UNITED STATES DEPARTMENT OF JUSTICE, PETITIONER V. EVELYN FALKOWSKI No. 83-2034 In the Supreme Court of the United States October Term, 1983 The Solicitor General, on behalf of the United States Department of Justice, petitions for a writ of certiorari to review the judgment of the United States Court of Appeals for the District of Columbia Circuit in this case. Petition for a Writ of Certiorari to the United States Court of Appeals for the District of Columbia Circuit PARTIES TO THE PROCEEDING The United States Department of Justice is the only petitioner, and Evelyn Falkowski is the only respondent. The Equal Employment Opportunity Commission was a defendant-appellee below, but we do not seek review of any portion of the court of appeals' judgment affecting the Commission (see note 3, infra). TABLE OF CONTENTS Opinions below Jurisdiction Statutes and regulations involved Statement Reasons for granting the petition Conclusion Appendix OPINIONS BELOW The opinion of the court of appeals (App., infra, 1a-27a) is reported at 719 F.2d 470. The opinion on denial of rehearing (App., infra, 35a-38a) is not yet reported. The opinion of the district court (App., infra, 28a-31a) is unreported. JURISDICTION The judgment of the court of appeals was entered on October 14, 1983. A petition for rehearing was denied on January 12, 1984. By order of April 5, 1984, the Chief Justice extended the time within which to file a petition for a writ of certiorari until June 10, 1984. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1). STATUTES AND REGULATIONS INVOLVED Relevant provisions of the Administrative Procedure Act (APA), 5 U.S.C. 551 et seq., as well as the statutes (28 U.S.C. 516, 517, 519) and regulations (28 C.F.R. 50.15, 50.16) that govern the provision of government legal representation for federal employees who are sued in their individual capacities, are reprinted at App., infra, 39a-47a). QUESTIONS PRESENTED 1. Whether the Administrative Procedure Act, 5 U.S.C. 701-706, authorizes judicial review of the Department of Justice's decision not to provide legal representation for a federal employee who was sued for damages in her individual capacity for actions undertaken on the job. 2. If the Department's decision is subject to review, whether the court of appeals applied the proper scope of review in overturning that decision. STATEMENT 1. This case grows out of an acrimonious, decade-long dispute between two employees of the Equal Employment Opportunity Commission (EEOC): respondent Evelyn Falkowski, formerly director of the Birmingham, Alabama, office, and Bertram Perry, formerly the deputy director of that office. Respondent was appointed to her position in the Birmingham office in 1974 pursuant to a consent decree settling her suit against the EEOC for sexual discrimination. Shortly after her transfer, the conflict with Perry began. App., infra, 3a. "Perry alleged that the friction stemmed from his justified protests against (respondent's) mismanagement," while respondent attributed the conflict to "rank insubordination" and Perry's "oppressive behavior" (ibid.). The EEOC attempted to transfer both respondent and Perry, but both brought suit to block their transfers (App., infra, 4a). Respondent, who is white, first filed administrative complaints charging her black, male superiors in the EEOC with sexual and racial discrimination (id. at 4a n.2). She then brought suit in the United States District Court for the Northern District of Alabama, alleging breach of the 1974 consent decree (id. at 4a). Perry, who is black, sued respondent and other EEOC supervisors in the same court, claiming racial discrimination and retaliation for "whistle-blowing" (ibid.). See Perry v. Golub, 400 F. Supp. 409 (N.D. Ala. 1975), vacated as moot, 594 F.2d 862 (5th Cir. 1979). After a hearing in which EEOC attorneys represented respondent and the other defendants, the district court enjoined Perry's transfer; respondent's transfer was likewise suspended by informal agreement (App., infra, 5a). In 1976, the district court dismissed respondent as a defendant in Perry's suit. Respondent unsuccessfully appealed the dismissal, claiming that the EEOC attorneys had inadequately represented her and that she wished to remain in the case to clear her name (ibid.). Since then, "(n)umerous other controversies have emerged in the Perry v. Golub litigation" (App., infra, 6a). 2. In the meantime, respondent set out to gather evidence of Perry's insubordination. Without Perry's knowledge she recorded a conversation with Perry in her office in 1977. The recording revealed not only insubordination but "a regrettable stream of obscenities and racial epithets" on Perry's part. App., infra, 7a. As a result of this incident, the EEOC sought (unsuccessfully) to discharge respondent for violating its rule barring such recordings (EEOC Order 165); it also moved (unsuccessfully) to discharge Perry based on the contents of his remarks. App., infra, 7a. Perry then filed suit in the Northern District of Alabama against respondent and EEOC chairwoman Eleanor Holmes Norton. In 1981, Perry obtained voluntary dismissal of this action. Respondent unsuccessfully sought leave to file counterclaims against Perry; she also failed in her efforts to recover costs and attorneys fees from Perry and the Commission. App., infra, 8a; see Perry v. Falkowski, No. CV78-PT-0935-S (N.D. Ala. July 22, 1981), aff'd, No. 81-7643 (11th Cir. Oct 25, 1982), cert. denied, No. 82-1914 (Oct. 3, 1983). 3. After Perry filed his second suit against respondent, respondent requested that the government provide her with legal representation (App., infra, 11a). After some delay, the EEOC, in accordance with the applicable regulations (28 C.F.R. 50.15, 50.16), sent the Department of Justice a letter requesting representation for respondent and certifying that "'although (respondent) acted improperly (in recording the conversation) she was acting within the scope of her duties.'" C.A. App. 102-103; App., infra, 11a-12. The Department of Justice denied the representation request. In a letter to respondent and the EEOC, Assistant Attorney General Barbara Babcock of the Civil Division explained (App., infra, 12a): In light of the clearly personal nature of the dispute between Ms. Falkowski and Mr. Perry giving rise to the litigation, the tape recording by Falkowski of Mr. Perry's remarks in contravention of an internal EEOC directive, and the existence of separate actions by Ms. Falkouski and Mr. Perry challenging proposed personnel actions against them, I do not believe it is in the interest of the United States to reimburse Ms. Falkowski for her legal costs. Accordingly, pursuant to 28 C.F.R. 50.15(a)(2), I am denying Ms. Falkowski's request. 4. Respondent then brought suit against the EEOC and the Justice Department in the United States District Court for the District of Columbia. Among other things, she claimed that the Justice Department had violated the Administrative Procedure Act, 5 U.S.C. 706, by arbitrarily and capriciously refusing to provide her with legal representation in Perry v. Falkowski, supra. /1/ The district court granted summary judgment for the government, holding that Assistant Attorney General Babcock's letter set forth adequate reasons for her conclusion that providing representation would not be "in the interest of the United States" (App., infra, 30a). /2/ The court therefore found it unnecessary to address the government's contention that its decision not to furnish representation was exempt from judicial review under the APA (ibid.). 5. The court of appeals reversed the summary judgment on respondent's claim against the Justice Department (App., infra, 21a-26a). /3/ The court held that the Department's decision not to provide representation was subject to judicial review under the APA and did not fall within the exception in 5 U.S.C. 701(a)(2) for action "committed to agency discretion by law" (App., infra, 21a n.16). In reaching this conclusion, the court relied on Natural Resources Defense Counsel, Inc. v. SEC, 606 F.2d 1031, 1043-1047 (D.C. Cir. 1979), in which the court concluded (id. at 1043-1044) that the applicability of Section 701(a)(2) "turns on pragmatic considerations," including particularly "the need for judicial supervision to safeguard the interests of the plaintiffs; the impact of review on the effectiveness of the agency in carrying out its congressionally assigned role; and the appropriateness of the issues raised for judicial review." In applying those factors here, the court opined summarily in a footnote (1) that persons denied representation are "entitled" to an agency decision that is "at least rational and free from abuse of discretion"; (2) that review could in "most" cases be "handled" at the "dismissal or summary judgment" stage and therefore will not prove burdensome; and (3) that the subject is not inappropriate for judicial review because the court's scrutiny "is in most cases limited to determining whether the reasons articulated by the agency make sense," a task which the court said is not "beyond our powers" (App., infra, 21a-22a n.16). The court then conducted a detailed review of the government's reasons for refusing to provide representation in this case (App., infra, 22a-25a) and concluded that those reasons were "facially insufficient" (id. at 21a). The court found that "'the clearly personal nature of the dispute between (respondent) and Mr. Perry'" did not provide a "rational reason" for denying representation because "government counsel represent federal officials as defendants in quite acrimonious Title VII actions on a regular basis" (id. at 23a). The court likewise concluded that respondent's violation of an EEOC rule by surreptitiously tape recording the conversation with Perry could not justify the government's refusal to provide her with representation because the government has sometimes paid for private counsel to represent federal officials who were sued in their individual capacities and who also happened to be under federal criminal investigation at the time (id. at 23a-24a). The court held that representation could not be denied to respondent on the basis of the overlapping suits in which she and Perry were challenging the EEOC's efforts to discharge them (id. at 24a-25a). The court stated (id. at 24a) that this rationale was "the least satisfactory" and "appear(ed) retaliatory." /4/ Finally, the court suggested that respondent was accorded "disparate treatment" because the court's extra-record review of the government's handling of representation requests indicated that denials "were apparently few and far between" (id. at 25a). The government's petition for rehearing was denied with Judges Bork, Scalia, and Starr voting for rehearing en banc (App., infra, 33a-34a). In a statement joined by Judge Scalia, Judge Starr wrote (id. at 36a): In my view a court cannot appropriately demand reasons for litigation decisions statutorily entrusted to the Attorney General or his representatives in order to evaluate judicially whether those decisions, in the panel's words, "make sense" under the APA. Observing (id. at 35a) that this case involves "an issue of * * * grave importance under bedrock principles of separation-of-powers," he added (id. at 36a): This intrusion by the Article III branch into the discretionary judgments of a coordinate branch is particularly sensitive in the context of reviewing litigation decisions by the Executive, where various considerations of policy, tactics and the allocation of limited resources require complex and delicate balancing. He also noted (App., infra, 36a) that the statutory provision in question not only empowers the Attorney General to provide government legal representation for federal employees who are sued but also authorizes him "to bring legal actions, to intervene in actions, or to file amicus briefs in actions filed by (other parties)." Judge Starr observed (id. at 36a n.3) that "the panel (did) not offer any rationale limiting judicial review of actions by the Attorney General under section 517 to decisions to represent government employees." REASONS FOR GRANTING THE PETITION This case presents questions of great importance with respect to judicial review of discretionary government decisions under the Administrative Procedure Act, 5 U.S.C. 701-706. Although the APA does not authorize judicial review of actions "committed to agency discretion by law" (5 U.S.C. 701(a)(2)), the United States Court of Appeals for the District of Columbia Circuit appears to be in the process of reading this exception out of the law, so that even the government's litigation decisions -- paradigm examples of actions hitherto regarded as purely discretionary -- have been held subject to review. In Chaney v. Heckler, 718 F.2d 1174 (D.C. Cir. 1983), petition for cert. pending, No. 83-1878, the court held that the Food and Drug Administration's decision not to undertake investigative or enforcement action regarding the use of lethal injections to administer death sentences was subject to judicial review. On the same day, the court in this case reached the startling and wholly unprecedented conclusion that the Justice Department's decision not to provide legal representation for a federal employee sued in her individual capacity was likewise reviewable under the APA. These decisions in themselves are harmful to important government interests. More important, they are symptomatic of the District of Columbia Circuit's erroneous approach to the question of the reviewability of purely discretionary executive decisions, a question that deeply implicates the doctrine of separation of powers. Equally extreme results may be expected as long as that approach remains uncorrected. This is obviously a matter of great importance, and affects all of those government agencies whose discretionary actions may be reviewed in the District of Columbia Circuit. Consideration of this case together with Chaney will, we believe, assist the Court in assessing whether the lower courts have correctly understood and applied the doctrine of nonreviewability of purely discretionary executive decisions. Chaney and this case each throw a different sort of light on the problem. Chaney relates to the implementation of an administrative enforcement program, uhile this case involves the classical executive function of determining whether the government should participate in litigation. /5/ 1. The court of appeals' decision allowing judicial review under the Administrative Procedure Act (5 U.S.C. 701-706) of the government's refusal to furnish legal representation for a federal employee sued in her individual capacity is clearly wrong. /6/ Under the APA, 5 U.S.C. 701(a)(2), final agency action is not subject to judicial review if it is "committed to agency discretion by law." This bar to judicial review applies where the governing "'statutes are drawn in such broad terms that in a given case there is no law to apply.'" Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 410 (1971) (quoting S. Rep. 752, 79th Cong., 1st Sess. 26 (1945)). In making this determination, "the ultimate analysis is always one of Congress's intent" (Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. 444, 454 (1979). See also Barlow v. Collins, 397 U.S. 159, 166 (1970); Schilling v. Rogers, 363 U.S. 666, 674 (1960). Cf. Block v. Community Nutrition Institute, No. 83-458 (June 4, 1984). Like Chaney, this is a case in which Congress has provided "'no law to apply'" and clearly did not intend to authorize judicial review. Under 28 U.S.C. 517, the Attorney General is authorized to send any officer of the Department of Justice "to attend to the interests of the United States" in any suit pending in federal or state court. Other federal statutes (28 U.S.C. 516, 519) vest the Attorney General with the authority to conduct and supervise litigation in which a federal officer is a defendant. None of these statutes, however, contains the slightest hint that Congress intended to confer upon individuals, such as respondent, the right to contest the Attorney General's exercise of this authority. Moreover, all of the statutes are "written in the language of permission and discretion" (Southern Ry. v. Seaboard Allied Milling Corp., 442 U.S. at 455). No statute requires the Attorney General to provide legal representation for every -- or indeed for any -- federal employee who is sued in his individual capacity. Nor does any statute provide standards for determining when such representation should be furnished, other than the direction in 28 U.S.C. 517 that the Attorney General should "attend to the interests of the United States." "(T)he permissive terms in which (these) provisions are drawn * * * persuasively indicate that their administration was committed entirely to the discretionary judgment of the Executive branch 'without the intervention of the courts'" (Schilling v. Rogers, 363 U.S. at 674, quoting Work v. Rives, 267 U.S. 175, 182 (1925)). It is also significant that these are not narrow statutes dealing solely with the provision of legal representation for federal employees who are sued. Instead, they are the same provisions that confer upon the Attorney General the broad authority to conduct the government's litigation. As Judge Starr observed (App., infra, 36a), it is upon these provisions that the Attorney General must rely when he decides "to bring legal actions, to intervene in actions, or to file amicus briefs in actions filed by parties other than the United States in courts around the nation." If Congress did not intend to authorize judicial review of the latter decisions -- and any such suggestion would be truly revolutionary -- it seems quite unlikely that Congress meant to permit judicial review of the decision involved in this case, which was taken under the identical statutory authority. The purpose and origins of these statutory provisions provide further persuasive proof that Congress never intended to authorize judicial review. As this Court has stated (Buckley v. Valeo, 424 U.S. 1, 138 (1976)): "(a) lawsuit is the ultimate remedy for a breach of the law, and it is to the President * * * that the Constitution entrusts the responsibility to 'take Care that the Laws be faithfully executed.' Art. II, Section 3." In the first Judiciary Act, the authority to litigate on behalf of the United States was delegated to the Attorney General and the United States Attorneys Act of Sept. 24, 1789, ch. 20, Section 35, 1 Stat. 92. In succeeding years, with the growth of government litigation, other officers in various departments were appointed to conduct suits for the government, and in many instances private attorneys were retained. See Cong. Globe, 41st cOng., 2nd Sess. 3035 (1870). The Department of Justice was created in 1870 to centralize all government litigation in one department under the Attorney General's direction (ibid.; Act of June 22, 1870, ch. 150, 16 Stat. 162). The statutes at issue here derive from Section 5 of that Act (16 Stat. 162). /7/ Their purpose and effect was to delegate to the Attorney General and his appointees the responsibility, conferred upon the President in Article II, Section 3 of the Constitution, for conducting the government's litigation. Cong. Globe, 41st Cong. 2d Sess. 3035-3039, 3065-3067, 4490-4491 (1870). There is nothing in the language or the legislative history of these statutes that suggests that Congress wished to subject the exercise of that authority to court supervision. Finally, as Judge Starr pointed out (App., infra 35a-36a), the doctrine of separation of powers reinforces the conclusion that Congress did not mean to authorize judicial review of the executive's litigation decisions. It is the responsibility of the courts to decide cases, not to judge whether the executive's decision whether or not to participate in litigation "make(s) sense" (id. at 22a n.16). Arrogation of such authority would cast the judiciary in conflicting dual roles. Just as the Constitution's system of checks and balances would be eroded if the executive undertook to adjudicate cases and controversies, the doctrine of separation of powers is infringed by judicial supervision of the government's decision whether or not to conduct litigation, either on its own behalf or at the behest of one of its employees. Because Congress legislates against the background of these fundamental constitutional postulates, a conclusion that Congress intended to authorize judicial review here should not be reached in the absence of a clear and explicit congressional command. 2. Even if it is assumed that "law to apply" may be found in an agency's regulations, as well as its governing statutes, the applicable policy guidelines in this case (28 C.F.R. 50.15) provide no workable standards under which decisions regarding representation could be revieued by the courts. The policy statement establishes a few eligibility requirements for representation: the employee must "be sued, subpoenaed, (or) charged" in "civil (or Congressional proceedings (or) in state criminal proceedings" (28 C.F.R. 50.15(a)), and the employee must not be a defendant in a related federal criminal case or the subject of a related federal criminal investigation (28 C.F.R. 50.15(a)(4) to (6)). If these threshold requirements are met, the Department of Justice "may" provide representation when that is "in the interest of the United States" (28 C.F.R. 50.15(a)). /8/ Determining whether something is "in the interest of the United States" seems a classic by law" and thus not subject to review under the APA. At most, the policy statement suggests two broad criteria to be used in making representation decisions. First, representation by a government attorney may be precluded if there are conflicts between the legal and factual positions of employees in the same case. See 28 C.F.R. 50.15(a)(9). /9/ Second, the government may decline to provide or pay for representation if the employee's legal position conflicts with the interests of the United States. See 28 C.F.R. 50.15(a)(7)(ii); 28 C.F.R. 50.16(a). Neither of these criteria provides an appropriate basis for judicial review. If the government denied representation due to a conflict between employees, it would often be difficult for the government to explain its decision without disclosing confidential information furnished by one of the employees and protected by the attorney-client privilege. Similarly, if representation were withheld or terminated because the employee's legal position conflicted with broader government litigation strategy, the deliberative process and attorney-client privileges would make a full explanation difficult if not impossible. Sending government lawyers into court to represent federal employees who are sued in their individual capacities is not simply the provision of an employment benefit, like sick leave or retirement pay. Rather, such representation is closely tied to the government's overall litigation strategy. For example, government attorneys, even when representing individual defendants, are not authorized to advance arguments that would be harmful to the government's broader interests. Thus, judicial review of the government's representation decisions will almost inevitably lead to court supervision over the details of the government's litigation decisions and strategy -- matters entrusted squarely to the discretion of the executive and traditionally protected by privilege. The court of appeals' intrusion in this case into one aspect of the government's discretionary decision-making in the area of litigation is matched by the court's intrusion in Chaney, where the court allowed judicial review of an agency's discretionary decision regarding the way in which its limited enforcement resources might best be employed. That the court's precedents have led to judicial review of even these purely discretionary determinations is a clear warning that the court's approach to the question of when review is appropriate has gone fundamentally awry. If the question at issue here -- the correctness of the Attorney General's decision whether providing legal representation is or is not in the interest of the United States -- is not a question "committed to agency discretion by law," it is hard to think of any case that could fall into that category. 3. Both Chaney and this case resulted from the court of appeals' effective abandonment of the legal standard prescribed in Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. at 410, i.e., whether the governing "'statutes are drawn in such broad terms that in a given case there is no law to apply.'" By some strange chemistry, the District of Columbia Circuit has concluded that the search for "law to apply" should not focus upon the statutory language or even upon Congress's intent as evidenced in the legislative history. Instead, the court consistently applies the following test: (t)he determination of whether there "is law to apply" turns on such pragmatic considerations as whether judicial supervision is necessary to safeguard plaintiffs' interests, whether judicial review will unnecessarily impede the agency in effectively carrying out its congressionally assigned role, and whether the issues are appropriate for judicial review. Chaney v. Heckler, 718 F.2d at 1185 (emphasis added). /10/ This formulation converts a question of statutory interpretation -- whether Congress intended the courts to review an agency's enforcement decisions -- into an essentially standardless, legislative decision -- whether, in the court's judgment, such review would be beneficial. As Judge Scalia has aptly observed, this test means that the court is free to intervene whenever it "think(s) it a good idea." Chaney v. Heckler, 724 F.2d 1030, 1031 (D.C. Cir. 1984) (dissent from denial of rehearing). And the court of appeals apparently thinks that review is always a good idea, except perhaps in cases where it is "beyond (its) powers" to determine whether an agency's action "makes sense." We do not think that this is what Congress had in mind in enacting the APA's review section, nor what this Court had in mind in announcing the Overton Park formulation. /11/ 4. The court of appeals' decision in this case threatens important government interests. Even if confined to decisions regarding representation of federal employees, the decision will cause serious problems. The potential for burdensome and intrusive judicial review may lead to unsound decisions regarding representation. And, as noted, when decisions denying representation are challenged, the government may often have great difficulty in explaining its actions without disclosing sensitive, privileged materials. There is also substantial danger that the court of appeals' decision may be extended beyond the narrow area of decisions denying representation at the outset of litigation. Under the court of appeals' reasoning, all of the following decisions, which are made under the same statutory authority and pursuant to the same policy guidelines, might also be held reviewable: a decision to provide government representation rather than paying for private counsel (or vice versa); a decision to terminate representation during trial; and a decision not to appeal or seek appellate review of an adverse decision. Furthermore, it is unsettling that the statutes involved in this case are the same ones under which the Department of Justice makes broader litigation decisions, such as whether to initiate suit, intervene in litigation, or participate as amicus curiae. See App., infra, 35a. Most important however, is the legal standard consistently employed by the District of Columbia Circuit in determining whether executive decisions are exempt from court review under Section 701(a)(2) of the APA. As long as that standard remains uncorrected, unjustified judicial intrusion into purely discretionary executive decisions will result. Chaney and this case are not aberrations; they are the logical product of the court of appeals' erroneous legal standard and the court's apparent preference, on policy grounds, for almost universal judicial supervision of how the Executive Branch exercises its discretion. 5. Even if the Department of Justice's decision not to provide legal representation was reviewable under the APA, it most certainly was not arbitrary and capricious, as the court of appeals held. The nature and scope of the review conducted by the court of appeals in this case is important in itself; it also warrants review because it will illuminate the issue of reviewability by casting light on the problems that review of government litigation decisions will inevitably entail. a. The Department provided three sound reasons for its decision not to provide representation for respondent. First, the government properly cited (see App., infra, 12a) "'the clearly personal nature of the dispute between (respondent) and Mr. Perry.'" As our statement shows (pages 2-4, supra), respondent and Perry, two federal employees, engaged in bitter, highly personal, and lengthy litigation. For attorneys employed or paid by the government to have espoused the cause of one or both would have been most unseemly. The government has far better uses for its limited litigation resources than to expend them by intervening in protracted and pointless personal feuds. Second, the government noted (see App., infra, 12a) that the lawsuit in which respondent sought representation arose out of conduct that violated an EEOC directive. The court of appeals correctly observed (id. at 23a-24a) that the government has sometimes provided private counsel for officials despite the fact that they were under government investigation. /12/ Nevertheless, the government is surely entitled to take the nature of the official's conduct into account in deciding how to employ its limited litigation resources. Officials believed to have acted properly or in good faith are obviously more deserving of representation than those who flout the government's own rules and then turn to the government for help. Finally, the government pointed out (see App., infra, 12a) that Perry v. Falkowski, supra, substantially overlapped separate actions in which respondent and Perry were contesting the EEOC's attempt to discharge them because of the taping incident. The existence of the latter suits would have created a serious conflict of interest for any government attorney assigned to represent respondent. As a practical matter, it would have been virtually impossible for any government attorney to represent her. The court of appeals itself observed (App., infra, 17a n.14) in discussing respondent's claim that EEOC attorneys provided her with inadequate representation in Perry v. Golub, supra: "As adverse parties in related litigation arising out of the same underlying dispute, the Commission * * * (and respondent) could not be adequately represented by the same counsel as a matter of law." See also App., infra, 20a n.15 ("EEOC attorneys were ethically bound not to represent (respondent) in the Perry v. Falkowski suit" because "(t)he agency * * * had interests adverse to (respondent) in related litigation arising out of the same underlying dispute"). Private counsel could have been provided for respondent at government expense, but funds for that purpose are severely limited (see 28 C.F.R. 50.16(a)). Moreover, due to the overlapping nature of Perry v. Falkowski, supra, and the suit regarding respondent's discharge, furnishing representation to respondent would have effectively subsidized her litigation against the EEOC. In deciding how to allocate its limited litigation resources, the government may seek to prevent the use of its funds to thwart government actions. b. Although the court of appeals suggested (App., infra, 22a n.16) that judicial review of government representation decisions will not greatly interfere with the government's exercise of discretion, the court's decision in this case shows that in fact it is prepared to engage in an intensive and exacting form of scrutiny. Here, the court did not consider the cumulative weight of the government's three reasons for denying representation but instead considered each reason in isolation. Moreover, the court found nothing improper about two of the reasons -- the personal nature of respondent's dispute with Perry and respondent's violation of an EEOC rule in taping their conversation. However, the court concluded -- apparently based on an extra-record review of the government's conduct of similar suits during the past decade -- that the government had not always applied these criteria (id. at 23a-24a) and had afforded respondent disparate treatment (id. at 25a-26a). Finally, although the government's third reason for withholding representation -- respondent's and Perry's overlapping suits against the EEOC -- was entirely proper, the court assumed that the government was actually claiming the right to deny representation as retaliation. The court's grudging construction and detailed disagreement with the government's reasons for its decision in this case suggest that future representation decisions will be intensively reviewed. The court's revieu of the government's decision in this case is particularly disturbing because the public record bearing on that decision was unusually detailed, due to the long and public dispute between respondent and Perry. In other cases, the attorney-client, work product, and deliberative process privileges will frequently protect much of the information relating to the government's decision. In our judgment, if there is to be any judicial review under the APA of the government's representation decisions, the courts must take into account the sensitive and often privileged nature of much of the explanatory information. In any event, under no appropriate standard of review can the government's decision in this case be characterized as arbitrary or capricious. CONCLUSION The petition for a writ of certiorari should be granted. Respectfully submitted REX E. LEE Solicitor General RICHARD K. WILLARD Acting Assistant Attorney General PAUL M. BATOR Deputy Solicitor General SAMUEL A. ALITO, JR. Assistant to the Solicitor General June 1984 /1/ She also alleged that t e EEOC had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. (& Supp. V) 2000e et seq., by denying her adequate government legal representation in Perry v. Golub, supra, and by improperly handling her request for representation in Perry v. Falkowski, supra (App., infra, 13a, 28a-29a). Respondent further alleged violations of the First and Fifth Amendments. These constitutional claims were dismissed by the district court, and respondent did not contest their dismissal on appeal. App., infra, 13a n. 11. /2/ The court also granted summary judgment for the EEOC and the Justice Department on respondent's Title VII claims (see App., infra, 28a-30a). The court held (id. at 28a n.1) that respondent's claim regarding the representation provided in Perry v. Golub, supra, was barred because respondent did not file an administrative complaint with the EEOC within the time required. With respect to respondent's claim regarding the EEOC's handling of her request for representation in Perry v. Falkowski, supra, the court noted (App., infra, 29a-30a) that the EEOC had done all that it could by asking that the Justice Department grant respondent's request and by providing the Department with the necessary information. /3/ The court of appeals affirmed the grant of summary judgment in favor of the EEOC on respondent's Title VII claim regarding the government representation provided in Perry v. Golub, supra (App., infra, 16a-19a). The court held (id. at 18a) that respondent was collaterally estopped from asserting that claim by virtue of an adverse decision on that issue in the Perry v. Golub, supra, litigation itself. The court reversed the grant of summary judgment for the EEOC on respondent's Title VII claim regarding the EEOC's handling of her representation request in Perry v. Falkowski, supra (App., infra, 19a-21a). The court held (id. at 20a-21a) that "the bare fact of formal Commission recommendation was not sufficient" and that "(t)he relevant factual inquiry instead should have been whether (the) EEOC acting out of discriminatory animus intentionally mishandled (respondent's) request so as to undercut the force of its formal recommendation on paper." Acknowledging (id. at 20a) that this test "places a heavy burden" on respondent, the court found (id. at 20a-21a) that there were genuine issues of material fact that precluded summary judgment. We do not seek review of this ruling. /4/ The court also rejected the government's argument that respondent's claim for reimbursement of attorney's fees was barred by sovereign immunity (App., infra, 26a n.16). Although we disagree with the court's holding, we do not seek review of this question. /5/ Chaney also involves other substantial questions and, accordingly, may be decided on other grounds if review is granted. /6/ This case is limited to the question of review under the APA, which permits agency action to be set aside if it is "arbitrary, capricious, (or) an abuse of discretion" (5 U.S.C. 706(2)(A)). As illustrated by respondent's second claim against the EEOC under Title VII of the Civil Rights Act of 1964, 42 U.S.C. (& Supp. V) 2000e et seq. (see App., infra, 19a-21a), an employee may contest the denial of representation on grounds of race, color, religion, sex, or national origin. 42 U.S.C. (& Supp. V) 2000e-16. /7/ Section 5 of the Act provided in pertinent part: (T)he Attorney General may, whenever he deems it for the interest of the United States, conduct and argue any case in which the government is interested, in any court of the United States, or may require the solicitor-general or any officer of his Department to do so. And the solicitor-general, or any officer of the Department of Justice, may be sent by the Attorney-General to any State or district in the United States to attend to the interests of the United States in any suit pending in any of the courts of the United States, or in the courts of any State, or to attend to any other interest of the United States. This provision was codified as Rev. Stat. 361 and 367 (1874 ed.), which were later enacted in modified form at 5 U.S.C. (1940 ed.) 306 and 316 and still later as 28 U.S.C. 516 and 517. 28 U.S.C. 519 is of more recent origin. Act of June 25, 1948, ch. 646, Section 507, 62 Stat. 910. The portion of that statute relevant here, which authorizes the Attorney General to "supervise" government litigation, overlaps 28 U.S.C. 507, which authorizes him to "conduct" such litigation. There is no indication whatsoever that this supervision was intended to be supervised in turn by the judiciary. /8/ It is noteworthy that neither the statute nor the regulations in any way use the language of "rights" or "entitlements"; they clearly do not contemplate giving the employee any sort of private "right" to be represented. /9/ In this situation, private counsel may be furnished at government expense, if funds are available. 28 C.F.R. 50.16(a). /10/ See also App., infra, 21a n.16; Investment Co. Institute v. FDIC, 728 F.2d 518, 526 & n.6 (D.C. Cir. 1984) (majority of panel expresses "discomfort with the test" to which circuit is bound); American Friends Service Committee v. Webster, 720 F.2d 29, 39-45 & nn.10, 13 (D.C. Cir. 1983) (literal application of Overton Park test provides "limited guidance"; must be supplemented by "more pragmatic analysis"); Local 1219, American Fed'n of Gov't Employees v. Donovan, 683 F.2d 511, 515 (D.C. Cir. 1982); Natural Resources Defense Counsel, Inc. v. SEC, 606 F.2d 1031, 1044 (D.C. Cir. 1979). /11/ Other courts of appeals adhere far more faithfully to the Overton Park standard. See, e.g., California v. Settle, 708 F.2d 1380, 1382 (9th Cir. 1983) (review available only if plaintiff alleges violation of "constitutional, statutory, regulatory or other legal mandates or restrictions"); Merrill Ditch-Liners, Inc. v. Pablo, 670 F.2d 139 (9th Cir. 1982) (same); Garcia v. Neagle, 660 F.2d 983, 987-989 (4th Cir. 1981) (same), cert. denied, 454 U.S. 1153 (1982); Jaymar-Ruby, Inc. v. FTC, 651 F.2d 506, 511 (7th Cir. 1981) (no law to apply where "Congress did not specify any statutory criteria"); Board of Trade v. CFTC, 605 F.2d 1016 (7th Cir. 1979) (concluding that judicial review unavailable based on statutory language, structure, purpose, and legislative history), cert. denied, 446 U.S. 928 (1980). Cf. Hondros v. United States Civil Service Comm'n, 720 F.2d 278, 292-293 (3d Cir. 1983). But see Colon v. Carter, 633 F.2d 964, 966-967 (1st Cir. 1980). /12/ In that situation, government representation is not permitted. 28 C.F.R. 50.15(a)(6). See 28 C.F.R. 50.16(a). APPENDIX