b'Eligibility of Citizens o f Freely Associated States for HUD\nFinancial Assistance\nT h e S ecretary o f H ousing and Urban D evelopm ent m ay n ot m ake financial assistance, including assist\xc2\xad\nan ce u n d er sectio n 8 o f the United S ta te s H ousing A ct o f 1937, available fo r the benefit o f citizens\no f the F re ely A sso ciated States (Federated S tates o f M icronesia, M arshall Islands, R epublic o f\nP alau) w h o h av e en tered the T erritory o f G uam and the C om m onw ealth o f the Northern M ariana\nIslan d s as n o n -im m ig ran ts pursuant to section 141 o f the C om pact o f Free A ssociation.\n\nMarch 7, 1996\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nD e p a r t m e n t o f H o u s in g a n d U r b a n D e v e l o p m e n t\n\nI am replying to your letter of October 3, 1995, in which you inquire whether\nsection 214 of the Housing and Community Development Act of 1980 (codified\nas amended at 42 U.S.C. \xc2\xa7 1436a) (\xe2\x80\x9c section 214\xe2\x80\x9d ) precludes the Secretary of\nHousing and Urban Development from making financial assistance under section\n8 of the United States Housing Act of 1937 available for the benefit of citizens\nof the Freely Associated States (Federated States of Micronesia, Marshall Islands,\nRepublic of Palau) who are present in the Territory of Guam and the Common\xc2\xad\nwealth of the Northern Mariana Islands pursuant to section 141 of the Compact\nof Free Association. We conclude that it does.\n\nI.\nSection 8 of the United States Housing Act of 1937, 42 U.S.C. \xc2\xa7 1437f, provides\nfor low-income housing assistance.1 The basic statutory plan is that the Depart\xc2\xad\nment of Housing and Urban Development (\xe2\x80\x9c HUD\xe2\x80\x9d ) enters into agreements with\nproperty owners establishing a \xe2\x80\x9c contract rent.\xe2\x80\x9d Low-income tenants pay one-third\nof their monthly income toward that contract rent, and HUD pays the balance.\nSection 214 of the Housing and Community Development Act of 1980, as\namended by section 329(a) of the Omnibus Budget Reconciliation Act of 1981,\nprovides in substance that the Secretary may not make financial assistance, includ\xc2\xad\ning financial assistance under the United States Housing Act of 1937, available\nfor the benefit of any alien, unless that alien is a resident of the United States\nand comes within several specified categories, comprising in particular aliens law\xc2\xad\nfully admitted for permanent residence and certain aliens whose presence in the\nUnited States is authorized by specific provisions of the Immigration and Nation\xc2\xad\nality Act. 42 U.S.C. \xc2\xa7 1436a(a), (b). Section 214(a)(1) specifically prohibits mak\xc2\xad\n1 Section 8 was enacted as a part of title II of the Housing and Community Development Act o f 1974, Pub.\nL. No. 9 3 -3 8 3 , 88 Stat. 633, 653, which revised the Housing A ct o f 1937. According to section 201 o f the 1974\nAct, title II may be cited as \xe2\x80\x9c U nited States Housing Act o f 1937.\xe2\x80\x9d\n\n116\n\n\x0cEligibility o f Citizens o f Freely Associated States fo r HUD Financial Assistance\n\ning financial assistance available to \xe2\x80\x9c alien visitors, tourists, diplomats and students\nwho enter the United States temporarily with no intention of abandoning their\nresidence in a foreign country.\xe2\x80\x9d 2 42 U.S.C. \xc2\xa7 1436a(a)(l).\nSection 141 of the Compact of Free Association, Pub. L. No. 99-239, 99 Stat.\n1770, 1804 (1986) (Marshall Islands and Federated States of Micronesia) and Pub.\nL. No. 99-658, 100 Stat. 3672, 3682 (1986) (Palau),3 provides in effect that citi\xc2\xad\nzens of the Freely Associated States may enter, lawfully engage in occupations\nand establish residence as nonimmigrants in the United States and its territories\nwithout having to comply with certain passport, visa, and labor certification re\xc2\xad\nquirements. Such persons are deemed to have the permission of the Attorney Gen\xc2\xad\neral to accept employment in the United States. On the other hand, the right of\nsuch persons to establish habitual residence in a territory or possession may be\nsubjected to limitations. Section 141 does not confer on the citizens of the Freely\nAssociated States the right to establish a residence for the purpose of naturaliza\xc2\xad\ntion.\nII.\nSection 214 precludes the Secretary from making financial assistance, including\nbenefits under the Housing Act, available for the benefit of any alien unless the\nalien is a resident of the United States and falls within one of the following six\nspecified categories:\n(1) an alien lawfully admitted for permanent residence as an immi\xc2\xad\ngrant as defined by section 1101 (a)( 15) and (20) of title 8 exclud\xc2\xad\ning, among others, alien visitors, tourists, diplomats, and students\nwho enter the United States temporarily with no intention of aban\xc2\xad\ndoning their residence in a foreign country;\n(2) an alien who entered the United States prior to June 30, 1948,\nor such subsequent date as is enacted by law, has continuously\nmaintained his or her residence in the United States since then, and\nis not ineligible for citizenship, but who is deemed to be lawfully\nadmitted for permanent residence as a result of an exercise of dis\xc2\xad\ncretion by the Attorney General pursuant to section 1259 of title\n8;\n(3) an alien who is lawfully present in the United States pursuant\nto an admission under section 1157 of title 8 or pursuant to the\n2 In the original 1980 version o f section 214(a) the prohibition was limited to foreign students. See 42 U.S.C.\n\xc2\xa7 1436a(a) (Supp. IV 1980).\n3 W e shall refer collectively to the Compacts o f Free Association as \xe2\x80\x9c the Com pact.\xe2\x80\x9d They became effective as\nfollows: Marshall islands, O ctober 21, 1986, Federated States o f Micronesia, November 3, 1986, Proclamation No.\n5564, 3 C.F.R. 146 (1987), reprinted in 48 U.S.C. \xc2\xa7 1801 note (1994); Republic o f Palau, October 1, 1994, Proclama\xc2\xad\ntion No. 6726, 3 C.F.R. 104 (1995).\n\n117\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\ngranting of asylum (which has not been terminated) under section\n1158 of title 8;\n(4) an alien who is lawfully present in the United States as a result\nof an exercise of discretion by the Attorney General for emergent\nreasons or reasons deemed strictly in the public interest pursuant\nto section 1182(d)(5) of title 8;\n(5) an alien who is lawfully present in the United States as a result\nof the Attorney General\xe2\x80\x99s withholding deportation pursuant to sec\xc2\xad\ntion 1253(h) of title 8; or\n(6) an alien lawfully admitted for temporary or permanent residence\nunder section 1255a of title 8.\n42 U.S.C. \xc2\xa71436a(a).\nAs a textual matter, none of the exceptions to section 214\xe2\x80\x99s prohibition on finan\xc2\xad\ncial assistance covers citizens o f the Freely Associated States who are present\nin the United States pursuant to section 141 of the Compact. The exceptions enu\xc2\xad\nmerated in subsections (2) through (6) all involve action by the Attorney General\nwith respect to individuals and groups; thus, these subsections do not apply to\ncitizens of the Freely Associated States who are present in the United States pursu\xc2\xad\nant to section 141 of the Compact. Read literally, the exception enumerated in\nsubsection (1) is also inapplicable. It covers \xe2\x80\x9c alien[s] lawfully admitted for perma\xc2\xad\nnent residence as . . . immigrants],\xe2\x80\x9d while section 141 of the Compact guaran\xc2\xad\ntees citizens of the Freely Associated States the right to \xe2\x80\x9c establish residence as\n. . . nonimmigrant[s].\xe2\x80\x9d\nCongress\xe2\x80\x99s intent in enacting statutes is of course not always served by wooden\ninterpretations of statutory texts, and we realize that arguments can be made that\nsection 214 should not be read to exclude persons present in the United States\nunder section 141 of the Compact. The scope of subsections (1) through (6) argu\xc2\xad\nably suggests that Congress\xe2\x80\x99s intent in carving out exceptions to section 214\xe2\x80\x99s\nprohibition was to permit the Secretary as a general matter to provide financial\nassistance to aliens who are lawful residents of the United States. Citizens of\nthe Freely Associated States are entitled under section 141 of the Compact to\n\xe2\x80\x9c establish residence\xe2\x80\x9d for an indefinite period or permanently, and when they do\nso they clearly have been \xe2\x80\x9c lawfully admitted\xe2\x80\x9d in many senses of that expression.4\nFurthermore, we note that the legislative history of section 214, and of the bills\nfrom which it is derived, include many statements to the effect that the legislation\nwas designed to deny assistance for the benefit of illegal alien s.5 Individuals re\xc2\xad\n4 U nder section 141(b) o f the Compact, the right o f citizens o f the Freely Associated States \xe2\x80\x9c to establish habitual\nresidence in a territory o r possession o f the United S tates" may be limited by federal or (where authorized by\nCongress) territorial legislation. W e are not aw are that any such limitations have been enacted.\n*See S. Rep. No. 9 7 -8 7 , at 34 (1981); S. Rep. No. 97-139, at 235 (1981), reprinted in 1981 U.S.C.C.A.N. 396,\n531; H.R. Rep. No. 97-158, at 137 (1981) and the statements on the floor of the Senate o f Senators Armstrong\nand G am and at 127 Cong. Rec. 7912 and 13,608 (1981). See also Housing and Community Development Amend\xc2\xad\n\nments o f 1981: Hearings on S. 1022 and S. 1074 Before the Subcomm. on Housing and Urban Affairs o f the Senate\n\n118\n\n\x0cEligibility o f Citizens o f Freely Associated States fo r HUD Financial Assistance\n\nsiding in the United States under section 141 of the Compact are not present\n\xe2\x80\x9c illegally\xe2\x80\x9d as that term is used in ordinary English.\nAlthough these arguments are not without force, we conclude that in the end\nthey do not overcome the specificity of the statutory text. While the principle\nexpressio unius est exclusio alterius is by no means an invariably accurate guide\nto statutory construction, in this case we believe that it supports what is in any\ncase the most natural reading of the statute\xe2\x80\x99s language. Section 214 places a blan\xc2\xad\nket prohibition on HUD financial assistance to aliens and then enumerates specific\nexceptions to that prohibition. Nothing in the language of any of the exceptions\nsuggests that one of them is intended to be a catchall covering other, related cat\xc2\xad\negories of persons, while the detail with which Congress described the exceptions\nto the general prohibition points to the conclusion that Congress intended to define\nwith precision the exceptions it was creating to the general rule.\nThe argument that the text and legislative history show that Congress could\nnot have meant to deny HUD benefits to aliens whose presence in this country\nis not \xe2\x80\x9c illegal,\xe2\x80\x9d furthermore, ignores the fact that Congress expressly stated that\nan open-ended list of legally-present aliens are covered by the section 214 prohibi\xc2\xad\ntion. See 42 U.S.C. \xc2\xa7 1436a(a)(l) (noting that the provision covers \xe2\x80\x9c among others ,\nalien visitors, tourists, diplomats, and students who enter the United States tempo\xc2\xad\nrarily with no intention of abandoning their residence in a foreign country\xe2\x80\x9d ) (em\xc2\xad\nphasis added).6\nThe Government of the Federated States of Micronesia, one of the Freely Asso\xc2\xad\nciated States, argues that applying section 214\xe2\x80\x99s prohibition to citizens of the Free\xc2\xad\nly Associated States would violate section 172(a) of the Compact which provides:\n(a) Every citizen of [Palau,] the Marshall Islands or the Federated\nStates of Micronesia who is not a resident of the United States shall\nenjoy the rights and remedies under the laws of the United States\nenjoyed by any non-resident alien.\nSection 172(a), however, does not appear to apply in the present context. Section\n172(a) concerns the rights of citizens of the Freely Associated States who do not\nreside in the United States and requires that their rights under United States law\nbe equal to those enjoyed by any other non-resident alien. Aliens not residing\nin the United States cannot receive HUD financial benefits, see 42 U.S.C.\n\xc2\xa7 1436a(a) (HUD assistance prohibited unless the \xe2\x80\x9c alien is a resident\xe2\x80\x9d ), and thus\nthe application of section 214 to bar assistance to Freely Associated States citizens\ndoes not treat them less favorably than other non-resident aliens.\nComm, on Banking, Housing, and Urban Affairs, 97th Cong. 443 (1981) (Statement of Sen. Armstrong); id. at\n508 (Statement o f Henry Eschwege, a witness from the General Accounting Office).\n6 The quoted language undercuts any claim that the references to \xe2\x80\x9c illegal aliens\xe2\x80\x9d in the legislative history dem \xc2\xad\nonstrate that the statutory prohibition is limited to persons whose presence in the United States is contrary to United\nStates law.\n\n119\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe conclusion that in the several states section 214 bars HUD financial assist\xc2\xad\nance to citizens of the Freely Associated States who have entered the United States\npursuant to section 141 of the Compact seems harsh, and is perhaps anomalous\nin light of Congress\xe2\x80\x99s exclusion from the section 214 ban of most other categories\nof aliens who may lawfully remain within the United States indefinitely. However,\nwe do not think that this conclusion leads to the sort of \xe2\x80\x9c \xe2\x80\x98absurd or futile results\n. . . plainly at variance with the policy of the legislation as a whole,\xe2\x80\x99 \xe2\x80\x9d Pauley\nv. B ethenergy Mines, Inc. 501 U.S. 680, 704 (1991) (citation omitted), that would\njustify a departure from the apparent meaning of the statutory text. The \xe2\x80\x9c policy\nof [section 214] as a whole\xe2\x80\x9d is to deny certain benefits to aliens as a general\nrule, while specifying exceptions to that rule. Citizens of the Freely Associated\nStates whose residence in the United States rests on section 141 of the Compact\nare not within any of the specified exceptions and thus are subject to the general\nrule.\nII.\nOur general conclusion in part I does not in itself resolve the question of section\n214\xe2\x80\x99s application to citizens of the Freely Associated States present in Guam and\nthe Commonwealth of the Northern Mariana Islands.\nGuam. Section 3(b)(7) of the United States Housing Act of 1937 defines the term\n\n\xe2\x80\x9c State\xe2\x80\x9d as follows:\nThe term \xe2\x80\x9c State\xe2\x80\x9d includes the several States, the District of Colum\xc2\xad\nbia, the Commonwealth of Puerto Rico, the territories and posses\xc2\xad\nsions of the United States, the Trust Territory of the Pacific Islands,\nand Indian tribes.\n4 2 \'U.S.C. \xc2\xa7 1437a(b)(7). This definition indicates that Congress intended that the\nUnited States Housing Act, including section 8, apply to the area set forth in\nthat definition. Since Guam is a territory of the United States, see section 3 of\nthe Organic Act of Guam, 48 U.S.C. \xc2\xa7 1421a, section 8 of the United States Hous\xc2\xad\ning Act applies to Guam.\nSection 214, on the other hand, does not contain a definition of its geographic\nscope, and does not provide specifically that its prohibition on financial assistance\nextends to aliens living in a territory. Nevertheless, it is our conclusion that the\ngeographic reach of section 214 is coextensive with that of the Housing Act. This\nconclusion is based on three considerations. First, the text of section 214 does\nnot draw any distinction between aliens located in the states and those located\nin the territories. Second, we have not discovered any other indication of a con\xc2\xad\ngressional intent to draw such a distinction. Third, section 214 incorporates by\n120\n\n\x0cEligibility o f Citizens o f Freely Associated States fo r HUD Financial Assistance\n\nreference the Housing Act of 1937. See 42 U.S.C. \xc2\xa7 1436a(b)(l). Consequently,\nin the absence of any showing to the contrary, the geographic coverage of section\n214 is the same as that of the statute which it incorporates. The prohibition of\nsection 214 thus applies to assistance benefiting aliens residing in Guam.\nThe Commonwealth o f the Northern Mariana Islands. The Commonwealth of the\nNorthern Mariana Islands (\xe2\x80\x9c CNMI\xe2\x80\x9d ) is a territory of the United States, but deter\xc2\xad\nmining whether a federal law applies to the CNMI requires a different analysis\nfrom that which is applied to Guam.\nIn 1974, when section 8 of the Housing Act was enacted, the Northern Mariana\nIslands were a District of the Trust Territory of the Pacific Islands. Section 8\nthus was applicable to the Northern Mariana Islands pursuant to section 3(b)(7)\nof the Housing Act of 1974.7\nIn 1976, the United StateS and the Northern Mariana Islands concluded a Cov\xc2\xad\nenant to establish the Commonwealth of the Northern Mariana Islands under the\nsovereignty of the United States. Pub. L. No. 94-241, 90 Stat. 263 (1976) (codi\xc2\xad\nfied as amended at 48 U.S.C. \xc2\xa7 1801 note (1994)). The Covenant became effective\nin relevant part in 1978. Section 502(a) of the Covenant was designed \xe2\x80\x9c to provide\na workable body of law when the new government of the Northern Mariana Is\xc2\xad\nlands becomes operative.\xe2\x80\x9d S. Rep. No. 94-433, at 76 (1975).8 Section 502(a)\nprovides in relevant part that the laws that provide federal services and financial\nassistance programs, as they apply to Guam, that are in existence on the effective\ndate of section 502,9 and subsequent amendments to such laws, apply to the\nCNMI, to the same extent that they apply to Guam. Section 8 of the United States\nHousing Act thus is applicable to the CNMI under section 502(a)(1) because it\nprovides financial assistance and was applicable to Guam on January 9, 1978.10\nAlthough section 214 was enacted after section 502(a) became effective, it is ap\xc2\xad\nplicable to the CNMI because it is a subsequent amendment to the Housing A ct.11\n7 The authority o f Congress to enact legislation applicable to the Trust Territory was based on article 3 o f the\nTrusteeship Agreement o f July 18, 1947, pursuant to which the United States could\napply to the trust territory, subject to any modifications which the administering authority may consider\ndesirable, such o f the laws o f the United States as it may deem appropriate to local conditions and requirements.\nTrusteeship Agreement for the Former Japanese Mandated Islands, July 18, 1947, art. 3, 61 Stat. 3301, 3302, 8\nU.N.T.S. 189, 192.\n8 It should be noted, however, that section 502 deals only with the original introduction o f federal law to CNMI.\nSubsequent congressional legislation applicable to the CNMI is governed by section 105.\n\xe2\x80\x99 Section 502(a) became effective on January 9, 1978. Proclamation No. 4534, 3 C.F.R. 56 (1978), reprinted\nin 48 U.S.C. \xc2\xa7 1801 note (1994).\n10This conclusion does not change even if we assume that section 8 o f the Housing Act is not a law providing\nfinancial assistance within the meaning o f section 502(a)(1). Section 502(a)(2) renders applicable other federal laws\n\xe2\x80\x9c which are applicable to Guam and which are o f general application to the several States as they are applicable\nto the several States.** Section 8 would then be applicable to the CNM I as a law applicable to Guam which is\no f general application to the States.\n11 Under section 503(a) o f the Covenant, the immigration and naturalization laws of the United States are not\nat present applicable to the CNMI. However section 503(a) does not render inapplicable to the CNMI all federal\nlegislation that somehow affects aliens, but only those statutes that relate to the immigration o f aliens and related\nContinued\n\n121\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nIII.\nConstruing section 214 to apply to citizens of the Freely Associated States\npresent in the United States is arguably in tension with the express exception\nof most other categories of lawful alien residents from section 214\xe2\x80\x99s scope. How\xc2\xad\never, we do not think that this tension is sufficient to overcome the plain meaning\nof the statutory text, and we do not believe that the legislative history of which\nwe are aware permits a departure from the text. If the text of section 214 does\nnot reflect Congress\xe2\x80\x99s wishes, the remedy is legislative. We therefore conclude\nthat the Secretary may not make financial assistance, including assistance under\nsection 8 of the United States Housing Act of 1937, available for the benefit\nof citizens of the Freely Associated States who have entered Guam or the Com\xc2\xad\nmonwealth of the Northern Mariana Islands as non-immigrants pursuant to section\n141 of the Compact of Free Association.\nH.\n\nJEFFERSON POWELL\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\nissues such as the exclusion and deportation o f aliens. To the extent that section 503(a) is relevant, it supports\nour conclusion that section 214, which does not address issues such as immigration and exclusion, applies to the\nCNM I.\n\n122\n\n\x0c'


b'Whether Canteen Service Provided Through the\nVeterans\xe2\x80\x99 Canteen Service Is Exempt From\nReview Under the Federal Activities\nInventory Reform Act of 1998\nCanteen service provided through the Veterans\xe2\x80\x99 Canteen Service is not exempt from review under the\nFederal Activities Inventory Reform Act of 1998.\n\nJanuary 31, 2003\n\nMEMORANDUM OPINION FOR THE DEPUTY DIRECTOR FOR MANAGEMENT\nOFFICE OF MANAGEMENT AND BUDGET\nYou have asked for our opinion whether canteen service provided through the\nVeterans\xe2\x80\x99 Canteen Service (\xe2\x80\x9cVCS\xe2\x80\x9d) is exempt from review under the Federal\nActivities Inventory Reform Act of 1998, Pub. L. No. 105-270, 112 Stat. 2382\n(\xe2\x80\x9cFAIR Act\xe2\x80\x9d). As interpreted by the Office of Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d),\nthe FAIR Act requires each Executive Branch agency to determine whether nongovernmental functions currently performed for the agency by the government\ncould be performed more cost-effectively in the private sector. The Department of\nVeterans Affairs (\xe2\x80\x9cVA\xe2\x80\x9d) believes that VCS canteen service is exempt from this\ncost-comparison process. See Letter for Jay S. Bybee, Assistant Attorney General,\nOffice of Legal Counsel, from Tim S. McClain, General Counsel, Department of\nVeterans Affairs, Re: Veterans\xe2\x80\x99 Canteen Service and the FAIR Act (Dec. 11, 2002)\n(\xe2\x80\x9cVA Letter\xe2\x80\x9d). We have considered VA\xe2\x80\x99s arguments and conclude that VCS\ncanteen service is not exempt.\nI.\nIn 1946, Congress established the VCS \xe2\x80\x9cas an independent unit in the [VA],\xe2\x80\x9d\n38 U.S.C. \xc2\xa7 7808 (2000), \xe2\x80\x9cfor the primary purpose of making available to veterans\nof the Armed Forces who are hospitalized or domiciled in hospitals and homes of\nthe [VA], at reasonable prices, articles of merchandise and services essential to\ntheir comfort and well-being,\xe2\x80\x9d id. \xc2\xa7 7801 (2000); see also id. \xc2\xa7 7803 (2000)\n(\xe2\x80\x9ccanteens at hospitals and homes of the [VA] shall be primarily for the use and\nbenefit of veterans hospitalized or domiciled at such hospitals and homes\xe2\x80\x9d). In\nparticular, the VCS statute provides that the VA Secretary shall \xe2\x80\x9cestablish,\nmaintain, and operate canteens where deemed necessary and practicable at\nhospitals and homes of the [VA] and at other [VA] establishments where similar\nessential facilities are not reasonably available from outside commercial sources.\xe2\x80\x9d\nId. \xc2\xa7 7802(1) (2000). It vests the Secretary with additional authority needed to\ncarry out this function. See id. \xc2\xa7 7802(2)\xe2\x80\x93(11).\n\n34\n\n\x0cCanteen Service Under the Federal Activities Inventory Reform Act of 1998\n\nThe FAIR Act was enacted in 1998 \xe2\x80\x9c[t]o provide a process for identifying the\nfunctions of the Federal Government that are not inherently governmental\nfunctions.\xe2\x80\x9d 112 Stat. at 2382. The FAIR Act generally defines the term \xe2\x80\x9cinherently\ngovernmental function\xe2\x80\x9d as \xe2\x80\x9ca function that is so intimately related to the public\ninterest as to require performance by Federal Government employees,\xe2\x80\x9d FAIR Act,\n\xc2\xa7 5(2)(A), and it states that that term \xe2\x80\x9cdoes not normally include . . . any function\nthat is primarily ministerial and internal in nature (such as . . . . operation of\ncafeterias),\xe2\x80\x9d id. \xc2\xa7 5(2)(C)(ii). Section 2(a) of the FAIR Act provides that each\nfiscal year \xe2\x80\x9cthe head of each executive agency shall submit to [OMB] a list of\nactivities performed by Federal Government sources for the executive agency that,\nin the judgment of the head of the executive agency, are not inherently governmental functions.\xe2\x80\x9d Section 2(d), entitled \xe2\x80\x9cCompetition Required,\xe2\x80\x9d states in part:\nEach time that the head of the executive agency considers contracting with a private sector source for the performance of [a listed] activity, the head of the executive agency shall use a competitive process to select the source (except as may otherwise be provided in a\nlaw other than this Act, an Executive order, regulations, or any executive branch circular setting forth requirements or guidance that is issued by competent executive authority).\nSection 2(d) also directs OMB to \xe2\x80\x9cissue guidance for the administration of this\xe2\x80\x9d\nprocess.\nPursuant to section 2(d)\xe2\x80\x99s directive, OMB revised Circular A-76 (\xe2\x80\x9cA-76\xe2\x80\x9d) and\nits Supplement to A-76. A-76 implements the FAIR Act by mandating that \xe2\x80\x9cthe\nGovernment shall not start or carry on any activity to provide a commercial\nproduct or service if the product or service can be procured more economically\nfrom a commercial source.\xe2\x80\x9d A-76, \xc2\xb6 5(c). This general prohibition does not apply\nunder the conditions specified in paragraph 8 of A-76\xe2\x80\x94where, for example, \xe2\x80\x9cno\ncommercial source is capable of providing the needed product or service\xe2\x80\x9d;\n\xe2\x80\x9cGovernment performance of a commercial activity is required for national\ndefense reasons\xe2\x80\x9d or \xe2\x80\x9cwould be in the best interests of direct patient care\xe2\x80\x9d at\nhospitals operated by the Government; or where studies show that \xe2\x80\x9cthe Government is operating or can operate the activity on an ongoing basis at an estimated\nlower cost than a qualified commercial source.\xe2\x80\x9d Id. \xc2\xb6 8. It also does not apply\n\xe2\x80\x9cwhen contrary to law, Executive Orders, or any treaty or international agreement.\xe2\x80\x9d See id. \xc2\xb6 7(c)(1). A-76 defines a \xe2\x80\x9ccommercial activity\xe2\x80\x9d as \xe2\x80\x9cone which is\noperated by a Federal executive agency, . . . which provides a product or service\nthat could be obtained from a commercial source,\xe2\x80\x9d and which does not \xe2\x80\x9cmeet the\ndefinition of an inherently Governmental function.\xe2\x80\x9d Id. \xc2\xb6 6(a). In terms virtually\nidentical to the FAIR Act, it defines an \xe2\x80\x9cinherently Governmental function\xe2\x80\x9d as \xe2\x80\x9ca\nfunction which is so intimately related to the public interest as to mandate\nperformance by Government employees.\xe2\x80\x9d Id. \xc2\xb6 6(e).\n\n35\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nII.\nVA argues that VCS canteen service is exempt from the requirements of the\nFAIR Act, as implemented by A-76. VA does not assert that canteen service is an\ninherently governmental function or that it meets any of the conditions specified in\nparagraph 8 of A-76. Instead, VA maintains that application of the FAIR Act\n\xe2\x80\x9cwould be inconsistent with the plain language, as well as the legislative history,\nof the VCS statute.\xe2\x80\x9d VA Letter at 1. That is, VA essentially claims that canteen\nservice is exempt from the competitive process of A-76 because subjecting\ncanteen service to that process would violate the VCS statute and thus be \xe2\x80\x9ccontrary\nto law\xe2\x80\x9d under paragraph 7(c)(1) of A-76.1\nWe therefore address whether the competitive process provided by A-76 conflicts with the VCS statute. The VCS statute provides that the VA Secretary shall\n\xe2\x80\x9cestablish, maintain, and operate canteens where deemed necessary and practicable at hospitals and homes of the [VA] and at other [VA] establishments where\nsimilar essential facilities are not reasonably available from outside commercial\nsources.\xe2\x80\x9d 38 U.S.C. \xc2\xa7 7802(1) (emphasis added). VA argues, with considerable\nforce, that the second italicized \xe2\x80\x9cwhere\xe2\x80\x9d clause modifies only \xe2\x80\x9cother [VA]\nestablishments,\xe2\x80\x9d not \xe2\x80\x9chospitals and homes of the [VA].\xe2\x80\x9d But even if we were to\nread the second \xe2\x80\x9cwhere\xe2\x80\x9d clause in this way, the first \xe2\x80\x9cwhere\xe2\x80\x9d clause\xe2\x80\x94\xe2\x80\x9cwhere\ndeemed necessary and practicable\xe2\x80\x9d\xe2\x80\x94plainly qualifies the Secretary\xe2\x80\x99s obligation to\noperate canteens at VA hospitals and homes. We believe that the question whether\nVCS canteen service at VA hospitals and homes is \xe2\x80\x9cnecessary and practicable,\xe2\x80\x9d far\nfrom precluding consideration of competitive alternatives, is plainly broad enough\nto permit such consideration.\nVA apparently reads this same provision to mean that VA must itself establish\nand operate canteens at VA hospitals and homes where the Secretary deems them\nto be necessary and practicable, \xe2\x80\x9cregardless of the reasonable availability of\nsimilar facilities in the private sector.\xe2\x80\x9d VA Letter at 4. Under this view, VA would\nbe required to run a canteen itself, even if contracting out would be dramatically\nless expensive. Indeed, if, in a given hospital, the Secretary were to deem a\ncanteen to be necessary but prohibitively costly (and hence not practicable), VA\ncould neither establish a canteen itself nor permit a cost-effective private party to\ndo so. In short, veterans in such a hospital would be deprived entirely of canteen\nservices. Thus, VA\xe2\x80\x99s view would produce absurd results that would undermine the\nstated purpose of the VCS statute. See 38 U.S.C. \xc2\xa7 7801 (stating that the \xe2\x80\x9cprimary\n1\nWe note that the FAIR Act might be read to require cost comparisons only when an agency head\n\xe2\x80\x9cconsiders contracting with a private sector source for the performance of [a listed] activity.\xe2\x80\x9d FAIR Act\n\xc2\xa7 2(d). On that reading, the agency head, by never considering such private sector contracting, could\navoid triggering any obligation on the part of his agency to engage in cost comparisons. OMB,\nhowever, in the exercise of its authority to implement the FAIR Act, has rejected this interpretation, see\nA-76, \xc2\xb6 9(e) (requiring consideration \xe2\x80\x9cof all existing in-house commercial activities\xe2\x80\x9d) (emphasis added), and VA does not dispute this point.\n\n36\n\n\x0cCanteen Service Under the Federal Activities Inventory Reform Act of 1998\n\npurpose [of the VCS statute is to] mak[e] available to veterans of the Armed\nForces who are hospitalized or domiciled in hospitals and homes of the Department, at reasonable prices\xe2\x80\x9d certain essential merchandise).\nVA also argues that canteens should not be considered as individual units,\nbecause \xe2\x80\x9c[s]eparating canteens in this fashion would dilute the operational control\ncontemplated in the VCS law,\xe2\x80\x9d and interfere with the cross-subsidization that\nenables certain canteens to survive. VA Letter at 6. We are unable to locate any\ntextual support in the VCS statute for the notion that all canteens should be\nconsidered as a single unit. Indeed, the pivotal language of section 7802(1),\nrequiring the Secretary to establish canteens \xe2\x80\x9cwhere deemed necessary and\npracticable,\xe2\x80\x9d appears to contemplate a location-by-location decision process.2 We\nfurther note that although some legislative history may suggest that Congress\nintended the VCS to be financially self-sustaining, see, e.g., S. Rep. No. 79-1701,\nat 4 (1946), the VCS statute explicitly authorizes appropriations needed to run\nVCS, see 38 U.S.C. \xc2\xa7 7804 (2000), and requires VCS to submit estimates of any\nfunds it may need \xe2\x80\x9cto restore any impairment of the revolving fund resulting from\noperations of the current fiscal year,\xe2\x80\x9d id. \xc2\xa7 7806 (2000). Although the VCS statute\ndoes contemplate financial interdependence among individual VCS canteens,\nnothing in the statute supports VA\xe2\x80\x99s conclusion that this interdependence precludes contracting out to the private sector where appropriate.\nIII.\nWe conclude that VCS canteen service is not exempt from the FAIR Act\xe2\x80\x99s\ncompetitive process.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n2\n\nNor does the legislative history on which VA relies run counter to this conclusion. To say that the\nVCS \xe2\x80\x9cas a whole is to function as a unit,\xe2\x80\x9d VA Letter at 4 (quoting S. Rep. No. 79-1701, at 5 (1946)), is\nnot to say that every canteen operated in a VA facility is part of that unit.\n\n37\n\n\x0c'


b'The Attorney General\xe2\x80\x99s Role as Chief Litigator for\nthe United States\n[The following m em orandum describes the developm ent and present scope of the Attorney G eneral\'s\nrole in representing the United States and its agencies in litigation. It discusses the policy reasons\nfor the centralization of litigation authority in the D epartm ent of Justice, and analyzes the A ttorney\nG eneral\xe2\x80\x99s relationship with client agencies. It also touches on the Attorney G eneral\xe2\x80\x99s authority to\nsettle and com prom ise cases, and on his authority over litigation in international courts. It\nconcludes that, absent clear legislative directives to the contrary, the Attorney G eneral has plenary\nauthority and responsibility over all litigation to which the United States or one of its agencies is a\nparty, and that his discretion is circum scribed only by the P resident\xe2\x80\x99s constitutional duty to \xe2\x80\x9c take\nCare that the Laws be faithfully executed."]\n\nJanuary 4, 1982\nM EM ORANDUM OPINION FOR TH E ATTORNEY GENERAL\nYou have asked this Office to outline the role and responsibilities of the\nAttorney General in representing the United States in litigation in which the\nUnited States, or a federal agency or departm ent, is a party. In particular, you\nasked that we consider the Attorney G eneral\xe2\x80\x99s authority and responsibility to\nmake decisions with respect to litigation, even if those decisions may conflict\nwith the views, desires, or legal analyses of other departments or agencies o f the\nUnited States, including those which may be \xe2\x80\x9cclients\xe2\x80\x9d in the particular litigation.\nLitigation involving agencies which have been granted express exclusive au\xc2\xad\nthority by C ongress to conduct their own litigation is not within the scope of this\nm em orandum .1 Rather, the focus of this memorandum is litigation involving\n\n1 C ircum stances in w hich the A ttorney G eneral lacks supervisory authority ov er litigation on b eh a lf o f the U n ited\nStates include ( I ) L itigation in U nited S tates courts w here the A ttorney G eneral has no authority to determ ine w ho\nshall represent the U nited States, such as the U nited States Tax C ourt (26 U S -C . \xc2\xa7 7452 specifies that the U nited\nStates shall be represented by the C h ie f Counsel for the Internal Revenue Service o r his delegate) and the U n ited\nStates C ourt of M ilitary A ppeals (10 U S C \xc2\xa7 870 specifies that the U nited States shall be represented by the Ju d g e\nAdvocate G eneral o r his delegate); (2) Litigation involving independent regulatory agencies w hich have been g iven\nthe express statutory authority to conduct their ow n litigation using agency attorneys, e g ., the N ational L ab o r\nR elations Board (29 U S C \xc2\xa7 154(a)); the Federal Power Com m ission (16 U .S .C . \xc2\xa7 825m (c) pow er transferred to\nFederal Energy R egulatory C om m ission (42 U .S C . \xc2\xa7 7172(a)(2)(A ) (Supp IV 1980)), the Interstate C o m m erce\nC om m ission (49 U .S .C . \xc2\xa7 16(11) (S upp IV 1980)); and (3) Litigation involving Executive B ranch agencies w h ich\nhave been granted independent litigating authority by C ongress, e g , the S ecretary o f L abor is au th o n zed to ap p o in t\nattorneys to represent the Secretary o r the Benefits Review Board in actions un d er the L on g sh o rem en \xe2\x80\x99s and H arb o r\nW orkers\xe2\x80\x99 C om pensation A ct, except in the Suprem e C ourt, under 33 U S .C . \xc2\xa7 921a.\nT here are also circum stances in w hich certain agencies have assum ed, notw ithstanding their lack o f ex p ress\nstatutory authority, full responsibility for their ow n trial and appellate litigation, so far w ithout ob jectio n from the\nA ttorney G eneral. T h ese agencies, such as the Tennessee Valley A uthority and the Federal D eposit In su ran ce\nC orporation, have not been required to subm it to the A ttorney G eneral\'s su pervisory authority, apparently for\nC o ntinued\n\n47\n\n\x0cthose agencies whose litigating authority is clearly subject to the Attorney\nG en eral\xe2\x80\x99s direction, or whose statutory grants of authority are ambiguous or\ninsufficient to remove them from the A ttorn ey General\'s supervision.\nWe conclude that, absent clear legislative directives to the contrary, the\nAttorney G eneral has full plenary authority over all litigation, civil and criminal,\nto w hich the U nited States, its agencies, o r departments, are parties. Such\nauthority is rooted historically in our com mon law and tradition, see Confiscation\nC a ses, 74 U . S . (7 W all.) 4 5 4 ,4 5 8 -5 9 (1868); The G ray Jacket, 72 U . S . (5 W all.)\n370 (1866) and, since 1870, has been given a statutory basis. See 5 U .S.C .\n\xc2\xa7 3106, and 28 U .S .C . \xc2\xa7\xc2\xa7 516, 519. See gen erally U nited States v. San Jacinto\nTin C o ., 125 U .S. 273 (1888). The Attorney General\xe2\x80\x99s plenary authority is\ncircum scribed only by the duty im posed on the President under Article II, \xc2\xa7 3 of\nthe C onstitution to \xe2\x80\x9ctake Care that the Laws be faithfully executed.\xe2\x80\x9d\n\nI. H istorical Development of the Role of the Attorney General\nPlenary pow er over the legal affairs of the United States was vested in the\nAttorney G eneral when the Office of the Attorney General of the United States\nwas first created by the Judiciary Act of 1789. Act of September 24, 1789, ch. 20,\n\xc2\xa7 35, 1 Stat. 9 2 .2\nT he Attorney G eneral\xe2\x80\x99s statutory authority to conduct litigation to which the\nU nited States, its departm ents, o r agencies, is a party was more fully developed\nby C ongress in 1870, in the sam e legislation that provided for the creation of the\nD epartm ent of Justice. A c to f J u n e 2 2 ,1 8 7 0 ,ch. 1 5 0 ,16Stat. 162. Prior to 1870,\nhowever, the Attorney General\xe2\x80\x99s authority in litigation matters involving the\nU nited States had been recognized by the Suprem e Court. In The G ray Jacket, 72\nU .S . (5 W all.) 370 (1866), the C ourt held that no counsel would be heard for the\nU nited States in opposition to the views of the Attorney General. In the C o n \xc2\xad\nfisca tio n C a ses, 74 U .S. (7 W all.) 454 (1868), the Court concluded that:\nW hether tested, therefore, by the requirem ents of the Judiciary\nA ct, or by the usage of the governm ent, or by the decisions of this\nhistorical reaso n s, so m e o f w hich relate to th e ir financial independence as governm ent corporations. See D aniel J\nM eador, A ssista n t A ttorney G eneral, Office fo r Im provem ents in th e Adm inistration o f Justice, D raft M em orandum\nto the A ttorney G eneral and th e Assistant A ttorneys G eneral Re: G overnm ent Relitigation Policies (M ay 21, 1979),\nM em orandum to th e A ttorney G eneral from W illiam D . R uckelshaus (M ar 5, 1970) The operative statutes in these\ntw o c a s e s , 16 U S C \xc2\xa7 831c(h), 83lx (T V A ) and 12 U S C \xc2\xa7 1817(g) (FD1C), m erely give the ag en cies the\nau thority to sue and be sued\xe2\x80\x94 not to litigate independently of th e D epartm ent o f Justice. Presum ably, the A ttorney\nG en eral m ay reassert his supervisory authority at any tim e.\n2 S ectio n 35 o f th e Ju d iciary Act provided in pertinent p art that\n[T ]here shall . . be appointed a m e e t person, learned in the law, to act as attorney-general for the\nU nited S tates, w ho shall be sworn o r affirm ed to a faithful execution of his office; w h o se du ty it\nshall be to prosecute an d conduct all suits in the S uprem e C ourt in w hich the United S lates shall be\nco n c ern ed , and to give his advice and opinion upon questions o f law when required by the\nP resident o f the U nited States, or w h en requested by th e heads of any o f the d ep artm en ts, touching\nan y m atters that m ay concern th e ir departm ents.\n\xe2\x80\x9c D istrict a tto rn e y s," now know n as \xe2\x80\x9c U nited States A tto rn ey s," w ere to be appointed to co n d u c t litigation in the\nlow er co u rts o f the U nited S tates but w ere not placed under th e A ttorney G en eral\xe2\x80\x99s authority until 1861 A ct of\nA ug. 2 , 1861, ch 37, 12 S tat 285. F ro m 1820 until 1861, the \xe2\x80\x9cdistrict attorneys\xe2\x80\x9d w ere supervised by the\nD ep artm en t o f the T reasury. A ct of May 15, 1820, ch 107, 3 Stat 592\n\n48\n\n\x0ccourt, it is clear that all such suits, so far as the interests of the\nUnited States are concerned, are subject to the direction, and\nwithin the control of, the Attorney-General.\n74 U .S. (7 Wall.) at 458-59.\nThe\' 1870 Act established the Department of Justice and designated the\nAttorney General as its chief legal officer. The Act provided that certain specified\n\xe2\x80\x9csolicitors\xe2\x80\x9d performing legal functions within the various agencies \xe2\x80\x9cshall be\ntransferred from the Departments with which they are now associated to the\nDepartm ent of Justice, . . . and shall exercise their functions under the supervi\xc2\xad\nsion and control of the head of the Department of Justice.\xe2\x80\x9d ( \xc2\xa7 3 ,1 6 Stat. 162.)3\nThe Act also authorized the Attorney General to designate any officer o f the\nDepartm ent of Justice, including himself, to conduct and argue any case in which\nthe government is interested, in any court of the United States, whenever he\ndeems it necessary for the interest of the United States. (\xc2\xa7 5, 16 Stat. 162.) In\naddition, the Act gave the Attorney General supervisory authority over the\nconduct and proceedings of the various attorneys for the United States in the\nrespective judicial districts, \xe2\x80\x9cand also of all other attorneys and c o u n s e llo rs\nemployed in any cases or business in which the United States may be concerned.\xe2\x80\x9d\n(\xc2\xa7 16, 16 Stat. 164.) And finally, the Act forbade the Secretaries of the Executive\nD epartm ents to employ other attorneys or outside counsel at government ex\xc2\xad\npense, but \xe2\x80\x9cshall call upon the Department of Justice . . ., and no counsel or\nattorney fees shall hereafter be allowed to any person . . ., besides the respective\ndistrict attorneys . . ., for services in such capacity to the United States, . . .\nunless hereafter authorized by law, and then only on the certificate of the\nAttorney-General that such services . . . could not be performed by the AttorneyG eneral, . . . or the officers of the Department of Justice.\xe2\x80\x9d (\xc2\xa7 17, 16 Stat. 164.)\n16 Stat. 162.\nThe initial motivation for this legislation was the desire to centralize the\nconduct and supervision of all litigation in which the government was involved,\nas well as to eliminate the need for highly paid outside counsel when governmenttrained attorneys could perform the same function. Other objectives of the\nlegislation that were advanced in the congressional debates were to ensure the\npresentation of uniform positions with respect to the laws of the United States (\xe2\x80\x9ca\nunity of decision, a unity of jurisprudence . . . in the executive law of the United\nStates\xe2\x80\x9d),4 and to provide the Attorney General with authority over lower court\nproceedings involving the United States, so that litigation would be better\nhandled on appeal, and before the Supreme Court. S ee Cong. Globe, 41st C ong.,\n2d Sess., Pt. IV, 3035-39, 3065\xe2\x80\x9466 (1870). See gen erally Bell, The Attorney\nG eneral: The Federal G overnm ent\xe2\x80\x99s C h ief L aw yer an d C h ief Litigator, o r O ne\nAm ong M any?, 46 Fordham L. Rev. 1049 (1978); Key, The L egal Work o f the\nF ederal Governm ent, 25 Va. L. Rev. 165 (1938).\n3 Prior to the A ct, C ongress had provided for the existence of \xe2\x80\x9csolicitors\xe2\x80\x9d in the various dep artm en ts and ag en cies,\nw ho were responsible for the legal affairs o f their respective departm ents See generally Key, The Legal Work o f the\nFederal Government, 25 Va L Rev 165 (1938).\n4 C ong G lobe, 41st C ong . 2d Sess , Pt IV, 3035, 3036 (1870)\n\n49\n\n\x0cT he Suprem e C ourt considered this legislation in U nited States v. San Jacinto\nTin C o ., 125 U .S. 273 (1888) and concluded that the Attorney General was\n\xe2\x80\x9cundoubtedly the officer who has charge of the institution and conduct of the\npleas of the U nited States, and o f the litigation which is necessary to establish the\nrights o f the governm ent.\xe2\x80\x9d Id. at 279. Emphasizing the centralizing function of\nthe D epartm ent o f Justice and the Attorney G eneral, the Court reasoned that the\npow er to control government litigation must lie somewhere\xe2\x80\x94 that there must\nexist som e officer with authority to decide when the United States should sue, and\nto oversee the execution of such a decision\xe2\x80\x94 and that the Attorney General was\ndesignated such appropriate officer, in the Judiciary Act of 1789, by reference to\nthe historical practice in England.5 125 U .S. at 278-80. In 1921, the Court added\nthat the Attorney G eneral\xe2\x80\x99s authority to conduct such litigation could be affected\nonly by clear legislative direction to the contrary. Kern R iver C o. v. U nited\nS tates, 257 U .S . 147, 155 (1921). See also 21 Op. A tt\xe2\x80\x99y Gen. 195 (1895). (The\nSecretary of the Navy was not warranted in employing counsel in a foreign\ncountry to institute suit in behalf of the United States, but should have referred\nthe m atter to the Department of Justice, \xe2\x80\x9cwhich is charged with the duty of\ndeterm ining when the United States shall sue, for what it shall sue, and that such\nsuits shall be brought in appropriate cases,\xe2\x80\x9d id. at 198.)\nLower courts reached sim ilar conclusions with respect to subsequent re\xc2\xad\ncodifications of the 1870 legislation. The Court of Claims summarized the\nlegislation in the following manner:\nThese provisions are too comprehensive and too specific to\nleave any doubt that Congress intended to gather into the Depart\xc2\xad\nm ent o f Justice, under the supervision and control of the AttorneyG eneral, all the litigation and all the law business in which the\nU nited States are interested, and which previously had been\nscattered am ong d ifferen t public officers, departm ents, and\nbranches of the Government, and to break up the practice of\nfrequently employing unofficial attorneys in the public service.\nP erry v. U n ited S tates, 28 Ct. Cl. 483, 491 (1893). Speaking for the Second\n\nC ircuit C ourt of Appeals, Judge Learned Hand emphasized the centralizing\nfunction o f the Attorney G eneral\xe2\x80\x99s role as chief litigator for the United States and\nthe necessity that that role be committed exclusively to the Attorney General:\nThe government has provided legal officers, presumably com \xc2\xad\np e te n t, ch arg ed with the d u ty of protecting its rights in its\n5 T h is reference is to th e origin of the office of A ttorney G eneral, w hich was first created in the Judiciary A ct o f\n1789, an d derived its function from the ro le of the A ttorney G eneral in E ngland. The C ourt stated.\nT h e ju d ic ia ry act o f 1789 . w hich first created the office of A ttorney G en eral, w ithout any very\naccurate definition o f his powers, in using the words that \xe2\x80\x9c there shall also be appointed a m eet\nperso n , learned in t h e law, to act as A ttorney G eneral for the U nited S tates," 1 Stat. 93, c. 21, \xc2\xa7 35,\nm ust have had reference to the sim ilar office w ith the sam e designation existing under the English\nlaw. A nd tho u g h it has been said th a t there is no com m on law o f the U nited States, it is still quite\ntrue that w hen acts o f Congress u se words w hich are fam iliar in the law o f E ngland, they are\nsupposed to be used w ith reference to their m eaning in that law.\n125 U .S . at 280\n\n50\n\n\x0ccourts. . . . Congress, having so provided for the prosecution of\ncivil suits, can scarcely be supposed to have contemplated a\npossible duplication in legal personnel. The cost of this is one\nconsideration, but far more important is the centering of respon\xc2\xad\nsibility for the conduct of public litigation. The Attorney General\nhas powers of \xe2\x80\x9cgeneral superintendence and direction\xe2\x80\x9d over dis\xc2\xad\ntrict attorneys (title 5, U.S. Code, \xc2\xa7 317 [5 USCA \xc2\xa7 317]), and\nmay directly intervene to \xe2\x80\x9cconduct and argue any case in any\ncourt o f the United States\xe2\x80\x9d (title 5, U .S. Code, \xc2\xa7 309 [5 USCA\n\xc2\xa7 309]). . . . Thus he may displace district attorneys in their own\nsuits, dism iss or compromise them, institute those which they\ndecline to press. N o such system is capable o f operation unless his\npow ers are exclusive, or if the D epartm ents m ay institute su its\nwhich he cannot control. H is pow ers m ust be coextensive with his\nduties.\nSutherland v. International Insurance C o., 43 F.2d 96 9 ,9 7 0 (2d Cir. 1930), cert,\ndenied, 282 U .S . 890 (1930) (emphasis added).\n\nIn 1933, as part of a crusade to consolidate as much of the governm ent\xe2\x80\x99s\nbusiness as necessary to increase operating efficiency, President Roosevelt issued\nan executive order to supplement the existing legislative mandate o f centralized\nlitigation authority. Executive Order No. 6166 (June 10, 1933), which requires\nall claims by or against the United States to be litigated by, and under the\nsupervision of, the Department of Justice, is still in effect. The order provides in\npertinent part:\nClaim s by or against the U nited States.\n\nThe functions of prosecuting in the courts of the United States\nclaims and demands by, and offenses against, the Government of\nthe United States and of defending claims and dem ands against\nthe Government, and of supervising the work of United States\nattorneys, marshals, and clerks in connection therewith, now\nexercised by any agency or officer, are transferred to the D epart\xc2\xad\nment of Justice.\nAs to any case referred to the Department of Justice for pros\xc2\xad\necution or defense in the courts, the function of decision w hether\nand in what manner to prosecute, or to defend, or to com prom ise,\nor to appeal, or to abandon prosecution or defense, now exercised\nby any agency or officer, is transferred to the Departm ent of\nJustice.\nReprinted in 5 U .S.C . \xc2\xa7 901 note (1976).\n\nII. Present Statutory Bases of the Attorney General\xe2\x80\x99s Authority\nThese attempts to centralize the litigating function and authority of the federal\ngovernment in the Department of Justice, with the Attorney General at its helm ,\n51\n\n\x0care now codified in 5 U.S.C. \xc2\xa7 3 1 06and 28 U .S .C . \xc2\xa7\xc2\xa7 515-516. Section 3106 of\nTitle 5 forbids the employment of outside counsel by executive agencies for\nlitigation involving the United States unless Congress has provided otherwise,\nrequiring instead that the m atter be referred to the Department of Justice.6\nA lthough we have found no case law interpreting this provision, the language of\n\xc2\xa7 3106 appears to limit the prohibition of payment to outside counsel for\nlitigation, and litigation-related matters. However, in view of the centralization\nand uniform ity purposes underlying the 1870 Act and its progeny, we believe\nthat, absent statutory authority to the contrary, the prohibition should be broadly\ninterpreted to preclude payments to non-agency or non-Justice Department\nattorneys for (legal) advisory functions as well. See Scalia, Assistant Attorney\nG eneral, Office of Legal Counsel, Letter to Hoffman, General Counsel, D epart\xc2\xad\nm ent of D efense (Mar. 2 6 ,1975).7 See a lso B oyle v. U n itedS tates, 309F .2d399,\n402 (Ct. Cl. 1962) (quoting from a 1957 letter by the Comptroller General: \xe2\x80\x9c [I]n\nthe absence o f urgent and com pelling reasons, a Government agency may not\nprocure from an independent contractor services normally susceptible of being\nperform ed by Government em ployees.\xe2\x80\x9d). Nevertheless, the Attorney General\nmay em ploy outside counsel to perform legal duties under his direction. Sections\n515 and 543 of Title 288 authorize the Attorney General to commission \xe2\x80\x9cspecial\nattorneys\xe2\x80\x9d to assist United States Attorneys, or to \xe2\x80\x9cconduct any kind of legal\nproceeding, civil or criminal, . . . which U nited States attorneys are authorized\nby law to conduct . . .\n6 5 U S C \xc2\xa7 3106 provides in pertinent p a rt that.\n[ejx cep t as otherw ise authorized b y law, the head o f an E xecutive d epartm ent o r m ilitary\nd e p a rtm e n t m ay not em ploy an attorney or counsel for th e conduct o f litigation in w h ich the U nited\nS tates, an agency, o r em ployee th e re o f is a party, or is interested, o r for the securing o f evidence\ntherefor, b u t shall refer the matter to the D epartm ent o f Justice.\n7 A lthough the S calia letter w as written in response to an inquiry regarding the use o f o u tside counsel by an\nag en cy in co n n e ctio n w ith th e investigation o r prosecution of adm inistrative claim s, the p rin cip les expressed therein\na re broadly applicable\nIn p rohibiting the use o f outside co u n s e l by the several d ep artm en ts, C ongress concentrated all\nth e G o v ern m en t\xe2\x80\x99s law business in th e D ep artm en t of Ju stice\xe2\x80\x94 not on ly litigation, b ut also advisory\nfunctions. T h is w as thought to be n ec essary in order to provide fo r uniform legal interpretations\nth ro u g h o u t the E xecutive branch . . . C ongress later departed from the principle that all legal\nactiv ities o f the G overnm ent were to be carried out by the D epartm ent of Ju stice; subsequent\nle g islatio n , authorizing and funding agency legal staffs, perm itted legal m atters not involving\nlitigation to be han d led in the v arious agencies. T h o se changes w ere taken into account when\nC o n g re ss, in 1966, codified the vario u s provisions o f th e law go in g back to the D epartm ent o f\nJu stice A ct o f 1870. S ee, e.g , H islo ric a la n d Revision N otes to 5 U .S .C 3 1 0 6 a n d 2 8 U S C 516.\nT h e re is, how ever, no indicauon o f a C ongressional intent to relax the p ro hibition against\nen g a g em en t o f outstde counsel by ag e n cies other than th e D epartm ent of Justice. T his principle\nrem ain s in effect w ith respect to b o th litigation reserved to th e D epartm ent o f Justice and\nnonlitigative m atters handled w ithin the several agencies.\nL e tte r at 4-5 (fo o tn o tes and citations o m itte d ) (em phasis added).\n8 28 U .S .C . \xc2\xa7 515(a), p ro v id e s tn p ertinent part that.\n[t]he A ttorney G eneral o r any other offic er of the D epartm en t of Ju stice, o r any attorney specially\na p pointed by the A ttorney General u n d e r law, may, w h en specifically directed by the A ttorney\nG e n e ra l, co n d u ct any kind of legal p ro cee d in g , civil o r c rim in a l. . w hich U nited States attorneys\nare authorized by law to conduct, w h eth e r or not he is a resident o f the district in which the\np ro cee d in g is brought\n28 U .S .C . \xc2\xa7 543 provides:\n(a) T h e A ttorney G eneral may a p p o in t attorneys to assist United S tates attorneys w hen the public\nin terest so requires\n(b ) Each attorney appointed u n d er this section is su b jec t to rem oval by the A ttorney G eneral.\n\n52\n\n\x0cSections 5 15-519 of Title 28 codify the law growing out of the 1870 Act which\nconsolidated the power to conduct litigation involving the United States in the\nDepartment of Justice, and granted the Attorney General supervisory authority\nover such litigation. The principal provisions granting such authority are \xc2\xa7\xc2\xa7 516\nand 519. Section 516 provides that\n[e]xcept as otherwise authorized by law, the conduct of litigation\nin which the United States, an agency, or officer thereof is a party,\nor is interested, and securing evidence therefor, is reserved to\nofficers of the Department of Justice, under the direction of the\nAttorney General.\nSection 519 provides that\n[e]xcept as otherwise authorized by law, the Attorney General\nshall supervise all litigation to which the United States, an agen\xc2\xad\ncy, or officer thereof is a party, and shall direct all United States\nattorneys, assistant United States attorneys, and special attorneys\nappointed under section 543 of this title in the discharge of their\nrespective duties.\nHowever, as with the previous legislative and executive efforts designed to\ncentralize the litigating functions of the United States, these provisions have been\nundercut by exceptions authorized by Congress which grant agencies or depart\xc2\xad\nments litigating authority independent of the Department of Justice. See Bell,\nThe A ttorn ey G eneral: The F ederal Governm ent\'s C h ief L aw yer an d C h ief\nLitigator, or O ne Am ong M any?, 46 Fordham L. Rev. 1049 (1978); M emoran\xc2\xad\n\ndum to the Attorney G eneral, from William D. Ruckelshaus (Mar. 5, 1970); Key,\nThe L egal Work o f the F ederal Governm ent, 25 Va. L. Rev. 165 (1938).9 As of\n1978, some 31 Executive Branch and independent agencies were authorized to\nconduct at least some of their own litigation. Bell, supra, at 1057. Although this\nmemorandum does not address those cases in which agencies have been granted\nindependent litigating authority, the lines between the Attorney G eneral\xe2\x80\x99s au\xc2\xad\nthority and that which has been delegated to the agencies have at times been\ndrawn ambiguously, and in those cases, the Attorney General frequently asserts\nhis historic authority over the litigation proceedings.\n\n9 C ongress has thus far m aintained virtually unim paired the A ttorney G eneral\'s control over the in itiation of\ncrim inal proceedings See, e.g , 15 U S C . \xc2\xa7 77t(b) (SEC ), 16 U S C \xc2\xa7 825m (a) (FPC). The preservation o f such\nauthority in the A ttorney G eneral is, we believe, sound constitutional policy, in view o f the Executive s co n stitu \xc2\xad\ntional m andate to take care that the laws be executed faithfully. S uch a responsibility carries w ith it the vindication of\npublic rights through the institution of crim inal proceedings against those w ho violate the laws w hich the Executive\nadm inisters As the Executive s ch ief legal officer, the A ttorney G eneral is singularly suited to carry o ut this\nresponsibility\nSim ilarly, the A ttorney G en eral\xe2\x80\x99s authority to conduct cases in the S uprem e C ourt has rem ained u ndiluted\nSection 518 o f Title 2 8 , w hich reserves the conduct and argum ent in the S uprem e C o u rt of suits and ap p e als \xe2\x80\x9c in\nw hich the U nited States is interested" to the A ttorney G eneral and S olicitor G e n e ra l. does not co ntem plate existing\no r future statutory authorizations to the agencies, as do \xc2\xa7\xc2\xa7 516 and 519 However. 518 does perm it the A ttorney\nG eneral to \xe2\x80\x9cdirect o therw ise,\xe2\x80\x9d in particular cases\n\n53\n\n\x0cIII. Supervisory Authority in the Context of\nJointly Conducted Litigation\nA . P olicy C on sideration s\n\nT he policy considerations w hich support the centralization of federal litigating\nauthority in the Department o f Justice, under the supervision of the Attorney\nG eneral, are many. In addition to the \xe2\x80\x9c unity of decision, unity of jurisprudence\xe2\x80\x9d\ngoals that were articulated in the 1870 congressional debates, the centralization\nof authority and supervision over federal litigation in the Department of Justice\nm eets several other objectives: (1) the coordination of lower court proceedings,\nw hich enhances the ability of government lawyers to select test cases presenting\nthe governm ent\xe2\x80\x99s positions in the best possible light; (2) the facilitation of\npresidential supervision, through the Attorney General, over Executive Branch\npolicies that are implicated in litigation; (3) the allowance for greater objectivity\nin the filing and handling of cases by attorneys who are not themselves the\naffected litigants; and (4) the increased effectiveness in the handling of appeals\nand Suprem e C ourt litigation which results from centralized control over lower\ncourt proceedings. S ee generally M em orandum to the Attorney General from\nW illiam D. Ruckelshaus, Re: Encroachm ents upon the Authority of the Attorney\nG eneral to Supervise and Control the G overnm ent\xe2\x80\x99s Litigation (Mar. 5, 1970).\nS ee a lso H arm on, Office of Legal Counsel, Memorandum for the Associate\nA ttorney G eneral (D ec. 11, 1980).\nC entralization of federal litigating authority in the Department of Justice,\nunder the supervision of the Attorney G eneral, is vitally necessary to ensure the\nAttorney G eneral\xe2\x80\x99s proper discharge of his duty to oversee the legal affairs of the\nU nited States with which Congress has entrusted him. Centralization ensures that\nthe Attorney G eneral is properly informed of the legal involvements of each of the\nagencies for which he is responsible; supervisory authority permits him to act on\nthat know ledge. In this way, the Attorney G eneral is better able to coordinate the\nlegal involvem ents of each \xe2\x80\x9cclient\xe2\x80\x9d agency with those of other \xe2\x80\x9cclient\xe2\x80\x9d agencies,\nas well as with the broader legal interests of the United States overall. Yet, while\nthe \xe2\x80\x9cclient\xe2\x80\x9d agencies may be involved, to varying degrees, in carrying out the\nlitigation responsibilities necessary to assist the Attorney General in representing\nthe agency\xe2\x80\x99s particular interests, it is essential that the Attorney General not\nrelinquish his supervisory authority over the agency\xe2\x80\x99s litigation functions, for the\nAttorney G eneral alone is obligated to represent the broader interests of the\nExecutive. It is this responsibility to ensure that the interests of the United States\nas a w hole, as articulated by the Executive, are given a paramount position over\npotentially conflicting interests between subordinate segments of the government\nof the U nited States which uniquely justifies the role of the Attorney General as\nthe ch ief litigator for the United States. Only the Attorney General has the overall\nperspective to perform this function.\nN evertheless, it must be stressed that in exercising supervisory authority over\nthe conduct of agency litigation, the Attorney General will generally defer to the\n54\n\n\x0cpolicy judgm ents of the client agency. This deference reflects a recognition of the\nagency\xe2\x80\x99s considerable expertise in the substantive area with which it is primarily\nconcerned. Strictly speaking, \xe2\x80\x9cpolicy\xe2\x80\x9d judgm ents are confined to those substan\xc2\xad\ntive areas in which the agency has developed a special expertise and in which the\nagency is vested by law with the flexibility and discretion to make policy\njudgm ents. However, it is increasingly the case that policy concerns are im pli\xc2\xad\ncated in decisions dealing with litigation strategy, and in such cases, the Attorney\nGeneral will accommodate the agency\xe2\x80\x99s policy judgm ents to the greatest extent\np o s s ib le w ith o u t c o m p ro m is in g th e law, o r b ro a d e r n a tio n a l p o lic y\nconsiderations.\nIt is in the context of these dual representation functions\xe2\x80\x94 in which there exists\ninherent potential for conflict between \xe2\x80\x9cclients\xe2\x80\x9d\xe2\x80\x94 that questions of representation\narise. Circum stances frequently develop in which the Attorney General and\nclient agencies disagree as to the proper course of the litigation\xe2\x80\x94 including\nstrategy, legal judgm ents, settlement negotiations, and policy judgm ents which\nimpact on the litigation. Such circumstances frequently present the question\nwhether the Attorney General should continue to represent the client.\nThe simple answ er is yes. The Attorney General has not only the statutory\nauthority to represent the agencies over whose litigation he exercises supervisory\nauthority, but, indeed, the du ty to do so, \xe2\x80\x9c [e]xcept as otherwise authorized by\nlaw.\xe2\x80\x9d 28 U .S .C . \xc2\xa7\xc2\xa7 516, 519. The Attorney G eneral\xe2\x80\x99s authority and duty to\nrepresent these agencies are described more particularly by the specific legisla\xc2\xad\ntion which sets forth his and the agencies\xe2\x80\x99 respective litigation responsibilities,\nand occasionally, in \xe2\x80\x9cM em oranda of Understanding\xe2\x80\x9d entered into by the Attorney\nGeneral and specific agencies apportioning such responsibilities. Nevertheless,\nunlike the private attorney, the Attorney General does not have the option of\nwithdrawing altogether from the representation of client agencies, as long as\ninterests of the United States for which he is held responsible are at stake.\nHowever, recognition of the very real difficulties which are posed in the\ncontext of litigation jointly conducted by the Attorney General and \xe2\x80\x9cclient\xe2\x80\x9d\nagencies\xe2\x80\x94 particularly in view of the agencies\xe2\x80\x99 greater staffing resources, more\nintimate fam iliarity with the subject matter of the litigation, greater visibility to\nthe public as a litigant, and more involvement in the day-to-day administration of\nfield offices\xe2\x80\x94 tends to suggest that a more practical understanding of the Attorney\nGeneral\xe2\x80\x99s authority and duty to represent client agencies may be needed. Dis\xc2\xad\ntinguishing policy judgm ents from legal judgm ents in litigation matters\xe2\x80\x94 the\nformer being primarily the province of the agencies and the latter being reserved\nto the Attorney General\xe2\x80\x94 helps to provide not only a more reasonable and\nefficient use of governm ent resources, but a workable framework for resolving\nmost disputes that may result in representation crises. Nevertheless, because of\nhis unique responsibilities in representing government-wide interests as well as\nthose of particular \xe2\x80\x9cclient\xe2\x80\x9d agencies, the final judgm ent concerning the best\ninterests of the United States must be reserved to the Attorney General.\nB. L egislative Exceptions to the A ttorney G en eral\xe2\x80\x99s Authority\n\nAlthough Congress has over the years responded, in varying degrees, to the\nmultitude of pressures exerted by agencies seeking independent litigating au\xc2\xad\n55\n\n\x0cthority, the courts have continued to give greater weight to the strong policy\nobjectives w hich recommend centralization. As a result, the \xe2\x80\x9cotherwise autho\xc2\xad\nrized by law\xe2\x80\x9d language creating th e exception to the Attorney G eneral\xe2\x80\x99s authority\nin 28 U .S .C . \xc2\xa7\xc2\xa7 516 and 519 has been narrowly construed to perm it litigation by\nagencies only when statutes explicitly provide for such authority. S ee M arsh all v.\nG ib so n \xe2\x80\x99s P rodu cts. In c., 584 F.2d 6 6 8 ,6 7 6 n. 11 (5th Cir. 1978); IC C v. Southern\nRailway, 543 F.2d 534, 535-38 (5th Cir. 1976); In re G rand Jury Subpoena of\nP ersico, 522 F.2d 41 , 54 (2d Cir. 1975); FTC v. Guignon, 390 F.2d 323 (8th Cir.\n1968); U n ited S ta tes v. Tonry, 4 33 F. Supp. 620 (E.D . La. 1977).\nA lthough the legislative history of Sections 516 and 519 is relatively sparse\xe2\x80\x94\nin fact, the \xe2\x80\x9c history\xe2\x80\x9d is contained almost entirely in the \xe2\x80\x9cHistorical and Revision\nN otes\xe2\x80\x9d prepared by the revisers o f Title 5 in 1966\xe2\x80\x94 the courts\xe2\x80\x99 strict interpreta\xc2\xad\ntion of these provisions is supported not only by the historical antecedents of\nthese statutes and the policy considerations discussed above, but also by the\nR eviser\xe2\x80\x99s Notes to the 1966 am endm ents.10 The revisers state, with respect to\nboth Sections 516 and 519, that th e sections were revised to express the effect of\nexisting law, which does permit agency heads, \xe2\x80\x9c with the approval o f Congress,\n[to employ] attorneys to advise them in the conduct of their official duties. . . .\xe2\x80\x9d\n28 U .S .C . \xc2\xa7 516 note (emphasis added). The revisers further state that \xe2\x80\x9c [t]he\nwords \xe2\x80\x98Except as otherwise authorized by law ,\xe2\x80\x99 are added to provide for existing\nand future exceptions (e.g., section 1037 of title 10).\xe2\x80\x9d \xc2\xa7 516 note; 28 U .S.C .\n\xc2\xa7 519 note. Thus the revisers have indicated that existing and future grants of\nlitigating authority that are at least as express as the language contained in 10\nU .S .C . \xc2\xa7 1037 are to be excepted from the Attorney G eneral\xe2\x80\x99s broad grant of\nauthority under \xc2\xa7\xc2\xa7 516 and 519 o f Title 28. Section 1037 of Title 10 permits the\nSecretaries o f the various military departm ents to \xe2\x80\x9cemploy [private] counsel\xe2\x80\x9d for\nthe \xe2\x80\x9crepresentation\xe2\x80\x9d of persons subject to the Uniform Code of Military Justice\n\xe2\x80\x9cbefore the judicial tribunals and administrative agencies\xe2\x80\x9d of foreign nations.\nW hile nothing in the legislative history of \xc2\xa7 1037 indicates a congressional intent\nto create an exception to the predecessors of \xc2\xa7\xc2\xa7 516 and 519, Congress made\nclear in 1966 that the operative language, \xe2\x80\x9cthe Secretary concerned may employ\ncounsel . . . incident to the representation before . . . judicial tribunals\xe2\x80\x9d was\nsufficient to trigger the exception." See H .R. Rep. No. 1863, 84th C ong., 2d\nSess. (1956); S. Rep. No. 2544 , 84th C ong., 2d Sess. (1956). See generally\nOffice o f Legal C ounsel, M em orandum to Peter R. Taft (Aug. 27, 1976).\nIn order to com e within the \xe2\x80\x9cas otherwise authorized by law\xe2\x80\x9d exception to the\nAttorney G eneral\xe2\x80\x99s authority articulated in 28 U .S .C . \xc2\xa7\xc2\xa7 516 and 519, it is\nnecessary that Congress use language authorizing agencies to employ outside\n10 28 U S C \xc2\xa7\xc2\xa7 5 1 5 -5 2 6 (1976), Pub L. N o . 89-554, \xc2\xa7 4(c), 80 Stat 613 is the m ost recent codification o f the\npro v isio n s co n tain ed in the 1870 Act creating the D epartm ent of Justice Prior to 1966, these p rovisions were\ncodified in T itle 5\n11 I 0 U S C \xc2\xa7 1037 was. adopted in 1956, p r io r to the 1966adoption o f 28 U S C \xc2\xa7\xc2\xa7 516 and 5 19, and provides\nin p ertin en t part:\n(a) U nder regulations to be prescribed by him , the S ecretary concerned m ay em ploy co u n sel, an d\npay counsel fees, co u rt costs, bail, a n d other expenses incident to the representation, before the\nju d ic ia l tribunals and adm inistrative agencies o f any foreign nation, o f persons subject to the\nU niform C o d e o f M ilitary Justice.\n\n56\n\n\x0ccounsel (or to use their own attorneys) to represent them in court. See, e .g ., 49\nU.S.C . \xc2\xa7 16(11) (Interstate Commerce Commission); 16 U .S.C . \xc2\xa7 825m(c)\n(Federal Power Commission); 12 U .S.C . \xc2\xa7 1464(d)(1) (Federal Home Loan\nBank Board); 29 U .S.C . \xc2\xa7 154(a) (National Labor Relations Board);12 5 U .S.C .\n\xc2\xa7 7105(h) (Supp. IV 1980) (Federal Labor Relations A uthority).13 However, even\nagencies to which Congress has granted independent litigating authority may be\nprohibited from conducting their own litigation in the Supreme Court. See, e .g .,\n42 U .S.C . \xc2\xa7 2000e-4(b)(2) (Equal Employment Opportunity Commission); 5\nU .S.C . \xc2\xa7 7105(h) (Supp. IV 1980) (Federal Labor Relations A uthority).14 More\nambiguous language, which, for example, authorizes an agency to \xe2\x80\x9csue and be\nsued,\xe2\x80\x9d 15\xe2\x80\x9cbring a civil action,\xe2\x80\x9d or \xe2\x80\x9c invoke the aid of a court,\xe2\x80\x9d has been considered\nby some courts to be insufficient to confer independent litigating authority. See.\ne .g ., ICC v. Southern Railway, 543 F.2d 534 (5th Cir. 1976); FTC v. Guignon,\n,2 These statutes provide as follows\nI C C \xe2\x80\x94 4 9 U .S C \xc2\xa7 16(11)\nThe C om m ission may employ such attorneys as it finds necessary for proper legal aid and service\nof the C om m ission\nor for proper representation o f the public interest*, in investigations made\nby it .\no r to appear fo r or represent the Commission in any case in court.\nF P C \xe2\x80\x94 16 U S C 8 825m(c)\xe2\x80\x94 language substantially sim ilar to that provided for I C C\nFederal H ome Loan Bank Board\xe2\x80\x94 12 U .S C . 1464(d)(1)\nThe Board shall have pow er to cnforce this section and rules and regulations m ade hereunder In\nthe enforcem ent o f any provision of this section o r rules and regulations made h ereunder\n. the\nBoard is authorized to act in its ow n nam e and through its own attorneys . .\nN ational Labor R elations Board\xe2\x80\x94 29 U S .C . \xc2\xa7 154(a)\nAttorneys appointed under this section may. at the direction of the B oard, appearfor and represent\nthe Board in any case in court.\n(Em phases added ) O f course, these authorizations must be read within the context of the w hole statutory sch em e of\nwhich they are a part\xe2\x80\x94 in som e instances these agencies are represented by the D epartm ent o f Justice.\n13 Language sim ilar to that contained in the statutes cited in n. 12, supra was recently held by the D istrict C o u rt for\nthe D istrict of C olum bia to confer independent litigating authority on the Federal L abor Relations A uth o rity\n(FLR A), including the litigation o f proceedings u n d er the Freedom of Inform ation A ct, 5 U S C . \xc2\xa7 552 See AFGE\nv Gordon, C A N o. 81-1737 (D D C O ct. 23. 1981) T he statute construed by the court as granting the FLR A\nindependent litigating authority. 5 U S C \xc2\xa7 7105(h) (Supp IV 1980), providesExcept as provided in section 518 o f title 28. relating to litigation before the S uprem e C ourt.\n\nattorneys designated by the Authority may appear fo r the Authority and represent the Authority in\nany civil action brought in connection w ith any function carried out by the A uthority pursuant to\nthis title or as otherw ise authorized by law\nThe A ppellate Section of the C ivil D ivision has recom m ended that the D epartm ent o f Justice not ap p eal this\ndecision N evertheless, the D epartm ent has m aintained vigorously in the past, and w ill continue to m aintain, that\nbroad grants o f independent litigating authority, sim ilar to those discussed above, d o not encom pass cases arising\nunder adm inistrative statutes that apply govem m ent-w ide T his view is supported by the strong policy im peratives\no f \xe2\x80\x9c unity\nin the executive law o f the U nited S tates." infra at 5, as well as som e legislative history See H R\nC o n f Rep N o 539, 95th Cong . 1st Sess. 72 (1977). reporting on the D epartm ent o f Energy O rganization A ct.\nPub L No 95 -9 1 . 91 Stat 5 6 5 . w hich established the Federal Energy R egulatory C om m ission\n14 42 U S .C \xc2\xa7 2000e-4(b)(2) provides\nAttorneys appointed u n d er this section may, at the direction of the C om m ission, ap p ear for and\nrepresent the C om m ission in any case in co u rt, provided that the Attorney General shall conduct\n\nall litigation to which the Commission is a parly in the Supreme Court pursuant to this subchapter.\n5 U S C\n\n\xc2\xa7 7105(h) (S upp IV 1980) provides:\n\nExcept as provided m section 518 c f title 28. relating to litigation before the Supreme Court,\nattorneys designated by the A uthority m ay appear for the A uthonty and represent the A uthority in\nany civil action brought in connection w ith any function carried out by the A uthority pursuant to\nthis title o r as otherw ise authorized by law\n(E m phases added )\n15 T he Office o f Legal Counsel view s \xe2\x80\x9csue and be sued\xe2\x80\x9d language as m erely designating the agency as a \xe2\x80\x9cju ral\nen tity \xe2\x80\x9d w hich m ay sue o r be sued in its ow n nam e, and not as rem oving the ag e n cy \xe2\x80\x99s representation from the d om ain\no f the Department o f Justice pursuant to 28 U S C \xc2\xa7 \xc2\xa7 5 1 6 and 519 See M eador, Draft M em orandum Re\nG overnm ent R elitigation Policies, supra, at 19, n 51. cuing an interview w ith H M iles Foy III, D epartm ent of\nJustice. Office of Legal Counsel\n\n57\n\n\x0c390 F.2d 323 (8th Cir. 1968). S ee gen erally Harmon, Office of Legal Counsel,\nM em orandum for the Associate Attorney General (Dec. 11, 1980); Meador,\nOffice for Im provem ents in the Administration of Justice, Draft Memorandum\n(M ay 2 1 ,1 9 7 9 ); Office of Legal C ounsel, Relationship of Proposed Amendments\nto the Adm inistrative Procedure Act . . . to the Department of Justice Policy of\nO pposition to Litigation Power Outside of the Department (Apr. 29, 1974);\nM em orandum to the Attorney G eneral from W illiam D. Ruckelshaus, supra; but\nse e SE C v. R obert C ollier & C o ., 76 F.2d 939 (2d Cir. 1935).\nO ther language which does grant agency attorneys authority to litigate, but\nprovides that such authority shall be exercised under the direction and control of\nthe Attorney G eneral, provides the framework for \xe2\x80\x9cM emoranda of Understand\xc2\xad\ning\xe2\x80\x9d (M OUs) between the agencies and the Department of Justice, which\napportion the litigation responsibilities between the Department and the agen\xc2\xad\ncies. S ee, e .g ., 2 9 U .S .C . \xc2\xa7 204(b) (Fair Labor Standards Act); the Age Discrim\xc2\xad\nination Em ploym ent Act of 1967, Pub. L. N o. 90-202, 81 Stat. 6 0 2 .16 These\nm em oranda usually specify both the categories o f cases in which agency counsel\nmay appear and the nature of the Attorney G eneral\xe2\x80\x99s continuing control and\nsupervision over such cases. We believe that the sharing of litigation respon\xc2\xad\nsibilities under MOUs is proper, as long as the Attorney General retains ultimate\nauthority over the litigation. Moveover, the rationale underlying these arrange\xc2\xad\nm ents is an em inently sensible one. The efficiency and expertise objectives in\ngovernm ent litigation are thereby m axim ized, without sacrificing the Attorney\nG en eral\xe2\x80\x99s statutory role as chief government litigator, and the responsibilities and\nprerogatives which attach thereto.\nN evertheless, as a practical matter, MOUs do compromise the Attorney\nG eneral\xe2\x80\x99s control, if not authority, over the conduct of agency litigation. Agen\xc2\xad\ncies eager to control their own litigation may proceed to negotiate settlement\nagreem ents, send out \xe2\x80\x9cno action\xe2\x80\x9d letters, depose witnesses, and otherwise\nrepresent the agency\xe2\x80\x99s position to the public without consultation or assistance\nfrom the Attorney G eneral, leaving the Attorney General with afa it accom pli and\na potential equitable barrier to his subsequent assertion of control over the\nlitigation.17 Such occurrences effectively undermine the Attorney General\xe2\x80\x99s\n16 29 U .S .C . \xc2\xa7 204(b) perm its D epartm ent o f Labor attorneys to \xe2\x80\x9c appear for and represent\xe2\x80\x9d the A dm inistrators of\nthe FL S A and A D E A \xe2\x80\x9c in any litigation," but subjects all such litigation \xe2\x80\x9cto the direction and control of the A ttorney\nG eneral \xe2\x80\x9d T he S ecretary o f L abor and the A ttorney G eneral have entered into a series o f understandings w hich\np rovide that D epartm ent o f L abor attorneys w ill ordinarily handle all appellate litigation pursuant to the A cts, but\np erm it th e A ttorney G eneral to take part in th e conduct o f such ca ses as he deem s to be in the best interest o f the\nU nited States\n17 We d o not m ean to suggest that agencies acting beyond the sco p e o f their litigating authority in settling claim s\nlegally b in d the U nited S tates, rather, we re fe r only to the c o n fu sio n , ill w ill, and lack o f confidence that w ould\naccrue to the agency in its public relations should the A ttorney G en eral reverse the agency\'s actions, as well as the\npractical difficulties inherent in such a reversal See Dresser Indus., Inc v United States. 596 F.2d 1231, 1236 (5th\nCir. 1979), cert, denied, 444 U S 1044 (1980):\nIt is well established that (he federal governm ent w ill not be bound by a contract o r agreem ent\nen tered into by on e of its agents unless such agent is acting w ithin the lim its o f his actual authority.\n. . A s the S uprem e C o u rt staled in [Federal Crop Ins Corp v Merrill. 332 U .S . 380 (1947)]\nW hatever the form in w hich the G overnm ent functions, an yon e entering into an arrangem ent with\nthe G overnm ent takes th e risk of having accurately ascertain ed that he w ho purports to act for the\nG overnm ent stays w ithin the bounds o f his authority. T h e scope o f this authority may be exphctly\ndefined by C o n g ress or be limited by delegated legislation, properly exercised through the rulem aking pow er A nd this is so even th o u g h\n. the ag e n t him self m ay have been unaw are o f the\nlim itations upon his authority 332 U S at 384\n\n58\n\n\x0cability to perform the dual litigating functions with which he is charged. Recog\xc2\xad\nnizing that the efficiency and expertise objectives in government litigation\nnecessitate the sharing of litigation responsibilities in most cases, care should be\ntaken to make explicit in these arrangements the Attorney G eneral\xe2\x80\x99s overriding\nauthority in directing the litigation. While the Attorney General may delegate\nsome litigating authority under the MOUs, he may not delegate the ultimate\nresponsibility which is by law vested exclusively in the Attorney General. See\nHarmon, Office of Legal Counsel, M emorandum for the Associate Attorney\nGeneral (Dec. 11, 1980). Thus, the Attorney General should make clear to the\nclient agency his willingness to support the Assistant Attorney General and line\nattorneys in the enforcement of his prerogatives under the M O U .18\n\nIV. Settlement and Compromise Authority\nIncluded within this broad grant of plenary power over government litigation is\nthe power to com promise and settle litigation over which the Attorney General\nexercises supervisory authority. This power \xe2\x80\x9cto com promise any case over which\nhe has jurisdiction upon such terms as he may deem fit\xe2\x80\x9d is \xe2\x80\x9cin part inherent in\n[the Attorney G eneral\xe2\x80\x99s] office and in part derived from statutes and decisions.\xe2\x80\x9d\n38 Op. A tt\xe2\x80\x99y Gen. 124 (1934). This authority was the subject of President\nRoosevelt\xe2\x80\x99s Executive Order No. 6166, (June 10, 1933), reprin ted in 5 U .S .C .\n\xc2\xa7 901 note (1976), which provided that \xe2\x80\x9c . . . the function of decision w hether\n. . . to com prom ise . . . appeal . . . [or] abandon prosecution or defense, now\nexercised by any agency or officer [of the United States], is transferred to the\nDepartment of Justice.\xe2\x80\x9d See infra at 7 -8 . With respect to the power to com pro\xc2\xad\nmise, Attorney General Cummings observed that\nit is a power, whether attaching to the office or conferred by statute\nor Executive order, to be exercised with wise discretion and\nresorted to only to promote the Government\xe2\x80\x99s best interest or to\nprevent flagrant injustice, but that it is broad and plenary may be\nasserted with equal assurance, and it attaches, of course, imme\xc2\xad\ndiately upon the receipt of a case in the Department of Justice,\ncarrying with it both civil and criminal features, if both exist, and\nany other matter germane to the case which the Attorney General\nmay find it necessary or proper to consider before he invokes the\naid o f the courts; nor does it end with the entry of judgm ent, but\nembraces execution ( U nited States v. M orris , 10 Wheat. 246).\n18\nA dditional litigating authority, independent of the A ttorney G eneral, was g ranted to certain ag en cies b y the\nH obbs A ct. 28 U S C \xc2\xa7\xc2\xa7 2342, 2348 (1976 & Supp IV 1980). The H obbs A ct grants specified agencies authority\nto intervene in appellate proceedings \xe2\x80\x9cof their ow n m otion and as o f rig h t/\' even though the A ttorney G en eral \xe2\x80\x9c is\nresponsible for and has control o f the interests o f the Government** in the proceedings N o tw ithstanding the A ttorney\nG en eral\xe2\x80\x99s overall authority, he \xe2\x80\x9c may not dispose of or discontinue the pro ceed in g \xe2\x80\x9d ov er the ob jectio n o f the\nintervening agency, and the agency \xe2\x80\x9c may prosecute, defend, o r continue the proceeding u n affected b y the actio n o r\ninaction of the A ttorney G eneral \xe2\x80\x9d\n\n59\n\n\x0c38 Op. A tt\xe2\x80\x99y G en. 98, 102 (1934).19 In these opinions, Attorney General\nC um m ings concluded that the Attorney G eneral\xe2\x80\x99s authority to settle cases ex\xc2\xad\ntended even beyond that which would have been available to the agency charged\nwith adm inistering the underlying law.20\nExecutive O rder N o. 6166, together with Sections 516 and 519 of Title 28 of\nthe U .S. Code (and their predecessor provisions), have been interpreted consis\xc2\xad\ntently by the courts to vest the Attorney General with virtually absolute discretion\nto determ ine w hether to compromise or abandon claims made in litigation on\nbehalf of the U nited States. S ee N ew York v. N ew Jersey, 256 U .S. 296, 308\n(1921); U nited S tates v. N ew port N ew s Shipbuilding & D ry D ock C o ., 571 F.2d\n1283 (4th Cir.), cert, denied, 4 39 U .S. 875 (1978); Smith v. U nited States, 375\nF.2d 243 (5th Cir.), cert, denied, 389 U .S. 841 (1967); H albach v. M arkham,\n106 F. Supp. 475, 479-81 (D .N .J. 1952), aff\'d , 207 F.2d 503 (3d Cir. 1953). In\ndeciding to settle or abandon a claim , or not to prosecute at all, the Attorney\nG eneral is not restricted to considerations only of litigative probabilities, but\nrather may m ake a decision, in his discretion, on the basis of national policies\nespoused by the Executive. Smith v. U nited States, supra. The only limitations\nplaced on the Attorney General\xe2\x80\x99s settlement authority are those which pertain to\nhis litigating authority generally\xe2\x80\x94 i.e ., explicit statements by Congress circum \xc2\xad\nscribing his settlem ent authority,21 see, e .g ., 8 U .S.C . \xc2\xa7 1329 (1976) (prohibit\xc2\xad\ning settlem ent o f suits and proceedings brought under Title II of the Immigration\nAct w ithout consent of the court in which the suit or proceeding is pending), and\nthe duty im posed on the President by Article II, \xc2\xa7 3 of the Constitution to \xe2\x80\x9ctake\nCare that the Laws be faithfully executed. . . . \xe2\x80\x9d See gen erally Office of Legal\nC ounsel, M em orandum for Sanford Sagalkin (Sept. 4, 1980); Office of Legal\nC ounsel, M em orandum to James W. M oorm an (Oct. 30, 1979). To guide the\nA ttorney General in the exercise o f his settlement discretion, the 1934 opinions of\nA ttorney G eneral Cummings proposed a \xe2\x80\x9cpromote the Government\xe2\x80\x99s best inter\xc2\xad\nest, or . . . prevent flagrant injustice\xe2\x80\x9d standard. See 38 Op. A tt\xe2\x80\x99y Gen. at 102.\n19 A s ea rly as 1831, A ttorney General Taney observed that.\nA n attorney co n d u c tin g a suit fo ra p arty has, in the absence of that party, a n g h t to discontinue it\nw henever, in his ju d g m e n t, the interest of his client requires it to be do n e If he abuses this power,\nhe is liable to the clien t whom he injures.\nA n attorney o f the U nited States, ex cep t in so far as his pow ers m ay be restrained by particu lar\nacts o f C o n g ress, has the same authority and control over the suits w hich he is co n ducting The\npublic in terest and the principles of ju s tic e require that he sho u ld have this pow er . . [S]ince he\ncan n o t c o n su lt his client (the United S tales), the sanction o f the court is regarded as sufficient\nevidence that he exercised the pow er honestly and discretely\n2 O p. A tt\'y G en 4 8 2 ,4 8 6 - 8 7 A ttorney G eneral C um m ings cited this opinion approvingly. 38 O p A u \xe2\x80\x99y G e n at\n99\n20 T h e o p in io n s found in 38 O p A tt\xe2\x80\x99yG en a t 9 4 ,9 8 ,1 2 4 d is c u s s t h e A ttorney G en eral\xe2\x80\x99s authority to com prom ise\nin com e tax ca ses in the absence o f bona fide d isp u te d questions o f fact A ttorney G eneral C um m ings concluded that\nhe did po ssess th e authority to settle such cases, even though the S ecretary had no statutory authority to com prom ise\nin com e tax ca ses in th o se circum stances\n21 W ith respect to actions brought under th e Federal Tort C laim s A ct, 28 U .S C \xc2\xa7\xc2\xa7 2 6 7 1 -2 6 8 0 (1976), fo r\nex am p le, th e A ttorney G eneral o r his designee now has the authority to arbitrate, co m p ro m ise, o r settle claim s\nb ro u g h t u n d er the A ct after January 17, 1967, 28 U .S .C \xc2\xa7 2677 (1976); p nO T to the 1966 am endm ents, court\napproval w as required before the Attorney G eneral was perm itted to effect a settlem ent C ongress also prescribed a\np ro ced u re in the 1966 am en d m en ts which g ran ted agencies authority to settle claim s u n d er $ 2 5 ,0 0 0 w ithout prio r\nw ritten approval by the A ttorney G eneral of th a t specific settlem ent arran g em en t, as long as the arrangem ent was\nm ade in acco rd an ce w ith general regulations prescribed by the A ttorney G eneral 28 U S C . \xc2\xa7 2672 (1976)\n\n60\n\n\x0cV. Litigation in International Courts\nSimilarly, the Attorney G eneral\xe2\x80\x99s authority over litigation involving the Unitec\nStates before the International Court of Justice (ICJ) is plenary. Although the\nAttorney G eneral\xe2\x80\x99s supervisory authority has been challenged only once since the\n1966 codification of the broad grant of authority contained in 28 U .S.C . \xc2\xa7 \xc2\xa7 5 1 6\nand 519, that challenge was resolved by reference to the broad scope of the\nstatutory provisions as well as Department of Justice regulations contained in\nTitle 28 of the Code of Federal Regulations.\nIn the connection with the litigation between the United States and Iran in\n1980, a dispute arose between the Department of State and the D epartment of\nJustice concerning the Attorney G eneral\xe2\x80\x99s authority to represent the United States\nbefore the ICJ. The Legal Adviser expressed the view that the State Departm ent,\nby virtue of its premier role in United States foreign policy and international\nrelations, had been historically charged with the responsibility for international\naffairs involving the United States, including legal matters. In response, A t\xc2\xad\ntorney General Civiletti cited the unambiguous language of \xc2\xa7\xc2\xa7 516 and 519, and\nnoted the absence of both statutory law and formal opinions which would\n\xe2\x80\x9cotherwise authorize\xe2\x80\x9d the Department of State to conduct litigation independent\nof the Attorney G eneral\xe2\x80\x99s supervision. Attorney G eneral\xe2\x80\x99s letter to the Legal\nAdviser, D epartm ent of State (Apr. 21, 1980).22 In addition, 28 C.F.R. \xc2\xa7 0.46\n(1980)2-1 makes clear that the Attorney G eneral\xe2\x80\x99s litigation authority is not limited\nto domestic m atters, but rather includes litigation \xe2\x80\x9c in foreign courts, special\nproceedings, and similar civil matters not otherwise assigned.\xe2\x80\x9d See gen erally D.\nDeener, The United States Attorneys General and International Law (1957).24\n\nVI. Conclusion\nIn short, the Attorney General, as the chief litigation officer for the United\nStates, has broad plenary authority over all litigation in which the United States,\n22 At President C arter s request. A ttorney G eneral C iviletti personally conducted the Iran litigation before the ICJ,\nassisted by the Legal A dviser to the S tate D epartm ent, w hom the A ttorney G en eral com m issioned as a \xe2\x80\x9cS pecial\nA ssistant,\xe2\x80\x9d pursuant to 28 U S .C . \xc2\xa7 515\n21 28 C F R \xc2\xa7 0 46 (1980) provides*\nThe A ssistant A ttorney G eneral in charge of the Civil D ivision sh all, in addition to litigation\ncom ing w ithin the scope o f \xc2\xa7 0 .4 5 , direct all other civil litigation including claim s by or against the\nU nited S tates, its agencies o r officers, in dom estic or foreign courts, special proceedings, and\nsim ilar civil m atters not otherw ise assigned, and shall em ploy foreign co u n sel to represent before\nforeign crim inal courts, com m issions o r adm inistrative agencies officials o f the D epartm ent of\nJustice and all o ther law enforcem ent officers o f the United States w ho are charged with violations\no f foreign law as a result o f acts which they perform ed in the course and sco p e o f th eirG ovem m ent\nservice\n24 D eener discusses the historical role of the A ttorney G eneral in providing legal advice o n questions of\ninternational law and concludes*\nT he Judiciary A ct of 1789 did not specifically charge the A ttorney G eneral with the duty of\ngiving legal advice on questions of international law On the other hand, the act did not restrict the\n\xe2\x80\x9cquestions of law \xe2\x80\x9d that could be referred to the A ttorney G eneral to those involving dom estic\nm atters only A ctually, alm ost from the very beginning, the President and the departm ent heads\nsubm itted questions involving the law of nations to the ch ief law officer, and succeeding Presidents\nand cabinet officers have continued to subm it such questions as a m atter o f established practice\nC ongress apparently recognized this practical interpretation o f the statutes defining the A ttorney\nG eneral\'s duties At any rate. C ongress has never deem ed it necessary to ch an g e the statutes in this\nrespect.\nDeener, supra, at 1 0 -1 1 (footnotes om itted)\n\n61\n\n\x0cor its federal agencies or departm ents, are involved. This authority is wideranging, em bracing all aspects of litigation, including subpoena enforcem ent, settle\xc2\xad\nm ent authority, and prosecutorial discretion. The reservation of these powers to\nthe Attorney G eneral is grounded in our com m on law tradition, Acts of Congress\n(principally, 5 U .S .C . \xc2\xa7 3106, and 28 U .S .C . \xc2\xa7\xc2\xa7 516 and 519), various ex\xc2\xad\necutive orders, and a long line o f Suprem e C ourt precedent. These powers can be\neroded only by other Acts of Congress, and the Executive\xe2\x80\x99s constitutional\ncom m and to faithfully execute the laws.\nIm plicit in this broad grant o f authority is the recognition that the Attorney\nGeneral m ust serve the interests of the \xe2\x80\x9cclient\xe2\x80\x9d agency as well as the broader\ninterests o f the United States as a whole in carrying out his professional duties.\nThe Attorney G eneral is obligated to adm inister and enforce the Constitution of\nthe United States and the will of Congress as expressed in the public laws, as well\nas the m ore \xe2\x80\x9cprivate\xe2\x80\x9d legal interests of the \xe2\x80\x9cclient\xe2\x80\x9d agency. It is because of this\ndiversity o f functions that situations may arise where the Attorney General is\nfaced with conflicting demands, e .g ., where a \xe2\x80\x9cclient\xe2\x80\x9d agency desires to circum \xc2\xad\nvent the law, or dissociate itself from legal o r policy judgments to which the\nExecutive subscribes; where a \xe2\x80\x9cclient\xe2\x80\x9d agency attempts to litigate against another\nagency or departm ent of the federal government; or where a \xe2\x80\x9cclient\xe2\x80\x9d agency\ndesires a legal result that will benefit the narrow area of law administered by the\nagency, w ithout regard to the broader interests o f the United States government as\na w hole. In such cases, the Attorney G eneral\xe2\x80\x99s obligation to represent and\nadvocate the \xe2\x80\x9cclient\xe2\x80\x9d agency\xe2\x80\x99s position m ust yield to a higher obligation to take\ncare that the laws be executed faithfully. In every case, the Attorney General must\nsatisfy him self that this constitutional duty, delegated from the Executive, has not\nbeen com prom ised in any way, and that the legal positions advocated by him do\nnot adversely affect the interests of the United States.\nT\n\nheodore\n\nB. O\n\nlson\n\nA ssistan t A ttorn ey G en eral\nOffice c f L egal Counsel\n\n62\n\n\x0c'