485 U.S.

693
108 S.Ct. 1502
99 L.Ed.2d 785

UNITED STATES, Petitioner

v.
PROVIDENCE JOURNAL COMPANY and Charles M.
Hauser.
No. 87-65.
Argued Jan. 20, 1988.
Decided May 2, 1988.

Syllabus
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. 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.
699-700.

(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, 107 S.Ct. 2124, 95 L.Ed.2d 740which 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 authoritydoes 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 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. 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.
706-707.
820 F.2d 1342 (CA1 1986) and 1354 (CA1 1987), 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. ----. STEVENS, J.,
filed a dissenting opinion, in which REHNQUIST, C.J., joined, post, p. ---. KENNEDY, J., took no part in the consideration or decision of the case.
Robert D. Parrillo, Providence, R.I., for petitioner.
Floyd Abrams, New York City, for respondents.
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 violating an invalid temporary
restraining order against publication. Having concluded that the courtappointed 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.

* 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, 100 S.Ct. 1015, 62 L.Ed.2d 752 (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, November 15.1 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.2 Id., at 223.

Patriarca, however, declined to prosecute the contempt motion,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.4 Invoking Federal Rule of Criminal Procedure 42(b), 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.
5

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.

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,
108 S.Ct. 65, 98 L.Ed.2d 28 (1987).

II
9

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. Vuitton et Fils
S.A., 481 U.S. 787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (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. 5

10

Title 28 U.S.C. 518(a) provides in relevant part:

11

"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."

12

The Attorney General by regulation has delegated authority to the Solicitor

General:

13

"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:

14

"(a) Conducting, or assigning and supervising, all Supreme Court cases,

including appeals, petitions for and in opposition to certiorari, briefs and

arguments, and . . . settlement thereof." 28 CFR 0.20 (1987).

15

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,
524-525, 18 S.Ct. 701, 702-703, 42 L.Ed. 1130 (1898); Confiscation Cases, 7
Wall. 454, 458, 19 L.Ed. 196 (1869).

B
16

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),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 804, 107 S.Ct., at 2136
(emphasis added). See also Gompers v. Bucks Stove & Range Co., 221 U.S.
418, 445, 31 S.Ct. 492, 499, 55 L.Ed. 797 (1911) ("[P]roceedings at law for
criminal contempt are between the public and the defendant . . .").

17

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, 696, 94 S.Ct. 3090, 3102, 41 L.Ed.2d
1039 (1974).

18

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, 406, 48
S.Ct. 348, 351, 72 L.Ed. 624 (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).
19

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 793,
107 S.Ct., at 2130. 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 essential to ensuring that the
Judiciary has a means to vindicate its own authority without complete
dependence on other branches." Id., at 796, 107 S.Ct., at 2131-2132. 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.

20

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.7 But that
disagreement does not interfere 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 contemner, the necessity that required the appointment of an
independent prosecutor has faded and, indeed, is no longer present.8
21

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 contemner
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 contemner 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 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,
102 S.Ct. 1965, 72 L.Ed.2d 437 (1982) (order appointing amicus curiae in
support of judgment); United States v. Fausto, 480 U.S. 904, 107 S.Ct. 1344, 94
L.Ed.2d 516 (1987) (same).

22

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:

23

"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."

24

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.

25

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 Court
in Young; rather, it " 'has been many times decided and may be regarded as
settled law.' " Young, 481 U.S., at 795, 107 S.Ct., at 2131, quoting Michaelson
v. United States ex rel. Chicago, St. P. M., & O.R. Co., 266 U.S. 42, 65-66, 45
S.Ct. 18, 19-20, 69 L.Ed. 162 (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.9

C
26

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 salutory 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.

27

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 801, 107 S.Ct., at 2134. Under the special prosecutor's interpretation of
518(a), whereby a 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, 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 courtwhose judgment of contempt has
been reversed on appealwarrants attributing such power to the district judge.
III
28

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 States is interested," within the meaning of 518(a),
regardless of who is appointed by the district court to prosecute the action.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.

29

It is so ordered.

30

Justice KENNEDY took no part in the consideration or decision of this case.

31

Justice SCALIA, concurring.

32

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, 107
S.Ct. 2124, 95 L.Ed.2d 740 (1987). I continue to believe, however, that district
courts possess no power, inherent or otherwise, to prosecute contemners for
disobedience of court judgments and no derivative power to appoint an attorney
to conduct contempt prosecutions. See id., at 825, 107 S.Ct., at 2147 (SCALIA,
J., concurring in judgment).

33

Justice STEVENS, with whom THE CHIEF JUSTICE joins, dissenting.

33

Justice STEVENS, with whom THE CHIEF JUSTICE joins, dissenting.

34

A statute enacted by the First Congress in 1789 created the office of Attorney
General of the United States and described some of the responsibilities of that
office. That statute provided:

35

". . . 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).

36

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 1506-1507. In substance, however, the provision has remained unaltered for
nearly 200 years; the Attorney Generaland now the Solicitor General as well
is charged with conducting all litigation before this Court in which the
United States is "concerned" or "interested."

37

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, 107 S.Ct. 2124, 95 L.Ed.2d 740 (1987), legislative contempts, see
Anderson v. Dunn, 6 Wheat. 204, 5 L.Ed. 242 (1821); McGrain v. Daugherty,
273 U.S. 135, 47 S.Ct. 319, 71 L.Ed. 580 (1927), or the need to defend a
legislative veto, see INS v. Chadha, 462 U.S. 919, 103 S.Ct. 2764, 77 L.Ed.2d
317 (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, 543-544, 60 S.Ct. 1059, 1063-1064, 84 L.Ed. 1345 (1940) (citation
omitted); see also Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207, 106 S.Ct.
2485, 91 L.Ed.2d 174 (1986); O'Connor v. United States, 479 U.S. 27, 107
S.Ct. 347, 93 L.Ed.2d 206 (1986); California Federal Savings & Loan Assn. v.
Guerra, 479 U.S. 272, 284, 107 S.Ct. 683, 691, 93 L.Ed.2d 613 (1987); United
States v. Wells Fargo Bank, 485 U.S. 351, 108 S.Ct. 1179, 99 L.Ed.2d 368
(1988).
38

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
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."1 Id., at 931.

39

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. (13 Otto) 168, 26 L.Ed. 377 (1881); The Pocket Veto Case, 279 U.S. 655,

49 S.Ct. 463, 73 L.Ed. 894 (1929); Powell v. McCormack, 395 U.S. 486, 89
S.Ct. 1944, 23 L.Ed.2d 491 (1969); Gravel v. United States, 408 U.S. 606, 92
S.Ct. 2614, 33 L.Ed.2d 583 (1972); INS v. Chadha, 462 U.S. 919, 103 S.Ct.
2764, 77 L.Ed.2d 317 (1983); Bowsher v. Synar, 478 U.S. 714, 106 S.Ct. 3181,
92 L.Ed.2d 583 (1986). Similarly, the interests of the Federal Judiciary, which
are certainly interests 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, 88 S.Ct. 269, 19 L.Ed.2d 305 (1967); Chandler v.
Judicial Council of Tenth Circuit, 398 U.S. 74, 90 S.Ct. 1648, 26 L.Ed.2d 100
(1970); Will v. Calvert Fire Ins. Co., 437 U.S. 655, 98 S.Ct. 2552, 57 L.Ed.2d
504 (1978); Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S. 787,
107 S.Ct. 2124, 95 L.Ed.2d 740 (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 counselsometimes
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, 47 S.Ct. 21, 71 L.Ed. 160 (1926); Bob Jones University v. United
States, 456 U.S. 922, 102 S.Ct. 1965, 72 L.Ed.2d 437 (1982) (appointing
counsel), 461 U.S. 574, 103 S.Ct. 2017, 76 L.Ed.2d 157 (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),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.
40

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 not seek certiorari in every 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,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.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 authorityabsent further legislation5
to deny Congress and the Judiciary access to this Court.
41

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 provisionthe Solicitor Generalplaces this
interpretation on its text. In his brief in this case, he submits:

42

"[Title] 28 U.S.C. 518(a), like the other statutes that vest the Attorney General
with exclusive control over litigation, applies to cases in which the United
States is 'interested' by virtue of the constitutional and statutory responsibilities
of the Executive Branchthe 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.

43

Because I agree with that interpretation of the statute, I respectfully dissent.

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.

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. 5871. 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.
3

Our decision in Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S.
787, 107 S.Ct. 2124, 95 L.Ed.2d 740 (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 801, 107
S.Ct., at 2134.

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.

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, 108 S.Ct.
388, 98 L.Ed.2d 327 (1987); Diamond v. Charles, 476 U.S. 54, 63-64, 106
S.Ct. 1697, 1703-1704, 90 L.Ed.2d 48 (1986).

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."

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, 764-765, n. 9, 68 S.Ct. 880, 892, n. 9, 92
L.Ed. 1055 (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).
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 801, 107 S.Ct., at 2134.

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. 27, 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, 108 S.Ct. 1010,
98 L.Ed.2d 976 (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 practiceof
which we assume Congress is awareof private prosecutions of contempt
actions. See Young v. United States ex rel. Vuitton et Fils S.A., 481 U.S., at
793-796, 107 S.Ct., at 2130-2132.
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, 106 S.Ct. 3181, 92 L.Ed.2d 583 (1986), and which in some instances
is directly authorized by statute, see, e.g., 2 U.S.C. 288e(a).
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.

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, 430, 69 S.Ct. 1410, 1413, 93 L.Ed. 1451
(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.

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 footingof 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.
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."

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."

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.

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-bycase 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.