Constitutionality of Nuclear Regulatory Commission's Imposition of Civil Penalties on the Air Force ( 1989 )

Constitutionality of Nuclear Regulatory Commission’s
Imposition of Civil Penalties on the Air Force
In the absence of Presidential intervention to review its decision, the Nuclear Regulatory
Commission may constitutionally issue an order imposing civil penalties on the
Department of the Air Force under the Atomic Energy Act of 1954.
Although Congress may not deprive the President of an opportunity to review a decision
made by an agency subject to his supervisory authority, the President is not constitu­
tionally required to review all such decisions before they may be lawfully implemented.
Because the Atomic Energy Act gives the Attorney General exclusive authonty and discre­
tion to enforce civil penalties imposed under the Act, an interagency dispute regarding
the collection of such penalties would properly be resolved within the executive branch
rather than through interagency litigation.
June 8, 1989
M em orandum O pinio n fo r t h e G en er a l C o un sel
D epa r tm en t o f th e A ir F o rce
This memorandum responds to your request for an opinion of this
Office on the constitutionality of the United States Nuclear Regulatory
Commission’s (“NRC”) imposition of civil penalties on the Department of
the Air Force under the Atomic Energy Act of 1954, as amended (“Act”),
42 U.S.C. §§ 2011-2296. In particular, you have asked whether the
Constitution permits the NRC: 1) to issue an order imposing civil penal­
ties against the Air Force without a prior opportunity for the Air Force to
contest the fine within the executive branch; or 2) to collect civil penal­
ties against the Air Force by litigation in court.
We believe, as a general matter, that the President has authority to
review and revise decisions of his subordinates in the executive branch.
Although the President cannot be deprived of the opportunity to review
a decision subject to his supervisory authority, this does not mean that
the President is constitutionally compelled to review every decision
before it is implemented. After reviewing the questions you have posed,
we conclude that, because the President has expressed no interest in
reviewing either personally or through a delegate the NRC’s issuance of
orders, we need not reach whether, and to what extent, the President’s
supervisory authority extends to orders issued by the NRC.1On the other
hand, we agree with you that there would be significant constitutional
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problems had Congress directed the NRC to collect the penalties it orders
by suing the Air Force in federal court. The Act, however, permits the
Attorney General to determine whether, and to what extent, civil penal­
ties should be collected. Thus, any issue regarding your liability for civil
penalties may be resolved by an executive branch agency and without
resort to interagency litigation.
I. Background
The Atomic Energy Act of 1954, 42 U.S.C. §§ 2011-2296, as amended by
the Energy Reorganization Act of 1974, 42 U.S.C. §§ 5801-5851, estab­
lished the Nuclear Regulatory Commission (“NRC”). The agency is
charged with broad licensing and regulatory authority over the develop­
ment and utilization of atomic energy, the construction and maintenance
of facilities, and the uses and storage of nuclear material. 42 U.S.C. §§
2061-2064 (ownership and acquisition of production facilities); 42 U.S.C.
§§ 2071-2078, 2091-2099, and 2111-2114 (regulation of nuclear materials
and byproducts); 42 U.S.C. §§ 2131-2140 Oicensing); 42 U.S.C. §§ 2201-
2213 (general powers and duties). The Act provides that Commissioners
are appointed by the President, with the advice and consent of the
Senate, and “may be removed by the President for inefficiency, neglect of
duty, or malfeasance in office.” 42 U.S.C. § 5841(a), (e).
The Act invests the NRC with broad authority to regulate uses of
nuclear power, with certain exceptions for military purposes expressly
provided for in the Act.2Specifically, the NRC has the authority to license
nuclear facilities and material, id. §§ 2133, 2073, including those of gov­
ernment agencies, id. § 2014(s); to issue rules and regulations, id. § 2201;
and to inspect and investigate alleged violations of its rules, id.
In 1969, Congress passed amendments to the Atomic Energy Act autho­
rizing the NRC to levy civil monetary penalties for violations of its regu­
lations. The addition of monetary penalties was intended to give the NRC
additional flexibility to deal with infractions of regulations that did not
require the harsher sanctions of revocation or suspension of a license or
1The Air Force does not argue that all actions by the NRC are unconstitutional because of the NRC’s
status as an agency with some statutory independence We thus do not address the constitutional status
of the NRC or the constitutionality of its actions generally.
2 The President is authorized by the Act to require the Commission to deliver nuclear material and to
authorize its use for military purposes:
The President from time to time may direct the Commission (1) to deliver such quantities
of special nuclear material or atomic weapons to the Department of Defense for such use as
he deems necessary in the interest o f national defense, or (2) to authorize the Department of
Defense to manufacture, produce, or acquire any atomic weapon or utilization facility for
military purposes: Provided, however, That such authorization shall not extend to the pro­
duction of special nuclear material other than that incidental to the operation of such uti­
lization facilities
42 U S C. § 2121(b). A license is not required for any actions authorized under section 2121. See 42 U.S C.
§ 2140(b).
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a cease and desist order. See S. Rep. No. 553, 91st Cong., 1st Sess. 9-12
(1969), reprinted in 1969 U.S.C.C.A.N. 1607, 1615-19.3
Section 2282(a) provides:
Any person who (1) violates any licensing provision ... or
any rule, regulation, or order issued thereunder, or any
term, condition, or limitation of any license issued thereun­
der, or (2) commits any violation for which a license may be
revoked under section 2236 of this title, shall be subject to
a civil penalty, to be imposed by the Commission, of not to
exceed $100,000 for each such violation. If any violation is
a continuing one, each day of such violation shall constitute
a separate violation for the purpose of computing the
applicable civil penalty. The Commission shall have the
power to compromise, mitigate or remit such penalties.
42 U.S.C. § 2282(a). The term “person” is defined specifically to include
government agencies:
The term “person” means (1) any individual, corporation,
partnership, firm, association, trust, estate, public or pri­
vate institution, group, Government agency other than the
Commission ....
42 U.S.C. § 2014(s). “Government Agency” includes any executive depart­
ment of the United States. 42 U.S.C. § 2014(1).
Whenever the Commission has reason to believe that a violation sub­
ject to a civil penalty has occurred, the Commission is required to notify
the person, identify the alleged violation, advise the person of the pro­
posed penalty, and provide an opportunity to demonstrate why the penal­
ty should not be imposed. 42 U.S.C. § 2282(b). The Commission has for­
mally adopted procedures for the imposition of civil penalties. See 10
C.F.R. § 2.205; 10 C.F.R. pt. 2, app. C. (1988). Under these provisions, the
person charged with a civil penalty will receive a written notice of viola­
tion specifying the date and nature of the alleged violation, the particular
provision, rule, or regulation allegedly violated, and the amount of the
proposed penalty. 10 C.F.R. § 2.2.01(a). Payment of the penalty or a writ­
ten answer either denying the violation or showing extenuating circum­
stances is required within twenty days. Id. § 2.201(a), (b). The NRC may,
at this time, issue an order dismissing, mitigating or imposing a civil
penalty. The person charged may then request a hearing at which the
3 In 1980, the maximum penalty for each violation was raised from $5000 to $100,000 to provide the
NRC with escalated enforcement sanctions and a greater prospect of deterrence Pub L No. 96-295, 94
Stat. 780, 787 (1980).
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merits of the alleged violation and the applicability of the rules and regu­
lations can be contested. Id. § 2.205(c), (d). After the hearing, the Com­
mission will issue an order dismissing, mitigating, or imposing the civil
penalty. Id. § 2.205(f).4
The Commission, however, does not itself have authority directly to
collect the amount of the penalty assessed if the violator fails to pay the
fine upon issuance of a final order. Instead, the Act permits the NRC to
refer the matter to the Attorney General for collection. Section 2282(c)
provides:
On the request of the Commission, the Attorney General is
authorized to institute a civil action to collect a penalty
imposed pursuant to this section. The Attorney General shall
have the exclusive power to compromise, mitigate, or remit
such civil penalties as are referred to him for collection.
42 U.S.C. § 2282(c). The Senate Report accompanying the civil penalty
provisions makes clear that the Attorney General is authorized, but not
required, to institute a civil action to collect the penalty:
While the bill would confer on the Commission the power
of compromise, mitigation, and remission of penalties, such
power would reside exclusively with the Attorney General
under the bill with respect to such civil penalties as are
referred by the AEC to him for collection.
S. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969
U.S.C.C.A.N. 1607, 1618. In 1980, the NRC requested authority to collect
civil penalties directly, but Congress refused to change the law.5
4 The NRC assesses civil penalties based in part on the seventy of the violation. See 10 C.FR § 2 205
and 10 C.F.R pt. 2, app C (1988). Violations for which civil penalties can be imposed are broken down
into five seventy levels, and in determining the amount of the violation, the Commission will take into
account such factors as whether the violation was identified by the licensee, whether it was reported by
the licensee, the corrective action taken, and whether the violation or similar violations have been recur-
nng. See 10 C.F.R. pt. 2, app C.
6See S Rep. No. 176, 96th Cong , 1st Sess. 24 (1980), reprinted in 1980 U.S.C C.A N. 2216, 2239
The Commission also requested that it be given the authority to administratively impose
and collect penalties without the opportunity for de novo trial before a Federal Distnct
Court. According to the Comnussion, the present system of imposing and collecting a civil
penalty through action of the Attorney General in Federal district court denies the
Commission full control of its enforcement action, and raises the possibility that the
Attorney General will settle the action for a lower penalty than that sought by NRC. The
Commission recognizes, however, that the present enforcement approach, including the
opportunity for de novo trial, is typical for Federal agencies Further, the Commission has
failed to identify any instances in which the present approach has resulted in a significant
weakening of the enforcement action proposed by NRC
The committee believes that there is considerable value in retaining the existing approach ....
Accordingly, the committee recommends that the present statutory mechanism for imposing
and correcting civil penalties be retamed
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Under its section 2282 authority to impose civil penalties, the NRC sent
the Air Force a Notice of Violation and Proposed Imposition of Civil
Penalties of $102,500 on June 17, 1988. The alleged violation arose from
the accidental spill in 1986 of radioactive materials from a barrel stored
on Wright-Patterson Air Force Base, Ohio. The penalty was proposed
because of the alleged failure of the Air Force personnel to adequately
report the spill to the NRC.
The Air Force replied to the alleged violation with a written response
on July 15, 1988. Air Force officials had an extended meeting with the
NRC at which they contested the underlying factual basis for the charges.
The principal factual disagreement is whether and to what extent certain
Air Force personnel were involved in a deliberate or willful failure to
report the spill. The Air Force has not participated in internal adminis­
trative hearings before the NRC, but has instead raised constitutional
defenses, asserting both that the NRC cannot constitutionally issue a
final order assessing a penalty without prior review by the President and
that in any event the penalty cannot be enforced by the Attorney General
through litigation. The NRC has agreed to hold its final order in abeyance
pending our resolution of these issues.
II. Imposition of Civil Penalties Against Federal Agencies
The Air Force contends that the Constitution does not permit the NRC
unilaterally to impose civil penalties against a member of the executive
branch because both the NRC and the Air Force are “part of one of the
three fundamental Branches of the Government under our Constitution.”
Letter for Douglas W. Kmiec, Assistant Attorney General, Office of Legal
Counsel, from Ann N. Foreman, General Counsel, Department of the Air
Force at 3 (Mar. 17, 1989) (“Foreman Letter”). Underlying this contention
is the Air Force’s view that “[t]he President is the final arbiter of a singu­
lar executive branch policy and of how any dispute between agencies will
be resolved.” Id. The Air Force concludes from this premise that the NRC
cannot constitutionally issue a final order against the Air Force until the
President resolves any differences between the two agencies.
Although we agree as a general matter with the premise underlying the
Air Force’s argument — namely that the President must have an oppor­
tunity to review disputes between members of the executive branch —
we disagree with its conclusion that the President is affirmatively com­
pelled to resolve this dispute between the NRC and itself. In our view, the
President may permit the NRC to carry out a decision taken pursuant to
its statutory duties despite the objection of another agency.
The President’s authority to review and revise the decisions of his
subordinates derives from his authority under Article II of the
Constitution, which states that “[t]he executive Power shall be vested in
a President of the United States of America.” U.S. Const, art. II, § 1, cl.
135
1. Moreover, the President has the constitutional responsibility to “take
Care that the Laws be faithfully executed.” Id. § 3. It is well-established
that these provisions generally authorize the President to supervise and
guide executive officers in the administration of their statutory duties.
See Myers v. United States, 272 U.S. 52, 135 (1926) (The President has
the authority to “supervise and guide” executive officers in “their con­
struction of the statutes under which they act in order to secure that
unitary and uniform execution of the laws which Article II of the
Constitution evidently contemplated in vesting general executive power
in the President alone.”).
Although the President m ay take the opportunity to review decisions
pursuant to his Article II authority, Article II does not mandate that he
undertake such review. Thus, the President’s subordinates may make
decisions pursuant to the statutory duties that Congress has entrusted to
their respective offices even in the absence of the President’s actual
review of those decisions so long as the President is not precluded from
the opportunity to review these decisions. This understanding of the
President’s supervisory authority comports with the practical reality of
decisionmaking within the executive branch: day-to-day decisions are
often made by the President’s subordinates although the President does
not review these decisions.
The President’s authority to review disputes between his subordinates
is simply an aspect of his general supervisory authority over the execu­
tive branch. For instance, when two of his subordinates dispute the
meaning of a statute, the President may decide to review the matter. The
Constitution, however, does not mandate that he resolve disputes either
personally or through his subordinates.6 If it is the President’s choice not
to review the dispute, then the agencies may act in accordance with their
respective statutory authorities. Thus, it is not inconsistent with the
Constitution for an executive agency to impose a penalty on another
6 The Air Force quotes testimony from former Assistant Attorney General for Land and Natural
Resources F. Henry Habicht II that “Executive Branch agencies may not sue one another, nor may one
agency be ordered by another to comply with an administrative order without the prior opportunity to
contest the order within the Executive BranchEnvironm ental Compliance by Federal Agencies
Hearings Before the Subcomm on Oversight and Investigations o f the House Comm, on Energy and
Commerce, 100th Cong., 1st Sess. 210 (1987) (statement of F Henry Habicht). We believe, however, that
Mr Habicht’s testimony is consistent with our view that, while the President must have the opportuni­
ty to review decisions subject to his supervisory authonty, the Constitution does not compel him to
review such decisions. The Air Force cannot contend that it has had no opportunity to contest the
NRC’s order within the executive branch It could have brought this dispute to the attention of the
President at any time after it received notice from the NRC on June 17, 1988. Moreover, Mr. Habicht’s
testimony occurred in the context of an oversight hearing relating to the Resource Conservation and
Recovery Act (“RCRA”), a statute that perm its the EPA directly to impose civil penalties on other agen­
cies. 42 U.S.C. §§ 6927(c), 6928(c). The President has specified an internal dispute resolution mecha­
nism for agency disagreements with the EPA See Exec Order No. 12088, 3 C FR. 243 (1978) (authonz-
ing the Director of the Office of Management and Budget to consider unresolved conflicts between
agencies at the request of the EPA Administrator).
136
executive agency pursuant to its statutory authority so long as the
President is not deprived of his opportunity to review the matter.7
A number of Executive Orders illustrate that the President does estab­
lish formal dispute resolution mechanisms for executive branch dis­
agreements when he deems them necessary. For certain executive
branch disputes, for example, the President has directly asserted his
authority by ordering such agencies to submit the dispute to the Attorney
General.8 The President has also directed that agencies in conflict with
the Equal Employment Opportunity Commission on a question of em­
ployment standards refer their dispute to the Executive Office of the
President.9 Finally, in a context similar to this one, the President has
issued an Executive Order requiring that certain disputes relating to pol­
lution controls enforceable by the EPA shall be resolved by the Director
of OMB.10 This last order requires the Administrator of EPA to “make
every effort to resolve conflicts regarding” agency violations, and pro­
vides that the Director of OMB shall adjudicate if the Administrator is
unsuccessful. Exec. Order No. 12088, § 1-602, 3 C.F.R. 244 (1978). The
Order is significant both in its anticipation that the EPA may enforce envi­
ronmental laws against other federal agencies and in its prescribing a
method of resolving interagency disputes should they arise.
The President, however, has issued no such order concerning the
NRC’s issuance of civil penalties against other agencies. Nor has the
7 The Air Force also contends that the Office of Management and Budget “expressed the
Administration’s view” that several proposed bills “raise[dj senous constitutional problems” because
they provided “for one agency or office of the federal government to issue administrative orders and take
judicial enforcement action against another." Foreman Letter at 3. We would first note that the
Administration positions on which the Air Force relies were merely drafts that are necessarily summary
and tentative in nature Moreover, two of the draft statements are wholly unrelated to the issue of
enforcement orders by one agency against another. See draft Floor Statement on H.R. 3781 (objecting to
the requirement that the Department of Energy provide certain documents to Congress prior to any
clearance by the President or Secretary of Energy); draft Floor Statement on H R. 3782 (objecting to the
proposed creation of a Special Environmental Counsel independent of the President and the Department
of Justice). The draft Floor Statement on H R 3785 did relate to the President’s authonty to resolve dis­
putes within the executive branch, but that bill contained objectionable provisions that would have
appeared to restnct the President’s authority to establish a dispute resolution mechanism between EPA
and other agencies This draft floor statement may thus be understood as seeking to preserve the
President’s opportunity to review Finally, the Air Force cites a letter by Assistant Attorney General John
R Bolton, Office of Legislative and Intergovernmental Affairs, to Chairman John D Dingell of the House
Subcommittee on Oversight and Investigations, December 20,1985 (“Bolton Letter”), for the proposition
that administrative orders to other executive agencies raise senous constitutional objections. We read
the Bolton letter, however, simply as a discussion of the justiciability of suits between executive agen­
cies, a subject we discuss below
8 Exec Order No 12146, § 1-402, 3 C.F.R. 409 (1979). The mandatory provision of this Executive Order,
by its terms, applies only to “Executive agencies whose heads serve at the pleasure of the President.” Cf
id § 1401 (stating that “each agency is encouraged” to submit a dispute to the Attorney General when
there is an interagency dispute over junsdiction or a particular activity).
9See Exec Order No 12067, § 1-307 (1978)
10See Exec Order No. 12088, § 1-603, 3 C.F.R 244 (1978) (requmng the Director of OMB to “consider
unresolved conflicts at the request of the Administrator”). This Order further provides that “[tjhese con­
flict resolution procedures are in addition to, not in lieu of, other procedures, including sanctions, for the
enforcement of applicable pollution control standards.” Id § 1-604
137
President been deprived of an opportunity to review the dispute. The
statute expressly provides that the regulated agency be given a reason­
able opportunity to respond to the Commission whenever the latter
intends to impose a civil penalty. 42 U.S.C. § 2282(b). The NRC sent
notice to the Air Force of its intent to impose a civil penalty on June 17,
1988. Thus, the statutory scheme provides, and the Air Force has
received, sufficient opportunity to raise this dispute with the President.
Moreover, before this penalty is collected from an unwilling agency, the
NRC must refer the civil penalty order to the Attorney General for col­
lection.11 As we discuss below, this procedure may itself serve as a dis­
pute resolution mechanism under the control of one of the President’s
subordinates.
Accordingly, we conclude that because the President has neither
expressed any interest in, nor been precluded from, reviewing the NRC’s
orders imposing civil liability on executive branch agencies, there is no
constitutional requirement that the NRC submit its decision to issue an
order imposing civil fines on the Air Force to prior Presidential review.12
III. Lawsuits Between Federal Agencies
The Air Force also contends that a lawsuit between the NRC and the
Air Force would not be justiciable. It argues that because the lawsuit
would be between two members of the executive branch, there would be
no Article III “case or controversy,” and therefore the federal courts could
not adjudicate the dispute. We agree that substantial constitutional diffi­
culties are raised by interagency lawsuits, but we believe that the Act per­
mits resolution of your dispute with the NRC over any civil penalty with­
out resort to such litigation.
The Office of Legal Counsel has long held the view that lawsuits
between two federal agencies are not generally justiciable. Proposed Tax
Assessment Against the United States Postal Service, 1 Op. O.L.C. 79(1977). In this opinion, we stated that a dispute between the Postal
Service and the IRS over the service’s tax liability could not be enter­
tained in court. We relied on the principle that the federal courts may only
adjudicate actual cases and controversies. Muskrat v. United States, 219
U.S. 346 (1911). A lawsuit involving the same person as plaintiff and
defendant does not constitute an actual controversy. Lord v. Veazie, 49
U.S. (8 How.) 251 (1850); Cleveland v. Chamberlain, 66 U.S. (1 Black) 419
(1862). This principle applies to lawsuits between members of the exec­
utive branch. United States v. Shell Oil Co., 605 F. Supp. 1064, 1082 (D.
11See 10 C FR. § 2 205(h).
12The Air Force, of course, may urge the President to take the opportunity to review any issue relating
to the proposed civil penalty. Assuming the President expressed an interest in such review, the question
as to the extent of the President’s authority to review and supervise the NRC would then be raised
138
Colo. 1985); United States v. Easement and Right of Way over Certain
Land in Bedford County, Tenn., 204 F. Supp. 837, 839 (E.D. Tenn. 1962);
Defense Supplies Corp. v. United States Lines Co., 148 F.2d 311, 312-13
(2d. Cir.), cert, denied, 326 U.S. 746 (1945).
The reasoning of our 1977 opinion applied to so-called “independent
agencies.” The opinion described the Postal Service as having “a degree
of independence from the executive branch” and as “removed from direct
political control.” 1 Op. O.L.C. at 83. Our position is also consistent with
the Supreme Court’s most recent analysis concerning officials who do not
serve at the pleasure of the President. Morrison v. Olson, 487 U.S. 654(1988), indicates that despite the removal restrictions, such agencies
exercise executive power and are members of the executive branch. Id.at 690 n.28, 691 (“[T]he real question is whether the removal restrictions
[including those at issue in Humphrey’s Executor v. United States, 295
U.S. 602 (1935) and Wiener v. United States, 357 U.S. 349 (1958)] are of
such a nature that they impede the President’s ability to perform his con­
stitutional duty.”).
We have recognized that the Supreme Court has decided several cases
that appeared to be between two members of the executive branch. 1 Op.
O.L.C. at 80. On further examination, however, we have concluded that
such suits are only nominally between two agencies: one of the executive
agencies is not the “real part[y] in interest” but simply a stand-in for pri­
vate interests. Id. at 81. The Supreme Court first made the “real party in
interest” distinction in United States v. ICC , 337 U.S. 426 (1949), where
the United States, in its role as a shipper, contended that charges imposed
on it by railroads violated a statute. The United States unsuccessfully
filed a complaint against the railroads before the Interstate Commerce
Commission (“ICC”), and then brought an action in court to set aside the
Commission’s order. Pursuant to statute, the United States was made a
defendant in its action to set aside the ICC order. Responding to the argu­
ment that the suit was nor\justiciable because the United States was suing
itself, the Court stated:
There is much argument with citation of many cases to
establish the long-recognized general principle that no per­
son may sue himself. Properly understood the general prin­
ciple is sound, for courts only adjudicate justiciable con­
troversies.... Thus a suit filed by John Smith against John
Smith might present no case or controversy which courts
could determine. But one person named John Smith might
have a justiciable controversy with another John Smith.
This illustrates that courts must look behind names that
symbolize the parties to determine whether a justiciable
case or controversy is presented.
139
337 U.S. at 430. The Court then applied this standard to the dispute
between the United States and the railroads:
While this case is United States v. United States, et at., it
involves controversies of a type which are traditionally jus­
ticiable. The basic question is whether railroads have ille­
gally exacted sums of money from the United States.... To
collect the alleged illegal exactions from the railroads the
United States instituted proceedings before the Interstate
Commerce Commission.... This suit therefore is a step in
proceedings to settle who is legally entitled to sums of
money, the Government or the railroads.... Consequently,
the established principle that a person cannot create a justi­
ciable controversy against himself has no application here.
Id. at 430-31. Thus, the Court concluded that the lawsuit could be brought
because the railroads, and not the United States, were in essence the real
parties in interest as defendants. Id. at 432.
We believe that this reasoning explains other cases in which the
Supreme Court has appeared to decide a case between two members of
the executive branch. In these cases, one of the members of the executive
branch was not the real party in interest, and therefore, the suit was, for
purposes of justiciability analysis, actually between a private party and a
government agency. In Secretary of Agriculture v. United States, 347 U.S.
645, 647 (1954), the Court was at pains to point out that the Secretary of
Agriculture was appearing in the litigation in opposition to the ICC “on
behalf of the affected agricultural interests,” pursuant to specific statuto­
ry authorization. Bureau of Alcohol, Tobacco and Firearms v. Federal
Labor Relations Auth., 464 U.S. 89 (1983), involved a dispute between the
National Treasury Employees Union and the Bureau over reimbursement
of a union representative for travel expenses. In United States ex rel.
Chapman v. Federal Power Comm’n, 345 U.S. 153 (1953), the dispute was
actually between the Secretary of Interior and a private power company.
See Ishverlal Madanlal & Co. v. SS Vishva Mangal, 358 E Supp. 386
(S.D.N.Y. 1973).13 Other cases where a private party was the real party in
interest include Udall v. Federal Power Comm’n , 387 U.S. 428 (1967) (dis­
pute between nonfederal power companies and Secretary of Interior over
the award of construction licenses); Federal Maritime Bd. v. Isbrandtsen,
l3ln UnitedSlates v. Marine Bancorp , Inc., 418 U.S. 602 (1974) and United States v. Connecticut Nat’l
Bank, 418 U.S. 656 (1974), the United States had brought civil antitrust actions under section 7 of the
Clayton Act challenging the proposed merger of banks in each of the respective cases The Comptroller
of the Currency intervened in both actions as a party defendant pursuant to 12 U.S.C. § 1828(c)(7)(D).
See Marine, 418 U.S. at 614 The Supreme Court did not address whether the intervention of the
Comptroller General denied the Court federal jurisdiction The presence of private parties as the real
parties-in-interest, however, distinguishes those cases from mere interagency litigation.
140
356 U.S. 481,483 n.2 (1958) (dispute between shipper, joined by the United
States, against Federal Maritime Board over shipping rates approved by
the Maritime Board); Interstate Commerce Comm’n v. Jersey City, 322
U.S. 503 (1944) (dispute' between municipality and Interstate Commerce
Commission, with U.S. Price Administrator intervening on behalf of
municipality); Mitchell v. United States, 313 U.S. 80 (1941) (dispute
between private citizen, supported by a brief from the United States, and
the ICC concerning dismissal of a discrimination complaint).
Finally, in United States v. Nixon, 418 U.S. 683 (1974), the Court found
justiciable a lawsuit between the special prosecutor and President Nixon
over the validity of a subpoena issued to acquire evidence in a pending
criminal case. The Court concluded that “[i]n light of the uniqueness of
the setting in which the conflict arises, the fact that both parties are offi­
cers of the executive branch cannot be viewed as a barrier to justiciabil­
ity.” Id. at 697. The Court noted that the President had been named as an
unindicted coconspirator by the grand jury, id. at 687, and that the ques­
tion of the validity of a subpoena to acquire evidence from a person in a
pending criminal case was “traditionally justiciable.” Id. at 697. In view of
these special circumstances, we have understood the decision as based
on the Court’s view that the real party in interest was President Nixon in
his private capacity.
Application of these principles strongly suggests that the dispute
between the NRC and the Air Force is not justiciable. Both the NRC and
the Air Force would be the real parties in interest in the lawsuit. The NRC
seeks enforcement of its civil penalties against violators of its regula­
tions. See 10 C.F.R. § 2.205; 10 C.F.R. pt. 2, app. C. The civil penalty would
be imposed directly on the Air Force, which would be required to make
the payment out of its appropriated funds. No private party has a direct
interest in the lawsuit.
We believe, however, that this constitutional issue need not arise,
because the framework of the Act clearly permits this dispute over civil
penalties to be resolved within the executive branch, and without
recourse to the judiciary. The Attorney General has the exclusive author­
ity to collect civil penalties for the NRC, 42 U.S.C. § 2282(c), and there­
fore may exercise his discretion to resolve the dispute without resort to
litigation.
Under 42 U.S.C. § 2282(a), the NRC is given the authority to impose civil
penalties, and to “compromise, mitigate, or remit such penalties.” The
NRC, however, cannot enforce its decision to impose civil penalties, nor is
there a procedure for judicial review of the decision. Rather, if the defen­
dant disagrees with the NRC’s decision, the civil penalties may be
enforced or collected only by the Attorney General. Section 2282(c) pro­
vides that “the Attorney General is authorized to institute a civil action to
collect” the civil penalty, thus indicating that he is not required to do so.
42 U.S.C. § 2282(c) (emphasis added). The section also expressly provides
141
that “[t]he Attorney General shall have the exclusive power to compro­
mise, mitigate, or remit such civil penalties as are referred to him for col­
lection.” Id. (emphasis added). Thus, it is clear that the Attorney General
has complete control concerning enforcement of the civil penalty.
The committee report accompanying the bill that was adopted by
Congress as the Atomic Energy Act Amendments confirms the breadth of
the Attorney General’s discretion with respect to enforcement:
The Attorney General would be authorized, but not
required, to institute a civil action in a court of competent
jurisdiction to collect the penalty. While the bill would con­
fer on the Commission the power of compromise, mitiga­
tion, and remission of penalties, such power would reside
exclusively with the Attorney General under the bill with
respect to such civil penalties as are referred by the
[Commission] to him for collection.
The committee also has accepted the recommendation ...
that the legislation provide discretion to the Department,
after the matter has been referred to it by the Commission,
to determine whether a civil action should be instituted,
since that Department would have basic responsibility for
that action.
S. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969
U.S.C.C.A.N. 1607, 1618-19.
Finally, it is also evident that the Attorney General’s discretion extends
to the underlying merits of the lawsuit. Because there is no judicial
review of the NRC’s initial decision to order payment of civil penalties,
the collection suit itself is the vehicle for judicial review. Moreover, both
the legislative history of the Act14 and case law15indicate that the judicial
14In 1969 when the civil penalty provisions were enacted, the General Counsel for the Atomic Energy
Commission testified before the Joint Committee on Atomic Energy that violations of the provisions
were to receive de novo review. See AEC Omnibus Legislation 1969: Hearings Before the Joint Comm
on Atomic Energy , 91st C ong, 1st Sess. 29-30 (1969) (statement of Joseph F Hennessey, General Counsel
for AEC) That testimony provided as follows
Section c. [42 U SC . 2282(c)] deals with the responsibility of the Attorney General. If after
the Commission determines that a penalty should be imposed, the licensee fails to pay, the
m atter is referred to the Attorney General. He will determine whether a civil action for col­
lection in Federal district court should be instituted. He is given exclusive authority to com­
promise, mitigate, or remit the civil penalty after the matter has been referred by the AEC.
Under these provisions, an alleged violator is guaranteed an opportunity for a full hearing
on the merits in Federal district court before any civil penalty may be collected from him.
Id Mr Hennessey further noted that, “[a]s we understand it, no agency has been given this type of
Continued
142
review takes the form of a trial de novo. Because the trial is not limited
in scope, the Attorney General’s prosecutorial discretion should be simi­
larly plenary.
It is therefore clear that the Attorney General may exercise his discre­
tion to ensure that no lawsuits are filed by the NRC against other agen­
cies of the executive branch. If the Attorney General and the President
determine that no civil penalties should be collected, the Attorney
General may simply refrain from bringing a lawsuit. If the Attorney
General determines that certain civil penalties are appropriate, however,
the Attorney General would still not bring a lawsuit because of the con­
stitutional problems noted above. Rather, procedures internal to the
executive branch are adequate to resolve the dispute through the deter­
mination that the Air Force is liable.16
We thus conclude that a lawsuit between two agencies of the executive
branch would involve substantial constitutional problems, but that the
statutory scheme permits resolution of the interagency dispute within the
executive branch.
IV. Conclusion
We conclude that, unless the President seeks to review the NRC’s deci­
sion, the NRC may issue an order imposing civil fines on the Air Force.
We further conclude that any issue regarding the Air Force’s liability for
such fines may be resolved within the executive branch and without
resort to litigation.
WILLIAM P. BARR
Assistant Attorney General-
Office of Legal Counsel
14(. .continued)
authonty [to collect its own fines] because this would tend to cut off a judicial trial de novo of a ‘penal­
ty’ action.” Id. at 38
16See United States Nuclear Regulator Comm’n v Radiation Technology, Inc , 519 F. Supp. 1266(D.N.J. 1981). To determine the proper scope of judicial review, the district court examined the legisla­
tive history of NRC’s penalty provisions and analogous civil penalty provisions of other regulatory agen­
cies to conclude that Congress intended NRC’s collection actions to receive de novo review. Id at 1275-
86. Radiation Technology is the only reported case interpreting the NRC’s civil penalty provisions.
10 The Attorney General has authonty to resolve conclusively any legal question on which he and the
Air Force disagree See Exec. Order No. 12146, 3 C.F R 409 (1979) (mandating that the Attorney General
resolve legal disputes between agencies whose heads serve at the pleasure of the President) Any remain­
ing disagreement between the Attorney General and the Air Force could be submitted to the President
for his resolution.
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