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(i) Decides to seek an indictment of, or to file an information against, that employee on a federal criminal charge relating to the conduct concerning which representation was undertaken;

(ii) Determines that the employee's actions do not reasonably appear to have been performed within the scope of his employment;

(iii) Resolves any conflict described herein and tenders representation by Department of Justice attorneys;

(iv) Determines that continued representation is not in the interest of the United States;

(v) Terminates the retainer with the concurrence of the employee-client for any reason.

(d) Where reimbursement is provided for private counsel fees incurred by employees, the following limitations shall apply:

(1) Reimbursement shall be limited to fees incurred for legal work that is determined to be in the interest of the United States. Reimbursement is not available for legal work that advances only the individual interests of the employee.

(2) Reimbursement shall not be provided if at any time the Attorney General or his designee determines that the employee's actions do not reasonably appear to have been performed within the scope of his employment or that representation is no longer in the interest of the United States.

(3) Reimbursement shall not be provided for fees incurred during any period of time for which representation by Department of Justice attorneys was tendered.

(4) Reimbursement shall not be provided if the United States decides to seek an indictment of or to file an information against the employee seeking reimbursement, on a criminal charge relating to the conduct concerning which representation was undertaken. (Order No. 970-82, 47 FR 8174, Feb. 25, 1982, as amended by Order No. 1409-90, 55 FR 13130, Apr. 9, 1990) 850.17 Ex parte communications in in

formal rulemaking proceedings. In rulemaking proceedings subject only to the procedural requirements of 5 U.S.C. 553:

(a) A general prohibition applicable to all offices, boards, bureaus and divisions of the Department of Justice against the receipt of private, ex parte oral or written communications is undesirable, because it would deprive the Department of the flexibility needed to fashion rulemaking procedures appropriate to the issues involved, and would introduce a degree of formality that would, at least in most instances, result in procedures that are unduly complicated, slow, and expensive, and, at the same time, perhaps not conducive to developing all relevant information.

(b) All written communications from outside the Department addressed to the merits of a proposed rule, received after notice of proposed informal rulemaking and in its course by the Department, its offices, boards, and bureaus, and divisions or their personnel participating in the decision, should be placed promptly in a file available for public inspection.

(c) All oral communications from outside the Department of significant information or argument respecting the merits of a proposed rule, received after notice of proposed informal rulemaking and in its course by the Department, its offices, boards, bureaus, and divisions or their personnel participating in the decision, should be summarized in writing and placed promptly in a file available for public inspection

(d) The Department may properly withhold from the public files information exempt from disclosure under 5 U.S.C. 552.

(e) The Department may conclude that restrictions on ex parte communications in particular rulemaking proceedings are necessitated by considerations of fairness or for other reasons. (Order No. 801-78, 43 FR 43297, Sept. 25, 1978, as amended at Order No. 1409-90, 55 FR 13130, April 9, 1990)

850.18 (Reserved]

850.19 Procedures to be followed by

government attorneys prior to fil. ing recusal or disqualification mo

tions. The determination to seek for any reason the disqualification or recusal

tended to create any private rights enforceable by private parties in litigation with the United States.

[Order No. 977-82, 47 FR 22094, May 21, 1982]

or

can

of a justice, judge, or magistrate is a most significant and sensitive decision. This is particularly true for government attorneys, who should be guided by uniform procedures in obtaining the requisite authorization for such a motion. This statement is designed to establish a uniform procedure.

(a) No motion to recuse or disqualify a justice, judge, or magistrate (see, e.g., 28 U.S.C. 144, 455) shall be made or supported by any Department of Justice attorney, U.S. Attorney (including Assistant U.S. Attorneys) agency counsel conducting litigation pursuant to agreement with or authority delegated by the Attorney General, without the prior written approval of the Assistant Attorney General having ultimate supervisory power over the action in which recusal or disqualification is being considered.

(b) Prior to seeking such approval, Justice Department lawyer(s) handling the litigation shall timely seek the recommendations of the U.S. Attorney for the district in which the matter is pending, and the views of the client agencies, if any. Similarly, if agency attorneys are primarily handling any such suit, they shall seek the recommendations of the U.S. Attorney and provide them to the Department of Justice with the request for approval. In actions where the United States Attorneys are primarily handling the litigation in question, they shall seek the recommendation of the client agencies, if any, for submission to the Assistant Attorney General.

(c) In the event that the conduct and pace of the litigation does not allow sufficient time to seek the prior written approval by the Assistant Attorney General, prior oral authorization shall be sought and a written record fully reflecting that authorization shall be subsequently prepared and submitted to the Assistant Attorney General.

(d) Assistant Attorneys General may delegate the authority to approve or deny requests made pursuant to this section, but only to Deputy Assistant Attorneys General or an equivalent position.

(e) This policy statement does not create or enlarge any legal obligations upon the Department of Justice in civil or criminal litigation, and it is not in

850.20 Participation by the United

States in court-annexed arbitration. (a) Considerations affecting participation in arbitration. (1) The Department recognizes and supports the general goals of court-annexed arbitrations, which are to reduce the time and expenses required to dispose of civil litigation. Experimentations with such procedures in appropriate cases offer both the courts and litigants an opportunity to determine the effectiveness of arbitration as an alternative to traditional civil litigation.

(2) An arbitration system, however, is best suited for the resolution of relatively simple factual issues, not for trying cases that may involve complex issues of liability or other unsettled legal questions. To expand an arbitration system beyond the types of cases for which it is best suited and most competent would risk not only a decrease in the quality of justice available to the parties but unnecessarily higher costs as well.

(3) In particular, litigation involving the United States raises special concerns with respect to court-annexed arbitration programs. A mandatory arbitration program potentially implicates the principles of separation of powers, sovereign immunity, and the Attorney General's control over the process of settling litigation.

(b) General rule consenting to arbitration consistent with the department's regulations. (1) Subject to the considerations set forth in the following paragraphs and the restrictions set forth in paragraphs (c) and (d), in a case assigned to arbitration mediation under a local district court rule, the Department of Justice agrees to participate in the arbitration process under the local rule. The attorney for the government responsible for the case should take any appropriate steps in conducting the case to protect the interests of the United States.

(2) Based upon its experience under arbitration programs to date, and the

or

an

purposes and limitations of court-annexed arbitration, the Department generally endorses inclusion in a district's court-annexed arbitration program of civil actions

(i) In which the United States or a Department, agency, or official of the United States is a party, and which seek only money damages in amount not in excess of $100,000, exclusive of interest and costs; and

(ii) Which are brought (A) under the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq., or (B) under the Longshoreman's and Harbor Worker's Compensation Act, 33 U.S.C. 905, or (C) under the Miller Act, 40 U.S.C. 270(b).

(3) In any other case in which settlement authority has been delegated to the U.S. Attorney under the regulations of the Department and the directives of the applicable litigation division and none of the exceptions to such delegation apply, the U.S. Attorney for the district, if he concludes that a settlement of the case upon the terms of the arbitration award would be appropriate, may proceed to settle the case accordingly.

(4) Cases other than those described in paragraph (2) that are not within the delegated settlement authority of the U.S. Attorney for the district ordinarily are not appropriate for an arbitration process because the Department generally will not be able to act favorably or negatively in a short period of time upon a settlement of the case in accordance with the arbitration award. Therefore, this will result in a demand for trial de novo in a substantial proportion of such cases to preserve the interests of the United States.

(5) The Department recommends that any district court's arbitration rule include a provision exempting any case from arbitration, sua sponte or on motion of a party, in which the objectives of arbitration would not appear to be realized, because the

involves complex or novel legal issues, or because legal issues predominate over factual issues, or for other good cause.

(c) Objection to the imposition of penalties or sanctions against the United States for demanding trial de novo. (1) Under the principle of sovereign immunity, the United States cannot be held

liable for costs or sanctions in litigation in the absence of a statutory provision waiving its immunity. In view of the statutory limitations on the costs payable by the United States (28 U.S.C. 2412(a), 2412(b), and 1920), the Department does not consent to provisions in any district's arbitration program providing for the United States or the Department, agency, or official named as a party to the action to pay any sanction for demanding a trial de novo-either as a deposit in advance or as a penalty imposed after the fact—which is based on the arbitrators' fees, the opposing party's attorneys' fees, or any other costs not authorized by statute to be awarded against the United States. This objection applies whether the penalty or sanction is required to be paid to the opposing party, to the clerk of the court, or to the Treasury of the United States.

(2) In any case involving the United States that is designated for arbitration under a program pursuant to which such a penalty or sanction might be imposed against the United States, its officers or agents, the attorney for the government is instructed to take appropriate steps, by motion, notice of objection, or otherwise, to apprise the court of the objection of the United States to the imposition of such a penalty or sanction.

(3) Should such a penalty or sanction actually be required of or imposed on the United States, its officers or agents, the attorney for the government is instructed to:

(i) Advise the appropriate Assistant Attorney General of this development promptly in writing;

(ii) Seek appropriate relief from the district court; and

(iii) If necessary, seek authority for filing an appeal or petition for mandamus. The Solicitor General, the Assistant Attorneys General, and the U.S. Attorneys are instructed to take all appropriate steps to resist the imposition of such penalties or sanctions against the United States.

(d) Additional restrictions. (1) The Assistant Attorneys General, the U.S. Attorneys, and their delegates, have no authority to settle or compromise the interests of the United States in a case

case

pursuant to an arbitration process in (6) The Department's consent for parany respect that is inconsistent with ticipation in an arbitration program is the limitations upon the delegation of not a waiver of sovereign immunity or settlement authority under the Depart- other defenses of the United States exment's regulations and the directives cept as expressly stated; nor is it inof the litigation divisions. See 28 CFR tended to affect jursidictional limitapart 0, subpart Y and appendix to sub- tions (e.g., the Tucker Act). part Y. The attorney for the govern

(e) Notification of new or revised arbiment shall demand trial de novo in any

tration rules. The U.S. Attorney in a case in which:

district which is considering the adop(i) Settlement of the case on the

tion of or has adopted a program of basis of the amount awarded would not

court-annexed arbitration including be in the best interests of the United

cases involving the United States shall: States;

(1) Advise the district court of the (ii) Approval of a proposed settle

provisions of this section and the limiment under the Department's regula

tations on the delegation of settlement tions in accordance with the arbitra

authority to the United States Attortion award cannot be obtained within

ney pursuant to the Department's reg

ulations and the directives of the litithe period allowed by the local rule for rejection of the award; or

gation divisions; and

(2) Forward to the Executive Office (iii) The client agency opposes settle

for United States Attorneys a notice ment of the case upon the terms of the

that such a program is under considersettlement award, unless the appro

ation or has been adopted, or is being priate official of the Department ap

revised, together with a copy of the proves a settlement of the case in ac

rules or proposed rules, if available, cordance with the delegation of settle

and a recommendation as to whether ment authority under the Depart

United States participation in the proment's regulations.

gram as proposed, adopted, or revised, (2) Cases sounding in tort and arising

would be advisable, in whole or in part. under the Constitution of the United States or under a common law theory

(Order No. 1109-85, 50 FR 40524, Oct. 4, 1985) filed against an employee of the United

850.21 Procedures governing the deStates in his personal capacity for ac

struction of contraband drug evitions within the scope of his employ- dence in the custody of Federal law ment which are alleged to have caused enforcement authorities. injury or loss of property or personal

(a) General. The procedures set forth injury or death are not appropriate for

below are intended as a statement of arbitration.

policy of the Department of Justice (3) Cases for injunctive or declara

and will be applied by the Department tory relief are not appropriate for arbi- in exercising its responsibilities under tration.

Federal law relating to the destruction (4) The Department reserves the of seized contraband drugs. right to seek any appropriate relief to (b) Purpose. This policy implements which its client is entitled, including the authority of the Attorney General injunctive relief or a ruling on motions under title I, section 1006(c)(3) of the for judgment on the pleadings, for sum- Anti-Drug Abuse Act of 1986, Public mary judgment, or for qualified immu- Law 99–570 which is codified at 21 nity, or on issues of discovery, before U.S.C. 881(f)(2), to direct the destrucproceeding with the arbitration proc- tion, as necessary, of Schedule I and II ess.

contraband substances. (5) In view of the provisions of the (c) Policy. This regulation is intended Federal Rules of Evidence with respect to prevent the warehousing of large to settlement negotiations, the Depart. quantities of seized contraband drugs ment objects to the introduction of the which are unnecessary for due process arbitration process or the arbitration in criminal cases. Such stockpiling of award in evidence in any proceeding in contraband drugs presents inordinate which the award has been rejected and security and storage problems which the case is tried de novo.

create additional economic burdens on

a

a

limited law enforcement resources of propanamide (commonly known as the United States.

fentanyl) or two hundred grams of a (d) Definitions. As used in this sub- mixture or substance containing a depart, the following terms shall have tectable amount of any analogue of Nthe meanings specified:

phenyl-N-[1-(2-phenylethyl)-4(1) The term Contraband drugs are piperidinyl propanamide; or those controlled substances listed in (vii) Twenty kilograms of hashish or Schedules I and II of the Controlled two kilograms of hashish oil (21 U.S.C. Substances Act seized for violation of 841(b)(1)(D), 960(b)(4)). that Act.

In the event of any changes to section (2) The term Marijuana is as defined 401(b)(1) of the Controlled Substances in 21 U.S.C. 801(15) but does not in- Act (21 U.S.C. 841(b)(1) as amended occlude, for the purposes of this regula- curring after the date of these regulation, the derivatives hashish or hashish tions, the threshold amount of any suboil for purposes of destruction.

stance therein listed, except mari(3) The term Representative sample juana, shall be twice the minimum means the exemplar for testing and a amount required for the most severe sample aggregate portion of the whole mandatory minimum sentence. amount seized sufficient for current (e) Procedures. Responsibilities of the criminal evidentiary practice.

Federal Bureau of Investigation and (4) The term Threshold amount means: Drug Enforcement Administration.

(i) Two kilograms of a mixture or When contraband drug substances in substance containing detectable excess of the threshold amount or in amount of heroin;

the case of marijuana a quantity in ex(ii) Ten kilograms of a mixture or cess of the representative sample are substance containing detectable

seized pursuant to a criminal invesamount of

tigation and retained in the custody of (A) Coca leaves, except coca leaves the Federal Bureau of Investigation or and extracts of coca leaves from which Drug Enforcement Administration, the cocaine, ecgonine, and derivatives of Agency having custody shall: ecognine or their salts have been re- (1) Immediately notify the appromoved;

priate U.S. Attorney, Assistant U.S. (B) Cocaine, its salts, optical and Attorney, or the responsible state/local geometric isomers, and salts of iso- prosecutor that the amount of seized mers;

contraband drug exceeding the thresh(C) Ecgonine, its derivatives, their old amount and its packaging, will be salts, isomers, and salts of isomers; or destroyed after sixty days from the

(D) Any compound, mixture, or prep- date notice is provided of the seizures, aration which contains any quantity of unless the agency providing notice is any of the substances referred to in requested in writing by the authority paragraphs (d)(4)(ii) (A) through (C) of receiving notice not to destroy the exthis section;

cess contraband drug; and (iii) Ten kilograms of a mixture or (2) Assure that appropriate tests of substance described in paragraph samples of the drug are conducted to (d)(4)(ii)(B) of this section which con- determined the chemical nature of the tains cocaine base;

contraband substance and its weight (iv) Two hundred grams of sufficient to serve as evidence before phencyclidine (PCP) or two kilograms the trial courts of that jurisdiction; of a mixture or substance containing a and detectable amount of phencyclidine (3) Photographically depict, and if re(PCP);

quested by the appropriate prosecu(v) Twenty grams of a mixture or torial authority, videotape, the contrasubstance containing detectable band drugs as originally packaged or amount of Lysergic Acid Diethylamide an appropriate display of the seized (LSD);

contraband drugs so as to create evi(vi) Eight hundred grams of a mix- dentiary exhibits for use at trial; and ture or substance containing a detect- (4) Isolate and retain the appropriate able amount

of

N-phenyl-N[1-(2- threshold amounts of contraband drug phenylethyl)-4-piperidiny]

evidence when an amount greater than

a

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