b'Termination of an Assistant United States Attorney\non Grounds Related to\nHis Acknowledged Homosexuality\nAn A ssistant United States Attorney (AUSA), a federal employee in the \xe2\x80\x9cexcepted\xe2\x80\x9d service, may\nnot be term inated solely on the basis o f his hom osexuality, in the absence of a reasonable\nshow ing that his homosexuality h a s adversely affected his jo b performance.\nThe burden would be on the Department of Justice to demonstrate a nexus between the AUSA\xe2\x80\x99s\nhom osexuality and an adverse effect on his jo b performance. In this case, it is doubtful\nwhether the Departm ent could m eet its burden, because the AUSA has consistently received\nsuperior ratings and has been granted a security clearance. Although it may be argued that a\nprosecutor who violates a state crim inal law prohibiting homosexual acts demonstrates a\ndisrespect for the law inconsistent with the D epartm ent\xe2\x80\x99s standard of prosecutorial conduct,\nthe D epartm ent would have difficulty establishing the required nexus as a matter of law,\nbecause the state law is only enforced against public conduct.\n\nMarch 11, 1983\n\nM\n\nem o ran d um\n\nO p in i o n\n\nfo r the\n\nA s s o c ia t e A\n\nttorn ey\n\nG eneral\n\nThis responds to your request for advice on the legal implications of failing\nto retain an Assistant United States Attorney (AUSA) who is an acknowledged\nhomosexual.\nAs set forth in more detail below, we have concluded that it would be\npermissible for the Department to refuse to retain an AUSA upon a determina\xc2\xad\ntion that his homosexual conduct would, because it violates state criminal law,\nadversely affect his performance by calling into question his and, therefore, the\nDepartment\xe2\x80\x99s, commitment to upholding the law. We must advise, however,\nthat the facts in this case are such that it would be very difficult under existing\njudicial decisions to prove that there is a nexus between his conduct and an\nadverse effect on job performance. Because the burden of proof would be on\nthe Government to prove that such a nexus exists once the AUSA has estab\xc2\xad\nlished that he was dismissed for homosexual conduct, we would suggest\nconsultations with the Civil Division and the Office of Personnel Management\n(OPM) before making a final decision not to retain a person under these\ncircumstances. Both the Civil Division and OPM have informally expressed\nconcern over our ability to defend successfully any suit that might be filed.\n46\n\n\x0cThe AUSA in question has freely admitted his sexual preference, and that he\nhas engaged in and intends to continue to engage in private consensual homo\xc2\xad\nsexual conduct. As we understand the facts, the only reason the Department\nwould not retain the AUSA is because of his homosexual conduct, and that\nreason would, under the Department regulations, be reflected in the letter of\ntermination. We also assume that the letter would note that homosexual acts are\na crime under law of the state in which the AUSA is stationed, and that the\nDepartment believes that any such violations of local criminal law reflect\nadversely on the AUSA\xe2\x80\x99s fitness to represent the Government as a prosecutor.1\nI. Limitations on Terminating an AUSA\nAUSAs are in what is known as the \xe2\x80\x9cexcepted service.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 2103(a).\nThe Attorney General\xe2\x80\x99s authority to remove them, see 28 U.S.C. \xc2\xa7 542(b),2 is\ntempered, however, in several ways, two of which are relevant here: statute and\nOPM regulation.3 The statute and regulation that protect AUSAs from prohib\xc2\xad\nited personnel practices are 5 U.S.C. \xc2\xa7 2302(b)(10) and OPM/FPM Supp. 7311, subchap. 3-2(a)(3)(c).\n1 We do not address the constitutional validity o f such laws. Compare Baker v. Wade, 553 F. Supp. 1121\n(N.D. Tex. 1982); People v. O nofre, 415 N .E.2d 936 (N.Y. 1980), cert, denied, 451 U.S. 987 (1981);\nCommonwealth v Bonadio, 415 A .2d 47 (Pa. 1980); and State v Pilcher, 242 N.W .2d 348 (Iowa 1976) with\nU nited States v. Lem ons, 697 F.2d 832 (8th Cir. 1983), Doe v. C om m onw ealth\'s Attorney, 403 F. Supp. 1199\n(E.D. Va. 1975), a f f d m em ., 425 U.S. 901 (1976); and Stew art v. United States, 364 A.2d 1205 (D .C. Cl.\nApp. 1976).\n2 The section states, \xe2\x80\x9c Each assistant United States Attorney is subject to rem oval by the A ttorney G eneral."\nThere are no reported cases under this section. Department o f Justice regulations provide that attorneys in the\nexcepted service w ho are being rem oved are only entitled to a letter o f term ination. DOJ O rder No. 1752.1A\n(Apr. 27, 1981). The O rder states:\nGENERAL. The rights o f excepted service em ployees are strictly lim ited when discipline,\nincluding separation, is to be imposed H ow ever, some service em ployees have the sam e protec\xc2\xad\ntions as com petitive service em ployees because o f V eterans\xe2\x80\x99 Preference or prior com petitive\nstatus.\nPROCESSING D ISCIPLIN E, a. An excepted service em ployee who is protected under law and\nthe regulations o f the O ffice o f Personnel M anagem ent [because o f veterans\' preference] is\nentitled to the procedures fgovem ing regular civil service employees].\nb. An excepted service em ployee with no protection under law or regulation should be given a\nletter advising him o r her o f the action being taken (suspension, separation, etc ) p n o r to the\neffective date o f the action.\nId. at 19, 20.\n3 The lim itations on the A ttorney G eneral\xe2\x80\x99s authority may be categorized as: (1) OPM regulations govern\xc2\xad\ning em ploym ent o f those in the excepted service, see 5 C.F.R. \xc2\xa7\xc2\xa7 302.101 et seq.\\ (2) statutes and OPM\nregulations governing em ploym ent o f veterans in the excepted service; (3) Department regulations; and (4)\nany Department handbooks o r inform al understandings that may establish a reasonable expectation of\ncontinued em ploym ent. See A shton v. C iviletti, 613 F 2d 923 (D C. Cir. 1979).\n*\nA veteran, 5 U.S.C. \xc2\xa72 1 0 8 (1 )(B ), (3)(B), who has served for one year in the excepted service, id\n\xc2\xa7 7 5 1 1(a)(1)(B), is afforded civil service protection, and action may be taken against him \xe2\x80\x9conly for such\ncause as w ill promote the efficiency o f the service.\xe2\x80\x9d Id. \xc2\xa7 7513(a). W hether the Attorney G eneral\xe2\x80\x99s authority\nin 28 U .S.C. \xc2\xa7 542(b) prevails over the veterans\xe2\x80\x99 preference statute is a question on w hich this O ffice\nexpressed considerable doubt some years ago. M emorandum fo r W illiam D. Ruckelshaus, A ssistant A ttorney\nGeneral, C ivil D ivision from A ssistant A ttorney General Rehnquist, O ffice o f Legal Counsel (Sept. 10,\n1970); M emorandum for A ssistant Attorney G eneral R ehnquist from Leon Ulman and Herman M arcuse\n(Sept. 4, 1970).\n\n47\n\n\x0cA. Statutory and Regulatory Constraints\nThe decision not to retain the AUSA may be made for any number of reasons\n\xe2\x80\x94 for example, budget factors or employment ceilings \xe2\x80\x94 but it may not be\nmade for a reason prohibited by statute or regulation. The Department is\nprohibited by statute\nfrom discriminat[ing] . . . against any employee or applicant for\nemployment on the basis of conduct which does not adversely\naffect the performance of the employee or applicant or the\nperformance of others.\n5 U.S.C. \xc2\xa7 2302(b)(10).4 In addition, OPM has issued guidelines covering\nsuitability for employment in the federal government .5 Although applicants for\nemployment in the excepted service may be disqualified if they engage in\n\xe2\x80\x9cinfam ous, . . . immoral o r notoriously disgraceful conduct,\xe2\x80\x9d 5 C.F.R.\n\xc2\xa7 302.203, the courts have held that neither the status of being a homosexual\nnor homosexual conduct which does not adversely affect job performance falls\nwithin this provision. In reversing a decision by the Civil Service Commission\n(now OPM) to disqualify an applicant for employment because of alleged\nimmoral conduct, the U.S. C ourt of Appeals for the District of Columbia\nCircuit said over fifteen years ago:\nThe Commission may not rely on a determination of \xe2\x80\x9cimmoral\nconduct,\xe2\x80\x9d based only on such vague labels as \xe2\x80\x9chomosexual\xe2\x80\x9d and\n\xe2\x80\x9chomosexual conduct,\xe2\x80\x9d as a ground for disqualifying appellant\nfor Government employment.\nScott v. M acy , 349 F.2d 182, 185 (D.C. Cir. 1965).6 As a result of cases such as\nthis, e.g., Norton v. Macy, 417 F.2d 1161 (D.C. Cir. 1969); Society fo r Indi\xc2\xad\nvidual Rights v. Hampton, 63 F.R.D. 399 (N.D. Ca. 1973), a f f d on other\ngrounds, 528 F.2d 905 (9th Cir. 1975); and Baker v. Hampton, 6 Empl. Prac.\n\nDec. (CCH) I 9043 (D.D.C. 1973), OPM issued a Bulletin on December 21,\n1973, placing the following gloss on the regulation:\n[Y]ou may not find a person unsuitable for Federal employment\nmerely because that person is a homosexual or has engaged in\nhomosexual acts, nor may such exclusion be based on a conclu\xc2\xad\nsion that 9 homosexual person might bring the public service\n4 T he statute covers appointments in the excepted service. 5 U .S.C. \xc2\xa7 2302(a)(2)(A )(i), (B). AUSA\npositions do not fall w ithin Schedule C , 5 C.F.R. \xc2\xa7 213.3301, and are not, therefore, within any o f the\nexceptions to the coverage o f this statute. 5 U.S.C. \xc2\xa7 2302(a)(2)(B )(i).\n5 O PM adm inisters the regulations governing the civil service. 5 U .S.C. \xc2\xa7 1103(a)(5) The civil service\nincludes the excepted service. 5 U.S.C. \xc2\xa7 2101(1).\n6 A fter the decision in S c o tt, the Civil Service C om m ission again disqualified the applicant, and was again\nreversed. S co tt v. M a cy, 402 F.2d 644 (D .C . Cir. 1968).\n\n48\n\n\x0cinto public contempt. You, are, however, permitted to dismiss a\nperson or find him or her unsuitable for Federal employment\nwhere the evidence establishes that such person\xe2\x80\x99s homosexual\nconduct affects job fitness \xe2\x80\x94 excluding from such consider\xc2\xad\nation, however, unsubstantiated conclusions concerning pos\xc2\xad\nsible embarrassment to the Federal Service.\nAshton v. Civiletti, 613 F.2d 923, 927 (D.C. Cir. 1980) (quoting Bulletin). In\nNovember 1975, OPM issued FPM Supplement 731-1, Determining Suitabil\xc2\xad\nity fo r F ederal Employment. Subchapter 3-2(a)(3)(c), which discusses infa\xc2\xad\n\nmous or notoriously disgraceful conduct, states:\nCourt decisions require that persons not be disqualified from\nFederal employment solely on the basis of homosexual conduct.\nOPM and agencies have been enjoined not to find a person\nunsuitable for Federal employment solely because that person is\na homosexual or has engaged in homosexual acts. Based upon\nthese court decisions and outstanding injunction^], while a\nperson may not be found unsuitable based on unsubstantiated\nconclusions concerning possible embarrassment to the Federal\nService, a person may be dismissed or found unsuitable for\nFederal employment where the evidence establishes that such\nperson\xe2\x80\x99s sexual conduct affects job fitness.\nThus, it is improper to deny employment to or to terminate anyone on the basis\neither of sexual preference or of conduct that does not adversely affect job\nperformance. In short, there must be a reasonable showing that the homosexual\nconduct adversely affects the job performance.\nB. Case Law\n\n1. The Nexus Test\nAn examination of recent case law indicates that the burden is on the\nGovernment to demonstrate that the AUSA\xe2\x80\x99s homosexual conduct has ad\xc2\xad\nversely affected or will adversely affect his performance or that of others, and\nthat it will be difficult for the Government to do so. Hoska v. United States , 677\nF.2d 131, 136-38 (D.C. Cir. 1982). The U.S. Court of Appeals for the District\no f Columbia Circuit has articulated four ways in which homosexual conduct\nmight adversely affect job performance: (1) if it jeopardizes the security of\nclassified information through potential blackmail; (2) if it constitutes evi\xc2\xad\ndence of an unstable personality unsuited for certain kinds of work; (3) if it\ncauses the employee to make offensive overtures at work; or (4) if it constitutes\nthe basis of \xe2\x80\x9cnotorious\xe2\x80\x9d activities that trigger negative reactions from fellow\nemployees or the public. Norton v. M acy , 417 F.2d 1161, 1166 (D.C. Cir.\n\n49\n\n\x0c1969).7 As in N orton, we believe that it be difficult for the Department to\nconvince a court that the particular employee at issue failed any of these tests.\nId. at 1166.8 Given his record, it would appear that the only way his ability to\nfunction successfully might be jeopardized would be through hostility from the\npublic or his fellow workers, but there is no evidence o f any negative reactions.\nNor is the AUSA, as an overt homosexual, apparently considered to be a\nsecurity risk through a blackmail threat. The Department has given him a\nsecurity clearance, and there is no evidence that the AUSA has an unstable\npersonality: rather, his work is described as consistently superior. His current\nsupervisor has stated that the AUS A \xe2\x80\x99s work continues to be excellent, and there\nare no allegations that he has made offensive overtures at work.9 We are not\naware o f any evidence that he has engaged in the kind of notorious conduct that\nwas found to be sufficient for termination in Singer v. United States Civil\nService C om m \xe2\x80\x99n , 530 F.2d 247 (9th Cir. 1976), vacated and remanded, 429\nU.S. 1034 (1981), and Childers v. D allas P olice D e p \xe2\x80\x99t, 513 F. Supp. 134, 14042 (N.D. Tex. 1981).10 Rather, the AUSA has apparently been so discreet that\nthe fact o f his homosexuality came as a surprise to his superiors. Like the\nemployee in N orton, the AUSA could successfully argue that he is a satisfac\xc2\xad\ntory worker who suffered an adverse employment action because of a general\npolicy decision.11\n7 N orton involved a veteran who could o n ly be dism issed fo r \xe2\x80\x9c such cause as will prom ote the efficiency of\nthe serv ice.\xe2\x80\x9d 5 U .S.C . \xc2\xa7 7512(a) (Supp 1965). The nexus test, how ever, has been carried over in subsequent\ncases to disputes involving those in the ex cep ted service. A shton v. C iviletti, 613 F.2d 923 (D.C. Cir. 1979).\nN ot all c ircu its use the nexus test, see, e.g.. Vigil v. Post O ffice D ep\'t, 406 F.2d 921 (10th Cir. 1969), but it is\nthe test em ployed in the circuits in which it is most likely that the AUSA, if he were so inclined, w ould bring\nsuit.\n8 N orton involved an otherw ise com petent NASA budget analyst dism issed because o f a homosexual\nadvance he m ade one evening while in a c ar. 417 F.2d at 1162-63. He w as arrested for a traffic violation by\nm em bers o f the M orals Squad who had o b serv ed the incident. He was then interrogated about his conduct by\nthe M orals Squad and NASA security officers. Although sodom y was a violation of the local law, D.C. Code\n\xc2\xa7 2 2 -3 5 0 2 (1967), the court did not raise th e issue o f w hether such a violation might autom atically establish\nthe nexus. The g o vernm ent\xe2\x80\x99s brief did, how ever, note that sodomy was a crime and that the police had\nprobable cause to arrest Mr. Norton on that charge, although they chose not to. A ppellee\xe2\x80\x99s B rief at 14 n.9, 31\n& n.25, N orton v M acy, 417 F.2d [161 (D .C . Cir. 1969). Thus, the Court o f Appeals im plicitly rejected the\nproposition that conduct violative of the lo cal ordinance was sufficient, standing alone, to establish a nexus\nbetw een that conduct and the jo b performance required in M r. N orton\xe2\x80\x99s job.\n9 See, e.g., S a fra n sky v. State Personnel B oard, 215 N .W .2d 379, 381, 385 (Wise. 1974).\n10C om pare Singer, 530 F.2d at 249, 2 5 2 -5 5 , M cC onnell v. A nderson, 451 F.2d 193 (8th Cir. 1971), cert,\ndenied, 405 U .S. 1046 (1972); Childers, 513 F. Supp. at 140-41 w ith A um iller v. U niversity o f D elaware, 434\nF. Supp. 1273 (D. D el. 1977). See also R o ss v. Springfield S chool Dist. No. 19, 641 P.2d 600, 608 (Or. Ct.\nA pp. 1982) (teacher properly dismissed w here public practice o f hom osexuality resulted in \xe2\x80\x9cnotoriety\xe2\x80\x9d which\nim paired his teaching ability).\n11 In ben Shalom v. S ecreta ry o f Army, 489 F. Supp. 964 (E.D. W ise. 1980), the court found that the\ndism issal o f an otherw ise suitable soldier b ecau se o f her hom osexuality violated the soldier\xe2\x80\x99s substantive due\nprocess rights un d er the Fifth Amendment. Id. Given that the soldier had received high m arks on her military\nperform ance, the court found th at there w as no nexus betw een her status as homosexual and her suitability for\nservice. \xe2\x80\x9c It w as, therefore, arbitrary, capricious and unreasonable for the A rm y to conclude that the petitioner\nwas anything o th e r than a \'su itab le\' soldier under its regulations.\xe2\x80\x9d Id. at 977. See also M artinez v. B row n, 449\nF. Supp. 207 (N .D . Ca. 1978) (same; Navy regulations). B u t see B eller v. M iddendorf, 632 F.2d788 (9th Cir.)\n(rejectin g sam e analysis w hen applied to N avy regulation), p e t \xe2\x80\x99n fo r reh \xe2\x80\x99g en banc denied sub nom. M iller v.\nR um sfeld, 647 F.2d 80 (9th C ir. 1980), c ert, denied, 452 U.S. 905 (1981). The denial o f the petition for\nrehearing en ba n c elicited a long dissent. M iller, 647 F.2d at 80 -9 0.\n\n50\n\n\x0cWe are aware of two cases in which the Government has dismissed homo\xc2\xad\nsexual employees and defended the dismissals successfully: Singer, supra, and\nDew v. H alaby, 317 F.2d 582 (D.C. Cir. 1963), cert, dismissed, 379 U.S. 951\n(1964). D ew occurred prior to the issuance of the pertinent OPM regulation.\nSinger involved the kind of \xe2\x80\x9cnotorious\xe2\x80\x9d conduct faulted in N orton : Mr. Singer\nwas a clerk typist whose work was satisfactory but whose off-duty conduct\nincluded kissing and embracing another man on federal property, discussing\ngay rights on TV shows in which he identified himself as a federal employee,\napplying for a marriage license to be married to another man, and receiving\n\xe2\x80\x9cextensive\xe2\x80\x9d publicity because of his attempt to obtain a marriage license. 530\nF.2d at 249. In both D ew and Singer, the Government received adverse public\xc2\xad\nity because o f the dismissals and eventually reversed its policy, reinstating both\nemployees with back pay.\nBecause the AUSA has stated that he intends to continue to engage in\nhomosexual conduct, and this is now public knowledge, the Department might\ntake the position that an AUSA who habitually engaged in a violation of state\ncriminal law brings discredit upon the Department sufficient to establish the\nkind of nexus required by current case law. We could argue that the willingness\nto engage in such acts in violation o f local law demonstrates a disrespect for the\nlaw that is not consistent with the standard of conduct demanded by the\nDepartment o f someone who is engaged in prosecuting others for violations of\nthe law. We could also note that the local legal community, represented by the\nstate bar, has condemned at least the public practice of homosexuality.\nOn the other hand, OPM \xe2\x80\x99s regulation forbids the federal government from\ndiscriminating against those who engage in homosexual conduct, absent a\nnexus between the conduct and job performance. The AUSA could argue that\nOPM\xe2\x80\x99s regulation forbids the taking into account of state laws, especially if the\nAUSA would probably not be prosecuted for private consensual homosexual\nacts under the state\xe2\x80\x99s current enforcement policy. OPM was presumably aware\nin 1973 that homosexuality violated the laws of many states and did not intend\nits standard an adverse effect on job performance to be met by merely showing\nthat the conduct violates state law.\n2. Law Enforcement Exception\nThe only justification in the case law which might support a decision to\nrefuse to retain the AUSA in this context would be to convince the court that\nprivate homosexual conduct is, once it is public knowledge, detrimental to the\nperformance of the AUSA\xe2\x80\x99s job in states where it violates the criminal law.\nProving the nexus between questioned behavior and job performance, espe\xc2\xad\ncially when the behavior occurs outside the work place, is, however, often\ndifficult.12 Courts seem reluctant to find a nexus if the behavior does not occur\n12 See Bonet v. U nited States P ostal Service, 661 F.2d 1071 (5th Cir. 1981) (indictm ent for child m olesta\xc2\xad\ntion, standing alone, insufficient); Young v. H am pton, 568 F.2d 1253 (7th C ir. 1977) (conviction for drug use.\nContinued\n\n51\n\n\x0cduring official work hours, and have stated that it is the agency\xe2\x80\x99s obligation to\nspell out how the conduct will affect performance or promote the efficiency of\nthe service. P hillips v. Bergland, 586 F.2d 1007, 1012-13 (4th Cir. 1978).\nThe most effective way to prove adverse effect on job performance would be\nto prove that the special nature of a prosecutor\xe2\x80\x99s job \xe2\x80\x94 his public representa\xc2\xad\ntion o f the entire Department, his duty to uphold the law, and the potential for\naccusations of hypocrisy for hiring a lawbreaker to enforce the law \xe2\x80\x94 requires\nthat there be no taint o f criminality. 28 C.F.R. \xc2\xa7 45.735-2(a). Some cases have\nemphasized that law enforcement officers can, because of their particularly\nsensitive positions, be held to a stricter standard of behavior, even in their\nprivate lives, than might otherwise be the case. For example, in M asino v.\nU nited States, 589 F.2d 1048 (Ct. Cl. 1978), the court approved the dismissal of\na United States customs officer because of his voluntary statements that he had\nsmoked marijuana on several occasions:\nM asino in his position as a Customs Inspector was specifically\ncharged with enforcing the laws concerning contraband, includ\xc2\xad\ning marijuana. Since possession and/or use o f marijuana is a\nviolation of federal criminal statutes, he was clearly not con\xc2\xad\nducting him self in a m anner to be expected o f a Government\nemployee engaged in law enforcement duties. This was what the\nappeals authority said, and we agree. Further, in addition to the\nlanguage of the appeals authority, the transportation and use of\nthe very contraband which a law enforcement officer is sworn to\ninterdict, is clearly misconduct which \xe2\x80\x9cspeaks for itself.\xe2\x80\x9d Obvi\xc2\xad\nously, the disciplinary action of termination taken against Masino to\n\xe2\x80\x9cpromote the efficiency o f the service\xe2\x80\x9d cannot be said to be without\na rational basis. His discharge was neither arbitrary nor capricious.\n589 F.2d at 1056. A district court has upheld a state law barring all felons, even\nthose who had received pardons, from being policemen. Dixon v. McMullen,\n12( . . . continued)\nstanding alone, insufficient); Tygrett v. B a rry, 627 F.2d 1279 (D.C. C ir. 1980) (reaffirm ing analysis in\nT ygrett v. W ashington, 543 F.2d 840 (D C . Cir. 1974)) (probationary policem an\'s advocacy of illegal \xe2\x80\x9csick\no u t\xe2\x80\x9d in su fficien t); G rebosz v. United S ta te s C ivil Service C om m \'n, 472 F. Supp. 1081 (S D.N.Y. 1979)\n(con v ictio n s fo r possession o f marijuana a n d sale o f cocaine insufficient). Even questionable conduct while\nat w ork does not au tom atically provide the nexus. In Phillips v. Bergland, 586 F.2d 1007 (4th Cir. 1978), the\nc ourt d eclin ed to find that assaulting a fello w em ployee in th e stairw ell, albeit during the lunch hour, was\nfacially sufficient to prove the nexus:\nT ypical o f conduct, w hich carries on its face p rejudice to the service as contem plated in\n\xc2\xa7 7 501(a), are falsificatio n of work records o r expense accounts, theft of governm ent property,\nassau lt on o n e \xe2\x80\x99s su p erv iso r at work, an d insubordination. All of these . . . are quite different from\nm isconduct w hich is entirely u nrelated to the em ployee\xe2\x80\x99s work and which occurs when the\nem ployee is o ff duty. A nd the courts have recognized th at distinction and have made plain the\ng reater burden w hich rests on the agency to justify its action in the latter case.\nId. at 1011 (footnotes and citations om itted). B ut see Yacovone v. Bolger, 645 F 2d 1028 (D.C. Cir.), cert\nd enied , 454 U .S. 844 (1981) ($8 theft by P o stm aster sufficient because o f fiduciary responsibilities); Wathen\nv. U nited S ta tes, 527 F.2d 1191 (Ct. Cl.) (m u rd er com m itted in public sufficient), cert, denied, 429 U.S. 821\n(1976); G ueroy v. H am pton, 510 F.2d 1222 (D.C C ir 1974) (m anslaughter conviction sufficient).\n\n52\n\n\x0c527 F. Supp. 715 (N.D. Tex. 1981). The court said that it was permissible for\nthe state to examine the individual\xe2\x80\x99s prior history and to deny employment to\nthose with a background of lawbreaking in order to insure \xe2\x80\x9cthat those persons\npublicly employed in emergency or dangerous situations are sober and alert,\nand possess qualities such as honesty, integrity, reliability and obedience to the\nlaw.\xe2\x80\x9d Id. at 721. Noting that policemen are acting on behalf of \xe2\x80\x9cpeople at\nlarge,\xe2\x80\x9d the court said:\nPolicemen are just simply a special category. Integrity and\ntrust are prerequisites. The law clothes an officer with authority\nto handle many critical situations, including those that occur in a\nlightning moment and which can never be reenacted or reversed.\n. . . A state\xe2\x80\x99s legitimate concern for maintaining high standards\nof professional conduct extends far beyond the initial licensing.\nId. See also Upshaw v. McNamara, 435 F.2d 1188, 1190 (1st Cir. 1970);\nM acchi v. Waley, 586 S.W.2d 70, 72-74 (Mo. Ct. App. 1979); Vegas v.\nSchechter, 178 N.Y.S.2d 67, 68-69 (Sup. Ct. 1958).13 Even those whose\n\nconnections to law enforcement appear more tenuous have come within the\nsweep of these statements. In upholding the denial of employment to a homo\xc2\xad\nsexual who sought work as a property room clerk in the police department,\nChilders v. D allas Police Department, supra, the court said:\nNo one can disagree that the character and activities of those to\nwhom we entrust the enforcement of our laws must be beyond\nreproach. The activities of an employee of a law enforcement\nagency are o f paramount interest to that agency, as the police\ndepartment as a whole must reflect the values of a majority of\nsociety.\nChilders, 513 F. Supp. at 140\xe2\x80\x9441.14 Likewise, it could certainly be argued that\npublic prosecutors must be trustworthy and law abiding, or else the public\xe2\x80\x99s\nconfidence in the justice system will erode. Persons deciding whether to bring\nor decline prosecutions should not be lawbreakers themselves.15\n\n13 But see Sm ith v. Fussenich, 440 F. Supp. 1077 (D. Conn. 1977) (law b am ng all felons from w ork as\nprivate security guards struck down as overbroad).\n14 H ow ever, C hilders offers less support for the decision not to retain the AUSA than at first appears. First,\nthe case involved a property room clerk, the same kind o f low -level jo b involved in Ashton, supra, in which\nthe D .C. C ircuit cam e to the opposite conclusion about an FBI m ailroom clerk. Second, C hilders involved a\nhom osexual who, as in Singer, was not discreet and who openly advocated hom osexuality w hile identifying\nhim self as a public employee. The notoriety led the Court to conclude that the applicant failed one o f the tests\nlaid out in N orton, supra. Childers, 513 F. Supp. at 142 n .l 1.\n15 Law enforcem ent is not the only profession the courts have recognized as being one in w hich the pub lic\xe2\x80\x99s\nconfidence in the em ployee is important. An a ir co n tro ller\'s jo b has been described by courts as a \xe2\x80\x9ca sensitive\none\xe2\x80\x9d in w hich m isconduct m ay erode the p u b lic\'s faith in reliability o f the national air control system. D ew v.\nH alaby, 317 F 2 d 582, 587 n . l l (D.C Cir. 1963) (hom osexual acts), cert, dism issed, 379 U.S. 951 (1964);\nM cD ow ell v. G oldschm idt, 498 F. Supp. 598, 605 (D. Conn 1980) (conviction for possession o f m arijuana).\nD ew \'s continued validity has been undercut by Norton, decided five years later, in which the D.C. C ircuit was\nm uch more w illing to question and overrule O P M \xe2\x80\x99s rationale.\n\n53\n\n\x0cWe must emphasize, however, that none of these cases is dispositive. Fur\xc2\xad\nthermore, the fact that the AUSA has apparently, according to those who have\nevaluated him, continued to perform effectively in his job even after his\nhomosexuality became public knowledge in the United States Attorney\xe2\x80\x99s Of\xc2\xad\nfice will seriously undercut the crucial argument that his homosexual conduct\nis adversely affecting his job performance. In order to prevail, the Department\nmay well have to convince the courts to accept the argument that the continuing\nviolation o f local laws that make private consensual homosexual conduct\ncriminal establishes the required nexus as a matter of law even though that\nlocal law probably would not be enforced against the AUSA and even though\nsuch a legal \xe2\x80\x9cpresumption\xe2\x80\x9d might be said to run counter to the pertinent statute\nand regulations.\n\nII. Comstitational Protectnoims\nThe AUSA might attempt to argue that failing to retain him would violate\ncertain o f his constitutional rights, but we do not believe such arguments would\nbe successful. It is true that federal employees do not give up their constitu\xc2\xad\ntional rights upon accepting employment and the federal government may not\ncondition a job upon the waiver of those rights. However, the issue whether the\nright to privacy, which the courts have determined to be protected by the\nConstitution, encompasses the right to practice private consensual homosexu\xc2\xad\nality is still a m atter o f serious dispute. See Berg v. Claytor, 436 F. Supp. 76,79\n(D.D.C. 1977), vacated, 591 F.2d 849 (D.C. Cir. 1978). Although some courts\nhave found protection for homosexuals for certain activities in the First Amend\xc2\xad\nment either in the freedom to speak,16 the freedom to associate,17 or the right to\n]6S ee A u m illier v. U niversity o f D elaw are, 434 F. Supp. 1273, 131112 (D. Del. 1977); A canfora v Bd. o f\nE du ca tio n , 491 F.2d 498, 501 (4th Cir.), c e rt. d enied, 419 U.S. 836 (1974). In A um illier, the court awarded\npun itiv e dam ages in an action brought u n d e r 42 U.S.C. \xc2\xa7 1983 against a university president w ho refused to\nrehire an untenured teacher because the teach er had discussed his hom osexuality in public. But see Suddarth\nv. Slane, 539 F. Supp. 612, 616 (W.D. V a. 1982) (denied recovery under \xc2\xa7 1983 on ground that participation\nin illegal act \xe2\x80\x94 adultery \xe2\x80\x94 precluded recovery fo r allegedly w rongful dism issal). Damages w ere also\naw arded in J ohnson v. San Jacinto J u n io r College, 498 F. Supp. 555, 57779 (S.D. Tex. 1980) (adultery\npun ish ed by sum m ary dem otion without a hearing).\n17 See G ay L ib v. U niversity o f M issouri, 558 F.2d 848 (8th Cir. 1977) (freedom o f speech and association\nprotects hom osexual students), cert denied, 434 U.S. 1080 (1978); G ay A lliance v. M athew s, 544 F.2d 162\n(4th C ir. 1976) (sam e); G ay Students O rg. v. Bonner, 509 F.2d 652 (1st Cir. 1974) (same); Lesbian/G ay\nF reedom D ay C om m ittee, Inc. v. INS, 541 F Supp 569 (N.D. Cal. 1982) (holding unconstitutional p er se\nexclu sio n o f hom osexual aliens as violative o f First A m endm ent associational rights o f hom osexual citizens);\nF ricke v. Lynch, 491 F. Supp. 381 (D .R .I. 1980) (hom osexual high school student\xe2\x80\x99s rights to freedom of\nspeech and association covered bringing hom osexual date to high school prom); Student Coalition fo r Gay\nR ig h ts v. A u stin P eay State University, 4 7 1 F Supp. 1267 (M .D . Tenn. 1979); Toward a G ayer B icentennial\nC om m ittee v. Rhode Isla n d Bicentennial Foundation, 417 F. Supp. 632 (D.R.I. 1976) (upholding right o f\naccess to public forum ); G ay Activists A llia n ce v. Board o f Regents, 638 P.2d 1116 (Okla. 1981); Alaska Gay\nC oalition v. S u llivan, 578 P.2d 951 (Ala. 1978). See also N em etz v. INS, 647 F.2d 432 (4th Cir. 1981) (private\nhom osexual co nduct d oes not preclude finding o f \xe2\x80\x9cgood m oral character\xe2\x80\x9d necessary for naturalization). Even\nthe m ilitary \xe2\x80\x99s p e r se exclusion of hom osexuals has been successfully attacked in some cases despite the\ntrad itio n al deference given to arguments about discipline and upholding the law. ben Shalom v. Secretary o f\nA rm y, 489 F. Supp. 964 (E.D . Wise 1980) (discharge fo r hom osexuality violated rights o f association and\npersonal privacy). See also Bruns v. Pomerleau, 319 F. Supp. 58 (D. Md. 1970) (refusal to accept employment\napplication from practicing nudist violated his right to freedom o f association). Some courts have also found\nprotection in state constitutions. Gay Law Students A s s \xe2\x80\x99n v. Pacific Tel. & Tel., 595 P.2d 592,597 (Cal. 1979)\n\n54\n\n\x0cconduct one\xe2\x80\x99s private life free from government surveillance, see C yr v. Walls,\n439 F. Supp. 697 (N.D. Tex. 1977) (police surveillance of homosexual groups\nviolated right to privacy),18 we do not believe that failing to retain the AUSA\nwould violate these rights. The Department has not invaded the AUSA\xe2\x80\x99s\nprivacy by making impermissible inquiries, because the background check is\nrequired of all applicants and there has been no further inquiry. Failure to retain\nthe AUSA would not be because he associates with homosexuals or has spoken\nout about his status but solely because of a determination that knowing,\ncontinuing violations of a local criminal law are sufficient to disqualify him\nfrom a job as a federal prosecutor.\n\nIII. Conclusion\nThe Department has the right to decline to retain the AUSA if his conduct or\nintended conduct are adversely affecting his job performance or the perfor\xc2\xad\nmance of those around him. In this particular case, the individual involved\napparently has an excellent record as a litigator and is, according to his present\nsuperior, functioning in a satisfactory manner. It would be difficult, given this\nrecord, to show that his homosexual conduct in fact adversely affects his job\nperformance. Rather, we believe that on these facts it would be likely that he\nwould meet the tests articulated in Norton, supra, especially in view of the fact\nthat the Department is willing to give him the security clearance necessary for\nhis work. The state criminal law he is apparently violating is, we understand,\nonly enforced against public conduct. The Department does not have a policy\nof dismissing people for conduct that violates other similar state criminal laws.\nStaff members at both the Civil Division, which will be called upon to\ndefend any suit, and OPM, whose regulation we are interpreting, have been\ninformally consulted and have stated that they believe the facts of this case will\nmake it difficult to establish a sufficient nexus between the conduct and the job\nperformance, and we tend to agree with their judgment. As long as the OPM\nregulation remains in force, we also believe it would be difficult to establish the\nproposition that the violation of local laws on the facts of this case establishes a\nnexus as a matter of law sufficient to support a decision to dismiss.\nWe must reiterate that the case law makes it clear that potential embarrass\xc2\xad\nment to the Department is not enough to justify a refusal to retain an AUSA:\nthere must be a supportable judgment made by the appropriate officials that the\nAUSA\xe2\x80\x99s actions are adversely affecting his performance. Unless the Depart\xc2\xad\nment can reasonably expect to maintain the burden of proof on this issue, it is\n18 See also Shuman v. City o f Philadelphia, 470 F. Supp. 449, 459 (E.D. Pa 1979) (inquiry into off-duty\npersonal activities \xe2\x80\x94 affair w ith an 18-y ear-o ld \xe2\x80\x94 violated right o f privacy in the absence o f any showing o f\nim pact on job perform ance); M ajor v. H am pton, 413 F. Supp. 66 (E.D. La. 1976) (dism issal o f IRS officer\nwho rented apartm ent for off-duty, extram arital affairs imperm issible); M indel v. U nited States Civil Service\nC om m \xe2\x80\x99n, 312 F. Supp. 485 (N.D. Cal. 1970) (term ination o f postal clerk for cohabiting violated Ninth\nA mendm ent right to privacy). B u t see Suddarth v. S lane, 539 F. Supp 612 (W .D. Va. 1982) (adultery not\nprotected by the First Am endm ent); H ollenbaugh v. C arnegie Free Library, 436 F. Supp. 1328 (W .D. Pa.\n1977), a j f d , 578 F.2d 1374 (3d C ir.) (em ployees\xe2\x80\x99 open adultery not protected by right o f pnvacy), cert.\ndenied, 439 U.S. 1052(1978).\n\n55\n\n\x0cnot reasonable to expect that the Department would prevail. Without stronger\nevidence that this particular individual\xe2\x80\x99s homosexuality is adversely affecting\nhis performance, we believe that it would be difficult to overcome charges of\ndiscrimination on the basis of conduct that apparently does not adversely affect\nthe performance o f the employee or those around him.\nT h eo d o r e B . O lso n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n56\n\n\x0c'


b'Legal Effectiveness of Congressional Subpoenas Issued After an\nAdjournment Sine Die of Congress\nA congressional subpoena issued after an adjournment sine die o f Congress lacks any legal force\nand effect and does not impose any legal obligation to comply with the subpoena.\nN o v e m b er 12, 1996\nM e m o r a n d u m O p in io n f o r t h e A t t o r n e y G e n e r a l\n\nY o u have asked this Office to analyze the legal effectiveness of a congressional\nsubpoena issued after a sine d ie adjournment of Congress. In a 1982 opinion,\nthis Office concluded that a congressional subpoena issued during a session of\nCongress lacks present force and effect after the adjournment sine die of Congress.\n\nSee Continuing Effect o f a Congressional Subpoena Following the Adjournment\no f C ongress, 6 Op. O.L.C. 744 (1982). According to that opinion, the lapse in\n\nlegal effectiveness \xe2\x80\x9c results from the same factors that produce, at the same time,\nthe death of all pending legislation not enacted . . . and the termination of con\xc2\xad\ngressional authority to hold a contumacious witness in custody.\xe2\x80\x9d Id. at 745 (inter\xc2\xad\nnal citations omitted). It would necessarily follow from the analysis contained\nin that opinion that a subpoena issued after an adjournment sine die lacks any\nforce and effect ab initio. After revisiting the issue, we continue to adhere the\nanalytical framework used in this Office\xe2\x80\x99s 1982 opinion. Therefore, for the reasons\nset forth below, we conclude that a congressional subpoena issued after a sine\nd ie adjournment has no legal effect.1\nI. LEGAL DISCUSSION\nThe Constitution vests all legislative authority in Congress. U.S. Const, art. I,\n\xc2\xa7 1. Although the Constitution does not expressly authorize Congress to issue sub\xc2\xad\npoenas, the Supreme Court has stated that the authority to subpoena is an \xe2\x80\x9c indis\xc2\xad\npensable ingredient\xe2\x80\x9d of Congress\xe2\x80\x99 legislative power. Eastland v. United States\nServicem en\xe2\x80\x99s Fund, 421 U.S. 491, 505 (1975). In McGrain v. Daugherty, 273\nU.S. 135, 174 (1927), the Court declared that \xe2\x80\x9c the power of inquiry \xe2\x80\x94 with proc\xc2\xad\ness to enforce it\xe2\x80\x94 is an essential and appropriate auxiliary to the legislative func\xc2\xad\ntion.\xe2\x80\x9d According to the Court:\nA legislative body cannot legislate wisely or effectively in the ab\xc2\xad\nsence of information respecting the conditions which the legislation\n1 Several rules o f the H ouse and Senate apply to the authorization and issuance of congressional subpoenas. See,\ne.g.. H ouse Rule XI(2)(m )(l)(B); Senate Rule X X V I(l). See also House Rule XI(2)(m)(2)(A); Senate Rule\nX X V I(7)(a)(l). For purposes o f analysis, this memorandum assumes that a post-fine die adjournment congressional\nsubpoena can be issued in a manner consistent with the relevant House and Senate rules.\n\n372\n\n\x0cLegal Effectiveness o f Congressional Subpoenas Issued After an Adjournment Sine Die o f Congress\n\nis intended to affect or change; and where the legislative body does\nnot itself possess the requisite information \xe2\x80\x94 which not infrequently\nis true \xe2\x80\x94 recourse must be had to others who do possess it. Experi\xc2\xad\nence has taught that mere requests for such information often are\nunavailing, and also that information which is volunteered is not\nalways accurate or complete; so some means of compulsion are es\xc2\xad\nsential to obtain what is needed.\nId. at 175. Similarly, in Eastland, the Court said:\n\nThe power to investigate and to do so through compulsory process\nplainly falls within [the definition of Congress\xe2\x80\x99s legislative func\xc2\xad\ntion], This Court has often noted that the power to investigate is\ninherent in the power to make laws.\nEastland, 421 U.S. at 504.2\n\nThis understanding \xe2\x80\x94 that Congress\xe2\x80\x99s subpoena power inheres in and is ancil\xc2\xad\nlary to its power to legislate\xe2\x80\x94 leads logically to the conclusion that the legal\nobligation to comply with a congressional subpoena lapses upon the cessation\nof Congress\xe2\x80\x99s authority to legislate. Just as an adjournment sine die results in\nthe death of all pending legislation, see Floyd M. Riddick, The United States Con\xc2\xad\ngress: Organization and Procedure 56 (1949), making passage and presentment\nto the President impossible, see U.S. Const, art. I, \xc2\xa7\xc2\xa71, 7; The Pocket Veto Case,\n279 U.S. 655, 681 (1929) (final adjournment of Congress \xe2\x80\x9c terminates the legisla\xc2\xad\ntive existence of the Congress\xe2\x80\x9d ), so too must it result in the cessation of the\nauxiliary power to compel witnesses to present testimony or information via sub\xc2\xad\npoena. It follows that congressional subpoenas issued after an adjournment sine\ndie but prior to the beginning of a new Congress have no legal effect.\nThe limitations the Court has placed upon Congress\xe2\x80\x99s use of its inherent author\xc2\xad\nity to deal with contempts provide additional support for the view that congres\xc2\xad\nsional subpoenas issued after an adjournment sine die have no legal effect. The\nCourt has held that Congress has implicit authority under the Constitution to deal\nwith a contempt of its authority. See Anderson v. Dunn, 19 U.S. (6 Wheat.) 204,\n226-30 (1821). This power stems, according to the Court, from Congress\xe2\x80\x99s inher\xc2\xad\nent authority to preserve its constitutionally-derived legislative power. See id.;\nMarshall v. Gordon, 243 U.S. 521, 541 (1917) (\xe2\x80\x9c [I]n virtue of the grant of legisla\xc2\xad\ntive authority there [is] a power implied to deal with contempt in so far as that\nauthority [is] necessary to preserve and carry out the legislative authority given.\xe2\x80\x9d ).\n2 The Court emphasized in Eastland that \xe2\x80\x9c whether particular activities . . . fall within the \xe2\x80\x98legitimate legislative\nsphere\xe2\x80\x99 [depends upon] whether the activities took place \xe2\x80\x98in a session o f the [house o f Congress at issue] by one\nof its members in relation to the business before it.\xe2\x80\x99 \xe2\x80\x9d Id. at 503-04 (quoting Kilbourn v. Thompson, 103 U.S.\n168,204(1881)).\n\n373\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThe Court has made clear, however, that there are limits to Congress\xe2\x80\x99s use of\nthis power. First, such power \xe2\x80\x9c rests only upon the right of self-preservation; that\nis, the right to prevent acts which, in and of themselves, inherently obstruct or\nprevent the discharge of legislative duty or the refusal to do that which there\nis an inherent legislative power to compel in order that legislative functions may\nbe performed.\xe2\x80\x9d Id. at 542.3 Second, even where Congress properly exercises its\nauthority to deal with a contempt, the punishment must cease upon the adjourn\xc2\xad\nment of Congress:\n[T]he existence of the power that imprisons is indispensable to its\ncontinuance; and although the legislative power continues per\xc2\xad\npetual, the legislative b o d y ceases to exist on the moment o f its\nadjournm ent o r periodic dissolution. It follow s, that imprisonment\nmust terminate with that adjournment.\nAnderson, 19 U.S. at 231 (emphasis added); accord M arshall, 243 U.S. at 542\n\n(Congress\xe2\x80\x99s contempt power, \xe2\x80\x9c even when applied to subjects which justified its\nexercise, is limited to imprisonment, and such imprisonment may not be extended\nbeyond the session of the body in which the contempt occurred.\xe2\x80\x9d ). These limita\xc2\xad\ntions, which the Court concluded were justified in view of the nature of the author\xc2\xad\nity upon which Congress\xe2\x80\x99s contempt power is based (i.e., self-preservation of leg\xc2\xad\nislative authority), see Anderson, 19 U.S. at 230-31,4 provide additional support\nfor the conclusion that Congress lacks the power of compulsory process after a\nsine die adjournment.\nBecause this conclusion rests upon the cessation of Congress\xe2\x80\x99s legislative exist\xc2\xad\nence, it applies equally to House and Senate subpoenas. However, the case of\nthe Senate merits some separate discussion, because the Court, noting certain inter\xc2\xad\nnal and structural differences between the House and the Senate, has occasionally\nreferred to the Senate as a \xe2\x80\x9c continuing body.\xe2\x80\x9d See Eastland, 421 U.S. at 512;\nM cG rain, 273 U.S. at 181; cf. Gojack v. United States, 384 U.S. 702, 706 n.4\n3 A pplying this standard, the Court in Marshall invalidated an attempt by the House to respond to a contempt\nin the form o f \xe2\x80\x9c irritating and ill-tempered statements made in [a] letter [addressed to the chairman o f a House\nsubcom m ittee],\xe2\x80\x9d id. at 546, where \xe2\x80\x9c the contem pt relied upon was not intrinsic to the right of the House to preserve\nthe m eans o f discharging its legislative duties/* id., but was, instead, \xe2\x80\x9c related only to the presumed operation which\nthe letter might have upon the public mind and the indignation naturally felt by members of the committee on\nthe subject.\xe2\x80\x9d Id.\n4 The Court in Anderson stated*\nThe present question is, what is the extent o f the punishing power which the deliberative assemblies of\nthe Union may assume and exercise on the principle o f self-preservation?\nA nalogy, and the nature o f the case, furnish the answ er\xe2\x80\x94 \xe2\x80\x9c the least possible power adequate to the\nend proposed;\xe2\x80\x9d which is the power o f imprisonment. . . . And even to the duration of imprisonment\na period is imposed by the nature o f things, since the existence o f the pow er that imprisons is indispensable\nto its continuance; and although the legislative power continues perpetual, the legislative body ceases to\nexist on the moment o f its adjournment o r periodic dissolution. It follows, that imprisonment must terminate\nwith that adjournment.\n\nId.\n\n374\n\n\x0cLegal Effectiveness o f Congressional Subpoenas Issued After an Adjournment Sine Die o f Congress\n\n(1966). In M cGrain, the Court suggested that the Senate\xe2\x80\x99s status as a continuing\nbody might prevent a controversy over an attempt by the Senate to compel compli\xc2\xad\nance with one of its subpoenas from becoming moot upon the adjournment of\nthe Congress during which the Senate action was initially taken. See M cGrain,\n273 U.S. at 181; see also Eastland, 421 U.S. at 512. The continuing existence\nof a case and controversy with respect to enforcement of a subpoena might seem\nto imply that the subpoena had a continuing legal effect beyond a sine die\nadjournment.\nThe Court\xe2\x80\x99s discussion of mootness in McGrain does not alter our conclusion\nregarding the legal effect of a Senate subpoena issued after an adjournment sine\ndie, for two reasons. First, in addressing the mootness issue, the Court in McGrain\nrelied upon an interpretation of a passage in Jefferson\xe2\x80\x99s Manual that appears to\nhave misunderstood that passage\xe2\x80\x99s actual import. The Court quoted the following\npassage from Jefferson\xe2\x80\x99s Manual:\nNeither House can continue any portion of itself in any parliamen\xc2\xad\ntary function beyond the end of the session without the consent\nof the other two branches. When done, it is by a bill constituting\nthem commissioners for the particular purpose.\nMcGrain, 273 U.S. at 181 (quoting Senate Rules and Manual, 1925, p. 303). Re\xc2\xad\n\nferring t6 that language, the Court concluded that \xe2\x80\x9c the context shows that the\nreference is to the two houses of Parliament when adjourned by prorogation or\ndissolution by the king.\xe2\x80\x9d Id.\nThe larger passage of which this quotation is a part, and which we have set\nout in a footnote,5 indicates that Jefferson is drawing upon the practices of Par\xc2\xad\n3 The larger passage from Jefferson\'s Manual is as follows:\nParliament have three modes o f separation, to wit: by adjournment, by prorogation or dissolution by\nthe King, o r by the efflux o f the term for which they were elected. Prorogation or dissolution constitutes\nthere what is called a session; provided some act was passed. In this case all matters depending before\nthem are discontinued, and at their next meeting are to be taken up de novo, if taken up at all. Adjournment,\nwhich is by themselves, is no more than a continuance o f the session from one day to another, of for\na fortnight, a month, &c., ad libitum. All matters depending remain in statu quo, and when they meet\nagain, be the term ever so distant, are resumed, without any fresh commencement, at the point at which\n* they were left. Their whole session is considered in law but as one day, and has relation to the first\nday thereof.\nCommittees may be appointed to sit during a recess by adjournment, but not by prorogation. Neither\nHouse can continue any portion o f itself in any parliamentary function beyond the end o f the session\nwithout the consent o f the other two branches. When done, it is by a bill constituting them commissioners\nfor the particular purpose.\nCongress separate in two ways only, to wit, by adjournment, or dissolution by the efflux o f their time.\nWhat, then, constitutes a session with them? A dissolution certainly closes one session, and the meeting\no f the new Congress begins another. The Constitution authorizes the President, \xe2\x80\x9c on extraordinary occasions\nto convene both Houses, or either o f th em ." If convened by the President\xe2\x80\x99s proclamation, this m ust begin\na new session, and o f course determine the preceding one to have been a session. So if it m eets under\nthe clause o f the Constitution which says, \xe2\x80\x9c the Congress shall assemble at least once in every year, and\nsuch meeting shall be on the first Monday in December, unless they shall appoint a different d a y ." This\nmust begin a new session, for even if the last adjournment was to this day the act of adjournment is\nContinued\n\n375\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nliament to propound analogous principles to guide the newly established Congress.\nWhere differences in the English and American systems of governance necessitate\nexplication of the analogies, Jefferson does so. Where the analogy between the\nEnglish and American systems applies without modification, however, there is\nno need for further discussion. Thus, in the quotation repeated in M cGrain, Jeffer\xc2\xad\nson notes that upon the end of the session, all pending matters are discontinued\nand all parliamentary functions cease, unless special provisions, requiring the con\xc2\xad\nsent of the other two branches, have been made. The larger passage reveals that\nthis assertion has been preceded by a discussion of the three modes by which\nParliament \xe2\x80\x9c separates,\xe2\x80\x9d only two of which amount to the end of a legislative\nsession. So Jefferson has stated the ways in which Parliament can be separated\nso as to result in the termination of all parliamentary functions. He then continues\non in the passage to note that Congress is unlike the Parliament, in the specific\nrespect that it has only two modes of separation. This prompts Jefferson to ask,\n\xe2\x80\x9c [w]hat, then, constitutes a session [of Congress]?\xe2\x80\x9d Jefferson\xe2\x80\x99s Manual at 292.\nAn answer to that question is necessary in order to apply the principle that all\npending matters are discontinued and all parliamentary functions cease upon termi\xc2\xad\nnation of the legislative session, but a repetition of the principle itself is unneces\xc2\xad\nsary, because Jefferson is taking it as understood that this fundamental principle\napplies to the American legislature just as it applies to the British legislature.6\nReading this passage to suggest that Jefferson meant not to apply the principle\nto Congress would be most peculiar. Such a reading would need to explain why\nJefferson had so carefully noted the differences with respect to what constitutes\na session of Congress, as compared to Parliament, and yet kept so completely\nhidden his belief that entirely different consequences flowed from the end of a\ncongressional session as compared to the end of a parliamentary session.\nNor can this passage be read to treat the Senate differently from the House.\nThroughout the passage, Jefferson refers consistently to \xe2\x80\x9c Congress,\xe2\x80\x9d suggesting\nthat both houses of Congress are subject to the same analysis. Elsewhere, he shows\nfull awareness of the fact that because the Constitution makes numerous distinc\xc2\xad\ntions between the two bodies, it is conceivable that different rules would apply\nto each of them. Where that is true, however, he explicitly distinguishes between\nthe House and the Senate, as he does in a subsequent passage that refers back\nto the passage quoted in footnote 5, and that states an important qualification\nto the principle that the end of a session terminates all business before the legisla\xc2\xad\ntive body:\nm erged in the higher authority of the Constitution, and the m eeting will be under that, and not under\ntheir adjournment. So far we have fixed landmarks for determining sessions.\nW illiam H olm es Brown, Constitution, Jefferson\'s Manual and Rules o f the House o f Representatives, H.R. Doc.\nNo. 101-256, at 2 9 1 -9 2 (1991) ( \xe2\x80\x9c Jefferson\xe2\x80\x99s A/o/w\xc2\xabz/\xe2\x80\x9d )(citations omitted).\n6 As suggested above, Jefferson\xe2\x80\x99s reference to the \xe2\x80\x9c end o f the session\xe2\x80\x9d is satisfied by a sine die adjournment.\nSee The Pocket Veto Case, 279 U.S. at 681; Riddick, supra , at 56.\n\n376\n\n\x0cLegal Effectiveness o f Congressional Subpoenas Issued After an Adjournment Sine Die o f Congress\n\nWhen it was said above that all matters depending before the\nParliament were discontinued by the determination of the session,\nit was not meant for judiciary cases depending before the House\nof Lords, such as impeachments, appeals, and writs of error. These\nstand continued, of course, to the next session. . . .\nImpeachments stand, in like manner, continued before the Senate\nof the United States.\nJefferson\xe2\x80\x99s Manual at 294. This passage confirms the view that in the earlier pas\xc2\xad\n\nsage Jefferson was relying upon Parliamentary rules to develop rules applicable\nto both houses of Congress because it shows that he did not hesitate to point\nout cases where a rule applied to only one house of the legislature in particular.\nIn addition, and quite separately, by calling attention to the Senate\xe2\x80\x99s post-adjourn\xc2\xad\nment authority to exercise its constitutionally-derived judicial powers to try im\xc2\xad\npeachments as a special exception, the passage confirms that Jefferson did not\nbelieve that the Senate could exercise its constitutionally-derived legislative pow\xc2\xad\ners after an adjournment sine die. Because Congress\xe2\x80\x99s authority to coerce by sub\xc2\xad\npoena the production of information derives from its constitutionally-delegated\nauthority to legislate, Jefferson must have intended to convey that such authority\nceases upon an adjournment sine d ie .1\nSecond, even assuming with M cGrain that the Senate\xe2\x80\x99s status as a continuing\nbody dictates that a legal controversy relating to an action taken by the Senate\nof a previous Congress (i.e., before the adjournment sine die of that Congress)\nunder a then-existing Senate subpoena cannot be mooted merely by the adjourn\xc2\xad\nment sine die of the previous Congress,8 such fact does not compel the conclusion\nthat the legal effectiveness of compulsory Senate process extends beyond a sine\ndie adjournment. A case will become moot when the relief sought by the plaintiff\nwould, if granted, confer no tangible benefit. See P reiser v. Newkirk, 422 U.S.\n395, 401 (1975). The Court\xe2\x80\x99s discussion of mootness in McGrain thus centered\non whether the Senate, having initially exercised its constitutionally-based con\xc2\xad\ntempt authority during the session in which it had issued the subpoena, was capa\xc2\xad\nble of repeating such action. See McGrain, 273 U.S. at 181-82. As demonstrated\nby the Court\xe2\x80\x99s discussion in McGrain, a mootness determination entails a different\nanalysis than that required to resolve whether a party is empowered in the first\ninstance to bring a suit or take a specified action.\nFor these reasons, the Court\xe2\x80\x99s mootness discussion in McGrain does not, in\nour view, resolve the legal status of a Senate subpoena issued after a sine die\n7 The House Parliamentarian appears to agree with this view. In the annotation to the Parliamentarian\xe2\x80\x99s presentation\no f Jefferson\'s Manual, he refers to the passage cited in McGrain as \xe2\x80\x9c Sitting o f committees in recess, and creation\no f commissions to sit after Congress adjourns.\xe2\x80\x9d Jefferson\xe2\x80\x99s Manual \xc2\xa7589 (annotation) at 291 (emphasis added).\n8 In McGrain, the Senate took action to enforce its subpoena prior to its adjournment. McGrain, 273 U.S. at\n153-54.\n\n377\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nadjournment, and the passage from Jefferson\xe2\x80\x99s Manual relied upon in McGrain\nto distinguish the Senate from the House actually equates the two bodies for pur\xc2\xad\nposes relevant to this analysis.9 In fact, we believe that the Court\xe2\x80\x99s previous anal\xc2\xad\nyses of Congress\xe2\x80\x99s subpoena and contempt power support the view that a congres\xc2\xad\nsional subpoena issued after an adjournment sine die has no legal effect.10\nII. CONCLUSION\nFor the reasons discussed above, we conclude, consistent with our 1982 opinion,\nthat a congressional subpoena issued after an adjournment sine die lacks any legal\nforce and effect and does not impose any legal obligation to comply with the\nsubpoena.\nCHRISTOPHER SCHROEDER\nActing A ssistant Attorney General\nOffice o f L egal Counsel\n\n9 As stated above, our analysis concludes, consistent with Anderson , 19 U.S. at 231, The Pocket Veto Case, 279\nU.S. at 6 8 !, and Jefferson\'s Manual, that the legislative pow er o f a house o f Congress ends upon the end of a\nsession and that its adjournment sine die constitutes the end o f a session. See text at note 4, and note 6, above.\nTherefore, we reject as untenable the apparent suggestion o f the court in Harris v. Board o f Governors, 938 F.2d\n720, 723 (7th Cir. 1991) that Congress\'s ability to exert legislative power may continue beyond that point. In any\nevent, because the court in Harris determined that the case became moot upon appeal, see id. at 720, such dicta\nhas no binding effect. See id. at 725 (Ripple, J., concurring in the court\xe2\x80\x99s decision that the case became moot\non appeal and noting that the court\xe2\x80\x99s dicta \xe2\x80\x9c does not constitute the law o f the circuit.\xe2\x80\x9d ).\n10O ur conclusion that C ongress\xe2\x80\x99s constitutional authority to coerce by subpoena the tendering o f requested informa\xc2\xad\ntion lapses upon an adjournment sine die is not intended to call into question the executive branch\xe2\x80\x99s longstanding\npractice o f responding voluntarily to information requests from congressional committees (whether by letter or sub\xc2\xad\npoena) during adjournment sine die periods. The conclusion that as a m atter of law Congress lacks authority after\nadjournment sine die to impose obligations o r sanctions outside the legislative branch\xe2\x80\x94 w hether by legislation, sub\xc2\xad\npoena or contempt o rd e r\xe2\x80\x94 does not mean that Congress cannot make a request for information or that the executive\nbranch cannot, as a m atter o f policy (based on the comity afforded another branch of government), respond voluntarily\nto such a request.\n\n378\n\n\x0c'


b'Reimbursement of the Department of Justice\nfor Providing Legal Assistance to the\nDepartment of Health and Human Services\nThe Department o f Justice may be legally reimbursed by the Department of Health and Human\nServices (HHS) for attorney services provided pursuant to the Economy Act, through the\nemployment o f additional attorneys in the Office o f the United States Attorney, to assist in the\ndefense of HHS against claims filed under the Social Security Act in federal district court.\nAttorneys employed in that capacity using HHS funds may not \xe2\x80\x9cconduct\xe2\x80\x9d litigation, but may only\n\xe2\x80\x9cassist\xe2\x80\x9d in litigation, because the Justice Department has the exclusive obligation and author\xc2\xad\nity to conduct litigation on behalf of the United States and HHS has no independent litigation\nauthority.\nIn order to justify the foregoing arrangements under the Economy Act, HHS must demonstrate\nthat it is more economical or efficient to purchase such services from the Department o f\nJustice than to provide the services itself.\n\nSeptember 3, 1985\nM\n\nem o ran d um\n\nE x e c u t iv e O\n\nO\n\np in io n f o r t h e\n\nf f ic e f o r\n\nU\n\nn it e d\n\nD ir e c t o r ,\n\nStates Attorneys\n\nI. Background and Summary\nThis memorandum responds to your request for our opinion whether the\nExecutive Office for United States Attorneys (EOUSA) has authority to accept\nreimbursement from the Department of Health and Human Services (HHS) for\nfunds used to employ attorneys in the Office of the United States Attorney for\nthe District of New Jersey to defend Social Security disability claims. As we\nunderstand the facts set out in your request, a recently promulgated local rule in\nthe United States District Court for the District of New Jersey regarding\nprocedures to be followed in resolving Social Security disability claims has\nimposed additional burdens on those who defend against such claims on behalf\nof the United States Government. HHS has funds available to meet this addi\xc2\xad\ntional workload but, because of a workyear ceiling, is unable to hire additional\nemployees to aid in the defense of these claims. On the other hand, the United\nStates Attorney for the District of New Jersey has unfunded workyears for\nattorneys and support positions, but is not in a position to fund the positions.\nTherefore it is proposed that the EOUSA enter into an agreement with HHS,\npursuant to 31 U.S.C. \xc2\xa7 1535 (the Economy Act), to furnish HHS attorney and\n81\n\n\x0csupport personnel. HHS would in turn reimburse EOUSA for the personnel\nservice provided.\nOur conclusions as to the legality of this arrangement can be summarized as\nfollows. It is proper for the Department to receive payment from HHS pursuant\nto the Economy Act for attorney services and to use such funds to employ\nadditional attorneys for Social Security disability litigation so long as certain\nconditions are met. First, HHS m ust have available funds that HHS itself could\nuse to perform legal work in Social Security disability litigation. Second, the\nattorneys hired with HHS funds cannot ordinarily \xe2\x80\x9cconduct\xe2\x80\x9d litigation but only\nassist in the conduct o f litigation, because the Justice Department has the\nexclusive obligation and authority to conduct litigation on behalf of the United\nStates and HHS has no independent litigation authority. Accordingly, the tasks\no f the attorneys hired with HHS funds must be limited to those that HHS\nattorneys could ordinarily perform. Third, HHS must demonstrate that it is\nmore economical or efficient to purchase such personnel services from the\nDepartment o f Justice than to provide the services itself.\n\nHI. Analysis\nA. Requirement that HHS Have Funds Available\nThe Economy Act provides:\nThe head of an agency o r major organizational unit within an\nagency may place an order with a major organizational unit\nwithin the same agency o r another agency for goods or services\nif (1) amounts are available; (2) the head of the ordering agency\nor unit decides the order is in the best interest of the United\nStates Government; (3) the agency or unit to fill the order is able\nto provide the ordered goods or services; and (4) the head of the\nagency decides ordered goods or services cannot be provided as\nconveniently or cheaply by a commercial enterprise.\n31 U.S.C. \xc2\xa7 1535(a). The agency ordering the services must reimburse the\nagency providing the services. Id. \xc2\xa7 1535(c).\nThe first requisite o f the Economy Act is that the agency purchasing the\nservice have \xe2\x80\x9camounts . . . available\xe2\x80\x9d for their purchase. In this case, the\nrequirem ent means that HHS m ust have funds that it could use to perform legal\nwork in Social Security disability litigation. We state this requirement as a\ncondition because we have not been informed whether HHS has funds which it\ncould use specifically for the legal work in Social Security disability litigation,\nalthough we have been informed that HHS generally has funds available. A\nclose review o f H H S\xe2\x80\x99s appropriation should be undertaken to ascertain the\nprecise limits on the funds with which it proposes to purchase legal personnel\nservices from the Department o f Justice.\n82\n\n\x0cB. Restrictions on Attorneys H ired with HHS Funds\n\nThe attorneys hired with HHS funds must not perform tasks that are statuto\xc2\xad\nrily reserved to the Department of Justice. This limitation is a direct conse\xc2\xad\nquence of a longstanding interpretation of the Economy Act. As the Comptrol\xc2\xad\nler General recently reiterated: \xe2\x80\x9cThe Economy Act does not authorize a Federal\nagency to reimburse another agency for services which the latter is required by\nlaw to provide.\xe2\x80\x9d 61 Comp. Gen. 419,421 (1982). The interpretation is required\nin order to prevent agencies from agreeing to reallocate funds between them\xc2\xad\nselves in circumvention of the appropriations process.1Therefore, the attorneys\nhired with HHS funds cannot ordinarily provide services which the Department\nof Justice is obligated by law to provide.\nThe Department\xe2\x80\x99s exclusive litigation authority is codified in 28 U.S.C.\n\xc2\xa7 516, which reads as follows: \xe2\x80\x9cExcept as otherwise authorized by law, the\nconduct of litigation in which the United States, an agency or an officer thereof\nis a party . . . is reserved to officers o f the Department of Justice, under the\ndirection of the Attorney General.\xe2\x80\x9d A parallel section, 5 U.S.C. \xc2\xa7 3106, pro\xc2\xad\nvides that except as otherwise authorized by law, an executive department\n\xe2\x80\x9cmay not employ an attorney . . . for the conduct of litigation in which the\nUnited States, an agency, or employee thereof is a party . . . but shall refer the\nmatter to the Department of Justice.\xe2\x80\x9d HHS seems to have no countervailing\ngrant of authority that would permit it to conduct Social Security disability\nlitigation itself.\nDespite the Department\xe2\x80\x99s exclusive authority to conduct litigation, substan\xc2\xad\ntial assistance is received as a matter of course from the attorneys of an agency\ninvolved in a lawsuit. As an opinion of this Office previously recognized:\n\xe2\x80\x9cDepending upon the nature of a case, this Department may call upon agency\nattorneys not only to provide factual material but also to draft pleadings, briefs\nand other papers. At times, in conjunction with attorneys of this Department,\nagency attorneys take part in trials and court proceedings.\xe2\x80\x9d \xe2\x80\x9cDepartment of\nJustice \xe2\x80\x94 Transfer of Funds from Another Agency \xe2\x80\x94 Payment for Attorney\nServices \xe2\x80\x94 Economy Act (31 U.S.C. \xc2\xa7 686),\xe2\x80\x9d 2 Op. O.L.C. 302, 303 (1978)\n(footnote omitted). The Department of Justice has officially taken the position\nthat so long as this Department retains control over the conduct o f litigation,\nsuch cooperation is consistent with 28 U.S.C. \xc2\xa7 516 and 5 U.S.C. \xc2\xa7 3106. Id.\nBecause HHS attorneys are permitted to assist the Department of Justice in the\ndefense of Social Security disability claims, HHS can, pursuant to the Economy\nAct, provide funds to the Department of Justice to hire attorneys to assist in the\ndefense if HHS has funds available for such legal work. Because the Depart1As the C om ptroller G eneral has stated:\nA contrary interpretation w ould com prom ise the basic integrity of the appropriations process\nitself. U nder the doctrine o f separation o f pow ers. C ongress, and C ongress alone has the \xe2\x80\x9c power\no f the purse.\xe2\x80\x9d W hen C ongress m akes an appropriation, it also establishes an authorized program\nlevel. To perm it an agency to operate beyond the level that it can finance under its appropriation\nwith funds derived from another source would be a usurpation o f the congressional prerogative.\n\nId.\n\n83\n\n\x0cment of Justice has the exclusive obligation to conduct litigation, the attorneys\nhired with HHS funds must refrain from exercising operational control over the\ndefense o f Social Security disability claims.\nW e realize that the line between conducting litigation and assisting in the\nconduct o f litigation will be difficult to draw precisely. As a practical matter,\nthe range of assistance that attorneys hired with HHS funds can provide is quite\nbroad. They may draft pleadings, briefs, and other papers, and in conjunction\nwith attorneys hired by the Department of Justice, take part in court proceed\xc2\xad\nings. Attorneys hired with HHS funds, however, may not make final decisions\nas to the contents of briefs or oral argument. They must be at all times under the\nsupervision o f attorneys hired with funds from the appropriation for the De\xc2\xad\npartm ent of Justice. Final responsibility for litigation decisions, both strategic\nand tactical, must rest with these latter attorneys.\nEOUSA has requested that no limitations be imposed on the activities or\nauthority o f attorneys hired with HHS funds. In support of this request, EOUSA\nhas submitted certain materials that suggest that HHS attorneys have been\nexercising d e fa c to control over the conduct of Social Security disabilities\nclaim s.2 The Department of Justice, however, has consistently required an\nexplicit congressional authorization or appropriation before it will infer that its\nexclusive authority has been derogated.3 None of these materials constitutes\nsuch an explicit authorization or appropriation.4 Therefore, in order to prevent\nboth the circumvention of Congress\xe2\x80\x99 power of appropriation and the erosion of\nthis Departm ent\xe2\x80\x99s exclusive authority to conduct litigation on behalf of the\nUnited States, we continue to maintain that attorneys hired with HHS funds must\nordinarily assist rather than actually conduct Social Security disability litigation.\n2 E O U SA has provided us w ith memoranda that suggest that over the years the D epartm ent o f Justice has\nconferred increasing authority o n HHS atto rn ey s in Social Security disability cases. In addition, EOUSA\nnotes that H H S\xe2\x80\x99s budget request for FY 1984 sought appropriations for an additional nine positions to meet\nincreased litigation w orkloads, including an increase in the num ber o f cases. The increased case w orkload\nresulted from several sources, including the Social Security D isability A m endm ents o f 1980.\nW e h ave not been asked and we do not o p in e on the legality o f any de fa c to delegation to HHS o f litigation\nauthority in Social S ecurity disability cases. W e note, how ever, that in the past it has been the position o f the\nD epartm ent o f Ju stice that the law requires attorneys not em ployed by the D epartm ent, including those\nem ployed by o th er agencies in the Executive Branch, to be appointed as special attorneys in the Department\nbefore they m ay conduct litigation for w h ich the D epartm ent is responsible. See generally 28 U.S.C.\n\xc2\xa7\xc2\xa7 515(a), 543 (authorizing the Attorney G eneral to appoint special attorneys)\n3 See M em orandum fo r G len E. Pomm erening, A ssistant A ttorney G eneral for A dm inistration from Antonin\nS calia, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel 4 (M ar. 15, 1976) (\xe2\x80\x9c [T]he D epartm ent has\nc o n sisten tly interpreted [28 U.S.C. \xc2\xa7 516 an d 5 U.S.C. \xc2\xa7 3106] as requiring the conferral o f litigation\nautho rity upon an agency o th er than the D epartm ent o r the appropriation of funds to contract for such\nlitigatio n to be specific and explicit.\xe2\x80\x9d) (footnote om itted).\n4 Even if the D epartm ent o f Justice m em oranda could be construed to suggest that the D epartm ent has\nsystem atically delegated HHS de facto au th o rity over litigation, such informal delegation, unratified by\nC ongress, d oes not lim it the Department\xe2\x80\x99s statu to ry m andate. Even if it w ere possible to infer from H H S\xe2\x80\x99s FY\n1984 bu d g et request that HHS was asking fo r an appropriation to control the defense of Social Security\nd isab ility cases, H H S\xe2\x80\x99s request does not rep resen t the explicit congressional authorization or appropriation\nthat the D epartm ent o f Justice itself has req u ired before it w ill yield its exclusive authority and obligation to\nc onduct litig atio n on b e h alf o f the U nite States. W e have been unable to find any legislative history\nsuggesting that C ongress view ed its FY 1984 appropriation to HHS as changing the traditional relationship of\nthe D epartm ent to other agencies in litigation matters.\n\n84\n\n\x0cC. Requirement that HHS Make Efficient Use o f Funds\nThe purpose of the Economy Act is to promote efficiency and economy in\ngovernment. Therefore, in order to justify invocation of the Act, it must be\ndemonstrated that HHS\xe2\x80\x99s use of its funds to hire Department of Justice attor\xc2\xad\nneys to assist in the defense of Social Security claims is more efficient than\nHHS\xe2\x80\x99s use of the funds to provide such services itself.\nAs we understand the facts, HHS has reached its employment ceiling.\nAccordingly, HHS is unable to hire more attorneys to assist in Social Security\ndisability litigation. Assuming that the addition of attorneys is seen as the most\nefficient use of HHS\xe2\x80\x99s resources in response to the new rules governing Social\nSecurity disability cases in the United States District Court for the District of\nNew Jersey, the hiring of Department of Justice attorneys seems justified as\nHHS\xe2\x80\x99s most efficient course of action in view of HHS\xe2\x80\x99s employment ceiling.5\nThus, on the basis of the facts related to us, we believe that HHS\xe2\x80\x99s use of funds\nto hire Department of Justice attorneys to provide litigation assistance does\ncomport with the purposes o f the Economy Act.\nWe conclude that so long as HHS has funds available for legal work on\nSocial Security disability litigation, HHS may use these funds to reimburse the\nDepartment of Justice for hiring additional attorneys to assist in the conduct of\nSocial Security disability litigation, subject to the other considerations and\nrequirements discussed in this memorandum.\nRa lph W . T arr\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n5 We assum e in this analysis that the em ploym ent ceiling preventing HHS from hiring additional attorneys\nhas been established by the O ffice o f M anagem ent and Budget. See OMB C ircular No. A-64 (1980). If the\nem ploym ent ceiling was set by C ongress, it is possible that the arrangem ent betw een HHS and EOUSA could\nbe seen to contravene Congress* intent in establishing that ceiling.\n\n85\n\n\x0c'