84 

Applicability of Anti-Discrimination 

Statutes to the Presidio Trust 

The issue the Presidio Trust has presented is of the sort that Executive Order 12146 calls upon the 

Attorney General, and hence the Office of Legal Counsel, to resolve. 

The Presidio Trust is exempt from section 717 of Title VII of the Civil Rights Act of 1964 and section 

15 of the Age Discrimination in Employment Act of 1967 to the extent that these statutes apply to 

the appointment, compensation, duties, or termination of Trust employees, but not otherwise. 

June 22, 2004 

MEMORANDUM OPINION FOR THE GENERAL COUNSEL

PRESIDIO TRUST

Congress established the Presidio Trust (the “Trust”) in 1996 as a whollyowned federal government corporation charged with administering historic 

buildings and property that were formerly part of the Presidio of San Francisco 

military base.1

 Section 103(c)(7) of the Presidio Trust Act authorizes the Trust 

[n]otwithstanding any other provision of law, . . . to appoint and fix 

the compensation and duties and terminate the services of an executive director and such other officers and employees as it deems necessary without regard to the provisions of title 5, United States Code, 

or other laws related to the appointment, compensation or termination of Federal employees. 

16 U.S.C. § 460bb note (2000). The Trust has asked us to determine whether in 

this provision Congress has exempted it from section 717 of Title VII of the Civil 

Rights Act of 1964, 42 U.S.C. § 2000e-16(a) (“Title VII”), and section 15 of the 

Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 633a.2

We first address the argument of the Equal Employment Opportunity Commission 

(“EEOC”) that, pursuant to Executive Order 12146 (“EO 12146”), we should 

refrain from resolving the question before us. We conclude that the issue presented 

by the Trust is of the sort that EO 12146 calls upon the Attorney General, and 

 1 See Omnibus Parks and Public Lands Management Act of 1996, Pub. L. No. 104-333, tit. I, 

§ 103(c)(7), 110 Stat. 4093 (codified at 16 U.S.C. § 460bb note) (“Presidio Trust Act”). 2

 Our opinion on this matter is informed by letters from both the Trust and the EEOC setting forth 

their respective views on this issue. See Letter for Edward Whelan, Acting Assistant Attorney General, 

Office of Legal Counsel, from Karen Cook, General Counsel, Presidio Trust (Apr. 25, 2003) (“Presidio 

Request”); Letter for Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, 

from Karen A. Cook, General Counsel, Presidio Trust (Aug. 8, 2003); Letter for Noel J. Francisco, 

Deputy Assistant Attorney General, Office of Legal Counsel, from David L. Frank, Legal Counsel, 

Equal Employment Opportunity Commission (July 25, 2003) (“EEOC Response”); Letter for Noel J. 

Francisco, Deputy Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni, 

Associate Legal Counsel, Equal Employment Opportunity Commission (Oct. 8, 2003). 
Applicability of Anti-Discrimination Statutes to the Presidio Trust 

85 

hence this Office, to resolve. Turning to the merits, we conclude that in enacting 

section 103(c)(7) of the Trust’s organic statute, Congress exempted the Trust from 

section 717 of Title VII and section 15 of the ADEA to the extent that these 

statutes apply to the appointment, compensation, duties, or termination of Trust 

employees, but not otherwise.3

I. 

We first address the threshold question whether it is appropriate for us to resolve the question before us under EO 12146, 44 Fed. Reg. 42,657 (1979); 28 

U.S.C. § 509 note (2000). The EEOC argues that “a dispute arising out of an 

adjudicatory process, in which one agency, who is a party to the adjudication, 

disagrees with the decision of the other agency, who is the adjudicator, is [not] the 

kind of dispute between agencies that the Executive Order intended the Attorney 

General to resolve.” EEOC Response, supra note 2, at 2. We have previously (and 

recently) rejected this contention. See Authority of the Equal Employment 

Opportunity Commission to Impose Monetary Sanctions Against Federal Agencies 

for Failure to Comply With Orders Issued by EEOC Administrative Judges, 27 

Op. O.L.C. 24, 25 (Jan. 6, 2003) (“EEOC Monetary Sanctions”) (“[N]either the 

fact that EEOC has authority to enforce Title VII in the federal workplace nor the 

fact that agencies ‘shall’ comply with EEOC rules and orders, see 42 U.S.C. 

§ 2000e-16(b) (2000), divests us of authority to issue this opinion.”). We adhere to 

that position. 

We believe that the dispute before us is of the sort that this Office is charged 

with resolving. As we explained in our EEOC Monetary Sanctions opinion, EO 

12146 specifically calls upon the Attorney General to review an interagency 

dispute over whether one agency has jurisdiction to regulate the activities of 

another. In particular, section 1-401 of the Executive Order provides: 

Whenever two or more Executive agencies are unable to resolve a 

legal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to 

the Attorney General. 

 3

 We have limited our analysis to section 717 of Title VII and section 15 of the ADEA because, 

insofar as we are aware, these are the only employment discrimination statutes under which the EEOC 

has asserted jurisdiction over the Trust. See Newman v. Rosenblatt, EEOC Appeal No. 01A24736, 2004 

WL 602178 (Mar. 18); Newman v. Rosenblatt, EEOC Appeal No. 01A24736, 2003 WL 1624696 (Mar. 

18). We do not address whether the Trust is subject to other employment laws, which may or may not 

have features that distinguish them from sections 717 and 15 for purposes of applying the section 

103(c)(7) exemption. See, e.g., 29 U.S.C. § 791 (2000) (Rehabilitation Act); 29 U.S.C. § 206(d) (2000) 

(Equal Pay Act). 
Opinions of the Office of Legal Counsel in Volume 28 

86 

44 Fed. Reg. at 42,658 (emphasis added). The Trust’s request falls within the plain 

language of this provision. The Trust specifically raises “the question . . . [whether 

the EEOC] has jurisdiction to . . . regulate a particular activity”—here, certain 

employment decisions made by the Trust—an issue with respect to the resolution 

of which the Trust and the EEOC are in disagreement.4

 As we stated in our EEOC 

Monetary Sanctions opinion, “[a]t its base, the present dispute is whether EEOC 

has exceeded its own jurisdiction; the dispute is therefore entirely appropriate for 

resolution by this Office.” 27 Op. O.L.C. at 25 (citing EO 12146, § 1-401). And 

since the Attorney General has delegated to this Office his authority to exercise 

the functions delegated him under the Executive Order, see 28 C.F.R. § 0.25 

(2003), we believe that section 1-401 of the Executive Order clearly permits us to 

resolve this issue. 

The EEOC, however, argues that section 1-402 of EO 12146 divests us of 

authority to resolve this dispute. Section 1-402 provides: 

Whenever two or more Executive agencies whose heads serve at the 

pleasure of the President are unable to resolve such a legal dispute, 

the agencies shall submit the dispute to the Attorney General prior to 

proceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere. 

44 Fed. Reg. at 42,658. As we understand the EEOC’s argument, where “there is 

specific statutory vesting of responsibility for a resolution” of a legal dispute in an 

agency other than the Department of Justice, then section 1-402 prohibits the 

Department of Justice from resolving that dispute even if requested to do so 

pursuant to section 1-401. And because, the EEOC argues, both it and the courts 

are vested with responsibility for resolving disputes under the federal employment 

discrimination laws involving employees of the federal government, see 42 U.S.C. 

§ 2000e-16(b), (c) (Title VII); 29 U.S.C. § 633a(b), (c) (ADEA), section 1-402 

prohibits the Attorney General from resolving legal issues arising out of these 

disputes. See EEOC Response, supra note 2, at 2. 

We disagree with the EEOC’s interpretation of section 1-402 of the Executive 

Order. Even assuming arguendo that “there is specific statutory vesting of 

responsibility [in the EEOC and the courts] for a resolution” of the issue raised by 

the Trust, all that section 1-402 does is establish a requirement that agencies must 

 4

 The EEOC has suggested that there is no interagency dispute within the meaning of section 1-401, 

reasoning that “[s]ince the Presidio Trust raised the jurisdictional issue in an appeal over which the 

EEOC has adjudicatory authority, EEOC is not ‘unable to resolve’ . . . this dispute within the meaning 

of section 1-401.” EEOC Response, supra note 2, at 2. As we explain, however, we are not addressing 

the EEOC’s resolution of a specific employment discrimination claim, but rather are resolving an 

ongoing general statutory dispute between two agencies. And as the submissions to us from the Trust 

and the EEOC make clear, see id. n.2, the Trust and the EEOC have not resolved their dispute on this 

broader legal issue. 
Applicability of Anti-Discrimination Statutes to the Presidio Trust 

87 

satisfy before they are permitted to bring an action in court. As section 1-402 

states, executive agencies “shall submit the [interagency legal] dispute to the 

Attorney General prior to proceeding in court, except where there is specific 

statutory vesting of responsibility for a resolution elsewhere.” 44 Fed. Reg. at 

42,658. In other words, if an agency has already utilized an alternative, statutorilycreated mechanism for resolving an interagency legal dispute, the agency may, 

consistent with section 1-402, “proceed[] in . . . court” without also asking the 

Attorney General to resolve the dispute. Id. This process for resolving interagency 

disputes helps avoid the constitutionally dubious scenario that arises when the 

Executive Branch seeks to have a court resolve its internal legal disputes.5

 Nothing 

in section 1-402, however, prohibits an agency from seeking the Attorney 

General’s opinion on a legal issue, or the Attorney General from rendering such an 

opinion if asked, even where another entity is likewise vested with responsibility 

for resolving that dispute. 

This understanding of section 1-402 finds support in a previous opinion issued 

by this Office. See Application of the Davis-Bacon Act to Urban Development 

Projects That Receive Partial Federal Funding, 11 Op. O.L.C. 92 (1987) (“DavisBacon”). There, we addressed whether section 1-402 modified our authority to 

resolve a dispute under 28 U.S.C. § 512 (2000), which authorizes “[t]he head of an 

executive department [to] require the opinion of the Attorney General on questions 

of law arising in the administration of his department.” 11 Op. O.L.C. at 95.6

 The 

Secretary of Housing and Urban Development had requested our opinion, but the 

Department of Labor argued that because it was statutorily vested with authority to 

resolve the legal issue before us, section 1-402 precluded the Attorney General 

from resolving the issue. 

We rejected this argument, explaining that all that section 1-402 did was impose a requirement on the agencies between which the legal dispute had arisen: 

Even assuming, however, that Reorganization Plan No. 14 of 1950—

directing the Secretary of Labor to prescribe appropriate laborrelated standards, regulations, and procedures—constitutes “specific 

 5

 We have frequently noted serious constitutional questions presented—both under principles of a 

unitary executive and Article III justiciability—when the Executive Branch seeks to have a court 

resolve its internal legal disputes. See, e.g., Administrative Assessment of Civil Penalties Against 

Federal Agencies Under the Clean Air Act, 21 Op. O.L.C. 109 ( 1997) (“Clean Air Act”); Authority of 

Department of Housing and Urban Development to Initiate Enforcement Actions Under the Fair 

Housing Act Against Other Executive Branch Agencies, 18 Op. O.L.C. 101 (1994); Proposed Tax 

Assessment Against the United States Postal Service, 1 Op. O.L.C. 79 (1977). Indeed, the Solicitor 

General recently asked the Supreme Court to vacate an Eleventh Circuit decision that held justiciable a 

dispute between two Executive Branch agencies. See TVA v. EPA, 278 F.3d 1184, 1193–98 (11th Cir. 

2002), rev’d on other grounds, 336 F.3d 1236 (11th Cir. 2003), cert. denied sub nom. Leavitt v. TVA, 

124 S. Ct. 2096 (2004). 6

 Because we conclude that we may resolve this issue under EO 12146, we need not address 

whether we may also do so under 28 U.S.C. § 512 or any other authority. 
Opinions of the Office of Legal Counsel in Volume 28 

88 

statutory vesting of responsibility for a resolution” of the present 

dispute within the Secretary of Labor, the reorganization legislation 

in no sense affects the authority of the head of an executive department to seek, or the Attorney General to render, an opinion under 28 

U.S.C. § 512 on questions of law that arise in the administration of 

his department. Rather, under the above assumption, Reorganization 

Plan No. 15 of 1950 at most would mean that § 1-402 of Executive 

Order No. 12146 does not require the Secretaries of HUD and Labor 

to submit this legal dispute to the Attorney General. 

Id. at 97 (emphasis in original). Section 1-402 did not, however, prohibit an agency from seeking the views of the Attorney General. Nor did it prohibit the 

Attorney General from providing his views upon request. So too here. Assuming 

arguendo that the EEOC and the courts are statutorily vested with resolving the 

issue that the Trust has raised, the most that can be said of section 1-402 is that it 

does not require the EEOC and the Trust to seek resolution of this issue by the 

Attorney General before proceeding in court. It does not, however, preclude the 

Attorney General from rendering such an opinion if requested to do so in accordance with section 1-401 of EO 12146. 

We recognize that notwithstanding the foregoing analysis, some dicta in one of 

our other opinions might be construed to suggest that section 1-402 prohibits this 

Office from resolving a dispute under section 1-401 if another agency is statutorily 

vested with responsibility for resolving that dispute. See Memorandum for Henry 

L. Solano, Solicitor, Department of Labor, and Leigh A. Bradley, General 

Counsel, Department of Veterans Affairs, from Randolph D. Moss, Assistant 

Attorney General, Office of Legal Counsel, Re: The Effect of Veterans’ Health 

Administration Nurses’ Additional Pay for Sunday and Night Duty on Calculation 

of Workers’ Compensation Benefits (Jan. 19, 2001) (“Night Duty”). There, the 

Department of Labor argued that it, rather than this Office, was vested with 

responsibility for resolving a dispute with the Department of Veterans Affairs 

(“VA”) over the proper computation of workers’ compensation benefits for certain 

VA employees. We rejected this argument for two reasons: First, the statutes cited 

by the Department of Labor did not vest in it responsibility for deciding the 

dispute before us. Id. at 3–7. Second, even if the statutes had vested responsibility 

for deciding the dispute in the Department of Labor, we had separate authority to 

resolve it under 28 U.S.C. § 512. Night Duty at 7 (citing Davis-Bacon, 11 Op. 

O.L.C. 92). Nevertheless, we observed without analysis that under section 1-402, 

“we have authority to decide this question unless [the statutes cited by Labor] 

vest[] responsibility for resolution in DOL.” Id. at 3 (emphasis added). This dicta 

could be construed as suggesting that section 1-402 did not just impose a requirement upon agencies between which an interagency legal dispute has arisen, but in 

addition, that it limited the Attorney General’s authority to resolve that dispute 

even if requested to do so under section 1-401 of the Order. In view of the 
Applicability of Anti-Discrimination Statutes to the Presidio Trust 

89 

foregoing analysis, as well as the absence of any substantive explanation for our 

apparent suggestion in the Night Duty opinion, we hereby disavow the Night Duty

dicta to the extent that it suggests that the Attorney General’s authority to resolve 

interagency disputes when properly requested to do so pursuant to section 1-401 of 

the Executive Order is limited by section 1-402. 

In any event, the EEOC and the courts are not statutorily vested with resolving 

the issue raised by the Trust. Sections 717(b) and (c) of Title VII, 42 U.S.C. 

§ 2000e-16(b), (c), upon which the EEOC relies, authorize the EEOC and the 

courts to resolve specific complaints of employment discrimination alleged by 

employees of the federal government. The Trust, however, is not asking us to 

review the EEOC’s resolution of any of these specific complaints. Rather, the 

Trust is asking us to address the broad and generic legal question whether it is 

subject to the EEOC’s jurisdiction pursuant to section 103(c)(7) of its organic 

statute—a question upon which “there is [not] a specific statutory vesting of 

responsibility for a resolution” in the EEOC or the courts. 44 Fed. Reg. at 42,658. 

Other portions of our Night Duty opinion illustrate this distinction. One of the 

statutes upon which the Department of Labor relied in its argument that this Office 

lacked authority to resolve its legal dispute with the Department of Veterans 

Affairs provided that the Secretary of Labor’s decision “allowing or denying a 

payment” is “final and conclusive” and “not subject to review by another official 

of the United States.” 5 U.S.C. § 8128(b) (2000). As we explained: 

It is clear to us that this provision does not apply to this dispute. Section 8128(b) on its face addresses the Secretary of Labor’s exclusive 

jurisdiction to determine specific adjudications of claims for benefits 

arising under FECA. Because the issue presented to us is a broad 

statutory dispute between two agencies rather than an administrative 

adjudication on a specific claim for benefits, it does not present the 

type of determination intended to be insulated from review under 

[section] 8128. 

Night Duty at 4. The same is true here. We are not resolving the EEOC’s resolution of “an administrative adjudication on a specific claim” brought by an 

employee against his federal employer, but rather, “a broad statutory dispute 

between two agencies.” Id. The latter is simply not the type of dispute that the 

EEOC is charged with resolving. See EEOC Monetary Sanctions, 27 Op. O.L.C. 

24; Reconsideration of Applicability of the Davis-Bacon Act to the Veterans 

Administration’s Lease of Medical Facilities, 18 Op. O.L.C. 109, 122–23 (1994) 

(Department of Labor’s authority to administer statute does not supersede 

Attorney General’s authority to resolve legal dispute between agencies); Clean Air 

Act, 21 Op. O.L.C. at 116–17 (rejecting argument that statute precludes resolution 

of dispute by Attorney General). 
Opinions of the Office of Legal Counsel in Volume 28 

90 

We therefore conclude that this Office is fully authorized to resolve the legal 

dispute that the Trust has presented to us. 

II. 

Having determined that we have authority to resolve this dispute, we now turn 

to whether Congress has exempted the Trust from section 717 of Title VII and 

section 15 of the ADEA. See 42 U.S.C. § 2000e-16; 29 U.S.C. § 633a. In section 

103(c)(7) of the Trust’s organic statute, as amended, Congress provided: 

Notwithstanding any other provision of law, the Trust is authorized 

to appoint and fix the compensation and duties and terminate the 

services of an executive director and such other officers and employees as it deems necessary without regard to the provisions of title 5, 

United States Code, or other laws related to the appointment, compensation or termination of Federal employees. 

16 U.S.C. § 460bb note (emphasis added). Both the Trust and the EEOC seem to 

agree that, but for the language emphasized above, the Trust would be subject to 

sections 717 and 15. See Presidio Request, supra note 2, at 14; EEOC Response,

supra note 2, at 3–4. The precise question before us, however, is whether sections 

717 and 15 are “other laws related to the appointment, compensation or termination of Federal employees” within the meaning of the Trust’s organic statute. If 

they are, then in enacting this language, Congress exempted the Trust from these 

otherwise applicable laws. 

As a definitional matter, there can be no doubt that section 717 and section 15 

fall within the general category of laws “related to the appointment, compensation 

or termination of Federal employees.” Section 717 requires “[a]ll personnel 

actions [of the federal government] affecting employees or applicants for employment . . . [to] be made free from any discrimination based on race, color, 

religion, sex, or national origin.” 42 U.S.C. § 2000e-16(a). The ADEA similarly 

requires “[a]ll personnel actions [of the federal government] affecting employees 

or applicants for employment who are at least 40 years of age . . . [to] be made 

free from any discrimination based on age.” 29 U.S.C. § 633a(a). The “personnel 

actions” referenced in Title VII and the ADEA plainly include “the appointment, 

compensation or termination of federal employees.” 

That these federal employment discrimination laws are “related” to the “appointment, compensation or termination of Federal employees,” however, does not 

necessarily resolve the question before us. “[U]nder the established interpretive 

canons of noscitur a sociis and ejusdem generis, ‘[w]here general words follow 

specific words in a statutory enumeration, the general words are construed to 

embrace only objects similar in nature to those objects enumerated by the 

preceding specific words.’” Wash. Dep’t of Soc. & Human Serv. v. Guardianship 
Applicability of Anti-Discrimination Statutes to the Presidio Trust 

91 

Estate of Danny Keffeler, 537 U.S. 371, 384 (2003) (quoting Circuit City Stores, 

Inc. v. Adams, 532 U.S. 105, 114–15 (2001)). In Keffeler, the Court addressed a 

provision in the Social Security Act protecting benefits from “execution, levy, 

attachment, garnishment, or other legal process.” Id. at 382. The Court rejected the 

state court’s holding that “other legal process” in this context covers a state 

agency’s use of benefits to reimburse itself as representative payee. While 

recognizing that “in the abstract the department does use legal process as the 

avenue to reimbursement,” the Court interpreted that phrase more restrictively in 

its context to include only those processes similar to the judicial processes of 

execution, levy, attachment and garnishment. Id. at 384. See also Circuit City, 532 

U.S. at 112 (Federal Arbitration Act exemption for “contracts of employment of 

seamen, railroad employees, or any other class of workers engaged in foreign or 

interstate commerce” covers only transportation workers, not all contracts under 

Congress’s commerce power). Here, the relevant phrase—“other laws related to 

the appointment, compensation or termination of Federal employees”—is 

preceded by the phrase “the provisions of title 5, United States Code.” Under the 

noscitur a sociis and ejusdem generis canons, therefore, it might well be argued 

that only those laws “similar in nature” to the provisions in title 5 are within the 

general “other laws” referenced in section 103(c)(7). 

Even under these interpretive principles, however, we think it clear that section 

717 and section 15 are “other laws” within the meaning of section 103(c)(7). In 

particular, two features common between “the provisions of title 5, United States 

Code,” on the one hand, and section 717 and section 15, on the other, lead us to 

the conclusion that they are generally similar to one another for purposes of 

applying the noscitur a sociis and ejusdem generis canons. 

Perhaps most significantly, the salient feature of title 5 is that it sets forth laws 

that apply exclusively to federal employment. Title 5 as a whole is entitled 

“Government Organization and Employees.” Its provisions establish the basic 

structure of the federal government. Part III of title 5, moreover, deals exclusively 

with federal employment. Title 5, in other words, contains “laws related to the 

appointment, compensation or termination of Federal employees.” 16 U.S.C. 

§ 460bb note (emphasis added). The “other laws” referenced in section 103(c)(7), 

therefore, surely include laws that, like title 5, relate exclusively to federal 

employment. Like title 5, however, the provisions of section 717 of Title VII and 

section 15 of the ADEA relate exclusively to “Federal employees.” Id. 

Section 717 is illustrative. Title VII’s general antidiscrimination provision 

applies only to “employers,” see 42 U.S.C. § 2000e-2 (2000) (prohibiting an 

“employer” from unlawful discrimination on the basis of race, color, religion, sex 

or national origin), a term that expressly excludes the federal government, see 42 

U.S.C. § 2000e(b) (defining “employer” to exclude “the United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any 

department or agency of the District of Columbia subject by statute to procedures 

of the competitive service”). In contrast, section 717 applies only to the federal 
Opinions of the Office of Legal Counsel in Volume 28 

92 

government. In particular, section 717(a), added to the statute in 1972 (before 

which the federal government was entirely exempt from Title VII’s antidiscrimination requirements), provides: 

All personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the 

United States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid 

from nonappropriated funds), in the United States Postal Service and 

the Postal Rate Commission, in those units of the Government of the 

District of Columbia having positions in the competitive service, and 

in those units of the judicial branch of the Federal Government having positions in the competitive service, . . . and in the Library of 

Congress shall be made free from any discrimination based on race, 

color, religion, sex, or national origin. 

42 U.S.C. § 2000e-16(a) (2000). As this provision makes clear, section 717 is not 

a general employment discrimination law that happens also to apply to the federal 

government. Rather, it is a law that, like title 5, applies specifically to federal 

employment. It is, in other words, an “other law[] related to the appointment, 

compensation or termination of Federal employees.” 16 U.S.C. § 460bb note. 

The same is true of section 15 of the ADEA, which in relevant respects is 

identical to section 717 of Title VII. As in Title VII, the ADEA’s general antidiscrimination provision applies to “employers,” see 29 U.S.C. § 623(a) (2000) 

(prohibiting an “employer” from unlawful discrimination on the basis of age), a 

term that expressly excludes the federal government, see 29 U.S.C. § 633(b) 

(defining “employer” to exclude “the United States, or a corporation wholly 

owned by the Government of the United States”). And as with section 717 of Title 

VII, section 15, added to the ADEA in 1974 (before which the federal government 

was entirely exempt from the ADEA), applies only to the federal government: 

All personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in military departments . . . , in executive agencies . . . , in the United States Postal 

Service and the Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal 

Government having positions in the competitive service, in the 

Smithsonian Institution, and in the Government Printing Office, the 

General Accounting Office, and the Library of Congress shall be 

made free from any discrimination based on age. 
Applicability of Anti-Discrimination Statutes to the Presidio Trust 

93 

29 U.S.C. § 633a(a). This section also incorporates the remedial and procedural 

provisions contained in section 717 of Title VII. Id. § 633a(a), (b). 

The most salient feature of title 5, in other words, is replicated in section 717 of 

Title VII and section 15 of the ADEA: All three are “laws related to the appointment, compensation or termination of Federal employees.” 16 U.S.C. § 460bb 

note. Indeed, all three apply exclusively to federal employment. In this light, it is 

difficult to distinguish these statutes in any meaningful way. 

Section 717 and section 15 are also similar to title 5 in a second important 

respect: All three seek to prohibit employment discrimination in the federal 

government. As discussed above, sections 717 and 15 provide that “personnel 

actions affecting employees or applicants for [federal] employment” “shall be 

made free from any discrimination based on race, color, religion, sex, or national 

origin” and “free from any discrimination based on age,” respectively. 42 U.S.C. 

§ 2000e-16(a); 29 U.S.C. § 633a(a). Likewise, chapter 72, subchapter I of title 5, 

entitled “Antidiscrimination in Employment,” provides, among other things, that 

“[i]t is the policy of the United States to insure equal employment opportunities 

for employees without discrimination because of race, color, religion, sex, or 

national origin,” further stating that “[t]he President shall use his existing authority 

to carry out this policy.” 5 U.S.C. § 7201(b) (2000). It has similar provisions 

related to discrimination on the basis of marital status, see 5 U.S.C. § 7202 

(2000),7

 and disability, see 5 U.S.C. § 7203 (2000).8 See also 5 U.S.C. § 7204(b) 

(2000) (“In the administration of chapter 51, subchapters III and IV of chapter 53, 

and sections 305 and 3324 of this title, discrimination[] because of race, color, 

creed, sex, or marital status is prohibited with respect to an individual or a position 

held by an individual.”). Section 717, section 15, and title 5, in other words, all 

seek to prohibit employment discrimination by the federal government. 

In short, it is difficult to distinguish section 717 of Title VII and section 15 of 

the ADEA from title 5 on any principled basis. All three regulate employment in 

the federal government and, more specifically, all three prohibit the federal 

government from engaging in specified categories of employment discrimination. 

 7

 Section 7202 provides: “(a) The President may prescribe rules which shall prohibit, as nearly as 

conditions of good administration warrant, discrimination because of marital status in an Executive 

agency or in the competitive service. (b) Regulations prescribed under any provision of this title, or 

under any other provision of law, granting benefits to employees, shall provide the same benefits for a 

married female employee and her spouse and children as are provided for a married male employee and 

his spouse and children. (c) Notwithstanding any other provision of law, any provision of law 

providing a benefit to a male Federal employee or to his spouse or family shall be deemed to provide 

the same benefit to a female Federal employee or to her spouse or family.” 8

 Section 7203 provides: “The President may prescribe rules which shall prohibit, as nearly as 

conditions of good administration warrant, discrimination because of handicapping condition in an 

Executive agency or in the competitive service with respect to a position the duties of which, in the 

opinion of the Office of Personnel Management, can be performed efficiently by an individual with a 

handicapping condition, except that the employment may not endanger the health or safety of the 

individual or others.” 
Opinions of the Office of Legal Counsel in Volume 28 

94 

Nor does anything in either the statutory or legislative history suggest that 

section 103(c)(7)’s reference to “other laws” is not intended to encompass section 

717 of Title VII and section 15 of the ADEA. In its original form, section 

103(c)(7) of the Presidio Trust Act authorized the Trust to appoint and fix the 

compensation and duties of an executive director and such other officers and 

employees as it deems necessary without regard to the provisions of title 5, United 

States Code, governing appointments in the competitive service, and [to] pay them 

without regard to the provisions of chapter 51, and subchapter III of chapter 53, 

title 5, United States Code, relating to classification and General Schedule pay 

rates. 110 Stat. at 4100. In 1997, however, Congress broadened the section 

103(c)(7) exemption. See Department of the Interior and Related Agencies 

Appropriations Act, 1998, § 351, Pub. L. No. 105-83, 111 Stat. 1543, 1607 (1997). 

As amended, section 103(c)(7) now authorizes the Trust 

[n]otwithstanding any other provision of law, . . . to appoint and fix 

the compensation and duties and terminate the services of an executive director and such other officers and employees as it deems necessary without regard to the provisions of title 5, United States Code, 

or other laws related to the appointment, compensation or termination of Federal employees. 

16 U.S.C. § 460bb note. This amendment was adopted without debate by unanimous consent. See 143 Cong. Rec. 19,444–48 (1997). And as both the Trust and 

the EEOC seem to agree, nothing in the legislative history gives any indication, 

one way or the other, as to what Congress intended to accomplish by this amendment. See Presidio Request, supra note 2, at 8 (acknowledging that “there is little 

legislative history regarding the amendment”); EEOC Response, supra note 2, at 4 

(acknowledging that “[u]nfortunately, there is no legislative history to support or 

contradict either EEOC’s or the Trust’s interpretations”). We are thus left with the 

language of the amendment itself, which, we have explained, on its face encompasses sections 717 and 15.9

Although we believe that the foregoing discussion amply establishes that in 

enacting section 103(c)(7) Congress exempted the Trust from application of 

sections 717 and 15 to the extent that these statutes apply to the appointment, 

 9

 The EEOC has suggested that an interpretation of “other laws” that includes section 717 of Title 

VII and section 15 of the ADEA would be so broad that it “would mean that the Trust would not have 

to make Social Security payments on its employees’ behalf, and would not have to withhold federal 

income taxes from their paychecks.” See E-mail for Leslie A. Simon, Office of Legal Counsel, from 

Thomas Schlageter, EEOC, Re: Presidio Trust (Mar. 1, 2004) (“EEOC E-mail”). The section 103(c)(7) 

exemption, however, only encompasses laws “related to the appointment, compensation or termination 

of Federal employees,” and then only permits the Trust to “appoint and fix the compensation and duties 

and terminate the services” of Trust employees without regard to such laws. 16 U.S.C. § 460bb note. It 

is difficult to understand how Social Security payments and withholding taxes would fall within these 

categories. 
Applicability of Anti-Discrimination Statutes to the Presidio Trust 

95 

compensation, duties or termination of Trust employees, two other considerations 

provide further confirmation of our conclusion. First, section 104(b) of the 

Presidio Trust Act exempts the Trust from “[f]ederal laws and regulations 

governing procurement by Federal agencies . . . with the exception of laws and 

regulations related to Federal government contracts governing working conditions 

and wage rates . . . and any civil rights provisions otherwise applicable thereto.” 

16 U.S.C. § 460bb note. Congress easily could have carved employment discrimination laws out of its section 103(c)(7) exemption, just as it did with respect to 

civil rights provisions in section 104(b). That it did not do so suggests that the 

term “other laws” in section 103(c)(7) encompasses the federal employment 

discrimination laws as we have discussed. 

Second, we are guided by the requirement that we “‘give effect, if possible, to 

every clause and word of a statute.’” United States v. Menasche, 348 U.S. 528, 

538–39 (1955) (citation omitted). See also Pa. Pub. Welfare Dep’t v. Davenport, 

495 U.S. 552, 562 (1990) (“Our cases express a deep reluctance to interpret a 

statutory provision as to render superfluous other provisions of the same enactment.”) (citation omitted). Were we to conclude that the “other laws” in section 

103(c)(7) of the Trust Act did not include these federal employment discrimination laws insofar as they regulate the appointment, compensation, duties or 

termination of federal employees, it is unclear to us what the “other laws” 

referenced in section 103(c)(7) would include. Although we have identified a few 

provisions scattered throughout the U.S. Code relating to veterans’ employment 

rights, see, e.g., 38 U.S.C. §§ 4214, 4314, 4324 (2000), and a criminal prohibition 

against a federal employee’s receiving salary supplementation from an outside 

source, see 18 U.S.C. § 209 (2000), these bear no more relationship to title 5 than 

do the federal employment discrimination laws discussed above.10

We hasten to note, however, that section 103(c)(7) does not exempt the Trust 

from all applications of sections 717 and 15. Section 103(c)(7)’s exemption allows 

 10 The EEOC points to two other possible examples of “other laws related to the appointment, 

compensation or termination of Federal employees”: 5 C.F.R. § 530.203(a) (2004) and 2 U.S.C. § 356 

(2000). See Newman v. Rosenblatt, 2004 WL 602178, at *2; EEOC E-mail, supra note 9. The Trust is 

exempt from these provisions, however, not by virtue of the “other laws” language, but rather by virtue 

of its exemption from title 5 itself. See 16 U.S.C. § 460bb note (“without regard to the provisions of 

title 5, United States Code”). For example, 5 C.F.R. § 530.203(a) sets forth circumstances in which 

“[n]o executive branch employee . . . may receive any allowance, differential, bonus, award, or other 

similar cash payment under title 5, United States Code” (emphasis added). This regulation, moreover, 

specifically implements section 5307 of title 5, which is substantively identical to the regulation. See 

5 U.S.C. § 5307 (2000). The Trust, however, is explicitly exempt from title 5 and, as a result, is 

explicitly exempt from this title 5 restriction on its ability to pay its employees. The same is true of 

2 U.S.C. § 356, which authorizes the Citizens’ Commission on Public Service and Compensation to 

“conduct . . . a review of the rates of pay of . . . offices and positions under the Executive Schedule in 

subchapter II of chapter 53 of Title 5” (emphasis added). It is unclear to us whether this Commission 

has authority other than to conduct a “review,” and therefore how it would affect the Trust’s ability to 

compensate its employees. But in any event, as with 5 C.F.R. § 530.203(a), this provision only applies 

to the extent that title 5 itself applies, from which, as we have explained, the Trust is explicitly exempt. 
Opinions of the Office of Legal Counsel in Volume 28 

96 

the Trust to “appoint and fix the compensation and duties and terminate the 

services” of its employees “without regard to the provisions of title 5, United 

States Code, or other laws related to the appointment, compensation or termination 

of Federal employees.” 16 U.S.C. § 460bb note. Many applications of the federal 

employment discrimination laws, however, do not regulate the appointment, 

compensation, duties or termination of federal employees. Title VII, for example, 

has been held to prohibit racially and sexually hostile work environments, see 

Singletary v. District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003); see also 

Meritor Sav. Bank v. Vinson, 477 U.S. 57 (1986), and racial and sexual harassment, see, e.g., Bundy v. Jackson, 641 F.2d 934, 943–44 (D.C. Cir. 1981). To the 

extent that these statutes cover employment actions other than the appointment, 

compensation, duties or termination of Trust employees, they remain applicable to 

the Trust notwithstanding section 103(c)(7).11

In sum, we conclude that in enacting section 103(c)(7) of the Trust’s organic 

statute, Congress exempted the Trust from section 717 of Title VII and section 15 

of the ADEA to the extent that these statutes apply to the appointment, compensation, duties or termination of Trust employees, but not otherwise. 

 NOEL J. FRANCISCO 

 Deputy Assistant Attorney General 

 Office of Legal Counsel 

 11 We note that we do not here address the application to the Trust of Executive Orders prohibiting 

discrimination in federal employment, see, e.g., Exec. Order No. 11478, §§ 1, 2, 34 Fed. Reg. 12,985 

(1969); Exec. Order No. 11141, 29 Fed. Reg. 2477 (1964) (age), or whether a Trust employee could 

bring an employment discrimination suit against the Trust under the equal protection component of the 

Due Process Clause, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 

388 (1971); Davis v. Passman, 442 U.S. 228, 247 (1979); Brown v. GSA, 425 U.S. 820 (1976).