coverage of administrative adjudication. Interestingly, for fans of the recently defunded Administrative Conference of the United States (ACUS), Section 4 preserves the earlier Order's requirement that agencies implement ACUS's 1986 recommendation, "Case Management as a Tool for Improving Agency Adjudication." That recommendation contains numerous suggestions for expediting agency adjudication through the use of mediation and other ADR methods, as well as other techniques (e.g., time goals, two-step proceedings, refined questioning techniques, and telephone conferences and hearings).

But Section 4 also contains several other new initiatives. It urges agencies to "review their administrative adjudicatory practices 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."

Section 4(c) seemingly responds to findings of racial bias in social security adjudication made in a 1992 General Accounting Office study by requiring each agency to "identify any type of bias on the part of the decision-makers that results in any injustice to persons who appear before administrative adjudicatory tribunals," to train ALJs and other adjudicators to eliminate such bias, and to establish mechanisms to receive and resolve complaints of such bias.

Finally, Section 4(c) requires agencies to develop methods, "including the use of electronic technology, to educate the public about its claims/benefits policies and procedures."

Executive Order 12988 became effective in early May. It will be interesting to see how the Department of Justice coordinates these new provisions and how the agencies respond. The Department has already appointed a high-level (but so far thinly staffed) Senior Counsel for Alternate Dispute Resolution, Peter Steenland. And the DOJ's Office of Policy Development, which will oversee many of the initiatives described above, recently hired former ACUS senior attorney (and Section member) Nancy Miller to work on these matters.

Jeffrey S. Lubbers is a Council Member and an Adjunct Professor of Law at American University.