March 15, 1979

79-17 MEMORANDUM OPINION FOR THE

ASSISTANT ATTORNEY GENERAL, CIVIL

RIGHTS DIVISION

Civil Rights—Busing—Effects of Eagleton-Biden

Amendments (92 Stat. 1586)—Department of

Justice Use of Personnel and Resources of the

Department of Health, Education, and Welfare in

Desegregation Litigation

This responds to your memorandum of December 13, 1978, concerning 

the applicability of the Eagleton-Biden Amendment to use by the Civil 

Rights Division of employees and other resources of the Department of 

Health, Education, and Welfare (HEW).

I. Background; Summary

A. The Eagleton-Biden Amendment is § 209 of the Department of 

Health, Education, and Welfare Appropriation Act for Fiscal Year 1979, 

Pub. L. No. 95-480, 92 Stat. 1586 (1978). Section 209 reads as follows: 

None of the funds contained in this Act shall be used to require, 

directly or indirectly, the transportation of any student to a 

school other than the school which is nearest the student’s home, 

except for a student requiring special education, to the school offering such special education, in order to comply with title VI of 

the Civil Rights Act o f 1964. For the purpose of this section an 

indirect requirement of transportation of students includes the 

transportation of students to carry out a plan involving the reorganization of the grade structure of schools, the pairing of 

schools, or the clustering of schools, or any combination of 

grade restructuring, pairing, or clustering. The prohibition described in this section does not include the establishment of 

magnet schools.

An essentially identical provision was contained in the HEW appropriation

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act for fiscal year 1978,' and similar provisions were included in the appropriation acts for the previous 3 years.

Your memorandum states that HEW wishes to refer to the Civil Rights 

Division, for the bringing of a lawsuit to enforce Title VI of the Civil 

Rights Act of 1964, the matter of the desegregation of the Chicago public 

schools. According to your memorandum, a suit against the Chicago 

school system would considerably overtax the resources of this Department, and HEW has offered to provide the resources needed for the suit. 

In light of the fact that any appropriate remedy would, it appears, certainly require transporting some students beyond their nearest schools, 

you have raised a number of questions concerning the ability of this 

Department to use HEW resources.

B. The basic issue is whether § 209 applies at all to the conduct of such 

litigation. Although the question, which is essentially one of statutory construction, may be thought by some not to be free from doubt, in our opinion, the statute was not intended to bar HEW ’s cooperation with this Department. Our view, as explained below, is that § 209 restricts only H EW ’s 

conduct of administrative fund-termination proceedings and that it does 

not limit the use o f HEW funds to support a lawsuit brought by this 

Department.

At the outset, however, we should note that there are other limits upon 

the ability of the Department of Justice to use the resources of other agencies. Provisions in Titles 5 and 28 of the United States Code assign to this 

Department general responsibility for conducting litigation involving 

Federal agencies. With regard to the role of HEW attorneys in title VI 

litigation, those provisions must be considered. Also, quite apart from 

§ 209, HEW funds must be used in a manner consistent with the HEW appropriation statute. Within the limits of these several statutes, we believe 

that it would be permissible for this Department to make substantial use of 

HEW employees and resources in connection with title VI litigation, including school desegregation cases that may result in studenttransportation orders.

n . Discussion

A. The Meaning of the Eagleton-Biden Amendment

As your memorandum indicates, the language of § 209 may be interpreted in various ways. The statutory interpretation that would bar 

HEW ’s cooperation can be simply stated: the work of Government attorneys in preparing or bringing a desegregation suit in which the remedy is likely to involve busing is “ indirectly requiring” the transportation 

of students beyond their nearest schools. Yet, the language of the statute does not readily lend itself to that construction. Moreover, that construction is not supported by the legislative history. The history of § 209 

makes clear that Congress intended to bar use o f HEW fund-termination

' See § 208 o f Pub. L. No. 95-205, 91 Stat. 1460 (1977).

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proceedings as means of requiring busing. It also makes clear that Congress did not intend to interfere either with the ability of HEW to refer 

such cases to the Department of Justice or with the manner in which this 

Department conducts the litigation of those cases. For example, in opposing Senator Brooke’s amendment to delete § 209, Senator Eagleton referred to HEW ’s administrative proceeding against the school system of 

Kansas City, Missouri, as “ the kind of situation the Eagleton-Biden 

amendment is designed to prevent.” 2 Then he added: “ The amendment 

puts HEW on notice that if they want busing in a school district, they are 

going to have to get it through the Federal courts.” The same basic view 

that § 209 applies only to “ administrative busing” ordered by HEW was 

made by Senator Biden.3

Our review of the legislative history reveals no discussion of the question whether HEW personnel can assist the Department of Justice in 

preparing or bringing a title Vl-based lawsuit for desegregation of a school 

system. In our opinion, such assistance is not contrary to the purpose of 

§ 209. The legislative history shows that Congress opposed requiring busing in the context of HEW administrative proceedings. When a matter is 

referred to the Department of Justice, the context becomes a judicial proceeding and the Government’s position is controlled by this Department. 

There is no reason to read § 209 as barring HEW from assisting this 

Department, even with regard to the student-assignment or busing aspects 

of a lawsuit. The crucial point is that, if a busing requirement results from 

litigation, the basis will be a court order or a negotiated settlement, not the 

threat of fund termination.

Our view is supported by the fact that Congress was fully aware of the 

decision regarding the constitutionality of the virtually identical fiscal year 

1978 version of the Eagleton-Biden Amendment. Brown v. Califano, 455 

F. Supp. 837 (D.D.C. 1978).4 In rejecting the plaintiff’s view that the provision was unconstitutional on its face, the District Court stressed the fact 

that HEW could enforce title VI by referring matters to this Department. 

In its conclusion, the court stated the following:5

Should further proceedings in this case reveal that the litigation 

option left undisturbed by these provisions cannot, or will not,

be made into a workable instrument for effecting equal educational opportunities, the Court will entertain a renewed challenge 

by plaintiffs on an as applied basis * * *. [Emphasis in 

original.]

An interpretation of § 209 that would prohibit or severely restrict HEW

1 124 C o n g . R e c . S 16302 (d aily e d ., S ep t. 27, 1978).

* 124 C o n g . R e c . S16303 (daily ed., Sept. 27, 1978).

* Senator Biden placed the court’s decision in the C o n g r e s s io n a l R e c o rd . He and Senators Eagleton and Brooke referred to the decision during the Senate debate on the amendment to delete § 209. 124 C o n g . R e c . S16298 (Senator Brooke), SI6302 (Senator Eagleton), 

and S16303-305 (Senator Biden) (daily ed., Sept. 27, 1978).

’ 455 F. Supp. at 843.

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assistance to this Department in regard to referred cases might make application of the legislation more vulnerable to attack. This is a further 

reason for concluding that the proponents o f § 209 did not intend such an 

interpretation.

In sum, it appears to us plain that Congress intended to leave untouched 

this Department’s litigation authority in these cases. It must likewise be 

concluded that, had Congress intended to effect a significant alteration in 

the usual relationship between this Department and HEW in the handling 

of that litigation, its intent would have been clearly spelled out. We have 

found no evidence in the legislative consideration of H EW ’s appropriation 

for fiscal year 1979 to suggest a congressional intent to curtail H EW ’s 

usual role of providing assistance in these cases: With that conclusion in 

mind, we will turn to a review of the statutory limitations ordinarily impinging upon interagency cooperation in litigation.

B. Limits Upon Department of Justice Use of HEW Resources

A primary purpose for creating the Department o f Justice was to centralize control of litigation involving the United States or a Federal 

agency. This is reflected 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 officer thereof is a 

party * * *, and securing evidence therefor, 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 [such] litigation * * * or for the 

securing of evidence therefor, but shall refer the matter to the Department 

of Justice.”

As a practical matter, cooperation between attorneys of this Department and agency attorneys is necessary.6 So long as this Department retains control over the conduct of the litigation, even an extensive role for 

attorneys of other agencies seems consistent with the purposes of 28 

U.S.C. § 516 and 5 U.S.C. § 3106. The large number of agreements between this Department and our “ client” agencies (most of which are summarized in the Civil Division’s Practice Manual) attests to the importance 

of cooperation.

A related question is allocation, between this Department and an agency 

involved in a civil suit, of the expense of litigation. Clearly, when one 

department is given sole responsibility for a type of activity, the appropriation of another department may not properly be used to cover the cost of 

that activity. See 31 U.S.C. § 628. With respect to litigation, however, the

‘ As you probably know, litigation management is the subject of a study by the President’s 

Reorganization Project.
authority of this Department has never been read as ousting other agencies 

from performing a supporting role. Given this long history, and given the 

necessity of cooperation, we think it may be assumed that, ordinarily, 

when Congress appropriates funds for an agency general counsel’s office, 

Congress intends a portion of such funds to be used to carry out the 

agency’s functions concerning litigation.

We are not suggesting that this Department could adopt a practice of 

charging other agencies, such as HEW , for the cost of bringing lawsuits. 

Our point is that, in general, the other agencies have the responsibility of assisting this Department and that agency appropriations may properly be 

used for that purpose. C f 39 Comp. Gen. 643 , 646-47 (1960). Regarding 

the present matter, we believe that there is broad latitude regarding the 

amount and types of assistance that HEW may provide to this Department.

HEW attorneys and supporting personnel may properly provide factual 

material and may also draft interrogatories, pleadings, briefs, and other 

papers. HEW employees, whose salaries are paid by HEW , may be detailed to this Department to work on such matters. An HEW attorney, 

who has been designated as a special attorney under 28 U.S.C. § 543 or 

§ 515(a), may take part in judicial proceedings.

As a matter o f policy, in view of the possibility that the Eagleton-Biden 

Amendment may be susceptible to a more prohibitive interpretation, you 

may wish to consider whether it might be advisable to limit the role of 

HEW employees with respect to the busing-related aspects of a case. That 

is, regarding those issues, an HEW attorney detailed to this Department 

might refrain from assuming the lead role in conducting negotiations or 

litigation. The likelihood of successfully defeating a claim of violation of 

§ 209 would be enhanced if the busing-related aspects of the case were 

clearly controlled by a Department of Justice employee.

With regard to use of HEW computer programmers and computer time, 

there should be much leeway. This kind of support would seem to be a 

proper use of HEW ’s appropriation.

There have been situations in which HEW has paid the travel expenses 

of Department of Justice employees. Ordinarily, however, this type of expense is paid from the appropriation of this Department. The propriety of 

accepting travel funds from HEW might well depend upon the particular 

circumstances (e.g., whether the travel is for an investigation or for trial). 

For example, when HEW makes a referral, it is responsible for performing 

at least a preliminary investigation. Thus, if a Department of Justice 

employee were to assist HEW in conducting an HEW investigation, it 

would seem proper for HEW to pay his or her expenses and even his or her 

salary. In other words, HEW would be purchasing services from this 

Department. See § 601 of the Economy Act, 31 U.S.C. § 686.

Your memorandum describes three hypothetical situations and raises a 

number of questions with regard to each of them. O ur views on most of 

these questions are indicated by the general guidelines set forth above, but 

we will respond briefly to the specific issues.

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Case 1: Detail o f H EW Personnel

(A) HEW employees, paid by HEW , could properly be detailed to your Education Section and could work on cases involving Eagleton-Biden questions, i.e., busing. An HEW attorney could properly work, in a subsidiary role, on any aspect 

of such cases. As a policy matter, as noted above, we question 

whether an HEW employee should be the lead attorney regarding Eagleton-Biden issues.

A detailed HEW employee could work on cases not involving busing, 

assuming the case is related to the responsibilities of H EW .7

Because of our construction of § 209, our views do not depend upon the 

statutory basis of the case (title IV, title VI, etc.) or the timing of a referral 

by HEW.

(B) HEW employees, paid by HEW , could properly be detailed to a Civil Rights division Section other than the Education Section. Their work would not have to relate to title VI, if 

it related to some other responsibility of HEW .8

You ask whether this Department could properly “ dem and,” as a condition for accepting a referral of the Chicago case, that HEW detail a 

number of employees to the Civil Rights Division. This question is more 

difficult, and the answer would seem to depend upon the particular facts. 

Regarding this kind of litigation, there is no precise dividing line between 

the responsibilities of this Department and of the other agency. We can 

properly insist that the other agency cooperate and provide substantial 

assistance. Still, basic responsibility for conducting the litigation and bearing its expense belongs to this Department. If our funds are not adequate 

to permit the bringing of a large-scale suit, we would ordinarily consider 

seeking an additional appropriation. While a greater amount of interim, 

or short-term, assistance might be appropriate in particular cases, there is 

probably a point at which HEW ’s assistance would constitute a circumvention on this Departm ent’s appropriation limitations.

Obviously, it is difficult to identify the proper line beyond which this Department should not go in demanding assistance from “ client” agencies. If 

HEW is unable or unwilling to provide sufficient assistance, we would be 

pleased to consider the matter further in light of the specific circumstances.

Case 2: Use, Within HEW, o f H EW Resources

(A)-(C) HEW personnel and resources could properly be

’ Clearly, a suit involving higher education or sex discrimination in education would relate 

to the statutory responsibilities o f HEW . A more general—but probably valid—basis for detailing HEW employees would be training, i.e., the benefits of learning techniques o f investigating and litigating civil rights cases.

■ See footnote 7, supra.

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used, within HEW , to assemble material regarding any aspect of 

a potential school-desegregation case. Such work could be done 

before or after a referral of the m atter to this Department.

(D) O ur opinion is the same with regard to preparing litigation material, such as pleadings and exhibits. O f course, material of this type would be subject to review by Department of 

Justice attorneys.

Case 3: Expert Witnesses

We do not construe § 209 as limiting in any way this Department’s use 

of expert witnesses. For example, an expert who is an HEW employee 

could properly express views concerning student assignment practices and 

necessary remedies, including busing. In our opinion, such statements 

would not amount to “ indirectly requiring” busing.

L a r r y A . H a m m o n d

Deputy Assistant Attorney General

Office o f Legal Counsel

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