The opinion of the court was delivered by: LOUIS F. OBERDORFER
Plaintiffs are the majority of the Board of Governors of the Postal Service Board. The Postal Service is presently a party to litigation pending in the Court of Appeals for the District of Columbia Circuit. Mail Order Association v. United States Postal Service, Nos. 91-1058, 91-1059, 91-1063, 91-1065, 91-1073, 91-1074, 91-1075, 91-1079, and 91-1080. The Service is represented in that proceeding by counsel other than the Department of Justice. The Postal Reorganization Act, 39 U.S.C. § 409(d), provides:
The Department of Justice shall furnish, under section 411 of this title, the Postal Service such legal representation as it may require, but with the prior consent of the Attorney General the Postal Service may employ attorneys by contract or otherwise to conduct litigation brought by or against the Post Service or its officers or employees in matters affecting the Postal Service.
Pub. L. No. 91-375, 84 Stat. 724 (Aug. 12, 1970).
The Department has not consented to representation of the Service by private counsel or to conducting the litigation itself. Instead, it has aligned itself against the position of the Service in the proceeding pending in the Court of Appeals. In addition, on October 27, 1992, the Assistant Attorney General of the Department's Civil Division wrote to the General Counsel of the Postal Service that:
Because the United States Postal Service and its Governors lack independent litigating authority, see 28 U.S.C. § 516, 39 U.S.C. § 409 (d), the Attorney General's authorization is a necessary precondition to the filing of such a petition for review by Postal Service attorneys. In this case, authorization was not provided because a lawsuit between the Postal Service and the Postal Rate Commission raises serious justiciability problems under Article III of the United States Constitution. As we discussed with your predecessor, Mr. Hughes, we have grave doubts that the Attorney General could authorize the filing of a lawsuit that he believes is not within the judicial power of the United States courts.
Given the above and after careful consideration, we feel strongly that we cannot allow this case to continue to be litigated. In our view, the best course of action would be for your office to withdraw the petition for review. Much less desirable would be for the Department of Justice to move to strike the petition on the ground it was filed by attorneys who lacked the requisite authority to file it -- an option we may be forced to consider seriously if we have not reached a consensus by Monday, November 2, 1992.
Thereafter, on November 6, 1992, the Postal Service filed a motion in the Court of Appeals for leave to appear as a party and to represent itself. In response, on December 18, 1992, the Court of Appeals ordered the Department either "to resolve the controversy between the DOJ and the Postal Service or to file a response to the November 6 motion to enable the Court to resolve itself."
On December 11, 1992, the President of the United States wrote to the Postmaster General as follows:
I am informed by the Department of Justice that filings have been made in the United States Court of Appeals for the District of Columbia Circuit purportedly on behalf of the United States Postal Service without the authorization of the Attorney General, contrary to 39 U.S.C. 409(d). Accordingly, pursuant to my authority as Chief Executive and my obligation to take care that the laws are faithfully executed, I direct you to cooperate fully with the Attorney General in arranging for the withdrawal of those filings. This directive also extends to the Governors and the Board of Governors of the United States Postal Service, if any action on their part is necessary in order to implement it.
On the same date, a Department attorney advised the Clerk of the Court of Appeals of the President's directive, stating that it must be assumed that this directive resolved the controversy because the Board can be expected to comply.
On that date, the President wrote a further letter reiterating his directive of December 11 and advising that:
in order to obtain compliance with the statutes and my directive enforcing them, I will if necessary exercise my authority to remove ...