Litigating Authority of the Merit Systems Protection Board

September 11, 1979

79-66 MEMORANDUM OPINION FOR THE ACTING
ASSISTANT ATTORNEY GENERAL, CIVIL
DIVISION

Merit Systems Protection Board—Litigating
Authority (5 U.S.C. § 1205)

This responds to Assistant Attorney General Babcock’s May 10, 1979,
request for our views concerning the scope o f litigating authority given the
Merit Systems Protection Board under the Civil Service Reform Act,
§ 202(a), 92 Stat. 1111, 5 U .S.C . § 1205(h) (Supp. II, 1978). The relevant
portion o f that subsection o f the Act provides:
Except as provided in section 518 o f title 28, relating to litigation
before the Supreme C ourt, attorneys designated by the Chair­
man o f the Board may appear for the Board, and represent the
Board, in any civil action brought in connection with any func­
tion carried out by the Board pursuant to this title or as otherwise
authorized by law.
We are asked whether that subsection, despite its broad language, might
properly be interpreted to allow the Board to represent itself only where
the Board takes a legal position in litigation adverse to that o f another
Federal agency. We have reviewed the statute and its legislative history
and conclude that the provision granting litigating authority to the Board
must be read more expansively, in accordance with its plain meaning.
The congressional grant o f litigating authority to the Board had its
origins in § 202(a) o f the Senate bill, S. 2640. The House bill, H. 11280,
contained no comparable provision. The only discussion o f the litigating
authority provision that we have found in the reports and floor debates on
the Reform Act appears in the report o f the Senate Governmental Affairs
Committee, S. Rept. No. 969, 95th Cong., 2d sess. (1978). That report
states that:
[t]he Board is to be represented by its own attorneys whenever
the Board is a party to any proceeding in court, except that the
Board is to be represented by the Solicitor General o f the United

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 States in any proceeding before the Supreme C ourt. This will in­
clude instances where the Board is involved in court proceedings
under any provision o f this title, including defending disciplinary
actions * * * intervening in appellate proceedings * * * or
any enforcement actions * * *. [Id., at 31.]
That history provides no readily apparent basis for interpreting the words
o f § 202(a) more restrictively than they appear on their face.
The report adds, moreover, that the statutory grant o f litigating
authority to the Board is consistent with similar provisions adopted for in­
dependent commissions such as the Federal Energy Regulatory Commis­
sion (FERC). In the conference report on the Energy Organization Act,
Pub. L. No. 95-91 91 Stat. 565, which established the FERC, the litigating
authority given that body was explained as follows:
The Senate bill provided that the Board may appoint its own at­
torneys to represent itself in any civil action, except in the case of
litigation before the Supreme C ourt * * * .
The com parable House provision slated that the litigation by
the Commission shall not be subject to the supervision of the A t­
torney General * * * . It provided no exception in the case of
litigation before the Supreme Court * * * .
The conferees adopted the Senate provision. The conferees do
not contem plate that this authority will be employed to litigate
independently o f the Departm ent o f Justice in cases arising under
administrative statutes that apply government wide, such as the
Freedom o f Inform ation Act or the Privacy Act o f 1974. [H.
Conf. Rept. 539, 95th Cong., 1st sess. 72 (1977).]
This explanation o f a litigating authority provision nearly identical to that
o f the Board indicates fairly clearly that Congress did not intend to limit
the grant o f authority to situations in which Federal agencies take incon­
sistent legal views.*
A grant o f broad litigating authority to the Board is consistent generally
with the structure contem plated for this entity by Congress in the Reform
Act. The Civil Service Commission was divided into two separate agen­
cies, the Office o f Personnel Management and the Merit Systems Protec­
tion Board. While the senior officials o f O PM , like their predecessors with
the Commission, serve at the pleasure o f the President, the members o f the
Board were given an extra degree o f independence from the President.
Those members may only be removed for cause. 5 U.S.C. § 1202(d) (Supp.
II, 1978). This kind o f statutorily created independence is common where

•W e wish to add a cautionary note with respcct to the last sentence of that FERC history.
The suggestion that an agency granted broad litigating powers must nonetheless turn to the
Departm ent of Justice for representation on matters arising under statutes applicable
Governm ent-wide is an unusual one, and one that we have not considered previously. In
quoting the FERC history we therefore do not mean to express any view as to the import of
the sentence.

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an agency is charged with the performance o f quasi-judicial functions.
See, Myers v. United States, 272 U.S. 52 (1926); Hum phrey’s Executor v.
United States, 295 U.S. 602 (1935). It is likewise common for such entities
to exercise independent litigating authority—e.g., 15 U.S.C. § 56 (litiga­
tion by the Federal Trade Commission). Nothing in the language or
history o f the statute establishing this particular Board suggests that C on­
gress intended a different arrangement here.
Thus, since the language o f § 202(a) is clear and its legislative history
supplies no evidence that Congress understood that language to have other
than its plain meaning, we believe that the provision should be interpreted
literally. We conclude, as provided in that subsection, that the Chairman
of the Merit Systems Protection Board may designate attorneys to repre­
sent the Board in any civil action brought in connection with Board func­
tions or as otherwise authorized by law. O f course, should questions con­
cerning the scope o f the B oard’s litigating authority arise in the contest o f
specific litigation, we would be happy to look into those questions for you.

Larry A . H ammond

Deputy Assistant A ttorney General
Office o f Legal Counsel

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