28 U.S. Code § 516 states:

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, and securing evidence therefor, is reserved to officers of the Department of Justice, under the direction of the Attorney General.

This seems to imply some exemptions existed at the time it was written or may have been anticipated in the future. Do any such exceptions exist?

1 Answer 1


I don't know of any comprehensive list, but several exemptions do exist:

As far as I know, non-DOJ litigators are limited to independent agencies that aren't headed by a Cabinet-level officer. I assume the idea is that because these agencies are meant to be independent, they need to be able to decide which cases to pursue without DOJ interference.

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    "enforce consumer financial law" doesn't mean "prosecute consumer financial cases in the courts"; consider the FBI, for example, which enforces criminal law generally but does not conduct prosecutions. The same is true of the SEC. Similarly, the FTC statute authorizes investigations, not litigation, and FTC litigation is conducted by the Department of Justice.
    – phoog
    Jul 26, 2021 at 1:07
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    I can see why you're reading it that way, but my reading is pretty univesrally accepted as the correct one. That's why all these agencies regularly send their own lawyers into court, and no one says anything about it.
    – bdb484
    Jul 26, 2021 at 20:31
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    Here are several examples, if you're interested.
    – bdb484
    Jul 27, 2021 at 0:04
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    I wouldn't have included them in the answer otherwise.
    – bdb484
    Jul 27, 2021 at 2:04
  • 2
    Thanks for the information, and for the laugh.
    – phoog
    Jul 27, 2021 at 2:06

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