                                                                    June 6, 1978


78-32      MEMORANDUM OPINION FOR THE
           COMPTROLLER OF THE CURRENCY

           Comptroller of the Currency—Litigation
           Authority (15 U.S.C. § 78u(d))


   This responds to your request for our concurrence in your position that the
Comptroller of the Currency may appear in United States courts by its own
counsel to carry out its functions under the Securities Exchange Act of 1934, 15
U.S.C. § 78a et seq. (Exchange Act). We concur for the reasons outlined
below.
   In 1964, Congress enacted amendments to the Exchange Act which gave
certain powers to the Comptroller with respect to securities of banks over which-
he has jurisdiction. 15 U.S.C. § 781 (i). The sections of the Exchange Act
which the Comptroller is authorized to administer and enforce as to bank
securities include those relating to registration, reports, proxies, and trading by
insiders. 15 U.S.C. §§ 781, m, n(a), n(c), n(d), n(f), and p.
   The amendments vested in the Comptroller “ the powers, functions and
duties” possessed by the Securities and Exchange Commission (SEC) to
administer these Exchange Act provisions as to pertinent bank securities.
Among the powers vested in the SEC to enforce these provisions is the right to
bring actions in the Federal district courts to enjoin violations. 15 U.S.C.
§ 78u(d). Although, as a general rule, the conduct of litigation to which an
agency of the United States is a party is reserved to officers of the Department
of Justice, 28 U.S.C. § 516, it has been held that the SEC has the authority to
bring actions on its own behalf. S.E.C . v. Collier, 76 F. (2d) 939 (2d Cir.
1935); S.E.C. v. Sloan, 535 F. (2d) 679, 681 (2d Cir. 1976), cert, denied, 430
U.S. 966 (1977). Thus, the statute, standing by itself, seems plain enough with
respect to the delegation of litigation authority to the Comptroller.
   It is worth noting, moreover, that this interpretation is clearly supported by
the legislative history. At the time of the amendment the SEC submitted an
explanatory memorandum to Congress stating that “ the Federal banking
agencies . . . would have the power . . . to investigate, institute suits to enjoin,
and forward evidence to the Attorney General from criminal prosecution under
section 21 [ 15 U.S.C. 78u(d)].” [Emphasis added.] Investor Protection, Part 2,

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Hearings Before a Subcommittee o f the House Interstate and Foreign Com­
merce Committee, 88th Cong., 1st and 2d sess. at 1365 (1964). Because the
question you have asked is, in essence, whether litigating authority for bank
securities in connection with the relevant Exchange Act provisions remains
with the SEC or whether it has been delegated to the Comptroller, we consider
the views of the Commission particularly relevant.

                                               Jo h n M . H   arm on

                                           Assistant Attorney General
                                                      Office o f Legal Counsel




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