Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress, 84-4

• Citation: 8 Op. O.L.C. 30
• Decision Date: 22 February 1984
• Docket Number: 84-4
• Parties: Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress
• Court: Opinions of the Office of Legal Counsel of the Department of Justice

8 Op. O.L.C. 30

Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress

No. 84-4

United States Department of Justice

February 22, 1984

Larry L. Simms Deputy Assistant Attorney General Office of Legal Counsel

Authority of the Special Counsel of the Merit Systems Protection Board to Litigate and Submit Legislation to Congress

Congress may constitutionally authorize the Special Counsel of the Merit Systems Protection Board to conduct any litigation in which he is interested, except litigation in which the Special Counsel's position would be adverse to that taken by the United States in the same litigation. Such opposition would place the President in the untenable position of speaking with conflicting voices in the same lawsuit. In addition, because the Special Counsel is an Executive Branch officer subject to the supervision and control of the President, a grant by Congress to the Special Counsel of authority to submit legislative proposals directly to Congress without prior review by the President would raise serious separation of powers concerns.

MEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY GENERAL, OFFICE OF LEGISLATIVE AFFAIRS

This responds to your request for our views regarding the legislative recommendations of the Special Counsel of the Merit Systems Protection Board to permit the Special Counsel to "litigate before the courts on its behalf on any matter in which the Special Counsel has previously been involved, " and empowering the Special Counsel to "submit directly to Congress any legislative recommendations that the Special Counsel deems necessary to further enhance the ability of the office to perform its duties under law." You indicated in your submission that your Office and the Civil Division are preparing a letter opposing such a grant of litigating authority to the Special Counsel. With respect to the Special Counsel's desire to submit legislative recommendations directly to Congress, you indicated that although you have been advised that the Office of Management and Budget (OMB) has secured the agreement of the Special Counsel to conform to the OMB legislative clearance process, you seek our advice on the question whether Congress constitutionally may authorize the Special Counsel to submit legislation to Congress directly, without first securing the approval of OMB, the legislative clearance office for the Executive Branch.

As discussed further below, we conclude that, as a legal matter Congress constitutionally may authorize the Special Counsel to conduct, or otherwise participate in, any litigation in which he is interested except litigation in which he would be taking a position that is adverse to that taken by the United States [ 31] in the same litigation; although, as you point out, there are numerous policy reasons for opposing such a grant of authority. In addition, we conclude that, because the Special Counsel is an Executive Branch officer subject to the supervision and control of the President, Congress may not grant him the authority to submit legislative proposals directly to Congress without prior review and clearance by the President, or other appropriate authority, without raising serious separation of powers concerns.

I. Special Counsel as an Executive Officer

We will preface our responses to the specific questions raised in your memorandum by first reviewing the history of the Civil Service Reform Act of 1978, Pub. L. No. 95-454, 92 Stat 1111, as it relates to the Special Counsel's status as an Executive Branch officer, including the concerns raised by the Department of Justice at the time of the Act's enactment.

The Civil Service Reform Act of 1978 was enacted to update overhaul and make more efficient the federal civil service system by: (1) codifying merit system principles and subjecting employees who commit prohibited personnel practices to disciplinary action; (2) providing new protections for employees who disclose illegal or improper Government conduct; (3) establishing a new performance appraisal system and a new standard for dismissal based on unacceptable performance; (4) streamlining the processes for dismissing and disciplining federal employees; and (5) abolishing the Civil Service Commission and establishing in its stead the Office of Personnel Management within the Executive Branch, and an "independent Merit Systems Protection Board and Special Counsel to adjudicate employee appeals and protect the merit system." S. Rep. No. 969 95th Cong., 2d Sess. 2 (1978). See also H.R. Rep. No. 1717, 95th Cong., 2d Sess. 1 (1978).

The Act established the Merit Systems Protection Board as a bipartisan body of three members, to be appointed by the President with the consent of the Senate, and removable "only for inefficiency, neglect of duty, or malfeasance in office." 5 U.S.C. §§ 1201, 1202. The Board is authorized to hear and adjudicate all matters within its jurisdiction, to enforce its orders against any federal agency or employee, to stay certain agency personnel actions, and to conduct special studies relating to the civil service and other merit systems within the Executive Branch and to issue reports thereon to the President and the Congress. Id. § 1205(a). In addition, the Act provided for a Special Counsel to the Board, to be appointed by the President, with the consent of the Senate, for a term of five years, and removable by the President "only for inefficiency, neglect of duty, or malfeasance in office." Id. § 1204. The Special Counsel's primary duties under the Act are to receive and investigate allegations of prohibited personnel practices, to participate in proceedings before the Board when such participation is warranted, and to submit an annual report to Congress on his activities, including "whatever recommendations for legislation or other action by Congress the Special Counsel may deem appropriate." Id. § 1206. [ 32]

Although the legislative history of the Act suggests that Congress intended both the MSPB and the Special Counsel to be independent of Presidential supervision and control, ^[1] this Department advised both Congress and the President that the bill which ultimately was enacted contained several provisions which raised very serious constitutional concerns. Those concerns focused primarily on the Act's attempt to limit the President's power of removal over the Special Counsel, whom, in view of his primarily prosecutive functions, this Office determined to be an Executive officer. Similarly, in the Department's comments to OMB on the enrolled bill, we advised that Congress could not constitutionally limit the grounds for removal of the Special Counsel by the President. Thus, this Department has consistently taken the position, and we believe correctly, that although the Board may function as a quasi-adjudicative independent body, the Special Counsel is an Executive officer and as such is subject to the President's supervision and control. See also "Presidential Appointees — Removal Power, " 2 Op. O.L.C. 120 (1978).

II. Litigation Authority of the Special Counsel

Under current law, the Special Counsel's litigating authority is limited to "interven[ing as a matter of right] or otherwise participat[ing] in any proceeding before the Merit Systems Protection Board." 5 U.S.C. § 1206(i). We understand from your memorandum that the Special Counsel now seeks to expand this authority to permit him to "appear as counsel on behalf of any party in any civil action brought in connection with any function carried out by the Special Counsel pursuant to this title or any other provision of law and [to] initiate and prosecute on behalf of any party in any such case an appeal of the decision of any district court of the United States or the United States Claims Court in such case."^[2] As you have indicated, this proposal would permit the Special Counsel to seek judicial review of final orders or decisions of the Merit Systems Protection Board, as well as to prosecute appeals of federal court decisions, arguably even in instances in which he was not a party to the proceedings before the Board.

As you are aware, this Administration, as a policy matter, has generally opposed any legislative proposal that would further erode die Attorney General's litigating authority under 28 U.S.C. §§ 516 & 519. This opposition, shared by previous Administrations, is grounded in die need for centralized control of all government litigation. Such control furthers a number of important policy goals, including die presentation of uniform positions on important legal issues, die selection of test cases mat would produce results most favorable to governmental interests, more objective handling of cases by attorneys unaffected [ 33] by an agency's narrower concerns, and the facilitation of Presidential supervision over Executive Branch policies implicated in government litigation. See generally "The Attorney General's Role as Chief Litigator for the United States, " 6 Op. O.L.C. 47 (1982). Thus, there are numerous policy grounds on which to oppose a grant of litigating authority to the Special Counsel.

With respect to the legal considerations relevant to the proposed legislation, an agency's authority to litigate independently of the Attorney General in any particular circumstance generally depends on whether such authority is vested by statute in the agency. However, when the agency asserting such authority is an Executive Branch agency constitutional issues arise if Congress has simultaneously vested litigating authority over the case in either the Attorney General or another Executive Branch officer. Those issues involve the President's authority to exercise supervisory control over his subordinates so that he may...