b"Legality of State Payments to\nAttorneys Representing Veterans\nA state veterans agency\xe2\x80\x99s payment of fees exceeding $10 to attorneys for representing veterans\nunder laws administered by the Veterans Administration does not violate federal laws govern\xc2\xad\ning the practice o f attorneys before the Veterans Administration. The $10 limit and other\nrestrictions on attorney\xe2\x80\x99s fees imposed by federal law do not apply to payments by third\nparties.\n\nJanuary 28, 1986\n\xe2\x9c\x93\n\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nG eneral Co un sel,\n\nV e t e r a n s A d m in is t r a t io n\n\nThis responds to your request that this Department consider whether legisla\xc2\xad\ntion recently enacted by the state of Oregon authorizing payment by the Oregon\nDepartment of Veterans\xe2\x80\x99 Affairs to attorneys representing veterans under laws\nadministered by the Veterans Administration violates 38 U.S.C. \xc2\xa7\xc2\xa7 3404 and\n3405.1 Payments to attorneys under the Oregon statute are likely to exceed the\n$10 fee limit imposed by \xc2\xa7 3404. Although we view the question as close, we\nhave concluded that 38 U.S.C. \xc2\xa7\xc2\xa7 3404 and 3405 do not bar payments by the\nOregon Department of Veterans\xe2\x80\x99 Affairs to attorneys representing veterans.\nSections 3404(a) and (b) provide for the \xe2\x80\x9crecognition\xe2\x80\x9d of attorneys by the\nAdministrator of the Veterans Administration (Administrator), and allow the\nAdministrator to suspend or exclude \xe2\x80\x9cunprofessional, unlawful, or dishonest\xe2\x80\x9d\nattorneys from practice before the Veterans Administration.2 Section 3404(c)\n1C hapter 790, Oregon Law s 1985 (to be codified at Oregon Rev. Stat. 406.030) provides, in relevant part:\n(1) The D irector o f V eterans' A ffairs, on behalf o f this state, m ay, with agreem ent o f the\nA ttorney General, contract with attorneys for the provision by the attorneys o f services as\ncounsel fo r w ar veteran residents o f O regon in the preparation, presentation and prosecution o f\nclaim s under laws adm inistered by the U nited States Veterans Adm inistration.\n\n*\n\n*\n\n*\n\n(3) Insofar as possible, the expense o f services provided under a contract authorized by this\nsection shall be paid by the state to an attorney from funds available to the D epartm ent of\nV eterans\xe2\x80\x99 A ffairs.\nProvisions concerning the representation o f veterans in claim s before the V eterans A dm inistration are set out\nin 38 U.S.C. \xc2\xa7\xc2\xa7 3401-3405.\n2 Section 3404 provides in full:\n(a) The A dm inistrator may recognize any individual as an agent o r attorney for the preparation,\npresentation, and prosecution o f claim s under laws adm inistered by the V eterans\xe2\x80\x99 A dm inistra\xc2\xad\ntion. The A dm inistrator may require that individuals, before being recognized under this section.\nContinued\n\ni\n\n\x0cprovides that the Administrator pay attorneys representing veterans no more\nthan $10 for each claim. Section 34053 establishes criminal penalties for\nsoliciting, contracting, charging, or receiving \xe2\x80\x9cany fee or compensation except\nas provided in section[] 3404\xe2\x80\x9d or another provision not relevant here.4 Con\xc2\xad\ngress first enacted fee limitations for veterans\xe2\x80\x99 attorneys in 1862. 12 Stat. 568.\nThe current limit of $10 was set in 1864, 13 Stat. 389, and has remained\nunchanged since that day.\nIn determining whether the recently enacted Oregon legislation is legal, we\nbegin with the language of the federal statutes.5 There is no dispute that the\nstatutory language prohibits the payment by a veteran of an attorney\xe2\x80\x99s fee in\nexcess of $10 with respect to any one claim. Indeed, \xc2\xa7\xc2\xa7 3404 and 3405 do not\nallow any direct payment to the attorney by the claimant. As noted, these\nprovisions instruct the Administrator to determine and pay fees, and provide\nthat the fees \xe2\x80\x9cshall not exceed $10 with respect to any one claim\xe2\x80\x9d and \xe2\x80\x9cshall be\ndeducted from monetary benefits claimed and allowed.\xe2\x80\x9d\nWhether the statutory language also forbids payments in excess of $10 by\nthird parties to attorneys representing veterans is more problematic. Section\n3404(c), the prohibitory provision, does not address fees paid by third parties.\nInstead, this provision simply limits the fees that can be deducted from benefits\nallowed in successful claims, and provides that the Administrator determine\nand deduct those fees.\nSection 3405 is somewhat less clear. As noted, \xc2\xa7 3405 imposes criminal\npenalties for, among other things, receiving \xe2\x80\x9cany fee or compensation except as\n2 ( . . . continued)\nshow that they are o f good moral ch aracter and in good repute, are qualified to render claim ants\nvaluable service, and otherw ise are com petent to assist claim ants in presenting claim s.\n(b ) The A dm inistrator, after notice an d opportunity for a hearing, may suspend or exclude from\nfu rth er practice before the Veterans\xe2\x80\x99 A dm inistration any agent or attorney recognized under this\nsection if he finds that such agent or atto rn ey (1) has engaged in any unlaw ful, unprofessional, or\nd ish o n est practice; (2) has been g u ilty o f disreputable conduct; (3) is incom petent; (4) has\nv iolated o r refused to com ply with an y o f the laws adm inistered by the V eterans' A dm inistration,\no r w ith any o f the regulations or instructions governing p ractice before the V eterans\xe2\x80\x99 A dm inistra\xc2\xad\ntion; o r (5) has in any m anner deceived, misled, or threatened any actual or prospective claimant.\n(c) The A dm inistrator shall determ ine and pay fees to agents or attorneys recognized under this\nsection in allow ed claim s for m onetary benefits under the laws adm inistered by the V eterans\xe2\x80\x99\nA dm inistration. Such fees (1) shall b e determ ined and p aid as prescribed by the A dm inistrator;\n(2) shall not exceed $10 w ith respect to any one claim ; an d (3) shall be deducted from monetary\nbenefits claim ed and allowed.\n3 S ection 3405 provides in full:\nW hoever (1) directly o r indirectly solicits, contracts for, charges, o r receives, or attem pts to\nsolicit, contract for, charge, or receive, any fee or com pensation except as provided in sections\n3404 o r 784 o f this title, o r (2) w rongfully w ithholds from any claim ant o r beneficiary any part of\na b en efit o r claim allow ed and due h im , shall be fined not more than $500 or im prisoned at hard\nla b o r fo r not m ore than tw o years, o r both.\n4 38 U .S.C . \xc2\xa7 784 provides jurisdiction in th e U nited States d istrict courts o v er insurance claim s by veterans\nagainst th e V eteran s' A dm inistration. Section 784(g) allow s the court, as part o f its judgm ent, to allow\nreasonable a tto rn ey \xe2\x80\x99s fees Mnot to exceed 10 per centum o f the amount recovered and to be paid by the\nV eterans A dm inistration out o f the payments to be made under the judgm ent or decree at a rate not exceeding\none tenth o f each o f such paym ents until p a id .\xe2\x80\x9d\n3 T he Suprem e C ourt has repeatedly em phasized that, in construing a statute, the place to begin is with the\nplain language o f the provision. See, e.g., United States v. Apfelbaum , 445 U .S. 115 (1980); see generally 2A\nSutherlan d , Statutory Construction \xc2\xa7 46.01 (4th ed. 1973).\n\n2\n\n\x0cprovided in section[] 3404\xe2\x80\x9d or another inapplicable provision. This language\nmay be reasonably interpreted as merely imposing criminal penalties for con\xc2\xad\nduct that violates \xc2\xa7 3404(c) (i.e., receipt of a fee in excess of $10 from a veteran\nor the Veterans Administration). Under this interpretation, because \xc2\xa7 3404(c)\ndoes not address the receipt of fees from third parties, \xc2\xa7 3405 would not impose\nany penalty for this conduct.6 This reading would allow third-party payment of\nveterans\xe2\x80\x99 attorney\xe2\x80\x99s fees because the third party would not contract for any fee\nto be taken from the claimant, nor would the attorney solicit, contract for,\ncharge, or receive any fee from the claimant. It is also possible, however, to\nconstrue \xc2\xa7 3405 as prohibiting the receipt of any fee other than those lawfully\nmade under \xc2\xa7 3404(c), a reading that would bar the third-party funding of\nveterans\xe2\x80\x99 lawyers envisioned in the Oregon statute.\nBecause the statutory language is not wholly clear on the point at issue, it is\nappropriate to examine the statute\xe2\x80\x99s legislative history. In our view, the limited\nlegislative history of \xc2\xa7 3404 strongly supports the view that the original pur\xc2\xad\npose of these provisions was to protect veterans from unscrupulous lawyers7\nand to keep lawyers from substantially diminishing any benefits granted to\nveterans through the claim process.8 In Walters v. National A ss\xe2\x80\x99n o f Radiation\nSurvivors, 473 U.S. 305 (1985), all members of the Supreme Court agreed that\nprotection from unscrupulous lawyers was the principal purpose of these\nprovisions.9\nObviously, the goal of protecting veterans from unscrupulous lawyers and\nthe desire to protect benefits recovered by a veteran suggest no reason to bar\nthird-party funding of attorneys representing veterans.10 It must be acknowl\xc2\xad\n6 Such a reading would put a parallel construction on the tw o parts o f \xc2\xa7 3405. The second part, dealing with\nthe l4w rongful[] w ithholdfing]\xe2\x80\x9d o f benefits, is explicitly directed tow ards w ithholding from \xe2\x80\x9c any claim ant or\nbeneficiary.\xe2\x80\x9d\n7 In Calhoun v. Massie, 253 U.S. 170, 173-74 (1920), the C ourt explained generally that such limits\n\xe2\x80\x9cprotect ju st claim ants from extortion o r im provident bargains.\xe2\x80\x9d\n%See Cong. G lobe, 37th Cong., 2d Sess. 2101, 3119 (1862). See also Cong. Globe, 41st Cong., 2d Sess.\n1967, 4459 (1870). In discussing the lim ited fee for veterans' agents or attorneys on pension claim s the five\ndollar (at that tim e) fee was referred to as \xe2\x80\x9csufficient com pensation.\xe2\x80\x9d The discussions clearly show the intent\no f each speaker to \xe2\x80\x9cprotect the soldier from the rapacity o f these agents.\xe2\x80\x9d In less charitable mom ents agents\nand attorneys are referred to as \xe2\x80\x9cvam pires,\xe2\x80\x9d an \xe2\x80\x9cinfam ous gang o f cut throats,\xe2\x80\x9d \xe2\x80\x9c sharks,\xe2\x80\x9d and a \xe2\x80\x9cpiratical\ncrew .\xe2\x80\x9d Yet it is repeatedly noted that \xe2\x80\x9cthe object o f [the lim it on fees o f agents and attorneys in claim ing\npensions and o th er allowances] . . . is to prevent extortionate charges,\xe2\x80\x9d to prevent fraud, and to m ake sure it is\n\xe2\x80\x9cthe soldier\xe2\x80\x9d w ho gets the money \xe2\x80\x9cand not the attorney.\xe2\x80\x9d\n9 In Walters, the Supreme C ourt rejected a due process challenge to the restriction imposed by \xc2\xa7\xc2\xa7 3404 and\n3405; the holding o f the case does not control the issues raised-w hen a state seeks voluntarily to provide\ncounsel. The Suprem e C ourt upheld the facial constitutionality o f \xc2\xa7\xc2\xa7 3404 and 3405. The constitutionality o f\nthese provisions as applied to specific individuals o r identifiable groups rem ains an open question. 473 U.S.\nat 336 (concurrence), 358 (dissent).\n10 However, any paym ent that directly o r indirectly dim inished the veteran's benefits w ould be inconsistent\nw ith this purpose. See Richman v. Nelson, 49 N .Y .S.2d 514, 516 (1944) (paym ent to attorney from veteran\xe2\x80\x99s\nestate through the veteran\xe2\x80\x99s sister, acting as a com m ittee, w ould \xe2\x80\x9ccircum vent the statute\xe2\x80\x9d); but see Fuller v.\nDittmeier , No. 82 -0 6 4 8 C (E.D . Mo. M ar. 1, 1983) (unpublished) (decision that father o f veteran could pay\nattorney to represent son); Welty v. United States , 2 F.2d 562 (6th C ir. 1924) (crim inal conviction for\nviolating $3 lim itation on attorney\xe2\x80\x99s fees for representing W ar Risk Insurance claim ants reversed on grounds\nthat father was third party not covered by statute). Fuller and Welty are not directly on point, how ever,\nbecause \xc2\xa7 3405\xe2\x80\x99s ten-dollar lim it applies to fee paym ents from any recipient or beneficiary. An im m ediate\nfam ily m em ber m ight not be an independent third party in paying attorney's fees for a veteran.\n\n3\n\n\x0cedged, however, that another goal of the federal statutes, as explained in\nW alters, might be frustrated by third-party payments such as those that will be\nmade under the Oregon statute. In Walters, the Court concluded that \xe2\x80\x9ceven\napart from the frustration of Congress\xe2\x80\x99 principal goal of wanting the veteran to\nget the entirety of the award, the destruction of the fee limitation would bid fair\nto complicate a proceeding which Congress wished to keep as simple as\npossible.\xe2\x80\x9d 473 U.S. at 326. Recognizing a relationship between the twin goals\nof informality and the delivery of undiminished benefits to the Veteran, the\nCourt noted:\nIt is scarcely open to doubt that if claimants were permitted to\nretain compensated attorneys the day might come when it could\nbe said that an attorney might indeed be necessary to present a\nclaim properly in a system rendered more adversary and more\ncomplex by the very presence of lawyer representation. It is\nonly a small step beyond that to the situation in which the\nclaimant who has a factually simple and obviously deserving\nclaim may nonetheless feel impelled to retain an attorney simply\nbecause so many other claimants retain attorneys. And this\nadditional complexity will undoubtedly engender greater ad\xc2\xad\nministrative costs, with the end result being that less Govern\xc2\xad\nment money reaches its intended beneficiaries.\nId.\n\nNotwithstanding Congress\xe2\x80\x99 desire to preserve the informality of benefits\nproceedings, we do not believe that this purpose is sufficient to support the\nconclusion that third-party payments under the Oregon legislation would be\nillegal.\nThe barrier erected under \xc2\xa7\xc2\xa7 3404 and 3405 against \xe2\x80\x9c[t]he regular introduc\xc2\xad\ntion of lawyers into the proceedings\xe2\x80\x9d was not made absolute. Lawyers willing\nto provide representation pro bono or for $10 or less are clearly allowed under\n\xc2\xa7\xc2\xa7 3404 and 3405. Indeed, \xc2\xa7\xc2\xa7 3402 and 3403 expressly authorize certain\n\xe2\x80\x9crepresentatives\xe2\x80\x9d and \xe2\x80\x9cagents\xe2\x80\x9d to participate in the \xe2\x80\x9cpreparation, presentation,\nand prosecution\xe2\x80\x9d of veterans claims, provided that no fee is extracted from the\nveteran.\nSection 3402 allows the Administrator to recognize representatives of veter\xc2\xad\nans\xe2\x80\x99 organizations and the Red Cross \xe2\x80\x9cin the preparation, presentation, and\nprosecution of [veterans\xe2\x80\x99] claims,\xe2\x80\x9d11 provided that such representatives certify\n11 Section 3402 provides in relevant part:\n(a) (1) The A dm inistrator may recognize representatives o f the A merican Red Cross, the\nA m erican L egion, the Disabled A m erican V eterans, the U nited Spanish W ar Veterans, the\nV eterans o f F oreign W ars, and such other organizations as he may approve, in the preparation,\np resen tatio n , and prosecution o f claim s under the laws adm inistered by the V eterans\xe2\x80\x99 A dm inis\xc2\xad\ntration.\n(2) The A d m inistrator may, in h is discretion, furnish, if available, space and office facilities\nfo r the use o f paid full-tim e representatives o f national organizations so recognized.\n(b) No individual shall be recognized under this section \xe2\x80\x94\nC ontinued\n\n4\n\n\x0cto the Administrator \xe2\x80\x9cthat no fee or compensation of any nature will be charged\nany individual for services rendered in connection with any claim.\xe2\x80\x9d The statute\nauthorizes the Administrator to provide space and office facilities for such\n\xe2\x80\x9cpaid, full-time representatives.\xe2\x80\x9d Id. (emphasis added).12 Similarly, \xc2\xa7 3403\ngrants the Administrator power to recognize an individual for the preparation,\npresentation, and prosecution of any particular claim for benefits after certifi\xc2\xad\ncation that no fee will be charged any individual for services rendered. Al\xc2\xad\nthough these \xe2\x80\x9crepresentatives\xe2\x80\x9d and \xe2\x80\x9cagents\xe2\x80\x9d need not be lawyers, it seems clear\nthat lawyers may serve in that capacity. In fact, we are informed that veterans\norganizations have used and currently are using attorneys as representatives.13\nLegal aid society attorneys also represent veterans in claims before the Veter\xc2\xad\nans Administration. Thus, because Congress approved of some participation by\nattorneys, it seems doubtful that Congress would have wished to bar represen\xc2\xad\ntation by lawyers furnished free of charge to the veteran by a state such as\nOregon.\nFinally, general principles of statutory construction support a narrow reading\nof \xc2\xa7\xc2\xa7 3404 and 3405. Section 3405 provides substantial criminal penalties, and\nunder the widely recognized \xe2\x80\x9crule of lenity\xe2\x80\x9d criminal provisions subject to\nmore than one reasonable construction should be interpreted narrowly and\nambiguity should be resolved in favor of lenience. See, e.g ., Bifulco \\ . United\nStates, 447 U.S. 381 (1980); 3 Sutherland, Statutory Construction \xc2\xa7\xc2\xa7 59.03 et\nseq. (4th ed. 1973). This principle of construction supports the view that these\nprovisions only restrict payments from the claimant or beneficiary.\nFor the foregoing reasons, this Department believes that the Oregon statute\nproviding funds for attorneys representing veteran claimants does not violate\n38 U.S.C. \xc2\xa7\xc2\xa7 3404 and 3405.\nC h a r l e s J. C o o p e r\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n11 (.\n\ncontinued)\n(1) unless he has certified to the A dm inistrator that no fee o r com pensation o f any nature will\nbe charged any individual for services rendered in connection with any claim ; and\n(2) unless, w ith respect to each claim, such individual has filed w ith the A dm inistrator a\npow er o f attorney, executed in such manner and form as the A dm inistrator may prescribe.\n12 38 U.S.C. \xc2\xa7 3402(a)(2). The extensive use o f full-tim e paid service agents from veterans\xe2\x80\x99 organizations\nwas noted by the Suprem e Court in Walters. 473 U.S. at 31 1 -1 2 . The Court noted that 86 percent o f all\nclaim ants are represented by service representatives. Id. at 312 n.4.\n13 In a footnote, the Walters Court referred to testim ony by tw o attorneys, one w ho had handled claim s by\nveterans as a law student and another w ho was a staff m em ber o f the appellee v eterans\xe2\x80\x99 organization, \xe2\x80\x9cSwords\nto Ploughshares.\xe2\x80\x9d 473 U.S. at 324 n . l l .\n\n5\n\n\x0c"


b'Applicability of 18 U.S.C. \xc2\xa7 219 to\nRetired Foreign Service Officers\nA retired foreign service officer is not a public official of the United States subject to 18 U.S.C.\n\xc2\xa7 219, which provides criminal penalties for conduct that would usually constitute a violation\nof the Emoluments Clause of the Constitution, Article I, \xc2\xa7 9, cl. 8.\n\nJune 15, 1987\nM e m o r a n d u m O p in io n f o r t h e L e g a l A d v is e r ,\nD e p a r t m e n t o f St a t e\n\nThis responds to your request for our views on the applicability of 18 U.S.C.\n\xc2\xa7 219 to retired foreign service officers.1 Section 219 provides criminal penal\xc2\xad\nties for any \xe2\x80\x9cpublic official of the United States\xe2\x80\x9d who is required to register\nunder the Foreign Agents Registration Act of 1938 (FARA) because he acts as\nan agent for a foreign principal. Essentially, \xc2\xa7 219 provides criminal penalties\nfor conduct that would usually constitute a violation of the Emoluments Clause\nof the Constitution.2 The question is whether a retired foreign service officer\nshould be considered a \xe2\x80\x9cpublic official of the United States\xe2\x80\x9d for purposes of\n1 This question w as raised originally in a letter from a retired foreign service officer to the O ffice of\nG overnm ent Ethics (OGE). The O G E referred the letter to this O ffice, taking the position that it had no\nauthority to construe this particular provision o f T itle 18. A lthough we have no specific authority to render\nlegal opinions to private individuals, the inquiry seem ed to us o f sufficient general interest to the governm ent\nto w arrant a response. And, because the statute in question is a crim inal law enforced by this D epartm ent, it\nseemed appropriate fo r us to interpret it. In the course o f responding to our request for the view s o f the State\nD epartm ent on the issues involved, you requested that we do so\n2 The Em olum ents C lause o f the C onstitution prohibits persons holding \xe2\x80\x9can O ffice o f Profit o r Trust" under\nthe U nited States from accepting any \xe2\x80\x9c Em olument, O ffice, or T itle" from a foreign state, w ithout the consent\no f Congress. U.S. C onst, art. I, \xc2\xa7 9, cl. 8. The term \xe2\x80\x9cemolument*\' has been interpreted to include com pensation\nfor em ploym ent. See, e.g., 40 Op. A tt\xe2\x80\x99y Gen. 513 (1947). Persons prohibited from being com pensated for\nforeign em ploym ent by the Em oluments Clause may be subject to criminal penalties under \xc2\xa7 219 if they\naccept such em ploym ent, although that section, applying to conduct that would violate the FARA, is both\nbroader and narrow er than the Em olum ents C lause itse lf It is broader in that the FARA applies to agents for\nforeign partnerships, corporations and private persons as well as foreign governm ents, see 22 U.S.C.\n\xc2\xa7 611(b), w hereas the Em oluments C lause concerns only em olum ents received, in some cases indirectly,\nfrom foreign governm ents o r officials. Section 219 is narrow er in that it does not crim inalize everything that\nwould violate the Em olum ent C lause, such as the acceptance o f a \xe2\x80\x9cT itle\xe2\x80\x99\xe2\x80\x99 or \xe2\x80\x9cO ffice\xe2\x80\x9d that w ould not require\nregistration under the FARA. M oreover, the categories o f persons covered by the constitutional and statutory\nprohibitions may not be precisely coextensive, although for practical purposes they are the sam e.\n\n67\n\n\x0cthis statute.3 The State Department is of the view that they should not. For\nreasons set forth in the following paragraphs, we agree.\nThe question of the applicability of \xc2\xa7 219 to retired foreign service agents\narises because, historically, such individuals appear to have been considered by\nthe Department of State to hold an \xe2\x80\x9coffice of profit or trust\xe2\x80\x9d within the\nEmoluments Clause. If they do, they would be disabled by this provision of the\nConstitution from accepting employment with a foreign government, and at\nleast arguably subject to the penalties contained in \xc2\xa7 219 if such employment\nwould require them to register under FARA.4\nAs far as we can determine, no court has ever considered the constitutional\nstatus of retired foreign service officers under the Emoluments Clause, or the\napplicability to them of \xc2\xa7 219. The Registration Unit in the Criminal Division\nof this Department, which has responsibility for interpreting \xc2\xa7 219, indicates\nthat it is a matter of first impression. As you point out in your submission, the\nState Department\xe2\x80\x99s historical position on the applicability of the Emoluments\nClause appears to have been derived from certain cases and administrative\nrulings dealing with the status of retired military officers as \xe2\x80\x9cofficers of the\nUnited States.\xe2\x80\x9d5 It seems to have been assumed that the factual circumstances\n3 As o rig in ally enacted in 1966, \xc2\xa7 2 1 9 applied to \xe2\x80\x9can officer or em ployee o f the U nited States in the\nexecutive, leg islativ e, o r ju d icial branch o f the G overnm ent.\xe2\x80\x9d See Pub. L. No. 89-486, \xc2\xa7 8, 80 Stat. 244, 249.\nIn 1984, \xc2\xa7 219 w as am ended by the C om prehensive C rim e Control A ct to apply to \xe2\x80\x9cpublic officials o f the\nU nited S tates.\xe2\x80\x9d Pub. L. No. 98-473, \xc2\xa7 1 1 1 6 ,9 8 Stat. 1837, 2149. \xe2\x80\x9cPublic official\xe2\x80\x9d is defined in the amended\n\xc2\xa7 219 to include M em bers o f Congress a n d D elegates from the D istrict o f C olum bia, as well as \xe2\x80\x9cany officer or\nem ployee o r person acting on behalf o f th e United States . . . in any official function.\xe2\x80\x9d W ithout more, this\nlanguage on its face w ould not seem n a tu rally to encom pass an o fficer who is retired and thus no longer\n\xe2\x80\x9cacting on b e h alf o f the U nited S tates. . . in any official function.\xe2\x80\x9d M oreover, there is no reason to believe the\n1984 change in the d escrip tio n of the c lass o f persons covered by \xc2\xa7 219 was intended to effect any change in\nthe statu te\'s coverage o f retired foreign service officers. There is no docum ented legislative history that\nw ould illum inate the purpose o f the ch an g e, which was added to the C rim e C ontrol bill in a jo in t HouseS enate m ark-up session after the bill had b een reported out o f com m ittee in both H ouses. The am endm ent to\n\xc2\xa7 2 1 9 w as not discussed on the floor. A ccording to C rim inal D ivision attorneys who were m onitoring the\nC rim e C ontrol bill, the sole purpose of th e am endm ent to \xc2\xa7 219 was to bring Members o f C ongress within the\nsectio n \xe2\x80\x99s prohibition.\n4 O ur files indicate that in 1961 the S ta te D epartm ent attem pted to secure the passage of legislation to\nauthorize retired foreign service officers to accept em ploym ent w ith foreign governm ents, subject to the\napproval o f the Secretary o f State. The S ta te D epartm ent d ra ft bill w as explicitly prem ised on the assum ption\nthat the Em olum ents C lause would otherw ise preclude such em ploym ent. See M emorandum to Byron R.\nW hite, D eputy A ttorney G eneral from N icholas DeB. K atzenbach, A ssistant A ttorney General, O ffice o f\nLegal C ounsel (N ov. 3, 1961). A subsequent legislative enactm ent gave C ongress\' consent to the employ\xc2\xad\nm ent o f certain retired o fficers of the U n ite d States by foreign governm ents, but did not address the situation\no f retired foreign service officers. See P ub. L. No. 9 5 -1 0 5 , \xc2\xa7 509(a)-(c), 91 Stat. 844, 859 (1977) (codified at\n37 U .S.C . \xc2\xa7 9 08) (consenting to the em ploym ent by fo reign governm ents o f retired m ilitary officers, retired\nPublic H ealth Service o fficers, and m em bers o f the arm ed forces reserves). It may be, as you point out, that\nC o n g re ss\' failu re in 1977 to include retired foreign service officers am ong those exem pted from \xc2\xa7 219 can be\nattrib u ted to th e fact th at by that time n e ith e r the State D epartm ent n o r C ongress believed that they would\no therw ise be subject to its provision. In lig h t o f the State D epartm ent\xe2\x80\x99s earlier contrary belief, how ever, and\nthe potential crim inal p en alties involved, it seems im portant to settle the m atter clearly one way o r the other.\n5 See, e.g.. United States v. Tyler, 105 U .S . 244 (1881) (retired m ilitary officer still a member o f the armed\nforces fo r purposes o f a statutory pay increase); Morgenthau v. Barrett, 108 F.2d 481 (D.C. Cir. 1939), cert,\ndenied, 309 U .S. 672 (1940) (retired m ilitary officers are officers o f the United States and subject to all\nconflict o f interest law s from which they have not been exem pted). The C om ptroller General has taken the\nposition that retired m ilitary officers are prohibited by the Em olum ents Clause from holding em ploym ent\nContinued\n\n68\n\n\x0cof retirement from the foreign service were sufficiently close to those prevail\xc2\xad\ning in the military to warrant according retirees from both services similar\ntreatment under \xc2\xa7 219. For the reasons set forth in your submission, we agree\nthat this assumption should be reexamined.\nUnder the laws establishing the terms and conditions of retirement status for\nforeign service officers, their situation differs in a number of important re\xc2\xad\nspects from that of retired military officers. Most significantly, retired military\nofficers are subject to recall to active duty without their consent, and this\nobligation may be enforced by court martial under the Uniform Code of\nMilitary Justice. See 10 U.S.C. \xc2\xa7\xc2\xa7 688, 802.6 By contrast, according to your\nsubmission, the statutory provision authorizing recall of a retired foreign\nservice officer, 22 U.S.C. \xc2\xa7 3948, has never been understood to allow\nnonconsensual recall. There is in any event no provision for enforcing it.\nWhile the difference in the recall status of the two classes of retirees seems to\nus sufficient in and of itself to justify according them different treatment under\nthe Emoluments Clause and \xc2\xa7 219, there is other statutory evidence of Con\xc2\xad\ngress\xe2\x80\x99 expectation that retired foreign service officers would not be regarded as\non the same footing as retired military officers as far as their continuing\nrelationship with the government was concerned. For example, unlike retired\nmilitary officers, retired foreign service officers are not listed as members of\nthe service in the pertinent provisions of the United States Code. Compare 10\nU.S.C. \xc2\xa7 3075 with 22 U.S.C. \xc2\xa7 3903. Also, retired foreign service officers\nreceive a retirement \xe2\x80\x9cannuity,\xe2\x80\x9d while retired military officers receive \xe2\x80\x9cretired\npay.\xe2\x80\x9d See 10 U.S.C. \xc2\xa7 1401.\nAccordingly, we agree with your conclusion that a retired foreign service\nofficer should not be regarded as holding \xe2\x80\x9can Office of Profit or Trust\xe2\x80\x9d within\nthe Emoluments Clause, nor, consequently, as a \xe2\x80\x9cpublic official of the United\nStates\xe2\x80\x9d for purposes of 18 U.S.C. \xc2\xa7 219.\nM\n\nic h a e l\n\nA . C a r v in\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n5 ( . . . continued)\nwith a foreign governm ent because they are subject to being recalled to active service. See, e.g., S3 Com p.\nGen. 753 (1974). The legislative history o f \xc2\xa7 2 1 9 indicates an expectation that the provision m ight be\nconstrued to apply to retired m ilitary officers. See H.R. Rep. No. 1470, 89th Cong., 2d Sess. 18-19 (1966)\n(reproducing letter from the D epartm ent o f the Navy requesting the addition of a provision specifically\nexem pting retired m ilitary officers from \xc2\xa7 219).\n6 It is this aspect o f the status o f retired m ilitary officers that has led courts to conclude that they should be\nconsidered officers o f the U nited States even in retirem ent. See United States v. Tyler, 105 U .S. at 246; supra\nuote 5.\n\n69\n\n\x0c'


b'Use of Marshals, Troops, and Other Federal Personnel\nfor Law Enforcement in Mississippi\nThe problems of using large numbers of federal civilian law enforcement personnel in Mississippi are\nmore practical than legal. So long as they confine themselves to investigation and prosecution of\nfederal crimes, there is no legal problem. The practical problem is whether their presence serves to\naggravate the emotions of the populace or alienate local law enforcement officials.\nOn the factual assumption that there is a complete breakdown of state law enforcement as a result of\nKlan activity and Klan connections with local sheriffs and deputies, the President could, as a legal\nmatter, invoke the authority of sections 332 and 333 of title 10 to use military troops in Mississippi.\nThere is considerable information available that could be used to support that assumption as to some\nareas in Mississippi. But in view of the extreme seriousness of the use of those sections, the government should have more evidence than it presently has of the inability of state and local officials\nto maintain law and order\xe2\x80\x94as a matter of wisdom as well as of law.\n\nJuly 1, 1964\n\nMEMORANDUM FOR THE PRESIDENT*\nThere are considerable pressures from civil rights groups and from some members of Congress to station federal personnel in Mississippi as a method of\npreventing further acts of violence against civil rights workers there. These\nproposals range from those which urge, in effect, the occupation of Mississippi by\nfederal troops to those which suggest that a modest number of United States\nmarshals or FBI agents be strategically placed to help protect civil rights workers.\nAll of these proposals raise mixed problems of law, policy, and practicality.\nThe purpose of this memorandum is to clarify those problems.\nI. The Legal Background\nIn general, federal law enforcement efforts have traditionally been designed to\nsupplement and support the efforts of state law enforcement personnel rather than\nto replace them. Under the Constitution, the states have exclusive jurisdiction over\nmost aspects of law enforcement. While there are many federal criminal statutes,\nthey deal for the most part with specialized matters and have little relevance to the\nbasic problem of maintaining order in the community in the sense of preventing\nviolence. It is state and local law which defines and punishes crimes such as\n*\nEditor\xe2\x80\x99s Note: This memorandum was accompanied by a cover memorandum of that same date\nfor Lee White, the Special Assistant to the President, from Deputy Attorney General Katzenbach,\nstating as follows:\n\nHere is the memorandum for the President which he requested. I am transmitting it\nthrough you so you will have an opportunity to read it first and explain anything in it\nthat is not clear, or express any views which you may have which differ from these.\nAs the memorandum indicates, I think it is unwise for the President to publicly state\nthat there is a lack of legal authority, since this forces disputes on the wrong issues.\n\n493\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nmurder, assault, rioting, disturbing the peace, vandalism, and so on, which seldom\nalso involve violations of federal law. As a result, in part because of this traditional allocation of responsibilities, and in part because of the historic policy against\nthe development of a federal police force, the federal government is ill equipped\xe2\x80\x94\nin terms both of laws and of personnel\xe2\x80\x94to perform ordinary police functions.\nFederal law enforcement personnel have authority only to enforce federal law,\nand the statutes available to them for use in the Mississippi situation present some\ntechnical difficulties. The two statutes most likely to be involved are 18 U.S.C.\n\xc2\xa7 241 (conspiracy against rights of citizens) and 18 U.S.C. \xc2\xa7 242 (deprivation of\nrights under color of law). Both statutes have been narrowly construed by the\nSupreme Court. Although it was possible to use section 241 to make the recent\narrests in Itta Bena, Mississippi, that was a case involving threats where the threats\nthemselves showed the intent to interfere with the right to vote which is an\nelement of the offense. In the usual case involving an act of violence, such\nevidence can usually be secured only by painstaking investigation. The second\nstatute, section 242, applies to acts of state or local officials, done \xe2\x80\x9cunder color of\nlaw,\xe2\x80\x9d and requires a showing that the act was done with a \xe2\x80\x9cspecific intent\xe2\x80\x9d to\ndeprive the victim of a constitutional right. It is, therefore, difficult to secure the\nnecessary evidence to gain a conviction under section 242 even in what seem to be\nflagrant cases.\nWhat has been said does not mean that there would be any specific legal objection to sending federal civilian personnel to guard against possible violations of\nfederal law. Both United States marshals and agents of the FBI are authorized by\nstatute to carry firearms and to make arrests without warrant where there is\n\xe2\x80\x9cprobable cause\xe2\x80\x9d to believe that a federal offense has been committed. And while\nthe prospect is that few convictions could be obtained, it is likely that in many or\nmost instances of violence directed against civil rights workers there would be\nsufficient cause to investigate and probably enough evidence of a violation of\nfederal law to justify making an arrest.\nII. Use of Civilian Personnel for Police or Guard Duties\nThere are in the federal service approximately 600 deputy marshals assigned to\nthe 93 judicial districts of the United States. Although they have broad authority to\nexecute federal laws, as noted above, their normal duties are to maintain order in\nfederal courts, serve subpoenas and other documents, maintain custody of federal\nprisoners undergoing trial, and occasionally to make arrests pursuant to an arrest\nor indictment.\nThe Attorney General has the authority to deputize additional persons to serve\nas federal deputy marshals. He can, therefore, deputize members of the Border\nPatrol, the Bureau of Prisons, the Alcohol and Tobacco Tax Units of the Internal\nRevenue Service, or others with law enforcement training. The only limitation on\nthis authority is that he may not deputize personnel of the Army or Air Force.\n\n494\n\n\x0cUse of Federal Personnel for Law Enforcement in Mississippi\n\n(Oddly, by legislative oversight, this restriction does not technically apply to\npersonnel of the Navy or Marine Corps.)\nWith respect to the regular deputy marshals, their limited number and the fact\nthat they do not routinely work together as a force in law enforcement activity\nlimit their usefulness for any broad-scale assumption of responsibility for maintaining order. The use of 130 deputy marshals for a period of several days in\nOxford, Mississippi placed a severe strain on the marshal service throughout the\nnation and was not notably effective from a law-enforcement point of view.\nSimply in terms of the number of men required, it would not be feasible to provide\nprotection by marshals to any substantial number of civil rights workers comparable to that provided to James Meredith during the period when he was in Oxford.\nFor a period of several days during the Oxford crisis the force of deputy marshals on the scene amounted to approximately 400. Some 270 of these were\nspecially deputized prison guards and members of the Border Patrol.\nIn general, the effectiveness of all marshals in Mississippi would be hampered\nby their unfamiliarity with the geography and the population of the area. Also,\nthey would be hampered by the absence of power to enforce local law. Local law\nenforcement personnel are aided in breaking up dangerous situations by their\nability to round up groups of people and arrest them on such charges as loitering,\ndisturbing the peace, obstructing traffic, etc. This technique would not, of course,\nbe available to marshals and the fact that conviction is so unlikely under federal\nlaw would undermine the effectiveness of arrests generally. Aside from these\nconsiderations, there is a whole range of practical problems as to what the\nmarshals\xe2\x80\x99 responsibilities would be in various situations, particularly if the civil\nrights workers who are being protected should insist upon engaging in activities\nwhich are regarded by federal authorities as unwise or improper. If federal\npersonnel accompany civil rights workers wherever they go, the federal government will undoubtedly be held responsible by the local population for whatever\nthe civil rights workers see fit to do, regardless of whether the federal government\napproves or is in a position to control what is done.\nThere is another practical problem, however, which is the crux of the matter.\nThe experience of the Department in the Oxford, Mississippi crisis and in the\nseveral disturbances in Alabama convinced all those who participated that the\nmost crucial factor in maintaining law and order in a community gripped by racial\ncrisis is the support of state and local law enforcement officers. If they are clearly\ndetermined to support law and order, the prospects of violence are considerably\nreduced. If they encourage violence or abdicate responsibility for law enforcement\nfunctions, violence on a substantial scale is virtually certain to occur and the\npossibility of maintaining order by any means short of the use of federal troops\nbecomes negligible. Once local law enforcement ceases to function in any sizable\narea, the number of personnel required to maintain control without the actual use\nof weapons exceeds the manpower resources of every branch of the federal service\nexcept the military. It is essential, therefore, to encourage state and local law\n\n495\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nenforcement agencies to carry out their responsibilities and, if at all possible, to\navoid using federal personnel in such a way so as to provide an excuse for\nabandonment of responsibility by such agencies.\nIf marshals or agents of the Bureau are used in any obvious way as guards in\nMississippi, without the active support and cooperation of local officials, local law\nenforcement will tend to break down. This is not merely because local officials\nresent the intervention of outsiders, although that is an obvious factor. The fact is\nthat in Mississippi the use of federal law enforcement personnel, particularly\nmarshals, is regarded by the public as provocative and might well give rise to\nmore breaches of the peace than would otherwise occur. Particularly if the civil\nrights workers involved engage in demonstrations and other mass activities while\naccompanied by marshals, their function will soon cease to be one of preventing\nclandestine violence and become one of maintaining public order among considerable numbers of people over a large area. In that situation, our experience is that\nwithout the support of local officials the maintenance of order requires the use of\ntroops.\nIII. Use of Troops\nThe federal statutes relevant to the use of military force in connection with civil\ndisturbances are 10 U.S.C. \xc2\xa7\xc2\xa7 331\xe2\x80\x9334. Section 331 authorizes the President to\nsupply armed forces at the call of a state legislature or governor to suppress an\ninsurrection. Sections 332 and 333 authorize the President to use the armed forces\nwithout a request by state or local authorities in order to enforce federal law.\nSection 334 provides that whenever the President considers it necessary to use the\narmed forces pursuant to the three preceding sections of the Code, \xe2\x80\x9che shall, by\nproclamation, immediately order the insurgents to disperse and retire peaceably to\ntheir abodes within a limited time.\xe2\x80\x9d\nThe purpose of section 331, following the pattern of federal criminal law generally, obviously is to supplement and support state and local law enforcement.\nSections 332 and 333, which are quoted in full at the end of this memorandum at\nTabs A and B, are designed to deal with situations where state and local law\nenforcement have completely broken down, either because local officials are\nthemselves opposing and obstructing federal law or because they are unable or\nunwilling to control private groups that are in command of the situation.\nSections 332 and 333 appear on their face to confer broad authority to use\ntroops to enforce federal law generally, whenever the President deems it necessary. They are limited, however, by the Constitution and by tradition. Thus the\nprincipal constitutional basis for the use of sections 332 and 333 in connection\nwith racial disturbances is the Fourteenth Amendment, for the only federal law\ninvolved in such disturbances is that Amendment and federal statutes or court\norders which are directly or indirectly based upon it. The Amendment is, of\ncourse, directed against \xe2\x80\x9cstate action\xe2\x80\x9d and does not normally apply to the acts of\n\n496\n\n\x0cUse of Federal Personnel for Law Enforcement in Mississippi\n\nprivate persons. Aside from this consideration, the use of military force to execute\nthe laws has traditionally been regarded with disfavor\xe2\x80\x94as a course of action that\ncan be lawfully and properly pursued only as a last resort. Bennett Milton Rich, in\nThe Presidents and Civil Disorder (1941), summarized many precedents as well as\nmuch legislative history, policy, and tradition when he said:\nUnless there is some special reason which seems to make imperative\nthe immediate use of the troops, or until all efforts to effect a peaceful settlement have failed and violence threatens of a nature beyond\nthe ability of the local and state governments to control, the president\nis wise to avoid recourse to force. To use the troops only when no\nother solution seems possible has been the most frequent presidential\npractice\xe2\x80\x94a practice the value of which is attested by the fact that it\nhas met with complete success.\nId. at 219.\nFor the foregoing reasons, sections 332 and 333 have always been interpreted\nas requiring, as a prerequisite to action by the President, the conditions described\nabove: that state authorities are either directly involved, by acting or failing to act,\nin denials of federal rights of a dimension requiring federal military action, or are\nso helpless in the face of private violence that the private activity has taken on the\ncharacter of state action. The degree of breakdown in state authority that is\nrequired undoubtedly is less where a federal court order is involved, for there the\npower of the federal government is asserted not simply to enforce the Fourteenth\nAmendment, but to defend the authority and integrity of the federal courts under\nthe Supremacy Clause of the Constitution. But where no court order is involved,\nreliance must be placed on the premise that those engaging in violence are either\nacting with the approval of state authorities or have, like the Klan in the 1870s,\ntaken over effective control of the area involved.\nIn every recent use of authority under sections 332 and 333, a court order has\nbeen involved. Moreover, the President has noted either that the duly constituted\nauthorities of the state were themselves opposing and obstructing the enforcement\nof federal law or had declined to provide adequate assurances that law and order\nwould be maintained. Should these conditions not be present, we think the\nsituation must be one which, in the judgment of the President, involves a serious\nand general breakdown of the authority of state and local government in the area\naffected.\nThere are, of course, immense practical problems involved in the use of troops,\nof which possibly the worst one is that it becomes difficult to find a way to\nwithdraw. Local authorities tend to abdicate all law enforcement responsibility,\nleaving the troops without adequate legal tools\xe2\x80\x94short of a declaration of martial\nlaw\xe2\x80\x94to perform routine law enforcement functions for which they have little\ntraining.\n\n497\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nIV. Conclusion\nThe group of professors which has publicly taken issue with the statement\nattributed (inaccurately) to the Attorney General that there was no adequate legal\nbasis for federal law enforcement in Mississippi is hard to dispute. They assume\nthe complete breakdown of state law enforcement as a result of Klan activity and\nKlan connections with local sheriffs and deputies. On that factual assumption the\nPresident could, as a legal matter, invoke the authority of sections 332 and 333.\nThere is, of course, considerable information available that could be used to\nsupport that assumption as to some areas in Mississippi. But in view of the\nextreme seriousness of the use of those sections, I believe that the government\nshould have more evidence than it presently has of the inability of state and local\nofficials to maintain law and order\xe2\x80\x94as a matter of wisdom as well as of law.\nFurthermore, vigorous investigation and prosecution where federal crimes are\ninvolved may serve, in conjunction with state police action, to forestall the serious\nbreakdown which those sections of the statute contemplate.\nAs indicated above, the problems of using large numbers of federal civilian law\nenforcement personnel are more practical than legal. So long as they confine\nthemselves to investigation and prosecution of federal crimes, there is no legal\nproblem. The practical problem is whether their presence serves to aggravate the\nemotions of the populace or alienate local law enforcement officials. Marshals, in\naddition to problems of availability and training, would likely aggravate the\nproblem. Increase of FBI personnel, along the lines previously followed, is not\nlikely to have the same result and constitutes the more effective course of action\nthat can be followed at the present time.\nNICHOLAS deB. KATZENBACH\nDeputy Attorney General\n\n498\n\n\x0c'


b'Effect of a Repeal of the Tonkin Gulf Resolution\nBecause the President\xe2\x80\x99s inherent constitutional authority to employ military force abroad depends to a\nvery considerable extent on the circumstances of the case, and, in particular, the extent to which\nsuch use of force is deemed essential for the preservation of American lives and property or the\nprotection of American security interests, it is impossible to state in concrete terms the legal effect\nof a repeal of the Tonkin Gulf Resolution.\nSuch a repeal standing alone would not only throw into question the legal basis for certain actions the\nPresident might deem it desirable to take in the national interest, but would also demonstrate to\nforeign powers lack of firm national support for the carrying out of the policies set forth in the joint\nresolutions.\n\nJanuary 15, 1970\n\nMEMORANDUM FOR THE DIRECTOR\nBUREAU OF THE BUDGET\nThis is in response to your request for the views of the Department of Justice\non S.J. Res. 166, to repeal legislation relating to the use of the armed forces of the\nUnited States in certain areas outside the United States and to express the sense of\nthe Congress on certain matters relating to the war in Vietnam, and for other\npurposes.\nSection 1 of S.J. Res. 166 would repeal four joint resolutions which have specifically or impliedly authorized the use of the armed forces at the discretion of the\nPresident in circumstances not involving a declaration of war by the United States:\n1. The joint resolution of January 29, 1955, Pub. L. No. 84-4, 69 Stat. 7, which\nauthorizes the President \xe2\x80\x9cto employ the Armed Forces of the United States as he\ndeems necessary for the specific purpose of securing and protecting Formosa and\nthe Pescadores against armed attack.\xe2\x80\x9d\n2. The joint resolution of March 9, 1957, Pub. L. No. 85-7, 71 Stat. 5, \xe2\x80\x9c[t]o\npromote peace and stability in the Middle East.\xe2\x80\x9d This resolution authorizes the\nPresident to undertake military assistance programs in the general area of the\nMiddle East and states further that \xe2\x80\x9cif the President determines the necessity\nthereof, the United States is prepared to use armed forces to assist\xe2\x80\x9d any Middle\nEastern nation or group of nations \xe2\x80\x9cagainst armed aggression from any country\ncontrolled by international communism.\xe2\x80\x9d Id. \xc2\xa7 2. (S.J. Res. 166 would repeal only\nsection 2 of the joint resolution; however, the other provisions of the resolution\nhave either been executed or depend for their effect on the continued effectiveness\nof section 2.)\n3. The joint resolution of October 3, 1962, Pub. L. No. 87-733, 76 Stat. 697,\n\xe2\x80\x9cexpressing the determination of the United States with respect to the situation in\nCuba.\xe2\x80\x9d\n4. The joint resolution of August 10, 1964, the \xe2\x80\x9cTonkin Gulf Resolution,\xe2\x80\x9d Pub.\nL. No. 88-408, 78 Stat. 384, which \xe2\x80\x9capproves and supports the determination of\n\n499\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthe President, as Commander in Chief, to take all necessary measures to repel any\narmed attack against the forces of the United States and to prevent further\naggression,\xe2\x80\x9d id., and states further that the United States is prepared, \xe2\x80\x9cas the\nPresident determines, to take all necessary steps, including the use of armed force,\nto assist any member or protocol state of the Southeast Asia Collective Defense\nTreaty requesting assistance in defense of its freedom,\xe2\x80\x9d id. \xc2\xa7 2.\nIt should be noted that the repeal would not be effective upon the enactment of\nS.J. Res. 166, but upon the sine die adjournment of the 91st Congress.\nThe proposal to repeal these various statements of policy and grants of authority raises the question what would be the President\xe2\x80\x99s authority to use the armed\nforces in the absence of the legal support provided by these resolutions. No simple\nanswer can be given. While the Constitution reserves to Congress the authority to\ndeclare war, Presidents have frequently employed military and naval forces abroad\nin the absence of a declaration of war, sometimes with and sometimes without an\nexpression of congressional approval such as those contained in the joint resolutions listed above. To cite a few examples, President Truman\xe2\x80\x99s action in sending\nAmerican troops to Korea in 1950 and President Johnson\xe2\x80\x99s action in sending\ntroops to the Dominican Republic in 1965 were taken without the benefit of any\nspecific congressional grant of authority. On the other hand, the authority to\nconduct the Vietnam War derives, at least in part, from the Tonkin Gulf Resolution. President Eisenhower\xe2\x80\x99s action in landing troops in Lebanon in 1958 was not\nexplicitly based on the joint resolution of March 9, 1957, but the existence of the\nresolution undoubtedly strengthened the legal and political case for such action.\nPresidents have traditionally sought this sort of congressional authority not only\nto avoid legal questions in a somewhat shadowy area of constitutional law, but\nalso to demonstrate to present and prospective antagonists the American people\xe2\x80\x99s\nunity of purpose. Thus, in requesting from Congress a resolution regarding the\ndefense of Formosa, President Eisenhower stated that authority for some of the\nactions he might find it necessary to take would be \xe2\x80\x9cinherent in the authority of the\nCommander-in-Chief,\xe2\x80\x9d and that he would not hesitate, in the absence of authority\nfrom Congress, to take emergency action \xe2\x80\x9cto protect the rights and security of the\nUnited States.\xe2\x80\x9d Special Message to the Congress Regarding United States Policy\nfor the Defense of Formosa, Pub. Papers of Pres. Dwight D. Eisenhower 207, 209,\n210 (Jan. 24, 1955). He added:\nHowever, a suitable Congressional resolution would clearly and publicly establish the authority of the President as Commander-in-Chief\nto employ the armed forces of this nation promptly and effectively\nfor the purposes indicated if in his judgment it became necessary. It\nwould make clear the unified and serious intentions of our Government, our Congress, and our people.\nId. at 210.\n\n500\n\n\x0cEffect of a Repeal of the Tonkin Gulf Resolution\n\nSince the President\xe2\x80\x99s inherent constitutional authority to employ military force\nabroad depends to a very considerable extent on the circumstances of the case,\nand, in particular, the extent to which such use of force is deemed essential for the\npreservation of American lives and property or the protection of American\nsecurity interests, it is impossible to state in concrete terms the legal effect of the\nrepeals proposed by S.J. Res. 166. Then, too, much would depend on whether\nCongress, by other policy statements or grants of authority, attempted to fill the\ngaps left by the repeals. It seems safe to conclude, however, that the repeals\nstanding alone would not only throw into question the legal basis for certain\nactions the President might deem it desirable to take in the national interest, but\nwould also demonstrate to foreign powers lack of firm national support for the\ncarrying out of the policies set forth in the joint resolutions.\nSection 2 of S.J. Res. 166 would establish a joint Senate-House committee to\nstudy the matter of terminating the national emergency proclaimed by the\nPresident on December 16, 1950 (Proclamation No. 2914, 64 Stat. A454, 3 C.F.R.\n99 (1949\xe2\x80\x931953)). This proclamation of a national emergency is still in effect and\nas a result of the continued existence of this national emergency certain broad\nstatutory powers are available to the President. For example, the emergency\npowers available under section 5(b) of the Trading with the Enemy Act (50 U.S.C.\nApp. \xc2\xa7 5(b)) have furnished the basis for restrictions on trade with Mainland\nChina, the freezing of Cuban-owned assets, and the Foreign Direct Investment\nProgram established by Executive Order 11387 of January 1, 1968, 33 Fed. Reg.\n47. See Validity of Executive Order Authorizing Program Restricting Transfers of\nCapital to Foreign Countries by Substantial Investors in the United States and\nRequiring Repatriation by Such Investors of Portions of Their Foreign Earnings\nand Short-Term Financial Assets Held Abroad, 42 Op. Att\xe2\x80\x99y Gen. 363 (1968).\nWe are doubtful that the time is ripe for a termination of the national emergency declared in 1950. However, S.J. Res. 166 provides only for a study of the\nquestion by a congressional committee, a proposal to which we have no objection\nand which, in any event, appears exclusively for Congress to pass upon.\nSections 3, 4 and 5 of S.J. Res. 166 are expressions of policy with regard to\nVietnam and Southeast Asia. They do not involve the responsibilities of this\nDepartment, and we defer to the views of the agencies more directly concerned.\nRICHARD G. KLEINDIENST\nDeputy Attorney General\n\n501\n\n\x0c'


b"Applicability of EEOC Proposed Final Rule to the Department\nof Veterans Affairs\nThe Veterans\xe2\x80\x99 Benefits Act is not inconsistent with the proposed Equal Employment Opportunity\nCommission final rule on hearings for federal employees\xe2\x80\x99 EEO complaints, and therefore the\nDepartment of Veterans Affairs would b e subject to the rule to the same extent as other executive\nbranch agencies.\n\nSeptember 28, 1999\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nD e p a r t m e n t o f V e t e r a n s A f f a ir s\n\nThis memorandum responds to your request for our opinion whether, in light\nof the Veterans\xe2\x80\x99 Benefits Act of 1997, Pub. L. No. 105-114, 111 Stat. 2277 (codi\xc2\xad\nfied as amended in scattered sections of 38 U.S.C.) ( \xe2\x80\x9c VBA\xe2\x80\x9d ), the Department\nof Veterans Affairs ( \xe2\x80\x9c VA\xe2\x80\x9d or \xe2\x80\x9c Department\xe2\x80\x9d ) would be subject to a proposed\nfinal rule promulgated by the Equal Employment Opportunity Commission\n(\xe2\x80\x9c EEOC\xe2\x80\x9d or \xe2\x80\x9c Commission\xe2\x80\x9d ) concerning the procedures to be followed in\nemployment discrimination cases against federal sector employers in which the\ncomplainant requests a hearing. See Letter for Randolph D. Moss, Acting Assistant\nAttorney General, Office of Legal Counsel, from Leigh A. Bradley, General\nCounsel, Department o f Veterans Affairs, Re: Request f o r an Opinion on Whether\nthe Departm ent o f Veterans Affairs is Subject to E E O C \xe2\x80\x99s Proposed Final Rule\nRevising 29 C.F.R. P art 1614 Insofar as Proposed Sections 29 C.F.R.\n\xc2\xa7 I614.109(i) and \xc2\xa7 1614.110(a) Abrogate the Statutory Authority o f V A \xe2\x80\x99s Office\no f Employment Discrimination Complaint Adjudication to Make Final, Dispositive\nD ecisions as to the M erits of Employment Discrimination Complaints (Apr. 5,\n\n1999) (\xe2\x80\x9c VA Request\xe2\x80\x9d ). For the reasons discussed below, we conclude that the\nprovisions o f the VBA are not inconsistent with the EEOC\xe2\x80\x99s proposed final rule\nand that VA would therefore be subject to the proposed final rule to the same\nextent as other executive branch agencies.\n\nBackground\nA. Title VII and the Proposed Regulation\nTitle VII of the Civil Rights A ct of 1964, as amended (codified at 42 U.S.C.A.\n\xc2\xa7\xc2\xa72000e to 2000e-17 (West 1994 & Supp. 1999)) ( \xe2\x80\x9c Title VII\xe2\x80\x9d ), protects most\nfederal employees against employment discrimination on the basis of race, color,\nreligion, sex, or national origin. See Equal Employment Opportunity Act of 1972,\nPub. L. No. 92-261, sec. 11, \xc2\xa7 717(a), 86 Stat.103, 111 (codified as amended\nat 42 U.S.C.A. \xc2\xa7 2000e-16(a)) ( \xe2\x80\x9c section 717\xe2\x80\x9d ). The statute authorizes aggrieved\n216\n\n\x0cApplicability o f EEOC Proposed Final Rule to the Department o f Veterans Affairs\n\nfederal employees to sue for relief under certain circumstances. In particular, sec\xc2\xad\ntion 717(c) of Title VII provides:\nWithin 90 days of receipt of notice of final action taken by a\ndepartment, agency, or unit referred to in subsection (a) of this sec\xc2\xad\ntion, or by the Equal Employment Opportunity Commission upon\nan appeal from a decision or order of such department, agency,\nor unit on a complaint of discrimination based on race, color, reli\xc2\xad\ngion, sex or national origin, brought pursuant to subsection (a) of\nthis section, Executive Order 11478 or any succeeding Executive\norders, or after one hundred and eighty days from the filing of the\ninitial charge with the department, agency, or unit or with the Equal\nEmployment Opportunity Commission on appeal from a decision\nor order of such department, agency, or unit until such time as final\naction may be taken by a department, agency, or unit, an employee\nor applicant for employment, if aggrieved by the final disposition\nof his complaint, or by the failure to take final action on his com\xc2\xad\nplaint, may file a civil action as provided in section 2000e-5 of\nthis title, in which civil action the head of the department, agency,\nor unit, as appropriate, shall be the defendant.\n42 U.S.C. \xc2\xa72000e-16(c) (1994) (emphasis added). This provision\xe2\x80\x99s reference to\n\xe2\x80\x9c final action\xe2\x80\x9d by an agency arguably assumes that the agency has a definitive\ndecisional role regarding administrative complaints apart from the role played by\nthe EEOC.\nUnder current regulations, once an EEOC administrative judge (\xe2\x80\x9c A J\xe2\x80\x9d ) has ren\xc2\xad\ndered a decision on an EEO complaint, the respondent agency may then reject\nor modify the AJ\xe2\x80\x99s decision, including by substituting the agency\xe2\x80\x99s preferred\nremedy, see 29 C.F.R. \xc2\xa7\xc2\xa7 1614.109-110 (1998), subject to the complainant\xe2\x80\x99s right\nto administrative appeal, see 29 C.F.R. \xc2\xa7\xc2\xa7 1614.401, 1614.403 (1998). According\nto the EEOC, the current system has engendered dissatisfaction based on a concern\nthat federal agencies are allowed to judge their own behavior. See Proposed Final\nRule (attachment to VA Request) at 21 ( \xe2\x80\x9c The Commission strongly believes that\nallowing agencies to reject or modify an administrative judge\xe2\x80\x99s findings of fact\nand conclusions of law and to substitute their own decisions leads to an unavoid\xc2\xad\nable conflict of interest and creates a perception of unfairness in the federal EEO\nsystem.\xe2\x80\x9d ).\nThe EEOC has issued a Proposed Final Rule (\xe2\x80\x9c PFR\xe2\x80\x9d ) that, among other provi\xc2\xad\nsions, would change the current system by limiting the discretion of an agency\nto take a \xe2\x80\x9c final action\xe2\x80\x9d that modifies the A J\xe2\x80\x99s determination. In the Commission\xe2\x80\x99s\nview, the proposed new regulations preserve the opportunity for final agency\naction contemplated by section 717(c) of Title VII:\n217\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nAdministrative judges will issue decisions on all complaints\nreferred to them for hearings. Agencies will have the opportunity\nto take final action on the complaint by issuing a final order within\n15 days of receipt of the administrative judge\xe2\x80\x99s decision. The final\norder will notify the complainant whether or not the agency will\nfully implement the decision of the administrative judge and will\ncontain notice of the complainant\xe2\x80\x99s right to appeal to EEOC. If\nthe agency\xe2\x80\x99s final order does not fully implement the decision of\nthe administrative judge, the agency must simultaneously file an\nappeal of the decision with EEOC. In this way, agencies will take\nfinal action on complaints referred to administrative judges by\nissuing a final order, but they will not introduce new evidence or\nwrite a new decision in the case.\nPFR at 2 1 -2 2 .1\nB.\nThe Veterans\xe2\x80\x99 Benefits Act of 1997 and VA\xe2\x80\x99s Objection to the Proposed\nRegulation\nUnlike other executive branch departments and agencies, VA\xe2\x80\x99s system for the\nprocessing of employment discrimination complaints is governed by an agencyspecific statute, the Veterans\xe2\x80\x99 Benefits Act of 1997. The question here is whether\nEEOC\xe2\x80\x99s proposed regulation conflicts, not with the \xe2\x80\x9c final action\xe2\x80\x9d reference in\nTitle VII itself, but with a provision of the VBA that creates a new office within\nthe Department of Veterans Affairs and authorizes it to make the \xe2\x80\x9c final agency\ndecision within the Department on the merits of any employment discrimination\ncomplaint.\xe2\x80\x9d VBA, Sec. 102(a)(1), \xc2\xa7319(b)(l), 111 Stat. at 2280. You contend\nthat the EEOC lacks authority to limit VA\xe2\x80\x99s latitude in taking final action on\ncomplaints because the VBA uniquely reserves to VA\xe2\x80\x99s Office of Employment\nDiscrimination Complaint Adjudication the authority to make final decisions on\nEEO complaints involving VA. V A Request at 3.\nCongress enacted the VBA in response to complaints that VA\xe2\x80\x99s complaint adju\xc2\xad\ndication system did not adequately protect victims of sexual harassment.2 The\n\xe2\x80\x98 W e offer no opinion whether the EEOC\xe2\x80\x99s PFR is consistent with Title v n and otherwise lawful, and instead\nconsider only whether, assum ing the PFR is lawful under Title VII, VA alone is exempt from its provisions by\nvirtue of the VBA. The EE O C \xe2\x80\x99s current proposal modifies an earlier one that the EEOC has since abandoned.\nSee PFR at 20-21 A num ber o f executive branch agencies objected to the earlier proposal on several grounds,\nincluding that it would be inconsistent with the references in section 717(c) of Title VII to a \xe2\x80\x9c final action\xe2\x80\x9d by\nthe agency as a prerequisite to a civil suit. See id. at 20 The Commission, without agreeing to the objecting agencies\xe2\x80\x99\ninterpretation o f section 717(c) and without seeking a legal opinion from this Office, \xe2\x80\x98\xe2\x80\x98decided to revise the proposal\nin order to make needed improvements in the procedures while recognizing the concerns expressed by the agencies \xe2\x80\x9d\nId. at 21.\n2 See, e g , H.R Rep. No 105-292, at 5 (1997) (reporting conclusion \xe2\x80\x98\xe2\x80\x98that a culture of tolerance of sexual harass\xc2\xad\nment and abusive behavior exists at certain V A facilities, and that the policy of \xe2\x80\x98zero tolerance\xe2\x80\x99 of sexual harassment\nis insufficient to address these problems\xe2\x80\x9d ), see also David Dahl, VA M ust Get Tough on Harassment, St Petersburg\n\n218\n\n\x0cApplicability o f EEOC Proposed Final Rule to the Department o f Veterans Affairs\n\nAct generally directs the Secretary of Veterans Affairs to \xe2\x80\x9c take steps to ensure\nthat the [complaint resolution] system is administered in an objective, fair, and\neffective manner and in a manner that is perceived by employees and other\ninterested parties as being objective, fair, and effective.\xe2\x80\x9d VBA, sec. 101(a)(1),\n\xc2\xa7 5 16(a), 111 Stat. at 2278. To further that goal, Congress created a new office\nwithin VA, the Office of Employment Discrimination Complaint Adjudication\n(\xe2\x80\x9c OEDCA\xe2\x80\x9d ), to act as a quasi-independent adjudicator of employment discrimina\xc2\xad\ntion complaints against the Department. Id. sec. 102(a)(1), \xc2\xa7 319, 111 Stat. at 2280.\nThe VBA provides that the Director of OEDCA \xe2\x80\x9c reports directly to the Secretary\nor the Deputy Secretary concerning matters within the responsibility of the\nOffice,\xe2\x80\x9d and \xe2\x80\x9c is responsible for making the fin al agency decision within the\nDepartment on the merits of any employment discrimination complaint filed by\nan employee, or an applicant for employment, with the Department.\xe2\x80\x9d Id. sec.\n102(a)(1), \xc2\xa7 319(a)(3), (b)(1) (emphasis added).3\nYou argue that the EEOC lacks authority to limit VA\xe2\x80\x99s latitude in taking final\nagency action on complaints because the VBA uniquely reserves to VA\xe2\x80\x99s OEDCA\nthe authority to make final decisions on EEO complaints involving VA. You assert\nthat the provisions of the VBA that make the director of OEDCA \xe2\x80\x9c responsible\nTimes, Nov II, 1997, at 3A, available in 1997 WL 14076191 (\xe2\x80\x9c Alarmed by the case o f a sexual harasser .\nCongress on Monday passed a bill lhat forces the Department o f Veterans Affairs to set up some of the strictest\nanti-harassment measures in the government The legislation, approved over the objections of the VA, creates an\noffice to hear employee complaints and empowers Congress and an outstde auditor to oversee the department\xe2\x80\x99s\nperformance in policing harassers. Congress acted after learning that [a] North Carolina VA hospital director\nwas transferred to [another facility], with a six-figure salary, even though a VA investigation found he sexually\nharassed an employee and spoke offensively to two others.\xe2\x80\x9d ).\n3 The full text o f the provision establishing the OEDCA follows'\nOffice of Em ploym ent D iscrim ination C om plaint A djudication\n(a)(1) There is in the Department an Office o f Employment Discrimination Complaint Adjudication. There\nis at the head o f the Office a Director.\n(2) The Director shall be a career appointee in the Senior Executive Service.\n(3) The Director reports directly to the Secretary or the Deputy Secretary concerning matters within\nthe responsibility o f the Office.\n(b)(1) The Director is responsible for making the final agency decision within the Department on the merits\nof any employment discrimination complaint filed by an employee, or an applicant for employment, with\nthe Department. The Director shall make such decisions in an impartial and objective manner.\n(2) No person may make any ex parte communication to the Director or to any employee of the Office\nwith respect to a matter on which the Director has responsibility for making a final agency decision\n(c) Whenever the Director has reason to believe lhat there has been retaliation against an employee by\nreason o f the employee asserting nghts under an equal employment opportunity law, the Director shall\nreport the suspected retaliatory action directly to the Secretary or Deputy Secretary, who shall take appro\xc2\xad\npriate action thereon\n(d)(1) The Office shall employ a sufficient number of attorneys and other personnel as are necessary to\ncarry out the functions o f the Office Attorneys shall be compensated at a level commensurate with attorneys\nemployed by the Office o f the General Counsel.\n(2) The Secretary shall ensure that the Director is furnished sufficient resources in addition to personnel\nunder paragraph (1) to enable the Director to carry out the functions of the Office in a timely manner\n(3) The Secretary shall ensure that any performance appraisal o f the Director of the Office of Employment\nDiscrimination Complaint Adjudication or o f any employee of the Office does not take into consideration\nthe record o f the Director or employee in deciding cases for or against the Department\n38 U S .C \xc2\xa7319 (Supp ill 1997).\n\n219\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nfor making the final agency decision within the Department on the merits of any\nemployment discrimination complaint\xe2\x80\x9d would exempt VA from the operation of\nthe EEOC\xe2\x80\x99s proposed new procedural rules even if those rules lawfully bind other\nfederal agencies. In your view, \xe2\x80\x9c the adjudication authority granted to the\n[OEDCA] Director in Section 102 [of the VBA] cannot be limited in any way\nby EEOC regulations!,] which m ay be inconsistent with the statutory grant of\ndispositive authority provided to the Director of OEDCA.\xe2\x80\x9d VA Request at 3. For\nthe reasons set forth below, we conclude that the proposed EEOC rule is not\ninconsistent with section 102 of the VBA.\n\nDiscussion\nAssuming as you do for purposes of your request that the Proposed Final Rule\npermits agencies in general to take sufficient final action to comply with section\n717(c) o f Title VII, there is no reason to conclude that such opportunity for final\naction would be insufficient under the VBA. Put differently, nothing in the VBA\xe2\x80\x99s\nreference to a \xe2\x80\x9c final agency decision\xe2\x80\x9d suggests that the VBA reserves to VA\nbroader or more inviolate decisional authority than other agencies are assumed\nto have by virtue of Title VII\xe2\x80\x99s references to agencies\xe2\x80\x99 \xe2\x80\x9c final action.\xe2\x80\x9d\nW e have found nothing in the statute or legislative history to suggest that Con\xc2\xad\ngress intended the Director of OEDCA to be more independent of EEOC regula\xc2\xad\ntion than the officials of other executive branch agencies responsible for taking\nfinal agency action on employment discrimination complaints. To the contrary,\nthe House Report explicitly stated that \xe2\x80\x9c [t]he OEDCA is expected to enjoy a\nlevel o f independence comparable to that of administrative law judges employed\nby other federal agencies.\xe2\x80\x9d H.R. Rep. No. 105-292, at 8. That statement indicates\nthat the enactment of the VBA was intended as a remedial measure to address\na particular problem in VA\xe2\x80\x99s employment discrimination complaint resolution\nsystem by reallocating and insulating EEO functions within the agency; the VBA\nwas not meant to shield that system against regulation by the EEOC on the same\nbasis as the Commission regulates the systems within other executive branch agen\xc2\xad\ncies.\nIt is consistent with the general intent of Congress to read the VBA as providing\nOEDCA with independence within VA, and not as carving out an exception to\nprocedures mandated by the EEOC. It appears that both the VBA and the EEOC\xe2\x80\x99s\nProposed Final Rule are motivated to some extent by the same concern: an\nemployment discrimination complaint resolution system that allows an entity to\njudge its own actions is likely to be perceived as biased against complaining\nemployees. In its report on the VBA, the House Committee on Veterans\xe2\x80\x99 Affairs\ndescribed the fundamental problem that prompted the remedial legislation:\n220\n\n\x0cApplicability o f EEOC Proposed Final Rule to the Department o f Veterans Affairs\n\nThe [Veterans\xe2\x80\x99 Affairs Oversight and Investigations] Sub\xc2\xad\ncommittee has concluded that a culture of tolerance of sexual\nharassment and abusive behavior exists at certain VA facilities, and\nthat the policy of \xe2\x80\x9c zero tolerance\xe2\x80\x9d of sexual harassment is insuffi\xc2\xad\ncient to address these problems. Consequently, the Committee\nbelieves it is critical for VA to establish and maintain an EEO com\xc2\xad\nplaint resolution and adjudication system that is both in fact and\nin the perception of VA employees fair, impartial and objective.\nThe complaint process should be completely free and independent\nof undue influence, and the appearance thereof, from supervisors,\nline managers or directors. Objectivity and fairness should permeate\nthe complaint process, from its initial informal stages through the\nDepartment\xe2\x80\x99s final agency decisions. Accordingly, the Committee\nhas concluded that the processing of unlawful discrimination com\xc2\xad\nplaints should occur outside the particular facility where the alleged\ndiscriminatory conduct was said to have arisen, and that final\nagency decisions on the merits of a complaint should be made by\na quasi-independent entity, the Office of Employment Discrimina\xc2\xad\ntion Complaint Adjudication (OEDCA). The OEDCA would be\nheaded by a Director who would report directly to the Secretary\nof Veterans Affairs or the Deputy Secretary. In addition, the Sec\xc2\xad\nretary should provide a work place free of harassment and discrimi\xc2\xad\nnation by ensuring that employees and managers alike receive the\neducation and training necessary for proper behavior in the work\xc2\xad\nplace. The Secretary should be held responsible for ensuring that\nemployees and managers are accountable for their conduct and\nbehavior.\nH.R. Rep. No. 105-292, at 5.\nPart of the specific problem revealed at the hearings on the bill was that VA\nemployees perceived the VA employment discrimination complaint resolution\nsystem as unfair. VA employees feared that their directors, who were also their\nEEO officers, would not impartially evaluate EEO complaints, and would use their\nsupervisory authority to retaliate against employees for complaining. The House\nReport explains:\nThe Committee believes that removing the facility director from\n[EEO] duties would address the concern among VA employees that\nan employee who files an EEO complaint is, in effect, making a\nclaim against the facility director. Some VA employees who have\nbeen discriminated against believe that it would be futile to file\nan EEO claim because the facility director would oppose the claim\n221\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nas reflecting poorly on management. Consequently, too many VA\nemployees fear that if they file an EEO claim, not only is it unlikely\nto be resolved in their favor, but they might be punished by the\nfacility management via transfer, demotion or other forms of\nretaliation.\nH.R. Rep. No. 105-292, at 6.\nCongress in the VBA responded to those problems by separating the function\nof VA review of EEO complaints from the chain of supervisory authority over\nVA employees. In describing \xe2\x80\x9c [t]he operating independence of the OEDCA\xe2\x80\x9d as\n\xe2\x80\x9c its most important feature,\xe2\x80\x9d H.R. Rep. No. 105-292, at 8, the House Committee\non Veterans\xe2\x80\x99 Affairs referred exclusively to the OEDCA\xe2\x80\x99s independence from\nVA\xe2\x80\x99s Office of General Counsel ( \xe2\x80\x9c OGC\xe2\x80\x9d ) and made no reference to independ\xc2\xad\nence from regulation by the EEOC. The division of responsibility between the\nOEDCA and the OGC that the VBA established could continue under the\nCommission\xe2\x80\x99s PFR.\nYou base your argument in favor of VA independence from EEOC procedures\non the fact that, whereas section 101 of the VBA explicitly provides that \xe2\x80\x9c [t]he\nprovisions of this section shall be implemented in a manner consistent with proce\xc2\xad\ndures applicable under regulations prescribed by the Equal Employment Oppor\xc2\xad\ntunity Commission,\xe2\x80\x9d VBA sec. 101(a)(1), \xc2\xa7 516(h), 111 Stat. at 2279, nothing\nin section 102 of the VBA, which established OEDCA, similarly refers to EEOC\nregulations, VBA sec. 102(a)(1), \xc2\xa7319, 111 Stat. at 2280. See VA Request at\n2-3. We draw a different conclusion from that text and the related legislative\nhistory.\nSection 101 of the VBA addresses VA\xe2\x80\x99s system for handling employment\ndiscrimination complaints in general terms; section 102 addresses a particular\naspect of that system. One of the \xe2\x80\x9c provisions\xe2\x80\x9d that section 101 directs be \xe2\x80\x9c imple\xc2\xad\nmented in a manner consistent with procedures applicable under regulations pre\xc2\xad\nscribed by the Equal Employment Opportunity Commission\xe2\x80\x9d is a general require\xc2\xad\nment that the Secretary establish and administer an EEO complaint resolution\nsystem that is, and is perceived to be, \xe2\x80\x9c objective, fair and effective.\xe2\x80\x9d 4\nThe best interpretation of section 101 \xe2\x80\x99s reference to \xe2\x80\x9c the employment discrimi\xc2\xad\nnation complaint resolution system within the Department\xe2\x80\x99\xe2\x80\x99 includes the functions\nof the OEDCA established by section 102. Thus, despite the fact that section 102\nof the VBA does not reiterate the requirement that OEDCA employ procedures\nconsistent with EEOC regulations, section 101 effectively requires the Secretary\n4 The pertinent VBA provision states.\nThe Secretary shall provide that the employment discrimination complaint resolution system within the\nDepartment be established and administered so as to encourage timely and fair resolution o f concerns\nand complaints. The Secretary shall take steps to ensure that the system is administered in an objective,\nfair, and effective manner and in a m anner that is perceived by employees and other interested parties\nas being objective, fair, and effecuve\nVBA, sec. 101(a)(1), \xc2\xa7 516(a), 111 Stat. at 2278.\n\n222\n\n\x0cApplicability o f EEOC Proposed Final Rule to the Department o f Veterans Affairs\n\nto ensure that OEDCA, as an important component of the Department\xe2\x80\x99s employ\xc2\xad\nment discrimination complaint resolution system, discharges its responsibilities\n\xe2\x80\x9c in a manner consistent with procedures applicable under regulations prescribed\nby the Equal Employment Opportunity Commission.\xe2\x80\x9d\nThis interpretation is consistent with the overall intent of the VBA\xe2\x80\x99s drafters.\nCongress, presented with the problem that VA\xe2\x80\x99s system for resolving employment\ndiscrimination complaints was perceived as unfair due to bias or a perception of\nbias by Department EEO officials, sought to amend VA\xe2\x80\x99s system to better ensure\nimpartiality. Nothing in the legislative history of the VBA suggests that Congress\nwas seeking to give VA a unique exemption from the otherwise applicable regula\xc2\xad\ntions of the EEOC.\n\nConclusion\nFor the reasons discussed above, we conclude that the Veterans\xe2\x80\x99 Benefits Act\nof 1997 does not exempt VA from the EEOC\xe2\x80\x99s proposed final rule.\nCORNELIA T.L. PILLARD\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n223\n\n\x0c"