Representation of the United States Sentencing Commission in Litigation

Headnotes: 

The Attorney General may, consistent with 28 U.S.C. § 516, permit the United States Sentencing Commission to independently present as amicus curiae its views respecting its status and authority to a court in litigation where it has been named as a party defendant.

The Justice Department remains responsible for conducting the litigation, for representing the Sentencing Commission as a party defendant, and for exercising its own independent judgment as to the position of the United States on the merits of the issues involved.

If the Sentencing Commission chooses independently to present its views in court, it may do so only through individuals properly appointed as officers o f the United States pursuant to the Appointments Clause of the Constitution.

Although any counsel appointed to present the Sentencing Commission’s position would be subject to the criminal conflict of interest laws, the consequences of coverage can be mitigated somewhat for temporary or part-time employees in the executive branch by their appointment as “special government employees” under 18 U.S.C. § 202(a). Because this designation is not available for judicial branch appointees, the Sentencing Commission may wish to ask the Attorney General to appoint as a special government employee any private counsel retained by it to represent its views in court.

Updated July 9, 2014