Potential Litigation Between the Department of Labor
and the United States Postal Service
The Attorney General has authority under 39 U.S.C. § 409(g)(2) to allow the United
States Postal Service to direct its own defense of a suit filed against it by the Depart-
ment of Labor, alleging that USPS has violated a whistleblower provision of the Oc-
cupational Safety and Health Act of 1970.
USPS may contract with private counsel to conduct the litigation on USPS’s behalf,
consistent with the Appointments Clause.
If the Attorney General opts to allow USPS to direct its own defense, the suit will fall
within the constitutional authority of the Article III courts.
October 26, 2011
MEMORANDUM OPINION FOR THE
ASSISTANT ATTORNEY GENERAL
CIVIL DIVISION
The Department of Labor (“DOL”) has asked the Attorney General for
permission to file suit against an employer that DOL believes has violated
a whistleblower provision of the Occupational Safety and Health Act of
1970 (“OSHA”), Pub. L. No. 91-596, § 11(c), 84 Stat. 1590, 1603 (1970).
This request is consistent with 29 U.S.C. § 663 (2006), which authorizes
the Solicitor of Labor to litigate civil actions under OSHA, but makes that
authority “subject to the direction and control of the Attorney General.”
The twist in this case is that the employer is the United States Postal
Service (“USPS”). The suit that DOL wishes to bring would therefore pit
one agency of the federal government against another.
You asked us to address two questions relevant to DOL’s request. The
first question arises because the Attorney General has statutory authority
to supervise the litigation conduct of both DOL and USPS in suits of this
kind. As a result, unless the Attorney General may validly cede that
authority to one agency or the other, he would oversee both the plaintiff
and the defendant in the proposed litigation. You have therefore asked
whether the Attorney General may authorize USPS to conduct its own
defense, independent of his direction and control, in order to address this
potential conflict of interest. See Memorandum for Caroline Krass, Prin-
cipal Deputy Assistant Attorney General, Office of Legal Counsel, from
Tony West, Assistant Attorney General, Civil Division at 2, 6 (May 1,
2011) (“Opinion Request”). Your second question, see id. at 4 –5, is
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Potential Litigation Between DOL and USPS
whether, in the circumstances presented here, the proposed inter-agency
whistleblower suit would be a “Case[]” or “Controvers[y]” that is within
the “judicial Power” of an Article III court to resolve. U.S. Const. art. III,
§ 2.
We conclude, first, that the Attorney General has authority under 39
U.S.C. § 409(g)(2) (2006) to allow USPS to direct its own defense of this
case, and that the exercise of this authority would not raise concerns under
the Appointments Clause. Second, if the Attorney General opts to allow
USPS to direct its own defense, 1 we conclude that this suit would fall
within the constitutional authority of the Article III courts. The Supreme
Court and opinions of this Office have explained that suits between com-
ponents of the Executive Branch may be resolved by Article III courts
where, as here, the claim at issue is of a kind that courts traditionally
resolve, and where the requirement of concrete adverseness would be met.
This case would involve an unlawful termination claim by a whistleblow-
er, standard fare for federal courts. In addition, in the proposed litigation,
DOL would represent the interests of a private individual who has a
concrete dispute with USPS, an “independent” agency with a governing
board that has a degree of insulation from Presidential direction and
control. 2
1 We understand that the Department is not currently considering the option of author-
izing DOL to file the proposed suit and supervising both parties to the dispute. See
Opinion Request at 13 (describing that scenario as presenting “an untenable conflict”).
We therefore do not address the distinct justiciability question that would be presented by
an inter-agency suit in which the Attorney General controlled the litigation conduct of
both federal agencies.
2 We have also considered whether presenting this dispute to a court would imper-
missibly interfere with the President’s Article II authority to supervise the Executive
Branch—a question we have often addressed in tandem with justiciability questions
presented by potential intra-branch litigation. See, e.g., Administrative Assessment of
Civil Penalties Against Federal Agencies Under the Clean Air Act, 21 Op. O.L.C. 109,
115–18 (1997) (“EPA Enforcement”). We conclude that it would not. Generally, a statute
does not violate Article II merely by authorizing judicial resolution of an inter-agency
dispute. Rather, “[t]he critical point for constitutional purposes is that the [statute] does
not preclude the President from authorizing any process he chooses to resolve” such a
dispute. Id. at 116 (citing Constitutionality of Nuclear Regulatory Commission’s Imposi-
tion of Civil Penalties on the Air Force, 13 Op. O.L.C. 131, 136–37 (1989)) (“NRC
Enforcement ”). Here, the relevant statutes do not require DOL to file suit, and they
subject DOL’s litigating authority to the direction and control of the Attorney General.
Thus, the President, through the Secretary of Labor and Attorney General, retains control
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35 Op. O.L.C. 152 (2011)
I.
DOL alleges that USPS discharged one of its employees after she filed
a complaint with the Occupational Safety and Health Administration
concerning environmental conditions at her workplace. See Opinion
Request at 1. DOL contends that this discharge violated section 11(c) of
OSHA, 29 U.S.C. § 660(c) (2006), which in relevant part makes it unlaw-
ful for an employer to “discharge or in any manner discriminate against
any employee because such employee has filed any complaint or institut-
ed or caused to be instituted any proceeding under or related to this chap-
ter.” Our understanding is that USPS disagrees with this conclusion. See
Opinion Request at 1–2 (noting that the Civil Division’s attempts to
mediate the dispute thus far have not succeeded).
Under section 11(c), “[a]ny employee who believes that he has been
discharged or otherwise discriminated against by any person in violation
of this subsection may, within thirty days after such violation occurs, file
a complaint with the Secretary [of Labor] alleging such discrimination.”
29 U.S.C. § 660(c)(2) (2006). If the Secretary determines that provision
has been violated, she is authorized to “bring an action in any appropriate
United States district court against such person.” Id. The district court
may grant injunctive relief against the employer if the Secretary prevails,
and may “order all appropriate relief including rehiring or reinstatement
of the employee to his former position with back pay.” Id. Section 11(c)
does not expressly create a private right of action, and the courts that have
addressed the question appear to be in agreement that it does not do so
implicitly. See, e.g., George v. Aztec Rental Ctr., Inc., 763 F.2d 184, 186–
87 (5th Cir. 1985); Taylor v. Brighton Corp., 616 F.2d 256, 258–64 (6th
over whether a suit against USPS will be filed and how such a suit will be conducted. Of
course, USPS is “an independent establishment of the executive branch of the Govern-
ment of the United States,” 39 U.S.C. § 201 (2006) (emphasis added), and the President
has limited authority to remove members of the Postal Service’s Board of Governors.
See 39 U.S.C. § 202(a)(1). These statutory restrictions on removal limit the President’s
ability to direct the decisions of the Service’s Board of Governors, including its litiga-
tion decisions. But it is the fact that Congress created an “independent” Postal Service
that constrains the President’s authority to resolve this inter-agency dispute, not the fact
that Congress has authorized DOL to bring suit against USPS. Indeed, Congress’s grant
of authority to DOL and the Attorney General to sue USPS to ensure that USPS complies
with OSHA does not diminish the President’s authority over USPS, but instead provides
him with an additional tool to resolve any dispute with USPS regarding its legal obliga-
tions under OSHA.
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Potential Litigation Between DOL and USPS
Cir. 1980). Accordingly, a discharged USPS employee may obtain judi-
cial relief under section 11(c) only if DOL sues on her behalf.
Prior to 1998, USPS was not subject to suit under this provision. Al-
though section 11(c) protects “any employee,” that phrase is not as all-
encompassing as it first appears. This is because OSHA defines “employ-
ee” to mean an “employee of an employer,” see 29 U.S.C. § 652(6)
(2006), and, from its inception, has exempted certain employers from
OSHA’s reach. Among other exceptions, OSHA originally provided that
“[t]he term ‘employer’ . . . does not include the United States or any State
or political subdivision of a State.” See 29 U.S.C. § 652(5) (1970). 3
In 1998, however, Congress enacted the Postal Employee Safety En-
hancement Act, Pub. L. No. 105-241, 112 Stat. 1572 (1998). The Act’s
preamble states that the law was intended “to make [OSHA] applicable to
the United States Postal Service in the same manner as any other employ-
er.” Id. To that end, Congress amended OSHA’s definition of “employer”
to remove USPS from the exception it created for the United States. Id.
§ 2(a) (employer “does not include the United States (not including the
United States Postal Service)”) (emphasis added)) (codified at 29 U.S.C.
§ 652(5) (2006)). As the statutory text now reads, therefore, USPS is no
longer excluded from the class of “employer[s]” who are subject to OSHA
and to OSHA enforcement actions.
The legislative history of the 1998 Act confirms that Congress intended
to make USPS subject to OSHA enforcement actions. For example, Sena-
tor Enzi, a co-sponsor of the Act, stated that the changes would “bring the
Postal Service under the full jurisdiction of the Occupational Safety and
Health Administration,” and in doing so “permit[] OSHA to fully regulate
the Postal Service the way it does private businesses.” 144 Cong. Rec.
18,364 (1998). Similarly, Senator Kennedy, also a co-sponsor, explained
that although President Carter had by Executive Order “directed federal
agencies to comply with all OSHA safety standards, and . . . authorized
3Congress instead addressed the need for increased safety in federal workplaces by
directing “the head of each Federal agency to establish and maintain an effective and
comprehensive occupational safety and health program which is consistent with the
standards promulgated” with respect to private workplaces. OSHA § 19(a), 84 Stat. at
1609. Several executive orders have also adopted measures, consistent with OSHA, to
address the need for safety in federal workplaces. See, e.g., Exec. Order No. 11807
(Sept. 28, 1974), 3 C.F.R. 897 (1975); Exec. Order No. 12196 (Feb. 26, 1980), 3 C.F.R.
145 (1981).
155
35 Op. O.L.C. 152 (2011)
OSHA to inspect workplaces and issue citations for violations,” the order
had not provided OSHA with “authority to seek enforcement of its order
in court, and it cannot assess a financial penalty on the agency to obtain
compliance.” Id. at 18,365. Senator Kennedy explained that the bill would
“permit[] OSHA to issue citations for safety hazards, and back them up
with penalties. This credible enforcement threat will encourage the Postal
Service to comply with the law.” Id. Discussion in the House of Repre-
sentatives, which voted several weeks later to adopt the bill passed by the
Senate, was to the same effect. See, e.g., id. at 20,199–200 (remarks of
Congressman Goodling); id. at 20,200–201 (remarks of Congressman
Martinez).
In sum, when Congress made OSHA “applicable to the United States
Postal Service in the same manner as any other employer,” Pub. L. No.
105-241 pmbl., 112 Stat. at 1572, it intended to authorize DOL to bring
suits against USPS in circumstances where it could bring suit against
another covered employer. 4 OSHA enforcement actions give rise to litiga-
tion in Article III courts in at least two ways. First, when an “employer” is
cited for violating OSHA standards, it may seek administrative review of
DOL’s determination before the Occupational Safety and Health Review
Commission. See 29 U.S.C. § 659(c) (2006); see also id. § 661 (establish-
ing the Commission as a freestanding federal agency). After the Commis-
sion rules, either a “person adversely affected or aggrieved by an order of
the Commission” or the Secretary of Labor may seek judicial review in an
appropriate court of appeals. See 29 U.S.C. § 660(a)–(b). Second, as
noted, section 11(c) expressly authorizes DOL to bring a civil action in
federal district court when it determines that an “employer” has taken an
unlawful retaliatory action against an “employee.” See id. § 660(c)(2). It
is this latter circumstance that is of present concern.
As your Opinion Request indicates, OSHA whistleblower litigation be-
tween DOL and USPS raises two distinct legal complications. First, it
4 We reached a similar conclusion in a 1997 opinion construing the enforcement au-
thorities of the Environmental Protection Agency (“EPA”). See EPA Enforcement, 21 Op.
O.L.C. at 109. There, the initial statutory enactment “did not contain any language
subjecting federal agencies to enforcement authority.” Id. at 114. Congress then revised
the statutory definition of “person” to include “any agency, department, or instrumentality
of the United States.” Id. (quoting statutory language). Against that backdrop, we con-
cluded that Congress had “clearly indicated . . . its intent to authorize EPA to use its
section 113 enforcement authorities against federal agencies.” Id. at 115.
156
Potential Litigation Between DOL and USPS
appears that Congress intended that DOL and USPS would litigate whis-
tleblower disputes against one another, and yet it also vested the Attorney
General with broad authority to control the litigation conduct of each
agency. If possible, we should construe these potentially conflicting
statutory commands to give effect to the language and purpose of each.
See generally Ricci v. DeStefano, 129 S. Ct. 2658, 2674 (2009) (when
confronted with conflicting statutory requirements, a court “must interpret
the statute to give effect to both provisions where possible”).
Second, because we conclude that Congress clearly intended to grant
Article III courts authority to adjudicate suits of this kind between DOL
and USPS, we must confront the constitutional question of whether an
Article III court may validly exercise that authority. See, e.g., Authority of
Department of Housing and Urban Development to Initiate Enforcement
Actions Under the Fair Housing Act Against Other Executive Branch
Agencies, 18 Op. O.L.C. 101, 107 (1994) (“HUD Enforcement”) (declin-
ing to address similar constitutional question upon concluding HUD did
not have authority to “initiat[e] statutory enforcement proceedings that
could result in judicial resolution of disputes between HUD and respond-
ent executive branch agencies” where Congress did not expressly state
that “the United States” could be a respondent in such actions); EPA
Enforcement, 21 Op. O.L.C. at 115 (addressing similar constitutional
questions only after concluding that Congress clearly intended to author-
ize enforcement against federal agencies).
II.
Our analysis begins by addressing whether the Attorney General may
authorize USPS to direct its own defense of the case you have described,
and, if so, whether the exercise of that authority would raise concerns
under the Appointments Clause.
A.
We first conclude that the Attorney General has statutory authority,
pursuant to 39 U.S.C. § 409(g)(2), to permit USPS to direct its own de-
fense of the whistleblower suit that DOL has proposed to bring.
Section 409(g) begins, in paragraph (1), by setting out certain cases in
which “legal representation may not be furnished by the Department of
Justice to the Postal Service.” These include suits under the Trademark
157
35 Op. O.L.C. 152 (2011)
Act of 1946, certain antitrust claims, and unfair or deceptive acts or
practices claims brought under section 5 of the Federal Trade Commission
Act. See id. § 409(g)(1)(A) (barring representation in cases encompassed
by section 409(d)–(e)). With respect to these suits, USPS “may, by con-
tract or otherwise, employ attorneys to obtain any legal representation that
it is precluded from obtaining from the Department of Justice under this
paragraph.” Id. § 409(g)(1). Section 409(g)(2) then sets out the following
rule with respect to “any circumstance not covered by paragraph (1)”:
[T]he Department of Justice shall, under section 411, furnish the
Postal Service such legal representation as it may require, except
that, with the prior consent of the Attorney General, the Postal Ser-
vice may, in any such circumstance, employ attorneys by contract or
otherwise to conduct litigation brought by or against the Postal Ser-
vice or its officers or employees in matters affecting the Postal Ser-
vice.
Id. § 409(g)(2) (emphasis added).
Consistent with the Office’s construction of a prior version of this
provision, we conclude that section 409(g)(2) grants the Attorney Gen-
eral discretion to authorize USPS to conduct its own defense of a partic-
ular litigation, independent of the “full plenary authority” that the Attor-
ney General customarily exercises over “all litigation, civil and criminal,
to which the United States, its agencies, or departments, are parties.”
The Attorney General’s Role as Chief Litigator for the United States,
6 Op. O.L.C. 47, 48 (1982) (“Chief Litigator”). That is, we think section
409(g)(2) grants to USPS a conditional independent litigating authority—
USPS may litigate independently of the Attorney General’s direction and
control, but only where the Attorney General has given his “prior con-
sent.”
In the past, we reached the same conclusion in considering a prior ver-
sion of the statute that similarly provided that the “Department of Justice
shall furnish, under section 411 of this title, the Postal Service such legal
representation as it may require, but with the prior consent of the Attor-
ney General the Postal Service may employ attorneys by contract or
otherwise to conduct litigation brought by or against the Postal Service.”
See 39 U.S.C. § 409(d) (1976). We first reached that conclusion in 1976,
in the context of determining whether the Department could be reim-
bursed for expenses used to retain private attorneys to represent certain
158
Potential Litigation Between DOL and USPS
Postal Service employees in connection with a congressional investiga-
tion. The issue arose following advice that the Attorney General had the
authority to employ private attorneys to represent certain government
employees in connection with congressional investigations where the
Department was conducting criminal investigations of the same employ-
ees, and “representation of the individuals by Department attorneys
would present an unacceptable appearance of conflict of interest, and
create a substantial potential of prejudicing effective defense of the civil
cases by required withdrawal of representation in the future.” Memoran-
dum for Glen E. Pommerening, Assistant Attorney General for Admin-
istration, from Antonin Scalia, Assistant Attorney General, Office of
Legal Counsel, Re: Authority for Employment of Outside Legal Counsel
at 1 (Mar. 4, 1976).
We then considered whether the Department could obtain reimburse-
ment from the agencies that employed the individuals for whom private
representation had been provided—one of which was USPS. See Memo-
randum for Glen E. Pommerening, Assistant Attorney General for Ad-
ministration, from Antonin Scalia, Assistant Attorney General, Office of
Legal Counsel, Re: Employment of Outside Legal Counsel—Nature of
Contracts; Reimbursement by Other Agencies (Mar. 15, 1976) (“Con-
tracts and Reimbursement”). Our analysis as to each agency turned on
whether that agency had statutory authority to litigate independently of
the Justice Department. With respect to the Central Intelligence Agency
(“CIA”), for example, we concluded that because “the CIA has no au-
thority to conduct or contract for representation in litigation, it cannot
reimburse the Department for that activity. Or, viewed conversely, the
duty to provide defense counsel for the employees and former employees
of the CIA belongs exclusively to this Department, and must be support-
ed from its funds.” Id. at 13. We reached an analogous conclusion with
respect to reimbursement from the Federal Bureau of Investigation
(“FBI”): “Our examination of the authorization and appropriations stat-
utes of the FBI reveals no express reference to the retention or compensa-
tion of counsel. Accordingly, we find no basis for obtaining reimburse-
ment of defense attorneys’ fees from the Bureau.” Id. at 14.
We reached a different conclusion about USPS reimbursement, howev-
er, opining that under 39 U.S.C. § 409(d) (1976), “the Attorney General
could have given his consent to an arrangement under which the Postal
Service itself provided representation for its employees.” Id. at 10. Be-
159
35 Op. O.L.C. 152 (2011)
cause the Department had instead elected to furnish legal representation to
the Postal Service employees, and because 39 U.S.C. § 411 expressly
authorizes Executive agencies to “furnish property . . . and personal and
nonpersonal service to the Postal Service . . . under such terms and condi-
tions, including reimbursability, as the Postal Service and the head of the
agency concerned shall deem appropriate,” id., we found that there was
“clear” statutory authority for the Postal Service to reimburse the Justice
Department for the costs of representation incurred in civil litigation.
Contracts and Reimbursement at 10.
In 1980, a dispute arose between this Department and USPS about
whether Congress had granted USPS independent litigating authority with
respect to a narrow range of judicial proceedings between USPS and the
Postal Rate Commission. 5 In that context, we again advised that the 1976
version of section 409(d) authorized the Attorney General to allow USPS
to litigate independently of his supervision and control. Although we did
not agree with USPS’s contention that Congress had granted it independ-
ent litigating authority with respect to such suits, we advised that the
Attorney General could put the dispute to rest by “exercis[ing] his prerog-
ative under [section] 409(d) to remove himself from representation by
consenting to representation by outside counsel.” Memorandum for John
H. Shenefield, Associate Attorney General, from Larry A. Hammond,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Repre-
sentation of the Governors of the United States Postal Service at 4 (Sept.
5 In Mail Order Association of America v. United States Postal Service, 986 F.2d 509,
516 (D.C. Cir. 1993), the court of appeals concluded that USPS did have independent
litigating authority with respect to that narrow category of disputes. The court also
discussed in dicta the question of how section 409(d) should be interpreted as a general
matter, suggesting that it “could be construed to give the Department of Justice a sort of
‘right of first refusal’ for Postal Service representation. The Postal Service would be
required first to seek representation from the Department. If the Department declined, it
would be expected . . . to consent to the Postal Service’s self-representation.” Id. at 516.
This suggestion contrasted with the Department’s litigating position, which was that
section 409(d) gave the Department “full discretion to furnish or withhold legal represen-
tation (in effect, to determine what legal representation the Postal Service ‘may require’),
and g[ave] the Attorney General full discretion to grant or withhold consent for the Postal
Service to proceed on its own.” Id. at 515. The court expressly declined to decide “which
is the correct reading of § 409(d) generally,” however, limiting its holding to the narrower
question before it. Id. at 516. Both readings are compatible with our conclusion here that
the Attorney General, at a minimum, has statutory discretion to allow USPS to represent
itself in this litigation.
160
Potential Litigation Between DOL and USPS
24, 1980). Or, as we put it in a related memorandum: “Although the
Department of Justice has litigating authority for the Postal Service, there
is a provision of the Postal Service laws, 39 U.S.C. § 409(d), that empow-
ers [the Attorney General] to consent to the Postal Service’s handling of
its own case in court, either through its General Counsel or through con-
tract.” Memorandum for the Attorney General from Larry A. Hammond,
Deputy Assistant Attorney General, Office of Legal Counsel, Re: Postal
Services Litigation at 1 (Aug. 27, 1980).
We believe our prior opinions correctly understood 39 U.S.C. § 409(d)
(1976) to grant the Attorney General discretion to authorize USPS to
control its own litigation in a particular case, and we adopt the same
construction of its modern successor, 39 U.S.C. § 409(g)(2) (2006). This
conclusion is consonant with the test we have long applied to assess
whether Congress has granted independent litigating authority to an
agency: “In order to come within the ‘as otherwise authorized by law’
exception to the Attorney General’s authority . . . it is necessary that
Congress use language authorizing agencies to employ outside counsel
(or to use their own attorneys) to represent them in court.” Chief Litiga-
tor, 6 Op. O.L.C. at 56–57; see also Case v. Bowles, 327 U.S. 92, 96–97
(1946) (rejecting litigant’s contention that a suit was improperly filed and
litigated by officials outside the Justice Department, noting that the
relevant statutory scheme “specifically empowers the [Emergency Price
Control Act] Administrator to commence actions such as this one and
authorizes attorneys employed by him to represent him in such actions”).
Section 409(g)(2) plainly meets this standard. Provided that the Attor-
ney General has given his “prior consent,” the statute grants USPS ex-
press license to “employ attorneys by contract or otherwise to conduct
litigation brought by or against the Postal Service or its officers or em-
ployees in matters affecting the Postal Service.” 39 U.S.C. § 409(g)(2).
We grant that section 409(g)(2) differs to a degree from more convention-
al grants of independent litigating authority, which typically give an
agency unconditional authority to employ its own attorneys (or private
attorneys) to litigate some or all of its cases. See Chief Litigator, 6 Op.
O.L.C. at 56–57 & nn.12–14 (citing exemplary statutes, such as 29 U.S.C.
§ 154(a), which grants the National Labor Relations Board express au-
thority to appoint attorneys to “appear for and represent the Board in any
case in court”). But we see no basis to believe that Congress lacks the
power to condition an agency’s exercise of independent litigating authori-
161
35 Op. O.L.C. 152 (2011)
ty on a judgment by the Attorney General that such independence would
be appropriate in a particular case. To the contrary, that sort of structure is
consistent with the basic premise that the litigation of the United States is,
as a general matter, “subject to the direction, and within the control of, the
Attorney-General.” The Confiscation Cases, 74 U.S. (7 Wall.) 454, 459
(1868).
B.
You also asked whether the Appointments Clause would preclude the
Attorney General from “consent[ing] to USPS contracting with private
counsel to conduct the litigation on USPS’s behalf” in the case that DOL
has proposed to file. 6 See Opinion Request at 10. We conclude that it
would not.
You explained that your question was prompted by language in a 1990
opinion of this Office entitled Constitutional Limits on “Contracting
Out” Department of Justice Functions under OMB Circular A-76, 14 Op.
O.L.C. 94 (1990). In that opinion, responding to a request by the Justice
Management Division for “general guidance” on limits that the Constitu-
tion may impose on the federal government’s ability to contract out the
performance of certain functions to private entities, id. at 95, we stated
that “the authority to direct litigation on behalf of the United States may
not be vested in persons who are not officers of the United States ap-
pointed in the proper manner under Article II, Section 2, Clause 2 of the
Constitution.” Id. at 100. As you observed, that statement is capable of
being read as standing for the broad proposition that the Appointments
Clause prohibits the Executive from “fully ‘contracting out’ litigation
responsibility to private parties.” Opinion Request at 11. 7
6 The Appointments Clause provides: “[The President] shall nominate, and by and with
the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers
and Consuls, Judges of the supreme Court, and all other Officers of the United States,
whose Appointments are not herein otherwise provided for, and which shall be estab-
lished by Law: but the Congress may by Law vest the Appointment of such inferior
Officers, as they think proper, in the President alone, in the Courts of Law, or in the
Heads of Departments.” U.S. Const. art. II, § 2, cl. 2.
7 At least one other opinion of this Office states this position expressly. See Represen-
tation of the United States Sentencing Commission in Litigation, 12 Op. O.L.C. 18, 26
(1988) (“as a general matter, a government agency cannot constitutionally delegate to a
private party responsibility for the conduct of litigation in the name of the United States
162
Potential Litigation Between DOL and USPS
At least since 1996, however, it has been clear that this Office does not
find the requirements of that clause applicable when U.S. departments and
agencies contract with private attorneys to provide legal representation in
discrete matters. Over time, the Office has cited somewhat different
reasons for reaching that conclusion, but has adhered to it steadfastly.
In 1996, we explained that “[t]he Appointments Clause simply is not
implicated when significant authority is devolved upon non-federal ac-
tors.” See The Constitutional Separation of Powers Between the President
and Congress, 20 Op. O.L.C. 124, 145 (1996). Thus, we concluded that
the “simple assignment of some duties” to private individuals, “even
significant ones, does not by itself pose an Appointments Clause prob-
lem.” Id. at 146. A subsequent opinion of the Office, while questioning
the conclusion that the Appointments Clause never applies to individuals
who are non-federal employees, nonetheless agreed that “‘an engagement
with a gentleman of the bar, whereby, for a valuable consideration, he is
to render his professional services in a given case, is a contract, a bargain,
an agreement, in the legal sense of these terms,’ not an appointment to an
office.” Officers of the United States Within the Meaning of the Appoint-
ments Clause, 31 Op. O.L.C. 73, 113 (2007) (quoting Contracts with
Members of Congress, 2 Op. Att’y Gen. 38, 40 (1826) (referring to con-
tracts “for the service of a lawyer, a physician, or a mail carrier, an army
purveyor, or a turnpike-road maker”)).
Our conclusion that the Appointments Clause does not apply when
federal agencies employ private litigation counsel to handle a particular
matter is supported by significant historical practice. We recognize that
the conduct of litigation on behalf of the federal government is today
concentrated in the Justice Department, as it has been since 1870, and
that federal agencies are barred by statute from employing private litiga-
tion counsel, “[e]xcept as otherwise authorized by law.” 5 U.S.C. § 3106
(2006). But early opinions of the Attorneys General reflect that prior to
the creation of this Department, it was commonplace for federal agencies
to hire private attorneys. See, e.g., Employment of Counsel, 7 Op. Att’y
Gen. 141, 141–42 (1855) (“According to the traditional practice of the
Government, it has belonged to the attributes of any Head of Department
to employ counsel in his discretion for the conduct of legal business
or one of its agencies,” and “may not constitutionally entrust to a private party the formu-
lation and presentation of its views on its own authority to a court”).
163
35 Op. O.L.C. 152 (2011)
arising in his department. The act of February 26th, 1853, for the regula-
tion of fees in the legal business of the Government, expressly recognises
the existence of this power in any Head of Department.”); Bryan’s Case,
10 Op. Att’y Gen. 40, 43 (1861) (“The purpose of this law [authorizing
heads of department to pay fees for legal counsel] is obvious. Legal
controversies often arise in which the Government is concerned; and
although the counsel authorized and required by law to represent the
Government in these controversies is the United States Attorney for the
proper district, it often happens that it is expedient to employ other
counsel in his aid, or in his place. . . . In such cases, the law allows the
head of the department, to which the business belongs, to employ and
pay counsel ‘such sum as may be stipulated or agreed on.’”); Employ-
ment of Counsel by a Department, 12 Op. Att’y Gen. 368 (1868) (affirm-
ing statutory authority of the Secretary of War to employ special counsel
to represent a military officer in a habeas proceeding).
Even after consolidating the vast mass of federal government litigation
in this Department, moreover, Congress has on occasion carved out ex-
ceptions that expressly authorize federal agencies to employ private
counsel in specified circumstances, including for purposes of litigation.
See Chief Litigator, 6 Op. O.L.C. at 56 n.11 (noting authority of the
Secretary of Defense, pursuant to 10 U.S.C. § 1037, to “employ counsel,
and pay counsel fees, court costs, bail, and other expenses incident to the
representation, before the judicial tribunals and administrative agencies of
any foreign nation” of U.S. servicemembers and other specified individu-
als). In view of this longstanding practice, we do not think the Appoint-
ments Clause precludes a federal agency from entering into a contract
creating an ordinary attorney-client relationship with a private attorney to
handle an individual case.
III.
We now turn to the Article III question posed by DOL’s proposal to sue
USPS to enforce section 11(c) of OSHA. Section 2 of that Article “ex-
tends the ‘judicial Power’ of the United States only to ‘Cases’ and ‘Con-
troversies,’” and thus to “cases and controversies of the sort traditionally
amenable to, and resolved by, the judicial process.” Steel Co. v. Citizens
for a Better Env’t, 523 U.S. 83, 102 (1998). A logical and long-accepted
corollary to that rule is that “no person may sue himself,” because adjudi-
cating such a suit would require the court to engage in “the academic
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pastime of rendering judgments in favor of persons against themselves.”
United States v. ICC, 337 U.S. 426, 430 (1949). This Office has conclud-
ed that this general rule applies to the federal government as well, and
accordingly that it limits the authority of an Article III court to resolve
legal disputes that arise between federal agencies. See, e.g., Proposed Tax
Assessment Against the United States Postal Service, 1 Op. O.L.C. 79
(1977) (“Proposed Tax Assessment”) (opining that a dispute between the
Internal Revenue Service (“IRS”) and USPS over federal taxes owed by
USPS would not be justiciable); NRC Enforcement, 13 Op. O.L.C. at 138
(“lawsuits between two federal agencies are not generally justiciable”);
HUD Enforcement, 18 Op. O.L.C. at 106 (same).
As our opinions also reflect, however, the Supreme Court’s decisions in
United States v. ICC and United States v. Nixon, 418 U.S. 683 (1974),
make clear that in certain circumstances, federal courts do have power to
resolve an inter-agency legal dispute. See, e.g., Proposed Tax Assessment,
1 Op. O.L.C. at 80–84; NRC Enforcement, 13 Op. O.L.C. at 138–41. For
example, in United States v. ICC, the Supreme Court allowed a suit by the
United States against an independent agency of the United States, the
Interstate Commerce Commission (“ICC”), to go forward. In fact, owing
to a statutory requirement that the United States be named as a party
defendant in any suit against the ICC, the United States named itself as a
defendant in its petition for relief. 337 U.S. at 429. 8 The Supreme Court
nonetheless found, on the particular facts before it, that the dispute pre-
sented a justiciable controversy. The Court explained that the question of
justiciability did not turn on formalities:
While this case is United States v. United States, et al., it involves
controversies of a type which are traditionally justiciable. The basic
question is whether railroads have illegally exacted sums of money
from the United States. Unless barred by the statute, the Government
is not less entitled than any other shipper to invoke administrative
and judicial protection. To collect the alleged illegal exactions from
the railroads the United States instituted proceedings before the In-
terstate Commerce Commission. In pursuit of the same objective the
Government challenged the legality of the Commission’s action.
8 The district court further noted that both the government’s petition for relief and the
answer filed by the United States had been “signed by the same Assistant Attorney
General.” United States v. ICC, 78 F. Supp. 580, 583 (D.D.C. 1948).
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35 Op. O.L.C. 152 (2011)
This suit therefore is a step in proceedings to settle who is legally
entitled to sums of money, the Government or the railroads. The or-
der if valid would defeat the Government’s claim to that money. But
the Government charged that the order was issued arbitrarily and
without substantial evidence. This charge alone would be enough to
present a justiciable controversy. Consequently, the established prin-
ciple that a person cannot create a justiciable controversy against
himself has no application here.
Id. at 430–31 (citation omitted).
United States v. Nixon also presented, on very different facts, the ques-
tion of the federal courts’ constitutional authority to resolve an “intra-
branch dispute.” 418 U.S. at 693. The United States and the President of
the United States found themselves on opposite sides of a suit, initiated by
President Nixon, which sought to quash a subpoena issued at the request
of a Justice Department Special Prosecutor. In this context, “the Presi-
dent’s counsel argued that the court lacked jurisdiction to issue the sub-
poena because the matter was an intra-branch dispute between a subordi-
nate and superior officer of the Executive Branch,” and accordingly did
not “present a ‘case’ or ‘controversy’ which can be adjudicated in the
federal courts.” Id. at 692. The Supreme Court rejected this argument,
relying in significant part on its decision in United States v. ICC.
The Court first stated that “[t]he mere assertion of a claim of an ‘intra-
branch dispute,’ without more, has never operated to defeat federal
jurisdiction.” United States v. Nixon, 418 U.S. at 693. It then instructed
that “‘courts must look behind names that symbolize the parties to de-
termine whether a justiciable case or controversy is presented.’” Id.
(quoting United States v. ICC, 337 U.S. at 430). The Court concluded
that the issues at stake in the suit, principally “the production or nonpro-
duction of specified evidence deemed by the Special Prosecutor to be
relevant and admissible in a pending criminal case,” were “‘of a type
which are traditionally justiciable.’” Id. at 697 (quoting United States v.
ICC, 337 U.S. at 430). The Court further determined that Article III’s
requirement of “‘concrete adverseness’” was satisfied, because “[t]he
independent Special Prosecutor with his asserted need for the subpoenaed
material in the underlying criminal prosecution is opposed by the Presi-
dent with his steadfast assertion of privilege against disclosure of the
material.” Id. (quoting Baker v. Carr, 369 U.S. 186, 204 (1962)). Finally,
the Court stated that “since the matter is one arising in the regular course
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of a federal criminal prosecution, it is within the traditional scope of Art.
III power.” Id. It therefore concluded that “the fact that both parties are
officers of the Executive Branch cannot be viewed as a barrier to justici-
ability.” Id. 9
Our opinions describe United States v. ICC and Nixon as establishing
that an intra-branch dispute will fall within the judicial power of an Arti-
cle III court where “at a minimum . . . there [is] an issue of the kind
traditionally viewed as justiciable, and also . . . there [is] sufficient ad-
verseness to sharpen the issues.” Proposed Tax Assessment, 1 Op. O.L.C.
at 83. In considering the second prong of this test—adversity of parties—
we have focused our analysis on two factors. First, we have viewed as
relevant whether one of the agencies concerned “has a degree of inde-
pendence from the executive branch,” “like the Special Prosecutor in
Nixon and the regulatory agenc[y] involved in United States v. [ICC].” Id.
Second, we have indicated that there cannot be true adversity unless there
is a nongovernmental real party in interest who has a stake in the outcome
of litigation that is distinct from that of the public as a whole. See id. at
83–84 (concluding that a potential suit between USPS—an independent
agency—and IRS over a tax assessment levied against USPS could not be
adjudicated by an Article III court because there were no private parties
with a distinct and concrete interest in the outcome of the dispute); Ability
of the Environmental Protection Agency to Sue Another Government
Agency, 9 Op. O.L.C. 99, 100 (1985) (advising that Article III “case or
controversy” requirements may be satisfied in an intra-branch dispute
9 Since Nixon, the Supreme Court has resolved several disputes between a traditional
Executive Branch agency and an “independent” agency—the Federal Labor Relations
Authority (“FLRA”). See, e.g., NASA v. FLRA, 527 U.S. 229, 231 (1999) (holding that an
investigator employed by NASA’s Office of Inspector General is a “representative” of
NASA for purposes of a statutory provision conferring a right to union representation
during covered examinations); IRS v. FLRA, 494 U.S. 922, 924 (1990) (reviewing “the
determination of the Federal Labor Relations Authority” that “the Internal Revenue
Service must bargain with the National Treasury Employees Union over a proposed
contract provision”) (abbreviations omitted); Fort Stewart Schs. v. FLRA, 495 U.S. 641,
643 (1990) (reviewing dispute concerning scope of statutory collective bargaining obliga-
tions between schools “owned and operated by the United States Army” and the FLRA);
Bureau of Alcohol, Tobacco & Firearms v. FLRA, 464 U.S. 89, 90–91 (1983) (addressing
challenge by the Bureau of Alcohol, Tobacco and Firearms to FLRA’s construction of
statute that would have required the Bureau to pay certain expenses to employees engaged
in collective bargaining). The Court did not, however, discuss in any of these cases
whether the suit was justiciable.
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35 Op. O.L.C. 152 (2011)
only if “the real party in interest challenging the Executive’s position in
court” is not “an agency of the Executive” (quotations omitted)); NRC
Enforcement, 13 Op. O.L.C. at 141 (concluding that a potential lawsuit
between the Air Force and the Nuclear Regulatory Commission—an
independent agency—would not be justiciable because “the [Nuclear
Regulatory Commission] and the Air Force would be the real parties in
interest in the lawsuit”).
Under this standard, we conclude that a court would have authority un-
der Article III to resolve the proposed suit. As we understand it, DOL’s
claim would be that USPS violated its statutory obligation not to “dis-
charge or in any manner discriminate against any employee because such
employee has filed any complaint or instituted or caused to be instituted
any proceeding under or related to [OSHA].” 29 U.S.C. § 660(c)(1).
Courts routinely resolve claims arising under this and other provisions of
law that protect whistleblowers from retaliatory discharge. Accordingly,
we believe that the suit would involve “an issue of the kind traditionally
viewed as justiciable,” Proposed Tax Assessment, 1 Op. O.L.C. at 83. See
United States v. ICC, 337 U.S. at 431 (finding justiciable the question
whether the ICC’s order had been “issued arbitrarily and without substan-
tial evidence”); United States v. Nixon, 418 U.S. at 696–97 (finding
justiciable the question whether the Special Prosecutor’s subpoena should
be quashed).
We also conclude that this potential lawsuit would satisfy both aspects
of the “concrete adverseness” prong of our standard. First, USPS plainly
has a “degree of independence” from the Executive branch. USPS is an
“independent establishment of the executive branch,” 39 U.S.C. § 201,
and nine of the eleven voting members of its Board of Governors are
subject to removal by the President “only for cause.” See id. § 202(a)(1).
As an independent agency with a tenure-protected governing board, USPS
thus possesses some “degree of independence from the executive branch.”
See generally Buckley v. Valeo, 424 U.S. 1, 133 (1976) (per curiam)
(describing such agencies as “independent of the Executive in their day-
to-day operations”). Second, we think the former USPS employee who
DOL believes was unlawfully terminated would be a “private real party in
interest” in this litigation, because she would be entitled to receive an
individualized remedy for the harm allegedly done to her by USPS if
DOL prevails in the litigation. As the result of a suit brought by DOL, the
district court could enter judgment ordering the “rehiring or reinstatement
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of the employee to [her] former position with back pay.” See 29 U.S.C.
§ 660(c)(2). The district court also has authority under that provision to
“order all appropriate relief,” id., a phrase that courts have interpreted to
encompass both compensatory and punitive damages. See, e.g., Reich v.
Cambridgeport Air Sys., Inc., 26 F.3d 1187, 1190–94 (1st Cir. 1994);
Reich v. Skyline Terrace, Inc., 977 F. Supp. 1141, 1147 (N.D. Okla.
1997). These possible remedies give the former USPS employee the kind
of specific, individualized interest in the outcome of the suit that is gener-
ally viewed as sufficient to make an inter-agency dispute justiciable in an
Article III court. See, e.g., NRC Enforcement, 13 Op. O.L.C. at 140–41
(describing cases involving a private real party in interest). We therefore
conclude that the proposed suit would be justiciable under our traditional
standard.
We acknowledge support in the case law for the view that our tradi-
tional test is too restrictive, specifically that there need not be a “private
real party in interest” in all circumstances for an Article III court to have
the authority to adjudicate an inter-agency dispute. For example, both the
D.C. Circuit and the Eleventh Circuit found inter-agency suits justiciable
without resting their judgments on the presence of a private real party in
interest. See United States v. Fed. Mar. Comm’n, 694 F.2d 793, 810
(D.C. Cir. 1982); Tenn. Valley Auth. v. EPA, 278 F.3d 1184, 1196–98
(11th Cir. 2002). In fact, the D.C. Circuit “[a]ssum[ed] arguendo that the
real parties in interest are the Department [of Justice] and the [Federal
Maritime] Commission,” and concluded, nevertheless, that the suit was
justiciable under Article III because it “raises issues that courts tradition-
ally resolve and the setting assures the concrete adverseness on which
sharpened presentation of the issues is thought to depend.” Fed. Mar.
Comm’n, 694 F.2d at 810. 10 The reasoning of these opinions seems to be
in significant tension with our long-held view that a private real party in
interest must be present if an Article III court is to adjudicate an inter-
10More recently, the concurring opinion in SEC v. FLRA, 568 F.3d 990, 997 (D.C. Cir.
2009) (Kavanaugh, J.), noted the “anomaly” of the fact that “[b]oth the [Securities and
Exchange Commission] and the FLRA are agencies in the Executive Branch, yet one is
suing the other in an Article III court.” Id. Judge Kavanaugh opined that the suit was
within the authority of an Article III court because “this case involves a so-called inde-
pendent agency.” Id. Observing that such agencies “typically operate with some (unde-
fined) degree of substantive autonomy from the President,” he concluded that “an inde-
pendent agency therefore can be sufficiently adverse to a traditional executive agency to
create a justiciable case.” Id.
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35 Op. O.L.C. 152 (2011)
agency suit. But in light of our conclusion that the former USPS employ-
ee would be a private real party in interest in this proposed suit, we need
not consider whether to revisit our view here.
IV.
We conclude that the Attorney General has authority under 39 U.S.C.
§ 409(g)(2) to allow USPS to direct its own defense of this case, that the
exercise of this authority would not violate the Appointments Clause, and
that, if the Attorney General opts to allow USPS to direct its own defense,
there would be no constitutional bar to the adjudication of this dispute by
an Article III court.
VIRGINIA A. SEITZ
Assistant Attorney General
Office of Legal Counsel
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