Delegated affirmative cases will usually be of three types: (1) those delegated to USAOs for handling by those offices; (2) those for which the agency has statutory litigating authority; and (3) those for which the agency is delegated litigating authority pursuant to a Memorandum of Understanding with the Justice Department. The most common delegated affirmative cases are:

1. 1. Department of Labor (cases brought under the Employee Retirement Income Security Act, the Occupational Health and Safety Act, the Migrant and Seasonal Agricultural Worker Protection Act, and the Federal Coal Mine Health and Safety Act). Suits under each of these statutes will normally be handled by Labor Department attorneys. In such cases, a Branch attorney will review the referral and proposed pleadings for form and content. If the papers indicate that the proposed suit has an adequate factual and legal basis, after conferring with the Assistant Director for Area 1, the Branch attorney will prepare letters to the agency and United States Attorney authorizing the filing of the suit, and delegating the case to the agency. (In those cases where time will not permit a letter authorizing that suit be filed, after conferring with the reviewer, authorization may be given by phone, with confirmation letters to follow.) In most cases under these statutes, it will not be necessary to obtain formal authorization for the suit from the Assistant Attorney General. However, if any of these cases present novel or sensitive issues, it may be appropriate to notify the Assistant Attorney General of the proposed litigation.
2. 2. Cases under the Labor Management Reporting and Disclosure Act. Most LMRDA suits are handled by the USAOs. After reviewing the referral and proposed pleadings for an LMRDA suit, the Branch attorney will confer with the Assistant Director about whether the proposed litigation has an adequate factual and legal basis. If it is appropriate to authorize suit, the Branch attorney will prepare a letter to the appropriate United States Attorney, indicating that the suit is authorized and is delegated to that office, and requesting that a referral acknowledgement form be returned, which shows the date of filing and the name of the Assistant United States Attorney to whom the case is assigned. A copy of the letter will be sent to the Labor Department. In most cases, the letter to the United States Attorney will request that the suit be filed within two weeks of receipt, unless extenuating circumstances are present.
3. 3. Subpoena Enforcement Suits. Most routine subpoena enforcement actions are handled by the USAOs and are authorized by the Director in charge of Area 1. A Branch attorney will review the referral and proposed pleadings, and then prepare a memorandum from the assistant director to the director, recommending whether the suit should be filed. Subpoena enforcement actions that arise out of a civil investigation that is being conducted by a USAO are presumptively delegated to USAOs.
   If the subpoena enforcement action is approved by the director, the Branch attorney will write the agency and the United States Attorney, stating whether the suit has been authorized or not, and, if so, that it is delegated to the United States Attorney. In cases in which suit is authorized, a referral acknowledgement form will also be sent to the United States Attorney, as well as a copy of papers received from the agency.For IRS summons enforcement litigation, please see JM 6-1.120.
4. 4. Other Delegated Affirmative Suits. For all other delegated affirmative cases, such as Department of Energy enforcement actions, suits under the various Department of Agriculture statutes, and miscellaneous affirmative litigation, the assigned Branch attorneys will review the litigation request and analysis, and prepare a suit authorization memorandum for the Assistant Attorney General. If the suit is authorized, the Branch attorney will prepare a delegation letter with acknowledgement form to the United States Attorney, and a follow-up letter to the agency.

[updated April 2018]