There are occasions in which a defense simply has to be raised, which perhaps if I were back in academia or a civil liberties lawyer myself, as I used to be, that I would find arguments that I wouldn't agree with or want to make, and yet, they have a legal basis. We are defending individuals who deserve a full defense. We are defending agencies who also should have their legal position presented in court, and decided by a court. Mr. COHEN. Would the gentleman yield? Mr. EDWARDS. Yes. Mr. COHEN. I would be interested in hearing what changes have beed made to comply with the new Attorney General's guidelines. I am not aware of any.. MS. BABCOCK. The guidelines simply say that agencies should consider the release of information which even though it may fall within a technical exemption, if it is in the public interest and there would not be substantial harm to the agency's interest, and ongoing operations in the release. The way that we are implementing this in the Civil Division is by doing a great deal of counseling which sometimes amounts to head-beating of the agencies, counseling release, and then ultimately, according to the Attorney General's guidelines, if we can't get the agencies to go along with what we think is a release that is in the public interest, and not harmful to them, we will refuse to defend them in court. Now, we haven't had to reach that point in any of the 600 or 700 cases that we are dealing with in this area, but we have, through counseling and through talking to the agencies, I think effected substantial increases in the amount of release and the kind of material that is released over the last year. Mr. COHEN. Thank you. Chairman RODINO. Thank you very much. Ms. Babcock, I would like to ask a question before I leave to go to the floor for a minute. I am going to leave this proceeding in the hands of Mr. Edwards. Until that time, and before I go, I would like to ask a question which I think may be rather pertinent. The question relates to the request you make in your authorization presentation for $21,578,000 for the Division for fiscal 1979 which is intended-I would like to ask whether or not first of all the authorization request of $21,578,000 for fiscal 1979 is intended either for positions to be dedicated to this program, or for payments pursuant to it, that is, your retention of private attorneys. Ms. BABCOCK. None of that request is for the retention of private attorneys. We are hoping, Mr. Chairman, that by 1979 we will have an amendment to the Federal Tort Claims Act which will make it possible for us to discontinue on the scale that we are doing it now the retention of private counsel-and so we have not included in any of that appropriation request funds for private counsel. Chairman RODINO. You have also mentioned in your presentation that enactment of H.R. 9219, which would amend the Federal Tort Claims Act to make civil suit against the United States the exclusive remedy for these torts, would "eliminate the need to retain private counsel in multimillion-dollar expense." My question, supposing H.R. 9219 is not enacted, and given the ambiguity in present law and legislative history to the contrary, does the Department still hold to the position that sections 516 and 517 of title XXVIII are sufficient authority to continue this program? Ms. BABCOCK. Yes; we do, Mr. Chairman. In fact, we have gotten an opinion just this week from the Office of Legal Counsel that sustains our belief in the legality of this program which has been going on for a number of years, but it is only recently that it became a matter of great concern and contention, because the number of cases against individuals in which we cannot provide representation has increased so dramatically. We are really having to clean those up. We do believe that we have the authority both under the statutes that you have cited, and under the procurement laws, and we are supported in this by the Office of Legal Counsel. Mr. DRINAN. Would the chairman yield? Chairman RODINO. I yield. Mr. DRINAN. Is the new opinion you are extolling directly in conflict with the opinion of the Library of Congress, a copy of which I have before me, and Morton Rosenberg says there is substantial doubt whether the Justice Department has this statutory power. Ms. BABCOCK. We are in conflict. Mr. DRINAN. Are you using your own in-house counsel to contradict somebody else and expect us to believe it? Ms. BABCOCK. I think so. As a legal matter, if you read the two opinions, ours is far more convincing. Mr. DRINAN. I thank the Chairman for yielding. Chairman RODINO. Ms. Babcock, would you submit that opinion for the record? Ms. BABCOCK. Certainly. Mr. BUTLER. Mr. Chairman, would you yield? Do you have it with you? Ms. BABCOCK. Mr. Jaffe, do we have it with us? Mr. JAFFE. We don't have it with us. Mr. DRINAN. I would like to have it. Ms. BABCOCK. You certainly may. Mr. DRINAN. I would like to have it this morning. Chairman RODINO. You don't have a copy of the opinion with you? Ms. BABCOCK. We don't have it with us. We can send it right up this morning. Chairman RODINO. We would appreciate having that. [The opinion follows:] MEMORANDA For Barbara AlleN BABCOCK, ASSISTANT ATTORNEY General, CIVIL DIVISION DEPARTMENT OF JUSTICE, Washington, D.C., March 10, 1978. Re: Authority for employment of outside legal counsel. We examined the Congressional Research Service memorandum on the authority of the Department of Justice to retain private legal counsel and also the unsigned memorandum entitled "Statutory Authority for Justice Department Hiring of Private Counsel" (the "Opposition Memo"). Each of them deals at length with the derivation of the statutes covering representation of federal agencies and employees and with court decisions regarding those statutes. The Congressional Research Service memorandum concludes (p. 39) that there is "substantial doubt whether the Department of Justice has the statutory authority to retain private attorneys who are not subject to the supervision . . . of the Attorney General or who have not been appointed in accordance with. [28 U.S.C. 515 or 543]." The Opposition Memo states a similar conclusion (p. 37), i.e., that 28 U.S.C. 515 and 543 are the only statutes authorizing the Department to hire private counsel and that the Attorney General has no authority to do so in the manner provided in Attorney General Order No. 683-77 (28 CFR §§ 50.15-50.16). We disagree with the conclusions reached in the two memoranda. In our opinion, they fail to give proper weight to the reasons for the Department's practice and to the action taken by Congress in light of that practice. 1. In our view, the statutes in question, e.g., 28 U.S.C. 516-517, have two aspects they place a responsibility of representation upon the Department and they specify the means of carrying out that responsibility. Without question, the only means expressly authorized are use of an officer of the Department of Justice or an attorney appointed pursuant to 28 U.S.C. 515 or 543. In 1975, however, the Department was faced with situations in which its obligation to represent present and former federal officials in cases involving interests of the United States could not be accomplished through use of the prescribed means. It appeared that the Department had a choice between carrying out its obligation of representation through use of private attorneys or declining to provide representation at Government expense. We adhere to the view, expressed in my memorandum of February 18, 1977 (a copy of which is attached) and earlier by my predecessor, that the Department's policy of retaining private attorneys in the limited circumstances described in 28 CFR §§ 50.15 and 50.16 is adequately supported by implied authority of the Attorney General in connection with representation of federal agencies and their employees. As pointed out in the prior memoranda of our office, interests of the United States, as well as interests of the individual defendants, are at stake in these cases. 2. It should be noted that the Department has kept Congress and the General Accounting Office informed with regard to its use of private counsel. For example, on December 24, 1975, former Attorney General Levi sent identical letters to the Chairmen of the Senate and House Judiciary Committees describing the use of private attorneys in certain civil actions and explaining the reasons for the Department's action. In 1976, the General Accounting Office began a study relating, in part, to the Department's use of private attorneys; this resulted in a report issued in May 1977.1 Furthermore, in 1977, the Department requested a supplemental appropriation of $4,878,000 for payment of private-counsel fees. The matter was discussed at length during the hearings before the House and Senate Appropriations Committees. The House Committee did not approve the Department's request, but the Senate Committee included in its bill the full request, subject to certain conditions. The conference committee provided for a smaller appropriation, $1,860,000, than did the Senate, but deleted from the bill itself the conditions stated in the Senate bill. However, the conference report said that: 66 the conferees are agreed that none of the funds available to the Department shall be obligated or expended by the Department for the representation of any defendants in suits commenced after the effective date of this Act, until the appropriate committees of the Senate and the House of Representatives have reviewed the policy statement embodied in the Attorney General's Order No. 687-77 dated January 19, 1977.” 1 Report of the Comptroller General, Lawsuits Against the Government Relating to a Bill to Amend the Privacy Act of 1974 (May 6, 1977). As noted previously, the Department's policy is discussed with approval in a May 16, 1977 decision of the Comptroller General, 56 Comp. Gen. 575. Previously, the cost of the private attorneys had been absorbed by the Department, using its regular appropriations. 3 See H. R. Rep. No. 95-68, 95th Cong., 1st sess. (1977), p. 112. The report of the Senate Committee stated that "approval" of the Department's request should not be construed as "approval or disapproval of the Department's policy statement... embodied in Attorney General's Order No. 683-77 ." S. Rep. No. 95-64, 95th Cong., 1st sess. (1977), p. 144. The Committee added to the bill a requirement that no funds be obligated or spent for private-counsel fees in suits commenced after enactment of the bill, until the Senate Judiciary Committee has approved the Department's policy statement. H.R. Rep. No. 95-166, 95th Cong., 1st sess. (1977), p. 27. In certain circumstances, the courts have held that providing appropriations for an activity of the executive branch constitutes ratification by Congress of that action. E.g., Brooks v. Dewar, 313 U.S. 354 (1941) (issuance by Secretary of the Interior of temporary grazing permits). Care must be used in relying on this doctrine. Still, in our opinion, it is applicable here, notwithstanding the language of the Senate report. Congress' acquiescence in the Department's policy may be tentative or qualified. The fact remains that funds to carry out that policy were provided in the Supplemental Appropriations Act for Fiscal Year 1977. Thus, to that extent, Congress' action supports our view that authority exists for the Department's policy. JOHN M. HARMON, IRVING JAFFE, Deputy Assistant Attorney General, JOHN M. HARMON, Acting Assistant Attorney General, Office of Legal Counsel. AUTHORITY FOR RETAINING OUTSIDE LEGAL COUNSEL This is in response to your recent request for a memorandum setting forth the Department's authority to retain private attorneys in certain circumstances. During the past year, the Department has retained, at Government expense, a number of private attorneys to represent present and former Federal employees. This practice has related mainly to the defense of civil actions involving conduct which is also the subject of a Federal criminal investigation. As you know, former Assistant Attorney General Scalia determined that the Department had authority, in such circumstances, to retain outside legal counsel. I agree with that conclusion and with the underlying reasons, which may be summarized as follows: 1. General procurement authority of the Attorney General-41 U.S.C. 11(a) provides in part that: "No contract or purchase on behalf of the United States shall be made, unless the same is authorized by law or is under an appropriation adequate to its fulfillment. . . ." Under this provision, alternative bases for the making of contracts are set forth; i.e., such action may either be "authorized by law" or be "under an appropriation adequate to its fulfillment." For present purposes, only the former basis will be discussed. Apart from 41 U.S.C. 11(a), the general principle governing authority of executive officers does not require specific enumeration of their powers, but assumes the grant of powers reasonably needed to perform their statutory duties. See, e.g., United States v. Macdaniel, 32 U.S. 1, 13–14 (1833). 41 U.S.C. 11(a) could be regarded either as an explicit application of this general principle to the area of contracting or, as the expression of a congressional intent that a higher standard apply to that area.1 However, it should be clear that the more restrictive views which appear in some of the earlier cases 2 would no longer be followed. In modern times, the extensive business of the Federal Government could not be conducted on the basis of a principle which requires either explicit contracting authority or contracting authority "by necessary implication" as narrowly as that phrase was interpreted in the Chase case.3 It is clear that, as a general matter, the Attorney General has the power to make contracts for goods and services reasonably needed for the conduct of the Department's business. The question here is whether this general power extends to the present agreements for the retention of private attorneys. A basic responsibility of the Attorney General is to represent Federal agencies and their employees in connection with civil litigation. See 28 U.S.C. 516–517. Under 28 U.S.C. 517, the Attorney General is authorized to send officers of the Department to attend to the interests of the United States in pending suits "or to attend to any other interest of the United States." See, e.g., Committee for Nuclear Responsibility, Inc. v. Seaborg, 463 F. 2d 783, 785 (D.C. Cir., 1971) (question of compliance with National Environmental Policy Act). 7 See footnote 4, supra. Public Law 95-26, 91 Stat. 61, 106 (1977). 1 The legislative history is uninformative as to which interpretation is correct, except that the general standard is suggested by the citation in the margin of Rev. Stat., section 3732, the predecessor of 41 U.S.C. 11(a), of The Floyd Acceptances, 74 U.S. 666 (1868). 2 E.g., Chase v. United States, 155 U.S. 489 (1894). See footnote 2, above. Two interests of the United States are present in regard to litigation of the type involved here. First, since the conduct at issue was performed in connection with Federal employment, it may be important for the Government to establish its legality if properly authorized. Second, the failure of the Government to undertake the expense of defending apparently lawful actions taken in good faith in the performance of governmental duties could have a serious and detrimental effect upon the current morale of Federal employees and upon the vigor with which they pursue their assignments in the future. The authority to defend is, in our view, established by the statutes cited above, and the traditional practice of the Department in defending civil suits supports the same conclusion. The remaining question, however, is whether in the present type of situation the Department may do by contract-i.e. through use of private attorneys what it would be permitted to do directly. In our view, it may do so. The pendency of criminal investigations concerning the very conduct which is the subject of the civil suits creates a serious potential conflict of interest with respect to representation by Department attorneys. It could subject the Department's officers to conflicting loyalties and create an inappropriate public image for the Department itself. If a pending investigation should lead to indictment of one of the individuals who is represented, representation by Justice Department attorneys would have to be terminated. This could seriously impair the employee's defense of the civil case. Yet, these consequences can be eliminated or substantially mininized by providing Departmental assistance through the hiring of private attorneys, rather than use of Departmental personnel. 2. Summary-Because of possible conflicts of interest, representation by Department employees is not feasible. Thus, the type of representation referred to in 28 U.S.C. 517 would not be appropriate. Nonetheless, interests of the United States, as well as interests of the individual Federal employees, are at stake. In these circumstances, in our view, the Attorney General may properly use his general authority as the head of the department, see 28 U.S.C. 509, to further the above-mentioned interests of the United States by retaining private attorneys. That course is the most feasible means of accomplishing an end which is fully consistent with the statutes prescribing the functions of the Department of Justice. Ms. BABCOCK. I would like to ask Mr. Jaffe if he has anything to add on this. He is our resident expert. Chairman RODINO. Please identify him. Ms. BABCOCK. Irving Jaffe is a Deputy Assistant Attorney General. TESTIMONY OF IRVING JAFFE, DEPUTY ASSISTANT ATTORNEY GENERAL Mr. JAFFE. Gentlemen, the authority of the United States, the Department of Justice, to retain private counsel was considered by the Department over a period of years when it first became necessary to do so. Chairman RODINO. Please use the mike. Mr. JAFFE. I said the Department of Justice considered its authority to engage private counsel over a period of years, perhaps about 6 years ago. At that time we reviewed not only the authority contained in title XXVIII but also the authority contained in various procurement statutes. Between the combination of the two, we have concluded as a matter of law that we do have that authority. The opinion of the Library of Congress relies only upon title XXVIII. That's only the beginning of the basis upon which we have authority. We go from there to the various procurement statutes which we think may make it complete. 4 In a matter before the Comptroller General, similar points were raised by the Civil Division and apparently were accepted as valid by the Comptroller General. See Decision of the Comptroller General, NoB-182816 (Oct. 29, 1975). See the guidelines issued by former Attorney General Levi, 42 Fed. Reg. 5695 (1977). Cf. 51 Corp. Gen. 561 (1962) (OEO contract for the services of a translator.) |