March 10, 1978



## 78-16 MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, CIVIL DIVISION

Department of Justice—Retention of Private Counsel—Authority—Defense of Federal Officials

At your request, we have examined the Congressional Research Service memorandum on the authority of the Department of Justice to retain private legal counsel and the unsigned memorandum entitled “ Statutory Authority for Justice Department Hiring of Private Counsel” (“ Opposition Memo” ). Each memorandum deals at length with the derivation of the statutes concerning representation of Federal agencies and employees and with judicial decisions regarding those statutes. The Congressional Research Service memorandum concludes (p.39) that there is “ substantial doubt whether the Department of Justice has the statutory authority to retain private attorneys who are not subject to the supervision . . . of the Attorney General . . . or who have not been appointed in accordance with [28 U.S.C. §§ 515 and 543].” The Opposition Memo states a similar conclusion (p. 37), namely, that 28 U.S.C. §§ 515 and 543 are the only statutes authorizing the Department to retain private counsel and that the Attorney General has no authority to do so in the manner provided in Attorney General Order No. 683-77, 28 CFR §§ 50.15-50.16. We disagree. In our opinion, this view fails to give proper weight to the reasons for the Department’s practice and to action taken by Congress in light of that practice.

I.

The significant statutes, 28 U.S.C. §§ 516-517, have two parts— they place a responsibility of representation upon the Department and they specify the means of carrying out that responsibility. The only means expressly authorized are use of an officer of the Department of Justice or an attorney appointed pursuant to 28 U .S.C. § 515 or § 543. In 1975, however, the Department was faced with circumstances in which its obligation to represent present and former

66Federal officials in cases involving interests of the United States could not be accomplished through use of the prescribed means. The Department’s choice was between carrying out its obligation of representation through use of private attorneys or declining to provide representation at Government expense. We adhere to our earlier view that the Department’s policy of retaining private attorneys in the limited circumstances described in 28 CFR §§ 50.15 and 50.16 is adequately supported by the implied authority of the Attorney General in connection with representation of Federal agencies and their employees. Interests of the United States, as well as interests of the individual defendants,
are at stake in these cases.

II.

The Department has kept Congress and the General Accounting Office informed with regard to its use of private counsel. For example, in December 1975, Attorney General Levi sent identical letters to the Chairmen of the Senate and House Judiciary Committees describing the use of private attorneys in certain civil actions and explaining the reasons for the Department’s action. In 1976, the General Accounting Office began a study relating in part to the Department’s use of private attorneys; the study resulted in a report issued in May 1977.'Furthermore, in 1977, the Department requested a supplemental appropriation of $4,878,000 for payment of private counsel fees.2 The matter wasdiscussed at length during the hearings before the House and Senate Appropriations Committees. The House committee did not approve the Department’s request,3 but the Senate committee included in the bill the full request, subject to certain conditions.4 The conference committee provided for a smaller appropriation, $1,860,000, than did the Senate, but deleted-the conditions stated in the Senate-approved bill. However, the conference report5 stated: . . . the conferees are agreed that none of the funds available to the Department shall be obligated or expended by the Department for the representation of any defendants in suits commenced after the effective date of this Act, until the appropriate committees of the Senate and the House of Representatives have reviewed the policy

'R eport o f the C om ptroller G en eral, Lawsuits Against the Government Relating to a Bill to Amend the Privacy Act o f 1974 (M ay 6 , 1977). A s noted previously, the D ep artm en t’s policy is discussed w ith approval in a M ay 16, 1977, decision o f the C om ptroller G en eral, 56 C o m p . G en.

615. 2P reviously, the cost o f private attorneys had been absorbed by the D epartm ent through the use o f its regular appropriation. *See H. R ept. N o. 95 -6 8 , 95th C o n g ., 1st sess. 112 (1977). “T h e Senate com m itte e ’s report stated that approval o f the D ep artm en t’s request should not be construed as "a p p ro v a l o r disapproval b f the D ep artm en t’s policy statem ent . . . e m bodied in A ttorney G e n eral's O rder No. 687-77. . . . " S . R ept. N o. 95-64, 95th C o n g ., 1st sess. 14 4 (1 9 7 7 ). The com m ittee added to the bill a requirem ent that no funds be obligated o r spent for private counsel fees in suits com m enced after enactm ent o f the b ill, until the Senate Judiciary C om m ittee had approved the D ep artm en t’s policy statem ent. 3H. R ept. No. 95 -1 6 6 , 95th C o n g ., 1st sess. 27 (1977).

67statement embodied in the Attorney General’s Order No. 687-77

dated January 19, 1977. In certain circumstances, the courts have held that providing appropriations for an activity of the executive branch constitutes ratification by Congress of
that action. See, e.g., Brooks v. Dewar, 313 U.S. 354 (1941) (issuance by Secretary of the Interior o f temporary grazing permits). Care must be used inrelying on this doctrine, however.6 In our opinion, it is applicable here notwithstanding the language of the Senate report.7 Congressional acquiescence in the Department’s policy may be tentative or qualified. Nonetheless, funds to carry out that policy were provided in the Supplemental Appropriations Act for Fiscal Year 1977.8 Thus, to that extent, the legislative action supports our view that authority exists for the Department’s policy.

J o h n M . H a r m o n Assistant Attorney General

Office o f Legal Counsel

tSee, e.g.. Committee fo r Nuclear Responsibility, Inc. v. Seaborg, 465 F. (2d) 783, 785 (D .C . C ir. 1971) (question o f com pliance w ith N ational E nvironm ental Policy A ct). nSee footnote 4 , supra. 8Pub. L. N o. 95 -2 6 , 91 S tat. 6 1 , 1 0 6 (1 9 7 7 ).