The Attorney General’s Authority to Represent the Roosevelt

Campobello International Park Commission

Under the international agreement creating the Roosevelt Campobello International Park 

Commission and its implementing legislation, the Attorney General may provide free 

legal representation to the Commission. However, he is under no obligation to do so, 

particularly where a conflict of interest would make questionable the appropriateness of 

such representation.

The Attorney General’s statutory obligation to “supervise and control” litigation of the 

Commission in courts of the United States does not require him to conduct such 

litigation, or retain private counsel on behalf of the Commission, any more than it 

empowers him to control access by this international body to U.S. courts. It only 

means that when the Attorney General does conduct or finance litigation of the 

Commission, he must retain supervision and control over it.

In cases where the Commission is suing an agency of the United States, it is appropriate 

for the Department to refuse the Commission’s request for representation. The Department also may withdraw from representation of the Commission that has already been 

undertaken, as long as such withdrawal is accomplished in accordance with applicable 

American Bar Association standards.

July 6, 1981

MEMORANDUM OPINION FOR TH E ASSISTANT ATTORNEY 

G EN ER A L, LAND A N D NATURAL RESOURCES DIVISION

This responds to your request for an opinion clarifying the Attorney 

General’s authority and responsibility to provide legal representation to 

the Roosevelt Campobello International Park Commission. You have 

expressed special concern about pending and prospective litigation by 

the Commission against the United States government. Our advice can 

be summarized as follows:

(1) The Attorney General is under no legal obligation to 

conduct or finance new litigation brought by or against 

the Commission.

(2) The Attorney General does have the authority, subject 

to his other responsibilities, to conduct or finance litigation on behalf of the Commission.

218
(3) The Attorney General should not attempt to prevent 

the Commission from using its own funds to sue the 

United States. However, the President may prevent the 

initiation of such suits in the future by directing the 

United States members of the Commission to vote to 

oppose suits against the United States.

(4) Subject to the terms of any binding contractual commitments, the Department may withdraw from financing 

the Commission’s pending litigation against the United 

States, but we recommend that it not do so without 

taking reasonable steps to avoid prejudice to the Commission.

Discussion

The Roosevelt Campobello International Park Commission was established pursuant to an agreement between the United States and 

Canada to administer the estate once owned by President Franklin 

Roosevelt as an international park. Agreement Between the Government of the United States of America and the Government of Canada 

Relating to the Establishment of the Roosevelt Campobello International Park, Jan. 22, 1964, United States-Canada, 15 U.S.T. 1504, 

T.I.A.S. No. 5631 (1964) [hereinafter cited as Agreement]. The Agreement provides that the Commission shall be composed of six members, 

three Americans and three Canadians, and that the affirmative vote of 

at least two members from each country is required for any decision to 

be taken by the Commission. Agreement, Art. 3, at 1505. It also 

provides that the Commission shall have “juridical personality and all 

powers and capacity necessary or appropriate for the purpose of performing its functions” including the powers and capacity to “sue or be 

sued in either Canada or the United States.” Agreement, Art. 2, at 

1505. In addition, the Agreement provides that the costs of operating 

and maintaining the Park shall be shared equally by the governments of 

the United States and Canada Agreement, Art. 11, at 1507, and that 

“arrangements” may be made with the competent agencies of both 

governments for rendering, without reimbursement, such services as the 

Commission may request for the orderly development, maintenance and 

operation of the Park. Agreement, Art. 9, at 1507.

The legislation implementing the Agreement which was adopted by 

Congress reiterates the essence of the Agreement. 16 U.S.C. §§ 1101- 

1113. Among other things, it provides that the American members of 

the Commission shall be appointed by the President and hold office at 

his pleasure. 16 U.S.C. § 1104(a). The “functions” of the Commission 

are to accept title to the estate, to take the measures necessary to 

restore the property to its original condition, and “to administer” the 

Park “as a memorial.” 16 U.S.C. § 1102. In describing the powers of

219
the Commission, the statute provides that the Commission shall have 

“juridical personality and all powers and capacity necessary or appropriate for the purpose of performing its functions” including the power 

and capacity

to sue or be sued, complain and defend, implead and be 

impleaded, in any United States district court. In such

suits, the Attorney General shall supervise and control the

litigation.

16 U.S.C. § 1103(c) (emphasis added).1 The statute also enumerates the 

Commission’s power

to obtain without reimbursements, for use either in the 

United States or Canada, legal, engineering, architectural, 

accounting, financial, maintenance, and other services, 

whether by assignment, detail, or otherwise, from competent agencies in the United States or in Canada, by arrangements with such agencies.

16 U.S.C. § 11030)- I*1 recognition of this government’s responsibility to 

share equally in the costs of developing and operating the Park, the 

statute also authorizes the appropriation of such sums as may be necessary to fulfill our obligations under the Agreement. 16 U.S.C. § 1113.2

Obligation and authority to provide legal services. Both the Agreement 

and the United States legislation contemplate that the Commission may 

make “arrangements” with United States agencies for free services, and 

the statute makes it plain that legal services are among the types of free 

services contemplated. See 16 U.S.C. § 1103(j). We do not believe that 

the statute imposes an obligation on any agency of the United States to 

provide free legal services to the Commission, particularly in litigation 

against the United States. Although we recognize an intention in these 

provisions that government agencies cooperate with the Commission 

when feasible, we do not believe that § 1103(j) or the Agreement 

should be read to create an obligation for agencies of either government to satisfy every request of the Commission.3 Rather, we read 

these provisions as a grant of authority to government agencies to 

cooperate with the Commission and as an endorsement of such co1 The italicized language is a substantive addition to the parallel provision in the Agreement. The 

Canadian implementing legislation does not contain a similar provision requiring supervision or control 

of Commission litigation in Canada. Roosevelt Campobello International Park Commission Act, 1964, 

ch. 19, 1964-65 Can. Stat. 135.

2 There have been annual appropriations to the Department of the Interior for this purpose. See

Pub. L. No. 96-514, 94 Stat 2957; Pub. L No. 96-126, 93 Stat. 954; Pub. L. No. 95-465, 92 Stat. 1279; 

Pub. L. No. 95-74, 91 Stat. 285; Pub. L. No. 94-373, 90 Stat. 1043; Pub. L. No. 94-165, 89 Stat. 977; 

Pub. L. No. 93-120, 87 Stat. 429.

3 The statement of C P. Montgomery, Assistant Director, National Park Service, Department of the 

Interior, before the Senate Foreign Relations Committee, supports our view that these provisions 

should be read to authorize “cooperation’* from United States agencies. See S. Rep No. 1097, 88th 

Cong., 2d Sess., 9 (1964)

220
operation, whenever such agencies, in the exercise of their discretion, 

believe that such cooperation is lawful and otherwise appropriate.4

Similarly, we do not find an obligation to represent the Commission 

in the language of § 1102(c) of the statute concerning the Attorney 

General’s supervision and control of Commission litigation. As we see 

it, the supervision and control of litigation is not necessarily the same as 

actually conducting the litigation. Although the two functions may be 

performed by the same person or entity, this need not be the case. In 

the private sector, for example, it is not uncommon for the general 

counsel of a corporation to supervise and control corporate litigation, 

while outside counsel actually conducts the litigation. In the government context, the authority to conduct and to supervise litigation is 

separately delineated, see 28 U.S.C. §§ 516, 519, although both functions 

most frequently reside in the Department of Justice. There are situations, however, where Congress has given another Department the 

authority to conduct litigation, subject to the supervision and control of 

the Attorney General. See, e.g., 42 U.S.C. §§ 717l(i), 7192(c) (involving 

Department of Energy litigation). In light of this distinction, we are 

persuaded that Congress would have used different, and more explicit, 

language in § 1102(c) if it intended to require the Attorney General to 

conduct litigation or retain private counsel on behalf of the Commission.

Having concluded that § 1102(c) does not create an obligation to 

conduct litigation for the Commission, we must nonetheless ascribe 

some intended meaning to the mandate to “supervise and control” the 

Commission’s litigation. Reading broadly, the term could imply that the 

Attorney General may prevent the Commission from asserting particular positions or that he may deny the Commission access to federal 

district courts altogether.5 Such a construction, however, would give 

this government more unilateral power than can be found in the Agreement 6 and would tend to conflict with Article 2 of the Agreement 

which provides that the Commission shall have “juridical personality” 

and be empowered to “sue and be sued” in United States district 

courts.

4 As we indicated in our October 10, 1978, opinion regarding the representation of Campobello, the 

Attorney General's authority to conduct litigation includes the authority to retain private counsel at 

government expense when a conflict of interest prevents direct representation

5 We have not been asked to consider whether the particular litigation in which the Commission is 

now engaged is “necessary or appropriate for the purpose of performing its functions." 16 U.S.C. 

§ 1103. Of course, this government may express its views on that question through its representatives 

on the Commission.

6 Under the Agreement, the power of one government to control the positions of the Commission 

lies in the exercise of its voting rights. See Article 3. Since the United States members of the 

Commission serve at the pleasure of the President, the President could prevent the problem of 

litigation against the United States by directing the United States members to vote against the 

initiation of such suits. However, once begun, the United States vote would not be sufficient to 

terminate the litigation without the support of two Canadian votes

221
It is an established principle of construction that a statute will not be 

read to modify or abrogate obligations under an international agreement 

without a clear expression by Congress that such was its purpose. See

Cook v. United States, 288 U.S. 102 (1933). Thus, without a clear 

expression by Congress that the United States enabling legislation was 

intended to modify the international Agreement by giving a single 

United States official the power to limit the Commission’s access to the 

United States courts, we would be disinclined to read § 1103(c) to 

confer that power. Since nothing in the enabling legislation or its 

legislative history indicates such an intent,7 a more narrow construction 

o f the term “supervise and control” seems appropriate.

As mentioned previously, Congress clearly anticipated that the Commission could arrange for free legal services from the Justice Department. We think that § 1103 should be read to mean that when the 

United States government does provide representation for the Commission in federal court, the Attorney General must maintain control of 

that litigation. Supervision and control of the litigation in these circumstances would be essential to maintain the integrity of the government’s 

legal position before the federal courts. Section 1103 may also be read 

to require that among federal agencies, only the Justice Department 

may conduct litigation for the Commission.

In sum, we conclude that neither the international agreement nor the 

implementing legislation require the Department of Justice to provide 

legal services to the Commission. In cases where the Commission is 

suing an agency of the United States, it is especially appropriate for the 

Department to refuse the Commission’s request for representation. Furthermore, in light of our conclusion that there is no underlying obligation to provide representation, we believe that the Department also 

may withdraw its personnel or funds from representation of the Commission that has already been undertaken. However, as discussed below, 

the Department should ensure that any withdrawal is accomplished in 

an appropriate and reasonable manner.

Withdrawal from litigation. The Justice Department applies the Code 

o f Professional Responsibility of the American Bar Association (ABA 

Code) to its legal activities and personnel. See 28 CFR 45.735-l(b). The 

Code generally discourages lawyers from withdrawing from employment absent good cause. See ABA Code DR 2 -110(C). We believe that 

the Department can make a showing of good cause for withdrawal 

under DR 2-110(C)(6) at least with respect to Commission litigation 

that involves the assertion of positions that are contrary to those of the 

United States, for which Congress has made no specific appropriation 

to retain private counsel. This position would be enhanced in cases 

where the litigation may be arguably beyond the scope of the Commis7 The legislative history gives virtually no attention to the question of litigation authority or the 

extent of the Attorney General’s mandate to “supervise and control” Commission litigation.

222
sion’s responsibilities. Although the ABA standards may not be applicable to a situation where the Department wants to withdraw from 

financing rather than conducting Commission litigation, we would 

nonetheless advise you to use the good cause standard as a guide for 

your conduct in this situation. Cf. ABA Code DR 5 -107(B) (involving 

the influence of professional services by third parties who pay legal fees 

on behalf of the client).

Should you determine that there is good cause and that it is otherwise appropriate 8 to withdraw from representing the Commission in a 

given case, the ABA Code provides guidance on the manner of withdrawal. DR 2-110(A)(2) provides that

[A] lawyer shall not withdraw from employment until he 

has taken reasonable steps to avoid foreseeable prejudice 

to the rights of his client, including giving due notice to 

his client, allowing time for employment of other counsel, 

delivering to the client all papers and property to which 

the client is entitled, and complying with applicable laws 

and rules.

We are aware from the materials you provided that the Department 

has entered into “contracts” and exchanged other correspondence with 

counsel retained on behalf of the Commission. It does not appear, from 

our quick review of these materials, that there could be any construction of these “contracts” that would bind the Department to pay the 

private lawyer beyond the monetary ceiling set for the particular 

matter or the end of the fiscal year—whichever occurs sooner. However, we think that you are in a better position to assess the Department’s “contractual” obligations as an initial matter. In any event, in 

light of our other advice, you may not be prepared to withdraw 

financial support for the employment of private counsel in particular 

cases before the end of this fiscal year. Accordingly, we have not 

addressed the contractual issue at this time. If it becomes necessary to 

do this in the future, we would be pleased to assist you.

T h e o d o r e B. O l so n

Assistant Attorney General

Office o f Legal Counsel

8 It may be advisable as a matter of policy to consult with the State Department and the National 

Park Service before undertaking a withdrawal from Commission litigation.

223