Settlement Authority of the United States in Oil Shale Cases

Settlement Authority of the United States
in Oil Shale Cases

T h e A tto rn e y G e n e ra l has a u th o rity to se ttle cases ev en w h en th e ag en cy c h a rg e d w ith
ad m in isterin g th e u n d erly in g law w o u ld not h av e th at a u th o rity .

In settlin g a case, th e A tto rn e y G e n e ra l is not bou n d by w h a te v e r litigating position the
D e p a rtm e n t o f Ju stice has h e re to fo re taken in th e case, n o r is he b o und by each and
e v e ry sta tu to ry req u irem en t th at C o n g ress m ay h av e im posed upon som e o th e r agency
head in ad m in isterin g th at a g e n c y ’s p ro g ram ; at th e sam e tim e, th e re m ay be som e
fo rm s o f settlem en t th at w o u ld be fo reclo sed , as w h e re the settlem en t w o u ld result in
actio n p lainly at v aria n c e w ith C o n g re ss' intent.

September 4, 1980
M EM ORANDUM OPINION FOR
TH E DEPUTY ASSISTANT ATTORNEY GENERAL,
LA ND A N D NATURAL RESOURCES DIVISION

This is in response to your memorandum inquiring whether “the
United States has authority to settle the outstanding oil shale litigation.”
For the reasons set forth below, our reply is that the Attorney General,
representing the United States, has such authority, but that his exercise
of it must be done with close attention to the specific statutes govern­
ing the activities that form the subject matter of the litigation.
As the ranking legal official of the federal government, the Attorney
General has plenary power and supervision over any litigation to which
the United States is a party, absent an applicable congressional directive
to the contrary. United States v. California, 332 U.S. 19, 27 (1947); FTC
v. Guignon, 390 F.2d 323, 324 (8th Cir. 1968), relying on 28 U.S.C.
§§516 and 519, which respectively reserve the conduct of federal
litigation to the Justice Department under the direction of the Attorney
General, and the supervision of all such litigation to the Attorney
General.
Included within the broad authority of the Attorney General to carry
on litigation is the power to compromise.1 Halbach v. Markham, 106 F.
Supp. 475 (D. N.J. 1952), affd, 207 F.2d 503 (3d Cir. 1953), cert,
denied, 347 U.S. 933 (1954). “This power is in part inherent, appertain­
ing to the Office, and in part derived from various statutes and deci­
sions . . . .” 38 Op. A tt’y Gen. 98, 99 (1934). This formal Attorney

1 T h e w ords “com prom ise” and “settlement** will be used interchangeably in this memorandum.

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General opinion cites numerous supporting opinions of the Attorney
General and judicial precedents going back more than a century. See
also United States v. Newport News Shipbuilding and Dry Dock Co., 571
F.2d 1283, 1287 (4th Cir. 1978), cert, denied, 439 U.S. 875 (1978); Castell
v. United States, 98 F.2d 891 (2d Cir. 1938), cert, denied, 305 U.S. 652
(1938); 38 Op. A tt’y Gen. 124 (1934); and for bedrock authorities see
the Confiscation Cases, 74 U.S. 454, 458 (1868), and United States v. San
Jacinto Tin Co., 125 U.S. 273, 284 (1888).
The 1934 Attorney General’s opinion contains an expansive descrip­
tion of the Department’s authority to compromise cases. The opinion
concludes that the Attorney General possesses authority to settle cases
even when the agency charged with administering the underlying law
would not have that authority. Indeed, the opinion was written as an
elaboration upon an earlier formal opinion in which the Attorney Gen­
eral had held that the Secretary of the Treasury did not possess discre­
tion to compromise income tax cases in the absence of bona fide
disputed questions of facts. 38 Op. A tt’y Gen. 94 (1933). The subse­
quent opinion was written to emphasize that when such cases are
brought to the Department of Justice for litigation, the Attorney Gen­
eral could exercise that very power which was not available to the
Secretary of the Treasury. The scope of the settlement prerogative in
the Attorney General is broadly described:
I have no hesitation in declaring that it is a power
whether attaching to the office or conferred by statute or
executive order, to be exercised with wise discretion and
resorted to only to promote the Government’s best inter­
est or to prevent flagrant injustice, but that it is broad and
plenary may be asserted with equal assurance, and it at­
taches, of course, immediately upon the receipt of a case
in the Department of Justice. . . .
38 Op. A tt’y Gen. at 102.
Subsequent to our receipt of your request, and after we had prepared
an initial response, you advised me that it now appears unlikely that a
settlement along the lines of your memorandum will prove possible.
Given that change of circumstances, it is probably unnecessary to
explore the limits on the Department’s settlement prerogative. Instead,
we offer the following general guideposts. First, as stated above, the
Attorney General’s power is quite- broad and is of long-standing vin­
tage. It is at least sufficiently broad to allow this Department to formu­
late a settlement proposal that differs from whatever litigating posture
we have heretofore taken. Second, where genuine questions of fact
remain (as, for instance, whether adequate assessment work was per­
formed) the Attorney General can exercise his settlement authority
with respect to those questions. On the other hand, it should go with­
out saying that the Attorney General is bound by the duty imposed on
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 the President under Article II of the Constitution to “take care that the
laws be faithfully executed,” and that consequently there may be some
forms of settlement that would be foreclosed, as where the settlement
would result in action plainly at variance with Congress’ intent.
This latter point suggests a subtle issue. On the one hand, it is
reasonably clear that the Attorney General—in the exercise of his
settlement responsibilities—is not bound by each and every statutory
limitation and procedural requirement that Congress may have specifi­
cally imposed upon some other agency head in the administration of
that agency’s programs. For this reason, the two cases cited in your
memorandum— West v. Standard Oil Co., 278 U.S. 200 (1929),2 and
Cameron v. United States, 252 U.S. 450 (1920)— are not controlling.
Those cases deal with congressional requirements imposed on officials
other than the Attorney General, and should not be thought to be
directly applicable to him for the performance of his litigation function.
On the other hand, Congress’ will is surely not irrelevant to the A ttor­
ney General’s discretion. With your approval, we agree that it is sensi­
ble to defer a more detailed consideration of the scope of, and limita­
tions upon, the Attorney General’s power until a precise proposal is
developed.
L arry A. H am m ond
Deputy Assistant Attorney General
Office o f Legal Counsel

2 Because the question you have asked relates d irectly to the authority o f the governm ent to
relinquish title to land held by the U nited States,»cases like the Standard Oil case do highlight the
tension w e perceive in this area o f the law. T h e Suprem e C ourt, after citing well-settled authority for
the proposition that the Secretary o f the Interior has broad authority “ to do justice to ail claim ants
and preserve the rights o f the people o f the U nited States" w ith respect to property, was nonetheless
quick to conclude that this:
broad p o w er o f control and supervision conferred upon the Secretary “does not
clo th e him w ith any discretion to enlarge o r curtail the rights o f the grantee, nor to
substitute his jud g m en t for the will o f C ongress as manifested in the granting act."
278 U.S. at 220. If the S ecretary's au th o rity is so limited, it is reasonable to question w hether the
A tto rn ey G en eral's general litigation supervisory pow ers w ould give him a g reater discretion. As
noted above, if there is a g reater am bit o f discretion, it must be located in C ongress' actions in creating
a centralized litigating departm ent and clothing it w ith overriding authority to settle particular cases.

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