b'Applicability of Anti-Lottery Laws to\nSimultaneous Oil and Gas Leasing Procedures\nT h e U n ited S tates an d its o fficers\nlaw s, 18 U .S .C . \xc2\xa7\xc2\xa7 1302 an d 1304.\n\nare\n\nnot\n\ng e n e ra lly\n\nexem pt from th e a n ti-lo tte ry\n\nA lth o u g h th e q u estio n is n o t free fro m d o u b t, th e legislativ e h isto ry an d ju d ic ia l c o n s tru c \xc2\xad\ntion o f th e a n ti-lo tte ry sta tu te s lead to th e c o n c lu sio n th a t th o se sta tu te s a re aim ed at\nlo tte rie s d esig n ed to e n ric h th e ir p ro m o te rs at th e ex pense o f th e gam bling public, and\nth e re fo re d o n o t ex ten d to " lo tte rie s \xe2\x80\x9d stru c tu re d n o t to e n ric h federal co ffers b ut for\nth e so le p u rp o se o f d istrib u tin g pu b lic leases fairly an d efficiently.\nL o n g -stan d in g co n g ressio n al a c q u iescen ce in th e In te rio r D e p a rtm e n t\xe2\x80\x99s S im u ltan eo u s Oil\nan d G a s L easin g P ro c e d u re s is a fa c to r th at m ust be co n sid e re d in d eterm in in g w h e th e r\nth o se p ro c e d u re s c o n stitu te an illegal lo tte ry u n d e r \xc2\xa7\xc2\xa7 1302 an d 1304.\n\nApril 7, 1980\nM EM ORANDUM OPINION FOR\nT H E SOLICITOR O F T H E INTERIO R\nThis responds to your request for our opinion as to the applicability\nof the anti-lottery laws, 18 U.S.C. \xc2\xa7\xc2\xa7 1302, 1304, to the Department of\nthe Interior\xe2\x80\x99s Simultaneous Oil and Gas (SOG) Leasing Procedures. In\nour view, although the question is a close one, the SOG leasing pro\xc2\xad\ngram is not a \xe2\x80\x9clottery\xe2\x80\x9d within the scope of \xc2\xa7\xc2\xa7 1302 and 1304.\nThe SOG program is administered by the Department of the Interior\npursuant to 30 U.S.C \xc2\xa7 226(c), which provides that public lands not\nwithin any known geologic structure of a producing oil or gas field\n(commonly called \xe2\x80\x9cwildcat\xe2\x80\x9d lands) are subject to leasing to the first\nqualified person making application for a lease.1 These leases are\ntermed \xe2\x80\x9cnoncompetitive\xe2\x80\x9d because the successful applicants obtain the\nleases without competitive bidding. Most federal oil and gas leases are\nobtained through noncompetitive leasing procedures.\nTo eliminate the chaos that sometimes resulted from competition\namong applicants seeking to be the \xe2\x80\x9cfirst qualified person making appli\xc2\xad\ncation,\xe2\x80\x9d the Department of the Interior in 1960 promulgated a regula\xc2\xad\n1 Section 226(c) of title 30 reads as follows:\nIf the lands to be leased are not within any known geological structure of a\nproducing oil or gas field, the person first making application for the lease who is\nqualified to hold a lease under this chapter shall be entitled to a lease of such lands\nwithout competitive bidding. Such leases shall be conditioned upon the payment by the\nlessee of a royalty of 12Vfe per centum in amount or value of the production removed\no r sold from the lease.\n\n558\n\n\x0ction providing that all applications received by a specified filing dead\xc2\xad\nline would be considered to have been submitted simultaneously.2 If\nmore than one qualifying application is received for a given tract, the\npriority of filing is determined by a public drawing.3 To be considered,\nthe entry card must be completed, signed, and accompanied by a filing\nfee of $10.00.4 An applicant is permitted to file only one entry card for\neach parcel on the list, though there appears to be no bar to an\napplicant\xe2\x80\x99s filing on as many parcels as he or she wishes.5 After the\ndrawing is held, unsuccessful applicants are notified by the return of\ntheir entry cards in the mail.6 The first qualified drawee is issued the\nlease upon payment of the first year\xe2\x80\x99s rental of $1.00 per acre. Tract\nsizes range from under 40 acres to a maximum of 2,560 acres. This\nprocedure is often referred to as the government oil and gas \xe2\x80\x9clottery.\xe2\x80\x9d 7\nThe regulation was challenged in Thor-Westcliffe Development, Inc. v.\nUdall, 314 F.2d 257, 258 (D.C. Cir.) cert, denied, 373 U.S. 951 (1963).\nThe plaintiff argued that in providing for simultaneous filings, the\nregulation was unresponsive to the statutory command that the lease be\ngiven to the \xe2\x80\x9cpersqn first making application.\xe2\x80\x9d The court upheld the\nregulation after finding that, considering the language and purpose of\nthe statute, as well as the experience of the Secretary in implementing\nit, the regulation was neither unreasonable nor inconsistent with the\nplain language of the statute. Id. at 260. The court explained:\nIt must be owned that the procedure outlined in [the\nregulation], on superficial examination, bears little resem\xc2\xad\nblance to the \xe2\x80\x9cperson first making application\xe2\x80\x9d language\nof the statute. But Congress could hardly have supposed\nthat granting $.50 per acre mineral leases can be accom\xc2\xad\nplished as simply as the statutory language seems to indi\xc2\xad\ncate. . . . It is the Secretary\xe2\x80\x99s job to manage the crowd\nwhile complying with the requirement of the Act. [The\nregulation] is the Secretary\xe2\x80\x99s effort in this direction. We\ncannot say that it is an impermissible implementation of\nthe statutory purpose.\n2 The regulation, 43 C.F.R. \xc2\xa7 3112.2-1, provides:\nOn the third Monday of each month, or the first working day thereafter, if the proper\noffice is not officially open on the third Monday, there will be posted on the bulletin\nboard in each proper office a list of the lands in leases which expired, were cancelled,\nwere relinquished in whole or in part, or which terminated, together with a notice\nstating that such lands will become subject to the simultaneous filings of lease offers,\nfrom the time o f such posting until 10 a.m. on the fifth working day thereafter. . . .\n3 43 C.F.R. \xc2\xa7 3112.2\xe2\x80\x941(a)(3).]\n4 43 C.F.R. \xc2\xa73112,2\xe2\x80\x941(a).\n8 43 C.F.R. \xc2\xa7 3 1 12.2-l(aX2).\ne 43 C.F.R. \xc2\xa73112.2-1(4).\n7 See Nagdeman, Land-Office Business; Public Participation in Oil Lease Lotteries Is Mounting Fast,\nBarron\xe2\x80\x99s Feb. 14, 1977, at 11.\n\n559\n\n\x0cId. Other cases have ruled on questions involving the simultaneous\nleasing procedure without discussing its legality.8\nThe question posed here is whether the drawing process constitutes a\nlottery within the scope of 18 U.S.C. \xc2\xa7\xc2\xa7 1302 9 and 1304.10 By these\nenactments, Congress sought to curb both legal and illegal lotteries. See\n4 Cong. Rec. 4061-64 (1876); 120 Cong. Rec. 41,827-29 (1974). We do\nnot believe that the United States and its officers are generally ex\xc2\xad\nempted from the operation of these sections. See generally Nardone v.\nUnited States, 302 U.S. 379, 383-84 (1937); United States v. Arizona, 295\nU.S. 174, 183-84 (1935).11\nBoth the Federal Communications Commission (FCC) and the Postal\nService have received inquiries concerning this issue. In response to\none such inquiry, the Postal Service wrote:\nAs we have noted in response to occasional inquiries\nwhich we have received, we do not believe that Congress\nintended to include that type of activity by a federal\nagency within Section 1302\xe2\x80\x99s prohibitions. However, we\nwould not purport to \xe2\x80\x9cdetermine\xe2\x80\x9d the applicablity of Sec\xc2\xad\ntion 1302, which is a criminal statute administered by the\nDepartment of Justice.12\nThe FCC staff expressed the view that \xc2\xa7 1304 and FCC rules pursuant\nthereto 13 apply to the leasing program. A letter dated May 3, 1979,\n8 See, e.g., Udall v. Tollman, 380 U.S. 1, 3 n. 1 (1965); Ballard E. Spencer Trust, Inc. v. Morton. 544\nF.2d 1067 (10th Cir. 1976); Burg/in v. Morton. 527 F.2d 486 (9th Cir. 1975), cert, denied, 425 U.S. 973\n(1976).\n9 Section 1302 provides:\nW hoever knowingly deposits in the mail, or sends or delivers by mail:\nAny letter, package, postal card, or circular concerning any lottery, gift enter\xc2\xad\nprise, or similar scheme offering prizes dependent in whole or in part upon lot or\nchance; . . .\nAny check, draft, bill, money, postal note, or money order, for the purchase of any\nticket or part thereof, or o f any share or chance in any such lottery, gift enterprise, or\nscheme;\nAny newspaper, circular, pamphlet, or publication of any kind containing any\nadvertisement o f any lottery, gift enterprise, or scheme of any kind offering prizes\ndependent in whole or in part upon lot or chance, or containing any list of the prizes\ndrawn or awarded by means of any such iottery, gift enterprise, or scheme, whether\nsaid list contains any part or all of such prizes; . . .\nShall be fined not more than $1,000 or imprisoned not more than two years, or both;\nand for any subsequent offense shall be imprisoned not more than five years.\n10 Section 1304 provides:\nWhoever broadcasts by means of any radio station for which a license is required by\nany law o f the United States, or whoever, operating any such station, knowingly\npermits the broadcasting of, any advertisement of or information concerning any\nlottery, gift enterprise, or similar scheme, offering prizes dependent in whole or in part\nupon lot or chance, or any list of the prizes drawn or awarded by means of any such\nlottery, gift enterprise, or scheme, whether said list contains any part or all of such\nprizes, shall be fined not more than SI,000 or imprisoned not more than one year, or\nboth.\n11 Generally, if acting in good faith and within the scope of their authority, federal officials are not\nsubject to criminal liability for official acts. See Clifton v. Cox. 549 F.2d 722, 727 (9th Cir. 1977).\n12 Letter from George Davis, Assistant General Counsel, Consumer Protection Office, United\nStates Postal Service, to Herbert Miller, Koteen & Burt (March 5, 1979).\n13 47 C.F.R. \xc2\xa773.1211.\n\n560\n\n\x0cfrom the Chief, Complaints and Compliance Division, Broadcast\nBureau, FCC, to a law firm, quoted from a December 16, 1976. FCC\nstaff letter to an inquirer as follows:\nBased upon precedent developed in the application- of\nthe foregoing statutes [18 U.S.C. \xc2\xa7 1304 and 503(b)(1)] it is\nour opinion that the method used by the Bureau of Land\nManagement constitutes a lottery.14\nThe term \xe2\x80\x9clottery\xe2\x80\x9d is not defined statutorily. The Supreme Court\nidentified the elements of a \xe2\x80\x9clottery\xe2\x80\x9d in the context of \xc2\xa7\xc2\xa7 1302 and 1304\nin FCC v. American Broadcasting Co., 347 U.S. 284 (1954). The Ameri\xc2\xad\ncan Broadcasting Company was broadcasting advertisements for \xe2\x80\x9cgive\xc2\xad\naway\xe2\x80\x9d programs which the FCC determined were lotteries, the broad\xc2\xad\ncasting of which was prohibited by \xc2\xa7 1304 and the FCC rules adopted\npursuant thereto.15 Finding the legislative history of the sections\n\xe2\x80\x9cunilluminating,\xe2\x80\x9d the Court looked for guidance primarily to judicial\nand administrative decisions construing comparable anti-lottery legisla\xc2\xad\ntion. Id. at 291-92. It wrote that there are three essential elements of a\n\xe2\x80\x9clottery, gift enterprise, or similar scheme\xe2\x80\x9d: (1) the distribution of\nprizes; (2) according to chance; (3) for a consideration. Id. at 290. In\nthe \xe2\x80\x9cgive-away\xe2\x80\x9d program considered in American Broadcasting, listeners\nselected on the basis of chance at home or in studio audiences received\nprizes as awards for correctly solving a given problem. Contestants\nwere not required to purchase a product, pay an admission price or\nvisit the promoter\xe2\x80\x99s place of business to be eligible to win. The Court\nstated:\n. . . So varied have been the techniques used by pro\xc2\xad\nmoters to conceal the joint factors of price, chance, and\nconsideration, and so clever have they been in applying\nthese techniques to feigned as well as legitimate business\nactivities, that it has often been difficult to apply the\ndecision of one case to the facts of another.\n. . . The courts have defined consideration in various\nways, but so far as we are aware none has ever held that\na contestant\xe2\x80\x99s listening at home to a radio or television\nprogram satisfies the consideration requirement. . . .\nWe believe that it would be stretching the statute to the\nbreaking point to give it an interpretation that would\nmake such programs a crime. Particularly is this true\nwhen through the years the Post Office Department and\n14 The citation to **503(bXl)\xe2\x80\x9d refers to 47 U .S.C \xc2\xa7 503(b)(lXD), which provides:\n(b) Any person who is determined by the Commission . . . to have\xe2\x80\x94\n*\n\n*\n\n*\n\n*\n\n*\n\n(D) violated any provision of section 1304 . . . of Title 18;\nshall be liable to the United States for a forfeiture penalty.\n15 47 C.F.R. \xc2\xa773.1211.\n\n561\n\n\x0cthe Department of Justice have consistently given the\n. words \xe2\x80\x9clottery, gift enterprise, or similar scheme\xe2\x80\x9d a con\xc2\xad\ntrary administrative interpretation.\nId. at 293-94. This decision was carried another step in Copies Co. v.\nUnited States, 243 F.2d 232 (D.C. Cir. 1957), in which the court ruled\nthat there was no consideration, and thus no lottery, in a television\ngive-away program even though the program did require participants\nto visit stores handling the sponsor\xe2\x80\x99s products.\nIf measured by the three-element definition identified by the Supreme\nCourt in American Broadcasting, it would seem that the SOG program\nis a lottery. There is a distribution of \xe2\x80\x9cprizes.\xe2\x80\x9d \xe2\x80\x9cPrize\xe2\x80\x9d in lottery\ncontexts has been defined as a \xe2\x80\x9cthing of value\xe2\x80\x9d (State v. Wassick, 156\nW. Va. 128, 191 S.E.2d 283 (1972)), and as \xe2\x80\x9csomething offered or\nstriven for in a contest of chance\xe2\x80\x94something which may be won by\nchance\xe2\x80\x9d (State v. Pinball Machines, 404 P.2d 923, 926 (Alaska 1965)). A\nlease awarded by the drawing system grants the lessee the exclusive\nright to explore and drill for, extract, and dispose of oil and gas\ndeposits (except helium gas) that may be found in the leased lands.\nThese leases are issued for a 10-year term and so long thereafter as oil\nor gas is produced in paying quantities. The lessee is required to pay an\nannual rental fee, but the potential value of the lease in most cases far\nexceeds the fee paid.16 Although wildcat lands may have no oil or gas\ndeposits, the leases are \xe2\x80\x9cprizes\xe2\x80\x9d in that they provide the lessees an\nopportunity to realize substantial profits by selling the leases to a\ncompany capable of conducting the drilling operations, or by them\xc2\xad\nselves conduct drilling operations with the hope of reaping even greater\nprofits. It is suggested that the prize element is lacking because the\nSecretary is not bound to grant the lease to the person whose card is\nfirst drawn. We fail to see how this affects the presence of the prize\nelement, in that the program is based on the assumption that the lease\nwill be awarded. The regulations provide that a \xe2\x80\x9clease will be issued to\nthe first drawee qualified to receive a lease upon payment of the first\nyear\xe2\x80\x99s rental.\xe2\x80\x9d 43 C.F.R. \xc2\xa7 3112.4-1 (emphasis added).\nThe second element is \xe2\x80\x9cchance.\xe2\x80\x9d Because the \xe2\x80\x9cwinner\xe2\x80\x9d is determined\nby a public drawing, chance undeniably is part of the program.\nThe final element is consideration. Standard rules of contract law\nhold that consideration is either benefit to the promisor or detriment to\nthe promisee. Corbin on Contracts, \xc2\xa7 121 (1963). Money paid for the\nopportunity to participate, of course, generally would qualify as consid\xc2\xad\neration. It could be argued that the term \xe2\x80\x9cconsideration\xe2\x80\x9d as applied to a\nlottery requires that some financial benefit be sought by the operator of\n16\nIn one reported case, a retired stockbroker sold his lease to an oil company for a net profit of\napproximately $142,000. A Monthly Oil Lease Raffle A t $10.00 A Shot. N.Y. Times, January 1, 1978,\n\xc2\xa7 3, at 3, col. 1. In another, a successful applicant netted approximately $69,000, plus a 4 percent share\nof production payments should oil or gas be discovered on the land. Nagdeman, supra, note 7.\n\n562\n\n\x0cthe lottery. The \xe2\x80\x9cclassic\xe2\x80\x9d lottery involves a scheme in which tickets are\nsold by persons who look to the advance cash payments as a source of\nprofit. According to the Department of the Interior, the filing fee is\ndesigned to cover only administrative costs; it does not go into a pool\nfrom which prizes are paid. In our opinion, however, this interpretation\nimpermissibly stretches the term \xe2\x80\x9cconsideration.\xe2\x80\x9d Consideration is not\ndetermined by examining the purposes for which the money is col\xc2\xad\nlected. See generally Dabbs v. International Minerals & Chemical Corp.,\n339 F. Supp. 654, 664 (N.D. Miss. 1972), a ffd , 474 F.2d 1344 (1973),\nAM P Inc., v. United States, 389 F.2d 448, 454 (Ct. Cl.), cert, denied, 391\nU.S. 964 (1968).\nAlthough the SOG program appears to satisfy the three-element\ndefinition of \xe2\x80\x9clottery\xe2\x80\x9d set forth in American Broadcasting, we neverthe\xc2\xad\nless believe that \xc2\xa7\xc2\xa7 1302 and 1304 should not be construed to cover the\nSOG program. The question is difficult, however, and any conclusion\ncannot be free from doubt. We rest our conclusion on the legislative\nhistory of the statutes, judicial approval of this and similar programs,\nand long-standing congressional acquiescence.\nWe note at the outset that the anti-lottery sections are penal statutes\nand therefore must be strictly construed. United States v. Resnick, 299\nU.S. 207, 209 (1936); United States v. Hartwell, 6 Wall. 385, 395 (1867).\nGeneral descriptions of classes of persons made subject to a criminal\nstatute should be limited where literal application of the statute would\nlead to extreme results, and where the legislative purpose would be\nsatisfied by a more limited application. United States v. Katz, 271 U.S.\n354, 362 (1926); United States v. Palmer, 3 Wheat. 610, 631 (1818). See\nalso, FMC v. Seatrain Lines, Inc., 411 U.S. 726, 731-32 (1973). In United\nStates ex rel. Marcus v. Hess, 317 U.S. 537, 542 (1943), the Court\nemphasized that criminal statutes must be given \xe2\x80\x9ccareful scrutiny lest\nthose be brought within its reach who are not clearly included. . . .\xe2\x80\x9d\nAfter carefully reviewing the anti-lottery statutes, we conclude, on\nbalance, that the statutes do not clearly include \xe2\x80\x9clotteries\xe2\x80\x9d structured\nby government officials for the sole purpose of awarding public leases,\nand that the legislative purpose of the statutes is satisfied by this\ninterpretation.\nThe legislative history of the first federal anti-lottery statutes, albeit\nscant, reveals congressional intent to suppress often fraudulent schemes\nto make money by means of lotteries. The first statute prohibiting use\nof the mails to promote lotteries was passed in 1872. Act of June 8,\n1872, 17 Stat. 302. It read:\nThat it shall not be lawful to convey by mail, nor to\ndeposit in a post-office to be sent by mail, any letters or\ncirculars concerning illegal lotteries, so-called gift-concerts, or other similar enterprises offering prizes, or con\xc2\xad\ncerning schemes devised and intended to deceive and\n563\n\n\x0cdefraud the public for the purpose of obtaining money\nunder false pretences, and a penalty of not more than five\nhundred dollars nor less than one hundred dollars, with\ncosts of prosecution, is hereby imposed upon conviction,\nin any Federal court, of the violation of this section.\nIn 1876, this statute was amended by deletion of the word \xe2\x80\x9cillegal\xe2\x80\x9d\nbefore \xe2\x80\x9clotteries,\xe2\x80\x9d thus including even those lotteries declared legal\nunder state law. Act of July 12, 1876, 19 Stat. 90. It is clear from the\nSenate debate of the amendment that the intent was to limit use of the\nmail for all lottery purposes. 4 Cong. Rec. 4262-64 (1876). One Senator\npointed out that a lottery \xe2\x80\x9cfosters and encourages gambling and vice\n. . . ruining many of the poorer portions of the community.\xe2\x80\x9d Id. at\n4262-63. Other Senators opined that lotteries were \xe2\x80\x9cdemoralizing\xe2\x80\x9d and\n\xe2\x80\x9cimmoral.\xe2\x80\x9d Id .17 A definition of the term \xe2\x80\x9clottery\xe2\x80\x9d appears neither in\nthe statute nor in the legislative history, but it is apparent from the\ncontent of the debate that the type of lottery at which the statute was\naimed was a lottery designed to enrich its promoters at the expense of\nthe gambling public.18 You have informed us that the SOG program is\ndesigned not to enrich federal coffers, but to distribute the leases fairly\nand efficiently. In addition, the SOG program differs from a traditional\nlottery in that an individual may make only one application per lease,\nthus minimizing the risk of \xe2\x80\x9cencouraging gambling.\xe2\x80\x9d\nAs noted above, the program has been judicially approved as a\nproper administrative interpretation of the enabling statute, 30 U.S.C.\n\xc2\xa7 226(c). Thor- Westcliffe Development, Inc. v. Udall, supra.19 Other\ncourts have approved selection by lot when the number of qualified\napplicants for government licenses or othef benefits far exceeds the\navailable number of such perquisites. See Holmes v. New York City\nHousing Authority, 398 F.2d 262, 265 (2d Cir. 1968) (admission of\ntenants to low-rent public housing projects); Hornsby v. Allen, 330 F.2d\n55, 56 (5th Cir. 1964) (distribution o f liquor licenses).20 In Hornsby, the\ncourt held: \xe2\x80\x9cIf there are more applicants than licenses and all applicants\n17 The prohibition against broadcasting information concerning lotteries was added by the Commu\xc2\xad\nnications Act of 1934, 48 Stat. 1088. The brief references to this section in the committee reports\nprovide no guidance as to the scope of the section. See S. Rep. No. 781, 73d Cong., 2d Sess. 8 (1934);\nH.R. Rep. No. 1918, 73d Cong., 2d Sess. 49 (1934).\n18 In a different context, approximately twenty years after enactment of this statute, the Attorney\nGeneral-defined a \xe2\x80\x9clottery\xe2\x80\x9d as \xe2\x80\x9can event which is merely contrived for the occasion.\xe2\x80\x9d 21 Op. A tt\xe2\x80\x99y\nGen. 313, 317 (1896). The question arose in the context of a Postmaster General\'s request for the\nAttorney General\xe2\x80\x99s opinion whether certain schemes of bond and investment companies were within\nthe scope of the statute. The Attorney General concluded that the schemes were in the nature o f the\nlottery covered by the statute, a predecessor of \xc2\xa7\xc2\xa7 1302 and 1304. The SOG program, on the other\nhand, is not merely contrived for the occasion. It is a means of awarding the leases in a nondiscriminatory manner.\n19 Application of the penal anti-lottery statutes to the judicially approved and presumably statuto\xc2\xad\nrily authorized program would contravene the general rule that, where possible, statutes are to be\nconstrued harmoniously. See generally Hyrup v. Kleppe, 406 F. Supp. 214, 217 (D. Colo. 1976);\nSutherland, Statutory Construction \xc2\xa753.01 (4th Ed. 1973 and Supp. 1979).\n20 In neither Holmes nor Hornsby was there any indication that the application had to be accompa\xc2\xad\nnied by a filing fee.\n\n564\n\n\x0care equally qualified to serve the general welfare, perhaps an unlikely\nevent, then selection among them by lot or on the basis o f the chrono\xc2\xad\nlogical order of application would meet constitutional requirements.\xe2\x80\x9d\nId. In none of these cases was the program in question challenged as a\nlottery within the meaning of \xc2\xa7\xc2\xa7 1302 and 1304. Nonetheless, judicial\napproval of these programs provides persuasive authority for the posi\xc2\xad\ntion that, absent an indication to the contrary, selection by lot of\ngovernment grantees or licensees should not be considered a lottery\nwithin the scope of those sections.\nCongressional attention has focused generally on the oil and gas\nsimultaneous leasing program at various times since its inception in\nI960.21 Although the SOG program has been labeled by some Mem\xc2\xad\nbers of Congress as a \xe2\x80\x9clottery\xe2\x80\x9d or \xe2\x80\x9cgamble,\xe2\x80\x9d 22 it does not appear that\nattention has focused specifically on the issue of the legality of the\nlottery. Despite repeated congressional review of the program, how\xc2\xad\never, the structure of the system remains unchanged. Although legisla\xc2\xad\ntive inaction alone generally is insufficient evidence of congressional\nratification, tacit acceptance of an administrative interpretation is a\nfactor that must be considered when there is evidence that the adminis\xc2\xad\ntrative interpretation has been called to the attention of Congress. See\nBlau v. Lehman, 368 U.S. 403, 412-13 (1962); United States v. Midwest\nOil Co., 236 U.S. 459, 481; Sutherland, Statutory Construction \xc2\xa749.10\n(1973 and Supp. 1978).\nIn sum, we conclude that \xc2\xa7\xc2\xa7 1302 and 1304 should not be construed\nto prohibit operation of the program. We again caution, however, that\nthe issue is a close one and that persuasive arguments can reasonably be\nmade on the other side. We note that the SOG program, as it now is\nadministered, is not required by the enabling statute and that it may\nindirectly engender the type of activity at which the anti-lottery laws\nwere aimed. Under these circumstances, you may wish to consider\nrequesting specific congressional authorization for the program.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n21 See. e.g.. Bureau o f Land Management Quadriennial Authorizations For Fiscal Years 1979-82:\nHearings on S. 2234 Before the Senate Comm on Energy and Natural Resources, 95th Cong., 2d Sess.\n150-52 (1978); Bureau o f Land Management Budget Request: Hearings Before the Interior Subcomm. o f\nthe House Appropriations Comm.. 95th Cong., 2d Sess. 533-40 (1978); Mineral Development on Federal\nLands: Hearings on S. 1040 Before the Subcomm. on Minerals, Material, and Fuels o f the Senate Comm,\non Interior and Insular Affairs, 93d Cong., 2d Sess. 2 (1974); Federal Leasing and Disposal Policies:\nHearings on S R . 45 Before the Senate Comm, on Interior and Insular Affairs, 92d Cong., 2d Sess. 23, 86\n(1972); Establishment o f a National Mining and Minerals Policy: Hearings on S. 719 Before the Subcomm.\non Mines and Mining o f the House Comm, on Interior and Insular Affairs, 91st Cong., 2d Sess. 93 (1970);\nReinstatement o f Oil and Gas Leases: Hearings on H.R. 7915 and H.R. 7940 Before the Subcomm. on\nMines and Mining o f the House Comm, on Interior and Insular Affairs, 90th Cong., 1st Sess. 27 (1967).\n22 See, e.g.. Department o f the Interior and Related Agencies Appropriations for 1979, Part 6, Hearings\nbefore the Subcomm. on Interior Appropriations o f the House Comm, on Appropriations, 95th Cong., 2d\nSess. 533-40(1978).\n\n565\n\n\x0c'


b"Internal Revenue Service Document Request to Department of\nDefense\nThe Defense Contract Audit Agency is not under a legal obligation, imposed by 26 U.S.C. \xc2\xa7 7602(a),\nto comply with an Internal Revenue Service request for documents in its possession.\n\nSeptember 1, 1999\nM e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l\nD epa rtm en t o f th e T rea su ry\nand\n\nT he G eneral C ounsel\nD e pa r tm en t o f D efen se\n\nThis opinion resolves a dispute between the Department of the Treasury\n(\xe2\x80\x9c Treasury\xe2\x80\x9d ) and the Department of Defense (\xe2\x80\x9c DOD\xe2\x80\x9d ) concerning whether the\nDefense Contract Audit Agency ( \xe2\x80\x9c DCAA\xe2\x80\x9d ) is under a legal obligation, imposed\nby 26 U.S.C. \xc2\xa7 7602(a) (1994), to comply with an Internal Revenue Service\n(\xe2\x80\x9c IRS\xe2\x80\x9d ) request for documents in its possession.1 We conclude that DCAA is\nnot under such a legal obligation.\nSection 7602(a) reads as follows:\n\n(a) Authority to summon, etc. \xe2\x80\x94 For the purpose of ascertaining\nthe correctness of any return, making a return where none has been\nmade, determining the liability of any person for any internal rev\xc2\xad\nenue tax or the liability at law or in equity of any transferee or\nfiduciary of any person in respect of any internal revenue tax, or\ncollecting any such liability, the Secretary is authorized \xe2\x80\x94\n(1) To examine any books, papers, records, or other data which\nmay be relevant or material to such inquiry;\n(2) To summon the person liable for tax or required to perform\nthe act, or any officer or employee of such person, or any person\nhaving possession, custody, or care of books of account containing\nentries relating to the business of the person liable for tax or\nrequired to perform the act, or any other person the Secretary may\n'T reasury first expressed its views on this dispute in its letter requesting our opinion See Letter for Dawn E.\nJohnsen, Acting Assistant Attorney General, Office o f Legal Counsel, from Edward S Knight, General Counsel,\nDepartment o f the Treasury (May 19, 1997) DOD then provided us with its views, see Letter for Dawn E Johnsen\nfrom Judith A. Miller, General Counsel, Department of Defense (July 9, 1997), and in response to our request,\nTreasury submitted additional views, see Letter for Paul P. Colbom, Special Counsel, Office of Legal Counsel,\nfrom Edward S Knight (Aug 21, 1997) ( \xe2\x80\x9c Treasury Reply\xe2\x80\x9d ) We subsequently received views from the Tax Division\nof the Department of Justice\n\n187\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ndeem proper, to appear before the Secretary at a time and place\nnamed in the summons and to produce such books, papers, records,\nor other data, and to give such testimony, under oath, as may be\nrelevant or material to such inquiry; and\n(3)\nTo take such testimony of the person concerned, under oath,\nas may be relevant or material to such inquiry.\n26 U.S.C. \xc2\xa7 7602(a).\nThere is no question that a summons issued pursuant to the authority granted\nin \xc2\xa7 7602(a)(2) imposes a legal obligation on the recipient.2 Treasury does not\nrely on that second subsection o f \xc2\xa7 7602(a), however, see Treasury Reply at 2,3\nbut instead relies on the first subsection, arguing that \xe2\x80\x9c section 7602(a)(1) gives\nthe Secretary broad discretionary authority to examine any relevant documents \xe2\x80\x94\nincluding all relevant documents in the possession of the Executive Branch.\nImplicit in that authority to examine is the correlative obligation on the part of\nExecutive Branch agencies to comply.\xe2\x80\x9d Id. Although the focus of Treasury\xe2\x80\x99s argu\xc2\xad\nment is that subsection (a)(1) imposes a legal obligation on federal agencies, the\nwords o f the provision are not susceptible to a reading that its scope is limited\nto federal agencies. Thus, this argument would suggest that \xc2\xa7 7602(a)(1), standing\nalone, imposes a legal obligation on both federal agencies and any other person\nor entity in possession of records to provide the records to the IRS upon request.\nWe observe as a threshold matter that the materials Treasury has submitted\nto us indicate that, in practice, the IRS does not proceed as if subsection (a)(1)\nitself imposes a legal obligation on parties holding documents sought by the IRS.\nThus, the IRS does not send entities possessing records a letter stating that they\nare under a legal obligation to produce the documents. To the contrary, the IRS\nrequests the documents, and if it does not obtain voluntary compliance, it issues\na summons. See Informal Brief for the Appellants at 10, Peddie v. United States,\n131 F.3d 135 (4th Cir. 1997) (No. 97-1252) (\xe2\x80\x9c The IRS\xe2\x80\x99s procedures for obtaining\n. . . information call for the use of informal efforts at voluntary cooperation in\nthe first instance. If such records are not obtained voluntarily, the Service may\ncompel their production by issuing an administrative summons. See I.R.M.\n4022.3(l)(a)(1987).\xe2\x80\x9d ). That practice is reflected in the argument that the IRS made\nin N eece v. IRS, 922 F.2d 573, 574 (10th Cir. 1990), where it contended that\n\xc2\xa7 7602(a)(1) \xe2\x80\x9c authorizes the IRS to review bank documents informally if the bank\nvoluntarily agrees to cooperate with the IRS.\xe2\x80\x9d\n2The legal obligation imposed by the summons is judicially enforceable. See 26 U.S.C. \xc2\xa77604 (1994); 26 U.S C A\n\xc2\xa77609 (W est 1989 & Supp 1999)\n3 We therefore do not consider in this opinion whether an IRS summons may be used to compel production of\nrecords from another federal agency, w hether by issuance o f a summons to the agency or to an individual serving\nas a custodian o f records.\n\n188\n\n\x0cInternal Revenue Service Document Request to Department o f Defense\n\nMoreover, even apart from this ERS practice, we do not find persuasive Treas\xc2\xad\nury\xe2\x80\x99s argument that \xc2\xa7 7602(a)(1) imposes a legal obligation. Both statutory text\nand case law establish that a legal obligation arises under \xc2\xa7 7602(a) only when\nthe IRS issues a summons. Under the plain meaning of \xc2\xa7 7602(a), subsection\n(a)(2) \xe2\x80\x94 not subsection (a)(1) \xe2\x80\x94 must be understood as the subsection that\naddresses the legal obligation of persons and entities to provide records to the\nIRS: it is subsection (a)(2) that gives the power \xe2\x80\x9c [t]o summon.\xe2\x80\x9d Indeed, Treas\xc2\xad\nury\xe2\x80\x99s interpretation of subsection (a)(1) would render portions of subsection (a)(2)\nsuperfluous. A summons to produce \xe2\x80\x9c books, papers, records or other data\xe2\x80\x9d under\nthe latter provision would add nothing as a legal matter if the former provision\nwere understood to impose a legal obligation. It is also significant that Congress\nprovided a comprehensive scheme for judicial enforcement of IRS summonses.\nSee 26 U.S.C. \xc2\xa7 7604 (procedures for judicial issuance of orders enforcing obedi\xc2\xad\nence to IRS summonses and punishing persons for default or disobedience with\nrespect to such summonses); 26 U.S.C.A. \xc2\xa77609 (special procedures for sum\xc2\xad\nmonses issued to party other than the taxpayer). In contrast, neither \xc2\xa77604 nor\n\xc2\xa77609 \xe2\x80\x94 nor any other statutory provision \xe2\x80\x94 addresses judicial enforcement of\n\xc2\xa7 7602(a)(1).\nThe Supreme Court has noted that the legal obligation under \xc2\xa7 7602 derives\nfrom the IRS\xe2\x80\x99s issuance of a summons under subsection (a)(2):\nThrough \xc2\xa77602, Congress has imposed a duty on persons pos\xc2\xad\nsessing information \xe2\x80\x9c relevant or material\xe2\x80\x9d to an investigation of\nfederal tax liability to produce that information at the request of\nthe Secretary or his delegate. That duty to provide relevant informa\xc2\xad\ntion expressly obligates the person summoned to produce documen\xc2\xad\ntary evidence and to \xe2\x80\x9c appear\xe2\x80\x9d and \xe2\x80\x9c give testimony.\xe2\x80\x9d Imposition\nof such an evidentiary obligation is, of course, not a novel innova\xc2\xad\ntion attributable to \xc2\xa77602. The common law has been the source\nof a comparable evidentiary obligation for centuries. In determining\nthe scope of the obligation Congress intended to impose by use\nof this language, we have previously analogized, as an interpretive\nguide, to the common-law duties attaching to the issuance of a testi\xc2\xad\nmonial summons.\nUnited States v. Euge, 444 U.S. 707, 712 (1980) (emphasis added).\nThe Supreme Court thus recognized in Euge that it is a summons that imposes\n\na legal obligation on parties to provide documents or testimony. Subsection (a)(2)\nis the part of \xc2\xa77602 that pertains to the summons authority. Subsection (a)(1)\nis separate, providing only that \xe2\x80\x9c the Secretary is authorized . . . [t]o examine\nany books, papers, records, or other data which may be relevant or material to\nsuch inquiry.\xe2\x80\x9d By its terms, that subsection is not directed to persons or entities\n\n189\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\npossessing records and it does not address or affect the legal obligation of persons\nor entities to provide records to the IRS. It is directed only to the IRS, serving\nmerely to make explicit what may well be implicit in more general authorization\nprovisions of the Internal Revenue Code: that, in connection with its audit and\nrelated responsibilities, see 26 U.S.C. \xc2\xa77601 (1994), the IRS is authorized to\nexamine relevant records. See N eece v. IRS, 922 F.2d at 576 (\xe2\x80\x9c Literally, section\n7602(a)(1) only authorizes the IRS to examine books and records. It gives no\nguidance concerning from whom the IRS can obtain these records and books or\nthe \xe2\x80\x98procedures\xe2\x80\x99 which the IRS m ust follow in obtaining them.\xe2\x80\x9d ).\nThe courts have repeatedly characterized IRS efforts under subsection (a)(1)\nas informal requests seeking voluntary cooperation, which, of course, is incon\xc2\xad\nsistent with an understanding that the holders of the information have a legal\nobligation to comply. For example, one court has explained that \xe2\x80\x9c [s]ection 7602\nprovides three separate means o f [IRS] inquiry. Section 7602(a)(1) provides fo r\nan informal, noncompulsory means o f inquiry. If an informal inquiry proves inad\xc2\xad\nequate, Sections 7602(a)(2) and 7602(a)(3) provide mechanisms for the formal\ncompulsion of the production o f documents and testimony.\xe2\x80\x9d Speck v. United\nStates, 59 F.3d 106, 108 (9th Cir. 1995) (emphasis added) (rejecting argument\nthat subsection (a)(2) describes the only way the IRS may obtain information and\nthat subsection (a)(1) serves only to indicate IRS has authority to examine records\nafter it obtains them pursuant to (a)(2)). A ccord United States v. McLaughlin,\n126 F.3d 130, 137 (3rd Cir. 1997) (\xe2\x80\x9c Section 7602(a) permits the government\nto conduct a formal investigation and issue summonses or to proceed informally.\nIn this case, the government chose to proceed informally, and [the taxpayer\xe2\x80\x99s]\nformer accountant cooperated with the investigation.\xe2\x80\x9d ), cert, denied, 524 U.S. 951\n(1998); N eece v. IRS, 922 F.2d at 578 (\xe2\x80\x9c [T]he financial institution voluntarily\n[chose] to allow the IRS, pursuant to 26 U.S.C. \xc2\xa7 7602(a)(1), to examine financial\nrecords pertaining to a taxpayer.\xe2\x80\x9d ).4\nThe critical distinction between the voluntariness of a response to a subsection\n(a)(1) request and the legal obligation underlying a response to a subsection (a)(2)\nsummons is illustrated by the decision in Johnson v. Treasury D e p \xe2\x80\x99t, 917 F. Supp.\n813 (N.D. Ga. 1995). In that case, a taxpayer sought injunctive relief to prevent\nthe IRS from procuring certain information about the taxpayer\xe2\x80\x99s clients. The IRS\nhad requested the information from the taxpayer, but the court had no information\n\xe2\x80\x9c indicating] that the IRS ha[d] issued a summons to plaintiff.\xe2\x80\x9d Id. at 819. The\ncourt dismissed the request for relief on ripeness grounds, stating that \xe2\x80\x9c [i]t is\nonly when the IRS issues a summons and seeks to have a court enforce its terms,\n4 Courts have disagreed about whether the LRS can, pursuant to \xc2\xa7 7602(a)(1), review customer records voluntarily\nproduced by financial institutions, compare N eece, 922 F 2 d at 577-78 (review unlawful) with Raikos v. Bloomfield\nState Bank, 703 F Supp. 1365, 1370 (S.D. Ind 1989) (review lawful), but this difference reflects disagreement\nabout w hether the Right to Financial Privacy Act, 12 U S.C.A. \xc2\xa7\xc2\xa73401-22 (W est 1989 & Supp. 1999), limits IRS\naccess under \xc2\xa7 7 6 0 2 (a)(l) It does not suggest disagreement about whether \xc2\xa77602(a)(l) imposes a legal obligation\nto produce records.\n\n190\n\n\x0cInternal Revenue Service Document Request to Department o f Defense\n\nthat plaintiff may raise his objections. Thus, until a summons has been issued,\nthe Court has no basis for entertaining plaintiffs objections to the IRS\xe2\x80\x99 request\nfor information.\xe2\x80\x9d Id. at 820. If the court had viewed subsection (a)(1) as imposing\na legal obligation, a legal issue ripe for consideration would have been presented.\nWe emphasize that the only conclusion we reach in this opinion is that 26\nU.S.C. \xc2\xa7 7602(a)(1) does not impose on DCAA or other federal agencies (or any\nother person or entity) a legal obligation to provide the IRS with documents that\nit requests.5 This does not mean, of course, that the IRS is precluded from\nrequesting access to documents in the possession of federal agencies. The IRS\nunquestionably has such authority.6 The nature and scope of its access, however,\nis a matter to be resolved within the executive branch. The significance of our\nopinion is that the executive branch deliberations concerning such access may\nnot be premised on an understanding that federal agencies are under a legal obliga\xc2\xad\ntion under \xc2\xa7 7602(a)(1) to provide access.\nTreasury has expressed its concern that the interpretation of \xc2\xa7 7602(a)(1) that\nwe adopt in this opinion \xe2\x80\x9c would allow the DCAA \xe2\x80\x94 and by extension all other\ngovernment agencies \xe2\x80\x94 to block [Treasury\xe2\x80\x99s] statutory examination authority\nsolely on policy objections.\xe2\x80\x9d Treasury Reply at 4. Our opinion should not be\nread as giving any agency the unilateral authority to preclude the IRS from having\naccess to records in its possession. It should be remembered that the President\nhas the constitutional responsibility to \xe2\x80\x9c take Care that the Laws be faithfully\nexecuted,\xe2\x80\x9d U.S. Const, art. II, \xc2\xa73, and the subordinate executive branch officials\nwho in the first instance are responsible for executing the various laws should\nwork together cooperatively so as not to frustrate the President\xe2\x80\x99s ability to dis\xc2\xad\ncharge his overarching supervisory responsibility. Whether the IRS will receive\naccess in a particular situation is a matter to be resolved under applicable execu\xc2\xad\ntive branch procedures.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n5 As noted above, supra note 3, this opinion does not reach the question whether the IRS could obtain records\nfrom a federal agency through use of its summons authority.\n6 O f course, other federal law may circumscribe the circumstances in which a federal agency is authonzed to\nshare particular documents with the IRS. Any such limitations, however, are likely to turn on unique circumstances\nand thus are not addressed in this opinion\n\n191\n\n\x0c"


b'Authority of the Equal Employment Opportunity\nCommission to Impose Monetary Sanctions Against\nFederal Agencies for Failure to Comply With Orders\nIssued by EEOC Administrative Judges\nThe doctrine of sovereign immunity precludes the Equal Employment Opportunity Commission from\nimposing monetary sanctions against federal agencies for violations of orders of EEOC administrative judges.\n\nJanuary 6, 2003\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF THE NAVY\nAND\n\nACTING DEPUTY GENERAL COUNSEL\nEQUAL EMPLOYMENT OPPORTUNITY COMMISSION\nThe Department of the Navy (\xe2\x80\x9cthe Navy\xe2\x80\x9d) has asked our opinion as to whether\nthe Equal Employment Opportunity Commission (\xe2\x80\x9cEEOC\xe2\x80\x9d) has authority to\nimpose attorney\xe2\x80\x99s fees against federal agencies as a sanction for failure to comply\nwith the orders of EEOC administrative judges (\xe2\x80\x9cAJs\xe2\x80\x9d) in connection with\nhearings before AJs. In the past, for example, AJs have assessed such sanctions\nagainst federal agencies for failures to comply with discovery orders. See Letter\nfor Randolph Moss, Assistant Attorney General, Office of Legal Counsel, from\nEllen J. Vargas, Legal Counsel, United States Equal Employment Opportunity\nCommission at 3 n.4 (Jan. 9, 2001) (\xe2\x80\x9cEEOC Letter\xe2\x80\x9d). EEOC, of course, maintains\nthat it may impose such sanctions. We agree with the Navy that, pursuant to basic\nprinciples of sovereign immunity, EEOC lacks authority to impose monetary\nsanctions (such as attorney\xe2\x80\x99s fees) on federal agencies for failure to comply with\nAJ orders.\nI. Jurisdiction\nBefore reaching the merits, we address EEOC\xe2\x80\x99s concerns that this matter is not\nappropriate for resolution by the Office of Legal Counsel. See EEOC Letter at 1.\nWe agree with the Navy that it is entitled to our opinion on this issue pursuant to\nExecutive Order 12146, 3 C.F.R. \xc2\xa7 409 (1979) (\xe2\x80\x9cEO 12146\xe2\x80\x9d).1 As presented to us\nby the Navy, this is a dispute between two executive agencies on a question of law\nand therefore comes within the terms of section 1-401 of EO 12146, among other\nprovisions. The fact that one agency (here, EEOC) sits in an adjudicatory posture\n\n1\nEO 12146 authorizes the Attorney General to resolve certain legal disputes between agencies. The\nAttorney General has delegated that function to this Office. See 28 C.F.R. \xc2\xa7 0.25 (2002).\n\n24\n\n\x0cAuthority of EEOC to Impose Monetary Sanctions Against Federal Agencies\n\nwith respect to an agency requesting our opinion (here, the Navy) does not alter\nthis conclusion, and we have previously resolved such disputes. See, e.g., Authority of the General Services Board of Contract Appeals to Order Reimbursement of\nthe Permanent Judgment Fund for Awards of Bid Protest Costs, 14 Op. O.L.C.\n111 (1990).\nFurther, neither the fact that EEOC has authority to enforce Title VII in the\nfederal workplace nor the fact that agencies \xe2\x80\x9cshall comply\xe2\x80\x9d with EEOC rules and\norders, see 42 U.S.C. \xc2\xa7 2000e-16(b) (2000), divests us of authority to issue this\nopinion. The Navy contends that EEOC has exceeded its statutory authority. If that\nis the case\xe2\x80\x94and we conclude that it is\xe2\x80\x94EEOC has no power to impose monetary\nsanctions on federal agencies for failure to comply with AJ orders. At its base, the\npresent dispute is whether EEOC has exceeded its own jurisdiction; the dispute is\ntherefore entirely appropriate for resolution by this Office. See EO 12146, \xc2\xa7 1-401\n(listing questions of agency jurisdiction among the issues for resolution under that\nsection); see also Memorandum for Henry L. Solano, Solicitor, Department of\nLabor, and Leigh A. Bradley, General Counsel, Department of Veterans Affairs,\nfrom Randolph D. Moss, Assistant Attorney General, Office of Legal Counsel, Re:\nThe Effect of Veterans\xe2\x80\x99 Health Administration Nurses\xe2\x80\x99 Additional Pay for Sunday\nand Night Duty on Calculation of Workers\xe2\x80\x99 Compensation Benefits (Jan. 19,\n2001).\nII. Sovereign Immunity\nBecause the resolution of this dispute hinges on the doctrine of sovereign immunity, we begin by explaining its basic principles. Most fundamentally, the\nfederal government may not be sued without its consent, see, e.g., FDIC v. Meyer,\n510 U.S. 471, 475 (1994); see also Cohens v. Virginia, 19 U.S. (6 Wheat.) 264,\n411\xe2\x80\x9312 (1821). The absence of consent bars proceeding against the government.\nSee Meyer, 510 U.S. at 475. The authority to consent to suit\xe2\x80\x94to waive sovereign\nimmunity\xe2\x80\x94does not rest with the Executive Branch, see, e.g., United States v.\nShaw, 309 U.S. 495, 500\xe2\x80\x9301 (1940) (explaining \xe2\x80\x9cthat without specific statutory\nconsent, no suit may be brought against the United States\xe2\x80\x9d; \xe2\x80\x9c[n]o officer by his\naction can confer jurisdiction\xe2\x80\x9d) (emphases added); Munro v. United States, 303\nU.S. 36, 41 (1938); United States v. Horn, 29 F.3d 754, 761 (1st Cir. 1994), or\nwith the courts, see, e.g., Lane v. Pena, 518 U.S. 187, 192 (1996); Irwin v. Dep\xe2\x80\x99t\nof Veterans Affairs, 498 U.S. 89, 95 (1990); Shaw, 309 U.S. at 502, but solely with\nCongress.\nAccordingly, waivers of the \xe2\x80\x9cFederal Government\xe2\x80\x99s sovereign immunity must\nbe unequivocally expressed in statutory text.\xe2\x80\x9d Lane, 518 U.S. at 192 (emphasis\nadded); see also United States v. Nordic Village, 503 U.S. 30, 37 (1992). Furthermore, waivers must be \xe2\x80\x9cstrictly construed, in terms of [their] scope, in favor of the\nsovereign.\xe2\x80\x9d Lane, 518 U.S. at 192. It follows that waivers of immunity with\nrespect to one type of relief do not thereby waive immunity with respect to other\n\n25\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nforms of relief. Thus, although the Clean Water Act and the Resource Conservation and Recovery Act waived the immunity of federal agencies with respect to\n\xe2\x80\x9ccoercive fines\xe2\x80\x9d designed to insure compliance with the statutes, those statutes did\nnot render such agencies liable for \xe2\x80\x9cpunitive fines\xe2\x80\x9d for past violations. See Dep\xe2\x80\x99t\nof Energy v. Ohio, 503 U.S. 607, 614\xe2\x80\x9320 (1992) (concluding that the statutes do\nnot contain a \xe2\x80\x9cclear and unequivocal waiver of anything more\xe2\x80\x9d than the coercive\nfines and declining to infer \xe2\x80\x9ca broader reading\xe2\x80\x9d). And statutes that clearly waive\nthe government\xe2\x80\x99s immunity from attorney\xe2\x80\x99s fees do not thereby waive immunity\nfrom interest on those fees, even if private parties would be liable for interest. See,\ne.g., Library of Cong. v. Shaw, 478 U.S. 310, 317\xe2\x80\x9319 (1986). Instead, the government\xe2\x80\x99s sovereign immunity must be clearly and specifically waived with respect to\neach form of relief claimed. See id. at 314, 321; see also Nordic Village, 503 U.S.\nat 34 (recognizing that a provision of the bankruptcy code waived sovereign\nimmunity from monetary claims in two settings but declining to find such a waiver\nin a third setting); cf. Dep\xe2\x80\x99t of Army v. Blue Fox, Inc., 525 U.S. 255 (1999).2\nThe presumption against waivers of sovereign immunity is especially strong in\nthe context of monetary claims; it \xe2\x80\x9coperates on the broadest possible level\xe2\x80\x9d and\n\xe2\x80\x9cstands as an obstacle to virtually all direct assaults against the public fisc, save\nonly those incursions from time to time authorized by Congress,\xe2\x80\x9d Horn, 29 F.3d at\n761 (emphasis added). \xe2\x80\x9cTo sustain a claim that the Government is liable for\nawards of monetary damages, the waiver of sovereign immunity must extend\nunambiguously to such monetary claims.\xe2\x80\x9d Lane, 518 U.S. at 192 (citing Nordic\nVillage, 503 U.S. at 34). As we have previously explained, a statutory provision\ndoes not waive sovereign immunity for monetary claims if there exists any\nplausible reading that would not authorize monetary relief. See Availability of\n\n2\n\nOn close examination, several cases that may appear to be narrow exceptions to the traditional\nsovereign immunity canons are actually consistent with them. The Court, for example, has held that\nequitable tolling generally applies to suits against the government for which Congress has waived\nimmunity. See Irwin, 498 U.S. at 95\xe2\x80\x9396. To reach this result, however, the Court first concluded that\napplication of equitable tolling \xe2\x80\x9camounts to little, if any, broadening of the congressional waiver,\xe2\x80\x9d\nbecause \xe2\x80\x9c[f]ederal courts have typically extended equitable relief only sparingly,\xe2\x80\x9d id. at 95\xe2\x80\x9396. Even\nso, the Court has shown great reluctance to extend Irwin. See Raygor v. Regents of Univ. of Minn., 534\nU.S. 533, 543 (2002) (declining to extend Irwin to the context of state sovereign immunity). And\nalthough the Court has sustained attorney\xe2\x80\x99s fee awards for representation in administrative proceedings\nunder part of the Equal Access to Justice Act (\xe2\x80\x9cEAJA\xe2\x80\x9d), 28 U.S.C. \xc2\xa7 2412(d)(1)(A) (2000) (providing\nfor such awards to a \xe2\x80\x9cprevailing party . . . in any civil action . . . for judicial review of agency action\xe2\x80\x9d)\n(emphasis added), it did so only after first finding that the administrative proceedings at issue were \xe2\x80\x9cso\nintimately connected with judicial proceedings as to be considered part of the \xe2\x80\x98civil action\xe2\x80\x99 for purposes\nof a fee award.\xe2\x80\x9d Sullivan v. Hudson, 490 U.S. 877, 892 (1989); see id. at 885 (emphasizing that the\njudicial review provision at issue entailed \xe2\x80\x9ca degree of interaction between a federal court and an\nadministrative agency alien to traditional review of agency action under the Administrative Procedure\nAct\xe2\x80\x9d). In any event, the Court has stressed that such cases \xe2\x80\x9cdo not . . . eradicate the traditional principle\nthat the Government\xe2\x80\x99s consent to be sued must be construed strictly in favor of the sovereign and not\nenlarge[d] beyond what the language required.\xe2\x80\x9d Nordic Village, 503 U.S. at 34 (alteration in original)\n(quotations and citations omitted).\n\n26\n\n\x0cAuthority of EEOC to Impose Monetary Sanctions Against Federal Agencies\n\nMoney Damages Under the Religious Freedom Restoration Act, 18 Op. O.L.C.\n180, 180 (1994).\nIt follows that attorney\xe2\x80\x99s fees may not be imposed against the United States\nabsent an express statutory waiver. In fact, such claims are treated more strictly\nthan other monetary claims because of, among other things, the so-called \xe2\x80\x9cAmerican Rule.\xe2\x80\x9d Under the American Rule, even \xe2\x80\x9cthe prevailing litigant is ordinarily not\nentitled to collect a reasonable attorney\xe2\x80\x99s fee from the loser.\xe2\x80\x9d Alyeska Pipeline\nServ. Co. v. Wilderness Soc\xe2\x80\x99y, 421 U.S. 240, 247 (1975); see also Buckhannon Bd.\nand Care Home, Inc. v. W. Va. Dep\xe2\x80\x99t of Health and Human Res., 532 U.S. 598,\n602 (2001). Moreover, prevailing-party requirements are often read into feerecovery statutes that do not explicitly require such. See, e.g., Ruckelshaus v.\nSierra Club, 463 U.S. 680, 686, 694 (1983) (holding that \xe2\x80\x9ca fee claimant must\n\xe2\x80\x98prevail\xe2\x80\x99 before it may recover attorney\xe2\x80\x99s fees,\xe2\x80\x9d despite a provision of the Clean\nAir Act, 42 U.S.C. \xc2\xa7 7607(f) (2000), allowing the district court to \xe2\x80\x9caward costs\n[and attorney\xe2\x80\x99s fees against the United States] whenever it determines that such an\naward is appropriate\xe2\x80\x9d). Further, the Supreme Court narrowly construes who\nqualifies as a prevailing party. See, e.g., Buckhannon, 532 U.S. at 600 (concluding\nthat a plaintiff who secures the desired relief because a lawsuit induced the\ndefendant voluntarily to change its conduct is not a \xe2\x80\x9cprevailing party\xe2\x80\x9d). Finally,\neven prevailing-party status may be insufficient. See, e.g., Farrar v. Hobby, 506\nU.S. 103, 115 (1992) (concluding that \xe2\x80\x9c[i]n some circumstances, even a plaintiff\nwho formally \xe2\x80\x98prevails\xe2\x80\x99 under [42 U.S.C.] \xc2\xa7 1988 should receive no attorney\xe2\x80\x99s\nfees at all\xe2\x80\x9d). Thus, multiple canons of construction come into play in considering\nthe imposition of attorney\xe2\x80\x99s fees against the United States, all of which presume\nthat such awards are unavailable.\nAlthough most of the sovereign immunity case law arises in the context of suits\nbefore federal district courts, these principles apply with equal force to agency\nadjudications. This follows most immediately, we believe, from the fact that, as\ndiscussed above, Congress\xe2\x80\x94not the Executive Branch\xe2\x80\x94controls the terms of any\nwaiver of sovereign immunity. Moreover, any other rule would undermine\nCongress\xe2\x80\x99s ability to waive immunity in a specific forum to the exclusion of\nanother, see, e.g., McElrath v. United States, 102 U.S. 426, 440 (1880), and more\ngenerally, to control the terms under which the United States would be liable to\nprivate parties. And, unsurprisingly, the courts have applied the sovereign\nimmunity canons to proceedings before agencies and non-Article III courts. See,\ne.g., Ardestani v. INS, 502 U.S. 129, 137 (1991) (holding that sovereign immunity\nbars fee award to prevailing party in INS proceeding); Nordic Village, 503 U.S. at\n30 (holding sovereign immunity presumptions applicable in Bankruptcy Court);\nForeman v. Dep\xe2\x80\x99t of Army, 241 F.3d 1349, 1352 (Fed. Cir. 2001) (applying\nsovereign immunity principles to conclude that the Merit Systems Protection\nBoard lacks authority to impose monetary damages). Cf. United States v. Sherwood, 312 U.S. 584, 587\xe2\x80\x9388 (1941) (noting that \xe2\x80\x9c[e]xcept as Congress has consented there is no jurisdiction in the Court of Claims [a legislative court] more\n\n27\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nthan in any other court to entertain suits against the United States\xe2\x80\x9d). This Office\nhas likewise opined that sovereign immunity principles govern agency awards of\nmonetary relief. See Authority of USDA to Award Monetary Relief for Discrimination, 18 Op. O.L.C. 52 (1994).\nFinally, we note that the Supreme Court has raised the question whether \xe2\x80\x9cordinary sovereign immunity presumptions\xe2\x80\x9d apply to the question whether an agency\nmay itself grant a specific form of relief against the government when Congress\nhas clearly waived immunity from such relief in suits brought before the district\ncourts. West v. Gibson, 527 U.S. 212, 222 (1999). The Court explicitly declined to\ndecide this question, however, concluding in that case that sufficient evidence of a\nwaiver before the agency existed under the traditional presumptions. See id. In our\nview, there can be no doubt that normal sovereign immunity presumptions apply\neven to the question of how \xe2\x80\x9cthe waived damages remedy is to be administered,\xe2\x80\x9d\nid. See also id. at 224\xe2\x80\x9328 (Kennedy, J., dissenting). As the dissent in West pointed\nout, \xe2\x80\x9c[i]t is settled law that a waiver of sovereign immunity in one forum does not\neffect a waiver in other forums.\xe2\x80\x9d Id. at 226 (Kennedy, J., dissenting) (citing\nMcElrath, 102 U.S. at 440; Great Northern Life Ins. Co. v. Read, 322 U.S. 47, 54\n& n.6 (1944); and Case v. Terrell, 78 U.S. (11 Wall.) 199, 201 (1870)). But, in any\nevent, there is no suggestion in West that the existence of a waiver should be\nascertained differently in the administrative context than it would be in an Article\nIII court. It is also worth observing that the Court recently declined to distinguish\nbetween \xe2\x80\x9ccourt-like administrative tribunals\xe2\x80\x9d and Article III proceedings for\npurposes of state sovereign immunity. Fed. Mar. Comm\xe2\x80\x99n v. S.C. State Ports\nAuth., 535 U.S. 743, 759\xe2\x80\x9360 (2002).\nIII. Analysis\nAgainst this backdrop, we turn to EEOC\xe2\x80\x99s arguments in support of its power to\nimpose attorney\xe2\x80\x99s fees on federal agencies for failure to comply with AJ orders.\nEEOC appears to put forth two main arguments supporting its authority to impose\nsuch fees upon the government. First, EEOC contends that both its statutory\nmandate to eliminate discrimination from the federal workplace \xe2\x80\x9cthrough appropriate remedies,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-16(b), and the Federal Rules of Civil\nProcedure suffice to waive the federal government\xe2\x80\x99s sovereign immunity from the\ntype of sanctions at issue here. Second, EEOC maintains that it has inherent\npower, as an adjudicatory body, to impose these sanctions against federal agencies. The doctrine of sovereign immunity forecloses both arguments.\n\n28\n\n\x0cAuthority of EEOC to Impose Monetary Sanctions Against Federal Agencies\n\nA. No Express Waiver Allows EEOC to Impose Monetary\nSanctions on Federal Agencies in the Absence of a\n\xe2\x80\x9cPrevailing Party\xe2\x80\x9d Determination\nEEOC cites 42 U.S.C. \xc2\xa7 2000e-16(b) as evidence that Congress has waived the\nfederal government\xe2\x80\x99s immunity from the sanctions at issue here. That section\nempowers EEOC to enforce the prohibition on discrimination in the federal\nworkplace \xe2\x80\x9cthrough appropriate remedies,\xe2\x80\x9d id. (emphasis added). Attorney\xe2\x80\x99s fees\nimposed as a sanction for failure to comply with AJ orders relating to the adjudicatory process (such as discovery orders), however, are not a remedy for any act of\ndiscrimination. Because the waiver contained in section 2000e-16 must be\ninterpreted in accordance with the above-mentioned rules of construction, this\nstatutory provision does not supply the authority EEOC seeks. EEOC\xe2\x80\x99s reliance on\nWest v. Gibson, 527 U.S. 212 (1999), is therefore entirely misplaced. In West, the\nCourt determined that compensatory damages are an \xe2\x80\x9cappropriate remedy\xe2\x80\x9d for\nviolations of Title VII as applied to the federal workplace, see id. at 217, and that\nEEOC therefore \xe2\x80\x9cpossesses the legal authority to enforce\xe2\x80\x9d Title VII through such\nawards. Id. at 223. As discussed above, the parties in West agreed that Congress\nhad waived the government\xe2\x80\x99s sovereign immunity from compensatory damages.\nBy contrast, neither section 2000e-16(b), nor any other statute, contains a provision that even pertains to violations of AJ orders, much less provides an explicit\nwaiver of the government\xe2\x80\x99s immunity to monetary sanctions for violations of such\norders.\nEEOC next asserts that \xe2\x80\x9cthe Federal Rules of Civil Procedure provide the statutory waiver of sovereign immunity for payments by federal agencies of attorney\xe2\x80\x99s\nfees as sanctions incurred during the federal court adjudicatory process.\xe2\x80\x9d EEOC\nLetter at 4. Without further analysis, EEOC simply declares that \xe2\x80\x9c[t]hose rules also\nallow agencies engaged in administrative adjudicatory processes to sanction\nparties before them, including federal agencies.\xe2\x80\x9d Id. Some courts have concluded\nthat the Federal Rules of Civil Procedure, either by their own force or through the\nEAJA, waive the United States\xe2\x80\x99 sovereign immunity from monetary sanctions\nimposed by federal district courts. See, e.g., M.A. Mortenson Co. v. United States,\n996 F.2d 1177, 1181\xe2\x80\x9384 (Fed. Cir. 1993); Mattingly v. United States, 939 F.2d\n816, 818 (9th Cir. 1991); Adamson v. Bowen, 855 F.2d 668, 671\xe2\x80\x9372 (10th Cir.\n1988). We disagree with this position. See Memorandum for Roger B. Clegg,\nAssociate Deputy Attorney General, Office of the Attorney General, from Larry L.\nSimms, Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nDepartmental Policy on Special Masters (Oct. 2, 1984).3 But even were we to\n3\n\nIn Mattingly, the Ninth Circuit noted that the Federal Rules of Civil Procedure \xe2\x80\x9capply by their\nown force to all litigants before the court\xe2\x80\x9d and that Rule 11 did not expressly exempt attorneys\nrepresenting the United States. 939 F.2d at 818. The court concluded that because Congress authorized\npromulgation of the Rules, \xe2\x80\x9capplying them to the government with full force cannot be said to violate\nthe principles of sovereign immunity.\xe2\x80\x9d Id. Sovereign immunity principles, however, clearly foreclose\n\n29\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nagree with these holdings, nothing in them supports EEOC\xe2\x80\x99s assertion that the\nFederal Rules of Civil Procedure somehow work such a waiver for sanctions\nimposed during the administrative process for violations of AJ orders.\nThe Federal Rules of Civil Procedure do not even apply to EEOC proceedings,\nsee Fed. R. Civ. P. 1 (\xe2\x80\x9cThese rules govern the procedure in the United States\ndistrict courts . . . .\xe2\x80\x9d) (emphasis added), a point on which EEOC has itself relied,\nsee Bell v. Dalton, EEOC Appeal No. 01940852, 1994 WL 741530, at *5 (Aug.\n17) (\xe2\x80\x9cWhile the Federal Rules of Civil Procedure are used as guidance, they are\nnot binding upon the Commission.\xe2\x80\x9d). Thus, even if we accepted the proposition\nthat the Federal Rules of Civil Procedure waive the government\xe2\x80\x99s sovereign\nthe result reached by the court, even assuming that the Federal Rules of Civil Procedure are functionally equivalent to a statute for these purposes. Because the Rules wholly fail to mention the federal\ngovernment, it certainly cannot be said that they contain an unequivocal waiver of sovereign immunity.\nSee Lane, 518 U.S. at 192. And, of course, such waivers may not be implied. See, e.g., id.; Irwin, 498\nU.S. at 95. The fact that the Rules seemingly apply equally to all parties appearing before the court\ndoes not change the analysis. As the Supreme Court has explained, \xe2\x80\x9cwhen it comes to an award of\nmoney damages, sovereign immunity place[s] the Federal Government on an entirely different footing\nthan private parties.\xe2\x80\x9d Lane, 518 U.S. at 196.\nMoreover, both the Rules Enabling Act, 28 U.S.C. \xc2\xa7 2072 (2000), and the Federal Rules of Civil\nProcedure themselves preclude the conclusion that the Rules constitute such a waiver. The Rules\nEnabling Act provides that the Rules may not \xe2\x80\x9cenlarge substantive rights.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 2072(b). But by\nawarding attorney\xe2\x80\x99s fees under the Federal Rules of Civil Procedure, where such awards would\notherwise be unavailable, these courts have enlarged substantive rights. See, e.g., Alyeska, 421 U.S. at\n259 n.31 (suggesting strongly that rules for awarding attorney\xe2\x80\x99s fees are substantive for purposes of\nErie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)). Further, the Supreme Court has explained that \xe2\x80\x9cit\nis axiomatic that the Federal Rules of Civil Procedure do not create or withdraw federal jurisdiction.\xe2\x80\x9d\nOwen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978); United States v. Sherwood, 312 U.S.\n584, 589\xe2\x80\x9390 (1941). The Federal Rules of Civil Procedure themselves clearly state that \xe2\x80\x9c[t]hese rules\nshall not be construed to extend or limit the jurisdiction of the United States district courts or the venue\nof actions therein,\xe2\x80\x9d Fed. R. Civ. P. 82. Because, as we explained above, sovereign immunity is jurisdictional, see, e.g., Meyer, 510 U.S. at 475, the Federal Rules of Civil Procedure are quite incapable of\nproviding a waiver.\nAlthough not discussed by EEOC, some courts have found that the EAJA, 28 U.S.C. \xc2\xa7 2412\n(2000), waives sovereign immunity for sanctions imposed for violations of the Federal Rules of Civil\nProcedure. See, e.g., Mortenson, 996 F.2d at 1181\xe2\x80\x9384 (finding it \xe2\x80\x9cpermissible to look beyond the\nspecific language used\xe2\x80\x9d in the EAJA and resorting quite candidly to legislative history to find a waiver\nof sovereign immunity for discovery sanctions imposed in violation of Rule 37(b)(2) of the U.S. Claims\nCourt); Adamson v. Bowen, 855 F.2d 668, 671\xe2\x80\x9372 (10th Cir. 1988). But see Mattingly, 939 F.2d at 818\n(declining to find the asserted waiver in the EAJA). This does not help EEOC either, if for no other\nreason than that, as noted below, the Federal Rules of Civil Procedure do not apply to EEOC\nproceedings. We must note, however, that the approach taken by these courts cannot be reconciled with\nclear Supreme Court precedent, which requires that waivers of the \xe2\x80\x9cFederal Government\xe2\x80\x99s sovereign\nimmunity must be unequivocally expressed in statutory text.\xe2\x80\x9d Lane, 518 U.S. at 192 (emphasis added).\nThe EAJA allows \xe2\x80\x9cthe prevailing party in any civil action\xe2\x80\x9d to recover from the United States certain\ncosts and fees. 28 U.S.C. \xc2\xa7 2412(a), (b) (emphases added). In Adamson, the court simply ignored the\npellucid prevailing-party requirement. Instead, the court relied on legislative history and its estimation\nof Congress\xe2\x80\x99s intent. See Adamson, 855 F.2d at 671\xe2\x80\x9372. But this flouts the Supreme Court\xe2\x80\x99s\nadmonition that \xe2\x80\x9cthe \xe2\x80\x98unequivocal expression\xe2\x80\x99 of elimination of sovereign immunity that we insist upon\nis an expression in statutory text. If clarity does not exist there, it cannot be supplied by a committee\nreport.\xe2\x80\x9d Nordic Village, 503 U.S. at 37 (emphasis added) (citation omitted).\n\n30\n\n\x0cAuthority of EEOC to Impose Monetary Sanctions Against Federal Agencies\n\nimmunity from fee awards imposed by federal district courts for breach of those\nrules, we do not see how this waiver could extend to agency proceedings in which\nthe rules do not apply. That is, even if Congress had waived sovereign immunity\nfor violations of the Federal Rules of Civil Procedure in federal court, it would not\nfollow that it has also waived immunity for arguably analogous (though formally\ndistinct) violations before an entirely different body where these rules do not\napply. Indeed, as we have emphasized, the doctrine of sovereign immunity\nrequires the exact opposite presumption. See supra Part II; see also McElrath, 102\nU.S. at 440.\nThe tentative and unsupported suggestion in West\xe2\x80\x94that the traditional sovereign immunity canons may not apply in determining whether an administering\nagency may grant a form of relief for which sovereign immunity has clearly been\nwaived at least before the district courts\xe2\x80\x94could not help EEOC, even if we\nbelieved that it represented the best view of the law. See West, 527 U.S. at 222; see\nalso supra Part II. In West, everyone agreed that sovereign immunity from\ncompensatory damages had been waived; the only issue was when such damages\ncould be awarded. Because it is impossible to violate the Federal Rules of Civil\nProcedure in EEOC proceedings for the simple reason that those rules do not\napply, there is no need to analyze the timing issue here.\nFinally and in light of the foregoing analysis, we note that Congress has in fact\nwaived sovereign immunity from attorney\xe2\x80\x99s fees to a limited extent in the Title VII\ncontext. Section 2000e-5(k) provides that \xe2\x80\x9c[i]n any action or proceeding under this\nsubchapter the court, in its discretion, may allow the prevailing party . . . a\nreasonable attorney\xe2\x80\x99s fee (including expert fees) as part of the costs.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 2000e-5(k) (2000) (emphasis added). When an agency violates an AJ order in an\nEEOC proceeding, we do not yet have a prevailing party in an administrative\nproceeding, let alone in a civil action. This consideration (among others) renders\nsection 2000e-5(k) inapplicable to violations of such AJ orders. Furthermore,\n\xe2\x80\x9c[t]he clarity of [this] provision[] is in sharp contrast to the waiver [EEOC] seeks\nto tease out of\xe2\x80\x9d other provisions, and \xe2\x80\x9cillustrates Congress\xe2\x80\x99 ability to craft a clear\nwaiver of the Federal Government\xe2\x80\x99s sovereign immunity against particular\nremedies.\xe2\x80\x9d Lane, 518 U.S. at 194. Extending this waiver to cover awards of\nattorney\xe2\x80\x99s fees for violations of orders issued by AJs in the course of EEOC\nproceedings would constitute an impermissible broadening of the terms and scope\nof the waiver.\nBecause EEOC points to no explicit statutory text in which we could begin to\nfind a waiver of sovereign immunity, let alone a waiver that \xe2\x80\x9cunambiguously . . .\nextends to monetary claims,\xe2\x80\x9d Nordic Village, 503 U.S. at 34, we conclude that\nEEOC lacks express authority to impose monetary sanctions on federal agencies\nfor failure to comply with AJ orders.\n\n31\n\n\x0cOpinions of the Office of Legal Counsel in Volume 27\n\nB. EEOC Does Not Have Inherent Power to Impose\nMonetary Sanctions on Federal Agencies\nEEOC next argues that its power to impose attorney\xe2\x80\x99s fees against federal\nagencies flows from \xe2\x80\x9cthe judicial doctrine of the \xe2\x80\x98inherent powers\xe2\x80\x99 of the forum.\xe2\x80\x9d\nEEOC Letter at 3. EEOC directs our attention to Chambers v. NASCO, Inc., 501\nU.S. 32 (1991), in which the Court discussed the inherent power of the federal\ncourts. But EEOC is not a federal court, and the sanctioned party in Chambers was\nnot a federal agency. Because we conclude that the latter difference proves\ndecisive, we address the former only in passing.\nTo be sure, Congress has waived sovereign immunity to some extent by applying Title VII to the federal workplace and empowering EEOC to investigate and\nremedy violations of the statute. Furthermore, agencies may possess some inherent\npower to impose sanctions designed to protect the integrity of their proceedings, at\nleast against litigants other than the federal government. See, e.g., Touche Ross &\nCo. v. SEC, 609 F.2d 570, 582 (2d Cir. 1979) (upholding SEC rule enabling\nagency to bar attorneys from practicing before it); see also Am. Bus Ass\xe2\x80\x99n v.\nSlater, 231 F.3d 1, 7 (D.C. Cir. 2000) (discussing inherent powers of agencies).\nBut see Slater, 231 F.3d at 9 (Sentelle, J., concurring) (\xe2\x80\x9cAgencies have no inherent\npowers. They instead are creatures of statute and may act only because, and only\nto the extent that, Congress has delegated them the power to act.\xe2\x80\x9d) (citations\nomitted). And arguably, EEOC may have some inherent power to impose some\ntype of sanctions designed to maintain the integrity of its proceedings even against\nfederal agencies. One could infer this from the fact that Congress is presumed to\nhave made its statutory scheme effective.\nBut it follows from our discussion above that whatever inherent power EEOC\nmay possess cannot possibly extend to the imposition of monetary sanctions\nagainst the federal government. As we have explained, the imposition of such\nsanctions would require a clear statement of consent in the text of a statute (the\nvery antithesis of inherent power). That is, as discussed above, the authority to\nwaive sovereign immunity (especially with respect to monetary claims) rests with\nCongress, not the Executive Branch. Thus, no act of EEOC (including promulgation or invocation of a regulation) can, by itself, waive the government\xe2\x80\x99s sovereign\nimmunity. Because we have already concluded that Congress has not waived this\nimmunity, it follows that EEOC lacks the authority to impose these monetary\nsanctions.4\n4\nEEOC contends that 29 C.F.R. \xc2\xa7 1614.109(f)(3) (2002) provides AJs with the authority to impose\nmonetary sanctions against the Government. That provision allows AJs to impose certain sanctions for\nfailure to comply with their orders. Those sanctions include drawing adverse inferences against the\nnoncomplying party, exclusion of other evidence offered by the noncomplying party, issuing an\nadverse ruling against that party, and taking \xe2\x80\x9csuch other actions as appropriate.\xe2\x80\x9d Id. Noticeably absent\nis any mention of monetary sanctions, a fact that has not evaded EEOC, see EEOC Letter at 3 (noting\nthat EEOC regulations \xe2\x80\x9cexplicitly provide for sanctions other than attorney\xe2\x80\x99s fees\xe2\x80\x9d). Even if this\n\n32\n\n\x0cAuthority of EEOC to Impose Monetary Sanctions Against Federal Agencies\n\nFinally, we note that significant controversy surrounds the question whether\neven Article III courts enjoy inherent power to impose monetary sanctions against\nthe federal government. Compare Horn, 29 F.3d at 763\xe2\x80\x9367; id. at 765 n.13 (noting\nthat \xe2\x80\x9cwhen the two doctrines [sovereign immunity and inherent powers] lock\nhorns, contempt is barred by sovereign immunity\xe2\x80\x9d), with Cobell v. Norton, 226 F.\nSupp. 2d 1, 154\xe2\x80\x9355 (D.D.C. 2002) (arguing that if sovereign immunity were to bar\nthe court from exercising its claimed inherent power, the court would be unable to\nenforce its orders against the Executive Branch, a result that the court believed to\nbe inconsistent \xe2\x80\x9cwith the tripartite framework established by the Constitution\xe2\x80\x9d);\nsee also United States v. Waksberg, 112 F.3d 1225, 1227 (D.C. Cir. 1997)\n(characterizing the separation of powers argument as serious enough to invoke the\ncanon of constitutional avoidance); cf. Chambers, 501 U.S. at 58 (Scalia, J.,\ndissenting) (agreeing with the majority that Article III courts derive a measure of\nindependent authority from the Constitution). Whatever the merit of this debate, it\nhas no application in this context, because EEOC and the Navy are both part of the\nExecutive Branch.\nIV. Conclusion\nWe conclude that the doctrine of sovereign immunity bars EEOC from imposing monetary sanctions against federal agencies for violations of AJ orders.\nJOAN L. LARSEN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\nprovision were found in a statute (and not merely a regulation), the provision \xe2\x80\x9cfails to establish\nunambiguously that the waiver extends to monetary claims,\xe2\x80\x9d Nordic Village, 503 U.S. at 34, and\ntherefore fails to waive immunity from those claims, see id. at 37. See also Availability of Money\nDamages Under the Religious Freedom Restoration Act, 18 Op. O.L.C. 180, 181 (1994) (concluding\nthat the term \xe2\x80\x9cappropriate relief\xe2\x80\x9d in the Religious Freedom Restoration Act does not suffice to\nauthorize monetary relief against the federal government). Indeed, in United States v. Woodley, 9 F.3d\n774, 781\xe2\x80\x9382 (9th Cir. 1993), the Ninth Circuit refused to find a waiver of sovereign immunity in the\nsimilarly-worded Federal Rule of Criminal Procedure 16(d)(2), under which \xe2\x80\x9cthe court may order [a\nnon-complying] party to permit the discovery or inspection, grant a continuance, or prohibit the party\nfrom introducing evidence not disclosed, or it may enter such other order as it deems just under the\ncircumstances\xe2\x80\x9d (emphasis added). The court found fatal the fact that Federal Rule of Criminal\nProcedure 16(d)(2), unlike several provisions of the Federal Rules of Civil Procedure, \xe2\x80\x9cprovides no\nindependent authority for a monetary sanction.\xe2\x80\x9d Woodley, 9 F.3d at 781\xe2\x80\x9382. See also Tri-State Steel\nConstr. Co. v. Herman, 164 F.3d 973, 980 (6th Cir. 1999) (concluding that agency rule providing for\nnon-monetary sanctions \xe2\x80\x9cindicates an intention to preclude monetary sanctions\xe2\x80\x9d).\n\n33\n\n\x0c'


b'Use of Potatoes to Block the Maine-Canada Border\nA number o f federal statutes might justify federal intervention in the event Maine potato\nfarmers seek to block highways at border crossings in northeastern Maine to prevent\nthe im portation of potatoes from Canada, or attack federal officers or property at the\nUnited States-Canada border. Federal intervention might take the form o f direct law\nenforcement activity by federal executive officials, or a judicial injunction against\npersons seeking to obstruct the passage o f interstate commerce and the mails.\nIn extreme situations, the President may call out the National Guard or the Army to put\ndow n rebellions in states that threaten the enforcement of federal law.\nFederal law enforcement officers have no special authority to make arrests for violations\no f state law, and they can act in this regard only as private citizens.\nT he A ttorney General is the chief civilian officer in charge o f coordinating all federal\ngovernm ental activities relating to civil disturbances. Generally, because the statutory\nand constitutional scheme of our governm ent leaves the protection of life and property\nand the maintenance o f public order largely to state and local governments, the\nA ttorney General has pursued a policy against commitment o f federal forces until\nadvised by the appropriate state officials that the situation is beyond their control.\n\nDecember 23, 1981\nMEMORANDUM OPINION FOR\nTH E COUNSEL TO TH E PRESIDENT\nIn response to pressure from Maine potato farmers threatened by\ncompetition from Canada, Maine\xe2\x80\x99s Department of Agriculture has\nissued regulations which require inspectors, inspection fees, and permits\nfor all potatoes entering the state. Because the regulations appear on\ntheir face to offend the Commerce Clause of the Constitution, the\nJustice Department sued in federal court to have them struck down.\nUnited States v. Maine, No. 81-0458 P (D. Me., filed Dec. 7, 1981). On\nTuesday, December 8, Judge Edward T. Gignoux, Chief Judge of the\nUnited States District Court for the District of Maine, denied the\nfederal government\xe2\x80\x99s request for a temporary restraining order. Follow\xc2\xad\ning a hearing on December 21 and 22, Judge Gignoux granted the\nmotion for a preliminary injunction yesterday afternoon. Unless the\nstate voluntarily withdraws the regulations within the next few days,\nthe judge has said that he will enter a final injunction by next week.\nThe preliminary injunction is enforceable against the named defend\xc2\xad\nants\xe2\x80\x94the State of Maine, the Governor, his Attorney General, and the\nState\xe2\x80\x99s Department of Agriculture\xe2\x80\x94and their agents. Fed. R. Civ. P.\n65(d).\n422\n\n\x0cThis responds to your request for information on the options avail\xc2\xad\nable to the U.S. Attorney General and the President should Maine\nfarmers, individuals not covered by the injunction, attempt to thwart\nthe effect of the injunction by obstructing highways on the MaineCanada border.\nI. Scenario\nAssuming the farmers follow the same pattern as their last demon\xc2\xad\nstration in 1980, they will use potatoes, trucks, and other heavy equip\xc2\xad\nment to block the highways at border crossings in northeastern Maine.1\nIn 1980, when nine border stations over a 100-mile stretch were in\xc2\xad\nvolved, two arrests were made on the first day of the demonstration by\nthe state police.2 Border traffic was rerouted to other crossings. The\nprotest ended after two days when then Vice President Mondale prom\xc2\xad\nised to set up a task force to study the problem. We will assume for the\npurposes of this memorandum that state officials are unable or unwill\xc2\xad\ning to intervene to end the protest.\nIf the farmers stage a low-key demonstration\xe2\x80\x94merely dumping the\npotatoes and milling about\xe2\x80\x94there may be no overt threat to either\nfederal officers or to federal land or property at the border crossings\nthemselves. In 1980, some potatoes apparently did roll under the cano\xc2\xad\npies of the Customs Service sheds, but they were removed without\nincident. The demonstration could escalate, however, to the point\nwhere a mob threatens harm to Border Patrol or Customs Service\nagents and federal facilities. In 1980, for example, a state police officer\ninflicted a serious head wound on a farmer.3\nII. Potentially Applicable Statutes\nIdentifying federal statutes in this context is difficult. The statutory\nand constitutional scheme of our government leaves the protection of\nlife and property and the maintenance of public order largely to state\nand local governments. Only when civil disorder grows beyond a\nstate\xe2\x80\x99s ability to control or threatens federal rights does the federal\ngovernment generally intervene. The following statutes may become\n\n\xe2\x80\x98 N.Y. Times, M arch 28, 1980, at 16, col. 3; id. March 29, 1980, at 6, col. 5; id, M arch 30, 1980, at\n26, col. 6. Apparently, only the lane carrying traffic into the United States was blocked. Telephone\nconversation with William D. Slyne, Branch Chief, Special Operations, United States Customs Serv\xc2\xad\nice, (566-2957) (December 10, 1981).\n2N.Y. Times, M arch 29, 1980, at 6, col. 6. Governor Brennan was quoted as saying he would make\nevery effort to clear the roads, although he was reluctant to use violence. Id. *\n3Slyne conversation, supra n.l.\n\n423\n\n\x0capplicable, depending upon what course the farmers and state officials\ntake.\n1.\nObstruction o f highways: Highways in the United States are owned\nby the states, even though often built in large part by federal funds, and\nare, therefore, generally under state jurisdiction.4 Blockage of a state\nhighway is not usally a matter of federal concern. However, federal\nlaw prohibits interference with the right to travel. 18 U.S.C. \xc2\xa7 241,\xc2\xae and\n42 U.S.C. \xc2\xa7 1985(3).6 Private conspiracies to harm travelers and ob\xc2\xad\nstruct their passage have been prosecuted under these acts. See Griffin\nv. Breckenridge, 403 U.S. 88 (1971); United States v. Guest, 383 U.S.\n745, 757-60 (1966). In 1974, the United States obtained indictments of\npersons participating in a coordinated truckers\xe2\x80\x99 strike that was intended\nto interfere with the interstate travel rights of non-striking truckers.7\nFederal law also prohibits, during a civil disturbance, the injury, intimi\xc2\xad\ndation of, or interference with anyone engaged in interstate commerce.\n18 U.S.C. \xc2\xa7 245(b)(3).8\nIt is also possible that the potato farmers might fall afoul of the\nSherman A ct\xe2\x80\x99s antitrust provisions,9 since they are acting in cpncert in\nan effort to restrain trade.\nIf an unruly mob attacks Canadian drivers, we could consider initiat\xc2\xad\ning prosecutions under 18 U.S.C. \xc2\xa7 245(b)(2)(E), which makes it unlaw\xc2\xad\nful to injure, intimidate, or interfere with \xe2\x80\x9cany person because of his\n. . . national origin and because he is or has been . . . traveling in or\nusing any facility of interstate commerce.\xe2\x80\x9d Likewise, the use of extor\xc2\xad\ntion to obtain compliance from other farmers or Canadians might vio\xc2\xad\nlate 18 U.S.C. \xc2\xa7 1951(a), (b)(2). See also 18 U.S.C. \xc2\xa7 1952(a)(2), (b)(2).\n\n4 Telephone conversation with L. H arold Akens, Jr., Special Assistant to the C hief Counsel, Federal\nHighw ay Administration, December 8, 1981.\n5 If tw o o r more persons conspire to injure, oppress, threaten, o r intimidate any citizen in the free\nexercise or enjoym ent o f any right or privilege secured to him by the Constitution or laws of the\nUnited States, o r because o f his having so exercised the same; or\nIf tw o or m ore persons go in disguise on the highway, or on the premises o f another,\nw ith intent to prevent or hinder his free exercise or enjoyment o f any right or\nprivilege so secured . . .\n18 U.S.C. \xc2\xa7241.\n6\nIf tw o o r m ore persons in any State or T erritory conspire o r go in disguise on the\nhighw ay o r the premises of another, for the purpose of depriving, either directly o r\nindirectly, any person o r class of persons of the equal protection o f the laws, or o f equal\nprivileges and immunities under the laws . . . 42 U.S.C. \xc2\xa7 1985(3)\n7 L etter from Robert G. Dixon, Jr., Assistant A ttorney General, Office of Legal Counsel, to the\nHonorable John D. Dingell, U.S. House o f Representatives (April 16, 1974).\n8 W hoever, w hether o r not acting under color o f state law, by force or threat o f force\nwillfully injures, intimidates or interferes with . . . during o r incident to a riot or civil\ndisorder, any person engaged in a business in com m erce or affecting commerce, including,\nbut not limited to, any person engaged in a business which sells or offers for sale to\ninterstate travelers a substantial portion of the articles, commodities or services which it\nsells . . . .\n18 U.S.C. \xc2\xa7 245(b)(3).\n3 E very . . . conspiracy, in restraint o f trade or com m erce among the several States, or with foreign\nnations, is declared to be illegal.\n15 U.S.C. \xc2\xa7 1.\n\n424\n\n\x0cBecause of the burden that obstructions on the highway place on\ninterstate commerce, the United States can either go into court to\nobtain an injunction against any impediment to the passage of interstate\nor foreign commerce and to delivery of the mails, In re Debs, 158 U.S.\n564, 581-83 (1895), or can choose to use force. Id. Debs involved a\nmajor strike against the Pullman Co. that attempted\xe2\x80\x94often, it was\nalleged, by violence\xe2\x80\x94to shut down several interstate railroads. The\nUnited States, noting that mail, foodstuffs, fuel, and passengers were all\ncarried by the railroads, obtained an injunction against \xe2\x80\x9cany\xe2\x80\x9d person\nwho attempted to interfere in any manner with the named railroads. Id.\nat 570. When Eugene Debs, jailed for contempt of this order, sued for a\nwrit of habeas corpus, the Supreme Court explicitly chose, id. at 600, to\nrest its denial on the broad ground of the federal government\xe2\x80\x99s inherent\nauthority to enforce its jurisdiction \xe2\x80\x9cover every foot of soil within its\nterritory and [to act] directly upon each citizen . . . ." Id . at 599. \xe2\x80\x9c[I]n\nthe exercise of those powers it is competent for the nation to remove\nall obstructions upon highways, natural or artificial, to the passage of\ninterstate commerce or the carrying of the mail . . .\nId. There is a\nstatute explicitly prohibiting obstruction of the mail. 18 U.S.C. \xc2\xa7 1701.10\n2. Attack on federal officers or property. Several statutes protect federal\nofficers and property. During a civil disorder\xe2\x80\x94a public disturbance by\nmore than three people involving acts of violence, 18 U.S.C. \xc2\xa7 232(1)\xe2\x80\x94\nit is a felony to impede a law enforcement officer in his official duties.\n18 U.S.C. \xc2\xa7 231(a)(3).11 Assault on or resistance to customs and immi\xc2\xad\ngration officers is specifically forbidden, 18 U.S.C. \xc2\xa7 111,12 as are rebel\xc2\xad\nlions against the authority of the United States, 18 U.S.C. \xc2\xa7 2383,13 and\n10\n\nW hoever knowingly and willfully obstructs or retards the passage o f the mail, or any\ncarrier o r conveyance carrying the mail, shall be fined not more than $100 or imprisoned\nnot more than six months, or both.\n18 U.S C. \xc2\xa7 1701. Foreign mail is considered mail of the United States. 18 U.S.C. \xc2\xa7 1692. Note that the\nPostal Service is now an independent establishment with authonty to sue in its own name, 39 U.S.C.\n\xc2\xa7 401(1) and any suit by the Attorney General might well require its concurrence. 39 U.S.C. \xc2\xa7 409(d).\n11\n(3) W hoever commits or attempts to commit any act to obstruct, impede, o r interfere\nwith any fireman or law enforcement officer lawfully engaged in the lawful performance o f\nhis official duties incident to and during the commission o f a civil disorder w hich in any\nway or degree obstructs, delays, or adversely affects commerce or the movement o f any\narticle o r commodity in commerce or the conduct or performance of any federally\nprotected function\xe2\x80\x94\nShall be fined not more than $10,000 or imprisoned not more than five years, or\nboth.\n18 U .S.C. \xc2\xa7 2 3 1(a)(3).\n\n1S\n\nW hoever forcibly assaults, resists, opposes, impedes, intimidates, or interferes with any\nperson designated in section 1114 o f this title while engaged in or on account of the\nperformance o f his official duties, shall be fined not more than $5,000 or imprisoned not\nmore than three years, or both.\n\n18 U .S C, \xc2\xa7 111. Section 1114 is a list o f co v ered officials.\n\n14\n\nW hoever incites, sets on foot, assists, or engages in any rebellion o r insurrection\nagainst the authority o f the United States or the laws thereof, or gives aid or comfort\nthereto, shall be fined not more than $10,000 or imprisoned not more than ten years, or\nboth; and shall be incapable o f holding any office under the United States.\n18 U.S.C. \xc2\xa7 2383. See also 18 U S.C \xc2\xa7 2384 (conspiracy).\n14\nW hoever willfully injures or commits any depredation against any property o f the\nUnited States, or o f any department or agency thereof, or any property which has been or\nis being m anufactured or constructed for the United States, or any department o r agency\nthereof, shall be punished . . . .\n18 U.S.C. \xc2\xa7 1362. See also 40 U .S.C. \xc2\xa7\xc2\xa7 318\xe2\x80\x94318d (security p ro v id ed by G S A )\n\n425\n\n\x0cwillful injury to United States property, 18 U.S.C. \xc2\xa7 1361,14 or certain\nkinds of communications equipment, 18 U.S.C. \xc2\xa7 1362. Arrests may be\nmade by the Federal Bureau of Investigation (FBI), 18 U.S.C. \xc2\xa7 3052,\nUnited States Marshals, 18 U.S.C. \xc2\xa73053, and Secret Service agents, 18\nU.S.C. \xc2\xa7 3056. (Note that Immigration and Naturalization Service (INS)\nagents may only arrest for violations of the immigration laws, 8 U.S.C.\n\xc2\xa7\xc2\xa7 1324(b), 1357, and customs officers are generally limited to arrests\nfor violations of the customs laws, unless armed with a warrant. 19\nU.S.C. \xc2\xa7 1581(0; 26 U.S.C. \xc2\xa77607(2)).\n3. Presidential authority: In extreme situations, the President may call\nout the National Guard o r the Army to put down rebellions that\nthreaten enforcement of federal law, 10 U.S.C. \xc2\xa7332,15 and to protect\nagainst deprivations of constitutional rights caused by failure to enforce\nstate or federal law. 18 U.S.C. \xc2\xa7333.16 The application of these two\nstatutes is explored fully in \xe2\x80\x9cThe Use of Military Force Under Federal\nLaw to Deal with Civil Disorders and Domestic Violence\xe2\x80\x9d (1980), a\nDepartment of Justice manual based in large part on the work of\nformer OLC Deputy Assistant Attorney General Lawton.\n4. Enforcement o f state law: \xe2\x80\x9cWe think it clear that the FBI has no\nfederal authority to take action with respect to violations of state law,\neven in exigent circumstances.\xe2\x80\x9d Memorandum for the Director of the\nFBI from Assistant Attorney General Harmon, February 24, 1978, at 1.\nAfter noting that several courts have agreed with this view, the opinion\nstates that \xe2\x80\x9cif no federal statute authorizes arrests in a particular situa\xc2\xad\ntion, state law governs.\xe2\x80\x9d Id. at 2. The issue, therefore, becomes whether\nfederal law enforcement officers are considered officers under Maine\nlaw or, if not, what arrest authority Maine grants private citizens.17\n\n16\nW henever the President considers that unlawful obstructions, combinations, or assemblages, or\nrebellion against the authority of the U nited States, make it impracticable to enforce the laws of the\nUnited States in any State or Territory by the ordinary course of judicial proceedings, he may call\ninto Federal service such o f the militia o f any State, and use such of the armed forces, as he considers\nnecessary to enforce those laws or to suppress the rebellion.\n10 U.S.C. \xc2\xa7 332\n16 T he President, by using the militia o r the armed forces, or both, or by any other means, shall\ntake such measures as he considers necessary to suppress, in a State, any insurrection, domestic\nviolence, unlawful combination, or conspiracy, if it\xe2\x80\x94\n(1) so hinders the execution of th e laws o f that State, and of the United States within\nth e State, that any part or class o f its people is deprived of a right, privilege, immunity,\no r protection named in the Constitution and secured by law, and the constituted\nauthorities o f that State are unable, fail, or refuse to protect that right, privilege, or\nimmunity, or to give that protection; or\n(2) opposes or obstructs the execution o f the laws o f the United States or impedes\nthe course o f justice under those laws.\n10 U.S.C. \xc2\xa7333\n17 See United States v. Carter, 523 F.2d 476 (8th Cir. 1975); Ward v. United States, 316 F.2d 113 (9th\nCir. 1963), cert, denied, 375 U.S. 862 (1963). The FBI has, on prior occasions, expressed policy\nobjections to being used to enforce state laws. Memorandum for the Attorney General from Assistant\nA ttorney G eneral White, September 17, 1957.\n\n426\n\n\x0cLaw enforcement officers18 in Maine may make a warrantless arrest\nfor violations of a number of potentially applicable state statutes: riot,\nMe. Rev. Stat. Ann., tit. 17-A, \xc2\xa7 503 (Supp. 1980); unlawful assembly,\nid. \xc2\xa7 504; obstruction of public ways, id. \xc2\xa7 505; assault, id. \xc2\xa7 207; crimi\xc2\xad\nnal threatening, id. \xc2\xa7209; reckless conduct, id. \xc2\xa7211; obstruction of\ngovernment administration, id. \xc2\xa7751; and criminal mischief, id. \xc2\xa7806.\nSee id. \xc2\xa7 15(1)(A)(5). Assuming, despite the broad language, that the\ndefinition of a Maine \xe2\x80\x9claw enforcement officer\xe2\x80\x9d does not cover federal\nagents, all federal officials, including INS and Customs officers, can act\nas private citizens. Maine law permits private citizens to make a\nwarrantless arrest for any of the listed crimes that take place in their\npresence except unlawful assembly and obstruction of the public ways.\nId. \xc2\xa7 16(2)(A). The Memorandum for the Director of the FBI, supra,\ndiscusses the potential liability of the agents and the United States\ngovernment if the state law is incorrectly applied. Memorandum, at\n6-9.\nIII. Conclusion\nThe Attorney General is the chief civilian officer in charge of co\xc2\xad\nordinating all federal governmental activities relating to civil disturb\xc2\xad\nances.19 Depending upon the seriousness of the disturbance, he may\nwish to consult with the Border Patrol, Customs Service (Department\nof Commerce), the State Department, the United States Trade Repre\xc2\xad\nsentative (Department of Agriculture), and the local United States\nAttorney, as well as state officials. Memoranda written during prior\nincidents reveal a policy against commitment of federal forces until the\ngovernor of the state has used all available local resources and is\nwilling to advise that the situation is beyond state control.20 If it is\ndecided, as a policy matter, that the federal government should inter\xc2\xad\n\n18 This is \xe2\x80\x9cany person who by virtue of his public office employment is vested by law with a duty\nto maintain public order . . . . or to make arrests for cnm es . .\nMe. Rev. Stat. Ann., tit. 17-A,\n\xc2\xa72(17). Maine completely revised its criminal code within the last two years and there are no cases\ninterpreting this section.\n19 Interdepartmental Action Plan for Civil Disturbances at 2 (1969).\n20 See, e.g.. Memorandum for the Attorney General from Assistant Attorney General H annon,\nSeptember 9, 1977 (coal strike in West Virginia).\n\n427\n\n\x0cvene, we should probably explore in more depth the possibility of\nobtaining an injunction against any persons who are obstructing the\npassage of interstate commerce and the mails.\nT\n\nheodore\n\nB. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n428\n\n\x0c'