                                                        March 15, 1979


79-17    MEMORANDUM OPINION FOR THE
         ASSISTANT ATTORNEY GENERAL, CIVIL
         RIGHTS DIVISION

         Civil Rights—Busing—Effects of Eagleton-Biden
         Amendments (92 Stat. 1586)—Department of
         Justice Use o f Personnel and Resources of the
         Department of Health, Education, and Welfare in
         Desegregation Litigation


  This responds to your m em orandum o f December 13, 1978, concerning
the applicability o f the Eagleton-Biden Amendment to use by the Civil
Rights Division o f employees and other resources o f the Department of
Health, Education, and Welfare (HEW ).

                       I. Background; Summary

  A.     The Eagleton-Biden Am endm ent is § 209 o f the Department of
Health, Education, and Welfare A ppropriation Act for Fiscal Year 1979,
Pub. L. No. 95-480, 92 Stat. 1586 (1978). Section 209 reads as follows:
     None o f the funds contained in this Act shall be used to require,
     directly or indirectly, the transportation o f any student to a
     school other than the school which is nearest the student’s home,
     except for a student requiring special education, to the school o f­
     fering such special education, in order to comply with title VI of
     the Civil Rights Act o f 1964. For the purpose o f this section an
     indirect requirement o f transportation o f students includes the
    transportation o f students to carry out a plan involving the re­
    organization o f the grade structure o f schools, the pairing of
    schools, or the clustering o f schools, or any com bination o f
    grade restructuring, pairing, or clustering. The prohibition de­
    scribed in this section does not include the establishment of
    magnet schools.
An essentially identical provision was contained in the HEW appropriation

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act for fiscal year 1978,' and similar provisions were included in the ap­
propriation acts for the previous 3 years.
    Your memorandum states that HEW wishes to refer to the Civil Rights
Division, for the bringing o f a lawsuit to enforce Title VI of the Civil
Rights Act o f 1964, the m atter o f the desegregation o f the Chicago public
schools. According to your m em orandum, a suit against the Chicago
school system would considerably overtax the resources o f this D epart­
ment, and HEW has offered to provide the resources needed for the suit.
In light o f the fact that any appropriate remedy would, it appears, cer­
tainly require transporting some students beyond their nearest schools,
you have raised a number o f questions concerning the ability o f this
Department to use HEW resources.
    B.    The basic issue is whether § 209 applies at all to the conduct o f such
litigation. Although the question, which is essentially one o f statutory con­
struction, may be thought by some not to be free from doubt, in our opin­
ion, the statute was not intended to bar H EW ’s cooperation with this De­
partment. Our view, as explained below, is that § 209 restricts only H E W ’s
conduct o f administrative fund-term ination proceedings and that it does
not limit the use o f HEW funds to support a lawsuit brought by this
Department.
    At the outset, however, we should note that there are other limits upon
the ability o f the Department o f Justice to use the resources o f other agen­
cies. Provisions in Titles 5 and 28 o f the United States Code assign to this
Department general responsibility for conducting litigation involving
Federal agencies. With regard to the role o f HEW attorneys in title VI
litigation, those provisions must be considered. Also, quite apart from
§ 209, HEW funds must be used in a manner consistent with the HEW ap­
propriation statute. Within the limits o f these several statutes, we believe
that it would be permissible for this Department to make substantial use o f
HEW employees and resources in connection with title VI litigation, in­
cluding school desegregation cases that may result in student-
transportation orders.

                                     n . Discussion

            A. The Meaning o f the Eagleton-Biden Amendment
   As your m em orandum indicates, the language o f § 209 may be in­
terpreted in various ways. The statutory interpretation that would bar
H EW ’s cooperation can be simply stated: the work o f Government at­
torneys in preparing or bringing a desegregation suit in which the rem­
edy is likely to involve busing is “ indirectly requiring” the transportation
o f students beyond their nearest schools. Yet, the language o f the stat­
ute does not readily lend itself to that construction. Moreover, that con­
struction is not supported by the legislative history. The history o f § 209
makes clear that Congress intended to bar use o f HEW fund-term ination


  ' See § 208 o f P ub. L. No. 95-205, 91 Stat. 1460 (1977).

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 proceedings as means o f requiring busing. It also makes clear that C on­
gress did not intend to interfere either with the ability o f HEW to refer
such cases to the Departm ent o f Justice or with the m anner in which this
 Department conducts the litigation o f those cases. For example, in oppos­
ing Senator B rooke’s am endm ent to delete § 209, Senator Eagleton re­
 ferred to H E W ’s administrative proceeding against the school system of
Kansas City, Missouri, as “ the kind o f situation the Eagleton-Biden
am endment is designed to prevent.” 2 Then he added: “ The amendment
puts HEW on notice that if they want busing in a school district, they are
going to have to get it through the Federal courts.” The same basic view
that § 209 applies only to “ administrative busing” ordered by HEW was
made by Senator B iden.3
    O ur review o f the legislative history reveals no discussion o f the ques­
tion whether HEW personnel can assist the Departm ent o f Justice in
preparing or bringing a title Vl-based lawsuit for desegregation o f a school
system. In our opinion, such assistance is not contrary to the purpose of
§ 209. The legislative history shows that Congress opposed requiring bus­
ing in the context o f HEW administrative proceedings. W hen a matter is
referred to the D epartm ent o f Justice, the context becomes a judicial pro­
ceeding and the G overnm ent’s position is controlled by this Department.
There is no reason to read § 209 as barring HEW from assisting this
Departm ent, even with regard to the student-assignment or busing aspects
o f a lawsuit. The crucial point is that, if a busing requirement results from
litigation, the basis will be a court order or a negotiated settlement, not the
threat o f fund term ination.
   O ur view is supported by the fact that Congress was fully aware o f the
decision regarding the constitutionality o f the virtually identical fiscal year
1978 version o f the Eagleton-Biden Am endm ent. Brown v. Califano, 455
F. Supp. 837 (D .D .C . 1978).4 In rejecting the plaintiff’s view that the pro­
vision was unconstitutional on its face, the District Court stressed the fact
that HEW could enforce title VI by referring matters to this Department.
In its conclusion, the court stated the following:5
      Should further proceedings in this case reveal that the litigation
      option left undisturbed by these provisions cannot, or will not,
      be made into a workable instrument for effecting equal educa­
      tional opportunities, the C ourt will entertain a renewed challenge
      by plaintiffs on an as applied basis * * *. [Emphasis in
      original.]
An interpretation o f § 209 that would prohibit or severely restrict HEW


  1 124 C o n g . R e c . S 16302 (d a ily e d ., S e p t. 27, 1978).
  * 124 C o n g . R e c . S16303 (daily e d ., Sept. 27, 1978).
  * Senator Biden placed the co u rt’s decision in the C o n g r e s s i o n a l R e c o r d . He and Sen­
ators Eagleton and Brooke referred to the decision during the Senate debate on the am end­
ment to delete § 209. 124 C o n g . R e c . S16298 (Senator Brooke), SI6302 (Senator Eagleton),
and S16303-305 (Senator Biden) (daily ed., Sept. 27, 1978).
  ’ 455 F. Supp. at 843.

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assistance to this Departm ent in regard to referred cases might make ap­
plication of the legislation more vulnerable to attack. This is a further
reason for concluding that the proponents o f § 209 did not intend such an
interpretation.
   In sum, it appears to us plain that Congress intended to leave untouched
this D epartm ent’s litigation authority in these cases. It must likewise be
concluded that, had Congress intended to effect a significant alteration in
the usual relationship between this Department and HEW in the handling
o f that litigation, its intent would have been clearly spelled out. We have
found no evidence in the legislative consideration o f H E W ’s appropriation
for fiscal year 1979 to suggest a congressional intent to curtail H E W ’s
usual role o f providing assistance in these cases: W ith that conclusion in
mind, we will turn to a review o f the statutory limitations ordinarily im­
pinging upon interagency cooperation in litigation.

      B. Limits U pon Departm ent o f Justice Use o f HEW Resources
   A primary purpose for creating the Department o f Justice was to cen­
tralize control o f litigation involving the United States or a Federal
agency. This is reflected in 28 U.S.C. § 516, which reads as follows:
      Except as otherwise authorized by law, the conduct o f litigation
      in which the United States, an agency, or officer thereof is a
      party * * *, and securing evidence therefor, is reserved to of­
      ficers o f the Departm ent o f Justice, under the direction o f the
      A ttorney General.
A parallel section, 5 U.S.C. § 3106, provides that, except as otherwise
authorized by law, an executive departm ent “ may not employ an
attorney * * * for the conduct o f [such] litigation * * * or for the
securing o f evidence therefor, but shall refer the m atter to the Departm ent
o f Justice.”
   As a practical m atter, cooperation between attorneys o f this D epart­
ment and agency attorneys is necessary.6 So long as this Departm ent re­
tains control over the conduct o f the litigation, even an extensive role for
attorneys o f other agencies seems consistent with the purposes o f 28
U.S.C. § 516 and 5 U .S.C . § 3106. The large num ber o f agreements be­
tween this Departm ent and our “ client” agencies (most o f which are sum­
marized in the Civil Division’s Practice Manual) attests to the im portance
o f cooperation.
   A related question is allocation, between this Departm ent and an agency
involved in a civil suit, o f the expense o f litigation. Clearly, when one
department is given sole responsibility for a type o f activity, the appropri­
ation of another departm ent may not properly be used to cover the cost of
that activity. See 31 U .S.C . § 628. With respect to litigation, however, the


  ‘ As you probably know, litigation management is the subject o f a study by the President’s
Reorganization Project.
authority o f this Departm ent has never been read as ousting other agencies
from performing a supporting role. Given this long history, and given the
necessity o f cooperation, we think it may be assumed that, ordinarily,
when Congress appropriates funds for an agency general counsel’s office,
Congress intends a portion o f such funds to be used to carry out the
agency’s functions concerning litigation.
   We are not suggesting that this Departm ent could adopt a practice of
charging other agencies, such as HEW , for the cost o f bringing lawsuits.
O ur point is that, in general, the other agencies have the responsibility o f as­
sisting this Departm ent and that agency appropriations may properly be
used for that purpose. C f 39 Comp. Gen. 643 , 646-47 (1960). Regarding
the present m atter, we believe that there is broad latitude regarding the
am ount and types o f assistance that HEW may provide to this Department.
    HEW attorneys and supporting personnel may properly provide factual
material and may also draft interrogatories, pleadings, briefs, and other
papers. HEW employees, whose salaries are paid by HEW , may be de­
tailed to this Departm ent to work on such matters. An HEW attorney,
who has been designated as a special attorney under 28 U .S.C . § 543 or
§ 515(a), may take part in judicial proceedings.
   As a m atter o f policy, in view o f the possibility that the Eagleton-Biden
Amendment may be susceptible to a more prohibitive interpretation, you
may wish to consider whether it might be advisable to limit the role of
HEW employees with respect to the busing-related aspects o f a case. That
is, regarding those issues, an HEW attorney detailed to this Department
might refrain from assuming the lead role in conducting negotiations or
litigation. The likelihood o f successfully defeating a claim o f violation of
§ 209 would be enhanced if the busing-related aspects o f the case were
clearly controlled by a Departm ent o f Justice employee.
   With regard to use o f HEW com puter programmers and com puter time,
there should be much leeway. This kind o f support would seem to be a
proper use o f H EW ’s appropriation.
   There have been situations in which HEW has paid the travel expenses
o f Department o f Justice employees. Ordinarily, however, this type o f ex­
pense is paid from the appropriation o f this Departm ent. The propriety of
accepting travel funds from HEW might well depend upon the particular
circumstances (e.g., whether the travel is for an investigation or for trial).
For example, when HEW makes a referral, it is responsible for performing
at least a preliminary investigation. Thus, if a Departm ent o f Justice
employee were to assist HEW in conducting an HEW investigation, it
would seem proper for HEW to pay his or her expenses and even his or her
salary. In other words, HEW would be purchasing services from this
Departm ent. See § 601 o f the Econom y Act, 31 U .S.C . § 686.
   Your m em orandum describes three hypothetical situations and raises a
num ber o f questions with regard to each o f them. O ur views on most o f
these questions are indicated by the general guidelines set forth above, but
we will respond briefly to the specific issues.

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                         Case 1: Detail o f H E W Personnel

            (A) HEW employees, paid by HEW , could properly be de­
        tailed to your Education Section and could work on cases in­
        volving Eagleton-Biden questions, i.e., busing. An HEW at­
        torney could properly work, in a subsidiary role, on any aspect
        o f such cases. As a policy matter, as noted above, we question
        whether an HEW employee should be the lead attorney regard­
        ing Eagleton-Biden issues.
   A detailed HEW employee could work on cases not involving busing,
assuming the case is related to the responsibilities o f H E W .7
   Because o f our construction o f § 209, our views do not depend upon the
statutory basis o f the case (title IV, title VI, etc.) or the timing o f a referral
by HEW .
            (B) HEW employees, paid by HEW , could properly be de­
        tailed to a Civil Rights division Section other than the Educa­
        tion Section. Their work would not have to relate to title VI, if
        it related to some other responsibility o f H E W .8
   You ask whether this Departm ent could properly “ dem and,” as a con­
dition for accepting a referral o f the Chicago case, that HEW detail a
number o f employees to the Civil Rights Division. This question is more
difficult, and the answer would seem to depend upon the particular facts.
Regarding this kind o f litigation, there is no precise dividing line between
the responsibilities o f this Departm ent and o f the other agency. We can
properly insist that the other agency cooperate and provide substantial
assistance. Still, basic responsibility for conducting the litigation and bear­
ing its expense belongs to this Departm ent. If our funds are not adequate
to permit the bringing o f a large-scale suit, we would ordinarily consider
seeking an additional appropriation. While a greater am ount o f interim,
or short-term, assistance might be appropriate in particular cases, there is
probably a point at which H EW ’s assistance would constitute a circum­
vention on this D epartm ent’s appropriation limitations.
  Obviously, it is difficult to identify the proper line beyond which this De­
partment should not go in demanding assistance from “ client” agencies. If
HEW is unable or unwilling to provide sufficient assistance, we would be
pleased to consider the m atter further in light o f the specific circumstances.

                Case 2: Use, Within HEW, o f H E W Resources

           (A)-(C) HEW personnel and resources could properly be


   ’ Clearly, a suit involving higher education or sex discrimination in education would relate
to the statutory responsibilities o f H EW . A more general—but probably valid—basis for de­
tailing HEW employees would be training, i.e., the benefits o f learning techniques o f in­
vestigating and litigating civil rights cases.
   ■ See footnote 7, supra.

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       used, within HEW , to assemble material regarding any aspect of
       a potential school-desegregation case. Such work could be done
       before or after a referral of the m atter to this Departm ent.
          (D) O ur opinion is the same with regard to preparing litiga­
       tion material, such as pleadings and exhibits. O f course, mate­
       rial o f this type would be subject to review by Departm ent o f
       Justice attorneys.

                        Case 3: Expert Witnesses

   We do not construe § 209 as limiting in any way this D epartm ent’s use
o f expert witnesses. For example, an expert who is an HEW employee
could properly express views concerning student assignment practices and
necessary remedies, including busing. In our opinion, such statements
would not am ount to “ indirectly requiring” busing.

                                  Larry A . H am m ond
                           D eputy Assistant A ttorney General
                                                 Office o f Legal Counsel




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