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.

1. • 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.
2. • 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.
3. • 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.
4. • 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]