Authority of the Department of Justice to Retain Private Legal Counsel ( 1978 )

March 10, 1978
78-16 MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL, CIVIL
DIVISION
Department of Justice— Retention of Private
Counsel—Authority— Defense of Federal
Officials
At your request, we have examined the Congressional Research Service
memorandum on the authority o f the Department of Justice to retain private
legal counsel and the unsigned memorandum entitled “ Statutory Authority for
Justice Department Hiring of Private Counsel” (“ Opposition M emo” ). Each
memorandum deals at length with the derivation of the statutes concerning
representation o f Federal agencies and employees and with judicial decisions
regarding those statutes. The Congressional Research Service memorandum
concludes (p .39) that there is “ substantial doubt whether the Department of
Justice has the statutory authority to retain private attorneys who are not subject
to the supervision . . . o f the Attorney General . . . or who have not been
appointed in accordance with [28 U .S.C . §§ 515 and 5 43].” The Opposition
Memo states a similar conclusion (p. 37), namely, that 28 U .S.C . §§ 515 and
543 are the only statutes authorizing the Department to retain private counsel
and that the Attorney General has no authority to do so in the manner provided
in Attorney General Order No. 683-77, 28 CFR §§ 50.15-50.16.
We disagree. In our opinion, this view fails to give proper weight to the
reasons for the D epartm ent’s practice and to action taken by Congress in light
o f that practice.
I.
The significant statutes, 28 U .S.C . §§ 516-517, have two parts— they place
a responsibility o f representation upon the Department and they specify the
means of carrying out that responsibility. The only means expressly authorized
are use o f an officer of the Department of Justice or an attorney appointed
pursuant to 28 U .S .C . § 515 or § 543. In 1975, however, the Department was
faced with circum stances in which its obligation to represent present and former
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Federal officials in cases involving interests of the United States could not be
accomplished through use of the prescribed means. The D epartm ent’s choice
was between carrying out its obligation o f representation through use of private
attorneys or declining to provide representation at Government expense. We
adhere to our earlier view that the D epartm ent’s policy o f retaining private
attorneys in the limited circum stances described in 28 CFR §§ 50.15 and 50.16
is adequately supported by the implied authority of the Attorney General in
connection with representation o f Federal agencies and their employees.
Interests of the United States, as well as interests o f the individual defendants,
are at stake in these cases.
II.
The Department has kept Congress and the General Accounting Office
informed with regard to its use of private counsel. For example, in December
1975, Attorney General Levi sent identical letters to the Chairmen of the Senate
and House Judiciary Committees describing the use of private attorneys in
certain civil actions and explaining the reasons for the Departm ent’s action. In
1976, the General Accounting Office began a study relating in part to the
Departm ent’s use of private attorneys; the study resulted in a report issued in
May 1977.'
Furthermore, in 1977, the Department requested a supplemental appropria­
tion of $4,878,000 for payment of private counsel fees.2 The m atter was
discussed at length during the hearings before the House and Senate Appropria­
tions Committees. The House committee did not approve the D epartm ent’s
request,3 but the Senate committee included in the bill the full request, subject
to certain conditions.4 The conference committee provided for a smaller
appropriation, $1,860,000, than did the Senate, but deleted-the conditions
stated in the Senate-approved bill. However, the conference report5 stated:
. . . the conferees are agreed that none o f the funds available to the
Department shall be obligated or expended by the Department for the
representation of any defendants in suits commenced after the
effective date of this Act, until the appropriate committees of the
Senate and the House of Representatives have reviewed the policy
'R e p o rt o f the C o m p tro lle r G e n e ra l, Lawsuits Against the Government Relating to a Bill to
Amend the Privacy Act o f 1974 (M ay 6 , 1977). A s n o ted p re v io u s ly , the D e p a rtm e n t’s p o lic y is
discu ssed w ith ap p ro v a l in a M ay 16, 1977, d e c isio n o f th e C o m p tro lle r G e n e ra l, 56 C o m p . G en .
615.
2P rev io u sly , th e c o st o f p riv a te a tto rn e y s h ad b een a b so rb ed b y th e D e p artm e n t th ro u g h the use
o f its re g u la r ap p ro p ria tio n .
*See H . R ep t. N o . 9 5 -6 8 , 9 5 th C o n g ., 1st sess. 112 (1 9 7 7 ).
“T h e S en ate c o m m itte e ’s re p o rt stated th at ap p ro v a l o f th e D e p a rtm e n t’s re q u e st sh o u ld not be
co n stru ed as " a p p ro v a l o r d isa p p ro v a l b f th e D e p a rtm e n t’s p o licy statem e n t . . . e m b o d ie d in
A ttorney G e n e ra l's O rd e r N o. 6 8 7 -7 7 . . . . " S . R ep t. N o . 9 5 -6 4 , 9 5 th C o n g ., 1st sess. 1 4 4 (1 9 7 7 ).
T h e co m m itte e a d d e d to the b ill a re q u ire m e n t th at n o fu n d s be o b lig a te d o r sp en t fo r p riv a te
co u n sel fees in su its c o m m e n c e d a fte r e n a c tm e n t o f th e b ill, until th e S e n a te Ju d ic ia ry C o m m itte e
had a p p ro v e d th e D e p a rtm e n t’s p o lic y statem e n t.
3H . R ep t. N o. 9 5 -1 6 6 , 9 5 th C o n g ., 1st sess. 27 (1 9 7 7 ).
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statement embodied in the Attorney G eneral’s Order No. 687-77
dated January 19, 1977.
In certain circum stances, the courts have held that providing appropriations
for an activity o f the executive branch constitutes ratification by Congress of
that action. See, e.g ., Brooks v. Dewar, 313 U .S. 354 (1941) (issuance by
Secretary o f the Interior o f temporary grazing permits). Care must be used in
relying on this doctrine, how ever.6 In our opinion, it is applicable here not­
withstanding the language of the Senate report.7 Congressional acquiescence
in the D epartm ent’s policy may be tentative or qualified. Nonetheless, funds to
carry out that policy were provided in the Supplemental Appropriations Act for
Fiscal Year 1977.8 Thus, to that extent, the legislative action supports our view
that authority exists for the D epartm ent’s policy.
Jo h n M . H a r m o n
Assistant Attorney General
Office o f Legal Counsel
t See, e.g.. Committee fo r Nuclear Responsibility, Inc. v. Seaborg, 4 6 5 F. (2 d ) 7 8 3 , 785 (D .C .
C ir. 1971) (q u e stio n o f c o m p lia n c e w ith N a tio n a l E n v iro n m e n tal P o licy A ct).
nSee fo o tn o te 4 , supra.
8P u b . L. N o . 9 5 -2 6 , 91 S ta t. 6 1 , 1 0 6 (1 9 7 7 ) .