Representation of the United States Sentencing Commission in Litigation ( 1988 )

Representation of the United States Sentencing Commission in
Litigation
T he A ttorney G eneral m ay, consistent w ith 28 U .S.C. § 516, perm it the U nited States Sentencing
C om m issio n to independently present as am icus curiae its views respecting its status and author­
ity to a co u rt in litigation w here it has b een nam ed as a party defendant.
T h e Ju stice D epartm ent rem ains responsible for conducting the litigation, for representing the Sen­
tencing C o m m ission as a party defendant, and for exercising its ow n independent judgm ent as to
the position o f the U nited States on the m erits o f the issues involved.
I f th e S en ten cin g C o m m ission chooses independently to p resent its view s in court, it m ay do so only
through individuals properly appointed as officers o f the U nited S tates pursuant to the A ppoint­
m ents C lause o f the Constitution.
A lth o u g h any counsel appointed to present the Sentencing C om m ission’s position would be subject
to the crim inal co nflict o f interest law s, the consequences o f coverage can be m itigated som ew hat
fo r tem porary or part-tim e em ployees in the executive branch by their appointm ent as “ special
g o v ern m en t em p loyees” under 18 U .S .C . § 202(a). B ecause this designation is not available for
ju d icial branch appointees, the Sentencing C om m ission m ay wish to ask the A ttorney G eneral to
ap p o in t as a special governm ent em ployee any private counsel retained by it to represent its views
in court.
January 15, 1988
M em orandum O p in io n fo r th e D epu ty A tto rn ey G en era l
You have asked for our views on whether the United States Sentencing Com­
mission may represent itself in court, through its own staff attorneys or through
specially appointed counsel, in litigation involving a challenge to its authority to
promulgate guidelines on sentencing. For reasons discussed more fully below,
we believe that the Department may permit the Commission to present its views
independently in litigation where it has been named as a party defendant. This
Department, however, remains responsible for representing the interests of the
United States in any such litigation.
I. Statutory Authority and Responsibility of the Department of Justice to
Represent Government Agencies in Litigation
It has been the consistent and longstanding position of this Department that,
absent a clear legislative directive to the contrary, the Attorney General has ple­
nary statutory authority and responsibility for all litigation, civil and criminal, to
which the United States, its agencies, or departments, are parties. See generally
The Attorney General's Role as C hief Litigator fo r the United States, 6 Op. O.L.C.
1847 (1982). The Supreme Court has concurred in this interpretation of the statu­
tory scheme. See United States v. San Jacinto Tin Co., 125 U.S. 273 (1888); Con­
fiscation Cases, 74 U.S. (7 Wall.) 454,457-58 (1868). See also Griffin B. Bell,
The Attorney General: The Federal Government's Chief Lawyer and C hief Liti­
gator, or One Among Many?, 46 Fordham L. Rev. 1049 (1978). The Attorney
General’s authority over the government’s litigation was first recognized in the
act creating the Department of Justice, Act of June 22, 1870, ch. 150, 16 Stat.
162 (1870). It is now primarily codified in section 516 of title 28, which reserves
“the conduct of litigation” involving the United States and its agencies and offi­
cers to the Attorney General and the Department of Justice, “[e]xcept as other­
wise authorized by law.” 1 In addition, section 3106 of title 5 prohibits executive
and military departments from employing outside counsel “for the conduct of lit­
igation” unless Congress has provided otherwise, requiring instead that the mat­
ter be referred to the Department of Justice.2 Because of the strong policies fa­
voring concentration of control over the government’s litigation,3 the “otherwise
authorized by law” exception to section 516 has been narrowly construed to per­
mit agencies to conduct litigation independent of the Department of Justice only
where statutes explicitly so provide. See Kern River Co. v. United States, 257
U.S. 147, 155 (1921); Marshall v. Gibson's Products, Inc., 584 F.2d 668, 676
n. 11 (5th Cir. 1978); 21 Op. Att’y Gen. 195 (1895).
Over the years, Congress has enacted a number of exceptions to the Attorney
General’s exclusive authority to conduct the government’s litigation in the lower
federal courts. See Bell, supra, at 1057. In some cases, the grant of independent
litigating authority is plain, in others less so;4 in still others, an agency’s ability
to represent the government in court by its own counsel is made subject to the
1 Section 516 provides*
[ejxcept as otherwise authorized by law, the conduct of litigation in which the United States, an agency,
or officer thereof is a party, or is interested, and secunng evidence therefor, is reserved to officers of
the Department o f Justice, under the direction o f the Attorney General
See also 28 U.S.C. § 519, which provides that, “ [ejxcept as otherwise authorized by law, the Attorney General shall
supervise all litigation m which the United States, an agency, or officer thereof is a party.”
2 Section 3106 has been construed by this Office to preclude payments by executive agencies to non-govem-
mental attorneys for advisory functions in connection with litigation, as well as litigating functions. See Letter for
Martin R. Hoffman, General Counsel, Department o f the Navy, from Antonin Scalia, Assistant Attorney General,
Office o f Legal Counsel (Mar 26, 1975)
3 As reflected in the congressional debates at the time the Department of Justice was created, concentration of
litigating authority in the Attorney General is intended to ensure the presentation o f untform positions on im por­
tant legal issues, to facilitate presidential control over executive branch policies implicated in litigation, to provide
for greater objectivity m the handling o f cases by attorneys who are not themselves affected litigants, to allow the
selection o f test cases which would present the government’s position in the best possible light, and to permit more
efficient handling o f appellate and Supreme Court litigation. It is also intended to eliminate the need for highly-
paid outside counsel when government-trained attorneys could perform the same function. See Cong. Globe, 41st
Cong., 2d Sess., pt. IV, 3035-39, 3065-66 (1870). See generally Bell, supra; Sewall Key, The Legal Work o f the
Federal Government, 25 Va. L. Rev. 165 (1938).
4 Some courts have regarded general “sue and be sued” clauses, or formulations such as “bring a civil action,”
or “invoke the aid o f a court” as insufficient to confer independent litigating authority. See, e g , ICC v. Southern
Railway, 543 F.2d 534 (5th C ir 1976); FTC v G uignon, 390 F.2d 323 (8th Cir. 1968)
19
direction and control of the Attorney General.5 However, where Congress has
not given an agency any authority to litigate through its own attorneys, the At­
torney General may not transfer o r delegate to it his own litigating power, through
a memorandum of understanding or otherwise. See Litigating Authority o f the
Office o f Federal Inspector, Alaska Natural Gas Transportation System, 4 Op.
O.L.C. 820 (1980). While attorneys employed by agencies that have no litigat­
ing authority may assist Department of Justice attorneys in connection with liti­
gation involving their agency, their role is restricted to so-called “agency coun­
sel” functions. They may appear in court or otherwise carry out duties reserved
to “officers of the Department o f Justice” under section 516 only if they are given
special appointments in the Department of Justice. See Assignment o f Army
Lawyers to the Department of Justice, 10 Op O.L.C. 115 (1986); Memorandum
for William P. Tyson, Director, Executive Office for United States Attorneys,
from Theodore B. Olson, Assistant Attorney General, Office of Legal Counsel,
Re: Applicability o f 10 U.S.C. § 973(b) to JAG Officers Assigned to Prosecute
Petty Offenses Committed on Military Reservations (May 17, 1983). In a word,
section 516 requires that, absent statutory direction to the contrary, the Attorney
General be the representative of the United States government in court.
Supreme Court litigation is a special case. Even where Congress has given
agencies authority independent o f the Attorney General to litigate in the lower
courts, 28 U.S.C. § 518(a) gives the Attorney General exclusive power to repre­
sent the interests of the United States and its agencies in the Supreme Court. Sec­
tion 518(a) provides that the Attorney General and the Solicitor General shall
conduct and argue all suits and appeals in the Supreme Court, “[ejxcept when the
Attorney General in a particular case directs otherwise.” In allowing the Attor­
ney General to “direct otherwise,” section 518 does not appear to compel the
same exclusivity of representation in the Supreme Court that section 516 com­
pels for litigation in the lower courts. And on occasion the Attorney General has
elected, in the exercise of his discretionary authority under section 518(a), to per­
mit an agency to file a brief in the Supreme Court in its own name rather than
have the Solicitor General represent it. In a very few cases the Attorney General
has allowed an agency to make legal arguments in the Supreme Court that were
inconsistent with the position asserted by the Department of Justice in the same
case. Where the agency has its own litigating authority, this has been done by
permitting the filing of a separate brief.6 Where the agency does not, the only ve-
5 Such statutes provide the framework for “Memoranda o f Understanding” which apportion litigation responsi­
bilities between the Department and agencies. S ee generally Paul McGrath, United States Department of Justice,
Civil Division, Compendium o f Departments and Agencies with Authority to Represent Themselves in Litigation
(1982).
6 Compare B rief for the A ttorney General as Appellee and for the United States as Amicus Cunae in Buckley
v. Valeo, 424 U.S. 1 (1976), with B rief for the Federal Election Commission in the same case. See also the discus-
sion o f the statutory provisions governing suits to set aside orders o f the Interstate Commerce Commission, and the
frequent resulting inconsistency in the government’s Supreme C ourt presentations, in Robert L. Stem, ‘Inconsis­
tency' in Governm ent Litigation, 64 Harv. L. R ev. 759, 760-64 (1951).
20
h id e apparently considered appropriate for an expression of its views is the De­
partment of Justice’s brief.7
II. The Attorney General’s Statutory Authority To Litigate on Behalf of
Entities Outside the Executive Branch
The Attorney General’s authority and responsibility under 28 U.S.C. § 516 to
represent the interests of the United States and its agencies in litigation extends
to representation of governmental entities and officials outside the executive
branch. See, e.g., Miller v. Johnson, 541 F. Supp. 1165,1172 (D.D.C. 1982) (sec­
tion 516 “reserves to” the Attorney General the representation of judges and other
court officials sued in their official capacities, as well as “the District Court which
is an agency of the United States”). See also Senate Select Comm, on Presiden­
tial Campaign Activities v. Nixon, 366 F. Supp. 51 (D.D.C. 1973) (“[W]hile [sec­
tion 516] does not require a congressional litigant to be represented by the Jus­
tice Department, it does deny such a litigant the right to sue as the United States
. . . . ”). In cases where a court or one of its officials or related organizational en­
tities is sued in its official capacity, and is in need of legal representation, the De­
partment of Justice generally provides it.8
Even where the matter at issue in litigation involves the exercise by a court of
some inherent Article III power, the Attorney General is the proper representa­
tive of judicial branch entities in court. See Young v. United States ex rel. Vuit-
ton, 481 U.S. 787, 801 (1987) (“ [A] court ordinarily should first request the ap­
propriate prosecuting authority to prosecute contempt actions, and should appoint
a private prosecutor only if that request is denied.”). This conclusion respecting
the Attorney General’s authority under section 516 was the premise of a 1973
Comptroller General opinion that authorized the use of judicial appropriations to
7 See, e.g , Brief for the United States in TVA v. Hill, 437 U.S. 153 (1978) (appendix filed by the Secretary of
the Intenor, by authorization o f the Attorney General, representing the separate views o f the Department o f the In­
terior), Brief in Opposition to Certiorari in Transamerica Co. v Federal Reserve B d , 340 U.S. 883 ( 1950) at 2 4-30
(views of the Treasury Department); Brief for the Department o f Justice in Railroad Retirement Bd v. Duquesne
Warehouse Co., 326 U.S. 446 (1946) at 20-21, 84—86 (views o f the Social Security Board). There have been a few
rare occasions where the Attorney General has, in the exercise o f his discretion, allowed two government agencies
with opposing views to fight the matter out without making any presentation himself to the court, even where both
agencies do not have independent litigating authority in the lower courts. See, e.g , ICC v Inland Waterways Corp.,
319 U.S. 671, 683 (1943) (ICC v. Secretary o f Agriculture); North Carolina v. United States, 325 U.S. 507 (1945)
(ICC v. OPA); Meredith v Thralls, 144 F.2d473, cert, denied, 323 U.S. 758 (1944) (SEC v. RFC) See Stern, supra,
64 Harv. L. Rev. at 768 ("[T]he Department may feel obligated to advise the Court as to the position which, in its
opinion, is correct, but may also feel loath to preclude presentation o f the opposing view. If that position has been
publicly stated, it will inevitably be brought to the Court’s attention by one party or another, and the Court may
well desire to have the position o f the agency concerned stated officially.’’).
8 See, e g ., Armster v United States District Court, 792 F. 2d 1423 (9th Cir. 1986) (U.S. Attorney represented
defendant district courts in suit challenging suspension o f civil jury trials); In re Fidelity Mortgage Investors, 690
F.2d 35 (2d Cir. 1982), cert denied, 462 U.S. 1106 (1983) (U.S Attorney represented defendant Administrative
Office of the United States Courts in suit challenging award o f referees’ fees under Bankruptcy Act); Duplantier
v United States, 606 F 2d 654 (5th Cir. 1979), cert deniedf 449 U.S 1076 (1981) (Department of Justice repre­
sented defendant Judicial Ethics Committee in suit by judges challenging financial disclosure filing requirements
o f Ethics in Government Act) See also Hastings v Judicial Conference, 829 F 2d 91 (D D C 1987), cert, denied,
485 U.S. 1014 (1988) (Judicial Conference and the C hief Justice represented by Department of Justice, Judicial
Council for the Eleventh Circuit represented by private counsel, in suit challenging judicial disciplinary proceed­
ing under 28 U.S.C. § 372).
21
pay private counsel where the Department o f Justice had declined to provide rep­
resentation to judges sued in their official capacity. See 53 Comp. Gen. 301, dis­
cussed infra. The assumption that section 516 generally obligates the Attorney
General to represent judicial branch entities in court is also apparent in the his­
tory and interpretation of 28 U.S.C. § 463, the statute that conditions the author­
ity of certain judicial branch entities and officials to pay private counsel upon the
“unavailability” of Department o f Justice representation. See S. Rep. No. 275,
97th Cong., 1st Sess. 16 (1981) (“ [T]he Attorney General is responsible [under
section 516] for providing the services of an attorney to a judge sued in his offi­
cial capacity.”); Letter for Honorable William W. Wilkins, Jr., Chairman, United
States Sentencing Commission, from William R. Burchill, General Counsel, Ad­
ministrative Office for United States Courts (Dec. 3, 1987) (“Burchill letter”)
(“ [W]e believe that the Sentencing Commission, like the Administrative Office,
is an agency of the United States within the meaning of [section 516].”).
Thus, section 516’s mandate extends to the representation of governmental
agencies and officials outside the executive branch. However, the Attorney Gen­
eral’s exclusive representational authority is subject to two exceptions in this con­
nection. First, in the unique context of contempt prosecutions, the Supreme Court
has ruled that separation of powers concerns may preclude the Attorney General
from asserting exclusive authority to represent the judicial branch. In Young, the
Supreme Court held that a court must be free to employ private counsel to pros­
ecute contempts if the Attorney General declines to do so. See 481 U.S. at 801(“If the judiciary were completely dependent on the Executive Branch to redress
direct affronts to its authority, it would be powerless to protect itself if that branch
declined prosecution.”).9
Second, 28 U.S.C. § 463 contemplates that the Attorney General may volun­
tarily relinquish his responsibility to represent judicial entities in certain cir­
cum stances.10 Section 463 is a statutory codification of the 1973 Comptroller
9 Ordinarily, the Attorney General will accommodate a request from a court to prosecute a contempt. See Brief
for the United States as Amicus Cunae in U nited States v Providence Journal Company, 485 U.S. 693 (1988) at
1 n .l (the fact that the United States has an interest in the underlying litigation does not disqualify a government
attorney from prosecuting a criminal contempt). If the Department is disqualified, or if it declines to prosecute in
the exercise o f its prosecutorial discretion, the court has inherent Article III authority to appoint a private attorney
to vindicate its authority. See Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987). Where a court exercises
this inherent Article III power, the prosecution takes place entirely outside the representational framework estab­
lished by section 516. In addition, the Solicitor General has recently taken the position (with which we agree) that
in such cases the A ttorney G eneral's authority under section 518 does not to extend to proceedings in the Supreme
Court arising out o f the contem pt prosecution. See Brief for the United States as Amicus Curiae in United States v.
Providence Journal Co., supra, at 2 n.2 (“In light o f the decision in Young, we believe that section 518 is best read
as referring to cases in which the United States is ‘interested’ by virtue of the constitutional and statutory respon­
sibilities o f the Executive Branch,” as opposed to “proceedings that are wholly internal to the Judicial Branch as
an ancillary aspect o f its powers under Article III.").
10 This provision, couched in terms of authority to expend the judiciary’s appropriation, provides:
W henever a C hief Justice, justice, judge, officer, o r employee o f any United States court is sued
in his official capacity, o r is otherwise required to defend acts taken o r omissions made in his official
capacity, and the services o f an attorney for the Government are not reasonably available pursuant to
chapter 31 o f this title, the Director o f the Administrative Office o f theUmted States Courts may pay
the costs o f his defense. The Director shall prescribe regulations for such payments subject to the ap­
proval o f the Judicial Conference of the United States.
22
General opinion, previously mentioned, that approved the use of the Judiciary’s
“miscellaneous” appropriation to pay litigation costs, including attorneys fees,
where the Department of Justice had declined to provide representation to judges
and court employees sued in their official capacity. See 53 Comp. Gen. 301(1973)."
Consistent with the theory underlying section 463, the Department has in the
past not objected to the retention by courts of private counsel to defend them­
selves in mandamus actions where the Department is disabled by reason of a con­
flict of interest from undertaking the representation, see Will v. United States,
389 U.S. 90 (1967) (mandamus action by United States resisting district court’s
discovery order), or is unwilling to do so for some other reason.12 And, in Chan­
dler v. Judicial Council o f the Tenth Circuit, 398 U.S. 74 (1970), the Attorney
General, in the exercise of his discretion under 28 U.S.C. § 518(a), allowed a ju ­
dicial agency to present its own views in the Supreme Court.13 In that case, the
Attorney General permitted a judicial council to present its own defense in a man­
damus action in the Supreme Court challenging its authority to discipline a dis­
trict court judge. In the initial stages of this litigation, the Solicitor General rep­
resented the judicial council. Later, however, when the judicial council and the
11 The Comptroller G eneral’s decision was based in part upon the awkwardness created by “having the Attor­
ney General, an official o f the executive branch o f the Government, determine whether and to what extent mem­
bers of institutions o f a coordinate branch of the Government, the judiciary, are to be represented in litigation in
which they are named as defendants or respondents.” 53 Comp. Gen. at 305. Section 463 thus recognizes and gives
effect to the separation o f powers concerns that would be raised if the Attorney General were disabled by reason
o f a conflict of interest from representing judicial defendants, and unwilling at the same time to allow them to de­
fend themselves.
12 In a letter to the Director, Administrative Office o f the United States Courts dated January 31, 1973, the At­
torney General stated that “the Department cannot furnish [legal] representation to a judicial officer in a situation
where the Department’s interests collide with those o f the judicial officer, such as in a mandamus action instituted
against a judge by the Department ” 53 Comp. Gen. 301, 303 (1973). In addition, the Attorney General advised:
In our view, when no personal relief is sought against the judicial officer, such officer is no more in
need of a personal defense than he would be if an appeal were taken from any of his appealable rul­
ings. Nor is there any impropriety in counsel for one of the private litigants representing the judicial
officer, as if he were defending an appeal from the officer’s ruling.
Id.13 In the more recent litigation involving the Eleventh Circuit Judicial Council’s investigation o f Judge Alcee
Hastings, the Department o f Justice has represented the Judicial Conference, the C hief Justice, and the United States,
while the judicial council and its investigating committee have been represented by private counsel. See Hastings
v Judicial Conference, 829 F.2d 91 (D.C. Cir. 1987), cert denied, 485 U.S. 1014 (1988). In the early stages o f this
litigation, the Department also represented the judicial council, but after receiving the report of its investigating
committee that entity chose instead to be represented by the committee’s counsel, John Doar. While the court of
appeals upheld the investigating committee’s authority to subpoena grand jury records independent of the A ttor­
ney General, see In re Petition to Inspect and Copy Grand Jury Materials, 735 F 2d 1261 (1 Ith Cir.), cert denied,
469 U.S. 884 (1984) (“Congress certainly never intended a judicial investigating committee [investigating charges
of judicial misconduct] to be beholden to the Attorney General for permission to seek the information it needs.”),
the issue o f the council’s authority to employ pn vate counsel to conduct litigation in the face o f section 516 has not
been raised or addressed by the court in this litigation. We doubt whether, in the circumstances of the Hastings lit­
igation, the council has authority to represent itself through its own privately retained counsel since .there appears
to be no reason why the Attorney General is disabled from representing the judicial counsel along with the other
judicial defendants. And, as will be discussed more fully in Part IV o f this memorandum, serious constitutional
questions are raised by allowing a judicial branch entity to represent itself in court through counsel that has not been
appointed by the Attorney General.
23
Solicitor General were unable to reconcile their views on the merits, they filed
separate briefs in the Supreme C ourt.14 In sum, section 516 imposes a general
prohibition against the Attorney General’s delegating his own authority to con­
duct the government’s litigation to other government agencies, including judi­
cial branch agencies. The only recognized exceptions to this prohibition are cases
where the Attorney General has declined to prosecute a criminal contempt, and
where he is disabled from representing a judicial defendant because of a conflict
o f interest.
III. Statutory Authority of the Sentencing Commission to Represent Itself
in Litigation
We turn now to the question o f the Sentencing Commission’s authority to rep­
resent itself as a named defendant in litigation challenging the constitutionality
o f its guidelines.
The statute authorizing the establishment of the Commission and defining its
authorities does not refer to the conduct of litigation or to any other authority
(such as administrative enforcement power) from which one might reasonably
infer that Congress intended the Commission to appear in court through its own
counsel. Nor does the Commission’s current appropriation statute contain any
provision suggesting that it may use its funds to litigate independent of the De­
partment. See Pub. L. No. 99-500, 100 Stat. 1783-63 (1986). The Sentencing
Commission does not fall within section 463 because it is not a “chief justice,
justice, judge, officer or employee of any United States court.” And the unique
“doctrine of necessity” exemption for contempt prosecutions created in Young
obviously does not obtain here. The Department is willing and able to represent
the Commission and, in any event, there is no constitutional “necessity” that might
authorize the Commission to conduct its own defense if the Department declined
to do so. In the absence of any such authority, under principles generally applic­
able to the conduct of litigation by government agencies, we would ordinarily be
constrained to conclude that the Commission may not appear in court by its own
counsel, but must be represented by the Department of Justice. This is because,
as a statutory matter, the Attorney General may not delegate to the Commission
or otherwise allow the Commission to assume his own authority under section
516 to conduct litigation in the name of the United States. It is our understand­
ing, however, that the Department has no intention of abdicating to the Com­
14 Charles Alan W right filed a bnef and argued on behalf o f the Judicial Council that its acts were purely ad­
ministrative in nature and could not be reviewed in an original proceeding in the Supreme Court. 398 U.S. at 83.
The Solicitor General filed an amicus brief arguing that the Judicial Council had acted as a judicial tribunal, and
that the case, therefore, fell within the Supreme Court’s appellate jurisdiction. Id at 83-84. The Supreme Court did
not decide the jurisdictional issue, holding instead that Judge Chandler had not succeeded in establishing his enti­
tlement to a mandamus remedy. Id at 89.
24
mission any of its own responsibility under section 516 to represent the interests
of the United States—including those of the Commission as a party defendant—
in this litigation. And it is also our understanding that the Commission has in no
sense proposed that the Department should do so. All that the Commission seeks
is assurance from the Department that it will not move to strike whatever pre­
sentation the Commission may independently wish to make to the court in an am­
icus curiae capacity on the issue of its own constitutional status and authority.
Such an independent amicus presentation would not require the Department to
relinquish any of its control over the conduct of the litigation, which is all that
section 516 itself requires. Under these circumstances, we believe the Attorney
General may, consistent with section 516, permit the Commission to present its
own views to the court. Ordinarily, of course, the Department would object to
any presentation by an executive agency in court of a position in opposition to
that of the Department, whether or not the agency had statutory litigating au­
thority independent of the Department, on grounds that disputes between exec­
utive agencies should be settled not by a court but within the executive branch.
See Memorandum for J. Paul McGrath, Assistant Attorney General, Civil Divi­
sion, from Theodore B. Olson, Assistant Attorney General, Office of Legal Coun­
sel, Re: Amicus Curiae Role o f the Small Business Administration’s Chief Coun­
sel fo r Advocacy Under the Regulatory Flexibility Act (May 17, 1983). This
objection is grounded in the same policy considerations that underlie section 516
itself, see supra note 3, though it is also animated by the constitutional concern
that disputes between executive agencies are constitutionally subject only to the
direction and control of the President, not the courts. See Memorandum for F.
Henry Habicht, Assistant Attorney General, Land and Natural Resources Divi­
sion, from Charles J. Cooper, Assistant Attorney General, Office of Legal Coun­
sel, Re: Response to Rep. Dingell on EPA’s Ability to Sue Other Federal Agen­
cies (Dec. 4,1985); Memorandum for Michael Egan, Associate Attorney General,
from John M. Harmon, Assistant Attorney General, Office of Legal Counsel, Re:
EPA Litigation Against Government Agencies (June 23, 1978).15
Despite the force of these policy concerns, the Attorney General has in a num­
ber of situations permitted an agency to express in court views that differed from
those presented by the Department. See supra note 7. The constitutional issues
involved in this case go to the Commission’s validity under separation of pow­
ers principles. Moreover, these issues also raise questions of the extent to which
the Commission is subject to the direction and control of the President. Under
these very special circumstances, we believe that the Attorney General would be
justified in permitting the Commission to present its own views to the court.
15 The fact that two or more executive agencies m ay present differing views on legal issues m court papers does
not raise any problem o f justiciability where there are other nongovernmental parties to the controversy who are
themselves truly adverse to the government. Cf. United States v ICC, 337 U S. 426 (1949). And, this is not a case
where one executive agency is opposing another in court under authority o f a statutory directive. Compare Untied
States v. Connecticut N at’I Bank, 418 U S 656 (1974) While Congress could not constitutionally deprive the Pres­
ident of his authority to resolve legal disputes among executive agencies, there is no constitutional reason why the
President in his discretion may not authorize executive agencies to present their differing views to a court for pos­
sible resolution.
25
IV. Constitutional Status of Persons Litigating on Behalf of the
Commission and Applicability to them of the Conflict of Interest Laws
If the Commission chooses to present its views to the court, it could do so
through its General Counsel or through private retained counsel. Depending upon
the role assumed by such private counsel in the litigation, they may have to be
appointed as officers of the United States and take the requisite oath of office.
Representation in court of government entities— whether executive or judicial—
is a function that can constitutionally be performed only by officers of the United
States appointed in accordance with the Appointments Clause. See Buckley v. Va­
leo, 424 U.S. 1, 140 (1976) (the function of “conducting civil litigation in the
courts of the United States for vindicating public rights . . . may be discharged
only by persons who are ‘Officers of the United States’ within the language of
[the Appointments Clause].”). While the question is not squarely answered by
Buckley, we have taken the position that, as a general matter, a government agency
cannot constitutionally delegate to a private party responsibility for the conduct
of litigation in the name of the United States or one of its agencies. See Memo­
randum for the Deputy Attorney General, from Theodore B. Olson, Assistant At­
torney General, Office of Legal Counsel (May 20, 1983) (authority to conduct
government’s debt collection litigation may not constitutionally be delegated to
private lawyers). By the same token, we believe that an agency may not consti­
tutionally entrust to a private party the formulation and presentation of its views
on its own authority to a court. Such a responsibility can only be carried out by
an official of the government who has been appointed in accordance with the Ap­
pointments Clause.16
Because we believe that the Sentencing Commission is an executive branch
agency,17 we also believe that the Commission can constitutionally appoint pri­
16 W e have taken the position that pnvate counsel may be retained under contract without government ap­
pointments to perform certain litigating functions m connection with government debt collection, so long as they
are “closely supervised and controlled” by government officials, and so long as “all final decisionmaking author­
ity remained with duly appointed officers ” S ee Memorandum for Richard K Willard, Assistant Attorney General,
Civil Division, from Douglas W Kmiec, D eputy Assistant Attorney General, Office of Legal Counsel, Re H R
4659, The Omnibus D ebt Collection and C redit Management A ct o f 1986 (June 13, 1986) We have also empha­
sized that “a m ere patina o f supervision having no real substance would be insufficient to render lawful the dele­
gation o f executive functions to a pnvate individual.” See Memorandum for Phillip D. Brady, Acting Assistant At­
torney G eneral, O ffice o f Legislative and Intergovernmental Affairs, from Ralph W Tarr, Acting Assistant Attorney
General, Office o f Legal Counsel, Re Procurement Fraud Act o f 1985 at 3 (M ar 29, 1985). In this context, where
the C om m ission intends to present arguments that will address the issue o f its own governmental authority, we be­
lieve that all briefs and other court filings by the Commission must be signed by an officer of the United States.
M oreover, it would probably be necessary that the individual who makes an oral presentation to the court be an ap­
pointed officer o f the United States On the other hand, there is no constitutional reason why pnvate counsel may
not be retained under contract to assist in the preparation o f the Commission’s court filings.
17 N otwithstanding its statutory descnption as “an independent commission in the judicial branch,” the Sen­
tencing Commission m ust as a constitutional matter be regarded as within the executive branch because it performs
an executive function (or, m ore precisely, a legislative function that can be delegated only to an executive agency).
See M emorandum for Judge William W. W ilkins, J r , Chairman, United States Sentencing Commission, from
Charles J Cooper, Assistant Attorney G eneral, Office o f Legal Counsel (Jan. 8, 1987). See also Lewis J Liman,
C onstitutional Infirm ities o f the United States Sentencing Commission, 96 Yale L.J 1363,1375 (1987) (“ [T]o claim
that the Commission is in the judiciary rather than the executive branch is simply not colorable.”).
26
vate counsel and charge them with the performance of Article II litigating func­
tions that are reserved under the Constitution to “officers of the United States.” 18
Alternatively, the Commission could ask the Attorney General to appoint one of
the Commission’s own staff attorneys or private counsel as a special departmental
attorney under 28 U.S.C. § 515(a), and to direct these individuals to present to
the court the position favored by the Commission.19
If the Sentencing Commission is correct in its view of the law, and the Com­
mission is ultimately held to be a judicial branch entity, it would have no power
under the Appointments Clause to appoint counsel to exercise Article II litigat­
ing functions.20 In this event, only the Attorney General would have authority to
appoint counsel to represent the Commission in court. Accordingly, to insure
against the consequences of its prevailing on the merits of this issue, the Com­
mission may wish to ask the Attorney General to issue a parallel Department of
Justice appointment to any attorney it wishes to have litigate in its name.21 The
Commission should consider this course of action not only for private counsel it
may wish to employ, but also for its own General Counsel and any of his staff
who perform litigating functions that, under the Constitution, can only be per­
formed by officers of the United States.
Counsel appointed to present to the court the Commission’s position would be
subject to the criminal conflict of interest laws that apply to all government of­
ficers and employees. See 18 U.S.C. §§ 201-211. The consequences of this for
attorneys otherwise engaged in private practice may be substantial, and include
curtailment of private representations before government agencies, see 18 U.S.C.
§ 205, and a prohibition against sharing in any fees generated from such repre­
sentations. See 18 U.S.C. § 203. These consequences may be mitigated some­
what for temporary or part-time employees in the executive or legislative branch
by their appointment as “special government employees” under 18 U.S.C.
18 The Commission’s constitutional power under the Appointments Clause of Article II to appoint an “infenor
officer” o f the United States would derive from its status as a “ Department ”
19 This would be a desirable course if the Commission had some concern about the extent of its own authority
to appear in court through its own counsel. And we see no reason why, in these circumstances, the Attorney G en­
eral should not authorize the filing o f separate briefs taking inconsistent positions on the ments, even if both would
be signed by attorneys holding departmental appointments There is precedent for such a course in the two bnefs
filed by the Department in Buckley v Valeo, which took different positions on the substantive legal issues involved
in that case. Compare Brief for the Attorney General as Appellee and for the United Slates as Amicus C unae with
Brief for the Attorney General and the Federal Election Commission. The Federal Election Commission also filed
a separate bnef in this case See supra note 6. Both o f the Department’s bnefs were signed by Attorney General
Levi and Solicitor General Bork, though each was also signed by different members of the Solicitor General’s staff
In addition, in the recent litigation involving the validity o f the Attorney General’s regulatory appointment o f the
independent counsel under 28 C F.R. pt. 600, both the Attorney General and the independent counsel defended the
validity o f the appointments but made conflicting arguments on their implications. See Bnefs filed by the Inde­
pendent Counsel as Appellee and by the United States as Amicus Cunae, as well as the decision of the Court of
Appeals in In re Sealed Case, 829 F.2d 50 (D.C. Cir. 1987) at 56 n .3 1.
20 Indeed, it would have no power o f appointment under that Clause at all, since it cannot by any stretch o f the
imagination be regarded as a “court o f law.”
21 This is a course o f action we have taken for several o f the independent counsel appointed by the court under
28 U.S.C. § 593 to ensure their work against the possibility o f a finding of unconstitutionally in pending litigation
See 28 C.F R pt. 600, 52 Fed. Reg. 7270 (Mar 10, 1987).
27
§ 202(a).22 However, the special designation under section 202(a) is not avail­
able for judicial branch appointees, so that they are subject to the full force of
sections 203 and 205 during any period of government service, no matter how
brief.
If the Commission is an executive agency, any attorney employed by the Com­
mission on a temporary or part-time basis to litigate in its behalf could be ap­
pointed as a special government employee. 18 U.S.C. § 202(a). Such appointees
would be barred from performing private representations only in matters pend­
ing before the agency in which they hold their appointment—either the Com­
mission itself or this Department, or both, depending upon which agency ap­
pointed them, as discussed above.
For the following reasons, the Commission may wish in any event to ask the
Attorney General to appoint any private counsel retained by it to represent its
views in court. If the Commission is ultimately held to be a “judicial branch” en­
tity, all of its employees, whether full-time or temporary, would be subject to the
full force of the conflict of interest laws, since there is no provision in those laws
for appointing “special government employees” in the judicial branch. Since the
Commission would also in this event be unable constitutionally to conduct liti­
gation through its own appointees, there may be no purpose served—and con­
siderable hardship created—by asking private counsel to accept appointments to
the Commission. In short, private counsel may prefer to accept appointment as a
special government employee in the Department of Justice in order to avoid the
particular difficulties that would be in store for them in accepting an appointment
from the Commission if the Commission’s views of its constitutional placement
in the judicial branch were ultimately to prevail in court.
Conclusion
In summary, we believe that the Attorney General may, consistent with sec­
tion 516, permit the Sentencing Commission independently to present its views
respecting its status and authority to a court in litigation where it has been named
as a party defendant. The Department, of course, remains responsible for con­
ducting the litigation, for representing the Commission as a party defendant, and
for exercising its own independent judgment respecting the position of the United
States on the merits of the issues involved. In this regard, we remain convinced
that, because of its composition and powers, the Sentencing Commission can only
be defended as an entity within the executive branch. If the Sentencing Com­
22 Employees in the executive and legislative branches may be designated by their employing agency official
as “special government employees” if their service is not expected to exceed 130 days during any period of 365
days. Individuals so designated are subject to the disabilities deriving from 18 U.S.C §§ 203 and 205 only with re­
spect to representational activity before the particular agency in which they are employed. See 18 U.S C. §§ 203(b),
205 The impact o f the conflicts laws is even further limited where “special” appointees serve no longer than 60
days. Id. While special government employees are subject to the disqualification requirements o f 18 U.S.C. § 208,
they are not subject to the prohibition against supplementation o f federal salary m 18 U S.C § 209
28
mission chooses to present to the court a contrary position on this and other re­
lated issues, it would in no way obviate the Department’s continuing right and
duty to present the position of the United States on them. Finally, if the Com­
mission does choose independently to present its views in court, it may do so
constitutionally only through individuals properly appointed as officers of the
United States.
C h a r l e s J. C o o p e r
Assistant Attorney General
Office o f Legal Counsel
29