Respondents, a newspaper and its executive editor, violated a
temporary restraining order issued by the District Court in a civil
suit brought to enjoin dissemination of surveillance logs and
memoranda concerning the plaintiff's deceased father. Although the
court subsequently vacated the order, it nevertheless appointed a
private attorney to prosecute respondents for criminal contempt of
the order, declining to ask the United States Attorney to pursue
the matter because of his representation of the federal defendants
in the underlying civil action. The court ultimately found
respondents in criminal contempt, but the Court of Appeals reversed
on the ground that the order was "transparently invalid" under the
First Amendment. Although the Solicitor General denied the special
prosecutor authority to represent the United States in this Court
in seeking reinstatement of the contempt judgment, the prosecutor
nevertheless filed a petition for a writ of certiorari, which was
granted, and briefed and argued the case.
Held: Since the special prosecutor lacks authority to
represent the United States before this Court, the writ of
certiorari is dismissed for want of jurisdiction. Pp.
485 U. S.
699-708.
(a) Title 28 U.S.C. § 518(a) and regulations issued by the
Attorney General empower the Solicitor General or his designee to
conduct and argue suits in this Court "in which the United States
is interested." Pp.
485 U. S.
699-708.
(b) This case is one "in which the United States is interested,"
within the plain meaning of § 518(a). The action was initiated, and
continues to be litigated here, in order to further the United
States' unique sovereign interest in vindicating the authority of
its Judiciary. The rationale underlying
Young v. United States
ex rel. Vuitton et Fils S.A., 481 U.
S. 787 -- which affirmed the inherent authority of
federal courts to appoint private attorneys to prosecute
disobedience of court orders in order to assure the Judiciary an
independent means of vindicating its authority -- does not
necessitate the special prosecutor's appearance before this Court.
Nor does
Young create an exception to 28 U.S.C. §§ 516 and
547, and therefore to the similar provisions of § 518(a). Unlike §
518(a), both § 516 and § 547 give the Attorney General exclusive
control
Page 485 U. S. 694
over litigation involving the United States "except as otherwise
[provided or authorized] by law."
Young simply
acknowledges an excepted provision or authorization within the
meaning of the statutory provisos. Pp.
485 U. S.
700-705.
(c) If a judicially initiated contempt citation were not a case
"in which the United States is interested," the policies underlying
§ 518(a) -- that the United States speak with one voice before this
Court, and that that voice reflect the common interest of the
Government and the people in the development of the law, rather
than a variety of parochial, inconsistent interests shaped by the
immediate demands of the case
sub judice -- could be
undermined by, and anomalous consequences could result from, a
deluge of unauthorized certiorari petitions filed by United States
Attorneys or by special prosecutors at the behest of district
judges. Pp.
485 U. S.
706-707.
820 F.2d 1342 and 1354, certiorari dismissed for want of
jurisdiction.
BLACKMUN, J., delivered the opinion of the Court, in which
BRENNAN, WHITE, MARSHALL, O'CONNOR, and SCALIA, JJ., joined.
SCALIA, J., filed a concurring opinion,
post, p.
485 U. S. 708.
STEVENS, J., filed a dissenting opinion, in which REHNQUIST, C.J.,
joined,
post, p.
485 U. S. 708.
KENNEDY, J., took no part in the consideration or decision of the
case.
JUSTICE BLACKMUN delivered the opinion of the Court.
The United States seeks reinstatement of a judgment of contempt
against a newspaper and its executive editor for
Page 485 U. S. 695
violating an invalid temporary restraining order against
publication. Having concluded that the court-appointed prosecutor
who sought certiorari and briefed and argued the case without the
authorization of the Solicitor General may not represent the United
States before this Court, we dismiss the writ of certiorari.
I
On November 8, 1985, Raymond J. Patriarca, son of Raymond L. S.
Patriarca, by then deceased, filed suit against the Federal Bureau
of Investigation (FBI), its Director, the Department of Justice,
the Attorney General of the United States, the Providence Journal
Company (Journal), and WJAR Television Ten (WJAR), seeking to
enjoin further dissemination of logs and memoranda compiled from
1962 to 1965 during the course of illegal electronic surveillance,
see Providence Journal Co. v. FBI, 602 F.2d 1010, 1013
(CA1 1979),
cert. denied, 444 U.S. 1071 (1980), of the
plaintiff's father. The complaint, as amended, was based on the
Freedom of Information Act (FOIA), 5 U.S.C. § 552 (1982 ed., and
Supp. IV), Title III of the Omnibus Crime Control and Safe Streets
Act of 1968 (Title III), 18 U.S.C. § 2510
et seq. (1982
ed., and Supp. IV), and the Fourth Amendment, and alleged that the
FBI had improperly released the logs and memoranda to the Journal
and WJAR pursuant to a FOIA request following the death of the
senior Patriarca. The summons, complaint, and a motion for a
temporary restraining order were served on the Journal on November
12, 1985. The next day, counsel for the various parties gathered
for a conference with the Chief Judge of the United States District
Court for the District of Rhode Island. During that conference, of
which, apparently, there is no transcript, the Chief Judge entered
a temporary restraining order barring publication of the logs and
memoranda and set a hearing for Friday,
Page 485 U. S. 696
November 15. [
Footnote 1]
Counsel for both the Journal and the federal defendants objected to
the order.
During the evening of November 13, respondent Charles M. Hauser,
executive editor of the Journal, was first advised of the
restraining order. After discussing with other Journal executives
the perils of noncompliance, Hauser decided to publish a story
based on the logs and memoranda. The following day, November 14,
the Journal published one article about the Patriarcas and another
about the "clash" between the District Court and the Journal.
See App. 39, 18. Patriarca forthwith filed a motion to
have the Journal and Hauser adjudged in criminal contempt.
[
Footnote 2]
Id. at
223.
Patriarca, however, declined to prosecute the contempt motion,
[
Footnote 3] and the District
Court decided not to ask the United States Attorney to pursue the
matter, because of his representation of the federal defendants in
the underlying civil action. [
Footnote 4] Invoking Federal Rule of Criminal Procedure
42(b),
Page 485 U. S. 697
the District Court appointed William A. Curran of the Rhode
Island Bar as "prosecuting attorney with full authority to
prosecute" the pending contempt motion. App. 237-238. On Curran's
application, the District Court then ordered respondents to show
cause why they should not be adjudged in criminal contempt.
Id. at 31-32.
Following a hearing on February 10, 1986, the District Court
found respondents in criminal contempt of the order entered on
November 13. The court concluded that it had jurisdiction to
consider whether Patriarca's statutory and Fourth Amendment claims
had merit, and whether his privacy interest outweighed the
Journal's First Amendment interest in publication, and thus that
the temporary restraining order entered to preserve the
status
quo pending consideration of significant legal issues was
valid, even though it subsequently had been vacated. The District
Court fined the Journal $100,000 and suspended a jail sentence for
Hauser, placing him on probation for 18 months and ordering that he
perform 200 hours of public service.
Id. at 194-197.
Respondents appealed, and the United States Court of Appeals for
the First Circuit reversed the judgment of contempt.
In re
Providence Journal Co., 820 F.2d 1342 (1986). The court found
that the temporary restraining order was "transparently invalid"
under the First Amendment, and thus its constitutionality could be
collaterally challenged in the contempt proceedings.
Id.
at 1353. According to the court, none of the grounds asserted in
support of the order, including FOIA, Title III, and the Fourth
Amendment, provided even a colorable basis for the prior restraint
ordered by the District Court.
Page 485 U. S. 698
The Court of Appeals, then sitting en banc, summarily modified
the panel's opinion, holding that even those subject to a
transparently invalid order must make a good faith effort to seek
emergency appellate relief. It ruled, however, that the publisher
may proceed to publish and challenge the constitutionality of the
order in the contempt proceeding if timely access to the appellate
court is not available or if a timely decision is not forthcoming.
The court was not convinced that respondents could have obtained
emergency relief before the publisher had to make a final decision
whether to run the story the following day, and found it unfair to
subject respondents to substantial sanctions for failing to follow
the newly announced procedures.
In re Providence Journal
Co., 820 F.2d 1354 (1987).
Because of the importance of the issues, we granted certiorari.
484 U.S. 814 (1987).
II
Before we can decide whether respondents could properly be held
in contempt for violating the District Court's subsequently
invalidated restraining order, we must consider respondents' motion
to dismiss the writ of certiorari. It appears that the manner in
which this unusual case reached us departed significantly from
established practice. After the Court of Appeals reversed the
judgment of contempt and, sitting en banc, modified the panel's
opinion, the special prosecutor sought authorization from the
Solicitor General to file a petition here for a writ of certiorari.
By letter dated July 2, 1987, the Solicitor General denied that
authorization.
See App. to Brief for United States as
Amicus Curiae in Response to Respondents' Motion to
Dismiss 1a-2a (SG Letter). Respondents argue that, without this
permission, the special prosecutor cannot proceed before this
Court. While denying authorization to the special prosecutor to
file or to appear on behalf of the United States, the Solicitor
General questioned whether our recent decision in
Young v.
United States ex rel.
Page 485 U. S. 699
Vuitton et Fils S.A., 481 U. S. 787
(1987), rendered such authorization unnecessary in a case
concerning a criminal contempt charge prosecuted by private counsel
appointed pursuant to Federal Rule of Criminal Procedure 42(b).
See SG Letter.
See also Brief for United States
as
Amicus Curiae 2, n. 2. We find no such implication in
our decision in
Young, and we conclude that the special
prosecutor lacks the authority to represent the United States
before this Court. Because he is not a party entitled to petition
for certiorari under 28 U.S.C. § 1254(1), we must dismiss the
heretofore-granted writ of certiorari for want of jurisdiction.
[
Footnote 5]
A
Title 28 U.S.C. § 518(a) provides in relevant part:
"Except when the Attorney General in a particular case directs
otherwise, the Attorney General and the Solicitor General shall
conduct and argue suits and appeals in the Supreme Court . . . in
which the United States is interested."
The Attorney General by regulation has delegated authority to
the Solicitor General:
"The following-described matters are assigned to, and shall be
conducted, handled, or supervised by, the Solicitor General, in
consultation with each agency or official concerned:"
"(a) Conducting, or assigning and supervising, all Supreme Court
cases, including appeals, petitions for
Page 485 U. S. 700
and in opposition to certiorari, briefs and arguments, and . . .
settlement thereof."
28 CFR § 0.20 (1987). Thus, unless this is a case other than one
"in which the United States is interested," § 518(a), it must be
conducted and argued in this Court by the Solicitor General or his
designee.
Cf. United States v. Winston, 170 U.
S. 522,
170 U. S.
524-525 (1898);
Confiscation
Cases, 7 Wall. 454,
74 U. S. 458
(1869).
B
The present case clearly is one "in which the United States is
interested." The action was initiated in vindication of the
"judicial Power
of the United States," U.S.Const., Art.
III, § 1 (emphasis added), and it is that interest, unique to the
sovereign, that continues now to be litigated in this Court. The
special prosecutor seeks to reinstate a judgment of criminal
contempt in a federal court, including a possible prison sentence
for the individual defendant and a substantial fine for the
newspaper defendant. The fact that the allegedly criminal conduct
concerns the violation of a court order instead of common law or a
statutory prohibition does not render the prosecution any less an
exercise of the sovereign power of the United States. Indeed, just
last Term, in a case much like the present one, involving a
prosecution for criminal contempt under 18 U.S.C. § 401(3),
[
Footnote 6] we flatly stated:
"Private attorneys appointed to prosecute a criminal contempt
action represent the United States. . . ."
Young v. United
States ex rel. Vuitton et Fils S.A., 481 U.S. at
481 U. S. 804
(emphasis added).
See also Gompers v. Bucks Stove & Range
Co., 221 U. S. 418,
221 U. S. 445
(1911) ("[P]roceedings at law for criminal contempt are between the
public and the defendant. . . .").
Page 485 U. S. 701
The special prosecutor and the Solicitor General argue that this
case is not one "in which the United States is interested" because
that phrase, as used in § 518(a), refers solely to those cases
where the interests of the Executive Branch of the United States
are at issue. In this litigation, the argument goes, the special
prosecutor acted in support of the power of the Judicial Branch,
rather than in furtherance of the Executive's constitutional
responsibility, U.S.Const., Art. II, § 3, to "take Care that the
Laws be faithfully executed." This suggested interpretation of §
518(a), however, presumes that there is more than one "United
States" that may appear before this Court, and that the United
States is something other than "the sovereign composed of the three
branches. . . ."
United States v. Nixon, 418 U.
S. 683,
418 U. S. 696
(1974).
We find such a proposition somewhat startling, particularly when
supported by the office whose authority would be substantially
diminished by its adoption, and we reject that construction as
inconsistent with the plain meaning of § 518(a). It seems to be
elementary that, even when exercising distinct and jealously
separated powers, the three branches are but "co-ordinate parts of
one government."
J. W. Hampton, Jr., & Co. v. United
States, 276 U. S. 394,
276 U. S. 406
(1928). Congress is familiar enough with the language of separation
of powers that we shall not assume it intended, without saying so,
to exclude the Judicial Branch when it referred to the "interest of
the United States." Moreover, while there may well be matters that
are uniquely Executive Branch concerns, we do not think they would
be fairly described by the broad statutory language of §
518(a).
In
Young, we reaffirmed the inherent authority of a
federal court to initiate a criminal contempt proceeding for
disobedience of its order, and its ability to appoint a private
attorney to prosecute the contempt action. 481 U.S. at
481 U. S. 793.
This power, considered to be a part of the judicial function, is
grounded first and foremost upon necessity:
"The ability to punish disobedience to judicial orders is
regarded as
Page 485 U. S. 702
essential to ensuring that the Judiciary has a means to
vindicate its own authority without complete dependence on other
branches."
Id. at
481 U. S. 796.
The special prosecutor claims his appearance before this Court is
necessary for the vindication of the District Court's authority.
For just as the District Court would be "at the mercy of another
branch in deciding whether such proceedings should be initiated,"
ibid., if it lacked the power to appoint a private
attorney to prosecute a contempt charge, the judgment vindicating
the District Court's authority would be vulnerable to the Attorney
General's withholding of authorization to defend it. This argument,
however, overlooks the circumstances under which the special
prosecutor actually came to be in a position to seek review in this
Court.
When, as here, a district court's judgment of contempt has been
reversed on appeal, a special prosecutor may decide to seek a writ
of certiorari on the basis of his professional judgment that the
court of appeals' decision merits review.
See generally
this Court's Rule 17. Sometimes, as apparently occurred here, the
special prosecutor and the Solicitor General will disagree with
respect to whether the case presents issues worthy of review by
this Court. That kind of disagreement actually arises on a regular
basis between the Solicitor General and attorneys representing
various agencies of the United States. [
Footnote 7] But that disagreement does not interfere
Page 485 U. S. 703
with the Judiciary's power to protect itself. In this very case,
before the consent of the Solicitor General ever became relevant,
members of the Judiciary had decided that the District Judge erred
in adjudging the defendants in contempt. Where the majority of a
panel of a court of appeals or perhaps, as here, a majority of an
en banc court, itself has decided in favor of the alleged
contemnor, the necessity that required the appointment of an
independent prosecutor has faded and, indeed, is no longer present.
[
Footnote 8]
When, on the other hand, a district court has adjudged a party
in contempt, and the appellate court has affirmed, a special
prosecutor has little need of the services of this Court to fulfill
his or her duties. It is only if the contemnor petitions this Court
for a writ of certiorari that the Solicitor General need be
consulted and his authorization or participation obtained to oppose
the petition and defend the judgment. Under such circumstances, if
the Solicitor General declines to authorize a defense of the
judgment, and if § 518(a) prevented the special prosecutor from
proceeding, the independent ability of the Judiciary to vindicate
its authority might appear to be threatened: both courts would have
agreed that the contemnor had disobeyed an order of the court, but
the Executive's judgment to the contrary would threaten to
undermine those judicial decisions. This threat, however, is
inconsequential, for it is this Court, a part of the Judicial
Branch, that must decide whether to exercise its discretion to
review
Page 485 U. S. 704
the judgment below, and it is well within this Court's authority
to appoint an
amicus curiae to file briefs and present
oral argument in support of that judgment.
See, e.g., Bob Jones
University v. United States, 456 U.S. 922 (1982) (order
appointing
amicus curiae in support of judgment);
United States v. Fausto, 480 U.S. 904 (1987) (same).
The Solicitor General argues that § 518(a) does not apply to a
contempt proceeding that is initiated unilaterally by a federal
court, because, in
Young, this Court sustained the power
of the court to appoint a private attorney to prosecute a criminal
contempt charge, despite the fact that 28 U.S.C. § 516, in language
certainly somewhat similar to that of § 518(a), requires such
litigation to be conducted by a Government attorney:
"Except as otherwise authorized by law, the conduct of
litigation in which the United States, an agency, or officer
thereof is a party, or is interested, . . . is reserved to officers
of the Department of Justice, under the direction of the Attorney
General."
Also, 28 U.S.C. § 547 requires:
"Except as otherwise provided by law, each United States
attorney, within his district, shall . . . prosecute for all
offenses against the United States."
The Solicitor General concludes that
Young necessarily
implies that these broadly worded reservations of litigating
authority, including § 518(a), do not apply to the case at
hand.
Young neither expressed nor implied any such special
consideration for a judicially initiated contempt proceeding. Both
statutes implicated but not discussed in
Young provide for
the Attorney General's exclusive control over specified litigation
except as otherwise provided or authorized by law. A fair
reading of
Young indicates that a federal court's inherent
authority to punish disobedience and vindicate its authority is an
excepted provision or authorization within the meaning of §§ 516
and 547. The "
power to punish for contempts is inherent in all
courts,'" and was not first recognized by this
Page 485 U. S.
705
Court in Young; rather, it "`has been many times
decided and may be regarded as settled law.'" Young, 481
U.S. at 481 U. S. 795,
quoting Michaelson v. United States ex rel. Chicago, St. P., M.
& O. R. Co., 266 U. S. 42,
266 U. S. 65-66
(1924). Thus, contrary to the Solicitor General's intimation,
Young did not read an exception into §§ 516 and 547;
instead, Young is consistent with the plain language of
the provisos to those sections. Section 518(a), by way of vivid
contrast, contains no such proviso. [Footnote 9]
Page 485 U. S. 706
C
If the plain statutory language of § 518(a) were not reason
enough to persuade us to accept respondents' objections and dismiss
the writ of certiorari, we observe that the salutary policies that
support § 518(a) could be undermined by, and anomalous consequences
could result from, the approach urged upon the Court by the special
prosecutor and the Solicitor General. Among the reasons for
reserving litigation in this Court to the Attorney General and the
Solicitor General is the concern that the United States usually
should speak with one voice before this Court, and with a voice
that reflects not the parochial interests of a particular agency,
but the common interests of the Government, and therefore of all
the people. Without the centralization of the decision whether to
seek certiorari, this Court might well be deluged with petitions
from every federal prosecutor, agency, or instrumentality, urging
as the position of the United States, a variety of inconsistent
positions shaped by the immediate demands of the case
sub
judice, rather than by longer-term interests in the
development of the law.
Under the procedures set out in
Young, it seems evident
that the majority of contempt cases will be prosecuted by the
United States Attorney.
See 481 U.S. at
481 U. S. 801.
Under the special prosecutor's interpretation of § 518(a), whereby
a
Page 485 U. S. 707
contempt citation initiated by a district court is not a case
"in which the United States is interested," the United States
Attorney would be free to file a petition for a writ of certiorari
in this Court without the authorization of the Solicitor General.
We need not speculate how a United States Attorney would resolve
the conflict between his duty "to the preservation of respect for
judicial authority," United States Attorneys' Manual § 9-39.318
(1984), and his duty to his superiors at the Department of Justice,
[
Footnote 10] because we
reject out of hand the interpretation of § 518(a) that creates the
potential for such a conflict. Similarly, if the United States
Attorney concluded that a court of appeals' decision reversing a
judgment of contempt did not merit further review, and declined to
file a petition with this Court, it would seem to follow from the
Solicitor General's interpretation that the district judge could
then appoint another special prosecutor solely for purposes of
seeking certiorari and, if the writ were granted, litigating the
case before this Court.
See Brief for United States as
Amicus Curiae in Response to Respondents' Motion to
Dismiss 9, n. 7. But surely neither the force of historical
practice nor the necessity of protecting the dignity of the
district court -- whose judgment of contempt has been reversed on
appeal -- warrants attributing such power to the district
judge.
III
We conclude that a criminal contempt prosecution brought to
vindicate the authority of the Judiciary and to punish disobedience
of a court order is a suit "in which the United
Page 485 U. S. 708
States is interested," within the meaning of § 518(a),
regardless of who is appointed by the district court to prosecute
the action. [
Footnote 11] In
this case, the special prosecutor filed a petition for a writ of
certiorari without the authorization of the Solicitor General, and
thus without authorization to appear on behalf of the United
States. Absent a proper representative of the Government as a
petitioner in this criminal prosecution, jurisdiction is lacking
and the writ of certiorari, heretofore granted, is now
dismissed.
It is so ordered.
JUSTICE KENNEDY took no part in the consideration or decision of
this case.
[
Footnote 1]
The conference was held in the Chief Judge's chambers at 12:30
p.m. on November 13. The District Court was prepared to hear
argument the very next day, but, in order to accommodate counsel,
set the matter for November 15 at 10 a.m.
[
Footnote 2]
On November 15, as previously scheduled, the District Court held
a hearing. After argument by counsel, the court set a preliminary
injunction hearing for Tuesday, November 19, extending the
restraining order until that date. App. 58-71. Following the
preliminary injunction hearing, the court vacated the temporary
restraining order, denied preliminary injunctive relief against the
Journal and WJAR, and granted a preliminary injunction against
further dissemination of the logs and memoranda by the federal
defendants.
Id. at 71-89.
[
Footnote 3]
Our decision in
Young v. United States ex rel. Vuitton et
Fils S.A., 481 U. S. 787
(1987), in any event, would have prohibited Patriarca from taking
such action. In
Young, we instructed courts to request the
United States Attorney to prosecute the criminal contempt charge,
and, if the United States Attorney declined, to appoint as a
special prosecutor a private attorney other than the attorney for
an interested party.
Id. at
481 U. S.
801.
[
Footnote 4]
The United States as
amicus curiae, argues that the
District Court's reasons were legally "insufficient" to support the
decision not to ask a Government attorney to undertake the contempt
prosecution, because the prosecution of the Journal in order to
vindicate the District Court's authority did not pose any conflict
for Government attorneys. Brief for United States as
Amicus
Curiae 1, and n. 1. Because of our disposition of this case,
we need not address the circumstances under which the procedures
prescribed in
Young, of requesting the appropriate
prosecuting authority to pursue the contempt action, may be
bypassed.
[
Footnote 5]
As we hold today, a federal statute deprives the special
prosecutor of the authority to pursue the litigation in this Court
on behalf of the United States when the Solicitor General declines
to petition for certiorari or to authorize the filing of such a
petition. We dismiss the writ even though the United States
eventually expressed its "interest" in the litigation and the
Solicitor General filed a brief for the United States as
amicus
curiae in support of the position taken by the special
prosecutor.
See Karcher v. May, 484 U. S.
72 (1987);
Diamond v. Charles, 476 U. S.
54,
476 U. S. 63-64
(1986).
[
Footnote 6]
Section 401 reads:
"A court of the United States shall have power to punish by fine
or imprisonment, at its discretion, such contempt of its authority,
and none other, as . . . (3) Disobedience or resistance to its
lawful writ, process, order, rule, decree, or command."
[
Footnote 7]
In fact, this Court relies on the Solicitor General to exercise
such independent judgment and to decline to authorize petitions for
review in this Court in the majority of the cases the Government
has lost in the courts of appeals.
See Andres v. United
States, 333 U. S. 740,
333 U. S.
764-765, n. 9 (1948) (Frankfurter, J., concurring);
McCree, The Solicitor General and His Client, 59 Wash.U.L.Q. 337,
341 (1981).
See also Griswold, The Office of the Solicitor
General -- Representing the Interests of the United States Before
the Supreme Court, 34 Mo.L.Rev. 527, 535 (1969) ("The Solicitor
General has a special obligation to aid the Court as well as to
serve his client. . . . In providing for the Solicitor General,
subject to the direction of the Attorney General, to attend to the
interests of the United States' in litigation, the statutes
have always been understood to mean the long-range interests of the
United States, not simply in terms of its fisc, or its success in
the particular litigation, but as a government, as a people")
(footnote omitted).
[
Footnote 8]
In
Young we emphasized:
"This principle of restraint in contempt counsels caution in the
exercise of the power to appoint a private prosecutor. We repeat
that the rationale for the appointment authority is necessity. If
the Judiciary were completely dependent on the Executive Branch to
redress direct affronts to its authority, it would be powerless to
protect itself if that branch declined prosecution. . . . [T]he
court will exercise its inherent power of self-protection only as a
last resort."
481 U.S. at
481 U. S.
801.
[
Footnote 9]
The plain language of §§ 516 and 547 resolves any conflict
between the express reservations of authority over litigation
therein provided and any other provision of law that vests
litigation authority elsewhere. A statute that begins with "Except
as otherwise provided by law" creates a general rule that applies
unless contradicted in some other provision. The Court in
Young had no reason to address the application of §§ 516
and 547. This was not because those provisions do not apply to a
contempt proceeding initiated by a court, but because, having
reaffirmed the well-established inherent authority of a federal
court to appoint a private attorney to prosecute a contempt charge,
there was no conflict with the statutory requirements.
The fact that § 518(a) admits of no exception, of course, does
not mean that Congress, if it so chooses, cannot exempt litigation
from the otherwise blanket coverage of the statute. It does mean,
however, that any such alleged exception must be scrutinized and
subjected to the ordinary tools of statutory construction to
determine whether Congress intended to supersede § 518(a). Indeed,
Congress has enacted some provisions that suggest exceptions to the
blanket coverage of § 518(a).
See, e.g., Federal Courts
Improvement Act of 1982, § 169, 96 Stat. 51 (preserving existing
authority of the Tennessee Valley Authority "to represent itself by
attorneys of its choosing," while adding,
see § 117, 96
Stat. 32, the United States Claims Court and the United States
Court of Appeals for the Federal Circuit to the courts named in §
518(a)); Ethics in Government Act of 1978, § 601(a)
as
amended, 28 U.S.C. § 594(a)(9) (authorizing independent
counsel to initiate and conduct prosecutions "in any court of
competent jurisdiction . . . in the name of the United States").
See, as to the last cited Act,
In re Sealed Case,
267 U.S.App.D.C. 178, 838 F.2d 476,
prob. juris. noted sub nom.
Morrison v. Olson, 484 U.S. 1058 (1988).
See also
Stern, "Inconsistency" in Government Litigation, 64 Harv.L.Rev. 759
(1951) (discussing independent litigating authority of Interstate
Commerce Commission). Without pausing here to construe the effect
of any of these enactments, we note that there is no similar
indication that Congress intended any such exception for a special
prosecutor appointed by a court to prosecute a contempt charge,
despite the fact that Federal Rule of Criminal Procedure 42(b)
reflects a longstanding practice -- of which we assume Congress is
aware -- of private prosecutions of contempt actions.
See Young
v. United States ex rel. Vuitton et Fils S.A., 481 U.S. at
481 U. S.
793-796.
Similarly, nothing in § 518(a) precludes Members of Congress or
the Judiciary from adding their views in litigation before this
Court as intervenors or
amici curiae, a practice we have
long recognized,
see, e.g., Bowsher v. Synar, 478 U.
S. 714 (1986), and which in some instances is directly
authorized by statute,
see, e.g., 2 U.S.C. § 288e(a).
[
Footnote 10]
It may well be, as the Solicitor General contends, that even
while pursuing a judicially initiated contempt prosecution, the
United States Attorney remains, for all practical purposes, an
officer and representative of the Executive Branch under the
direction of the Attorney General.
See Brief for United
States as
Amicus Curiae in Response to Respondents' Motion
to Dismiss 9, n. 7. But from the standpoint of § 518(a), the
Solicitor's and the special prosecutor's interpretation would seem
to permit a United States Attorney to appear in this Court on
behalf of the interests at stake in a contempt prosecution.
[
Footnote 11]
How a case is captioned is of no significance to our holding. As
we have previously observed, "courts must look behind names that
symbolize the parties to determine whether a justiciable case or
controversy is presented."
United States v. ICC,
337 U. S. 426,
337 U. S. 430
(1949). Thus, even if the case had not been recaptioned by the
special prosecutor upon the filing of a petition in this Court to
reflect the "adversary nature of the proceeding,"
see
Petitioner's Objections to Respondents' Motion to Dismiss 2, n. 1,
we would have been required to determine whether this was a case
"in which the United States is interested." A criminal contempt
prosecution in federal court, however styled, is such a case.
JUSTICE SCALIA, concurring.
I join the opinion of the Court, which ably demonstrates that
according 28 U.S.C. § 518(a) its plain meaning is fully consistent
with the opinion of the Court in
Young v. United States ex rel.
Vuitton et Fils S.A., 481 U. S. 787
(1987). I continue to believe, however, that district courts
possess no power, inherent or otherwise, to prosecute contemnors
for disobedience of court judgments, and no derivative power to
appoint an attorney to conduct contempt prosecutions.
See
id. at
481 U. S. 825
(SCALIA, J., concurring in judgment).
JUSTICE STEVENS, with whom THE CHIEF JUSTICE joins,
dissenting.
A statute enacted by the First Congress in 1789 created the
office of Attorney General of the United States and described
Page 485 U. S. 709
some of the responsibilities of that office. That statute
provided:
". . . And there shall also be appointed a meet person, learned
in the law, to act as attorney-general for the United States, who
shall be sworn or affirmed to a faithful execution of his office;
whose duty it shall be to prosecute and conduct all suits in
the Supreme Court in which the United States shall be
concerned, and to give his advice and opinion upon questions
of law when required by the President of the United States, or when
requested by the heads of any of the departments, touching any
matters that may concern their departments, and shall receive such
compensation for his services as shall by law be provided."
Judiciary Act of 1789, ch. 20, § 35, 1 Stat. 93 (emphasis
supplied). The 1789 Act has been amended to make it clear that the
Solicitor General has essentially the same authority to conduct
litigation in this Court as does the Attorney General, and that
such authority may be delegated to others.
See ante at
485 U. S.
699-700. In substance, however, the provision has
remained unaltered for nearly 200 years; the Attorney General --
and now the Solicitor General as well -- is charged with conducting
all litigation before this Court in which the United States is
"concerned" or "interested."
Most litigation in which the United States is interested is, of
course, conducted by the Executive Branch of the Government.
Orderly administration requires that such litigation be conducted
under the supervision and direction of a single office. Congress
therefore wisely granted the Attorney General broad enough
authority to accomplish that mission. It is unlikely, however,
that, when this statute was enacted, Congress foresaw the
possibility that matters such as judicial contempts,
see Young
v. United States ex rel. Vuitton et Fils S.A., 481 U.
S. 787 (1987), legislative contempts,
See Anderson
v. Dunn, 6 Wheat. 204 (1821);
Page 485 U. S. 710
McGrain v. Daugherty, 273 U. S. 135
(1927), or the need to defend a legislative veto,
see INS v.
Chadha, 462 U. S. 919
(1983), would present justiciable controversies in which the
Congress or the Judiciary might have interests that diverge from
those of the Executive Branch of the Government, but nevertheless
be cases "in which the United States shall be concerned." It is
equally unlikely that Congress, through amendment and more recent
consideration of the provision, has perceived, much less endorsed,
the view that § 518(a) should be read to place control of such
litigation exclusively in the hands of the Executive Branch.
Although the texts of the statutes that Congress enacted can be
read to foreclose either the Congress or the Judiciary from
appointing counsel to participate in litigation in this Court, we
have long held that, in construing a statute, we are not bound to
follow the literal language of the statute -- "however clear the
words may appear on
superficial examination'" -- when doing so
leads to "absurd," or even "unreasonable," results. United
States v. American Trucking Assns., Inc., 310 U.
S. 534, 310 U. S.
543-544 (1940) (citation omitted); see also Offshore
Logistics, Inc. v. Tallentire, 477 U.
S. 207 (1986); O'Connor v. United States,
479 U. S. 27
(1986); California Federal Savings & Loan Assn. v.
Guerra, 479 U. S. 272,
479 U. S. 284
(1987); United States v. Wells Fargo Bank, 485 U.
S. 351 (1988).
Both history and common sense make clear that Congress never
intended to grant the Executive Branch exclusive authority to
control all litigation before this Court in which a coequal branch
of government maintains a substantial, justiciable interest. As
early as 1818, the House of Representatives adopted a resolution
directing the Speaker of the House
"to employ such counsel, as he may think proper to defend the
suit brought by John Anderson against the said Thomas Dunn, and
that the expenses be defrayed out of the contingent fund of the
House."
33 Annals of Cong. 434 (1818). The Speaker retained William Wirt
to defend the suit, which established the congressional power of
legislative
Page 485 U. S. 711
contempt.
See Anderson v. Dunn, supra. Although Wirt
was then serving as Attorney General, Congress nonetheless deemed
it necessary to retain Wirt in his private capacity and to pay him
$500 to defend the suit.
See American State Papers, Misc.
Vol. 2, p. 932 (1834) ("A statement of the sums paid to William
Wirt, Attorney General of the United States, beyond his salary, for
services not required of him by law"). Had Congress read "in which
the United States shall be concerned" to extend beyond the
interests of the Executive Branch, the Attorney General would
already have been obliged to "prosecute" or "conduct" the suit in
the Supreme Court, and no separate retainer agreement would have
been necessary. Indeed, the House Committee on the Judiciary later
explained that payment above and beyond the Attorney General's
salary was proper because it was provided
"for services rendered which did not belong to his office, which
he was in no manner bound to perform, and for which, therefore, if
he did perform them, he was entitled to be paid as any other
professional man would be. [
Footnote
2/1]"
Id. at 931.
Page 485 U. S. 712
On numerous occasions since
Anderson v. Dunn, Congress
has seen fit to retain private counsel to represent its interests.
See, e.g., Kilbourn v. Thompson, 103 U.
S. 168 (1881);
The Pocket Veto Case,
279 U. S. 655
(1929);
Powell v. McCormack, 395 U.
S. 486 (1969);
Gravel v. United States,
408 U. S. 606
(1972);
INS v. Chadha, 462 U. S. 919
(1983);
Bowsher v. Synar, 478 U.
S. 714 (1986). Similarly, the interests of the Federal
Judiciary, which are certainly interests
Page 485 U. S. 713
of the United States as well, have been represented in
litigation in this Court by private counsel on several occasions.
See, e.g., Will v. United States, 389 U. S.
90 (1967);
Chandler v. Judicial Council of Tenth
Circuit, 398 U. S. 74
(1970);
Will v. Calvert Fire Ins. Co., 437 U.
S. 655 (1978);
Young v. United States ex rel.
Vuitton et Fils S.A., 481 U. S. 787
(1987). Yet, from the time of
Anderson v. Dunn until
today, we have heard argument in these cases without bothering to
determine whether or not the Solicitor General approved of their
participation in the litigation. In addition, we have frequently
appointed counsel -- sometimes designated as "
amicus
curiae," but nevertheless fully authorized to argue cases in
which the United States is interested,
see, e.g., Myers v.
United States, 272 U. S. 52
(1926);
Bob Jones University v. United States, 456 U.S.
922 (1982) (appointing counsel),
461 U. S. 574
(1983) -- without asking for the approval of the Solicitor General
before taking such action. Moreover, despite the fact that 28
U.S.C. § 516 contains language similar to that found in § 518(a),
[
Footnote 2/2] we have confirmed
the power of the Judiciary to appoint counsel to conduct litigation
in which the United States is interested.
See Young v. United
States ex rel. Vuitton et Fils S.A., supra.
This long and previously unquestioned practice comports well
with common sense. Section 518(a) directs that,
"[e]xcept when the Attorney General in a particular case directs
otherwise, the Attorney General and the Solicitor General shall
conduct and argue suits and appeals in the Supreme Court . . . in
which the United States is interested."
The language is mandatory. In any case in which the United
States is interested, the Solicitor General
shall argue an
appeal in the Supreme Court. Of course, and quite properly so, the
Solicitor General does nat seek certiorari in every
Page 485 U. S. 714
case adversely affecting an interest of the United States.
Instead, the Solicitor General acts strategically, choosing the
most important cases and the cases in which the United States is
most likely to prevail. In thus separating the wheat from the
chaff, the Solicitor General makes a series of judgments as to what
is in the United States' interest. As an executive officer,
[
Footnote 2/3] the Solicitor
General may reasonably weigh and consider the interests of the
executive agencies. When faced with a difference of view between
the Executive Branch and a coordinate branch of government,
however, the Solicitor General faces a conflict of interest that
undeniably would be intolerable if encountered in the private
sector. In essence, he or she is asked to resolve conflicting
interests between clients. Common sense dictates that Congress did
not intend to create such a conflict in the Office of the Solicitor
General. [
Footnote 2/4] Moreover,
and even more compellingly so, it is unreasonable to conclude that
Congress intended to abdicate to the Solicitor General and the
Department of Justice the function of determining what is in the
interest of the Congress or the Judiciary. Certainly, Congress did
not intend that these executive offices be charged with weighing
competing executive and congressional or judicial interests, with
authority -- absent further legislation [
Footnote 2/5] -- to deny Congress and the Judiciary
access to this Court.
Page 485 U. S. 715
Not only is our prior practice consistent with a common sense
reading of § 518, but it is also significant that the officer most
interested in a correct interpretation of that provision -- the
Solicitor General -- places this interpretation on its text. In his
brief in this case, he submits:
"[Title] 28 U.S.C. 518(a), like the other statutes that vest the
Attorney General with exclusive control over
Page 485 U. S. 716
litigation, applies to cases in which the United States is
"interested" by virtue of the constitutional and statutory
responsibilities of the Executive Branch -- the Branch in which the
Attorney General serves.
Cf. ICC v. Southern Ry. Co., 543
F.2d 534, 536 (5th Cir.1976) (Section 516
not only centralizes
responsibility for the conduct of public litigation, but enables
the President, through the Attorney General, to supervise the
various policies of the executive branch')."
Brief for United States as
Amicus Curiae in Response to
Respondents' Motion to Dismiss 13.
Because I agree with that interpretation of the statute, I
respectfully dissent.
[
Footnote 2/1]
At the request of the House of Representatives, President Monroe
transmitted to Congress "information relating to the amount of the
public money paid the Attorney General, over and above his salary
fixed by law. . . ." This information was accompanied by a
Presidential message that sheds further light on the early
understanding of the Act of 1789, providing, in part:
"By the act of the 24th of September, 1789, instituting the
office of Attorney General, it was made his duty to prosecute and
conduct all suits in the Supreme Court, in which the United States
should be concerned. . . . It will be seen, therefore, by the
statement communicated, that no money whatever has been paid to the
Attorney General for his services in that character, nor for any
duty belonging to his office, beyond his salary, as fixed by
law."
American State Papers, Misc. Vol. 2, p. 931 (1834).
The House Committee agreed with the President that the nonsalary
payments to Attorney General Wirt were for services beyond the
scope of his statutory duties:
"That the office of Attorney General was established by the act
of the 24th September, 1789, and his duty defined to be, 'to
prosecute and conduct all suits in the Supreme Court in which the
United States shall be concerned. . . .'"
"
* * * *"
"The appointments heretofore made, and the compensation
heretofore and now allowed, have had reference only to the existing
constitution of the office, and the duties belonging to it, as
already stated."
"It follows clearly that no Department of the Government has a
right, nor ever has had a right, to call upon the Attorney General
to perform any other duties; and it would be difficult to show that
an officer is under a greater obligation than a private citizen to
render gratuitous services to the Government, particularly where
they are of a nature to be estimated and paid for."
"In the extensive and interesting concerns of the nation, it
will nevertheless happen, as it has frequently happened, that the
Government will have occasion for other or further legal aid than
that which their officers are bound, or, in some cases, able to
afford. . . ."
"Where such occasional aid can be afforded by the Attorney
General without interference with his proper duties, . . . there is
no objection to his being employed upon the ordinary professional
footing -- of receiving a compensation for the service required. It
was not the design of the office, as has already appeared, that he
should render any other than the stated duties for the stated
compensation or salary; and it was never understood or intended
that the office was to deprive the officer of the right to employ
his professional talents and learning for his own benefit, where
that could be done without prejudice to the faithful performance of
his stated duties. . . ."
"In reviewing the past, then, the committee finds nothing to
disapprove. Where additional professional aid has been employed, it
seems to have been necessary and proper, and not to have been
compensated beyond a fair and reasonable amount. Where compensation
has been allowed to the Attorney General, it has been for services
rendered which did not belong to his office, which he was in no
manner bound to perform, and for which, therefore, if he did
perform them, he was entitled to be paid as any other professional
man would be. . . ."
Id. at 930-931.
[
Footnote 2/2]
Title 28 U.S.C. § 516 provides:
"Except as otherwise authorized by law, the conduct of
litigation in which the United States, an agency, or officer
thereof is a party, or is interested, . . . is reserved to officers
of the Department of Justice, under the direction of the Attorney
General."
[
Footnote 2/3]
Title 28 U.S.C. § 501 provides that "[t]he Department of Justice
is an executive department of the United States. . . ." Section
505, in turn, provides that
"[t]he President shall appoint in the Department of Justice, by
and with the advice and consent of the Senate, a Solicitor General,
learned in the law, to assist the Attorney General in the
performance of his duties."
[
Footnote 2/4]
Although this conflict could be avoided if the Solicitor General
were to authorize certiorari and delegate control of the litigation
in every case in which a coordinate branch asserts an interest, I
doubt that Congress intended that the mandatory language of §
518(a) apply to Congress and the Judiciary merely so that the
Solicitor General could then simply reallocate control of the
litigation back to them whenever requested to do so.
[
Footnote 2/5]
In 1978, legislation was enacted creating the Office of Senate
Legal Counsel.
See 92 Stat. 1875, 2 U.S.C. § 288
et
seq. (1982 ed. and Supp. III). Title 2 U.S.C. § 288e(a)
provides:
"When directed to do so . . . , the Counsel shall intervene or
appear as
amicus curiae in the name of the Senate . . . in
any legal action or proceeding pending in any court of the United
States . . . in which the powers and responsibilities of Congress
under the Constitution of the United States are placed in
issue."
Section 2881 further provides that "[p]ermission to intervene as
a party or to appear as
amicus curiae under section 288e .
. . shall be of right. . . ."
And § 288k relieves the Attorney General of certain
representational responsibilities when notified that the Senate
Counsel is handling the matter and also requires that the Attorney
General
"notify the Counsel with respect to any proceeding in which the
United States is a party of any determination by the Attorney
General or the Solicitor General not to appeal any court decision
affecting the constitutionality of an Act . . . within such time as
will enable the Senate to direct the Counsel to intervene as a
party in such proceeding. . . ."
No similar statute provides for representation of the House of
Representatives, which declined coverage under § 288.
See
H.R.Conf.Rep. No. 95-1756, p. 80 (1978). Moreover, it does not
appear that, in enacting § 288, Congress intended to create an
exception to § 518(a), nor does it appear that Congress saw a need
to do so. Rather, the Senate determined that
"the interests of Congress as an institution make its present
reliance on the
ad hoc services of the Justice Department
and private counsel wholly unsatisfactory."
S.Rep. No. 95-170, p. 11 (1977). Representation by the
Department of Justice was deemed unsatisfactory because
"[t]he Department of Justice is a part of the executive branch,
and its first and foremost responsibility is to represent the
interests of the President and the executive branch,"
id. at 11-12, thus creating an unacceptable conflict of
interest. The continued reliance on private representation in cases
involving a conflict with the Department of Justice was also
rejected because of the high cost of retaining private counsel on a
case-by-case basis, because of the need to maintain consistency
among legal positions taken by the Senate, and because there is
often insufficient time when the need for representation arises to
locate and retain private counsel.
See id. at 14-15. In
essence, the Senate saw a need to hire in-house counsel, not a need
to create an exception to § 518(a) permitting a form of legal
representation that Congress has engaged in for years.