             Reimbursement of the Department of Justice
                for Providing Legal Assistance to the
              Department of Health and Human Services

The Department o f Justice may be legally reimbursed by the Department of Health and Human
  Services (HHS) for attorney services provided pursuant to the Economy Act, through the
  employment o f additional attorneys in the Office o f the United States Attorney, to assist in the
  defense of HHS against claims filed under the Social Security Act in federal district court.

Attorneys employed in that capacity using HHS funds may not “conduct” litigation, but may only
   “assist” in litigation, because the Justice Department has the exclusive obligation and author­
   ity to conduct litigation on behalf of the United States and HHS has no independent litigation
   authority.

In order to justify the foregoing arrangements under the Economy Act, HHS must demonstrate
   that it is more economical or efficient to purchase such services from the Department o f
   Justice than to provide the services itself.

                                                                                     September 3, 1985

                     M   em o ran d um       O   p in io n f o r t h e   D ir e c t o r ,
               E x e c u t iv e O   f f ic e f o r   U   n it e d   States Attorneys


                              I. Background and Summary

   This memorandum responds to your request for our opinion whether the
Executive Office for United States Attorneys (EOUSA) has authority to accept
reimbursement from the Department of Health and Human Services (HHS) for
funds used to employ attorneys in the Office of the United States Attorney for
the District of New Jersey to defend Social Security disability claims. As we
understand the facts set out in your request, a recently promulgated local rule in
the United States District Court for the District of New Jersey regarding
procedures to be followed in resolving Social Security disability claims has
imposed additional burdens on those who defend against such claims on behalf
of the United States Government. HHS has funds available to meet this addi­
tional workload but, because of a workyear ceiling, is unable to hire additional
employees to aid in the defense of these claims. On the other hand, the United
States Attorney for the District of New Jersey has unfunded workyears for
attorneys and support positions, but is not in a position to fund the positions.
Therefore it is proposed that the EOUSA enter into an agreement with HHS,
pursuant to 31 U.S.C. § 1535 (the Economy Act), to furnish HHS attorney and
                                                     81
support personnel. HHS would in turn reimburse EOUSA for the personnel
service provided.
   Our conclusions as to the legality of this arrangement can be summarized as
follows. It is proper for the Department to receive payment from HHS pursuant
to the Economy Act for attorney services and to use such funds to employ
additional attorneys for Social Security disability litigation so long as certain
conditions are met. First, HHS m ust have available funds that HHS itself could
use to perform legal work in Social Security disability litigation. Second, the
attorneys hired with HHS funds cannot ordinarily “conduct” litigation but only
assist in the conduct o f litigation, because the Justice Department has the
exclusive obligation and authority to conduct litigation on behalf of the United
States and HHS has no independent litigation authority. Accordingly, the tasks
o f the attorneys hired with HHS funds must be limited to those that HHS
attorneys could ordinarily perform. Third, HHS must demonstrate that it is
more economical or efficient to purchase such personnel services from the
Department o f Justice than to provide the services itself.

                                   HI. Analysis

A. Requirement that HHS Have Funds Available

  The Economy Act provides:

       The head of an agency o r major organizational unit within an
       agency may place an order with a major organizational unit
       within the same agency o r another agency for goods or services
       if (1) amounts are available; (2) the head of the ordering agency
       or unit decides the order is in the best interest of the United
       States Government; (3) the agency or unit to fill the order is able
       to provide the ordered goods or services; and (4) the head of the
       agency decides ordered goods or services cannot be provided as
       conveniently or cheaply by a commercial enterprise.

31 U.S.C. § 1535(a). The agency ordering the services must reimburse the
agency providing the services. Id. § 1535(c).
   The first requisite o f the Economy Act is that the agency purchasing the
service have “amounts . . . available” for their purchase. In this case, the
requirem ent means that HHS m ust have funds that it could use to perform legal
work in Social Security disability litigation. We state this requirement as a
condition because we have not been informed whether HHS has funds which it
could use specifically for the legal work in Social Security disability litigation,
although we have been informed that HHS generally has funds available. A
close review o f H H S’s appropriation should be undertaken to ascertain the
precise limits on the funds with which it proposes to purchase legal personnel
services from the Department o f Justice.
                                        82
B. Restrictions on Attorneys H ired with HHS Funds

   The attorneys hired with HHS funds must not perform tasks that are statuto­
rily reserved to the Department of Justice. This limitation is a direct conse­
quence of a longstanding interpretation of the Economy Act. As the Comptrol­
ler General recently reiterated: “The Economy Act does not authorize a Federal
agency to reimburse another agency for services which the latter is required by
law to provide.” 61 Comp. Gen. 419,421 (1982). The interpretation is required
in order to prevent agencies from agreeing to reallocate funds between them­
selves in circumvention of the appropriations process.1Therefore, the attorneys
hired with HHS funds cannot ordinarily provide services which the Department
of Justice is obligated by law to provide.
   The Department’s exclusive litigation authority is codified in 28 U.S.C.
§ 516, which reads as follows: “Except as otherwise authorized by law, the
conduct of litigation in which the United States, an agency or an officer thereof
is a party . . . is reserved to officers o f the Department of Justice, under the
direction of the Attorney General.” A parallel section, 5 U.S.C. § 3106, pro­
vides that except as otherwise authorized by law, an executive department
“may not employ an attorney . . . for the conduct of litigation in which the
United States, an agency, or employee thereof is a party . . . but shall refer the
matter to the Department of Justice.” HHS seems to have no countervailing
grant of authority that would permit it to conduct Social Security disability
litigation itself.
   Despite the Department’s exclusive authority to conduct litigation, substan­
tial assistance is received as a matter of course from the attorneys of an agency
involved in a lawsuit. As an opinion of this Office previously recognized:
“Depending upon the nature of a case, this Department may call upon agency
attorneys not only to provide factual material but also to draft pleadings, briefs
and other papers. At times, in conjunction with attorneys of this Department,
agency attorneys take part in trials and court proceedings.” “Department of
Justice — Transfer of Funds from Another Agency — Payment for Attorney
Services — Economy Act (31 U.S.C. § 686),” 2 Op. O.L.C. 302, 303 (1978)
(footnote omitted). The Department of Justice has officially taken the position
that so long as this Department retains control over the conduct o f litigation,
such cooperation is consistent with 28 U.S.C. § 516 and 5 U.S.C. § 3106. Id.
Because HHS attorneys are permitted to assist the Department of Justice in the
defense of Social Security disability claims, HHS can, pursuant to the Economy
Act, provide funds to the Department of Justice to hire attorneys to assist in the
defense if HHS has funds available for such legal work. Because the Depart-
  1As the C om ptroller G eneral has stated:
     A contrary interpretation w ould com prom ise the basic integrity of the appropriations process
     itself. U nder the doctrine o f separation o f pow ers. C ongress, and C ongress alone has the “ power
     o f the purse.” W hen C ongress m akes an appropriation, it also establishes an authorized program
     level. To perm it an agency to operate beyond the level that it can finance under its appropriation
     with funds derived from another source would be a usurpation o f the congressional prerogative.
Id.

                                                      83
ment of Justice has the exclusive obligation to conduct litigation, the attorneys
hired with HHS funds must refrain from exercising operational control over the
defense o f Social Security disability claims.
   W e realize that the line between conducting litigation and assisting in the
conduct o f litigation will be difficult to draw precisely. As a practical matter,
the range of assistance that attorneys hired with HHS funds can provide is quite
broad. They may draft pleadings, briefs, and other papers, and in conjunction
with attorneys hired by the Department of Justice, take part in court proceed­
ings. Attorneys hired with HHS funds, however, may not make final decisions
as to the contents of briefs or oral argument. They must be at all times under the
supervision o f attorneys hired with funds from the appropriation for the De­
partm ent of Justice. Final responsibility for litigation decisions, both strategic
and tactical, must rest with these latter attorneys.
   EOUSA has requested that no limitations be imposed on the activities or
authority o f attorneys hired with HHS funds. In support of this request, EOUSA
has submitted certain materials that suggest that HHS attorneys have been
exercising d e fa c to control over the conduct of Social Security disabilities
claim s.2 The Department of Justice, however, has consistently required an
explicit congressional authorization or appropriation before it will infer that its
exclusive authority has been derogated.3 None of these materials constitutes
such an explicit authorization or appropriation.4 Therefore, in order to prevent
both the circumvention of Congress’ power of appropriation and the erosion of
this Departm ent’s exclusive authority to conduct litigation on behalf of the
United States, we continue to maintain that attorneys hired with HHS funds must
ordinarily assist rather than actually conduct Social Security disability litigation.

   2 E O U SA has provided us w ith memoranda that suggest that over the years the D epartm ent o f Justice has
conferred increasing authority o n HHS atto rn ey s in Social Security disability cases. In addition, EOUSA
notes that H H S’s budget request for FY 1984 sought appropriations for an additional nine positions to meet
increased litigation w orkloads, including an increase in the num ber o f cases. The increased case w orkload
resulted from several sources, including the Social Security D isability A m endm ents o f 1980.
   W e h ave not been asked and we do not o p in e on the legality o f any de fa c to delegation to HHS o f litigation
authority in Social S ecurity disability cases. W e note, how ever, that in the past it has been the position o f the
D epartm ent o f Ju stice that the law requires attorneys not em ployed by the D epartm ent, including those
em ployed by o th er agencies in the Executive Branch, to be appointed as special attorneys in the Department
before they m ay conduct litigation for w h ich the D epartm ent is responsible. See generally 28 U.S.C.
§§ 515(a), 543 (authorizing the Attorney G eneral to appoint special attorneys)
   3 See M em orandum fo r G len E. Pomm erening, A ssistant A ttorney G eneral for A dm inistration from Antonin
S calia, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel 4 (M ar. 15, 1976) (“ [T]he D epartm ent has
c o n sisten tly interpreted [28 U.S.C. § 516 an d 5 U.S.C. § 3106] as requiring the conferral o f litigation
autho rity upon an agency o th er than the D epartm ent o r the appropriation of funds to contract for such
litigatio n to be specific and explicit.”) (footnote om itted).
   4 Even if the D epartm ent o f Justice m em oranda could be construed to suggest that the D epartm ent has
system atically delegated HHS de facto au th o rity over litigation, such informal delegation, unratified by
C ongress, d oes not lim it the Department’s statu to ry m andate. Even if it w ere possible to infer from H H S’s FY
 1984 bu d g et request that HHS was asking fo r an appropriation to control the defense of Social Security
d isab ility cases, H H S’s request does not rep resen t the explicit congressional authorization or appropriation
that the D epartm ent o f Justice itself has req u ired before it w ill yield its exclusive authority and obligation to
c onduct litig atio n on b e h alf o f the U nite States. W e have been unable to find any legislative history
suggesting that C ongress view ed its FY 1984 appropriation to HHS as changing the traditional relationship of
the D epartm ent to other agencies in litigation matters.

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C. Requirement that HHS Make Efficient Use o f Funds

   The purpose of the Economy Act is to promote efficiency and economy in
government. Therefore, in order to justify invocation of the Act, it must be
demonstrated that HHS’s use of its funds to hire Department of Justice attor­
neys to assist in the defense of Social Security claims is more efficient than
HHS’s use of the funds to provide such services itself.
   As we understand the facts, HHS has reached its employment ceiling.
Accordingly, HHS is unable to hire more attorneys to assist in Social Security
disability litigation. Assuming that the addition of attorneys is seen as the most
efficient use of HHS’s resources in response to the new rules governing Social
Security disability cases in the United States District Court for the District of
New Jersey, the hiring of Department of Justice attorneys seems justified as
HHS’s most efficient course of action in view of HHS’s employment ceiling.5
Thus, on the basis of the facts related to us, we believe that HHS’s use of funds
to hire Department of Justice attorneys to provide litigation assistance does
comport with the purposes o f the Economy Act.
   We conclude that so long as HHS has funds available for legal work on
Social Security disability litigation, HHS may use these funds to reimburse the
Department of Justice for hiring additional attorneys to assist in the conduct of
Social Security disability litigation, subject to the other considerations and
requirements discussed in this memorandum.

                                                                   Ra lph W . T arr
                                                         Acting Assistant Attorney General
                                                              Office o f Legal Counsel




  5 We assum e in this analysis that the em ploym ent ceiling preventing HHS from hiring additional attorneys
has been established by the O ffice o f M anagem ent and Budget. See OMB C ircular No. A-64 (1980). If the
em ploym ent ceiling was set by C ongress, it is possible that the arrangem ent betw een HHS and EOUSA could
be seen to contravene Congress* intent in establishing that ceiling.

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