TITLE:  The Honorable Steve Chabot
Chairman, Subcommittee on the Constitution
Committee on the Judiciary
House of Representatives, B-289701, February 27, 2002
BNUMBER:  B-289701
DATE:  February 27, 2002
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B-289701

February 27, 2002

The Honorable Steve Chabot
Chairman, Subcommittee on the Constitution
Committee on the Judiciary
House of Representatives

Dear Mr. Chairman:

This responds to your letter of January 15, 2002, regarding whether the U.S.
Commission on Civil Rights (Commission) may use appropriated funds to employ
outside legal counsel to intervene in United States v. Wilson [1] and to pay
the salary of a Commission member, Victoria Wilson, past November 29, 2001.
Subsequent to your request, the U.S. District Court for the District of
Columbia granted the Commission's motion to intervene. The order granting
the Commission's motion, however, did not address the availability of the
Commission's appropriations to employ outside counsel to represent it in the
litigation. The court, in addition, ruled on the merits of the case in favor
of Victoria Wilson. The Department of Justice (Justice) then filed a motion
to appeal both court orders.

In our opinion, the Commission does not have statutory authority to use its
appropriated funds to hire outside counsel. However, given the court's order
granting the Commission's motion to intervene and Justice's appeal of the
court's order, we plan to take no action with respect to the Commission's
use of appropriated funds to pay outside counsel pending resolution of the
appeals from the district court's ruling. If the appellate court upholds the
district court order granting the Commission's motion to intervene, we will
take no further action. In addition, the district court ruled that Ms.
Wilson's term does not expire until January 2006. Given the district court's
ruling on this point, the Commission may use its appropriation to continue
to pay Ms. Wilson's salary pending resolution of the appeals from the
district court's ruling.

BACKGROUND

This matter arises as a result of a dispute over the expiration of
Commissioner Wilson's term in office. On December 6, 2001, President Bush
appointed Peter A. Kirsanow to a 6-year term on the Commission. According to
Justice, the Kirsanow appointment was to fill a vacancy created by the
expiration, on November 29, 2001,

of Ms. Wilson's term. When Mr. Kirsanow arrived for the next scheduled
Commission

meeting on December 7, 2001, the Commission, by a vote of five to three,
refused to seat him. The Commission Chair and four other commission members
(including

Ms. Wilson) contended that Ms. Wilson's term had not expired on November 29
and would not expire until January 2006. Motion to Intervene on Behalf of
Commission

at 4.

Justice asserts that Ms. Wilson was appointed solely to complete the
remainder of Commissioner A. Leon Higginbotham's term. Complaint at 1-2.
President Clinton had appointed Ms. Wilson to the Commission in January 2000
to fill a seat that had been vacant for just over a year as a result of
Judge Higginbotham's death in December 1998. Id. Judge Higginbotham's 6-year
term would have expired on November 29, 2001. Ms. Wilson and the Commission
argue that Ms. Wilson is entitled to a full 6-year term, expiring in January
2006. Defendant's Memorandum in Opposition to Motion for Summary Judgment at
2; Intervenor's Memorandum in Opposition to Plaintiff's Motion for Summary
Judgment at 2.

When the Commission refused to seat Mr. Kirsanow, Justice filed suit in the
U.S. District Court for the District of Columbia against Ms. Wilson seeking
a declaratory judgment that Mr. Kirsanow is entitled to a seat on the
Commission and that

Ms. Wilson is no longer entitled to a seat. Complaint at 7. The Commission
staff director retained the law firm Paul, Weiss, Rifkind, Wharton &
Garrison (Paul, Weiss) to intervene on behalf of the Commission in the
lawsuit between the United States and Ms. Wilson. Memorandum from Les Jin,
Staff Director, Commission on Civil Rights, to the Commission, Dec. 21,
2001. On January 27, 2002, the court granted the Commission the right to
intervene but did not address the availability of the Commission's use of
appropriated funds to employ outside counsel to represent it in litigation.
Order Granting Intervenors' Motion to Intervene as Defendants at 1.
Subsequently, on February 4, 2002, the court held that Ms. Wilson's term
does not expire until January 2006. Order Granting Defendant's Motion for
Summary Judgment, Feb. 4, 2002. Justice filed a notice of appeal on that
same day, appealing both the court's order granting the Commission's motion
to intervene and the court's order on the merits. Plaintiff's Notice of
Appeal, Feb. 4, 2002.

DISCUSSION

Question 1: Are appropriations available for the U.S. Commission on Civil
Rights to employ outside legal counsel to intervene in a suit between the
Justice Department and Victoria Wilson regarding the expiration of Ms.
Wilson's term in office?

It is well established that unless otherwise authorized by law, Justice has
authority over the supervision and conduct of all litigation in which the
United States, its agencies, or its officers have an interest. See, e.g.,
F.T.C. v. Guignon, 390 F.2d 323, 324 (8th Cir. 1968) (the Federal Trade
Commission may not seek enforcement of its own subpoenaes in a federal
district court without the aid or consent of the Attorney General); Mehle v.
American Management Sys., 172 F. Supp. 2d 203, 206 (D.D.C. 2001) (describes
the statutory grant of litigation authority to the Attorney General as

"plenary"); Ocean Shipping Antitrust Litigation, 500 F.Supp. 1235, 1239
(S.D.N.Y 1980) (absent authorization or consent of Justice, the Federal
Maritime Commission is without authority to move independently to
intervene).

The heart of Justice's authority is 28 U.S.C. sect. 516: "Except as otherwise
authorized by law, the conduct of litigation in which the United States, an
agency, or officer thereof is a party, or is interested, . . . is reserved
to officers of the Department of Justice, under the direction of the
Attorney General." [2] Since 1870, Justice has had by statute nearly
exclusive authority to perform or provide litigative services to agencies
and their employees. See Act of June 22, 1870, sect.sect. 5, 14-17, 16 Stat. 162
(now codified at 28 U.S.C. sect.sect. 515-519, 543, 547; 5 U.S.C. sect. 3106); United
States v. Providence Journal Co., 485 U.S. 693, 705 n.9 (1988) (sections 516
and 517 "create a general rule that applies unless contradicted in some
other provision"). [3] We have interpreted these statutes generally to
preclude the use of appropriated funds, other than those appropriated to
Justice, to employ or hire attorneys to represent the government's interest
in a court action, unless otherwise authorized by statute. 70 Comp. Gen.
647, 649-650 (1991); 55 Comp. Gen. 408, 411 (1975).

As relevant to the facts and circumstances here, there are two situations in
which an agency may use its appropriations to hire outside counsel for the
conduct of litigation: (1) if the agency has specific statutory authority to
litigate or hire outside counsel, or (2) if the Attorney General declines to
provide the agency representation but agrees that representation is
appropriate and approves the agency's hiring of outside counsel for
representation.

The present circumstances satisfy neither of these conditions. The
Commission did not cite statutory authority permitting it to conduct
litigation in its own behalf or otherwise to hire outside counsel for
litigative purposes. In our survey of the Commission's statutory
authorities, we identified no authority that would permit the Commission to
hire outside counsel for the conduct of litigation. The second circumstance
in which an agency may engage outside counsel also is absent here. Justice
expressly disagreed that outside representation is appropriate when it
advised the Commission that it had no statutory authority to hire Paul,
Weiss. Letter from Assistant Attorney General, Robert D. McCallum, Jr.,
Civil Division, Justice Department to Commission Chair, Dec. 6, 2001.

We have recognized that in some instances, an agency may use its
appropriations to hire outside counsel if Justice approves. For example, we
held that the Small Business Administration (SBA), with Justice approval,
could use its appropriations to hire outside counsel to represent an SBA
employee who was sued for acts performed within the scope of his employment.
55 Comp. Gen. 408 (1975) (Justice assigned a U.S. Attorney to the matter,
but the U.S. Attorney had to withdraw from the case for administrative
reasons). Nevertheless, our case law does not support an agency's use of its
appropriations to pursue its own litigative policies that are inconsistent
with the litigative policy of Justice. The Commission's litigative policy in
this instance is inconsistent with Justice's. See Motion to Intervene on
Behalf of Commission at 6 (the Commission stated that it has an interest in
protecting Ms. Wilson from improper removal and preventing improper removal
of its officers in the future). Section 516 of title 28 of the United States
Code clearly reposes in the Attorney General the discretion and authority to
define the litigative policies of the United States. Thus, the Commission
lacks statutory authority to engage outside counsel for the conduct of
litigation.

On January 27, 2002, the United States district court granted the
Commission's motion to intervene. Order Granting Intervenors' Motion to
Intervene as Defendants at 1. While it is somewhat anomalous to find an
agency litigating a position inimical to the interests of the United States
as defined by Justice, the court has recognized the Commission as a party to
the lawsuit. The court's order does not reach the issues before us, however,
that is the availability of the Commission's appropriations to engage
outside counsel to represent it in litigation. Nevertheless, given the
present posture of this case and in deference to the court and the judicial
system, we plan no action concerning this matter pending resolution of any
appeals. If the appellate court upholds the district court order granting
the Commission's motion to intervene, we would take no further action.

Question 2: Are appropriations available to pay Victoria Wilson's salary
past November 29, 2001?

The district court ruled on February 4, 2002, that pursuant to the Civil
Rights Commission Amendments Act of 1994, Pub. L. No. 103-419, 108 Stat.
4338, Ms. Wilson's appointment to the Commission is for a six-year term, not
solely to fill the remaining years of Commissioner Higginbotham's term. As a
result, Ms. Wilson's term will not expire until January 2006.

The Commission's appropriation for salary and expenses is available only to
pay the salary and expenses of a commissioner. Appropriations shall be
applied only to the objects for which the appropriations were made except as
otherwise provided by law. 31 U.S.C. sect. 1301(a). Each member of the
Commission, who is not otherwise in the service of the United States,
receives a sum equivalent to the compensation paid at level IV of the
Executive Schedule. 42 U.S.C. sect. 1975b(b). An individual who is not a
commission member may not receive this compensation. Given the district
court's ruling on Ms. Wilson's term as a commissioner, the Commission may
continue to use its appropriation to pay Ms. Wilson's salary, pending
resolution of the appeals from the district court's ruling.

CONCLUSION

Because the district court granted the Commission's motion to intervene, we
withhold our objections to the Commission's use of appropriated funds to
retain outside counsel to intervene in United States v. Wilson. If the
appellate court upholds the district court order granting the Commission's
motion to intervene, we will take no further action. Further, pending
resolution of the appeals of the district's court's ruling on the expiration
of Ms. Wilson's term, the Commission may use its appropriation to continue
to pay Ms. Wilson's salary. Under separate cover, we will notify the
Commission and its fiscal officers of our findings. We trust that this
responds to your request. Should you have any questions, please contact Ms.
Susan Poling at (202) 512-2667.

We are sending copies of this letter to the Ranking Minority Member,
Subcommittee on the Constitution; Chairman, House Committee on Judiciary;
Ranking Minority Member, House Committee on Judiciary; Chairman, Senate
Committee on Judiciary; Ranking Minority Member, Senate Committee on
Judiciary, and other appropriate congressional parties.

Sincerely yours,

Anthony H. Gamboa
General Counsel

Notes

1. No. 01-CV-2541 (D.D.C. filed Dec. 7, 2001).

2. The Commission is an agency for purposes of 28 U.S.C. sect. 516. See 5 U.S.C.
sect. 105.

3. In Mail Order Ass'n of America v. United States Postal Service, 986 F.2d
509, 515 (D.C. Cir. 1993), the court of appeals found that the Postal
Service could bring suit even though Justice refused to represent it or
consent to the Postal Service's use of outside counsel. However, in that
case, the court of appeals specifically found that the Postal Service's
governing statute permitted it to seek judicial review of specified rates.
Accordingly, the court found that the Postal Service was otherwise
authorized by law to conduct litigation in these circumstances.