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

• Court: Department of Justice Office of Legal Counsel
• Decided: December 11, 1980
• Status: Published

Opinion

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

820 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).

821 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.

822 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.

823 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.

824 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.