                                                                   March 1, 1978


78-14      MEMORANDUM OPINION FOR THE
           GENERAL COUNSEL, DEPARTMENT OF
           TRANSPORTATION

           Administrative Law— Agency Authority—
           Payment of Attorneys’ Fees—Greene County
           Planning Board v. Federal Power
           Commission (559 F. (2d) 1227)


   This responds to your request for our opinion whether any authority your
 Department might have to provide com pensation, under appropriate standards
 and procedures, to parties intervening in proceedings before the Department of
Transportation, would be circumscribed by the en banc decision of the Second
Circuit in Greene County Planning Board v. Federal Power Commission, 559
F. (2d) 1227 (1977), cert, denied, 434 U .S. 1086 (1978). For reasons stated
below, it is our opinion that the holding o f Greene County does not preclude
your Department from determining whether it has explicit or implicit statutory
authority to provide compensation in the form o f expert witnesses’ fees,
attorneys’ fees, and other expenses o f parties who intervene in proceedings
before it.
   Although the history o f the Greene County litigation is somewhat complex, a
brief sketch of that history will suffice for present purposes. Party intervenors
in proceedings before the Federal Pow er Commission (FPC), now the Federal
Energy Regulatory Commission (FERC), sought compensation from the FPC
for certain expenses incurred by them in those proceedings. The FPC ultimately
took the position, based on its interpretation of certain provisions of its organic
statute, the Federal Power A c t,1 that it lacked statutory authority to award such
compensation. The Second Circuit, relying at least in part on the interpretation
given by the FPC to its organic statute, held that the FPC lacked authority to
provide the compensation requested.
   The party intervenors in Greene County then petitioned the Supreme Court
for a writ o f certiorari to review the Second Circuit decision. As you may
know, the Solicitor General filed with the Court a brief for the present

  116 U.S.C. §§ 793, 825g, 825h. and 825m(c).'

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 respondent, Federal Energy Regulatory Commission. In that brief, the Solicitor
General took the position that the Second Circuit decision was incorrect and
suggested to the Court that it grant certiorari, vacate the Second Circuit
judgm ent, and remand the case to the Second Circuit for reconsideration in
light of the present position of FERC, that its organic statute does provide
authority for the compensation at issue.
   Because the holding o f the Second Circuit in Greene County involved only a
construction given to the Federal Power Act, 559 F. (2d), at 1238, we think it
clear that no Department or Agency (including your Department) other than,
possibly, FERC is bound by that holding. Nor do we think that the Second
Circuit, in reaching its conclusion regarding the Federal Power Act, announced
a principle o f law broad enough to cover other Departments and Agencies. In
fact, the court appeared to give great weight to the views of the FPC concerning
its authority under the Federal Power Act in reaching its decision. See 559 F.
(2d), at 1236-37, and n. 2 .2
   The Second Circuit could have based its decision on a broader ground; for
example, it could have taken the position that no compensation for expenses
such as attorneys’ fees could be paid absent explicit statutory authority. Had it
done so, its decision would have created doubt as to whether other Departments
and Agencies could construe their respective organic statutes as providing
power to compensate where such authority was not explicit. The Second
Circuit, however, did not do so, thus obviating the difficult question that might
be presented by a broader opinion.3
   We conclude that, notwithstanding the Greene County decision, your
Department is required to interpret its own organic statute and any other
relevant statutory provisions and determine whether Congress has authorized it,
explicitly or implicitly, to provide compensation in proceedings before it.
Assuming it concludes that such power exists, it additionally will have to
determine the standards and procedures under which such compensation may
be provided.
   We would add that we attach no significance to the Supreme C ourt’s denial
of certiorari in the Greene County case. That action did not constitute a decision
on the merits or otherwise address the question which you have raised with us.

                                                                           Jo h n M . H a r m o n
                                                                    Assistant Attorney General
                                                                               Office o f Legal Counsel




   2T his p o in t w as m ade in the d isse n tin g p an el o p in io n o f Ju d g e V an G ra a fe ila n d , w ho w ro te the
m ajo rity en banc o p in io n .
   ’F or e x a m p le , w h e th e r o th e r F ed eral D e p artm e n ts an d A g e n cie s w o u ld h ave to c o n fo rm th e ir
co n d u ct to th e S eco n d C irc u it’s d e c isio n m ig h t its e lf p o se a su b sta n tia l q u estio n .

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