Exhibit 30: Babcock Letter of February 7, 1978 Department of Justice FEB 7 1978 ASSISTANT ATTORNEY GENERAL CIVIL DIVISION Honorable James Abourezk Chairman, Subcommittee on Administrative Practice and Procedure Committee on the Judiciary Washington, D.C. 20510 Dear Mr.Chairman: In response to your letter dated December 22, 1977, we have transmitted to you on January 26, 1978, by hand-delivery, a list of pending cases being handled by the Civil Division which involve claims by the plaintiffs' of tortious violations of their constitutional rights. Pursuant to our prior understanding, the list is limited to cases involving alleged conduct of a non-violent nature. I wish to emphasize that the list was compiled solely on the basis of the claims made in the various complaints and the inclusion of a particular case on the list indicates neither our concurrence that the allegations state a claim for violation of constitutional rights nor an opinion on our part that the allegations have any basis in fact. You should also be aware that the list was compiled on the basis of the personal knowledge of Civil Division attorneys since, as we have previously explained, a systematic search of our files for such cases would be impracticable. Very truly yours, Barbara Allen Pakak BARBARA ALLEN BABCOCK REVOLUTION 1/ See exhibit 60 at p. 944. Exhibit 36: Babcock Letter of March 14, 1978, With Three By your letter of January 2, 1978 addressed to Enclosed is our response to these memoranda prepared by the Department's Office of Legal Counsel, dated March 10, 1978. I regret the delays encountered by us in furnishing our response to you. Very truly yours, Barbara Allen Babcock BARBARA ALLEN BABCOCK Attachments है See exhibit 35 at p. 493. See exhibit 34 at p. 454. [First Attachment to Babcock Letter of March 14, 1978 (exhibit 36): Harmon Memorandum of March 10, 1978.] 1 1 ASSISTANT ATTORNEY GENERAL Department of Justice MAR 1 0 1970 MEMORANDUM FOR BARBARA ALLEN BABCOCK RE: Authority for employment of outside We examined the Congressional Research Service memorandum on the authority of the Department of Justice to retain private legal counsel and also the unsigned memorandum entitled "Statutory Authority for Justice Department Hiring of Private Counsel" (the "Opposition Memo"). Each of them deals at length with the derivation of the statutes covering representation of federal agencies and employees and with court decisions regarding those statutes. The Congressional Research Service memorandum concludes (p. 39) that there is "substantial doubt whether the Department of Justice has the statutory authority to retain private attorneys who are not subject to the supervision of the Attorney General or who have not been appointed in accordance with We disagree with the conclusions reached in the two memoranda. In our opinion, they fail to give proper weight to the reasons for the Department's practice and to the action taken by Congress in light of that practice. 1. In our view, the statutes in question, e.g., 28 U.S.C. 516-517, have two aspects--they place a responsibility of representation upon the Department and they specify the means of carrying out that responsibility. Without question, the only means expressly authorized are use of an officer of the Department of Justice or an attorney appointed pursuant to 28 U.S.C. 515 or 543. 1/ See exhibits 72 through 74 at pp. RECEIVED In 1975, however, the Department was faced with situations in which its obligation to represent present and former federal officials in cases involving interests of the United States could not be accomplished through use of the prescribed means. It appeared that the Department had a choice between carrying out its obligation of representation through use of private attorneys or declining to provide representation at Government expense. We adhere to the view, expressed in my memorandum of February 18, 1977 (a copy of which is attached) and earlier by my predecessor, that the Department's policy of retaining private attorneys in the limited circumstances described in 28 CFR §§ 50.15 and 50.16 is adequately supported by implied authority of the Attorney General in connection with representation of federal agencies and their employees. As pointed out in the prior memoranda of our office, interests of the United States, as well as interests of the individual defendants, are at stake in these cases. 2. It should be noted that the Department has kept Congress and the General Accounting Office informed with regard to its use of private counsel. For example, on December 24, 1975, former Attorney General Levi sent identical letters to the Chairmen of the Senate and House Judiciary Committees describing the use of private attorneys in certain civil actions and explaining the reasons for the Department's action.a/ In 1976, the General Accounting Office began a study relating, in part, to the Department's use of private attorneys; this resulted in a report issued in May 1977. 1/ Furthermore, in 1977, the Department requested a supplemental appropriation of $4,878,000 for payment of private-counsel fees. 2/ The matter was discussed at 1/ Report of the Comptroller General, Lawsuits Against 2/ Previously, the cost of the private attorneys had a/ See third attachment to Babcock letter of March 14, 1978, following. length during the hearings before the House and Senate Appropriations Committees. The House Committee did not approve the Department's request, 3/ but the Senate Committee included in its bill the full request, subject to certain conditions. 4/ The conference committee provided for a smaller appropriation, $1,860,000, than did the Senate, but deleted from the bill itself the conditions stated in the Senate bill. However, the conference report 5/ said that: . the conferees are agreed that none of the funds available to the Department shall be obligated or expended by the Department for the representation of any defendants in suits commenced after the effective date of this Act, until the appropriate committees of the Senate and the House of Representatives have reviewed the policy statement embodied in the Attorney General's Order No. 687-77 dated January 19, 1977. In certain circumstances, the courts have held that providing appropriations for an activity of the executive branch constitutes ratification by Congress of that action. E.g., Brooks v. Dewar, 313 U.S. 354 (1941) (issuance by Secretary of the Interior of temporary grazing permits). Care must be used in relying on this doctrine. 67 Still, in our opinion, it is applicable here, notwithstanding the language of the Senate 3/ See H.R. Rep. No. 95-68, 95th Cong., 1st Sess. (1977), P. 112. 4/ The report of the Senate Committee stated that "approval" of the Department's request should not be construed as 'approval or disapproval of the Department's policy statement 683-77 embodied in Attorney General's Order No. S. Rep. No. 95-64, 95th Cong., 1st Sess. (1977), p. 144. The Committee added to the bill a requirement that no funds be obligated or spent for privatecounsel fees in suits commenced after enactment of the bill, until the Senate Judiciary Committee has approved the Department's policy statement. H.R. Rep. No. 95-166, 95th Cong., 1st Sess. (1977), 27. 6/ See, e.g; Committee for Nuclear Responsibility, Inc. Seaborg, 463 F.2d 783, 785 (D.C. Cir., 1971) (question of compliance with National Environmental Policy Act). |