Reimbursement of the Department of Justice

for Providing Legal Assistance to the

Department of Health and Human Services

The Department of Justice may be legally reimbursed by the Department of Health and Human 

Services (HHS) for attorney services provided pursuant to the Economy Act, through the 

employment of additional attorneys in the Office of the United States Attorney, to assist in the 

defense of HHS against claims filed under the Social Security Act in federal district court.

Attorneys employed in that capacity using HHS funds may not “conduct” litigation, but may only 

“assist” in litigation, because the Justice Department has the exclusive obligation and authority to conduct litigation on behalf of the United States and HHS has no independent litigation 

authority.

In order to justify the foregoing arrangements under the Economy Act, HHS must demonstrate 

that it is more economical or efficient to purchase such services from the Department of 

Justice than to provide the services itself.

September 3, 1985

M e m o r a n d u m O p i n i o n f o r t h e D ir e c t o r ,

E x e c u t i v e O f f i c e f o r U n it e d S t a t e s A t t o r n e y s

I. Background and Summary

This memorandum responds to your request for our opinion whether the 

Executive Office for United States Attorneys (EOUSA) has authority to accept 

reimbursement from the Department of Health and Human Services (HHS) for 

funds used to employ attorneys in the Office of the United States Attorney for 

the District of New Jersey to defend Social Security disability claims. As we 

understand the facts set out in your request, a recently promulgated local rule in 

the United States District Court for the District of New Jersey regarding 

procedures to be followed in resolving Social Security disability claims has 

imposed additional burdens on those who defend against such claims on behalf 

of the United States Government. HHS has funds available to meet this additional workload but, because of a workyear ceiling, is unable to hire additional 

employees to aid in the defense of these claims. On the other hand, the United 

States Attorney for the District of New Jersey has unfunded workyears for 

attorneys and support positions, but is not in a position to fund the positions. 

Therefore it is proposed that the EOUSA enter into an agreement with HHS, 

pursuant to 31 U.S.C. § 1535 (the Economy Act), to furnish HHS attorney and

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support personnel. HHS would in turn reimburse EOUSA for the personnel 

service provided.

Our conclusions as to the legality of this arrangement can be summarized as 

follows. It is proper for the Department to receive payment from HHS pursuant 

to the Economy Act for attorney services and to use such funds to employ 

additional attorneys for Social Security disability litigation so long as certain 

conditions are met. First, HHS must have available funds that HHS itself could 

use to perform legal work in Social Security disability litigation. Second, the 

attorneys hired with HHS funds cannot ordinarily “conduct” litigation but only 

assist in the conduct of litigation, because the Justice Department has the 

exclusive obligation and authority to conduct litigation on behalf of the United 

States and HHS has no independent litigation authority. Accordingly, the tasks 

of the attorneys hired with HHS funds must be limited to those that HHS 

attorneys could ordinarily perform. Third, HHS must demonstrate that it is 

more economical or efficient to purchase such personnel services from the 

Department of Justice than to provide the services itself.

HI. Analysis

A. Requirement that HHS Have Funds Available

The Economy Act provides:

The head of an agency or major organizational unit within an 

agency may place an order with a major organizational unit 

within the same agency or another agency for goods or services 

if (1) amounts are available; (2) the head of the ordering agency 

or unit decides the order is in the best interest of the United 

States Government; (3) the agency or unit to fill the order is able 

to provide the ordered goods or services; and (4) the head of the 

agency decides ordered goods or services cannot be provided as 

conveniently or cheaply by a commercial enterprise.

31 U.S.C. § 1535(a). The agency ordering the services must reimburse the 

agency providing the services. Id. § 1535(c).

The first requisite of the Economy Act is that the agency purchasing the 

service have “amounts . . . available” for their purchase. In this case, the 

requirement means that HHS must have funds that it could use to perform legal 

work in Social Security disability litigation. We state this requirement as a 

condition because we have not been informed whether HHS has funds which it 

could use specifically for the legal work in Social Security disability litigation, 

although we have been informed that HHS generally has funds available. A 

close review of HHS’s appropriation should be undertaken to ascertain the 

precise limits on the funds with which it proposes to purchase legal personnel 

services from the Department o f Justice.

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B. Restrictions on Attorneys Hired with HHS Funds

The attorneys hired with HHS funds must not perform tasks that are statutorily reserved to the Department of Justice. This limitation is a direct consequence of a longstanding interpretation of the Economy Act. As the Comptroller General recently reiterated: “The Economy Act does not authorize a Federal 

agency to reimburse another agency for services which the latter is required by 

law to provide.” 61 Comp. Gen. 419,421 (1982). The interpretation is required 

in order to prevent agencies from agreeing to reallocate funds between themselves in circumvention of the appropriations process.1 Therefore, the attorneys 

hired with HHS funds cannot ordinarily provide services which the Department 

of Justice is obligated by law to provide.

The Department’s exclusive litigation authority is codified in 28 U.S.C. 

§ 516, which reads as follows: “Except as otherwise authorized by law, the 

conduct of litigation in which the United States, an agency or an officer thereof 

is a party . . . is reserved to officers of the Department of Justice, under the 

direction of the Attorney General.” A parallel section, 5 U.S.C. § 3106, provides that except as otherwise authorized by law, an executive department 

“may not employ an attorney . . . for the conduct of litigation in which the 

United States, an agency, or employee thereof is a party .. . but shall refer the 

matter to the Department of Justice.” HHS seems to have no countervailing 

grant of authority that would permit it to conduct Social Security disability 

litigation itself.

Despite the Department’s exclusive authority to conduct litigation, substantial assistance is received as a matter of course from the attorneys of an agency 

involved in a lawsuit. As an opinion of this Office previously recognized: 

“Depending upon the nature of a case, this Department may call upon agency 

attorneys not only to provide factual material but also to draft pleadings, briefs 

and other papers. At times, in conjunction with attorneys of this Department, 

agency attorneys take part in trials and court proceedings.” “Department of 

Justice — Transfer of Funds from Another Agency — Payment for Attorney 

Services — Economy Act (31 U.S.C. § 686),” 2 Op. O.L.C. 302, 303 (1978) 

(footnote omitted). The Department of Justice has officially taken the position 

that so long as this Department retains control over the conduct of litigation, 

such cooperation is consistent with 28 U.S.C. § 516 and 5 U.S.C. § 3106. Id.

Because HHS attorneys are permitted to assist the Department of Justice in the 

defense of Social Security disability claims, HHS can, pursuant to the Economy 

Act, provide funds to the Department of Justice to hire attorneys to assist in the 

defense if HHS has funds available for such legal work. Because the Depart1 As the Com ptroller General has stated:

A contrary interpretation would compromise the basic integrity of the appropriations process 

itself. Under the doctrine of separation of powers. Congress, and Congress alone has the “power 

of the purse.” When Congress makes an appropriation, it also establishes an authorized program 

level. To permit an agency to operate beyond the level that it can finance under its appropriation 

with funds derived from another source would be a usurpation of the congressional prerogative.

Id.

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ment of Justice has the exclusive obligation to conduct litigation, the attorneys 

hired with HHS funds must refrain from exercising operational control over the 

defense of Social Security disability claims.

We realize that the line between conducting litigation and assisting in the 

conduct of litigation will be difficult to draw precisely. As a practical matter, 

the range of assistance that attorneys hired with HHS funds can provide is quite 

broad. They may draft pleadings, briefs, and other papers, and in conjunction 

with attorneys hired by the Department of Justice, take part in court proceedings. Attorneys hired with HHS funds, however, may not make final decisions 

as to the contents of briefs or oral argument. They must be at all times under the 

supervision of attorneys hired with funds from the appropriation for the Department of Justice. Final responsibility for litigation decisions, both strategic 

and tactical, must rest with these latter attorneys.

EOUSA has requested that no limitations be imposed on the activities or 

authority of attorneys hired with HHS funds. In support of this request, EOUSA 

has submitted certain materials that suggest that HHS attorneys have been 

exercising de facto control over the conduct of Social Security disabilities 

claims.2 The Department of Justice, however, has consistently required an 

explicit congressional authorization or appropriation before it will infer that its 

exclusive authority has been derogated.3 None of these materials constitutes 

such an explicit authorization or appropriation.4 Therefore, in order to prevent 

both the circumvention of Congress’ power of appropriation and the erosion of 

this Department’s exclusive authority to conduct litigation on behalf of the 

United States, we continue to maintain that attorneys hired with HHS funds must 

ordinarily assist rather than actually conduct Social Security disability litigation.

2 EOUSA has provided us with memoranda that suggest that over the years the Department of Justice has 

conferred increasing authority on HHS attorneys in Social Security disability cases. In addition, EOUSA 

notes that H H S’s budget request for FY 1984 sought appropriations for an additional nine positions to meet 

increased litigation workloads, including an increase in the number o f cases. The increased case workload 

resulted from several sources, including the Social Security Disability Amendments o f 1980.

W e have not been asked and we do not opine on the legality o f any de fa c to delegation to HHS of litigation 

authority in Social Security disability cases. W e note, however, that in the past it has been the position of the 

D epartm ent of Justice that the law requires attorneys not employed by the Department, including those 

em ployed by other agencies in the Executive Branch, to be appointed as special attorneys in the Department 

before they may conduct litigation for w hich the Departm ent is responsible. See generally 28 U.S.C. 

§§ 515(a), 543 (authorizing the Attorney G eneral to appoint special attorneys)

3 See M emorandum for Glen E. Pommerening, Assistant Attorney General for Administration from Antonin 

Scalia, A ssistant A ttorney General, Office o f Legal Counsel 4 (Mar. 15, 1976) (“[T]he Department has 

consistently interpreted [28 U.S.C. § 516 and 5 U.S.C. § 3106] as requiring the conferral o f litigation 

authority upon an agency other than the Departm ent or the appropriation of funds to contract for such 

litigation to be specific and explicit.”) (footnote omitted).

4 Even if the D epartm ent o f Justice memoranda could be construed to suggest that the Department has 

system atically delegated HHS de facto authority over litigation, such informal delegation, unratified by 

C ongress, does not lim it the Department’s statutory m andate. Even if it w ere possible to infer from HHS’s FY 

1984 budget request that HHS was asking for an appropriation to control the defense of Social Security 

disability cases, H H S’s request does not represent the explicit congressional authorization or appropriation 

that the D epartm ent o f Justice itself has required before it will yield its exclusive authority and obligation to 

conduct litigation on behalf o f the Unite States. W e have been unable to find any legislative history 

suggesting that Congress viewed its FY 1984 appropriation to HHS as changing the traditional relationship of 

the D epartm ent to other agencies in litigation matters.

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The purpose of the Economy Act is to promote efficiency and economy in 

government. Therefore, in order to justify invocation of the Act, it must be 

demonstrated that HHS’s use of its funds to hire Department of Justice attorneys to assist in the defense of Social Security claims is more efficient than 

HHS’s use of the funds to provide such services itself.

As we understand the facts, HHS has reached its employment ceiling. 

Accordingly, HHS is unable to hire more attorneys to assist in Social Security 

disability litigation. Assuming that the addition of attorneys is seen as the most 

efficient use of HHS’s resources in response to the new rules governing Social 

Security disability cases in the United States District Court for the District of 

New Jersey, the hiring of Department of Justice attorneys seems justified as 

HHS’s most efficient course of action in view of HHS’s employment ceiling.5 

Thus, on the basis of the facts related to us, we believe that HHS’s use of funds 

to hire Department of Justice attorneys to provide litigation assistance does 

comport with the purposes of the Economy Act.

We conclude that so long as HHS has funds available for legal work on 

Social Security disability litigation, HHS may use these funds to reimburse the 

Department of Justice for hiring additional attorneys to assist in the conduct of 

Social Security disability litigation, subject to the other considerations and 

requirements discussed in this memorandum.

R a l p h W . T a r r

Acting Assistant Attorney General

Office of Legal Counsel

C. Requirement that HHS Make Efficient Use o f Funds

5 We assume in this analysis that the employment ceiling preventing HHS from hiring additional attorneys 

has been established by the Office o f M anagement and Budget. See OMB C ircular No. A-64 (1980). If the 

employment ceiling was set by Congress, it is possible that the arrangement between HHS and EOUSA could 

be seen to contravene Congress* intent in establishing that ceiling.

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