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

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

C ongress may constitutionally authorize the Special Counsel o f the M erit Systems Protection
Board to conduct any litigation in which he is interested, except litigation in which the Special
C ounsel’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 o f speaking with conflict­
ing voices in the sam e lawsuit. In addition, because the Special Counsel is an Executive
Branch officer subject to the supervision and control o f the President, a grant by Congress to
the Special Counsel o f authority to submit legislative proposals directly to Congress without
prior review by the President w ould raise serious separation o f powers concerns.

February 22, 1984

M em orandum O p in io n for th e A s s is t a n t A t t o r n e y G eneral,

O f f ic e of L e g is l a t iv e A f f a ir s

This responds to your request for our views regarding the legislative recom­
mendations 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 legisla­
tive 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 Execu­
tive 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
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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 Commis­
sion 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 Con­
gress on his activities, including “whatever recommendations for legislation or
other action by Congress the Special Counsel may deem appropriate.” Id. § 1206.
31
 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 provi­
sions which raised very serious constitutional concerns. Those concerns fo­
cused 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 func­
tions, 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 correcdy, that although the Board may function as a quasi-adjudica-
tive 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 Coemsel

Under current law, the Special Counsel’s litigating authority is limited to
“intervening as a matter of right] or otherwise participating] in any proceed­
ing 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 the Attorney General’s
litigating authority under 28 U.S.C. §§ 516 & 519. This opposition, shared by
previous Administrations, is grounded in the need for centralized control of all
government litigation. Such control furthers a number of important policy
goals, including the presentation of uniform positions on important legal is­
sues, the selection of test cases that would produce results most favorable to
governmental interests, more objective handling of cases by attorneys unaf­
1See, e.g., S. Rep. No. 969, 95th C o n g ., 2d Sess. 2 8 -2 9 (1978).
2 T h is language is taken from the text o f S. 1662, a bill reported by the Senate Com m ittee on Government
A ffairs on Ju ly 21, 1983, to “ amend title 5, U nited States C ode, w ith respect to the authority o f the Special
C ounsel o f the M erit System s Protection Board.” A lthough you have advised us that the Special Counsel has
subm itted to the C om m ittee an alternative to S. 1662, we believe that the com m ents in this memorandum will
be equally applicable to the Special C o u n se l’s alternate proposal.

32
fected by an agency’s narrower concerns, and the facilitation of Presidential
supervision over Executive Branch policies implicated in government litiga­
tion. 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 simul­
taneously vested litigating authority over the case in either the Attorney Gen­
eral or another Executive Branch officer. Those issues involve the President’s
authority to exercise supervisory control over his subordinates so that he may
properly discharge his constitutional obligation to “take care that the laws be
faithfully executed,” U.S. Const, art. II, § 3, and Congress’ potential violation
of the constitutional separation of powers by interfering with the President’s
exercise of that authority. See H um phrey’s Executor v. United States, 295 U.S.
602 (1935); M yers v. United States, 272 U.S. 52 (1926).
Although the Special Counsel’s legislative proposal defines his litigating
authority so broadly as to provide no clear indication of the actual circum­
stances in which it could be exercised, we may assume that the Special Counsel
would seek to initiate, or otherwise participate in, litigation in which both
independent and Executive Branch agencies would be defending themselves
against allegations of prohibited employment practices. In such circumstances,
the litigating authority that would be vested in the Special Counsel pursuant to
his proposal could not be construed constitutionally to place the President in
the untenable position of speaking with two conflicting voices by both pros­
ecuting and defending the same lawsuit. To permit otherwise would constitute
an abdication by the President of his obligation to execute the laws faithfully,
and would fall short of “that unitary and uniform execution of the laws which
article 2 of the Constitution evidently contemplated in vesting general execu­
tive power in the President alone.” M yers v. United States, 212 U.S. at 125.3
Thus, in litigation challenging the personnel practices of independent agencies,
there would be no constitutional impediment to the Special Counsel’s exercise
of statutorily vested litigating authority so long as the Attorney General or any
other duly authorized Executive Branch officer4 has not taken a position in the
3 See also “Litigation Authority o f the Equal Em ployment O pportunity Commission in Title V II Suits
A gainst State and Local G overnm ental Entities,” 7 Op. O .L.C. 57 (1983).
4 Although the A ttorney G eneral is the chief legal officer for the U nited States, see 28 U .S.C §§ 516 & 519,
there are circum stances in which other Executive Branch officers, subject to the supervision and control of
the President, are authorized by statute to represent the U nited States in litigation See , e .g , 29 U.S.C. § 663
(granting the Solicitor o f Labor authority to bring actions under the Occupational Safety and Health A ct of
1970, “subject to the direction and control o f the A ttorney G eneral”); 49 U.S.C. § 1810(b) (granting the
S ecretary o f Transportation authority to litigate im m inent hazards under the Hazardous M aterials T ransporta­
tion Act, or upon his request the Attorney G eneral shall do so); 28 U.S.C. § 2348 (granting certain Executive
C ontinued

33
litigation on behalf of the United States that would be inconsistent with what
the Special Counsel seeks to present. In litigation involving Executive Branch
agencies, the Special Counsel’s litigating authority would necessarily be lim­
ited to the presentation of views which would not conflict with those presented
on behalf of the agency.
Nor may Congress authorize the Special Counsel to do otherwise. To permit
Congress to do so would vest an essentially executive function, performed by a
subordinate of the President, outside of the President’s control, and thereby
undermine the President’s authority to control subordinate officers and the
affairs of the Executive Branch. In short, to allow Congress to vest simulta­
neously litigating authority over the same case in two or more subordinates of
the President would constitute an unconstitutional interference by the Legisla­
tive Branch with Executive process, a clear violation of the separation of
powers. See H um phrey’s Executor v. United States, 295 U.S. at 629; M yers v.
U nited States, 272 U.S. at 164.5

HI. Annttlioritty of ten® Special Conmmsel to Submit Legislative
Proposals Directly to Congress

As noted in your submission, the Special Counsel has proposed legislation
authorizing him to submit directly to Congress legislative recommendations
that he “deems necessary to further enhance the ability of the office to perform
its duties.”6 As discussed further below, we believe that such a statutory grant

4 ( . . . continued)
B ranch agencies the authority to appear through their own counsel in proceedings to review orders, although
the A ttorney G eneral "is responsible fo r and has control o f the interests o f the G overnm ent in all court
proceedings un d er [the A ct].” ). See generally Report o f the Attorney General's Task Force on Litigating
Authority (O ct. 28, 1982).
5 An additional im pedim ent to the Special C o u n sel's exercise o f litigating authority in litigation involving
E xecutive B ranch agencies is § 1-402 o f E xecutive O rder 12146, reprinted in 28 U.S.C. § 509 note, pursuant
to w hich the President, in the exercise o f his constitutional authority ov er his subordinates, has required
E xecutive agencies “w hose heads serve at th e pleasure o f the President” and which are unable to resolve legal
d isputes am ong th em selves to “submit the dispute to the A ttorney G eneral prior to proceeding in any court”
(em phasis added).
6 The proposal ou tlin ed in S. 1662 contains a concurrent reporting requirem ent:
Each year, the Special Counsel sh all prepare and subm it to the President and, at the same time,
to the appropriate com m ittees o f the C ongress, a statem ent specifying estim ates o f expenditures
and p roposed appropriations for the O ffice o f the Special Counsel for the fiscal year beginning on
O cto b er 1 o f the next succeeding calen d ar year after the calendar year in which the statem ent is
subm itted and the 4 fiscal years after that fiscal year.
« « «
W henever the Special Counsel considers it appropriate to make recom m endations for legisla­
tion relating to any function o f the Special Counsel provided by this title in addition to the
recom m endations fo r legislation set forth in the latest annual report submitted pursuant to
subsection (m ) o f [§ 1206], the S pecial Counsel shall submit the recom m endations to the
P resident and, at the sam e time, to each H ouse o f Congress.
Section 1206(m ) requires the Special C ounsel to submit an annual report to C ongress on his activities,
“ including the num ber, types, and disposition o f allegations o f prohibited personnel practices filed w ith it,
investigations conducted by it, and actions initiated by it before the Board, as well as a description o f the
recom m endations and reports made by it to other agencies pursuant to this section and the actions taken by
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34
of authority to an Executive Branch officer, if construed to require concurrent
transmittals that would preclude Presidential review of the proposed legislative
recommendations prior to their submission to Congress, would constitute an
unconstitutional intrusion by the Legislative Branch into the President’s exclu­
sive domain of supervisory authority over subordinate officials in the perfor­
mance of their executive functions.7
The separation of powers principle is rooted in the Constitution’s division of
the Government into three separate Branches and the assignment of specific
functions thereto. Article II vests the whole of the executive power in the
President, charging him, inter alia, to “take Care that the Laws be faithfully
executed.” U.S. Const, art. II, § 3. This means that the President must possess
“exclusive and illimitable power” over his subordinates as they assist him in
discharging his constitutional obligation to execute the laws faithfully, unen­
cumbered by interference from the coordinate Branches:
The fundamental necessity of maintaining each of the three
general departments of government entirely free from the con­
trol or coercive influence, direct or indirect, of either of the
others, has often been stressed and is hardly open to serious
question. So much is implied in the very fact of the separation of
the powers of these departments by the Constitution; and in the
rule which recognizes their essential co-equality. The sound
application of a principle that makes one master in his own
house precludes him from imposing his control in the House of
another who is master there.

6 ( . . . continued)
the agencies as a result o f the reports o r recommendations.'* In addition, the report “shall include w hatever
recom m endations for legislation o r o ther action by C ongress the Special Counsel may deem appropriate.”
A lthough the D epartm ent, to o ur know ledge, heretofore has not had occasion to construe this particular
provision, we have construed sim ilar provisions in the past to avoid im pinging on the constitutional
prerogatives o f the Executive. See , e.g.. Statem ent o f A ttorney General E lliot R ichardson (June 1973)
(construing 5 U .S.C. § 2954, which requires Executive agencies to submit to the H ouse or S enate Com m ittees
on G overnm ent O perations “any inform ation requested o f it relating to any m atter within the jurisdiction of
the com m ittee," to grant to the pertinent com m ittees access to only type o f inform ation that traditionally has
been m ade available to Congress and that is not subject to valid claim s o f executive privilege); “Constitution-
ality o f Statute Requiring Executive A gency to Report D irectly to C ongress," 6 Op. O .L .C . 632 (1982)
(construing § 5 0 6 (0 o f the Tax Equity and Fiscal Responsibility Act o f 1982, Pub. L No. 97-2 4 8 , 96 Stat.
324,677, w hich requires the A dm inistrator to transm it certain budget inform ation and legislative recom m en­
dations directly to Congress concurrently with their transm ission to the Secretary of Transportation, the
President o r OM B, to require that only “final" budget information and legislative recom m endations be sent,
i.e., inform ation that has been review ed and approved by appropriate senior officials).
Thus, w e w ould construe the Special C ounsel's existing authority pursuant to § 1206(m) to require him to
subm it only such inform ation and legislative recom m endations as have been cleared for transm ittal by O M B,
or other appropriate review ing authorities.
7 O f course, if such legislation w ere enacted, we w ould avoid the constitutional issue if possible, see United
States v. Rumely, 345 U.S. 41, 45 (1956), by construing it as we do § 1206(m), to authorize the Special
Counsel to subm it only “final" recom m endations to C ongress, i.e., those recom m endations w hich have been
reviewed and approved by appropriate senior officials in the Executive Branch. See also 6 O p. O.L.C. 632,
supra.

35
H um phrey’s E xecu tory. United States, 295 U.S. at 629-30. Although the rigid
separation of powers standard first articulated in Hum phrey’s Executor has
been viewed as more flexible in subsequent decisions by the Court, in each
subsequent articulation remains the core concern that the President retain
effective control over all matters within the Executive Branch in order to
discharge properly his constitutional obligation faithfully to execute the laws.
In Buckley v. Valeo, 424 U.S. 1 (1976), the Court recognized that “a hermetic
sealing off of the three branches of Government from one another would
preclude the establishment of a Nation capable of governing itself effectively,”
but it emphasized that there was a “common ground in the recognition of the
intent of the Framers that the powers of the three great branches of the National
Government be largely separate from one another.” 424 U.S. at 120-21. The
Court further declared that it “has not hesitated to enforce the principle of
separation of powers embodied in the Constitution when its application has
proved necessary for the decision of cases or controversies properly before it.”
Id. at 123. Most recently, the Court stated in Nixon v. Adm inistrator o f General
Services, 433 U.S. 425, 443 (1977), that congressional enactments may not
interfere with the Executive process unless such interference is “justified by an
overriding need to promote objectives within the constitutional authority of
Congress.” See generally 6 Op. O.L.C. 632, supra.
Under the above standards, we believe that to permit Congress to authorize
or require an Executive Branch officer to submit budget information and
legislative recommendations directly to Congress, prior to their being reviewed
and cleared by the President or another appropriate reviewing official, would
constitute precisely the kind of interference in the affairs of one Branch by a
coordinate Branch which the separation of powers is intended to prevent.
The Special Counsel’s proposal would severely impair the President’s abil­
ity to perform his constitutional obligation to “recommend to [Congress’]
Consideration such Measures as he shall judge necessary and expedient.” U.S.
Const, art. II, § 3. As the President’s subordinate, the Special Counsel is
obligated to make his recommendations to the President, so that the President,
on behalf of the Executive Branch, may judge which are “necessary and
expedient,” and thus should not interdict the process by making individual
recommendations directly to Congress. For Congress to require the Special
Counsel to report to it directly without such review would constitute a grave
interference with the President’s performance of his constitutional obligation,
as well as “irreparably damage, if not destroy, the normal exchange of views
between agency heads and the President (through OMB) before budget submissions
[and legislative recommendations] are finally approved.” 6 Op. O.L.C. at 641.*1
8 In ad d itio n , such an interdiction regarding budget inform ation w ould violate the process through which
the P resident exercises his constitutional authority to supervise the affairs of the Executive Branch in the
perform ance o f his statutory obligation under 31 U.S.C. §§ 1104 et seq. to transm it an annual budget to
C ongress. T he President has required all b u dget subm issions to be review ed by OMB, and OMB C ircular No.
A -10 requires that
the confidential nature o f agency subm issions, requests, recom m endations, supporting materials
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36
 By contrast, the Special Counsel has not articulated an “overriding need [of
Congress] to promote objectives within the constitutional authority of Con­
gress,” to justify such a significant intrusion into the Executive process and the
President’s ability to supervise and control his subordinates. Nixon v. Adm inis­
trator o f General Services, 433 U.S. at 443. Presumably, the “need” is a strong
desire on the part of Congress to be able to evaluate the Special Counsel’s
performance of his functions and to seek the Special Counsel’s assistance in
developing legislation which would enhance his performance of those func­
tions. However, in view of the fact that such information may be obtained from
the Special Counsel after review by appropriate Executive Branch officials and be
no less valuable to Congress, the “need” can scarcely be considered “overriding.”
Although we do not know the precise formulation of this provision in the
Special Counsel’s “alternative” proposal, this Office has analyzed similar
provisions in the past and has found that, if construed literally, they would
unconstitutionally infringe the separation of powers. In 1977, the Office com­
mented on a bill that would establish Offices of Inspectors General in various
Executive Branch agencies, and require the Inspectors General to submit
certain information directly to Congress without clearance or approval by
appropriate authorities. We stated that the bill would

make the Inspectors General subject to divided and possibly
inconsistent obligations to the executive and legislative branches,
in violation of the doctrine of separation of powers. In particu­
lar, the Inspector General’s obligation to keep Congress fully
and currently informed, taken with the mandatory requirement
that he provide any additional information or documents re­
quested by Congress, and the condition that his reports be trans­
mitted to Congress without executive branch clearance or ap­
proval, are inconsistent with his status as an officer in the
executive branch, reporting to and under the general supervision
of the head of the agency. Article II vests that executive power
of the United States in the President. This includes general
administrative control over those executing the laws. See M yers
v. United States, 272 U.S. 52, 163-164 (1926). The President’s
power of control extends to the entire executive branch, and
includes the right to coordinate and supervise all replies and
comments from the executive branch to Congress. See Congress
Construction Corp. v. United States, 314 F.2d 527,530 532 (Ct.
Cl. 1963).

8 ( . . . continued)
and sim ilar com m unications should be m aintained, because these docum ents are an integral part
o f the decisionm aking process by which the President resolves budget issues and develops
recom m endations to the C ongress . . Budgetary m aterials should not be disclosed in any form
prior to transm ittal by the President o f the m atenal to which it pertains. The head o f each agency
is responsible for preventing prem ature disclosures o f this budgetary information.

37
“Inspector General Legislation,” 1 Op. O.L.C. 16, 17 (1977). More recently,
we advised that a provision requiring the Federal Aviation Administrator to
transmit certain budget information and legislative recommendations directly
to Congress at the same time that they are transmitted to the Secretary of
Transportation, the President, or OMB would, if construed literally, unconsti­
tutionally interfere with the Executive process and thereby violate the separa­
tion of powers. See 6 Op. O.L.C. 632, supra.
As we have concluded in the past, we now conclude that the Special Counsel’s
proposal, which would require an Executive Branch officer, the Special Coun­
sel, to submit confidential or deliberative information directly to Congress
without providing an opportunity for review by a superior Executive officer,
would interfere unduly with the President’s authority to supervise and control
the affairs of the Executive Branch. Such legislation would effectively sever
the Special Counsel from his superiors within the Executive Branch with
respect to the areas of his responsibility on which he reports, and thereby make
him an “independent agency reporting both to Congress and to the President.”
We believe that Congress’ perceived “need” to receive legislative recommen­
dations and other information directly from the Special Counsel without their
first having been reviewed by his superiors within the Executive Branch cannot
justify the infringement of the separation of powers principle that would
necessarily result from such legislation.

Conclusion

In conclusion, we believe that the Department should continue to oppose the
grant of litigating authority to the Special Counsel on policy grounds, and to
raise the constitutional grounds discussed above where appropriate. In addi­
tion, we believe that the submission of legislative recommendations and other
information by the Special Counsel directly to Congress, without prior review
by appropriate Executive Branch officials, would violate the constitutional
separation of powers by interfering with the Executive’s ability to supervise
and control his subordinates in the performance of their executive functions.
Accordingly, we believe that S. 1662, and the Special Counsel’s “alternative”
proposal, should be opposed, and that he should be advised that, as an Execu­
tive Branch officer, his direct submissions to Congress are unauthorized.

L a r r y L . S im m s
D eputy A ssistant Attorney General
Office o f Legal Counsel

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