September 11, 1979

79-66 MEMORANDUM OPINION FOR THE ACTING

ASSISTANT ATTORNEY GENERAL, CIVIL

DIVISION

Merit Systems Protection Board—Litigating

Authority (5 U.S.C. § 1205)

This responds to Assistant Attorney General Babcock’s May 10, 1979, 

request for our views concerning the scope of litigating authority given the 

Merit Systems Protection Board under the Civil Service Reform Act, 

§ 202(a), 92 Stat. 1111, 5 U.S.C. § 1205(h) (Supp. II, 1978). The relevant 

portion of that subsection of the Act provides:

Except as provided in section 518 of title 28, relating to litigation 

before the Supreme Court, attorneys designated by the Chairman of the Board may appear for the Board, and represent the 

Board, in any civil action brought in connection with any function carried out by the Board pursuant to this title or as otherwise 

authorized by law.

We are asked whether that subsection, despite its broad language, might 

properly be interpreted to allow the Board to represent itself only where 

the Board takes a legal position in litigation adverse to that of another 

Federal agency. We have reviewed the statute and its legislative history 

and conclude that the provision granting litigating authority to the Board 

must be read more expansively, in accordance with its plain meaning.

The congressional grant of litigating authority to the Board had its 

origins in § 202(a) of the Senate bill, S. 2640. The House bill, H. 11280, 

contained no comparable provision. The only discussion of the litigating 

authority provision that we have found in the reports and floor debates on 

the Reform Act appears in the report o f the Senate Governmental Affairs 

Committee, S. Rept. No. 969, 95th Cong., 2d sess. (1978). That report 

states that:

[t]he Board is to be represented by its own attorneys whenever 

the Board is a party to any proceeding in court, except that the 

Board is to be represented by the Solicitor General of the United

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States in any proceeding before the Supreme Court. This will include instances where the Board is involved in court proceedings 

under any provision of this title, including defending disciplinary 

actions * * * intervening in appellate proceedings * * * or 

any enforcement actions * * *. [Id., at 31.]

That history provides no readily apparent basis for interpreting the words 

of § 202(a) more restrictively than they appear on their face.

The report adds, moreover, that the statutory grant of litigating 

authority to the Board is consistent with similar provisions adopted for independent commissions such as the Federal Energy Regulatory Commission (FERC). In the conference report on the Energy Organization Act, 

Pub. L. No. 95-91 91 Stat. 565, which established the FERC, the litigating 

authority given that body was explained as follows:

The Senate bill provided that the Board may appoint its own attorneys to represent itself in any civil action, except in the case of 

litigation before the Supreme Court * * * .

The comparable House provision slated that the litigation by 

the Commission shall not be subject to the supervision of the A ttorney General * * * . It provided no exception in the case of 

litigation before the Supreme Court * * * .

The conferees adopted the Senate provision. The conferees do 

not contemplate that this authority will be employed to litigate 

independently of the Department of Justice in cases arising under 

administrative statutes that apply government wide, such as the 

Freedom of Information Act or the Privacy Act of 1974. [H. 

Conf. Rept. 539, 95th Cong., 1st sess. 72 (1977).]

This explanation of a litigating authority provision nearly identical to that 

of the Board indicates fairly clearly that Congress did not intend to limit 

the grant of authority to situations in which Federal agencies take inconsistent legal views.*

A grant of broad litigating authority to the Board is consistent generally 

with the structure contemplated for this entity by Congress in the Reform 

Act. The Civil Service Commission was divided into two separate agencies, the Office of Personnel Management and the Merit Systems Protection Board. While the senior officials of OPM , like their predecessors with 

the Commission, serve at the pleasure of the President, the members of the 

Board were given an extra degree of independence from the President. 

Those members may only be removed for cause. 5 U.S.C. § 1202(d) (Supp. 

II, 1978). This kind of statutorily created independence is common where

•We wish to add a cautionary note with respcct to the last sentence of that FERC history. 

The suggestion that an agency granted broad litigating powers must nonetheless turn to the 

Department of Justice for representation on matters arising under statutes applicable 

Government-wide is an unusual one, and one that we have not considered previously. In 

quoting the FERC history we therefore do not mean to express any view as to the import of 

the sentence.

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an agency is charged with the performance of quasi-judicial functions. 

See, Myers v. United States, 272 U.S. 52 (1926); Humphrey’s Executor v. 

United States, 295 U.S. 602 (1935). It is likewise common for such entities 

to exercise independent litigating authority—e.g., 15 U.S.C. § 56 (litigation by the Federal Trade Commission). Nothing in the language or 

history of the statute establishing this particular Board suggests that Congress intended a different arrangement here.

Thus, since the language of § 202(a) is clear and its legislative history 

supplies no evidence that Congress understood that language to have other 

than its plain meaning, we believe that the provision should be interpreted 

literally. We conclude, as provided in that subsection, that the Chairman 

of the Merit Systems Protection Board may designate attorneys to represent the Board in any civil action brought in connection with Board functions or as otherwise authorized by law. O f course, should questions concerning the scope of the Board’s litigating authority arise in the contest of 

specific litigation, we would be happy to look into those questions for you.

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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