Whether the Federal Trade Commission Has Authority to Prosecute Actions for Criminal Contempt, 89-36
| Citation | 13 Op. O.L.C. 291 |
| Decision Date | 25 September 1989 |
| Docket Number | 89-36 |
| Court | Opinions of the Office of Legal Counsel of the Department of Justice |
| Parties | Whether the Federal Trade Commission Has Authority to Prosecute Actions for Criminal Contempt |
The Federal Trade Commission lacks authority to prosecute actions for criminal contempt, unless the Commission's attorneys receive special appointments from the Attorney General and become subject to his direction.
MEMORANDUM OPINION FOR THE ACTING ASSISTANT ATTORNEY GENERAL CIVIL DIVISIONThis memorandum responds to your request for the opinion of this Office as to whether the Federal Trade Commission ("FTC" or "Commission") has authority to prosecute actions for criminal contempt. We conclude that the Commission lacks authority to prosecute such actions, unless the Commission's attorneys receive special appointments from the Attorney General and become subject to his direction.
A court of the United States has the power to "punish by fine or imprisonment ... such contempt of its authority, and none other, as ... [disobedience or resistance to its lawful writ process, , rule, decree, or command." 18 U.S.C. § 401(3). Where an alleged criminal contempt arises from disobedience to a court order in a case that the Commission has brought or defended, the Commission asserts the authority, upon appointment by the court, to prosecute the contempt. See Letter for Robert N. Ford, Deputy Assistant Attorney General, Civil Division, from Amanda B Pederson, Deputy Director of Consumer Protection, Federal Trade Commission at 1 (June 24, 1985) ("Pederson Letter"). The Civil Division and the Criminal Division both take the view that the Commission is without authority to conduct such prosecutions. See Letter for Amanda B. Pederson, from Robert N. Ford (June 10, 1985); Memorandum for Margaret Love, Attorney-Advisor, Office of Legal Counsel from Lawrence Lippe, Chief, General Litigation and Legal Advice Section, Criminal Division (Oct. 28, 1985).
Under 28 U.S.C. § 516, the Attorney General, "[e]xcept as otherwise authorized by law, " has control over "the conduct of litigation in which [ 292] the United States, an agency, or officer thereof is a party, or is interested." See also 28 U.S.C. § 519.[1] The principle that the Attorney General has plenary authority over such litigation applies with particular force in criminal cases. See United States v. Nixon, 418 U.S. 683, 694 (1974) () (citing 28 U.S.C. § 516). Therefore, the Commission may not bring an action for criminal contempt unless clearly "authorized by law" to do so. Cf. United States v. International Union of Operating Eng'rs, 638 F.2d 1161, 1162 (9th Cir. 1979), cert, denied, 444 U.S. 1077 (1980) ().
We do not believe that the Commission is authorized by the FTC Act, ch. 311, 38 Stat. 717 (), or any other statute to prosecute actions for criminal contempt. The Commission's statutory authority to litigate on its own behalf is confined to civil proceedings. See 15 U.S.C. § 56(a)(1)(A) & (a)(2) (); see also 15 U.S.C. § 56(a)(3)(A) (referring to "any civil action in which the Commission represented itself').[2] The FTC Act, however, expressly assigns to the Attorney General the responsibility for [ 293] bringing any criminal cases arising from violations of the laws administered by the Commission:
Whenever the Commission has reason to believe that any person, partnership, or corporation is liable for a criminal penalty under [sections 41 to 46 and 47 to 58 of this title], the Commission shall certify the facts to the Attorney General, whose duty it shall be to cause appropriate criminal proceedings to be brought.
15 U.S.C. § 56(b).[3]
Indeed, in enacting amendments to 15 U.S.C. § 56 and related provisions in 1973, Congress took special care not to create ambiguities in the statute that might lead to the Commission's assuming a criminal jurisdiction. When the bill came from the Conference Committee, it included one provision (15 U.S.C. § 45(m)) that the parliamentarian of the House interpreted as allowing criminal prosecutions by the Commission. See 119 Cong. Rec. 36, 813 (1973) (remarks of Sen. Stevens). To clarify the provision, the Senate returned to the version that it had originally passed, which plainly "applie[d] only to civil actions." Id.[4]
Nevertheless, the Commission argues that it has authority to bring actions for criminal contempt. The Commission does not claim any express statutory basis for this supposed authority. Instead, it contends that "the authority of [its] attorneys to prosecute the criminal contempt (if appointed by the court to do so) is an inherent part of their authority to prosecute the underlying action from which the contempt arises." Pederson Letter at 1. The Commission also relies on the Supreme Court's opinion in FTC v. Dean Foods Co., 384 U.S. 597 (1966). In that case, the Court held that the Commission, despite an absence of explicit statutory authority, could seek preliminary relief from the Court of Appeals pending the outcome of Commission proceedings in a merger case because "[s]uch ancillary powers have always been treated as essential to the [ 294] effective discharge of the Commission's responsibilities." Id. at 607. Finally, the Commission contends that its authority may be justified by its consistent exercise of this authority in the past.
The Commission's arguments do not establish its statutory authority to bring actions for criminal contempt.
A. The Commission has no authority to prosecute a criminal contempt as "an inherent part of [its] authority to prosecute the underlying action from which the contempt arises." Pederson Letter at 1. An action for criminal contempt is separate from the underlying civil litigation. As the Supreme Court explained in Young v. United States ex rel. Vuitton, 481 U.S. 787 (1987), the "criminal contempt proceedings arising out of civil litigation 'are between the public and the defendant, and are not a part of the original cause.'" Id. at 804 (quoting Gompers v. Bucks Stove & Range Co., 221 U.S. 418, 445 (1911)); see Bray v. United States, 423 U.S 73, 75 (1975).[5] Because the underlying civil action that Congress authorized the Commission to pursue is distinct from the criminal contempt action, there is no reason to infer that Congress intended the Commission's litigation authority to reach criminal contempt cases.
This conclusion is no mere matter of form but follows from the essentially different interests at stake in the underlying civil litigation and the subsequent criminal prosecution. Civil actions for injunctions vindicate the goals of the Federal Trade Commission Act or the Clayton Act; Congress explicitly entrusted the Commission with the duty of seeking those goals through litigation. An action for criminal contempt, however, is aimed at "vindicating the authority of the court" and "preserv[ing] respect for the judicial system itself." Vuitton, 481 U.S. at 800.[6]Prosecution of the criminal contempt, therefore, serves purposes different from those Congress directed the Commission to pursue in civil litigation.[7] [ 295]
The Commission's argument, moreover, could lead to a widening circle of "incidental" criminal prosecutions by the Commission. Charges of perjury, bribery, or obstruction of justice, too, could grow out of civil proceedings brought by the Commission. To our knowledge, however, the Commission has never asserted authority to prosecute such crimes, and exercise of such authority would be clearly contrary to the requirement of the FTC Act that criminal charges be referred to the Attorney General.
Actions for criminal contempt, therefore, are separate from the underlying civil actions in which the orders alleged to be violated are issued. The Commission's authority to litigate the civil actions does not entail any "inherent" authority to bring actions for criminal contempt.
B. The Supreme Court's decision in FTC v. Dean Foods Co., 384 U.S. 597 (1966), does not support the authority claimed by the Commission to initiate actions for criminal contempt. Dean Foods merely held that the Commission could ask the court of appeals for a preliminary injunction against a merger, pending the outcome of administrative proceedings. Although the Commission had no explicit statutory power to seek this preliminary relief, the Court ruled that such power could be inferred:
[T]he Commission is a governmental agency to which Congress has entrusted, inter alia, the enforcement of the Clayton Act, granting it the power to order divestiture in appropriate cases. At the same time, Congress has given the courts of appeals jurisdiction to review final Commission action. It would stultify congressional purpose to say that the Commission did not have the incidental power to ask the courts of appeals to exercise their authority derived from the All Writs Act.
Id. at 606 (footnote omitted). This rationale does not justify the Commission's prosecution of actions for criminal contempt. An action for criminal contempt does not vindicate the laws whose enforcement "Congress has...
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