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Sunday, October 02, 2016

Newby and the Duty to Defend Indepedent Agencies and Commissions in Court

I am delighted to have the opportunity to participate in the Prawfsblawg election symposium! For my first contribution, I want to discuss an important issue implicated by a recent election-related case that extends far beyond election law.

In League of Women Voters of the United States v. Newby, the D.C. Circuit (in a 2-1 ruling) overturned the decision of the U.S. Election Assistance Commission's ("EAC") Executive Director, Brian Newby, to revise the state-specific instructions accompanying the federal voter registration form. The revisions would have required applicants from Georgia, Kansas, and Alabama to provide documentary proof of citizenship, such as a copy of a birth certificate, passport, or naturalization papers, to use the federal form to register to vote. Those states had requested changes to the instructions because their laws limit the right to vote to U.S. citizens and generally require people to provide such proof of citizenship to register.

I will discuss the merits of the D.C. Circuit's ruling--with which I disagree--in a separate post later this week. Here, I want to discuss a remarkable aspect of the case: the Obama Administration's Justice Department ("DOJ") completely refused to defend Newby's actions in court.  Although DOJ purported to represent both the Commission -- which is an independent, bipartisan agency -- and Newby in his official capacity and was filing briefs on behalf of both parties, it expressly disavowed the legality of Newby's actions and joined in the plaintiffs' request for a preliminary injunction to prevent the changes to the instructions he approved on the EAC's behalf from taking effect.

It's not as if the Commission itself subsequently took any action to disapprove or nullify Newby's actions. To the contrary, at least one of the three subsequently appointed Commissioners agreed with his decision to update the instructions. Nevertheless, despite the fact that nonfrivolous, colorable arguments could be made in defense of Newby's actions--indeed, some strong arguments may be made in support of them--DOJ completely refused to assert them in the briefs it filed for Newby and the Commission. It sought to nullify an official final action of an independent agency without any adversarial presentation of the issues, presentation of contrary authorities, or consideration of alternate remedies.

The district court allowed Kansas Secretary of State Kris Kobach and the Public Interest Legal Foundation to intervene to defend the revised instructions. But DOJ's actions nevertheless remain troubling. As an initial matter, there is something disturbing about allowing DOJ to file briefs on someone's behalf--even if they are party to a case solely in an "official capacity"--without that person's consent, especially when those briefs expressly advocate against that person's legal interests and affirmatively seek relief against that person.

Putting aside that issue (which arises largely as a function of which defendants a plaintiff chooses to name), DOJ's authority to refuse to defend against federal lawsuits is perhaps at its apex with regard to purely executive action by executive agencies under the current administration. If the President or his delegates determine that a member of the Executive Branch engaged in wrongdoing, the Government surely is not required to take that person's side and defend him or her. This power is likely just as broad with regard to executive actions that occurred in earlier administrations, though special care must be taken to ensure that Presidents and agency heads do not use essentially collusive litigation with ideologically aligned groups to nullify the actions of their predecessors when they would be unable to do so through the usual legislative or administrative process. See generally Michael T. Morley, Consent of the Governed or Consent of the Government? The Problems with Consent Decrees in Government-Defendant Cases, 16 U. Pa. J. Const. L. 637 (2014).

More complex problems arise when DOJ is required to defend the legal interests of entities outside the Executive Branch, which may conflict with those of the President. For example, Congress may enact laws that the President believes are unconstitutional, particularly on the grounds that they infringe upon purported Executive prerogatives. This summer, in Helman v. Department of Veterans Affairs, Attorney General Loretta Lynch notified the Speaker of the House and the U.S. Court of Appeals for the Federal Circuit that DOJ would not defend the constitutionality of provisions of the Veterans Access, Choice, and Accountability Act ("VACAA") that Congress had enacted two years earlier to limit appellate rights of senior career executives who are fired from the Department of Veterans Affairs. (Full disclosure: I represent a coalition of 12 military and veterans groups, including the VFW, AMVETS, Reserve Officers Association, and Marine Corps League that were permitted to intervene to defend the law's validity and advocate more narrowly tailored remedies for any constitutional concerns that may exist). In cases where DOJ refuses to defend a statute's validity out of concern for the President's Executive power, it is not really representing the interests of the Government as a whole, but rather the Executive Branch in particular, potentially at the expense of the independent legal interests and prerogatives of the Legislative Branch.  

Cases such as Newby present similar concerns.  A President may disagree with the desirability, legality, or even constitutionality of an independent agency's or commission's actions or determinations.  If the President can undermine or even nullify those actions by simply preventing DOJ from defending them in court, then the agency or commission is independent in name only.  To be truly independent, an entity must have independent litigating authority.  While DOJ has tremendous litigation experiences and resources for an independent agency or commission to call upon if it so chooses, it should not be compelled to be represented in court by attorneys acting under an institutional conflict of interest.  One solution is to allow the entity to either represent itself or retain outside counsel of its choice.  Another possibility is to be flexible in allowing outside intervention and applying Article III's rules concerning standing.  Finally, Congress could authorize the creation of a small entity, akin to either an Office of Independent Counsel or a public defender's office, to represent the interests of governmental agencies or officials outside the Executive Branch whose legal (or potentially even political) interests clash with those of the President.  In any event, if DOJ is going to undertake to represent the Government or an independent agency in a case, it reasonably should be expected to present the court with colorable, nonfrivolous arguments in favor of congressional or independent agency actions or enactments. 

Posted by Michael T. Morley on October 2, 2016 at 02:07 AM in Civil Procedure, Constitutional thoughts, Current Affairs | Permalink


Prof. Morley,

I helped defend the EAC in its first encounter with this issue. (I am now in private practice and have no involvement or insider knowledge of how this case is being litigated.) I agree that this case is an interesting case study as to the obligation of defending agency action, but I'm disappointed that you are not grappling with what makes it so interesting. This is a case where the agency under one executive director took one view of the law, got sued and prevailed. Then the agency (and I have not followed this closely enough to know how) retained a different executive director who now asserts exactly the view of the law that lost in the first litigation. So to me the question is, what is the DOJ's obligation to defend the precise position it just got finished arguing (successfully) to the Tenth Circuit and to the Supreme Court was incorrect, particularly given that the DOJ also has its own authority to enforce and construe the voting rights law at issue? I have no strong preconceived view on this but I would like to see discussion of the issue that actually acknowledges it. To me this is an exceedingly difficult and complex question that deserves serious thought. A similar fact pattern may recur, particularly in this era of congressional refusal to confirm presidential appointees that can result (as it did here) in the loss of a president's ability to exert any political control and ultimately (as here) what amounts to a rogue agency that is acting contrary to the will of the administration as a whole. I am inclined to believe that the DOJ is not obligated to defend such actions but I'm willing to hear argument to the contrary.


Posted by: Sasha Samberg-Champion | Oct 5, 2016 4:41:26 PM

Of course, strictly speaking there is no provision for independent agencies in our Constitution. I guess this is what we get for mangling the Constitution to allow them. We could just admit that they are not independent. Which would have the added benefit of introducing some political accountability to them. (Remember the White House's response to the IRS targeting scandal: the IRS is an independent agency, we have no responsibility for its actions.)

Posted by: biff | Oct 4, 2016 9:38:13 PM

Thanks for your comments! To respond to your questions:

1. Attorneys have an ethical obligation to represent their client. When dealing with organizational clients in general, and governmental clients in particular, difficult questions can arise over who, precisely, the client is. When a specific individual is singled out by name as a litigant, however, it troubles me that the attorney supposedly representing them -- in any capacity -- may file a brief over their objection that does not actually represent their interests or raise colorable, nonfrivolous claims or defenses in their favor. I recognize, of course, that the notion of suing a government employee in his or her official capacity is, at least in part, an artifact of sovereign immunity restrictions (which scholars have critiqued at great length). But when this process causes an individual official to be named as a defendant, it is almost Kafkaesque that a government agency can file a brief in that person's own name admitting fault. To be clear, I do not contend that the D.C. Rules of Professional Responsibility actually prohibit this, but I believe they probably should.

2. Newby had acted pursuant to a delegation of authority from the EAC. His decision to change the instructions accompanying the federal voter registration form were the "final agency action" challenged under the APA. Thus, although there was some dispute over whether he had acted within the scope of his authority, his actions were treated as those of the Commission itself. And, as a matter of public record, the Commission did not take any further steps -- at least none that I've seen in any of its public issuances -- to reverse, disavow, or otherwise nullify his decision.

EAC Commissioner Christy McCormack has spoken publicly about this case. She relates that she and Newby were expressly told by DOJ that neither the EAC nor they as individuals could file their own briefs as party litigants in the case (she didn't mention the possibility of an amicus). In any event, this was not the type of proceeding in which the EAC or its officials had a statutory right to appear separately. Cf. 28 U.S.C. 2348 (allowing an agency to appear separately from DOJ in petitions for review of agency actions directly before U.S. courts of appeals).

As a policy matter, if Congress wishes to create an independent agency, it should vest that entity with the power to assert independent litigating authority. More broadly, an argument could be made that, when statutes deem certain entities to be "independent," that should be read as presumptively conferring a right of independent litigating authority. Otherwise the Executive Branch -- the President -- gets an effective veto over the supposedly independent agency's actions simply by refusing to defend them or even conceding their invalidity (in briefs filed in the agency's own name!).

3. Yes, you're right, all that would take place in court, but if the private intervenors had not joined the case, the challenged EAC actions could very well have been invalidated without adversarial presentation of the issues, identification of contrary authorities, or consideration of narrower remedies (unless the court sua sponte appointed an amicus to argue the other side or simply manufactured counterarguments on its own).

Posted by: Michael T. Morley | Oct 2, 2016 10:19:35 PM

I think that your excitement on this may be colored by your position on the merits of the underlying issue.

First, can you cite any authority for the proposition that a person sued only in his official capacity, a person who is not part of the governing body of the entity he serves but merely an executive director or suchlike, has the right to control the official-capacity litigation?

Second, you give no real reason to believe that the Commission itself disagreed with DOJ's judgment about what the law is (or should be). You give no reason to believe that, if there were such disagreement, DOJ told the Commission that the Commission was prohibited from having its own counsel present its views to the Court. (This happens sometimes, you know; DOJ/SG takes one position, and an independent agency or even a Department takes another view, in court).

Third, when you say that DOJ "sought to nullify an official final action of an independent agency without any adversarial presentation of the issues, presentation of contrary authorities, or consideration of alternate remedies," that's wrong: all that would take place in court.

Posted by: Sam | Oct 2, 2016 6:52:48 PM

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