How are agency disputes resolved?

A reader presented the following topic: Frequently different government agencies have radically different interpretations of the same law. Generally such interagency disagreements have little impact on private parties. However sometimes there may be a considerable impact. How are these sorts of disputes among agencies resolved?

The question of how government agencies resolve their disputes raises interesting constitutional questions.From basic civics class every American is familiar with the government's separation of powers and the resulting system of checks and balances. Congress makes the laws the executive branch administers the laws and the courts interpret the laws. The responsibilities of each branch overlap preventing any one branch from going too far without involving the others. If the administration is misapplying a law Congress may rewrite it or the courts may declare the implementation to be invalid.

On the other hand some matters are committed exclusively to the discretion of a particular branch. The internal organization and administration of Congress is left to that branch and the internal affairs of the courts are within their own discretion. By the same token matters of interest within the executive branch alone are left to that branch to resolve.

Most laws are intentionally broad leaving agencies wide latitude in their application. As a consequence disagreements among agencies on the administration of a law are not uncommon. A private party that is directly affected by a disagreement among agencies may turn to the courts for a resolution. However the courts have no jurisdiction to decide a purely intragovernmental dispute that does not directly affect the rights of private parties. See e.g. United States v. Julie Research Laboratories Inc. 881 F.2d 1067 (Fed. Cir. 1989) (whether an agency must reimburse the judgment fund for amounts paid to a successful litigant does not affect the litigant's interest and is nonjusticiable).

Larger disagreements among agencies within the executive branch may be decided by the president. More frequently however the Office of Management and Budget may facilitate the resolution of management issues.

However many disputes among agencies involve the interpretation of one or more laws. On questions of legal interpretation the attorney general has the primary responsibility within the executive branch. Thus the head of each agency may ask the attorney general to provide advice and opinion on legal questions. 28 U.S.C. § § 511-513. Furthermore the attorney general has the authority to decide legal disputes between different executive agencies. See Executive Order 12146 3 C.F.R. 409 as amended by Executive Order 12608 3 C.F.R. 245 (1988). Within the Justice Department the attorney general has delegated these powers to the Office of Legal Counsel.

Opinions by the attorney general are not binding on any court. However most courts will treat such opinions as persuasive and will accord them such deference as is given to the opinions of other able persons learned in the law.

Although the head of any executive agency may request an opinion the attorney general is not obligated to respond to a request from Congress for a formal opinion. 36 Ops. Atty. Gen. 532 (1932).In a series of opinions the attorney general has established the ground rules under which issues will be resolved. A request for an opinion must be made through the head of the agency. 21 Ops. Atty. Gen. 174 (1895). As a matter of policy an opinion ordinarily will not be rendered on a question that a private party may take to court. 40 Ops. Atty. Gen. 286 (1943). The attorney general will issue an opinion concerning a transaction between the government and a private person only when the transaction raises a substantial and genuine issue of law affecting the agency. An opinion will not be issued solely for the benefit of a private person.

Questions involving the payment of money should be addressed to the comptroller general. The attorney general will not render an opinion on such questions unless they are of great importance. 21 Ops. Atty. Gen. 181 (1894).

The question of law on which the opinion is requested must be formulated specifically and be accompanied by the statement of facts involved. 39 Ops. Atty. Gen. 425 (1940). An opinion will be based only on the specific facts set forth in the request. The attorney general will not conduct an investigation of the evidence or make findings of disputed fact. The agency head requesting the opinion must provide assurance that the stated facts are true. Even so it is likely that up to a year may pass from the time an opinion is requested until it is issued.

Obviously given the extensive ground rules official opinions by the attorney general are infrequent. As a natural and probably desirable consequence agencies generally try to work out their disputes informally without involving the DOJ. On the other hand if an impasse is reached an agency has the right to request a formal ruling.

Peckinpaugh is a member of the government contracts section of the law firm of Winston & Strawn Washington D.C. Contact him at carl@carl.com or by voice mail at (703) 876-5151 extension 2965. This column also can be found on Federal Computer Week's World Wide Web page at www.fcw.com.

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