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

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Federal 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 was 

discussed 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).

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statement 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 in 

relying 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 ).