Litigating Authority of the Office of Federal Inspector, Alaska Natural Gas Transportation System ( 1980 )

Litigating Authority of the Office of Federal Inspector,
Alaska Natural Gas Transportation System
T h e s ta tu to ry assig nm ent to th e A tto rn e y G e n e ra l o f p len ary responsibility for the
c o n d u c t o f litig atio n in v o lv in g th e U n ited S tates fu rth e rs a n u m b er o f im p o rtan t policy
g oals, and ex cep tio n s to this p len ary g ran t w ill be n a rro w ly co n stru ed .
T h e O ffice o f F e d eral In sp e c to r (O F I) o f th e A laska N a tu ra l G as T ra n s p o rta tio n System
has n o g en eral p o w e r to c o n d u c t litigation, a lth o u g h it is possible th at O F I m ay h av e a
d e g re e o f specific a u th o rity d e riv e d from th e in d ep en d en t litigating a u th o rity o f a g e n ­
cies w h o se en fo rc e m e n t p o w e rs w e re tra n sfe rre d to O F I by R e o rg an izatio n Plan N o. 1
o f 1979.
T h e A tto rn e y G e n e ra l m ay not d ele g a te o r tran sfer his a u th o rity and responsibility to
su p erv ise an d c o n tro l litigation, by w a y o f a m e m o ran d u m o f u n d ersta n d in g o r o th e r ­
w ise, to an ag en cy , like O F I , th at d o es not in d e p e n d e n tly possess litigating au th o rity ;
h o w e v e r, a tto rn e y s from O F I m ay p a rtic ip a te in litigation as p a rt o f a team h ead ed by
a tto rn e y s from th e D e p a rtm e n t o f Justice.
December 11, 1980
MEM ORANDUM OPINION FOR
T H E ASSOCIATE ATTORNEY G EN ER A L
You have asked us certain questions regarding the litigating authority
of the Office of Federal Inspector (OFI) of the Alaska Natural Gas
Transportation System. We conclude that OFI has no general authority
to conduct litigation, but that it may possibly have specific, limited
authority derived from agencies which have litigating powers independ­
ent of the Department of Justice. We further conclude that the Depart­
ment of'Justice may not enter a memorandum of understanding with
OFI transferring litigating authority to that agency.
I.
First, you have asked for our opinion as to whether OFI has any
independent litigating authority, deriving either from the Alaska Natu­
ral Gas Transportation Act of 1976 (ANGTA), 15 U.S.C. §719, or the
Reorganization Plan No. 1 of 1979, 15 U.S:C. § 719(e) (Supp. Ill 1979)
(Reorganization Plan).
It is useful to review some basic principles in answering this question.
Traditionally, the Attorney General has exercised plenary responsibility
over the conduct of all litigation on behalf of the United States. United
States v. San Jacinto Tin Co., 125 U.S. 273, 279 (1888); Confiscation
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Cases, 74 U.S. (7 Wall.) 454, 457-58 (1868). This responsibility was first
given statutory recognition in the act which created the Department of
Justice, 16 Stat. 162 (1870), and is now primarily codified at §§516 and
519 of Title 28, which reserve the conduct of litigation involving the.
United States to the Attorney General and the Department of Justice
“[e]xcept as otherwise authorized by law.” 1
This assignment of plenary authority to the Attorney General cen­
tralizes the conduct of litigation on behalf of the United States and
thereby furthers a number of important policy goals. It allows the
presentation of uniform positions on important legal issues, ensures that
government lawyers will be able to select test cases which present the
government’s position in the best possible light, and gives the Attorney
General authority over lower court proceedings so that government
litigation will be better handled on appeal and before the Supreme
Court. It provides for greater objectivity in the filing and handling of
cases by attorneys who are not themselves affected litigants. And it
facilitates presidential supervision over executive branch policies impli­
cated in litigation.2
Because of the strong policies favoring control of litigation by the
Attorney General, the “otherwise authorized by law” exception in
§§516 and 519 is construed narrowly as permitting litigation by agen­
cies other than the Department of Justice only when statutes explicitly
so provide. Marshall v. Gibson's Products, Inc. o f Plano, 584 F.2d 668,
676 n.l 1 (5th Cir. 1978); IC C v. Southern R y Co., 543 F.2d 534, 536 (Sth
Cir. 1976); United States v. Tonry, 433 F. Supp. 620, 622 (E.D. La.
1977). A statutory grant of power to “bring a civil action” is not in
itself conclusive evidence that an agency possesses litigating authority.3
What is generally required is language authorizing agencies to use their
own attorney to represent them in court.4 The question, therefore, is
1 Section 516 provides:
Except as otherw ise authorized by law, the conduct o f litigation in w hich the United
States, an agency, o r officer th ereo f is a party, o r is interested, and securing evidence
therefor, is reserved to officers o f the D epartm ent o f Justice, under the direction o f the
A tto rn ey G eneral.
Section 519 provides:
Except as otherw ise authorized by law, the A tto rn ey G eneral shall supervise all
litigation to w hich the United States, an agency, o r officer th ereo f is a party, and shall
direct all U nited States attorneys, assistant U nited States attorneys, and special a tto r­
neys appointed under section 543 o f this title in the discharge of their respective duties.
See also 5 U.S.C. § 3106, w hich states in pertinent part:
Except as otherw ise authorized by law. the head o f an Executive departm ent or
military departm ent may not em ploy an attorney or counsel for the conduct o f
litigation in w hich the U nited States, an agency, o r em ployee th ereo f is a party, or is
interested, o r for the securing o f evidence therefor, but shall refer the m atter to the
D epartm ent o f Justice.
2 See generally ICC v. Southern R y Co., 543 F.2d 534, 536 (5th Cir. 1976); O ffice o f Legal Counsel,
M em orandum to the D irecto r, O ffice o f M anagem ent and Budget (N ovem ber 29, 1973).
3 Compare FTC v. Guignon, 390 F.2d 323 (8th Cir. 1968), with SE C v. Robert Collier & Co., 76 F.2d
939 (2d Cir. 1935).
4 See, e.g.. 16 U.S.C. § 825m(c) (F ederal Pow er Commission); 12 U.S.C. § 1464(d)(1) (F ederal Home
Loan Bank Board).
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whether there is any provision of law which thus explicitly vests
litigating authority in OFI.
Such authorization exists, if at all, in the Reorganization Plan, which
established OFI and transferred to it certain functions of other federal
agencies.5 Section 102 of the Reorganization Plan vests in OFI “exclu­
sive responsibility for enforcement of all Federal statutes relevant in
any manner to pre-construction, construction, and initial operation” of
the approved transportation system. 15 U.S.C. § 719(e). “Enforcement”
is defined to “includ[e] monitoring and any other compliance or over­
sight activities reasonably related to the enforcement process.” Section
102 then lists approximately 50 statutory authorities exercised by seven
federal agencies: the Environmental Protection Agency; the Army
Corps of Engineers; the Department of Transportation; the Department
of Energy; the Department of the Interior; the Department of Agricul­
ture; and the Department of the Treasury. With respect to each of the
statutory authorities, the transferred functions “include all enforcement
functions of the given agencies or their officials under the statute as
may be related to the enforcement of such terms, conditions, and
stipulations [under federal authorizations], including but not limited to
the specific sections of the statute cited.” Finally, as relevant here,
§ 102(h)(1) vests in OFI “[t]he enforcement functions authorized by, and
supplemental enforcement authority created by [ANGTA].”
These provisions nowhere contain the explicit language needed to
divest the Attorney General of his otherwise plenary control over
federal litigation. To be sure, the word “enforcement” might possibly
be read so broadly as to encompass litigation. But such a construction
would be inconsistent with the ordinary understanding of that term as
used in federal statutes and regulations. There are a host of agencies,
large and small, with statutory “enforcement” powers, but this authori­
zation has never been interpreted to constitute a grant of litigating
authority. If it were, the reservation of litigation to the Attorney
General in §§516 and 519 would be largely vitiated.
That “enforcement” does not encompass litigation is evident from the
Reorganization Plan’s transfer to O FI of the “supplemental” enforce­
ment powers in ANGTA. A N G T A ’s supplemental enforcement
powers, which are contained in § 11 thereof, are limited to issuing
compliance orders or requesting the Attorney General to commence a
5 Previously, the A laskan oil pipeline project had em ployed a federal inspector to supervise
con stru ctio n . In A N G T A , C ongress instructed the President, inter alia, to appoint an officer o r board
to serve as federal inspector o f an ap proved natural gas transportation system. As contem plated in
§ 7(a)(5) o f A N G T A , 15 U.S.C. §719e(a)(5), the federal inspector’s duties w ere restricted to m onitor­
ing and oversight and clearly did not include litigation. T h e President further expanded the federal
in sp ecto r concept by proposing to grant certain pow ers o v er the term s and conditions to be included
in federal perm its and o th e r authorizations. Alaska Natural Gas Transportation System: Message from
the President o f the United States Transmitting His Decision and Report on an Alaskan Natural Gas
Transportation System. H .R . D oc. No. 225, 95th C ong., 1st Sess. 197-200 (1977). Like A N G T A ,
ho w ev er, the P resident's decision itself cannot plausibly be read as em pow ering O F I to engage in
litigation.
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civil action. 15 U.S.C. § 719i.6 If OFI possessed independent litigating
authority by virtue of the transfer of enforcement powers, it is unlikely
indeed that it would need an additional and “supplemental” power to
request the Department of Justice to institute a suit.
Finally, our research has uncovered no references in the legislative
histories either of ANGTA, the President’s decision, or the Reorganiza­
tion Plan indicating that any of the participants—be they the President,
the members of the congressional committees, or the witnesses at com­
mittee hearings—believed that the federal inspector or OFI possessed
general litigating authority. If such a far-reaching grant of authority
had been contemplated, at least some reference to this fact would have
been included in these legislative histories. For the above reasons,
therefore, we conclude that OFI possesses no general litigating author­
ity.7
II.
You have also asked whether the Attorney General, under §§516
and 519, has authority to transfer litigating authority by way of a
memorandum of understanding to agencies that do not possess litigating
authority.
In the absence of any general provision of law permitting an agency
to transfer its statutory authority to another agency, such transfers or
delegations may normally be accomplished only by legislation or by
executive reorganization under the Reorganization Act. See 5 U.S.C.
§ 903(a). We have already concluded that the Reorganization Plan did
not itself transfer litigating authority from the Department of Justice to
OFI, and we see nothing in that Plan which can be read as authorizing
the Attorney General to delegate such authority. Nor do the statutes
generally applicable to the Department of Justice empower the A ttor­
6 M ore specifically, § 11(a) provides:
In addition to rem edies available under o th er applicable provisions o f law, w henever
any Federal officer o r agency determ ines that any person is in violation o f any
applicable provision o f law adm inistered o r enforceable by such officer or agency or
any rule, regulation, o r o rd e r under such provision, including any term o r condition o f
any certificate, right-of-w ay, perm it, lease, o r other authorization, issued or granted by
such officer o r agency, such officer o r agency may—
(1) issue a com pliance o rd er requiring such person to com ply w ith such provision or
any rule, regulation, o r o rd e r thereunder, o r
(2) bring a civil action in accordance w ith subsection (c) o f this section.
15 U.S.C. § 719i(a). Subsection (c) provides in pertinent part:
U pon a request o f such officer o r agency, as the case may be, the A ttorney G eneral
may com m ence a civil action for appropriate relief, including a perm anent or tem po­
rary injunction o r a civil penalty not to exceed $25,000 per day for violations o f the
com pliance o rd er issued under subsection (a) o f this section. . . .
15 U.S.C. § 719i(c).
7 It is possible that O F I may enjoy a degree o f specific au thority derived from independent
litigating au th o rity previously exercised by a federal agency o th e r than the D epartm ent o f Justice and
transferred to O F I by the R eorganization Plan. T hat issue is beyond the scope of o u r present inquiry
and w ould require an exam ination o f any existing independent litigating authority exercised by any o f
the agencies that transferred functions to O F I pursuant to the R eorganization Plan.
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ney General to delegate authority to other agencies. Indeed, the impli­
cation of these statutes is clearly to the contrary. Section 516 states
that, except as otherwise authorized by law, the conduct of government
litigation is “reserved” to officers of the Department of Justice. Section
519 in terms imposes a mandatory duty on the Attorney General to
supervise all litigation involving the United States, except as otherwise
authorized by law. The policy of ensuring centralization of litigation
which underlies §§516 and 519 is furthered by a rule prohibiting
delegation outside the Department of Justice.
Generally speaking the Attorney General may not enter into a
memorandum of understanding or other arrangement delegating litigat­
ing authority to an agency that does not independently possess such
authority.8 The Attorney General may delegate litigating authority
where specifically authorized to do so by federal statute or by legisla­
tive history unequivocally expressing congressional intent to permit
delegation. For example, we believe that authority to conduct litigation
may be delegated when a statute provides that the Attorney General
may authorize an agency to appear in court under his overall control
and supervision. There is, however, no language in the materials rele­
vant to OFI that can be read to supersede the Attorney General’s
general obligation not to delegate his responsibility outside the Depart­
ment of Justice.9
Given that the Attorney General may not delegate his litigating
authority to OFI, the question arises as to what role, if any, attorneys
from O FI could play in that agency’s litigation. It is evident that the
Attorney General may not transfer to O FI any powers either to “super­
vise” (§519) or to “conduct” (§516) litigation. Thus, attorneys from
O FI may not exercise general supervisory powers over a case or class
of cases. Nor may they take trial level responsibility for handling a
particular case. However, we believe that attorneys from OFI may
participate in depositions, witness examinations, arguments, briefings,
and all other forms of trial preparation and presentation as part of a
litigation “team” headed by an attorney or attorneys from the Depart­
ment of Justice. This would not amount to an impermissible delegation
of the power to “conduct” litigation so long as an attorney from the
Department of Justice participates actively in the litigation in all its
8 O n the o th er hand, an agreem ent establishing “agreed boundaries" betw een the D epartm ent o f
Justice and an agency possessing independent litigating au th o rity w ould appear entirely permissible.
F o r exam ple, O F I and the D epartm ent o f Justice could en ter into an agreem ent w ith respect to those
litigating authorities, if any, w hich the R eorganization Plan transferred to O F I from agencies o ther
than the D epartm ent o f Justice. A like arrangem ent could be used to establish the point at w hich
adm inistrative proceedings w ithin O F I's com petence end and judicial proceedings w ithin the sphere o f
the D epartm ent o f Justice begin.
9 T h e D epartm ent o f Justice cu rren tly operates under a num ber o f m em oranda o f understanding
and o th er inform al agreem ents dividing litigating responsibility w ith o th e r agencies. A lthough w e have
not studied the subject exhaustively, it appears that those agreem ents are authorized by federal statute
o r are otherw ise permissible as not am ounting to delegations o f authority. Several o f these m em oranda
a re collected in the D ep artm en t's Civil Division P ractice M anual, at § 3-28.
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phases and retains final say over all significant trial decisions, including
but not limited to stipulations of facts, removal of issues from the case,
compromise, and dismissal. The Department of Justice has frequently
engaged in this “team” approach to litigation, and we see no legal
objection to the practice.10
J ohn M. H arm on
Assistant Attorney General
Office o f Legal Counsel
10 A lternatively, one o r m ore attorneys from O F I could be appointed to act as special attorneys or
special assistants w ithin the D epartm ent o f Justice. See 28 U.S.C. §§ 543, 515. Such attorneys w ould be
able to conduct litigation o r to supervise the conduct o f a case o r class o f cases.
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