Authority of Department of Housing and Urban Development to
   Initiate Enforcement Actions Under the Fair Housing Act
            Against Other Executive Branch Agencies

B ec a u se su b stan tial se p a ra tio n o f p o w ers c o n c e rn s w o u ld b e ra ised by c o n stru in g the F a ir H o u sin g A ct
     to a u th o riz e the D e p artm e n t o f H o u sin g a n d U rb an D e v e lo p m e n t to initiate e n fo rc e m e n t p ro c e e d ­
     in g s ag ain st o th e r e x ec u tiv e b ra n c h a g e n c ie s , th e A c t c a n n o t b e so c o n stru e d u n le ss it c o n ta in s an
     e x p re ss sta te m e n t th at C o n g re ss in te n d e d H U D to h a v e su ch a u th o rity           B ec a u se the A c t d o e s not
     c o n ta in su ch an e x p re ss s ta te m e n t, it d o e s n o t g ra n t H U D this a u th o rity


T h e re is no b asis fo r c o n stru in g th e A ct so th a t th e H U D in v e stig a tiv e a n d a d m in is tra tiv e p ro c e ss u n d e r
     the A ct m ay b e d e e m e d a p p lic a b le , b u t th e ju d ic ia l e n fo rc e m e n t p ro c e d u re s d e e m e d in a p p lic a b le

                                                                                                                                May 17, 1994


                                M e m o r a n d u m O p i n io n f o r t h e G e n e r a l C o u n s e l
                                                 D e p a r t m e n t o f A g r ic u l t u r e


    Pursuant to Executive Order No. 12146, 3 C.F.R. 409 (1979) you have asked us
to resolve a dispute between the Department of Agriculture (“USDA”) and the
Department of Housing and Urban Development (“HUD”) regarding “whether a
Federal agency, such as USDA, may be a respondent under the enforcement proc­
ess contained in sections 810-812 and [814] of [the Fair Housing Act, 42 U.S.C.
§§ 3601-3619 (“the Act”)], 42 U.S.C. §§ 3610-3612, 3614.” '
    Applying the standard the Supreme Court has used when a particular interpreta­
tion or application of an Act of Congress would raise separation of powers or feder­
alism concerns, we believe that because substantial separation of powers concerns
would be raised by construing the Act to authorize HUD to initiate enforcement
proceedings against other executive branch agencies, we cannot so construe the
Act unless it contains an express statement that Congress intended HUD to have
such authority. Because the Act does not contain such an express statement, we
conclude that it does not grant HUD this authority. In light of this conclusion, we
do not decide whether such a grant of authority would be constitutional.

                                                             I. B ackground

                     A. Enforcement Procedures under the Fair Housing Act

  The procedures for enforcement of the Act by the government are set forth in
§§ 3610-3614 of title 42. Under § 3610, an aggrieved individual may file a dis­

   1    L etter for W aller D ellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Jam es M ichael
Kelly, A ssociate G eneral C ounsel, U SD A , at 1 (Jan. 6, 1994) ("K elly Letter")

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crimination complaint with HUD, or HUD may file such a complaint on its own
initiative. HUD must then investigate the complaint and engage in conciliation
with respect to it.2 If HUD finds that reasonable cause exists to believe that a dis­
criminatory housing practice has occurred, then HUD issues a charge on behalf of
the complainant.
    Under § 3612, the HUD charge results in either an administrative proceeding
before a HUD administrative law judge (“ALJ”) or, if elected by the complainant
or any respondent, a civil action in federal district court. In the HUD administra­
tive proceeding, the ALJ makes findings of fact and conclusions of law and may
order relief for any discriminatory housing practice, including damages and civil
penalties. Judicial review of the final HUD decision (including any review by the
Secretary) is available in a federal court of appeals. If there is an election for a
civil action instead of the administrative proceeding, the Act provides that the Sec­
retary of HUD “shall authorize” and the Attorney General “shall commence and
maintain” the civil action in federal district court on behalf of the complainant.
The court may award the same relief that is available to private plaintiffs under
section 3613, including injunctive relief and monetary damages.3
    Finally, under § 3614(a), the Attorney General may bring a civil action in fed­
eral district court if she believes that “any person or group of persons is engaged in
a pattern or practice of resistance to the full enjoyment of any of the rights granted
[under the Act], or that any group of persons has been denied any of the rights
granted by [the Act] and such denial raises an issue of general public importance.”
She may also bring a civil action with respect to a breach of a conciliation agree­
ment referred to her by HUD.

                                            B. U S D A ’s Position

   USDA concedes that it is subject to discrimination prohibitions in the Act,
Kelly Letter at 1 (citing 42 U.S.C. §§ 3603, 3608(d)), and that it is required to co­
operate with HUD to further the purposes of the Act, id. at 2 (citing 42 U.S.C.
§ 3608(d), Exec. Order No. 12259). USDA takes the position, however, that it
may not be made be made a respondent in enforcement proceedings brought by
HUD under the Act.

    2 S ectio n 3611 au th o rizes H U D to '‘issue subpoenas and o rder discovery in aid o f investigations [under
§ 3610] and h earin g s [u n d er § 3612] ’ “S u c h subpoenas and discovery may be ordered to the sam e extent
and su b ject to the sam e lim itatio n s as w ould ap p ly if the subpoenas or discovery w ere ordered or served in
aid o f a civil action in the U nited States d istric t court for the district in w hich the investigation is taking
p lace," § 3 6 1 1(a), and crim in al penalties are authorized for failure to com ply w ith the subpoenas o r orders,
§ 3 6 1 1(c)
    3 S ectio n 3613 go v ern s enforcem ent o f th e Act by private parties, but it also provides that the A ttorney
G eneral m ay intervene in a p riv ate action if she certifies that the case '‘is of general public im portance”
(S 3613(e)). T h is O ffic e ’s conclusion that th e Act does not w aive the sovereign im m unity o f federal agen­
cies ag ain st im position o f m o netary relief in private actions under § ?6 1 3 is set forth in a recent opinion to
you. S e e A u th o rity o f U SD A to Award M o n e ta ry R e lie f f o r D iscrim ination, 18 O p. O L C 52 (1994)
(“ M on etary R elief M em o ran d u m ” ).

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   A u thority o f D epartm ent o f H ousing an d Urban D evelopm ent to Initiate E nforcem ent A ctio n s
                 U nder the F air H ousing A ct A gainst O ther E xecutive Branch A gencies


   USDA argues that “the Act does not provide a sufficiently clear and unequivo­
cal waiver of the sovereign immunity of the United States to permit Federal agen­
cies to be subjected to the enforcement procedures of the Act or to pay money
damages as is allowed under the Act in either an administrative or a judicial fo­
rum.” Id. at 2-3. It also argues that “allowing Federal agencies to be respondents
under the Act offends the unitary nature of the Executive Branch by allowing one
Executive agency to use a unilateral compulsory process against another,” id. at 3,
and that if HUD’s invocation of these procedures against USDA resulted in an ac­
tion in court, that “would create the untenable situation of having the Attorney
General representing both the aggrieved person and USDA,” id. at 5. Finally,
USDA argues that such a suit “would fail to constitute a justiciable controversy
under Article III of the Constitution” because “a person may not sue himself and
there would appear to be serious constitutional difficulties with suits between two
officers of the Executive Branch, each serving in his or her official capacity.” Id.

                                        C. H U D ’s Position

   HUD takes the position that “it may issue charges against Federal agencies,
prosecute such claims through administrative proceedings, and have [the Depart­
ment of Justice] prosecute election cases through judicial proceedings.” Letter to
Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Nel­
son A. Diaz, General Counsel, Department of Housing and Urban Development, at
6 (Jan. 26, 1994) (“Diaz Letter”).
   HUD argues that the term “respondent” is defined in the Act “as broadly as pos­
sibly so as to include any ‘person or entity’ without limitation,” Diaz Letter at 1,
and that both the Act and the Administrative Procedure Act (the “APA”), 5 U.S.C.
§§ 701-706, provide a sufficient waiver of sovereign immunity for actions against
federal agencies, id. at 1-3. HUD rejects USDA’s “unitary Executive” argument
and notes that “there exists precedent for allowing one Executive agency to sue
another” and in any event an enforcement action under the Act “is not a contro­
versy solely between two Federal agencies, but in addition, involves a controversy
between the USDA and an individual complainant.” Id. at 4-5. HUD’s concluding
argument is that

        [A]ggressive enforcement of civil rights statutes requires that
        [HUD] proceed wherever reasonable cause exists to believe that a
        violation has occurred. [HUD’s] mandate from Congress is to en­
        force fair housing. Congress gave no indication either in the statute
        or legislative history that it intended that [HUD] make a special ex­
        ception for Federal agency respondents that would deprive persons
        aggrieved by Governmental discrimination to the right to have their


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          claim prosecuted in a fair and impartial manner through the proce­
          dures established in the Act.

Id. at 6.

                                                   II. Analysis

    The initial question presented is whether the Act’s government enforcement
scheme may be construed to apply to executive branch agencies as a general mat­
ter. If we conclude that it may not be, then there is no need to resolve the Article II
and Article III constitutional issues raised by USDA, although it will be necessary
to determine whether the Act may be construed in such a way that only certain as­
pects of the scheme that may raise less of a constitutional problem may found ap­
plicable. We conclude that neither construction is permissible.4

                        A. W hether the A c t’s Enforcem ent Scheme Applies to
                                        Executive Branch Agencies

   Relying on the Act’s definition of “respondent” as meaning “person” or
“entity,” 42 U.S.C. § 3602(n), HUD argues that “Congress gave no indication ei­
ther in the statute or legislative history that it intended that [HUD] make a special
exception for Federal agency respondents . . . .” Diaz Letter at 6.
   We do not believe that HUD is correct that Congress’s silence in the context of
a broad definition of “respondent” justifies the conclusion that Congress intended
that executive branch agencies could be made respondents. In the course of con­
sidering whether the APA applies to the President, the Supreme Court made a fac­
tual statement that was similar to HU D ’s statement about the Fair Housing Act:
“The President is not explicitly excluded from the APA’s purview, but he is not
explicitly included, either.” Franklin v. Massachusetts, 505 U.S. 788, 800 (1992).
Because of the separation of powers concerns that would arise from a conclusion
that the APA applies to the President, the Court applied an “express statement”
standard and concluded that the President is not covered by the APA:

            Out of respect for the separation of powers and the unique constitu­
            tional position of the President, we find that textual silence is not
            enough to subject the President to the provisions of the APA. We
            would require an express statement by Congress before assuming it

   4    B ecau se the d isp u te p resen ted tr us is b e tw ee n tw o ex ecu tive branch agencies fully under the supervi-
sion o f the P resid en t, there is no need to ad d ress w hether the A ct authorizes HUD to initiate enforcem ent
p roceed in g s a g ain st an in d ep en d en t agency In addition, because o f our conclusion that the A ct’s g o v e rn ­
m ent e n fo rc e m e n t sch em e does not apply to e x ecu tiv e branch agencies, there is no need to address the sover­
eign im m u n ity issue raised by U SD A That is su e w ould only arise if the ju d ic ia l enforcem ent aspect o f the
en fo rcem en t sch em e w ere found applicable.

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     A u thority o f D epartm ent o f H ousing a n d Urban D evelopm ent to Initiate E nforcem ent A ctions
                   U nder the F air H ousing A ct A gainst O ther E xecutive Branch A gencies


          intended the President’s performance of his statutory duties to be
          reviewed for abuse of discretion. As the APA does not expressly
          allow review of the President’s actions, we must presume that his
          actions are not subject to its requirements.

Id. at 800-01.5 The Supreme Court’s use of an “express statement” standard in
Franklin represented an example of the Court’s traditional

          reluctance to decide constitutional issues[,] [which] is especially
          great where, as here, they concern the relative powers of coordinate
          branches of government. Hence, [the Court is] loath to conclude
          that Congress intended to press ahead into dangerous constitutional
          thickets in the absence of firm evidence that it courted those perils.

Public Citizen v. Department o f Justice, 491 U.S. 440, 466 (1989) (construing
Federal Advisory Committee Act not to apply to Justice Department’s consulta­
tions with American Bar Association regarding judicial candidates).6
    We believe that an “express statement” requirement is necessary in the present
context, for the same reasons one was applied in Franklin and the federalism cases
cited above. Substantial separation of powers concerns would arise if the Fair
Housing Act were construed to authorize HUD to initiate enforcement proceedings
against other executive branch agencies. The concerns relate to both the Presi­
dent’s authority under Article II of the Constitution to supervise and direct execu­
tive branch agencies and the Article III limitation that the jurisdiction of the federal
courts extends only to actual cases and controversies. These concerns were suc­
cinctly summarized by President Reagan in his statement vetoing legislation con­
taining a provision that would have authorized the Special Counsel of the Merit
Systems Protection Board to litigate against executive branch agencies:


     3      C f M onetary R elief M em orandum , 18 O p. O .L C at 54-55 (S uprem e C ourt requires an "unequivocal
e x p re ssio n '’ o f C ongressional intent to w aive the sovereign im m unity o f the U nited States or to abrogate the
E leventh A m endm ent im m unity o f the States)
     6      T h e Suprem e C ourt also applies an “express statem en t” o r “clear statem en t” requirem ent w hen a par­
ticular construction o f a statute w ould raise federalism concerns.
         [A n ] ordinary rule o f statutory construction [is] that if C ongress intends to alter the “usual c o n ­
         stitutional balance betw een the States and the Federal G o v ern m ent,” it m ust make its intention to
         d o so “ unm istakably clear in the language o f the statute ” A ta sc a d e ro Stale H osp ita l v. Scanlon,
         4 7 3 U.S. 234, 242 (1985)           . was an E leventh A m endm ent case, but a sim ilar approach is ap­
         p lied in other contexts C ongress should m ake its intention “clear and m anifest” if it intends to
         pre-em pt the historic pow ers o f the States, R ice v Santa F e E leva to r C orp ,3 3 1 U S . 218, 230
         (1947), or if it intends to im pose a condition on the grant of federal m oneys, Pennhurst State
         S c h o o l and H o sp ita l v H alderm an, 451 U.S 1, 16 (1 9 8 1 ), South D akota v. D ole, 483 U.S 203,
         207 (1987)
W ill v M ichigan D ept, o f State Police, 491 U.S. 58, 65 (1989) S ee also G regory v A sh c ro ft, 501 U S. 452,
460-64 ( 1 9 9 1) (applying “plain statem en t” standard and holding that A ge D iscrim ination in E m ploym ent Act
does not apply to state judges)

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                                      O pinions o f the O ffice o f L eg a l C ounsel


           Implementation of this provision would place two Executive branch
           agencies before a Federal court to resolve a dispute between them.
           The litigation of intra-Executive branch disputes conflicts with the
           constitutional grant of the Executive power to the President, which
           includes the authority to supervise and resolve disputes between his
           subordinates. In addition, permitting the Executive branch to liti­
           gate against itself conflicts with constitutional limitations on the ex­
           ercise of the judicial power o f the United States to actual cases or
           controversies between parties with concretely adverse interests.

Memorandum of Disapproval on a Bill Concerning Whistleblower Protection, Pub.
Papers o f Ronald Reagan 1391, 1392 (Oct. 26, 1988).
    As USDA indicated in its submission for this dispute, see Kelly Letter at 4-6,
this Office has discussed in other contexts the separation of powers concerns that it
raises. With respect to the Article III issue, this Office has consistently said
that “lawsuits between two federal agencies are not generally justiciable.” Nuclear
Regulatory C om m ission’s Imposition o f Civil Penalties on the Air Force, 13 Op.
O.L.C. 131, 138 (1989) (citing P roposed Tax Assessment Against the United
States P ostal Service, 1 Op. O.L.C. 79 (1977)). We have reasoned that federal
courts may adjudicate only actual cases and controversies, that a lawsuit involving
the same person as both plaintiff and defendant does not constitute an actual con­
troversy, and that this principle applies to suits between two agencies of the execu­
tive branch. See 13 Op. O.L.C. at 138-39.7 With respect to Article II, we have
indicated that construing a statute to authorize an executive branch agency to ob­
tain judicial resolution of a dispute with another executive branch agency impli­
cates “the President’s authority under Article II of the Constitution to supervise his
subordinates and resolve disputes among them.” INS Review o f Final Order in
Employer Sanctions Cases, 13 Op. O.L.C. 370, 371 (1989) (citing Myers v. United
States, 272 U.S. 52, 135 (1926)).
   The foregoing separation of powers concerns are the essential backdrop for our
analysis of whether the Fair Housing Act authorizes HUD to initiate enforcement
proceedings against other executive branch agencies. Like the Supreme Court, we

    7      O u r o p in io n s have carefu lly distinguished th e reported cases in w hich executive agencies w ere nom i-
nally bo th p la in tiff and defen d an t In all o f th e se cases, w e h ave concluded, “one o f the executive agencies is
not the ‘real p artly ] in in te re st’ b u t simply a stan d -in for p riv ate interests.” 13 O p O L C at 139 (citing I
Op. O .L .C at 81). H U D asserts th a t an action u n d e r the A ct on b ehalf o f a private com plainant falls w ithin
the ex cep tio n w here one o f the agencies is not th e real party in interest D iaz Letter at 5. A lthough we read­
ily c o n ce d e lhat the private com plainant is o n e o f the parties in interest, the issue is not as sim ple as HUD
suggests becau se the A ttorney G eneral, in b rin g in g the action upon a referral from HUD, w ould also be
represen tin g g o v ern m en t in terests Thus, this D ep artm en t and H U D m ight also properly be view ed as parties
in in te re st and un d er th is view c o u ld not be c h arac te riz e d as m ere “stand-ins” for the com plainant Indeed,
H U D ’s su b m issio n m akes this very point* “T h is is not a c o n tro v ersy so lely betw een tw o F ederal agencies,
but in a d d itio n , involves a co n tro v ersy betw een the USDA and an individual com plainant ” Id (em phasis
added) S e e g e n e r a lly , A hiU tx o j th e E n viro n m en ta l P rotection A g ency to Sue A n o th er G overnm ent Agency,
9 O p. O L.C 9 9 (1 9 8 5 ) (rev iew in g cases on “ re a l party in in te re st” issue)

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    Authority o f D epartm ent o f H ousing and Urban D evelopm ent to Initiate E nforcem ent A ctions
                Under the F air H ousing A ct A gainst O ther Executive Branch A gencies


are “loath to conclude that Congress intended to press ahead into dangerous con­
stitutional thickets in the absence of firm evidence that it courted those perils.”
Public Citizen v. Department o f Justice, 491 U.S. at 466.
    Nothing in the text of the Act indicates that Congress contemplated enforcement
actions against executive branch agencies, which would involve (in the administra­
tive proceeding) a contest between HUD and a respondent agency and (in any judi­
cial proceeding) a contest between this Department and the respondent agency,
which would be entitled to be represented by this Department. Indeed, we are in­
clined to agree with USDA that, in light of the Act’s various express references to
the United States and the federal government, see, e.g., 42 U.S.C. §§ 3603(a),
3608(d), 3612(p), 3613(c)(2), 3614(d)(2), Congress’s “failure to include the
United States in the definition of respondent [42 U.S.C. § 3602(n)] — a term used
repeatedly throughout the statutory description of the enforcement mechanism —
evinces an intent that Federal agencies are not subject to the administrative proce­
dure.” Kelly Letter at 3. In any event, “no purpose to alter the President’s usual
superintendent role is evident from the text of the statute.” Franklin v. M assachu­
setts, 505 U.S. at 800.8
    Because initiating statutory enforcement proceedings that could result in judicial
resolution of disputes between HUD and respondent executive branch agencies
would necessarily “prevent[] [the President] from exercising his accustomed su­
pervisory powers over his executive officers” (id.), and raise substantial justicia­
bility questions if litigation ensued, we believe that the “express statement”
standard used by the Supreme Court in Franklin and other cases applies here. We
conclude in the absence of such an express statement in the Act that the Act does
not authorize enforcement actions against executive branch agencies.

                    B.        W hether Non-Judicial Aspects o f the A c t’s
               Enforcem ent Scheme Apply to Executive Branch Agencies

   The foregoing discussion makes it clear that the most constitutionally problem­
atic aspect of applying the Act’s government enforcement scheme to executive
branch agencies is that such an interpretation might result in judicial rather than
Presidential resolution of inter-agency disputes. We therefore consider now
whether the Act may be construed so that the HUD investigative and administrative
process may be deemed applicable, but the judicial enforcement procedures
deemed inapplicable.
   The executive branch, which is constitutionally charged with enforcing the Act,
may enjoy somewhat greater latitude to construe a statute to avoid constitutional

   8    N or does the A c t's legislative history suggest in any w ay an intent to authorize H U D to initiate enforce-
m ent proceedings against executive branch agencies. As w ith the statutory text, the legislative history sim ­
ply speaks o f “respondents" w hen it lays out the enforcem ent procedures           See H .R Rep N o 100-711
(1988), rep rin ted in 1988 U S C C A N . 2 1 7 3

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difficulties than does a court. In this instance, however, while construing the Act
to remove the courts from any role in HUD’s enforcement against other executive
branch agencies would reduce the constitutional problem, it would not eliminate it.
Such a construction would remove the Article III “case or controversy” issue, but it
would merely substitute one interference with the President’s Article II authority to
supervise and guide the executive branch for another: although no judicial role
would threaten the President’s ability to resolve an intra-executive branch dispute,
the Act as construed would mandate a dispute resolution mechanism within the
executive branch. This Department has long objected on separation of powers
grounds to congressional micromanagement of executive branch decisionmaking.
The manner and method of resolving disputes within the executive branch should
be determined by the President, not by Congress.
   Moreover, even if there were no constitutional difficulty presented by a con­
struction of the Act that authorized HUD to bring enforcement proceedings against
executive branch agencies so long as resolution of the dispute would remain within
the executive branch, we do not believe that such a construction would be permis­
sible in this instance because it would amount to a rewrite rather than a construc­
tion of the statute. See generally Eubanks v. Wilkinson, 937 F.2d 1118 (6th Cir.
1991) (discussing distinction between construing and rewriting a statute). To read
out of the Act’s government enforcement scheme the provisions authorizing judi­
cial review of final HUD administrative action and authorizing complainants and
respondents to elect judicial resolution and the Attorney General to bring enforce­
ment actions would “create a program quite different from the one the legislature
actually adopted,” which is the mark of illegitimate rewriting. Sloan v. Lemon, 413
U.S. 825, 834 (1973). Nothing in the text or legislative history of the Act provides
us any indication of a congressional intent that would serve as a basis for us to
even consider such an exercise.

                                    III. Conclusion

   Because of the absence of an express statement in the Fair Housing Act author­
izing HUD to initiate enforcement proceedings against other executive branch
agencies under the Act, we conclude that the Act does not grant such authority to
HUD. We find no basis for construing the Act to eliminate judicial resolution of
intra-executive branch disputes while retaining the statutory administrative mecha­
nism.


                                                       WALTER DELLINGER
                                                      Assistant Attorney General
                                                       Office o f Legal Counsel



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