b'Department of Defense Response to Interlocutory Decision of\nCourt of Appeals Regarding Statute Requiring Separation of\nHomosexual Service Members from Military\nFollowing the interlocutory decision of a court of appeals regarding the statute requiring\nthe separation of certain gay and lesbian service members from the military, the Department of Defense is not legally required to revise its administrative procedures and\npolicies in a manner that might preclude separations within the circuit that would otherwise be mandated by the statute.\nThe Department of Defense is also not legally prohibited from acquiescing in the decision, although such a policy would appear to lack direct Executive Branch precedent\nand arguably would be in some tension with the Executive Branch\xe2\x80\x99s usual practice of\nimplementing and defending statutes that are subject to constitutional challenge.\nMarch 25, 2010\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nYou have asked for our views regarding the Department of Defense\xe2\x80\x99s\nimplementation of 10 U.S.C. \xc2\xa7 654 \xe2\x80\x94the statute establishing the government\xe2\x80\x99s policy with respect to the separation of gay and lesbian service\nmembers from the military\xe2\x80\x94in the wake of the U.S. Court of Appeals for\nthe Ninth Circuit\xe2\x80\x99s decision in Witt v. Department of the Air Force, 527\nF.3d 806 (2008). In particular, you have asked whether Witt requires the\nDepartment of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d or the \xe2\x80\x9cDepartment\xe2\x80\x9d) to revise its administrative procedures and policies governing the application of section 654\n\xe2\x80\x9cwithin the Ninth Circuit\xe2\x80\x9d 1 so long as that decision remains binding\ncircuit law. You have also asked whether, even if Witt does not require\nthis result, the Department may acquiesce in the Witt ruling by revising\nthose procedures and policies in a manner that might preclude separations\nwithin the Ninth Circuit that would otherwise be mandated by section\n654. Our view is that DoD is neither legally required to acquiesce in Witt\nin such a manner nor legally prohibited from doing so. 2 We caution,\n1 Our references in this memorandum to cases \xe2\x80\x9cwithin\xe2\x80\x9d the Ninth Circuit are meant to\nencompass cases in which service members could challenge their separation in federal\ndistrict courts bound to apply Ninth Circuit precedent.\n2 We note that 28 U.S.C. \xc2\xa7 530D requires executive agencies to submit a report to\nCongress when, among other things, they establish or implement a policy to refrain (i)\n\n100\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nhowever, that such a policy of acquiescence would appear to lack direct\nExecutive Branch precedent and arguably would be in some tension with\nthe Executive Branch\xe2\x80\x99s usual practice of implementing and defending\nstatutes that are subject to constitutional challenge. Moreover, to ensure\nthe legal permissibility of any particular policy of acquiescence implemented by DoD, it would be necessary for us to review the precise details\nof that policy.\nI.\nIn Witt, the Ninth Circuit reversed a federal district court\xe2\x80\x99s dismissal of\na constitutional challenge to section 654 brought by Major Margaret Witt,\nan Air Force officer who was about to be discharged for violating the\nstatute. Section 654 provides in subsection (a) that \xe2\x80\x9c[t]he presence in the\narmed forces of persons who demonstrate a propensity or intent to engage\nin homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the\nessence of military capability.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 654(a)(15) (2006). Subsection\n(b) then provides that \xe2\x80\x9c[a] member of the armed forces shall be separated\nfrom the armed forces under regulations prescribed by the Secretary of\nDefense if one or more of the following findings is made and approved in\naccordance with procedures set forth in such regulations.\xe2\x80\x9d Id. \xc2\xa7 654(b)\n(emphasis added). The referenced findings are:\n(1) That the member has engaged in, attempted to engage in, or\nsolicited another to engage in a homosexual act or acts unless there\nare further findings, made and approved in accordance with procedures set forth in such regulations, that the member has demonstrated that\xe2\x80\x94\n(A) such conduct is a departure from the member\xe2\x80\x99s usual and\ncustomary behavior;\n\xe2\x80\x9cfrom enforcing, applying, or administering\xe2\x80\x9d a statutory provision \xe2\x80\x9con the grounds that\nsuch provision is unconstitutional\xe2\x80\x9d and (ii) \xe2\x80\x9cwithin any judicial jurisdiction,\xe2\x80\x9d \xe2\x80\x9cfrom\nadhering to, enforcing, applying, or complying with[] any standing rule of decision\xe2\x80\x9d of a\nfederal court of, or superior to, that jurisdiction \xe2\x80\x9crespecting the interpretation, construction, or application of the Constitution.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 530D(a)(1)(A)(i), (ii), (e) (2006).\nWe would be happy to assist you in determining whether any particular policy that you\nmight establish regarding section 654 would require a report under these provisions.\n\n101\n\n\x0c34 Op. O.L.C. 100 (2010)\n\n(B) such conduct, under all the circumstances, is unlikely to recur;\n(C) such conduct was not accomplished by use of force, coercion, or intimidation;\n(D) under the particular circumstances of the case, the member\xe2\x80\x99s continued presence in the armed forces is consistent with the\ninterests of the armed forces in proper discipline, good order, and\nmorale; and\n(E) the member does not have a propensity or intent to engage\nin homosexual acts.\n(2) That the member has stated that he or she is a homosexual or\nbisexual, or words to that effect, unless there is a further finding,\nmade and approved in accordance with procedures set forth in the\nregulations, that the member has demonstrated that he or she is not a\nperson who engages in, attempts to engage in, has a propensity to\nengage in, or intends to engage in homosexual acts.\n(3) That the member has married or attempted to marry a person\nknown to be of the same biological sex.\nId.\nActing in accord with DoD procedures promulgated pursuant to section\n654(b), the Air Force initiated formal separation proceedings against\nMajor Witt in 2004, resulting in her suspension. In 2006, a military review board found that Major Witt had engaged in homosexual acts and\nhad stated that she was a homosexual in violation of section 654. See\nWitt, 527 F.3d at 810. The board therefore recommended that she be\nhonorably discharged from the Air Force Reserve, and in 2007 the separation authority, the Secretary of the Air Force, ordered that she receive\nsuch a discharge. See id. Major Witt then challenged her suspension and\nprospective discharge in federal district court on federal constitutional\ngrounds.\nThe district court rejected Major Witt\xe2\x80\x99s claim that section 654 violated\nher rights under the substantive component of the Due Process Clause of\nthe Fifth Amendment after evaluating that claim under a rational basis\nstandard of review. Witt v. Dep\xe2\x80\x99t of the Air Force, 444 F. Supp. 2d 1138\n(W.D. Wash. 2006). Major Witt then appealed to the Ninth Circuit, which\nvacated and remanded the district court\xe2\x80\x99s substantive due process ruling\n102\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nfor further proceedings. Witt, 527 F.3d at 809. 3 In its decision, the Ninth\nCircuit deemed rational basis review inapt in light of the Supreme Court\xe2\x80\x99s\ndecision in Lawrence v. Texas, 539 U.S. 558 (2003), and held instead that\n\xe2\x80\x9cwhen the government attempts to intrude upon the personal and private\nlives of homosexuals, in a manner that implicates the rights identified in\nLawrence, the government must advance an important governmental\ninterest, the intrusion must significantly further that interest, and the\nintrusion must be necessary to further that interest.\xe2\x80\x9d Witt, 527 F.3d at 819.\nThe court also held that \xe2\x80\x9cthis heightened scrutiny analysis is as-applied\nrather than facial,\xe2\x80\x9d and thus requires a court to \xe2\x80\x9cdetermine not whether\n[section 654] has some hypothetical, post hoc rationalization in general,\nbut whether a justification exists for the application of the policy as applied to Major Witt.\xe2\x80\x9d Id.\nApplying a three-part heightened scrutiny test, the Witt court observed\nthat the government had advanced \xe2\x80\x9can important governmental interest\xe2\x80\x9d\xe2\x80\x94\nnamely, \xe2\x80\x9cthe management of the military\xe2\x80\x9d\xe2\x80\x94to which courts owed deference, but concluded that it was unclear \xe2\x80\x9cwhether [section 654], as applied\nto Major Witt, satisfies the second and third factors\xe2\x80\x9d of the test. Id. at 821.\nIn particular, the court noted that the Air Force\xe2\x80\x99s reliance on congressional findings regarding \xe2\x80\x9c\xe2\x80\x98unit cohesion\xe2\x80\x99 and the like\xe2\x80\x9d did \xe2\x80\x9cnot go to whether\nthe application of [section 654] specifically to Major Witt significantly\nfurthers the government\xe2\x80\x99s interest and whether less intrusive means would\nachieve substantially the government\xe2\x80\x99s interest.\xe2\x80\x9d 4 Id. Accordingly, the\ncourt remanded the case \xe2\x80\x9cfor the district court to develop the record on\nMajor Witt\xe2\x80\x99s substantive due process claim,\xe2\x80\x9d at which point it could be\ndetermined whether her separation under section 654, \xe2\x80\x9cmeasured against\n\nThe Ninth Circuit also vacated and remanded the district court\xe2\x80\x99s dismissal of Major\nWitt\xe2\x80\x99s procedural due process claim and affirmed the district court\xe2\x80\x99s dismissal of her\nequal protection claim. 527 F.3d at 812\xe2\x80\x9313, 821\xe2\x80\x9322. Those claims are not relevant to the\nsubject of your request, and we do not discuss them further.\n4 In a footnote, the court briefly touched on whether the government would be able to\nsatisfy the second and third factors of the heightened scrutiny test, noting Major Witt\xe2\x80\x99s\nallegations that she \xe2\x80\x9cwas a model officer whose sexual activities hundreds of miles away\nfrom base did not affect her unit until the military initiated discharge proceedings under\n[section 654] and [that], even then, it was her suspension pursuant to [section 654], not\nher homosexuality, that damaged unit cohesion.\xe2\x80\x9d Witt, 527 F.3d at 821 n.11.\n3\n\n103\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nthe appropriate constitutional standard,\xe2\x80\x9d was permissible. Id. The court\ndid not order the United States to take any action.\nSubsequent to its order, the Ninth Circuit denied the government\xe2\x80\x99s petition for rehearing en banc, Witt v. Dep\xe2\x80\x99t of the Air Force, 548 F.3d 1264\n(2008), and the Solicitor General then declined to seek Supreme Court\nreview of the panel decision. In a letter to Speaker of the House Nancy\nPelosi submitted under section 530D of title 28, U.S. Code, the Attorney\nGeneral explained the decision not to seek review as based on \xe2\x80\x9cthe\nlongstanding presumption against Supreme Court review of interlocutory\ndecisions as well as practical litigation considerations.\xe2\x80\x9d Letter for Nancy\nPelosi, Speaker, U.S. House of Representatives, from Eric H. Holder, Jr.,\nAttorney General, Re: Witt v. Department of the Air Force, 527 F.3d 806\n(9th Cir. 2008) (Apr. 22, 2009) (\xe2\x80\x9c530D Letter\xe2\x80\x9d). Among the \xe2\x80\x9cpractical\nconsiderations\xe2\x80\x9d the Attorney General identified in his letter were the\ndesirability of \xe2\x80\x9cdevelop[ing] . . . the factual record on remand\xe2\x80\x9d to ensure\n\xe2\x80\x9ca more complete basis\xe2\x80\x9d for ultimate Supreme Court review. The letter\nalso noted that DoD\xe2\x80\x99s views with respect to seeking immediate Supreme\nCourt review were consistent with those expressed in the letter and that, in\nparticular, DoD had identified similar practical considerations that counseled against seeking such review. Finally, the Attorney General noted\nthat \xe2\x80\x9c[t]he government retains all rights to petition the Supreme Court to\nreview a final decision in the case, including every aspect of the Ninth\nCircuit\xe2\x80\x99s ruling, after proceedings on remand are completed.\xe2\x80\x9d At present,\nthe case is pending before the district court on remand.\nII.\nThe first question we must address is whether, for as long as the Witt\ncourt\xe2\x80\x99s due process framework remains the governing law of the Ninth\nCircuit, DoD is required to apply that framework in implementing section\n654 in cases within the Ninth Circuit. The argument that such \xe2\x80\x9cintracircuit\nacquiescence\xe2\x80\x9d is required is rooted in a claim about the separation of\npowers. One of the leading precedents for such an argument is Lopez v.\nHeckler, 725 F.2d 1489, 1497 & n.5 (9th Cir. 1984), vacated on other\ngrounds and remanded, 469 U.S. 1082 (1984). In that case, the Ninth\nCircuit stated that the refusal of the Social Security Administration\n(\xe2\x80\x9cSSA\xe2\x80\x9d) to give effect to prior circuit precedent interpreting the statutory\n104\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nprocedures governing the termination of social security benefits \xe2\x80\x9cundermine[s] what are perhaps the fundamental precepts of our constitutional\nsystem\xe2\x80\x94the separation of powers and respect for the law.\xe2\x80\x9d 725 F.2d at\n1497; see also id. at 1502 n.10 (\xe2\x80\x9cwith regard to recipients whose benefits\nwere terminated after [the governing court of appeals decisions] became\nfinal the Secretary also violated her constitutional duty to execute the law\nfaithfully\xe2\x80\x9d); id. at 1503 (\xe2\x80\x9cThat the Secretary, as a member of the executive, is required to apply federal law as interpreted by the federal courts\ncannot seriously be doubted.\xe2\x80\x9d); Johnson v. U.S. R.R. Ret. Bd., 969 F.2d\n1082, 1091\xe2\x80\x9392 (D.C. Cir. 1992) (citing cases \xe2\x80\x9ccondemn[ing]\xe2\x80\x9d intracircuit\nnonacquiescence). The Ninth Circuit, however, has not been entirely\nconsistent on this issue, stating in a pre-Lopez case (one that Lopez did not\naddress) that the Immigration and Naturalization Service (\xe2\x80\x9cINS\xe2\x80\x9d) \xe2\x80\x9ccould\nrefuse to\xe2\x80\x9d acquiesce in a decision of the U.S. Court of Appeals for the\nSecond Circuit\xe2\x80\x94Lok v. INS, 548 F.2d 37 (2d Cir. 1977)\xe2\x80\x94\xe2\x80\x9cin the Second\nCircuit and thereby achieve consistency of application,\xe2\x80\x9d while noting that\n\xe2\x80\x9cto do so would only invite appeal and reversal.\xe2\x80\x9d Castillo-Felix v. INS,\n601 F.2d 459, 467 (9th Cir. 1979).\nIn our view, DoD is not required to acquiesce in the Witt decision, notwithstanding that Witt will govern any litigation in the Ninth Circuit unless and until that decision is vacated or reversed. As explained below,\nthis conclusion accords with the longstanding position of this Office, and\nthe consistent, publicly declared position of the Executive Branch, that an\nexecutive agency may \xe2\x80\x9cnonacquiesce\xe2\x80\x9d in a court of appeals ruling\xe2\x80\x94a\npractice whereby the agency, despite an adverse court of appeals decision,\ncontinues to act in accordance with its own contrary interpretation of the\nlaw with respect to persons who were not parties to the judgment. The\nExecutive Branch\xe2\x80\x99s traditional view that nonacquiescence is permissible\nincludes even \xe2\x80\x9cintracircuit\xe2\x80\x9d nonacquiescence, or nonacquiescence in\nsituations where the adversely affected persons could challenge the administrative decision in a case that would be governed by the law established by the relevant adverse court of appeals decision. 5 Accordingly, we\n\n5\n\nSee, e.g., Federal Agency Compliance Act: Hearing on H.R. 1544 Before the Subcomm. on Commercial and Administrative Law of the H. Comm. on the Judiciary, 105th\nCong. 43 (1997) (statement of Stephen W. Preston, Deputy Assistant Attorney General,\nCivil Division) (\xe2\x80\x9cPreston Testimony\xe2\x80\x9d); see generally Samuel Estreicher & Richard L.\n\n105\n\n\x0c34 Op. O.L.C. 100 (2010)\n\ndo not believe that DoD must modify its procedures and policies in order\nto ensure that section 654 separations of individuals who are within the\nNinth Circuit, but who are not parties to the Witt judgment, satisfy the\nheightened standard of review that Witt at present requires judges in the\nNinth Circuit to apply in reviewing such separations.\nA.\nIn the usual case of intracircuit acquiescence, the circuit court decision\nat issue concerns the proper interpretation of a federal statute, and the\nagency acquiesces even though it may remain of the view that its own\ncontrary interpretation of the statute is correct and even though it may\nfully intend to continue pressing that interpretation in future cases. As a\nmatter of federal practice, executive agencies generally do engage in\nintracircuit acquiescence in such cases, even when they continue to challenge the adverse precedent in other circuits or await a test case for reconsideration in the circuit of decision. See Preston Testimony, supra note 5,\nat 43. Such intracircuit acquiescence often serves interests in comity and\nsound policy. With respect to the latter, the practice can ensure that private persons are not deprived of the benefits of a court of appeals precedent that would protect them \xe2\x80\x9cif they have the fortitude to run an administrative gauntlet\xe2\x80\x9d and challenge the Executive\xe2\x80\x99s decision in a court that is\nbound to apply that precedent. Johnson, 969 F.2d at 1093; see also Lopez\nv. Heckler, 572 F. Supp. 26, 30 (C.D. Cal. 1983), stay denied, 713 F.2d\n1432 (9th Cir. 1983), partial stay granted, 463 U.S. 1328 (1983) (Rehnquist, Circuit Justice), motion to vacate stay denied, 464 U.S. 879 (1983),\ndist. court aff\xe2\x80\x99d in part and rev\xe2\x80\x99d in part, 725 F.2d 1489 (9th Cir. 1984),\nvacated on other grounds and remanded, 469 U.S. 1082 (1984) (mem.)\n(\xe2\x80\x9cIf [a social security] claimant has the determination and the financial\nand physical strength and lives long enough to make it through the administrative process, he can turn to the courts and ultimately expect them to\napply the law as announced [by the Circuit]. If exhaustion overtakes him\nand he falls somewhere along the road leading to such ultimate relief, the\nnonacquiescence and the resulting termination stand. Particularly with\n\nRevesz, Nonacquiescence by Federal Administrative Agencies, 98 Yale L.J. 679, 692\xe2\x80\x93718\n(1989) (describing agency practice).\n\n106\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nrespect to . . . individuals whose resources . . . are . . . relatively limited,\nsuch a dual system of law is prejudicial and unfair.\xe2\x80\x9d).\nNotwithstanding the general practice of discretionary agency acquiescence in adverse court of appeals rulings, however, this Office and the\nExecutive Branch have, as noted, long been of the view that an agency is\nnot legally compelled to engage in intracircuit acquiescence. Certainly,\nsuch acquiescence is not required by any statute addressing the practice; 6\nand, as the Department of Justice (\xe2\x80\x9cDOJ\xe2\x80\x9d) has consistently maintained, it\nalso is not required by the separation of powers. 7\n6 In 1984, both the House and Senate passed provisions regulating nonacquiescence by\nthe SSA in their versions of the legislation that became the Social Security Disability\nBenefits Reform Act, Pub. L. No. 98-460, 98 Stat. 1794 (1984). But the Act as finally\nenacted did not address the subject and, although the House report and the conference\nreport accompanying the Reform Act examined the practice of nonacquiescence and\nraised concerns about its propriety, both the House and Senate expressly declined to\nexpress definitive views regarding the practice\xe2\x80\x99s constitutionality. See H.R. Rep. No.\n98-1039, at 37\xe2\x80\x9338 (1984), reprinted in 1984 U.S.C.C.A.N. 3080, 3095\xe2\x80\x9396 (noting that\n\xe2\x80\x9cquestions have been raised about the constitutional basis of non-acquiescence,\xe2\x80\x9d but\nconcluding that \xe2\x80\x9cthe legal and Constitutional issues raised by non-acquiescence can only\nbe settled by the Supreme Court\xe2\x80\x9d); H.R. Rep. No. 98-618, at 25 (1984), reprinted in 1984\nU.S.C.C.A.N. 3038, 3062 (stating that \xe2\x80\x9cthe issue of the constitutionality of the nonacquiescence policy may be in doubt\xe2\x80\x9d); see also 130 Cong. Rec. 25,977 (1984) (statement\nof Senator Dole on behalf of the Senate) (\xe2\x80\x9cWhile some of the conferees have expressed\nstrong reservations regarding [nonacquiescence by the Department of Health and Human\nServices (\xe2\x80\x98HHS\xe2\x80\x99) in administering the Social Security Act], it should be made clear for\nthe record that it is not the position of the Senate that the practice is unconstitutional as\nexercised by [HHS] or as by any other Federal agency.\xe2\x80\x9d). In 1998, the House passed a bill\nthat would have generally required agencies to follow controlling circuit precedent, see\nFederal Agency Compliance Act, H.R. 1544, 105th Cong. \xc2\xa7 2(a) (as passed by House,\nFeb. 25, 1998) (providing, with certain exceptions, that \xe2\x80\x9can agency . . . shall, in administering a statute, rule, regulation, program, or policy within a judicial circuit, adhere to the\nexisting precedent respecting the interpretation and application of such statute, rule,\nregulation, program, or policy, as established by the decisions of the United States court\nof appeals for that circuit\xe2\x80\x9d), but the Senate declined to follow suit and no law was enacted. The House report accompanying this bill stated that the framework for agency acquiescence that the bill would create \xe2\x80\x9cis consistent with the principle of separation of powers\nunder which it is the courts\xe2\x80\x99 constitutional role to interpret the laws governing agency\nactions,\xe2\x80\x9d but the report did not declare nonacquiescence unconstitutional. H.R. Rep. No.\n105-395, at 7 (1997).\n7 See Federal Agency Compliance Act: Hearing on H.R. 1924 Before the Subcomm. on\nCommercial and Administrative Law of the H. Comm. on the Judiciary, 106th Cong. 16\n(1999) (statement of William B. Schultz, Deputy Assistant Attorney General, Civil\n\n107\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nTo be sure, unlike the usual case giving rise to acquiescence, the ruling\nin Witt interprets the Constitution. Some commentators have suggested\nthat intracircuit acquiescence in a constitutional ruling by a court of\nappeals may be constitutionally compelled, even if nonacquiescence in\nstatutory decisions is permissible. See Estreicher & Revesz, 98 Yale L.J.\nat 720 n.214 (\xe2\x80\x9cThe status of nonacquiescence in a constitutional interpretation presents a much more troubling question\xe2\x80\x9d); see also id. at 731\nn.261 (suggesting that nonacquiescence might be \xe2\x80\x9calways improper . . .\nwith agency disagreements over constitutional rulings\xe2\x80\x9d). So far as we are\naware, however, there is no precedent for an agency announcing a policy\nof acquiescence in a court of appeals decision declaring a federal statute\ninvalid on constitutional grounds in the precise circumstances present\nhere\xe2\x80\x94i.e., where the United States continues to assert that the statute is\nconstitutional and has reserved its right to continue defending the statute\xe2\x80\x99s\nconstitutionality, and where opportunities for subsequent review of the\ndecision at issue are not exhausted. Moreover, the numerous statements\nsetting forth DOJ\xe2\x80\x99s view of the permissibility of nonacquiescence have\nnot distinguished between nonacquiescence in statutory rulings and nonacquiescence in constitutional ones. Instead, DOJ\xe2\x80\x99s position\xe2\x80\x94that intracircuit nonacquiescence is a constitutionally permissible course of\naction\xe2\x80\x94has long been cast in more general terms. And that is true as well\nof the limited Supreme Court case law that bears on the issue.\nB.\nAlthough it is true that \xe2\x80\x9cArticle III establishes a \xe2\x80\x98judicial department\xe2\x80\x99\nwith the \xe2\x80\x98province and duty . . . to say what the law is,\xe2\x80\x99\xe2\x80\x9d Article III,\nSection 2 of the Constitution also expressly provides that this authority\nDivision) (stating the Department\xe2\x80\x99s well-established view that \xe2\x80\x9cthe doctrine of separation\nof powers does not bar a federal agency from declining to apply the legal reasoning of a\nparticular court of appeals decision in the agency\xe2\x80\x99s further administration of a statutory\nprogram outside the context of the particular case in which the court rendered its decision\xe2\x80\x9d); see also Preston Testimony, supra note 5, at 42; Memorandum for James M.\nSpears, Acting Assistant Attorney General, Office of Legal Policy, from Ralph W. Tarr,\nActing Assistant Attorney General, Office of Legal Counsel, Re: Correspondence with\nAdministrative Law Judges at 11\xe2\x80\x9314 (June 19, 1985); Letter for Robert Dole, Chairman,\nSenate Finance Committee, from Rex E. Lee, Solicitor General (May 7, 1984), entered\ninto the congressional record at 130 Cong. Rec. 25,977 (1984) (\xe2\x80\x9cLee Letter\xe2\x80\x9d).\n\n108\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nextends to \xe2\x80\x9cparticular cases and controversies.\xe2\x80\x9d Plaut v. Spendthrift Farm,\nInc., 514 U.S. 211, 218 (1995) (quoting Marbury v. Madison, 5 U.S.\n(1 Cranch) 137 (1803)). 8 Consistent with this limitation, the Supreme\nCourt held in United States v. Mendoza, 464 U.S. 154 (1984), that the\ngovernment was not foreclosed by the doctrine of \xe2\x80\x9cnonmutual collateral\nestoppel\xe2\x80\x9d from relitigating a legal issue it had previously litigated unsuccessfully in another action against a different party, even when the prior\nlitigation had occurred in the same judicial circuit. In explaining its holding, the Court observed that \xe2\x80\x9cmany constitutional questions can arise only\nin the context of litigation to which the Government is a party,\xe2\x80\x9d and \xe2\x80\x9c[a]\nrule allowing nonmutual collateral estoppel against the Government . . .\nwould substantially thwart the development of important questions of law\nby freezing the first final decision rendered on a particular legal issue.\xe2\x80\x9d\nId. at 160. The Court also noted that the application of nonmutual estoppel against the government would have the undesirable consequences of\n(i) forcing the Solicitor General, \xe2\x80\x9cin order to avoid foreclosing further\nreview,\xe2\x80\x9d to abandon prudential considerations in favor of \xe2\x80\x9cappeal[ing]\nevery adverse decision [to the Supreme Court],\xe2\x80\x9d and (ii) permitting the\npolicy decisions of one administration to unduly constrain a later one.\nId. at 161. As the Court had observed previously in United States v. Estate\nof Donnelly, \xe2\x80\x9c[t]he United States, like other parties, is entitled to adhere to\nwhat it believes to be the correct interpretation of a statute, and to reap the\nbenefits of that adherence if it proves to be correct, except where bound to\nthe contrary by a final judgment in a particular case.\xe2\x80\x9d 397 U.S. 286, 294\xe2\x80\x93\n95 (1970).\n\nWe recognize that in Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court observed that Marbury had \xe2\x80\x9cdeclared the basic principle that the federal judiciary is supreme\nin the exposition of the law of the Constitution, and that [that] principle has ever since\nbeen respected by this Court and the Country as a permanent and indispensable feature of\nour constitutional system.\xe2\x80\x9d Id. at 18. That statement does not contradict our conclusion\nthat nonacquiescence would be permissible here, if only because the Witt decision was\nrendered by a court of appeals rather than by the Supreme Court, and the latter plays a\n\xe2\x80\x9cspecial role\xe2\x80\x9d in our constitutional system in \xe2\x80\x9cresolving disputes about the constitutionality of enactments.\xe2\x80\x9d Presidential Authority to Decline to Execute Unconstitutional Statutes,\n18 Op. O.L.C. 199, 200 (1994); cf. Plaut, 514 U.S. at 227 (noting that because Article III\ncreates \xe2\x80\x9cnot a batch of unconnected courts, but a judicial department composed of \xe2\x80\x98inferior Courts\xe2\x80\x99 and \xe2\x80\x98one supreme Court,\xe2\x80\x99\xe2\x80\x9d the decision of an inferior court \xe2\x80\x9cis not (unless the\ntime for appeal has expired) the final word of the department as a whole\xe2\x80\x9d).\n8\n\n109\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nOf course, the Court\xe2\x80\x99s recognition in Mendoza of the government\xe2\x80\x99s authority to relitigate an issue lost in a prior case does not necessarily imply\nthat an agency may decline to conform its conduct to a court of appeals\ndecision in exercising its administrative authority with respect to nonparties within that circuit. But Mendoza, together with the relevant language\nfrom Donnelly, reflects the importance the Court ascribes to affording the\ngovernment wide berth to contest federal judicial decisions and to \xe2\x80\x9ccontrol[] the progress of Government litigation through the federal courts.\xe2\x80\x9d\nMendoza, 464 U.S. at 161. And DOJ has relied upon both considerations\nin justifying nonacquiescence as an acceptable legal practice. See Preston\nTestimony, supra note 5, at 43 (legislation \xe2\x80\x9c[p]rescribing fixed, acrossthe-board standards for determining when nonacquiescence is appropriate\nis antithetical to the flexibility needed in deciding which cases to appeal\nto the Supreme Court and which legal issues to continue litigating in the\nlower courts\xe2\x80\x9d); see also Lee Letter, 130 Cong. Rec. at 25,977 (stating that\nregulation of nonacquiescence by House version of the Reform Act would\nhave had \xe2\x80\x9cserious adverse implications for the conduct of the government\xe2\x80\x99s litigation in the Social Security context\xe2\x80\x9d). 9\nMoreover, the Ninth Circuit\xe2\x80\x99s ruling in Witt was set forth in an interlocutory order, and the Attorney General expressly noted in the 530D\nLetter that the decision not to appeal it at that time reflected a recognition\nof the Supreme Court\xe2\x80\x99s reluctance to review such interlocutory decisions.\nInterlocutory judgments by their nature do not definitively resolve a case.\nIn this instance, for example, at least if the district court determines that\nthe statute is invalid as applied and the Ninth Circuit upholds this decision\non appeal, the government will be able to \xe2\x80\x9craise any and all of its arguments in defense of the statute in a petition for a writ of certiorari seeking\nreview of the final judgment.\xe2\x80\x9d 530D Letter. Thus, the Ninth Circuit\xe2\x80\x99s\ndecision in Witt is not \xe2\x80\x9cfinal\xe2\x80\x9d in the sense that the government will not be\nable under any circumstances to seek further review of that decision by\nthe Supreme Court. The Court explained the relevant meaning of \xe2\x80\x9cfinality\xe2\x80\x9d in Plaut:\nIndeed, the action that gave rise to the litigation in Mendoza was a decision by an\nadministrative official that was inconsistent with the unappealed ruling of a district court,\nthus demonstrating the close connection between nonacquiescence and the ability of the\ngovernment to relitigate the underlying issue. See Estreicher & Revesz, 98 Yale L.J. at\n686.\n9\n\n110\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\n[A] distinction between judgments from which all appeals have been\nforgone or completed, and judgments that remain on appeal (or subject to being appealed), is implicit in what Article III creates: not a\nbatch of unconnected courts, but a judicial department composed of\n\xe2\x80\x9cinferior Courts\xe2\x80\x9d and \xe2\x80\x9cone supreme Court.\xe2\x80\x9d Within that hierarchy,\nthe decision of an inferior court is not (unless the time for appeal has\nexpired) the final word of the department as a whole.\n514 U.S. at 227.\nIndeed, the Department of Justice specifically has observed that \xe2\x80\x9c[i]n\nsuch cases [involving interlocutory court of appeals decisions], nonacquiescence may be entirely appropriate.\xe2\x80\x9d Preston Testimony, supra note 5, at\n45. Moreover, the conference report that Congress issued in enacting the\nSocial Security Disability Benefits Reform Act of 1984, Pub. L. No. 98460, 98 Stat. 1794, stated the view that \xe2\x80\x9ca policy of non-acquiescence be\nfollowed only in situations where the Administration has initiated or has\nthe reasonable expectation and intention of initiating the steps necessary\nto receive a review of the issue in the Supreme Court.\xe2\x80\x9d H.R. Rep. No. 981039, at 37. Thus, even if nonacquiescence might raise legal concerns in\ncertain instances, we do not believe that it would do so here. 10\nIII.\nWe next consider whether, given that acquiescence in the Witt decision\nis not legally required, it could be undertaken in a legally permissible\n\n10 We acknowledge that nonacquiescence in this case, in addition to resulting in the\nlikelihood that courts within the Ninth Circuit would enjoin separations that are not Wittconforming, might present some additional litigation risk. For example, we cannot\nforeclose the possibility that a court might assess attorney\xe2\x80\x99s fees against DoD under the\nEqual Access to Justice Act (\xe2\x80\x9cEAJA\xe2\x80\x9d), 28 U.S.C. \xc2\xa7 2412 (2006). See, e.g., Hyatt v.\nHeckler, 807 F.2d 376, 382 (4th Cir. 1986); Preston Testimony, supra note 5, at 46 (\xe2\x80\x9cany\ntime it decides not to acquiesce, an agency runs the risk of not only losing on the merits,\nbut also being held liable for attorney\xe2\x80\x99s fees [under the EAJA]\xe2\x80\x9d). A ruling against the\ngovernment for a non-Witt-conforming separation might also provide the basis for a court\nto issue an injunction prohibiting nonacquiescence with respect to a much broader certified class of plaintiffs. See, e.g., Polaski v. Heckler, 739 F.2d 1320, 1322 (8th Cir. 1984);\nLopez, 572 F. Supp. at 31\xe2\x80\x9332. We express no view of the merits of any such claims, but\nsimply identify the possibility that a decision not to acquiesce could itself be the subject\nof litigation.\n\n111\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nmanner. The issue arises because you have asked us to consider whether\nDoD could lawfully establish a policy of acquiescing in Witt within the\nNinth Circuit through the revision of existing policies and procedures\ngoverning section 654 separations. Presumably, the effect of such a revision would be to preclude the separation authority from effecting separations within the Ninth Circuit that section 654 standing alone would\nrequire, but that would not satisfy the heightened substantive due process\nstandard announced in Witt.\nIn our view, such a course of action could constitute a lawful means of\nacquiescing in the Witt decision, although the permissibility of any particular policy of acquiescence would of course depend on the details of that\npolicy. Our conclusion that acquiescence in Witt could be undertaken in a\nlawful manner follows from the Executive\xe2\x80\x99s longstanding view that acquiescence is a permissible practice and the absence of any indication in\nprecedents of the Executive Branch or the judiciary that acquiescence is\nimpermissible where an agency conforms its conduct to a court of appeals\xe2\x80\x99 constitutional decision in a manner that may result in the agency\xe2\x80\x99s\ndeclining to follow statutory requirements as to a class of cases. We\ncaution, however, that we are aware of no precedent in executive branch\npractice that is precisely on point with the policy you have asked us to\nconsider\xe2\x80\x94i.e., an agency\xe2\x80\x99s establishment of a categorical policy of intracircuit acquiescence in a constitutional ruling that might result in the\nagency acting contrary to statutory requirements while options for obtaining further review of the ruling in the case at issue remain potentially\nunexhausted. We further caution that our conclusion regarding the permissibility of acquiescence is limited to the implementation of policies\nand procedures tailored to ensuring that separations satisfy the Witt standard. Thus, modification of the policies and procedures governing separation proceedings within the Ninth Circuit for purposes of acquiescing in\nWitt should be temporary and contingent on further developments in the\ncase.\nA.\nIn assessing the lawfulness of a possible DoD policy of intracircuit acquiescence in Witt, we begin with a point made above: intracircuit acquiescence is the norm when an agency and a court of appeals construe an\n112\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\napplicable statute in different ways and the court of appeals has set forth\nits construction of the statute in a final, binding decision for which the\nmandate has issued. See Preston Testimony, supra note 5, at 44 (noting\nthat \xe2\x80\x9cthe general practice of federal agencies is to follow adverse court of\nappeals rulings\xe2\x80\x9d); see also, e.g., 66 Fed. Reg. 6436, 6438 (Jan. 22, 2001)\n(final DOJ rule announcing nationwide acquiescence in court of appeals\ndecisions holding that section 440(d) of the Antiterrorism and Effective\nDeath Penalty Act of 1996 (\xe2\x80\x9cAEDPA\xe2\x80\x9d) \xe2\x80\x9cis not to be applied in the cases\nof aliens whose deportation proceedings were commenced before AEDPA\nwas enacted\xe2\x80\x9d); 55 Fed. Reg. 1012, 1016 (Jan. 11, 1990) (final Department\nof Health and Human Services (\xe2\x80\x9cHHS\xe2\x80\x9d) rule establishing policy of applying within the relevant circuit those court of appeals decisions that HHS\ndetermines conflict with SSA policy, unless the government seeks further\nreview of the decision). Furthermore, as far as we are aware, neither this\nOffice nor any court has ever concluded that an agency\xe2\x80\x99s acquiescence in\na court of appeals decision was unlawful. In fact, there is judicial precedent from the Ninth Circuit (and other circuits) directly addressing acquiescence and indicating that acquiescence may be compelled, see Lopez,\n725 F.2d at 1489, or at least permissible, cf. Castillo-Felix, 601 F.2d at\n467 (acquiescence not compelled).\nThus, the Executive Branch evidently has long viewed intracircuit acquiescence, although not legally required, as nonetheless an exercise of,\nand in accord with, the Executive\xe2\x80\x99s obligation to take care that the laws be\nfaithfully executed. See U.S. Const. art. II, \xc2\xa7 3. And the Executive has\nheld this view even though acquiescence may involve an agency\xe2\x80\x99s accepting, and operating in conformity with, a construction of a statute that\nrepresents the controlling law of the circuit at the time, but that the Executive believes is incorrect and not legally binding on it as a party and that it\nintends at some opportune point to challenge in future litigation. The\nrange of interests that are served by acquiescence have, in other words,\nbeen understood to make an agency\xe2\x80\x99s acceptance of even a disputed legal\nconstruction by a court of appeals a means of faithfully executing the\nstatute in question, notwithstanding that the agency believes acquiescence\nwill result in the agency\xe2\x80\x99s taking action at odds with its own view of the\nstatute\xe2\x80\x99s proper implementation.\nGiven this long-established practice, we believe there would be little\nquestion of the permissibility of acquiescence if the conflict precipitated\n113\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nby the Witt decision were due to the Ninth Circuit\xe2\x80\x99s differing construction\nof the statute. For example, acquiescence would be permissible if the\ncourt had concluded as a matter of statutory construction that separation is\nnot warranted when based solely upon a finding of \xe2\x80\x9chomosexual conduct,\xe2\x80\x9d and may instead be ordered only if there has been a more individualized determination about the need for the separation. In such a case,\neven if the agency construed the statute in a manner contrary to that\nadopted by the court, we think the agency could acquiesce in the circuit\ncourt\xe2\x80\x99s determination regarding what the statute prescribes.\nBut Witt is a constitutional, not a statutory, ruling. And the underlying\nstatute on its face mandates DoD to take certain action in some instances.\nAccordingly, acquiescence in that decision by rendering separation contingent upon an individualized determination that the Witt court\xe2\x80\x99s heightened substantive due process standard has been met could, in application,\nresult in DoD\xe2\x80\x99s declining to effect separations that section 654, standing\nalone, clearly would require. The situation before us thus raises a more\nsubstantial question than does the typical case of acquiescence in a circuit\ncourt\xe2\x80\x99s adverse statutory ruling. After all, the Executive Branch has no\ngeneral power to disregard enforcement of a statute, see Kendall v. United\nStates ex rel. Stokes, 37 U.S. (12 Pet.) 524, 613 (1838), and we do not\nunderstand DoD to be asserting that it has independently determined that\nsection 654 is unconstitutional in any applications, cf. Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. at\n200. Thus, the possibility of DoD acquiescence in Witt presents the question whether DoD may take action that conforms to the Ninth Circuit\xe2\x80\x99s\nconstruction of the Constitution but that would be impermissible under\nsection 654 in the absence of the court\xe2\x80\x99s constitutional ruling. The issue is\nmade more substantial, moreover, because the Witt court\xe2\x80\x99s heightened\nsubstantive due process standard was announced in an interlocutory ruling\nin a case that is pending on remand.\nWe have not identified a prior occasion in which an agency has announced a policy of intracircuit acquiescence in a circuit court\xe2\x80\x99s constitutional ruling while the case in which the court issued the ruling remains\npending. Indeed, in one recent instance presenting the opportunity for\nsuch acquiescence, the INS appears to have declined to acquiesce in\nvarious court of appeals decisions holding that 8 U.S.C. \xc2\xa7 1226(c) (2006),\nwhich requires the mandatory detention of aliens found subject to remov114\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nal, violates the requirements of constitutional due process as applied to\nlawful permanent resident aliens absent the holding of an individualized\nbond hearing. See Patel v. Zemski, 275 F.3d 299 (3d Cir. 2001); Welch v.\nAshcroft, 293 F.3d 213 (4th Cir. 2002); Hoang v. Comfort, 282 F.3d 1247\n(10th Cir. 2002); Kim v. Ziglar, 276 F.3d 523 (9th Cir. 2002), rev\xe2\x80\x99d sub\nnom. Demore v. Kim, 538 U.S. 510 (2003). Until the Supreme Court\nconcluded in 2003 that the statute was in fact constitutional, see Demore,\n538 U.S. 510, immigration judges, in conformity with the court of appeals\ndecisions cited above, granted aliens in such circumstances individualized\nhearings. But the INS appears to have appealed every decision by an\nimmigration judge to release the alien on bond, thus triggering an automatic stay of the release orders under INS regulations. See AlmonteVargas v. Elwood, No. 02-cv-2666, 2002 WL 1471555, at *3 n.5 (E.D.\nPa. June 28, 2002). The U.S. District Court for the Eastern District of\nPennsylvania criticized this practice of apparent nonacquiescence as\nhaving been \xe2\x80\x9cdesigned to administratively overrule [the appeals court\ndecisions requiring hearings] pending Supreme Court review of the\nmandatory detention issue.\xe2\x80\x9d Id.; see also id. at *4 (\xe2\x80\x9c\xe2\x80\x98The Government\nhas not acquiesced to the Third Circuit\xe2\x80\x99s decision in Patel.\xe2\x80\x99\xe2\x80\x9d (quoting\ngovernment\xe2\x80\x99s Notice of Appeal to the Board of Immigration Appeals\n(\xe2\x80\x9cBIA\xe2\x80\x9d) of the Bond Decision of the Immigration Judge, alterations\nomitted)).\nHowever, the general tenor of the relevant statements by DOJ suggests\nthat acquiescence is a permissible course of action in general\xe2\x80\x94seemingly\nregardless of whether the underlying decision by the court of appeals is\nconstitutional or statutory. For example, we are aware of no prior statements by DOJ that qualify in a relevant manner its view of the permissibility of acquiescence as a practice. And we have identified at least two\ninstances in which agencies charged with enforcement of a statute have\nacquiesced in adverse judicial judgments holding that the statutes were\nunconstitutional if applied in a manner that the statute seemed to require,\nalthough each instance is in some way distinguishable from the type of\nacquiescence you have asked us to consider. See United States v. Clintwood Elkhorn Mining Co., 553 U.S. 1, 5 (2008) (noting that government\ndid not appeal district court decision holding that tax on coal was unconstitutional and that the Internal Revenue Service \xe2\x80\x9cacquiesced in the District Court\xe2\x80\x99s holding\xe2\x80\x9d) (citing IRS Notice 2000-28, 2000-1 Cum. Bull.\n115\n\n\x0c34 Op. O.L.C. 100 (2010)\n\n1116, 1116\xe2\x80\x9317); Matter of Silva, 16 I. & N. Dec. 26, 29\xe2\x80\x9330 (1976) (observing that Solicitor General had declined to seek review in Francis v.\nINS, 532 F.2d 268 (2d Cir. 1976), and stating that \xe2\x80\x9c[i]n view of the ruling\nin Francis,\xe2\x80\x9d the BIA would \xe2\x80\x9cwithdraw from the contrary position\xe2\x80\x9d regarding the constitutionality of 8 U.S.C. \xc2\xa7 1182(c) \xe2\x80\x9cexpressed by th[e] Board\nin\xe2\x80\x9d prior decisions).\nThe example that is most relevant here is Silva. That precedent, unlike the present situation, did not involve agency acquiescence in an\ninterlocutory order issued in a case that remained pending. Nonetheless,\nthe example is instructive. In Silva, 16 I. & N. Dec. at 29\xe2\x80\x9330, the BIA\nacquiesced in Francis, 532 F.2d 268, a constitutional ruling by the\nSecond Circuit regarding the application of 8 U.S.C. \xc2\xa7 1182(c) (1970,\nrepealed 1996). That provision by its terms authorized the Attorney General to waive certain grounds for exclusion applicable to permanent resident aliens \xe2\x80\x9cwho temporarily proceeded abroad voluntarily.\xe2\x80\x9d 8 U.S.C.\n\xc2\xa7 1182(c). The Francis court held that the equal protection component of\nthe Due Process Clause of the Fifth Amendment required the Attorney\nGeneral to exercise his waiver authority under the statute equally with\nrespect to aliens who had departed the country and those who had never\nleft. 532 F.2d at 273. The BIA acquiesced in this ruling in every circuit\nbut the Ninth Circuit\xe2\x80\x94thereby retreating in every circuit except the Ninth\nfrom its established position that the Attorney General could exercise his\nwaiver authority under section 1182(c) only with respect to departing\naliens. See Silva, 16 I. & N. Dec. at 29\xe2\x80\x9330. In the Ninth Circuit, however,\nthe BIA maintained its prior reading of the statute, thus conforming its\nconduct to that circuit\xe2\x80\x99s own binding precedent. See Tapia-Acuna v. INS,\n640 F.2d 223, 224\xe2\x80\x9325 (9th Cir. 1981) (\xe2\x80\x9cThe BIA has voluntarily adopted\nthe rule announced in Francis . . . except in cases arising in the Ninth\nCircuit.\xe2\x80\x9d) (internal citations omitted); Abebe v. Holder, 577 F.3d 1113,\n1116 (9th Cir. 2009) (denial of petition for en banc panel rehearing and\npetition for full court rehearing en banc) (Berzon, J., dissenting from\ndenial of full court rehearing) (observing that the BIA in Silva acquiesced\nin Francis \xe2\x80\x9cin all circuits except [the Ninth Circuit], where contrary\nprecedent was controlling\xe2\x80\x9d). 11 Thus, the example of Silva appears to\n11 The BIA adhered in the Ninth Circuit to its prior position until 1981, when the Ninth\nCircuit adopted the Second Circuit\xe2\x80\x99s view that the Constitution required application of the\n\n116\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\ndemonstrate that an agency has in the past exercised discretion to determine whether and in what manner to acquiesce in constitutional rulings by\ncourts of appeals that would require the agency to enforce a statute in a\nmanner the agency believed would be contrary to what Congress would\nhave intended in the absence of the adverse ruling.\nB.\nIn light of this past practice, and notwithstanding that we have identified no example of prior acquiescence that is precisely on point, we believe that DoD could lawfully acquiesce in Witt. In our view, Congress\nhas not unambiguously expressed the intent to foreclose DoD from suspending enforcement of section 654 for the narrow and limited purpose of\nacquiescing in an adverse court of appeals precedent such as Witt, and the\nTake Care Clause, U.S. Const. art. II, \xc2\xa7 3, does not impose an independent\nobligation to refrain from such acquiescence in the absence of a clear\nstatutory bar to doing so. This conclusion holds even though the new\nprocedures might result in the retention of service members whose separations the statute otherwise would require.\nTo be sure, the phrasing of the statute\xe2\x80\x94in particular the provision that\na service member \xe2\x80\x9cshall be separated,\xe2\x80\x9d 10 U.S.C. \xc2\xa7 654(b) (emphasis\nadded)\xe2\x80\x94indicates that Congress did not mean to authorize DoD to categorically decline to enforce section 654. However, \xe2\x80\x9cshall\xe2\x80\x9d is not a term\nthat invariably admits of no exceptions without regard to the circumstances. In Town of Castle Rock v. Gonzales, for example, the Supreme Court\nheld that a state statute providing that \xe2\x80\x9c\xe2\x80\x98[a] peace officer shall enforce a\nvalid restraining order\xe2\x80\x99\xe2\x80\x9d does not \xe2\x80\x9ctruly [make] enforcement of restraining\norders mandatory.\xe2\x80\x9d 545 U.S. 748, 759\xe2\x80\x9360 (2005) (quoting Colo. Rev.\nStat. \xc2\xa7 18-6-803.5(3) (Lexis 1999)). In reaching this conclusion, the Court\nrelied on the \xe2\x80\x9cwell established tradition of police discretion [that] has long\ncoexisted with apparently mandatory arrest statutes.\xe2\x80\x9d Id. at 760. Here,\nlikewise, in enacting section 654, Congress legislated against a wellestablished historical practice of agencies generally acquiescing in adstatute to both departing and nondeparting aliens. See Tapia-Acuna, 640 F.2d 223. In\n2009, however, the Ninth Circuit returned to its pre-1981 position that waiver under\nsection 1182(c) is available only with respect to aliens who have left the country. See\nAbebe v. Mukasey, 554 F.3d 1203, 1207 (9th Cir. 2009) (en banc) (per curiam).\n\n117\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nverse circuit precedent. See Cannon v. Univ. of Chicago, 441 U.S. 677,\n696\xe2\x80\x9397, 698\xe2\x80\x9399 (1979) (observing that it is \xe2\x80\x9calways appropriate to assume that our elected representatives, like other citizens, know the law\xe2\x80\x9d\nand that an \xe2\x80\x9cevaluation of congressional action . . . must take into account\nits contemporary legal context\xe2\x80\x9d). Indeed, insofar as we are aware, Congress has never purported to statutorily bar an agency from acquiescing in\nadverse circuit precedent. To the contrary, the legislation that Congress\nhas considered on the subject has been uniformly directed at limiting the\ncircumstances in which agencies may nonacquiesce, and would have\napplied even if the affected agencies believed an underlying statute was\nbest read to require a course of action other than that prescribed by the\ngoverning law of the circuit. 12 The committee report accompanying a\n1998 House-passed bill that would have generally barred agencies from\ndeclining to follow controlling circuit precedent, for example, stated that\n\xe2\x80\x9ccitizens who file claims or who otherwise are involved in proceedings\nwith federal agencies have the right to expect that those agencies will\nobey the law as interpreted by the courts.\xe2\x80\x9d H.R. Rep. No. 105-395, at 3;\nsee also H.R. Rep. No. 98-1039, at 37 (stating that \xe2\x80\x9cmany of the conferees\nhave strong concerns about some of the ways in which [SSA\xe2\x80\x99s] policy [of\nnonacquiescence] has been applied\xe2\x80\x9d); H.R. Rep. No. 98-618, at 24 (stating that \xe2\x80\x9c[w]hile the issue of the constitutionality of the non-acquiescence\npolicy may be in doubt, the undesirable consequences of escalating hostility between the Federal courts and [HHS] are clear\xe2\x80\x9d).\nIn light of this history, it is fair to expect that Congress would have\nspoken in clear and direct terms had it intended to prohibit DoD from\nengaging in this generally well-established agency practice of acquiescing\nin adverse circuit precedent. Cf. INS v. St. Cyr, 533 U.S. 289, 299 n.10\n(2001) (\xe2\x80\x9c\xe2\x80\x98In traditionally sensitive areas, the requirement of [a] clear\nstatement assures that the legislature has in fact faced, and intended to\nbring into issue, the critical matters involved in the judicial decision.\xe2\x80\x99\xe2\x80\x9d\n(quoting Gregory v. Ashcroft, 501 U.S. 452, 461 (1991) (internal alterations omitted))). And we do not think that section 654\xe2\x80\x99s use of the word\nSee, e.g., H.R. 1544, 105th Cong. \xc2\xa7 2(a) (as passed by House, Feb. 25, 1998) (bill\nthat would require agencies to follow circuit precedent except in narrow specified circumstances); H.R. 3755, 98th Cong. \xc2\xa7 302(b) (as passed by House, Mar. 27, 1984) (bill that\nwould require acquiescence by Secretary of HHS in court of appeals decisions interpreting Social Security Act, except during pendency of Supreme Court review).\n12\n\n118\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\n\xe2\x80\x9cshall,\xe2\x80\x9d when read against this background, suffices to provide the clarity\nthat would be necessary to conclude that Congress intended to displace\nthe discretion to acquiesce that agencies generally retain and exercise. Nor\ndo we think that, although Congress may fairly be understood not to have\nintended to bar DoD\xe2\x80\x99s intracircuit acquiescence in court of appeals rulings\nconstruing section 654, Congress must have intended to prohibit DoD\nfrom engaging in such acquiescence in court of appeals rulings imposing\nconstitutional limits on the enforcement of section 654. There is no basis\nfor concluding that Congress meant in section 654 to bar acquiescence in\nthe latter, but not the former, contexts.\nThis conclusion draws additional support from the fact that the historical practice of intracircuit acquiescence reflects substantial government\ninterests in avoiding the adverse potential consequences of nonacquiescence\xe2\x80\x94such as inter-branch conflict and the imposition of significant\nburdens on regulated parties\xe2\x80\x94that are present regardless whether statutory or constitutional rulings are involved. Indeed, legislative reports have\nat times cited considerations such as these in expressing concern regarding an agency\xe2\x80\x99s decision not to acquiesce. See H.R. Rep. No. 105-395,\nat 7 (\xe2\x80\x9cequity and orderly governance require that agencies, like private\ncitizens, should obey the law enunciated by courts of competent jurisdiction\xe2\x80\x9d); H.R. Rep. No. 98-618, at 24 (raising concerns about \xe2\x80\x9cthe result of\n[SSA\xe2\x80\x99s] non-acquiescence policy for claimants, the courts, and SSA\xe2\x80\x9d).\nThese governmental interests may have particular force depending on\nthe circumstances. An agency may conclude that intracircuit acquiescence\nis appropriate to demonstrate respect for a court of appeals and its status\nwithin the federal judiciary and to avoid the interbranch conflict that\nmight otherwise result. Cf. H.R. Rep. No. 98-618, at 25 (expressing \xe2\x80\x9cconcern[] about the increasing number and intensity of confrontations between [the SSA] and the courts as SSA refuses to apply circuit court\nopinions\xe2\x80\x9d). 13 An agency may also view acquiescence in adverse circuit\nprecedent as the best way to serve those affected by the relevant statutory\nregime and to ensure effective program administration. See Atchison,\nIndeed, as noted above, commentators have argued that this general interest arguably\nhas even greater force where, as here, the agency would be acquiescing in a constitutional\nruling. Cf. Estreicher & Revesz, 98 Yale L.J. at 720 n.214 (nonacquiescence is \xe2\x80\x9cmuch\nmore troubling\xe2\x80\x9d in a constitutional rather than in a statutory case).\n13\n\n119\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nTopeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 447 (7th Cir. 1994)\n(Easterbrook, J., concurring) (\xe2\x80\x9c[A]n agency prudently may decide to\nacquiesce, to reduce uncertainty and the costs of both the legal process\nand compliance with multiple standards . . . .\xe2\x80\x9d), aff\xe2\x80\x99d sub nom. Bhd. of\nLocomotive Eng\xe2\x80\x99rs v. Atchison, Topeka & Santa Fe Ry. Co., 516 U.S. 152\n(1996); see also, e.g., 55 Fed. Reg. at 1017 (characterizing SSA\xe2\x80\x99s policy\nof acquiescence as \xe2\x80\x9can appropriate exercise of our responsibility to administer the vast and complex Social Security benefit programs in a\nmanner that is least burdensome to Social Security claimants and preserves our ability to attempt to maintain national uniformity in program\nadministration\xe2\x80\x9d); 66 Fed. Reg. at 6438 (describing policy of acquiescence\nin section 440(d) of AEDPA as motivated by \xe2\x80\x9cthe interest of the uniform\nand expeditious administration of the immigration laws\xe2\x80\x9d). The government may also have litigation-related reasons for acquiescing, including\nan interest in avoiding resource-consuming challenges to the agency\xe2\x80\x99s\nactions within the circuit, see Castillo-Felix, 601 F.2d at 467 (noting that\nnonacquiescence \xe2\x80\x9cwould only invite appeal and reversal\xe2\x80\x9d), and a desire to\nadvance the most advantageous litigation strategy for ensuring vindication\nof the government\xe2\x80\x99s position over the long term. And, again, these interests could, as a general matter, be served through agency acquiescence in\nconstitutional, as well as statutory, rulings. Thus, although we are not\naware of the precise rationales that DoD would invoke were it to decide to\nacquiesce in Witt, we cannot say that acquiescence here would be impermissible as a matter of law in light of these reasons why, as a general\nmatter, agencies may permissibly acquiesce. Whether acquiescence would\nbe advisable as a matter of policy in these circumstances, of course, is a\ndistinct question that this memorandum does not address.\nTo be sure, because the Witt decision is an interlocutory ruling from\nwhich the government did not seek immediate appeal, a decision not to\nacquiesce would be in accord with a well-recognized exception to the\nusual practice of acquiescence. As the Department has previously observed in discussing the importance of the government retaining the\noption of nonacquiescence, a determination not to appeal an interlocutory\nruling is not a determination that the government must conform its conduct to that ruling. See Preston Testimony, supra note 5, at 45. But we do\nnot think it follows from this recognized exception to the general practice\nof acquiescence that DoD would be acting unlawfully if it chose to acqui120\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nesce in Witt. Although DOJ has stated that nonacquiescence in interlocutory decisions \xe2\x80\x9cmay be entirely appropriate,\xe2\x80\x9d id., it never has suggested\nthat intracircuit acquiescence in such cases would be unlawful. Indeed, in\nlight of the attendant consequences\xe2\x80\x94and collateral litigation\xe2\x80\x94that may\nresult from nonacquiescence, we could not say the government would\nhave no legitimate interest in having the flexibility, at least in certain\nappropriate contexts, to acquiesce in an interlocutory decision until such\ntime as the case ripens and the ruling may properly be subject to appeal.\nSimply put, even though the Witt ruling is set forth in an unappealed\ninterlocutory order, the controlling law of the circuit is established by that\nruling until such time as it may be reconsidered by the circuit itself or\noverruled by the Supreme Court. Accordingly, in our view, the procedural\nposture of a binding interlocutory ruling does not so undermine the comity and policy factors identified above that such acquiescence, even if it\nwere determined to be ill-advised, would constitute a violation of the\nExecutive\xe2\x80\x99s \xe2\x80\x9cAEDPA\xe2\x80\x9d responsibilities.\nAnother consideration that may arguably weaken the case for acquiescence here is one to which we have already alluded. It arises from the\npossible tension between such acquiescence and Congress\xe2\x80\x99s unqualified\nfinding that \xe2\x80\x9c[t]he presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an\nunacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability,\xe2\x80\x9d 10\nU.S.C. \xc2\xa7 654(a)(15). DoD acquiescence in Witt might well result in the\nDepartment declining to effectuate the separation of an individual whose\nseparation the statute, standing alone, would appear to require. However,\nso long as any such decision is premised solely on DoD\xe2\x80\x99s interest in\nconforming its conduct to the controlling law of the circuit\xe2\x80\x94and not on a\nbroader judgment not to comply with section 654 or an independent\njudgment that the provision is unconstitutional\xe2\x80\x94such tension would be at\nleast somewhat mitigated. Indeed, because Witt is binding as a matter of\nstare decisis within the Ninth Circuit, separations that could not satisfy\nthe Witt standard presumably could not be effected within that circuit if\nchallenged in court so long as Witt remains the governing law. And that\nwould be the case wholly independent of DoD\xe2\x80\x99s decision to acquiesce.\nThus, at least with respect to this category of cases, an appropriately\ntailored policy of acquiescence may be understood as designed to conform\n121\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nagency conduct to the governing law, given that any policy of acquiescence would be temporary and contingent on further developments in\nWitt.\nWe recognize that this Office has previously set forth guidance with\nrespect to when the President may, consistent with his \xe2\x80\x9ctake care\xe2\x80\x9d responsibilities, decline to enforce enacted legislation for constitutional\nreasons. See Presidential Authority to Decline to Execute Unconstitutional Statutes, 18 Op. O.L.C. 199. This guidance notes that the President\nshould presume that enactments are constitutional and, thereby, \xe2\x80\x9cgive\ngreat deference to the fact that Congress passed the statute and that Congress believed it was upholding its obligation to enact constitutional\nlegislation.\xe2\x80\x9d Id. at 200. We also acknowledge in that guidance the \xe2\x80\x9cspecial\nrole\xe2\x80\x9d of the Supreme Court in resolving disputes about the constitutionality of enactments and the deference to be accorded the Court\xe2\x80\x99s likely\ndecisions regarding particular provisions. Id. We did not consider, however, the legitimacy of intracircuit acquiescence, which is a practice distinct from, and more cabined than, an Executive Branch decision not to\nenforce a statutory provision at all based on an independent assessment\nthat the law is unconstitutional. Accordingly, we do not believe that the\nprinciples set forth in the guidance control the decision of an agency to\nacquiesce in adverse circuit precedent, even when that precedent imposes\nconstitutional limits on an agency\xe2\x80\x99s ability to act in accord with what a\nstatute would otherwise require. Thus, in light of the established historical\npractice of intracircuit acquiescence as a general matter, and the substantial interests that it can serve, we cannot conclude that such acquiescence\nwould violate the Executive\xe2\x80\x99s \xe2\x80\x9ctake care\xe2\x80\x9d responsibilities here, even if it\ncould result in some instances in nonenforcement of an otherwise mandatory statutory command.\nOur conclusion is consistent with, although it is not compelled by, judicial precedents in other contexts involving agency decisions not to enforce a statute. As the Supreme Court has observed, \xe2\x80\x9can agency has broad\ndiscretion to choose how best to marshal its limited resources and personnel to carry out its delegated responsibilities,\xe2\x80\x9d and \xe2\x80\x9c[t]hat discretion is at\nits height when the agency decides not to bring an enforcement action.\xe2\x80\x9d\nMassachusetts v. EPA, 549 U.S. 497, 527 (2007). Indeed, in Heckler v.\nChaney, the Court stated that \xe2\x80\x9can agency\xe2\x80\x99s decision not to prosecute or\nenforce, whether through civil or criminal process, is a decision generally\n122\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\ncommitted to an agency\xe2\x80\x99s absolute discretion,\xe2\x80\x9d and attributed this proposition \xe2\x80\x9cto the general unsuitability for judicial review of agency decisions\nto refuse enforcement.\xe2\x80\x9d 470 U.S. 821, 831 (1985). 14 In particular, the\nCourt noted, \xe2\x80\x9can agency decision not to enforce often involves a complicated balancing of a numbers of factors which are peculiarly within its\nexpertise.\xe2\x80\x9d Id. These factors include not only whether \xe2\x80\x9ca violation has\noccurred, but whether agency resources are best spent on this violation or\nanother, whether the agency is likely to succeed if it acts, whether the\nparticular enforcement action requested best fits the agency\xe2\x80\x99s overall\npolicies, and, indeed, whether the agency has enough resources to undertake the action at all.\xe2\x80\x9d Id. An agency decision, based on considerations of\ninter-branch comity and sound policy, to suspend enforcement of a statute\nwithin a particular circuit in order to acquiesce in a court of appeals\ndecision resembles a decision not to enforce based on the types of \xe2\x80\x9cfactors\xe2\x80\x9d identified in Chaney as \xe2\x80\x9cpeculiarly within [an agency\xe2\x80\x99s] expertise.\xe2\x80\x9d\nId.\nWe acknowledge, however, that extending the reasoning of Chaney to a\npractice of intracircuit acquiescence such as the one proposed here would\nraise two potentially significant concerns. First, as the Eighth Circuit has\nnoted, the Chaney framework for determining whether agency action rests\nwithin the agency\xe2\x80\x99s sole discretion appears to \xe2\x80\x9cappl[y] to individual, caseby-case determinations of when to enforce existing regulations rather than\npermanent policies or standards.\xe2\x80\x9d Kenney v. Glickman, 96 F.3d 1118,\n1123 (8th Cir. 1996); see also Crowley Caribbean Transp., Inc. v. Pena,\n37 F.3d 671, 677 (D.C. Cir. 1994) (noting that general enforcement policies are \xe2\x80\x9cmore likely to be direct interpretations of the commands of the\nsubstantive statute rather than the sort of mingled assessments of fact,\npolicy, and law that drive an individual enforcement decision and that are\n. . . particularly within the agency\xe2\x80\x99s expertise and discretion\xe2\x80\x9d). A formal\npolicy of acquiescence in Witt resembles the more broadly applicable type\n14 The precise question at issue in Chaney was whether an agency\xe2\x80\x99s decision not to\nenforce a statute was subject to judicial review under the Administrative Procedure Act\n(\xe2\x80\x9cAPA\xe2\x80\x9d). The Court observed that under 5 U.S.C. \xc2\xa7 701(a)(2), an agency\xe2\x80\x99s action is not\nsubject to judicial review if it is \xe2\x80\x9c\xe2\x80\x98committed to agency discretion by law.\xe2\x80\x99\xe2\x80\x9d Chaney, 470\nU.S. at 828. Thus, although the question directly presented in Chaney was the availability\nof judicial review under the APA, the Court resolved that question by determining\nwhether Congress had afforded the agency the requisite nonenforcement discretion.\n\n123\n\n\x0c34 Op. O.L.C. 100 (2010)\n\nof categorical nonenforcement policy that even the \xe2\x80\x9cabsolute discretion\xe2\x80\x9d\ndiscussed in Chaney may not encompass. Second, as the Court also recognized in Chaney, \xe2\x80\x9cCongress may limit an agency\xe2\x80\x99s exercise of enforcement power if it wishes, either by setting substantive priorities, or by\notherwise circumscribing an agency\xe2\x80\x99s power to discriminate among issues\nor cases it will pursue.\xe2\x80\x9d 470 U.S. at 833. And, in discussing a prior decision, Dunlop v. Bachowski, 421 U.S. 560 (1975), the Chaney Court stated\nthat the statute at issue in that case, which provided that the Secretary of\nLabor \xe2\x80\x9c\xe2\x80\x98shall investigate [a] complaint and, if he finds probable cause to\nbelieve that a violation has occurred he shall bring a civil action,\xe2\x80\x99\xe2\x80\x9d \xe2\x80\x9cquite\nclearly withdrew discretion from the agency and provided guidelines for\nexercise of its enforcement power.\xe2\x80\x9d 470 U.S. at 833 \xe2\x80\x9334 (quoting 29\nU.S.C. \xc2\xa7 482(b), internal alterations omitted); see also id. at 833 (discussing the provision at issue in Dunlop as \xe2\x80\x9can example of statutory language\nwhich supplied sufficient standards to rebut the presumption of unreviewability\xe2\x80\x9d); Letter for Richard W. Allen, Assistant General Counsel for\nGeneral Law, Consumer Product Safety Commission, from Leon Ulman,\nDeputy Assistant Attorney General, Office of Legal Counsel 3 n.* (Dec.\n14, 1977) (observing that an agency\xe2\x80\x99s \xe2\x80\x9c[e]nforcement discretion may be\ncircumscribed to a substantial degree if the agency is guided by a statute\nthat employs mandatory enforcement language\xe2\x80\x9d).\nNonetheless, the potential nonenforcement decision here\xe2\x80\x94assuming it\nis based upon temporary acquiescence in a court of appeals decision within that court\xe2\x80\x99s jurisdiction\xe2\x80\x94would be of the type that is \xe2\x80\x9coften inherently\npolicy driven and thus best left to the discretion of the agency\xe2\x80\x9d rather than\nto the reviewing court. Harrington v. Chao, 372 F.3d 52, 55 (1st Cir.\n2004). Accordingly, and in light of an established general practice of acquiescence, it is fair to assume that Congress did not mean to bar such a\ncourse of action, at least absent a clearer statement to that effect than is\nevidenced in section 654, notwithstanding its use of the mandatory term\n\xe2\x80\x9cshall.\xe2\x80\x9d Indeed, as the Court explained in Dunlop, even if a governing\nstatute establishes that a nonenforcement decision is not \xe2\x80\x9can unreviewable\nexercise of prosecutorial discretion,\xe2\x80\x9d such decisions should still be reviewed under an extremely deferential standard, asking only whether the\ndecision was \xe2\x80\x9cso irrational as to constitute the decision arbitrary and\ncapricious.\xe2\x80\x9d 421 U.S. at 567 n.7, 573; see also Harrington, 372 F.3d at\n55 \xe2\x80\x9356 (Secretary\xe2\x80\x99s decision to enforce 29 U.S.C. \xc2\xa7 482 \xe2\x80\x9cis reviewed only\n124\n\n\x0cDepartment of Defense Response to Interlocutory Decision of Court of Appeals\n\nunder the highly limited arbitrary and capricious standard contained in the\nAdministrative Procedure Act, 5 U.S.C. \xc2\xa7 706,\xe2\x80\x9d and \xe2\x80\x9ca court reviews the\nSecretary\xe2\x80\x99s stated reasons for not suing only to determine whether they\nare arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law\xe2\x80\x9d) (citations and internal quotation marks omitted).\nThus, although an agency may not \xe2\x80\x9cconsciously and expressly adopt a\ngeneral policy that is so extreme as to amount to an abdication of its\nstatutory responsibilities,\xe2\x80\x9d Chaney, 470 U.S. at 833 n.4, we could not say\nthat a DoD policy of suspending the enforcement of section 654 in a\nlimited class of cases in order to acquiesce in the Witt decision would\nconstitute action of that kind.\nDAVID J. BARRON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n125\n\n\x0c'


b'May 14, 1979\n\n79-31\n\nMEMORANDUM OPINION FOR THE\nASSISTANT DIRECTOR, LEGAL COUNSEL\nDIVISION, FEDERAL BUREAU OF\nINVESTIGATION\nFederal Bureau of Investigation\xe2\x80\x94Contractual\nExemption from Liability for Agents\xe2\x80\x99 Negligence in\nFBI Law Enforcement Training (42 U.S.C. \xc2\xa7 3744)\n\nThis responds to your request for our opinion whether Federal Bureau\no f Investigation (FBI) agents, providing training to State and local law en\xc2\xad\nforcement officers, may require that the officers agree not to sue the FBI\nagents individually for injuries that might be caused by the agents\xe2\x80\x99 negli\xc2\xad\ngence in connection with such training.\nSection 3744 o f title 42, U.S. Code, 82 Stat. 204, reads in pertinent part\nas follows:\n(a)\nThe Director o f the Federal Bureau o f Investigation is\nauthorized to \xe2\x80\x94\n(1)\nestablish and conduct training programs at the Federal\nBureau o f Investigation National Academy at Quantico,\nVirginia, to provide, at the request o f a State or unit o f local\ngovernment, training for State and local law enforcement and\ncriminal justice personnel;\n(2)\nassist in conducting, at the request o f a State or unit o f\nlocal government, local and regional training programs for the\ntraining o f State and local law enforcement and criminal\njustice personnel * * *.\n* * * * * * *\n(b)\nIn the exercise o f the functions, powers, and duties estab\xc2\xad\nlished under this section the Director o f the Federal Bureau o f In\xc2\xad\nvestigation shall be under the general authority o f the A ttorney\nGeneral.\nYour office has informed us that the relevant facts are as follows. The\n205\n\n\x0ctraining programs authorized by \xc2\xa7 3744 are conducted by FBI Special\nAgent police instructors. Several o f these instructors have asked whether\nthey may require that persons, as a condition to receiving training, agree\nnot to sue the instructors individually for injuries they may negligently\ncause the trainees. We understand that the suggested agreements would\ntake the form o f \xe2\x80\x9c covenants not to sue\xe2\x80\x9d and would in effect be ex\xc2\xad\nculpatory agreements for the benefit o f the individual agents. Further, we\nhave been inform ed that the FBI, as an agency, would not seek to compel\nsuch agreements, but rather that the agreements would be between the\nagents in their personal capacities and the trainees. It is contem plated,\nhowever, that those trainees who decline to enter into the agreements will\nbe barred from participating in the programs.\nYou have stressed that the exculpation agreements would only relieve\nthe individual agents from liability for their negligence, and that the\nUnited States would remain liable for any negligence covered by the\nFederal Torts Claims Act. Since double recovery is barred by that Act, 28\nU.S.C. \xc2\xa7 2676, the trainee would suffer no financial loss by proceeding\nsolely against the United S tates.1 Indeed, the United States\xe2\x80\x99 ability to pay a\njudgm ent makes it the more logical defendant. This is borne out by the\nfact that no agent has yet been sued in his personal capacity in connection\nwith the FBI training program, although there have been training-related\nsuits against the United States.\nFor the reasons that follow we conclude that such agreements are legally\nimproper and therefore unenforceable.\nFirst, it should be noted that the training programs are official FBI pro\xc2\xad\ngrams. Thus, the determ ination whether particular governmental units\nand their trainees will be permitted to participate in these programs is for\nthe FBI to make. Accordingly, since exclusion from the program would re\xc2\xad\nquire governmental action, it cannot be done by FBI agents in their per\xc2\xad\nsonal capacities. In other words, it cannot be reasonably argued that\nrestricting participation in the training would not be an official FBI act.\nThis is for the simple reason that if the FBI did not, in fact, seek to compel\nsuch agreements there would be nothing to prevent persons refusing to\nenter the agreements from participating in the training program s.2\nTherefore, the short answer is that the agents, as individuals, are not em\xc2\xad\npowered to set conditions for entry to a Federal program.\nA part from this consideration, we have serious doubt that the contem \xc2\xad\nplated agreements would be enforceable as a m atter o f common law.\n\n1 Further, you state that the agreements would only relate to ordinary negligence, that is,\nthey would not cover gross negligence and willful conduct. The draft agreement that you sent\nto us, however, does not clearly m ake such a distinction. Thus, if the agreement were to\noperate as you state, it should include a sentence stating that gross negligence and willful con\xc2\xad\nduct are not covered.\n1 We understand that instructors in the training program s volunteer for these assignments\nand thus retain the option o f not serving as instructors for any reason, including fear o f a suit\nagainst them personally.\n\n206\n\n\x0cWhen agents accept the instructor assignments, they assume a duty to the\nGovernment to serve as such. Thus, their agreement to train the partici\xc2\xad\npants in the programs in exchange for executing the covenant not to sue\nwould appear to involve merely the performance o f a preexisting duty, and\nfor that reason would not be sufficient consideration to support a con\xc2\xad\ntract. Compare, Davis v. Mathews, 361 F. (2d) 899 (4th Cir. 1966). Section\n132 o f Williston on Contracts (3rd ed. 1957) explains this as follows:\nIf a promisee is already bound by official duty to render a serv\xc2\xad\nice, it is no detriment to him, and no benefit to the promisor\nbeyond what the law requires the promisee to suffer or to give,\nfor him to do or agree to do the service on request. Though the\nprevious legal duty does not run to the promisor under the later\nagreement, it runs to the public o f which the prom isor is a\nmember, and as such he has a right, even if not one enforceable\nat law, to the performance in question. Therefore, no contract\ncan be based on such consideration. [Footnotes omitted.]\nTo the extent it might be argued that the contracts are supported by a\nvaluable consideration, a further problem arises under 18 U.S.C. 209, pro\xc2\xad\nviding in pertinent part as follows:\nWhoever receives any salary, or any contribution to or supple\xc2\xad\nmentation o f salary, as compensation for his services as an officer\nor employee o f the executive branch o f the United States * * *\nfrom any source other than the Government o f the United\nStates * * * shall be fined not more than $5,000 or imprisoned\nnot more than one year, or both.\nSee also 28 CFR \xc2\xa7 45.735-8 (Departm ent of Justice regulation embodying\n\xc2\xa7 209\xe2\x80\x99s prohibition). This Office has interpreted these provisions as bar\xc2\xad\nring receipt o f things o f value by a Departm ent employee if they are given\nin connection with the employee\xe2\x80\x99s Federal assignment. While we need not\nhere decide whether \xc2\xa7 209 and the Department regulation would be\nviolated by individual agents exacting the subject agreements from\ntrainees, they are not in keeping with the spirit o f the cited provisions.\nFor these reasons it is our opinion that individual agents may not re\xc2\xad\nquire that exculpatory agreements be executed as a condition o f participa\xc2\xad\ntion in the training programs.\nL arry A . H a m m o n d\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n207\n\n\x0c'