The Attorney General's Role as Chief Litigator for United States, 82-6

• Decision Date: 04 January 1982
• Docket Number: 82-6
• Citation: 6 Op. O.L.C. 47
• Court: Opinions of the Office of Legal Counsel of the Department of Justice
• Parties: The Attorney General's Role as Chief Litigator for the United States

6 Op. O.L.C. 47

The Attorney General's Role as Chief Litigator for the United States

No. 82-6

United States Department of Justice

January 4, 1982

Theodore B. Olson, Assistant Attorney General Office of Legal Counsel

The Attorney General's Role as Chief Litigator for the United States

[The following memorandum describes the development and present scope of the Attorney General's role in representing the United States and its agencies in litigation. It discusses the policy reasons for the centralization of litigation authority in the Department of Justice, and analyzes the Attorney General's relationship with client agencies. It also touches on the Attorney General's authority to settle and compromise cases, and on his authority over litigation in international courts. It concludes that, absent clear legislative directives to the contrary, the Attorney General has plenary authority and responsibility over all litigation to which the United States or one of its agencies is a party, and that his discretion is circumscribed only by the President's constitutional duty to "take Care that the Laws be faithfully executed."]

MEMORANDUM OPINION FOR THE ATTORNEY GENERAL

You have asked this Office to outline the role and responsibilities of the Attorney General in representing the United States in litigation in which the United States, or a federal agency or department, is a party. In particular, you asked that we consider the Attorney General's authority and responsibility to make decisions with respect to litigation, even if those decisions may conflict with the views, desires, or legal analyses of other departments or agencies of the United States, including those which may be "clients" in the particular litigation. Litigation involving agencies which have been granted express exclusive authority by Congress to conduct their own litigation is not within the scope of this memorandum.^[1] Rather, the focus of this memorandum is litigation involving [ 48] those agencies whose litigating authority is clearly subject to the Attorney General's direction, or whose statutory grants of authority are ambiguous or insufficient to remove them from the Attorney General's supervision.

We conclude that, absent clear legislative directives to the contrary, the Attorney General has full plenary authority over all litigation, civil and criminal, to which the United States, its agencies, or departments, are parties. Such authority is rooted historically in our common law and tradition, see Confiscation Cases, 74 U.S. (7 Wall.) 454, 458-59 (1868); The Gray Jacket, 72 U.S. (5 Wall.) 370 (1866) and, since 1870, has been given a statutory basis. See 5 U.S.C. § 3106, and 28 U.S.C. §§ 516, 519. See generally United States v. San Jacinto Tin Co., 125 U.S. 273 (1888). The Attorney General's plenary authority is circumscribed only by the duty imposed on the President under Article II, § 3 of the Constitution to "take Care that the Laws be faithfully executed."

I. Historical Development of the Role of the Attorney General

Plenary power over the legal affairs of the United States was vested in the Attorney General when the Office of the Attorney General of the United States was first created by the Judiciary Act of 1789. Act of September 24, 1789, ch. 20, § 35, 1 Stat. 92.^[2]

The Attorney General's statutory authority to conduct litigation to which the United States, its departments, or agencies, is a party was more fully developed by Congress in 1870, in the same legislation that provided for the creation of the Department of Justice. Act of June 22, 1870, ch. 150 16Stat. 162. Prior to 1870, however, the Attorney General's authority in litigation matters involving the United States had been recognized by the Supreme Court. In The Gray Jacket, 72 U.S. (5 Wall.) 370 (1866), the Court held that no counsel would be heard for the United States in opposition to the views of the Attorney General. In the Confiscation Cases, 74 U.S. (7 Wall.) 454 (1868), the Court concluded that:

Whether tested, therefore, by the requirements of the Judiciary Act, or by the usage of the government, or by the decisions of this [ 49] court, it is clear that all such suits, so far as the interests of the United States are concerned, are subject to the direction, and within the control of, the Attorney-General.

74 U.S. (7 Wall.) at 458-59.

The' 1870 Act established the Department of Justice and designated the Attorney General as its chief legal officer. The Act provided that certain specified "solicitors" performing legal functions within the various agencies "shall be transferred from the Departments with which they are now associated to the Department of Justice and shall exercise their functions under the supervision and control of the head of the Department of Justice." (§ 3, 16 Stat. 162.)^[3]The Act also authorized the Attorney General to designate any officer of the Department of Justice, including himself, to conduct and argue any case in which the government is interested, in any court of the United States, whenever he deems it necessary for the interest of the United States. (§ 5, 16 Stat. 162.) In addition, the Act gave the Attorney General supervisory authority over the conduct and proceedings of the various attorneys for the United States in the respective judicial districts, "and also of all other attorneys and counsellors employed in any cases or business in which the United States may be concerned." (§ 16, 16 Stat. 164.) And finally, the Act forbade the Secretaries of the Executive Departments to employ other attorneys or outside counsel at government expense, but "shall call upon the Department of Justice . . ., and no counsel or attorney fees shall hereafter be allowed to any person . . ., besides the respective district attorneys . . ., for services in such capacity to the United States, . . . unless hereafter authorized by law, and then only on the certificate of the Attorney-General that such services . . . could not be performed by the Attorney-General, . . . or the officers of the Department of Justice." (§ 17, 16 Stat. 164.) 16 Stat. 162.

The initial motivation for this legislation was the desire to centralize the conduct and supervision of all litigation in which the government was involved, as well as to eliminate the need for highly paid outside counsel when government-trained attorneys could perform the same function. Other objectives of the legislation that were advanced in the congressional debates were to ensure the presentation of uniform positions with respect to the laws of the United States ("a unity of decision, a unity of jurisprudence ... in the executive law of the United States"), ^[4] and to provide the Attorney General with authority over lower court proceedings involving the United States, so that litigation would be better handled on appeal, and before the Supreme Court. See Cong. Globe, 41st Cong., 2d Sess., Ft. IV, 3035-39, 3065-66 (1870). See generally Bell, The Attorney General: The Federal Government's Chief Lawyer and Chief Litigator, or One Among Many?, 46 Fordham L. Rev. 1049 (1978); Key, The Legal Work of the Federal Government, 25 Va.L.Rev. 165 (1938). [ 50]

The Supreme Court considered this legislation in United States v. San Jacinto Tin Co., 125 U.S. 273 (1888) and concluded that the Attorney General was "undoubtedly the officer who has charge of the institution and conduct of the pleas of the United States, and of the litigation which is necessary to establish the rights of the government." W. at 279. Emphasizing the centralizing function of the Department of Justice and the Attorney General, the Court reasoned that the power to control government litigation must lie somewhere-that there must exist some officer with authority to decide when the United States should sue, and to oversee the execution of such a decision-and that the Attorney General was designated such appropriate officer, in the Judiciary Act of 1789, by reference to the historical practice in England.^[5]125 U.S. at 278-80. In 1921, the Court added that the Attorney General's authority to conduct such litigation could be affected only by clear legislative direction to the contrary. Kern River Co. v. United States, 257 U.S. 147, 155 (1921). See also 21 Op. Att'y Gen. 195 (1895). (The Secretary of the Navy was not warranted in employing counsel in a foreign country to institute suit in behalf of the United States, but should have referred the matter to the Department of Justice, "which is charged with the duty of determining when the United States shall sue, for what it shall sue, and that such suits shall be brought in appropriate cases, " id. at 198.)

Lower courts reached similar conclusions with respect to subsequent recodifications of the 1870 legislation. The Court of Claims summarized the legislation in the following manner:

These provisions are too comprehensive and too specific to leave any doubt that Congress intended to gather into the Department of Justice, under the supervision and control of the Attorney-General, all the litigation and all the law business in which the United States are interested, and which previously had been scattered among different public officers, departments, and branches of the Government, and to break up the practice of frequently employing unofficial attorneys in the public service.

Perry v. United States, 28 Ct. CI. 483, 491 (1893). Speaking for the Second Circuit Court of Appeals, Judge Learned Hand emphasized the centralizing function of the Attorney General's role as chief litigator for the United States and the necessity that that role be committed exclusively to the Attorney General:

The government has provided legal officers, presumably competent, charged with the duty of protecting its rights in its [ 51]

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