Authority of the Special Counsel of the Merit Systems

Protection Board to Litigate and

Submit Legislation to Congress

Congress may constitutionally authorize the Special Counsel of the Merit Systems Protection 

Board to conduct any litigation in which he is interested, except litigation in which the Special 

Counsel’s position would be adverse to that taken by the United States in the same litigation. 

Such opposition would place the President in the untenable position of speaking with conflicting voices in the same lawsuit. In addition, because the Special Counsel is an Executive 

Branch officer subject to the supervision and control of the President, a grant by Congress to 

the Special Counsel o f authority to submit legislative proposals directly to Congress without 

prior review by the President would raise serious separation of powers concerns.

February 22, 1984

M e m o r a n d u m O p i n i o n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l ,

O f f i c e o f L e g i s l a t i v e A f f a i r s

This responds to your request for our views regarding the legislative recommendations of the Special Counsel of the Merit Systems Protection Board to 

permit the Special Counsel to “litigate before the courts on its behalf on any 

matter in which the Special Counsel has previously been involved,” and 

empowering the Special Counsel to “submit directly to Congress any legislative recommendations that the Special Counsel deems necessary to further 

enhance the ability of the office to perform its duties under law.” You indicated 

in your submission that your Office and the Civil Division are preparing a letter 

opposing such a grant of litigating authority to the Special Counsel. With 

respect to the Special Counsel’s desire to submit legislative recommendations 

directly to Congress, you indicated that although you have been advised that 

the Office of Management and Budget (OMB) has secured the agreement of the 

Special Counsel to conform to the OMB legislative clearance process, you seek 

our advice on the question whether Congress constitutionally may authorize 

the Special Counsel to submit legislation to Congress directly, without first 

securing the approval of OMB, the legislative clearance office for the Executive Branch.

As discussed further below, we conclude that, as a legal matter, Congress 

constitutionally may authorize the Special Counsel to conduct, or otherwise 

participate in, any litigation in which he is interested except litigation in which 

he would be taking a position that is adverse to that taken by the United States

30
in the same litigation; although, as you point out, there are numerous policy 

reasons for opposing such a grant of authority. In addition, we conclude that, 

because the Special Counsel is an Executive Branch officer subject to the 

supervision and control of the President, Congress may not grant him the 

authority to submit legislative proposals directly to Congress without prior 

review and clearance by the President, or other appropriate authority, without 

raising serious separation of powers concerns.

I. Special Counsel as an Executive Officer

We will preface our responses to the specific questions raised in your 

memorandum by first reviewing the history of the Civil Service Reform Act of 

1978, Pub. L. No. 95-454, 92 Stat. 1111, as it relates to the Special Counsel’s 

status as an Executive Branch officer, including the concerns raised by the 

Department of Justice at the time of the Act’s enactment.

The Civil Service Reform Act of 1978 was enacted to update, overhaul and 

make more efficient the federal civil service system by: (1) codifying merit 

system principles and subjecting employees who commit prohibited personnel 

practices to disciplinary action; (2) providing new protections for employees 

who disclose illegal or improper Government conduct; (3) establishing a new 

performance appraisal system and a new standard for dismissal based on 

unacceptable performance; (4) streamlining the processes for dismissing and 

disciplining federal employees; and (5) abolishing the Civil Service Commission and establishing in its stead the Office of Personnel Management within 

the Executive Branch, and an “independent Merit Systems Protection Board 

and Special Counsel to adjudicate employee appeals and protect the merit 

system.” S. Rep. No. 969, 95th Cong., 2d Sess. 2 (1978). See also H.R. Rep. 

No. 1717, 95th Cong., 2d Sess. 1 (1978).

The Act established the Merit Systems Protection Board as a bipartisan body 

of three members, to be appointed by the President with the consent of the 

Senate, and removable “only for inefficiency, neglect of duty, or malfeasance 

in office.” 5 U.S.C. §§ 1201, 1202. The Board is authorized to hear and 

adjudicate all matters within its jurisdiction, to enforce its orders against any 

federal agency or employee, to stay certain agency personnel actions, and to 

conduct special studies relating to the civil service and other merit systems 

within the Executive Branch and to issue reports thereon to the President and 

the Congress. Id. § 1205(a). In addition, the Act provided for a Special Counsel 

to the Board, to be appointed by the President, with the consent of the Senate, 

for a term of five years, and removable by the President “only for inefficiency, 

neglect of duty, or malfeasance in office.” Id. § 1204. The Special Counsel’s 

primary duties under the Act are to receive and investigate allegations of 

prohibited personnel practices, to participate in proceedings before the Board 

when such participation is warranted, and to submit an annual report to Congress on his activities, including “whatever recommendations for legislation or 

other action by Congress the Special Counsel may deem appropriate.” Id. § 1206.

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Although the legislative history of the Act suggests that Congress intended 

both the MSPB and the Special Counsel to be independent of Presidential 

supervision and control,1 this Department advised both Congress and the 

President that the bill which ultimately was enacted contained several provisions which raised very serious constitutional concerns. Those concerns focused primarily on the Act’s attempt to limit the President’s power of removal 

over the Special Counsel, whom, in view of his primarily prosecutive functions, this Office determined to be an Executive officer. Similarly, in the 

Department’s comments to OMB on the enrolled bill, we advised that Congress 

could not constitutionally limit the grounds for removal of the Special Counsel 

by the President. Thus, this Department has consistently taken the position, and 

we believe correcdy, that although the Board may function as a quasi-adjudicative independent body, the Special Counsel is an Executive officer and as such 

is subject to the President’s supervision and control. See also “Presidential 

Appointees — Removal Power,” 2 Op. O.L.C. 120 (1978).

II. Litigation Authority of the Special Coemsel

Under current law, the Special Counsel’s litigating authority is limited to 

“intervening as a matter of right] or otherwise participating] in any proceeding before the Merit Systems Protection Board.” 5 U.S.C. § 1206(i). We 

understand from your memorandum that the Special Counsel now seeks to 

expand this authority to permit him to “appear as counsel on behalf of any party 

in any civil action brought in connection with any function carried out by the 

Special Counsel pursuant to this title or any other provision of law and [to] 

initiate and prosecute on behalf of any party in any such case an appeal of the 

decision of any district court of the United States or the United States Claims 

Court in such case.”2 As you have indicated, this proposal would permit the 

Special Counsel to seek judicial review of final orders or decisions of the Merit 

Systems Protection Board, as well as to prosecute appeals of federal court 

decisions, arguably even in instances in which he was not a party to the 

proceedings before the Board.

As you are aware, this Administration, as a policy matter, has generally 

opposed any legislative proposal that would further erode the Attorney General’s 

litigating authority under 28 U.S.C. §§ 516 & 519. This opposition, shared by 

previous Administrations, is grounded in the need for centralized control of all 

government litigation. Such control furthers a number of important policy 

goals, including the presentation of uniform positions on important legal issues, the selection of test cases that would produce results most favorable to 

governmental interests, more objective handling of cases by attorneys unaf1 See, e.g., S. Rep. No. 969, 95th C ong., 2d Sess. 28-29 (1978).

2 This language is taken from the text o f S. 1662, a bill reported by the Senate Committee on Government 

Affairs on July 21, 1983, to “amend title 5, United States Code, with respect to the authority of the Special 

Counsel of the M erit System s Protection Board.” Although you have advised us that the Special Counsel has 

subm itted to the C om m ittee an alternative to S. 1662, we believe that the comments in this memorandum will 

be equally applicable to the Special C ounsel’s alternate proposal.

32
fected by an agency’s narrower concerns, and the facilitation of Presidential 

supervision over Executive Branch policies implicated in government litigation. See generally “The Attorney General’s Role as Chief Litigator for the 

United States,” 6 Op. O.L.C. 47 (1982). Thus, there are numerous policy 

grounds on which to oppose a grant of litigating authority to the Special 

Counsel.

With respect to the legal considerations relevant to the proposed legislation, 

an agency’s authority to litigate independently of the Attorney General in any 

particular circumstance generally depends on whether such authority is vested 

by statute in the agency. However, when the agency asserting such authority is 

an Executive Branch agency, constitutional issues arise if Congress has simultaneously vested litigating authority over the case in either the Attorney General or another Executive Branch officer. Those issues involve the President’s 

authority to exercise supervisory control over his subordinates so that he may 

properly discharge his constitutional obligation to “take care that the laws be 

faithfully executed,” U.S. Const, art. II, § 3, and Congress’ potential violation 

of the constitutional separation of powers by interfering with the President’s 

exercise of that authority. See Humphrey’s Executor v. United States, 295 U.S. 

602 (1935); Myers v. United States, 272 U.S. 52 (1926).

Although the Special Counsel’s legislative proposal defines his litigating 

authority so broadly as to provide no clear indication of the actual circumstances in which it could be exercised, we may assume that the Special Counsel 

would seek to initiate, or otherwise participate in, litigation in which both 

independent and Executive Branch agencies would be defending themselves 

against allegations of prohibited employment practices. In such circumstances, 

the litigating authority that would be vested in the Special Counsel pursuant to 

his proposal could not be construed constitutionally to place the President in 

the untenable position of speaking with two conflicting voices by both prosecuting and defending the same lawsuit. To permit otherwise would constitute 

an abdication by the President of his obligation to execute the laws faithfully, 

and would fall short of “that unitary and uniform execution of the laws which 

article 2 of the Constitution evidently contemplated in vesting general executive power in the President alone.” Myers v. United States, 212 U.S. at 125.3 

Thus, in litigation challenging the personnel practices of independent agencies, 

there would be no constitutional impediment to the Special Counsel’s exercise 

of statutorily vested litigating authority so long as the Attorney General or any 

other duly authorized Executive Branch officer4 has not taken a position in the

3 See also “Litigation Authority of the Equal Employment Opportunity Commission in Title VII Suits 

Against State and Local Governmental Entities,” 7 Op. O.L.C. 57 (1983).

4 Although the Attorney General is the chief legal officer for the United States, see 28 U.S.C §§ 516 & 519, 

there are circumstances in which other Executive Branch officers, subject to the supervision and control of 

the President, are authorized by statute to represent the United States in litigation See, e .g , 29 U.S.C. § 663 

(granting the Solicitor of Labor authority to bring actions under the Occupational Safety and Health Act of 

1970, “subject to the direction and control o f the Attorney General”); 49 U.S.C. § 1810(b) (granting the 

Secretary of Transportation authority to litigate imminent hazards under the Hazardous M aterials Transportation Act, or upon his request the Attorney General shall do so); 28 U.S.C. § 2348 (granting certain Executive

Continued

33
litigation on behalf of the United States that would be inconsistent with what 

the Special Counsel seeks to present. In litigation involving Executive Branch 

agencies, the Special Counsel’s litigating authority would necessarily be limited to the presentation of views which would not conflict with those presented 

on behalf of the agency.

Nor may Congress authorize the Special Counsel to do otherwise. To permit 

Congress to do so would vest an essentially executive function, performed by a 

subordinate of the President, outside of the President’s control, and thereby 

undermine the President’s authority to control subordinate officers and the 

affairs of the Executive Branch. In short, to allow Congress to vest simultaneously litigating authority over the same case in two or more subordinates of 

the President would constitute an unconstitutional interference by the Legislative Branch with Executive process, a clear violation of the separation of 

powers. See Humphrey’s Executor v. United States, 295 U.S. at 629; Myers v. 

United States, 272 U.S. at 164.5

HI. Annttlioritty of ten® Special Conmmsel to Submit Legislative

Proposals Directly to Congress

As noted in your submission, the Special Counsel has proposed legislation 

authorizing him to submit directly to Congress legislative recommendations 

that he “deems necessary to further enhance the ability of the office to perform 

its duties.”6 As discussed further below, we believe that such a statutory grant

4 (... continued)

B ranch agencies the authority to appear through their own counsel in proceedings to review orders, although 

the Attorney General "is responsible for and has control o f the interests o f the Government in all court 

proceedings under [the Act].”). See generally Report o f the Attorney General's Task Force on Litigating

Authority (Oct. 28, 1982).

5 An additional im pedim ent to the Special C ounsel's exercise of litigating authority in litigation involving 

E xecutive Branch agencies is § 1-402 of Executive Order 12146, reprinted in 28 U.S.C. § 509 note, pursuant 

to w hich the President, in the exercise o f his constitutional authority over his subordinates, has required 

E xecutive agencies “whose heads serve at the pleasure of the President” and which are unable to resolve legal 

disputes am ong them selves to “submit the dispute to the Attorney General prior to proceeding in any court” 

(em phasis added).

6 The proposal outlined in S. 1662 contains a concurrent reporting requirement:

Each year, the Special Counsel shall prepare and subm it to the President and, at the same time, 

to the appropriate committees of the Congress, a statem ent specifying estimates o f expenditures 

and proposed appropriations for the O ffice o f the Special Counsel for the fiscal year beginning on 

O ctober 1 o f the next succeeding calendar year after the calendar year in which the statement is 

subm itted and the 4 fiscal years after that fiscal year.

« « «

W henever the Special Counsel considers it appropriate to make recommendations for legislation relating to any function of the Special Counsel provided by this title in addition to the 

recom m endations for legislation set forth in the latest annual report submitted pursuant to 

subsection (m ) o f [§ 1206], the Special Counsel shall submit the recommendations to the 

President and, at the sam e time, to each House of Congress.

Section 1206(m) requires the Special Counsel to submit an annual report to Congress on his activities, 

“including the num ber, types, and disposition o f allegations o f prohibited personnel practices filed with it, 

investigations conducted by it, and actions initiated by it before the Board, as well as a description of the 

recom m endations and reports made by it to other agencies pursuant to this section and the actions taken by

Continued

34
of authority to an Executive Branch officer, if construed to require concurrent 

transmittals that would preclude Presidential review of the proposed legislative 

recommendations prior to their submission to Congress, would constitute an 

unconstitutional intrusion by the Legislative Branch into the President’s exclusive domain of supervisory authority over subordinate officials in the performance of their executive functions.7

The separation of powers principle is rooted in the Constitution’s division of 

the Government into three separate Branches and the assignment of specific 

functions thereto. Article II vests the whole of the executive power in the 

President, charging him, inter alia, to “take Care that the Laws be faithfully 

executed.” U.S. Const, art. II, § 3. This means that the President must possess 

“exclusive and illimitable power” over his subordinates as they assist him in 

discharging his constitutional obligation to execute the laws faithfully, unencumbered by interference from the coordinate Branches:

The fundamental necessity of maintaining each of the three 

general departments of government entirely free from the control or coercive influence, direct or indirect, of either of the 

others, has often been stressed and is hardly open to serious 

question. So much is implied in the very fact of the separation of 

the powers of these departments by the Constitution; and in the 

rule which recognizes their essential co-equality. The sound 

application of a principle that makes one master in his own 

house precludes him from imposing his control in the House of 

another who is master there.

6 ( .. . continued)

the agencies as a result of the reports or recommendations.'* In addition, the report “shall include whatever 

recommendations for legislation or other action by Congress the Special Counsel may deem appropriate.”

Although the Department, to our knowledge, heretofore has not had occasion to construe this particular 

provision, we have construed sim ilar provisions in the past to avoid impinging on the constitutional 

prerogatives of the Executive. See, e.g.. Statement of Attorney General Elliot Richardson (June 1973) 

(construing 5 U.S.C. § 2954, which requires Executive agencies to submit to the House or Senate Committees 

on Government Operations “any information requested of it relating to any m atter within the jurisdiction of 

the com m ittee," to grant to the pertinent committees access to only type of information that traditionally has 

been made available to Congress and that is not subject to valid claims of executive privilege); “Constitutionality of Statute Requiring Executive Agency to Report Directly to Congress," 6 Op. O.L.C. 632 (1982) 

(construing § 5 06(0 of the Tax Equity and Fiscal Responsibility Act of 1982, Pub. L No. 97-248, 96 Stat. 

324,677, which requires the Administrator to transmit certain budget information and legislative recommendations directly to Congress concurrently with their transmission to the Secretary of Transportation, the 

President or OMB, to require that only “final" budget information and legislative recommendations be sent, 

i.e., information that has been reviewed and approved by appropriate senior officials).

Thus, we would construe the Special C ounsel's existing authority pursuant to § 1206(m) to require him to 

submit only such information and legislative recommendations as have been cleared for transm ittal by OMB, 

or other appropriate reviewing authorities.

7 O f course, if such legislation were enacted, we would avoid the constitutional issue if possible, see United

States v. Rumely, 345 U.S. 41, 45 (1956), by construing it as we do § 1206(m), to authorize the Special 

Counsel to submit only “final" recommendations to Congress, i.e., those recommendations which have been 

reviewed and approved by appropriate senior officials in the Executive Branch. See also 6 Op. O.L.C. 632, 

supra.

35
H um phrey’s E xecutory. United States, 295 U.S. at 629-30. Although the rigid 

separation of powers standard first articulated in Humphrey’s Executor has 

been viewed as more flexible in subsequent decisions by the Court, in each 

subsequent articulation remains the core concern that the President retain 

effective control over all matters within the Executive Branch in order to 

discharge properly his constitutional obligation faithfully to execute the laws. 

In Buckley v. Valeo, 424 U.S. 1 (1976), the Court recognized that “a hermetic 

sealing off of the three branches of Government from one another would 

preclude the establishment of a Nation capable of governing itself effectively,” 

but it emphasized that there was a “common ground in the recognition of the 

intent of the Framers that the powers of the three great branches of the National 

Government be largely separate from one another.” 424 U.S. at 120-21. The 

Court further declared that it “has not hesitated to enforce the principle of 

separation of powers embodied in the Constitution when its application has 

proved necessary for the decision of cases or controversies properly before it.” 

Id. at 123. Most recently, the Court stated in Nixon v. Administrator o f General

Services, 433 U.S. 425, 443 (1977), that congressional enactments may not 

interfere with the Executive process unless such interference is “justified by an 

overriding need to promote objectives within the constitutional authority of 

Congress.” See generally 6 Op. O.L.C. 632, supra.

Under the above standards, we believe that to permit Congress to authorize 

or require an Executive Branch officer to submit budget information and 

legislative recommendations directly to Congress, prior to their being reviewed 

and cleared by the President or another appropriate reviewing official, would 

constitute precisely the kind of interference in the affairs of one Branch by a 

coordinate Branch which the separation of powers is intended to prevent.

The Special Counsel’s proposal would severely impair the President’s ability to perform his constitutional obligation to “recommend to [Congress’] 

Consideration such Measures as he shall judge necessary and expedient.” U.S. 

Const, art. II, § 3. As the President’s subordinate, the Special Counsel is 

obligated to make his recommendations to the President, so that the President, 

on behalf of the Executive Branch, may judge which are “necessary and 

expedient,” and thus should not interdict the process by making individual 

recommendations directly to Congress. For Congress to require the Special 

Counsel to report to it directly without such review would constitute a grave 

interference with the President’s performance of his constitutional obligation, 

as well as “irreparably damage, if not destroy, the normal exchange of views 

between agency heads and the President (through OMB) before budget submissions 

[and legislative recommendations] are finally approved.” 6 Op. O.L.C. at 641.*1

8 In addition, such an interdiction regarding budget information would violate the process through which 

the President exercises his constitutional authority to supervise the affairs of the Executive Branch in the 

perform ance o f his statutory obligation under 31 U.S.C. §§ 1104 et seq. to transmit an annual budget to 

Congress. The President has required all budget submissions to be review ed by OMB, and OMB Circular No. 

A -10 requires that

the confidential nature o f agency subm issions, requests, recommendations, supporting materials

Continued

36
By contrast, the Special Counsel has not articulated an “overriding need [of 

Congress] to promote objectives within the constitutional authority of Congress,” to justify such a significant intrusion into the Executive process and the 

President’s ability to supervise and control his subordinates. Nixon v. Administrator o f General Services, 433 U.S. at 443. Presumably, the “need” is a strong 

desire on the part of Congress to be able to evaluate the Special Counsel’s 

performance of his functions and to seek the Special Counsel’s assistance in 

developing legislation which would enhance his performance of those functions. However, in view of the fact that such information may be obtained from 

the Special Counsel after review by appropriate Executive Branch officials and be 

no less valuable to Congress, the “need” can scarcely be considered “overriding.” 

Although we do not know the precise formulation of this provision in the 

Special Counsel’s “alternative” proposal, this Office has analyzed similar 

provisions in the past and has found that, if construed literally, they would 

unconstitutionally infringe the separation of powers. In 1977, the Office commented on a bill that would establish Offices of Inspectors General in various 

Executive Branch agencies, and require the Inspectors General to submit 

certain information directly to Congress without clearance or approval by 

appropriate authorities. We stated that the bill would

make the Inspectors General subject to divided and possibly 

inconsistent obligations to the executive and legislative branches, 

in violation of the doctrine of separation of powers. In particular, the Inspector General’s obligation to keep Congress fully 

and currently informed, taken with the mandatory requirement 

that he provide any additional information or documents requested by Congress, and the condition that his reports be transmitted to Congress without executive branch clearance or approval, are inconsistent with his status as an officer in the 

executive branch, reporting to and under the general supervision 

of the head of the agency. Article II vests that executive power 

of the United States in the President. This includes general 

administrative control over those executing the laws. See Myers

v. United States, 272 U.S. 52, 163-164 (1926). The President’s 

power of control extends to the entire executive branch, and 

includes the right to coordinate and supervise all replies and 

comments from the executive branch to Congress. See Congress

Construction Corp. v. United States, 314 F.2d 527,530 532 (Ct.

Cl. 1963).

8 ( .. . continued)

and sim ilar communications should be maintained, because these documents are an integral part 

o f the decisionmaking process by which the President resolves budget issues and develops 

recommendations to the Congress . . Budgetary materials should not be disclosed in any form 

prior to transmittal by the President o f the m atenal to which it pertains. The head o f each agency 

is responsible for preventing premature disclosures of this budgetary information.

37
“Inspector General Legislation,” 1 Op. O.L.C. 16, 17 (1977). More recently, 

we advised that a provision requiring the Federal Aviation Administrator to 

transmit certain budget information and legislative recommendations directly 

to Congress at the same time that they are transmitted to the Secretary of 

Transportation, the President, or OMB would, if construed literally, unconstitutionally interfere with the Executive process and thereby violate the separation of powers. See 6 Op. O.L.C. 632, supra.

As we have concluded in the past, we now conclude that the Special Counsel’s 

proposal, which would require an Executive Branch officer, the Special Counsel, to submit confidential or deliberative information directly to Congress 

without providing an opportunity for review by a superior Executive officer, 

would interfere unduly with the President’s authority to supervise and control 

the affairs of the Executive Branch. Such legislation would effectively sever 

the Special Counsel from his superiors within the Executive Branch with 

respect to the areas of his responsibility on which he reports, and thereby make 

him an “independent agency reporting both to Congress and to the President.” 

We believe that Congress’ perceived “need” to receive legislative recommendations and other information directly from the Special Counsel without their 

first having been reviewed by his superiors within the Executive Branch cannot 

justify the infringement of the separation of powers principle that would 

necessarily result from such legislation.

Conclusion

In conclusion, we believe that the Department should continue to oppose the 

grant of litigating authority to the Special Counsel on policy grounds, and to 

raise the constitutional grounds discussed above where appropriate. In addition, we believe that the submission of legislative recommendations and other 

information by the Special Counsel directly to Congress, without prior review 

by appropriate Executive Branch officials, would violate the constitutional 

separation of powers by interfering with the Executive’s ability to supervise 

and control his subordinates in the performance of their executive functions. 

Accordingly, we believe that S. 1662, and the Special Counsel’s “alternative” 

proposal, should be opposed, and that he should be advised that, as an Executive Branch officer, his direct submissions to Congress are unauthorized.

L a r r y L . S i m m s

Deputy Assistant Attorney General

Office o f Legal Counsel

38