b'Authority of FBI Agents, Serving As Special Deputy United\nStates Marshals, to Pursue Non-Federal Fugitives\nRegardless of whether federal process is outstanding or anticipated, agents of the Federal Bureau o f\nInvestigation have authority to investigate fugitive felons when there is a reasonable basis to believe\nthat doing so will detect or prevent the commission o f a federal crime.\nU.S. Marshals, including FBI agents serving as Special Deputy U.S. Marshals, have authority under\n28 U.S.C. \xc2\xa7 566(e)(1)(B) to investigate and pursue fugitives wanted under state felony warrants\nwhenever such action is undertaken pursuant to a special apprehension program approved by the\nAttorney General.\nWhere a U.S. Marshal or Special Deputy U.S. Marshal is engaged in an approved investigation o f\nstate law fugitives under section 566(e)(1)(B), the marshal\xe2\x80\x99s derivative state sheriff powers under\n28 U.S.C. \xc2\xa7564 and the marshal\xe2\x80\x99s inherent authority to take enforcement actions necessary to\ncarry out his federal duties provide valid grounds for the marshal to arrest such fugitives.\n\nFebruary 21,1995\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nF e d e r a l B u r e a u o f In v e s t ig a t io n\n\nSummary\nYou have requested our opinion on the authority of agents of the Federal Bureau\nof Investigation (\xe2\x80\x9c FBI\xe2\x80\x9d ), serving as Special Deputy United States Marshals, to\nparticipate in federal-state task force efforts to locate and arrest fugitives charged\nwith violations of state law where federal process is neither outstanding nor antici\xc2\xad\npated. Our conclusions on this matter may be summarized as follows:\n(1) Regardless of whether federal process is outstanding or antici\xc2\xad\npated, FBI agents have authority to investigate (and sometimes\narrest) fugitive felons when there is a reasonable basis to believe\nthat doing so will detect or prevent the commission of a federal\ncrime, including violations of the Fugitive Felons Act, 18 U.S.C.\n\xc2\xa7 1073 (\xe2\x80\x9c FFA\xe2\x80\x9d ). That may include situations where a state fugitive\nhas not yet crossed state lines but has engaged in evasive move\xc2\xad\nments or a course of conduct that manifests an intent to cross a\nstate or national border and violate the FFA.\n(2) Under 28 U.S.C. \xc2\xa7 566(e)(1)(B), the U.S. Marshals Service\n(\xe2\x80\x9c USMS\xe2\x80\x9d ) has authority to investigate fugitive matters \xe2\x80\x9c as\ndirected by the Attorney General.\xe2\x80\x9d This authority is not confined\nto fugitives who are sought on federal charges. In a series of special\napprehension programs authorized by three Administrations, the\nAttorneys General have directed the USMS and other federal agen33\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\ncies to engage in cooperative operations with state and local police\nthat encompass the investigation, pursuit, and arrest of fugitives\nwanted under state as well as federal warrants. Section 566(e)(1)(B)\nauthorizes U.S. Marshals (including FBI agents serving as deputy\nmarshals) to investigate and pursue fugitives wanted under state\nwarrants whenever it is done pursuant to a special apprehension\nprogram approved by the Attorney General.\n(3) Although section 566(e)(1)(B) does not explicitly provide for\nauthority to participate in task force arrests in state warrant cases,\nwe conclude that where a U.S. Marshal is engaged in an approved\ninvestigation of state law fugitives under that section, arrest\nauthority may be validly based upon (a) the marshal\xe2\x80\x99s derivative\nstate sheriff powers granted under 28 U.S.C. \xc2\xa7564; and (b) the mar\xc2\xad\nshal\xe2\x80\x99s inherent authority to take enforcement actions necessary to\ncarry out his federal duties, which now include participation in\ncooperative fugitive pursuit operations with state and local police.\n(4) However, we conclude that neither the doctrine of legislative\nratification nor the U.S. Marshal\xe2\x80\x99s asserted \xe2\x80\x9c federal common law\nauthority\xe2\x80\x9d provide independent, non-statutory legal authority for\nmarshals to pursue or arrest fugitives sought for state law violations\nonly.\nI. BACKGROUND\nThis matter arises from the operations of intergovernmental fugitive task forces,\nin which federal law enforcement personnel work with state and local law enforce\xc2\xad\nment agencies in locating and apprehending fugitives from justice. The most\nprominent of these task forces began in 1981 and were classified as Fugitive\nInvestigative Strike Teams, or \xe2\x80\x9c FIST,\xe2\x80\x9d under a congressionally funded program\nof the USMS. Similar task force operations have also been authorized by the\nAttorneys General in more recent years, including Operation Gunsmoke (1992)\nand Operation Trident (1993). These operations are designed to locate and\napprehend both federal and state law fugitives. Although the operations have been\nsuccessful in arresting both categories of fugitives, arrests of state law fugitives\nhave predominated. The USMS has stated that \xe2\x80\x9c [t]he cooperative assistance of\nstate and local officers is essential to the apprehension of federal fugitives under\nthe FIST program and vice versa.\xe2\x80\x9d 1 Federal personnel assigned to these intergov\xc2\xad\nernmental task forces are sometimes expected to assist not only in locating, but\nalso arresting, the fugitives in question.\n1 M emorandum for W illiam Sessions, Director, Federal Bureau o f Investigation, from Stanley E. Morris, Director,\nU S. M arshals Service, Attachment p.2 (Dec. 8, 1987) ( " 1987 M e m /\xe2\x80\x99)*\n\n34\n\n\x0cAuthority o f FBI Agents, Serving As Special Deputy United States Marshals, to Pursue Non-Federal\nFugitives\n\nThe FBI\xe2\x80\x99s fugitive apprehension efforts have generally been based upon the\nFugitive Felons Act (\xe2\x80\x9c FFA\xe2\x80\x9d or \xe2\x80\x9c UFAP\xe2\x80\x9d ), 18 U.S.C. \xc2\xa71073,2 which prohibits\npersons from moving or traveling in interstate commerce in order to avoid\nprosecution, confinement, or service of process in connection with felonies under\nthe laws of the place from which flight is taken. The Department of Justice has\nissued procedural standards governing the FBI\xe2\x80\x99s exercise of its authority under\nthe FFA, but these standards are not statutory and could be changed by administra\xc2\xad\ntive action. FBI agents have clear statutory authority to pursue and arrest both\nfederal and state law fugitives who have violated the FFA by crossing state lines.\nThe more difficult question raised by the FBI arises when the target fugitive has\nnot been charged with any federal crime, has not fled across state lines, and seem\xc2\xad\ningly presents no other independent basis for the exercise of federal law enforce\xc2\xad\nment jurisdiction.\nThe FBI has considered its own authority to pursue and arrest fugitives to be\nlimited by the parameters of the FFA and by Department procedures governing\nthe routine handling of its general criminal investigations. It now inquires whether\ndeputation of FBI agents as Special Deputy U.S. Marshals will enhance or broaden\ntheir authority to pursue and arrest fugitive felons charged only with state law\ncrimes. In its memorandum requesting this opinion, however, the FBI questions\nwhether the authority of the USMS extends that far.\nThe USMS asserts a broader range of federal authority to investigate and\napprehend \xe2\x80\x9c non-federal\xe2\x80\x9d or \xe2\x80\x9c state law\xe2\x80\x9d fugitives. It asserts that this authority\nmay be based on a number of sources apart from the FFA: 28 U.S.C. \xc2\xa7 564 (mar\xc2\xad\nshal\xe2\x80\x99s authority to exercise powers of the state sheriff while executing federal\nlaw in that state); 28 U.S.C. \xc2\xa7 566(e)(1)(B) (marshal\xe2\x80\x99s authority to investigate\nfugitive matters as directed by the Attorney General); and the U.S. Marshal\xe2\x80\x99s\n\xe2\x80\x9c inherent\xe2\x80\x9d or \xe2\x80\x9c federal common law\xe2\x80\x9d authority to take such enforcement meas\xc2\xad\nures as are necessary to carry out its federal duties. The USMS also asserts that\nrepeated enactment of appropriations earmarked for the fugitive apprehension pro\xc2\xad\ngrams, after Congress had been made well aware that federal officals pursued\nand arrested large numbers of state law fugitives under those programs, provides\nsufficient legal authority for such activities under the doctrine of congressional\nratification.\nContrary to assertions in the FBI submission, the USMS states that its personnel\n\xe2\x80\x9c do not routinely make state and local arrests on state and local fugitive war\xc2\xad\nrants,\xe2\x80\x9d as opposed to providing assistance when such arrests are made by a fed\xc2\xad\neral-state task force.3 Nonetheless, it is evident that USMS personnel sometimes\nperform such arrests in special apprehension program operations, and it is the\n2 This statute is also sometimes referred to as the Unlawful Flight to Avoid Prosecution law, or UFAP.\n3 Memorandum for Walter E. Dellinger, Assistant Attorney General, Office of Legal Counsel, from Deborah C\nW estbrook, General Counsel, U.S. Marshals Service, Re: Authority o f United States Marshals Service to Participate\nin Joint Federal/State/Local Fugitive Apprehension Task Forces at 2 (Oct. 7, 1994).\n\n35\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nlegal basis for such federal arrest activity that the FBI most strongly questions\nin its submission.\nII. ANALYSIS\nA. E xtent o f F B I\xe2\x80\x99s Existing Statutory Authority\nFederal law enforcement officials have authority to participate in the investiga\xc2\xad\ntion and arrest of some fugitives wanted for state law violations under the provi\xc2\xad\nsions of the Fugitive Felons Act. See 18 U.S.C. \xc2\xa71073. The FFA makes it a\nfederal crime to \xe2\x80\x9c move[] or travel[] in interstate or foreign commerce\xe2\x80\x9d in order\nto avoid prosecution, custody, confinement, or service of process in connection\nwith felonies under the laws of the state from which the person is fleeing. The\npurpose and policy underlying the FFA was explained by the court in Lupino\nv. United States, 268 F.2d799, 801 (8th Cir. 1959):\n[F]lights by perpetrators of crimes against the states are a\ncommon means of hindering state justice as is well known and,\nas it is the federal government which accords the freedom of move\xc2\xad\nment throughout the country that makes the flights possible, it is\nplainly within the province of that government to regulate this\nabuse of it.\nA threshold issue is whether FBI agents may have dormant authority under\nthe FFA to participate in the investigation or arrest of those \xe2\x80\x9c state law\xe2\x80\x9d fugitives\nwhose cases may have heretofore been considered outside that statute\xe2\x80\x99s coverage.\nIf a more expansive interpretation of existing FFA authority is warranted, the\nnecessity for additional authority to be derived from the USMS through deputation\nmight be reduced.\nThe FBI submission reflects a somewhat restrictive interpretation of its current\nauthority to investigate and arrest under the FFA. It states, for example, that its\nfugitive investigation authority is constrained by the preliminary inquiry require\xc2\xad\nments of the Attorney General\xe2\x80\x99s Guidelines on Investigations.4 On the other hand,\nit does not explore the FBI\xe2\x80\x99s clear statutory authority to make warrantless arrests\nwhenever there are reasonable grounds to believe the person to be arrested is\nin the process of committing any federal crime, including a violation of the FFA.\nSee 18 U.S.C. \xc2\xa73052.\nWhere there is a reasonable expectation that an investigation will lead to evi\xc2\xad\ndence of a violation of federal law, FBI agents have authority to undertake that\ninvestigation under 28 U.S.C. \xc2\xa7 533. See Authority o f the Federal Bureau oflnves4 M emorandum for W alter E. Dellinger, Assistant Attorney General, Office of Legal Counsel, from Howard M.\nShapiro, G eneral Counsel, FBI, Re: Authority o f FBI Agents Who H ave Been D eputized as Special Deputy U nited\nStates M arshals to Locate a n d Apprehend S ta te and Local Fugitives at 2 (Aug. 23, 1994).\n\n36\n\n\x0cAuthority o f FBI Agents, Serving A s Special Deputy United Slates Marshals, to Pursue Non-Federal\nFugitives\n\ntigation to Investigate Police Killings, 5 Op. O.L.C. 45, 49 (1981). As this Office\nalso stated in a 1977 opinion on a similar issue: \xe2\x80\x9c As long as there remains a\nlegitimate basis for the view that the investigation . . . may unearth violations\nof federal law, we believe that the FBI is authorized to proceed with the investiga\xc2\xad\ntion.\xe2\x80\x9d Memorandum for the Director of the FBI, from Mary C. Lawton, Deputy\nAssistant Attorney General, Re: FBI Cooperation with Local Authorities at 1\n(Nov. 9, 1977). This is consistent with the Attorney General\xe2\x80\x99s 1989 Guidelines\nfor FBI general crimes investigations, which provide:\nA general crimes investigation may be initiated by the FBI when\nfacts or circumstances reasonably indicate that a federal crime has\nbeen, is being, or will be committed. The investigation may be con\xc2\xad\nducted to prevent, solve, and prosecute such criminal activity.\nThe standard of \xe2\x80\x9c reasonable indication\xe2\x80\x9d is substantially lower\nthan probable cause.\nThe Attorney General\xe2\x80\x99s Guidelines on General Crimes, Racketeering Enterprise\nand Domestic Security/Terrorism Investigations \xc2\xa7II.C(1) (Mar. 21, 1989)\n(emphasis added) (\xe2\x80\x9c AG Guidelines\xe2\x80\x9d ). The Guidelines further state that a prelimi\xc2\xad\nnary inquiry is not a required step \xe2\x80\x9c when facts or circumstances reasonably indi\xc2\xad\ncating criminal activity are already available; in such cases, a full investigation\ncan be immediately opened.\xe2\x80\x9d Id. \xc2\xa7II.B(1). These provisions show that the FBI\nhas ample authority to investigate a state law fugitive whenever there is some\nreasonable indication that he may violate the FFA or another federal law.5\nVarious courts have held that the crossing of state lines is a necessary element\nfor a violation of the FFA. See, e.g., Lupino v. United States, 268 F.2d at 801\n(FFA violation \xe2\x80\x9c is complete when the offender crosses the border.\xe2\x80\x9d ).6 However,\nthe line separating a so-called \xe2\x80\x9c non-federal\xe2\x80\x9d fugitive and a fugitive subject to\nfederal pursuit under the FFA can be a thin one. Many fugitives will \xe2\x80\x9c move\xe2\x80\x9d\nor \xe2\x80\x9c travel\xe2\x80\x9d on interstate highways as they continue to evade arrest, even if they\nhave not been detected crossing state lines. Under appropriate circumstances, such\nfugitives may be deemed to be moving in interstate commerce and there may\nwell be a reasonable basis to believe that a violation of the FFA is in progress.\nThis view is bolstered by Supreme Court and lower federal court opinions that\nhave adopted a flexible construction of the interstate movement element in federal\ncriminal statutes similar to the FFA. In McElroy v. United States, 455 U.S. 642,\n5 In other contexts, the FBI has even been subjected to potential liability under the Federal Tort Claims Act for\nfailing to take the initiative under 28 U.S.C. \xc2\xa7533 when a developing violation o f federal law has been detected.\nSee Bergman v. United States, 565 F. Supp. 1353, 1396-1401 (W.D. Mich. 1983). There, the U nited States was\nheld liable for injuries sustained by civil rights \xe2\x80\x9c Freedom R iders\xe2\x80\x9d when FBI agents failed to take preventive action\nto thwait a developing conspiracy to violate civil rights which had been disclosed by an informant.\n6 This view is arguably at variance with the statute\xe2\x80\x99s text, which requires only that the fugitive \xe2\x80\x9c m oveU or travel[]\nin interstate or foreign com m erce,\xe2\x80\x9d 18 U.S.C. \xc2\xa71073 (emphasis added), without stating that a state line must be\ncrossed for a violation to occur. In similar contexts, the Supreme Court has declared that movement in interstate\ncommerce may occur without crossing a state border. See cases discussed in note 7 and accompanying text.\n\n37\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\n653 (1982), for example, the Court observed that \xe2\x80\x9c interstate commerce begins\nwell before state lines are crossed.\xe2\x80\x9d 7 If a fugitive is \xe2\x80\x9c in the course\xe2\x80\x9d of travel\non the highways with an intent to proceed across the border, the mere failure\nto reach the border should not negate a violation of the statute. Cf. United States\nv. Schardar, 850 F.2d 1457, 1461-62 (11th Cir. 1988) (\xe2\x80\x9c Goods have been\nadjudged to have moved in interstate . . . commerce when they are in the course\nof such a crossing, even when they have not yet crossed the technical bound\xc2\xad\naries.\xe2\x80\x9d ); United States v. Ajlouny, 629 F.2d at 837.\nWe therefore conclude that FBI agents have statutory authority to investigate\nstate law fugitives whenever, as part of their evasive course of conduct, they have\nbegun to travel on interstate highways or manifested any other reasonable indica\xc2\xad\ntion (such as the purchase of a bus or airplane ticket to another state) that they\nwill violate the FFA. Moreover, the FBI\xe2\x80\x99s authority to detect and investigate fed\xc2\xad\neral crimes under 28 U.S.C. \xc2\xa7533 encompasses the authority to \xe2\x80\x9c take whatever\nsteps are necessary to bring criminal charges against the suspect criminals.\xe2\x80\x9d\nBergman v. United States, 551 F. Supp. 407, 417 (W.D. Mich. 1982) (\xe2\x80\x9c While\n[section 533] confers investigative powers upon an FBI official, it also confers\na prosecutorial duty to follow up any investigation undertaken.\xe2\x80\x9d ). Under 18 U.S.C.\n\xc2\xa73052, FBI agents have the authority to make warrantless arrests \xe2\x80\x9c for any felony\ncognizable under the laws of the United States if they have reasonable grounds\nto believe that the person to be arrested has committed or is committing such\na felony.\xe2\x80\x9d (Emphasis added). Consequently, the fact that a state fugitive has com\xc2\xad\nmenced evasive travel on the highways may sometimes establish that he is \xe2\x80\x9c in\nthe course\xe2\x80\x9d of interstate flight and therefore provide grounds for federal arrest\nunder the FFA.\nB. Authority o f USMS\nIn some instances, there may be no reasonable grounds to believe that a state\nlaw fugitive sought by a task force will violate the FFA or any other federal\nstatute (e.g., a fugitive who \xe2\x80\x9c goes underground\xe2\x80\x9d within the state and gives no\nindication of resorting to interstate travel). This office has previously opined that\nFBI agents, as such, have no authority to investigate criminal suspects under state\nlaw where there are no federal charges outstanding and no reasonable grounds\nto believe that a federal offense has been or will be committed. See 5 Op. O.L.C.\nat 49. This raises the question whether, in the context of federal-state task force\noperations, FBI agents serving as Deputy U.S. Marshals would have additional\n1 Cf. U nited States v. Ajlouny, 629 F.2d 830 (2d Cir. 1980), concerning a violation of the federal law against\nthe transportation o f stolen goods in interstate or foreign commerce. The defendant was arrested just before he\nwas able to ship stolen goods from New Y ork to Qatar. The court rejected the argument that no offense had occurred\nbecause no international boundary had been crossed, stating: \xe2\x80\x9c Congress was not aiming only at stolen goods moving\nacross a technical boundary line, but also w anted to reach shipments in the course of such a crossing.\xe2\x80\x9d Id. at 837.\n\n38\n\n\x0cAuthority o f FBI Agents, Serving A s Special Deputy United States Marshals, to Pursue Non-Federal\nFugitives\n\nauthority to pursue and/or arrest state fugitives that would otherwise be unavail\xc2\xad\nable to them.\n1.2 8 U.S.C. \xc2\xa7566\nThe Marshal Service\xe2\x80\x99s authority to investigate fugitive felons is found in 28\nU.S.C. \xc2\xa7 566(e)(1)(B), which provides: \xe2\x80\x9c The United States Marshals Service is\nauthorized to . . . investigate such fugitive matters, both within and outside the\nUnited States, as directed by the Attorney General.\xe2\x80\x9d (emphasis added). Signifi\xc2\xad\ncantly, this authorization was passed in 1988, when Congress was already familiar\nwith five years of USMS participation in FIST programs, wherein USMS per\xc2\xad\nsonnel repeatedly participated in large numbers of arrests of state law fugitives.\nSection 566(e)(1)(B) authorizes the Attorney General to \xe2\x80\x9c direct\xe2\x80\x9d the USMS to\ninvestigate fugitive matters to the fullest extent permitted by the Constitution in\nthe exercise of her discretion.8\nIn 1988, the Attorney General issued a \xe2\x80\x9c Policy on Fugitive Apprehension in\nFBI and DEA Cases.\xe2\x80\x9d After providing that the FBI generally has jurisdiction\n\xe2\x80\x9c in locating fugitives pursuant to the Unlawful Flight Statutes (Title 18, Sections\n1073 and 1074)\xe2\x80\x9d , the Policy stated:\nThe above provisions shall not preclude the USMS from providing\navailable information to state and local law enforcement agencies\nabout fugitives being sought by their jurisdictions. The initiation\nof formal fugitive investigations involving State and local fugitives\nwill be done through the Unlawful Flight process set forth above,\nexcept fo r special apprehension programs (such as Fugitive Inves\xc2\xad\ntigative Strike Teams and Warrant Apprehension Narcotics Teams)\nand other special situations approved by the Associate Attorney\nGeneral.\nId. at 3 (emphasis added). In\' this regard, the Attorney General\xe2\x80\x99s approval of\nUSMS pursuit and arrest of state law fugitives in FIST and subsequent special\napprehension programs is authorized by the \xe2\x80\x9c as directed\xe2\x80\x9d provision of 28 U.S.C.\n\xc2\xa7 566(e)(1)(B).\nSubsequent to 1988, the Attorney General has \xe2\x80\x9c directed\xe2\x80\x9d the USMS to under\xc2\xad\ntake additional \xe2\x80\x9c special apprehension programs.\xe2\x80\x9d In early 1992, for instance, the\nAttorney General ordered the USMS to participate in Operation Gunsmoke, a pro\xc2\xad\n8 Regulations generally describing the marshals\xe2\x80\x99 authority in the fugitive area are included under the \xe2\x80\x9c General\nFunctions\xe2\x80\x9d provisions o f the DOJ regulations. See 28 C.F.R. \xc2\xa70.111(q) (1995). This subsection merely, provides\nthat among the activities o f the USMS that are subject to the supervision of the USMS Director are: \xe2\x80\x9c Exercising\nthe power and authority vested in the Attorney General under 28 U.S.C. 510 to conduct and investigate fugitive\nmatters, domestic and foreign, involving escaped federal prisoners, probation, parole, mandatory release, and bond\ndefault violators.\xe2\x80\x9d This provision does not purport to define the outer limits o f USMS fugitive authority, and we\ndo not consider its enumeration o f authorized activities to be exclusive.\n\n39\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\ngram in which U.S. marshals worked with state and local police to apprehend\narmed fugitives charged or convicted of serious crimes involving violence with\nweapons. In this operation, the Attorney General again authorized the USMS to\ninvestigate, pursue, and arrest fugitives wanted on state as well as federal warrants.\nIndeed, of the 3,313 Operation Gunsmoke arrests, 2,562 were on state warrants.\nIn 1993, the USMS was directed to participate in Operation Trident, another\ncooperative federal-state fugitive manhunt focusing on the identification and arrest\nof major narcotics and violent crime fugitives. In his memorandum requesting\nthe Attorney General\xe2\x80\x99s approval of Operation Trident (which was given), the\nUSMS Director specifically stated that the operation would include the apprehen\xc2\xad\nsion of \xe2\x80\x9c State and local fugitives wanted for homicide and other violent offenses\xe2\x80\x9d\nand \xe2\x80\x9c State and local fugitives wanted on firearms violations.\xe2\x80\x9d 9 Of the 5,788\narrests made by Operation Trident investigators, 4,825 were based on state\ncharges.\nThese operations confirm that, pursuant to 28 U.S.C. \xc2\xa7 566(e)(1)(B) and the\nmore general authorities granted by 28 U.S.C. \xc2\xa7\xc2\xa7503, 509, and 515, the Attorney\nGeneral has repeatedly authorized the USMS to participate with state and local\npolice in the investigation, pursuit, and arrest of fugitives wanted on state as well\nas federal charges. FBI agents serving as Deputy U.S. Marshals could also under\xc2\xad\ntake such activities under the same lawful authority.\nWhen investigations duly conducted under \xc2\xa7 566 reveal ongoing or inchoate vio\xc2\xad\nlations of the FFA or another federal law, marshals and deputy marshals also\nhave authority to arrest under the provisions of 18 U.S.C. \xc2\xa73053. That section\nprovides (emphasis added):\nUnited States marshals and their deputies may carry firearms and\nmay make arrests without warrant for any offense against the\nUnited States committed in their presence, or for any felony cog\xc2\xad\nnizable under the laws of the United States if they have reasonable\ngrounds to believe that the person to be arrested has committed\nor is committing such a felony.\nThis language provides authority for marshals to arrest a state law fugitive if,\nas discussed in section II.A, above, there are reasonable grounds to believe he\nis in the process of violating the FFA. When there is no indication of such an\nongoing federal violation, however, the question arises whether USMS authority\nto investigate state fugitives under \xc2\xa7566 may be extended to participation in the\narrest of such fugitives.\n9 Memorandum for the A ttorney General, from Henry E. Hudson, Director, USM S, Re: Proposed National Fugitive\nApprehension Operation at 1-2 (Apr. 1,1993).\n\n40\n\n\x0cAuthority o f FBI Agents, Serving As Special Deputy United States Marshals, to Pursue Non-Federal\nFugitives\n\n2. Marshal\xe2\x80\x99s Authority under 28 U.S.C. \xc2\xa7564\nAnother pertinent source of the authority in question here is 28 U.S.C. \xc2\xa7564,\nwhich provides:\nUnited States marshals, deputy marshals and such other officials\nof the Service as may be designated by the Director, in executing\nthe laws of the United States within a State, may exercise the same\npowers which a sheriff of the State may exercise in executing the\nlaws thereof.\nWe do not think that \xc2\xa7564 provides an independent basis for the initiation\nof investigation or pursuit of state law fugitives by marshals or deputy marshals.\nRather, it provides that they may employ the full powers of a state sheriff in\nexecuting federal law within a state only when they are already exercising valid\nfederal authority within that state.\nWhen marshals participate in a task force investigation of state law fugitives\npursuant to the Attorney General\xe2\x80\x99s direction under 28 U.S.C. \xc2\xa7566, they are \xe2\x80\x9c exe\xc2\xad\ncuting the laws of the United States within a State.\xe2\x80\x9d As stated by the Supreme\nCourt in In re Neagle, 135 U.S. 1, 59 (1890), \xe2\x80\x9c any duty of the marshal to be\nderived from the general scope of his duties under the laws of the United States,\nis \xe2\x80\x98a law\xe2\x80\x99 within the meaning of [the Supremacy Clause].\xe2\x80\x9d Within that context,\nthe marshals may exercise the same law enforcement powers as those of a sheriff\nin the host state. See United States v. St. Onge, 676 F. Supp. 1041, 1043 (D.\nMont. 1987); United States v. Laub Baking Co., 283 F. Supp. 217, 221 (N.D.\nOhio 1968). That would include the power to arrest a state law fugitive on prob\xc2\xad\nable cause. See United States v. Red Feather, 392 F. Supp. 916, 919 (D. S.D.\n1975) (U.S. marshals exercising federal authority at Wounded Knee uprising had\nfull authority of state sheriff under South Dakota law to \xe2\x80\x9c keep and preserve the\npeace\xe2\x80\x9d and to \xe2\x80\x9c pursue and apprehend all felons.\xe2\x80\x9d ) (emphasis added).\n3. Congressional Ratification o f Special Apprehension Programs\nEven if (contrary to our conclusion) none of the statutes discussed above provide\nauthority for the pursuit and arrest of fugitives by federal marshals for purely\nstate law violations, the USMS contends that Congress has nonetheless authorized\nsuch activities by passing specific appropriations to fund them after they had\nclearly been brought to the attention of Congress. Various opinions have recog\xc2\xad\nnized that, under appropriate circumstances, Congress may \xe2\x80\x9c ratify\xe2\x80\x9d an agency\xe2\x80\x99s\nexercise of previously unsettled authority by appropriating funds for the continu\xc2\xad\nation of the activity in question where that activity was specifically brought to\nCongress\xe2\x80\x99s attention beforehand. See Ex Parte Endo, 323 U.S. 283, 303 n.24\n41\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\n(1944); Brooks v. Dewar, 313 U.S. 354, 361 (1941); Isbrandtsen-Moller Co. v.\nUnited States, 300 U.S. 139, 147-48 (1937); Alabama v. TVA, 636 F.2d 1061,\n1069 (5th Cir. 1981), (\xe2\x80\x9c [C]ontinued congressional funding of allegedly improper\nagency action can be viewed in appropriate circumstances as a ratification of that\nagency practice.\xe2\x80\x9d ). For an effective ratification, the appropriation must manifest\na purpose to approve the particular authority which is claimed. See Ex Parte Endo,\n323 U.S. at 303 n.24.\nSubsequent Supreme Court opinions, however, have sharply curtailed this doc\xc2\xad\ntrine\xe2\x80\x99s applicability. In TVA v. Hill, 437 U.S. 153 (1978), for example, the Court\nrejected arguments that Congress\xe2\x80\x99s continued appropriation of funds to proceed\nwith construction of the Tellico Dam, even after the appropriations committees\nhad been fully apprised of the project\xe2\x80\x99s adverse impact on the endangered snail\ndarter, could be viewed as legislative ratification of the project notwithstanding\nits conflict with the requirements of the Endangered Species Act. The Court held\nthat the rule against repeals by implication trumps the legislative ratification doc\xc2\xad\ntrine; stressed that allowing the enactment of substantive law via appropriations\nmeasures would violate the Rules of Congress; and rejected the view that the\nstatements and understandings of the congressional appropriations committees can\nbe ascribed to Congress as a whole for purposes of effecting a ratification through\nappropriations. Id. at 190-92. In Greene v. McElroy, 360 U.S. 474 (1959), the\nCourt held that congressional ratification of security clearance regulations, adopted\nby the Secretary of Defense without explicit authorization from Congress or the\nPresident, could not be implied from the continued appropriation of funds to\nfinance aspects of the clearance program. The Court stressed that the doctrine\nof implied ratification is especially unsuitable when the administrative action in\nquestion is based on unsettled constitutional authority. Id. at 506-07.\nMore recently, the D.C. Circuit described additional limitations upon the ratifi\xc2\xad\ncation doctrine:\nWhile appropriations acts are \xe2\x80\x9c Acts of Congress\xe2\x80\x9d which can\nsubstantively change existing law, there is a very strong presump\xc2\xad\ntion that they do not [citing TVA v. Hilt], and that when they do,\nthe change is only intended for one fiscal year. . . . Accordingly,\na provision contained in an appropriations bill operates only in the\napplicable fiscal year unless its language clearly indicates that it\nis intended to be permanent.\nBuilding & Constr. Trades D ep\xe2\x80\x99t v. Martin, 961 F.2d 269, 273-74 (D.C. Cir.\n1992).10\ni0 See also EE O C v. CBS, Inc., 743 F.2d 969, 974 (2d Cir. 1984), where the court said that \xe2\x80\x9c Chadha\'s strict\ninterpretation o f the principles o f bicameralism, presentment, and separation o f powers reinforces the need for strong\nevidence o f ratification.\xe2\x80\x99* In rejecting a claim ed legislative ratification argument, that court added, \xe2\x80\x9c an appropriations\n\n42\n\n\x0cAuthority o f FBI Agents, Serving As Special Deputy United States Marshals, to Pursue Non-Federal\nFugitives\n\nThe USMS has cited excerpts from congressional hearings and reports indicating\nthat Congress has repeatedly passed Justice Department appropriations earmarked\nfor the FIST program, even though the participation of USMS personnel in the\npursuit and arrest of state law fugitives was repeatedly brought to the attention\nof the appropriations committees. 1987 Mem., Attachment at 3-6. The Service\ncontends that these materials are adequate to demonstrate legislative ratification\nof all actions taken in connection with its special apprehension programs under\nthe standards of the foregoing cases. The FBI\xe2\x80\x99s submission also acknowledges\nthat Congress was made aware that FIST operations entailed federal apprehension\nof state fugitives before it passed appropriations funding such operations, but sug\xc2\xad\ngests that the record is insufficient to establish a valid legislative ratification.\nThe cited legislative materials show that the USMS has repeatedly described\nthe nature of its special apprehension programs to the congressional appropriations\ncommittees. For example, USMS Director Morris described FIST operations in\nconsiderable detail in 1986 hearings before the House Appropriations Sub\xc2\xad\ncommittee for Commerce-Justice-State:\n[W]e go in and set up what is a 10-week round up in which we\nbring in people from out of district, plus dedicate people in the\ndistrict to work jointly with state and local officers in partnership.\nThey identify their worst fugitive felons, we identify ours. We cross\ndeputize their officers. We make them special deputy U.S. mar\xc2\xad\nshals. For 10 weeks their officers and ours work in the same cars,\nthe same command posts, going out and arresting felons.\n. . . I will tell you in all candor that the reason we can make\n3,300 arrests in a 10-week period is that local law enforcement has\nnot been funded adequately to deal with this problem.\nDepartments o f Commerce, Justice, and State, the Judiciary, and Related Agencies\nAppropriations fo r 1986: Hearings Before a Subcomm. o f the House Comm, on\nAppropriations, 99th Cong., pt. 7, at 737 (1985) (emphasis added). Similarly, in\ntestimony in support of the FY 1985 appropriations request, Morris described how\nUSMS agents worked with NYPD officers in the FIST program: \xe2\x80\x9c We would look\nfor local fugitives and they would look for federal fugitives.\xe2\x80\x9d Departments o f\nCommerce, Justice, and State, the Judiciary, and Related Agencies Appropriations\nAct for 1985: Hearings Before a Subcomm. o f the House Comm, on Appropria\xc2\xad\ntions, 98th Cong., pt. 8, at 784 (1984) (emphasis added). That year the Director\nwas also quite explicit in his request for specific Congressional approval for FIST\noperations: \xe2\x80\x9c Our plans are to try to begin one more FIST this year, and if this\nbill is a particularly unsuitable vehicle for an implied ratification o f unauthorized actions funded therein.\xe2\x80\x9d Id. at\n975.\n\n43\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nappropriation is granted by this committee, we would hope to run two in fiscal\nyear 1985.\xe2\x80\x9d Id. at 785. An appropriation of \xe2\x80\x9c $1,000,000 above the budget request\nfor FIST operations\xe2\x80\x9d was granted in the FY 1985 appropriations bill. H.R. Conf.\nRep. No. 98-952, at 26 (1984).\nMore recently, Congress appropriated an additional $2.5 million \xe2\x80\x9c for [USMS]\nexpenses and equipment related to the apprehension of fugitives.\xe2\x80\x9d Treasury, Postal\nService, and General Government Appropriations Act, 1993, Pub. L. No. 102393, 106 Stat. 1729, 1742 (1992). The 1992 Report of the House Appropriations\nCommittee contained material again demonstrating that committee\xe2\x80\x99s awareness\nand approval of cooperative state-federal law enforcement programs to apprehend\n\xe2\x80\x9c dangerous drug fugitives\xe2\x80\x9d and other fugitive felons. As the report states:\nCooperative law enforcement programs, involving all levels of\ngovernment, have proven to be the most effective and efficient way\nto apprehend dangerous drug fugitives. . . . The Committee has\nrecommended $3 million for the United States Marshals Service\nto enhance the efforts to apprehend and incapacitate criminals\nwanted for drug related offenses. . . . The Committee expects that\nthe Marshals Service will work closely with state and local law\nenforcement agencies . . . to conduct this special operation against\ndrug offenders.\nH.R. Rep. No. 102-618, at 42 (1992).\nAs a departure from the norm that legislative action should be textually explicit,\nthe legislative ratification doctrine should be invoked with caution and only on\nthe basis of a convincing showing that Congress actually intended to grant the\nauthority in question. Here, there is ample evidence that the appropriations\ncommittees were repeatedly informed that federal officers participated in thou\xc2\xad\nsands of arrests based on state law warrants as an integral part of the FIST oper\xc2\xad\nations for which specific appropriations were subsequently passed. On the other\nhand, there is little or no evidence that awareness of this activity extended beyond\nthe appropriations committees. Nor is there evidence that the appropriations\ncommittees, let alone Congress as a whole, regarded the FIST appropriations as\na permanent authorization for direct federal participation in arrests based solely\non state law violations.\nAs stressed by the Supreme Court in Greene v. McElroy, 360 U.S. at 50607, when the agency action at issue is based on unsettled or controversial legal\nauthority, reliance on the ratification doctrine is particularly questionable. Here,\nthe use of federal officers to arrest persons charged solely with state law violations\ncannot be viewed as a settled and uncontroversial legal matter. Given these consid\xc2\xad\nerations, and the more restrictive interpretation of the ratification doctrine reflected\nin more recent court opinions, we conclude that it does not provide a reliable\n44\n\n\x0cAuthority o f FBI Agents, Serving A s Special Deputy United States Marshals, to Pursue Non-Federal\nFugitives\n\nlegal basis for federal marshals to participate in the arrest of fugitives wanted\non state warrants only.\n4. Inherent or Federal Common Law Authority\nThe USMS also contends that it has inherent or \xe2\x80\x9c federal common law\xe2\x80\x9d\nauthority to pursue and arrest state law fugitives even if no federal statute applies\nin the particular case. We conclude that in circumstances where there is good\nreason to believe that the pursuit or arrest will prevent the commission of a federal\nfelony (including a violation of the FFA), the USMS does have limited inherent\nauthority to take the necessary preventive measures. In the absence of such cir\xc2\xad\ncumstances, U.S. marshals would generally lack any inherent or common law\nauthority to pursue or arrest fugitives wanted solely for state law violations.11\nHowever, as discussed in section II.B.2, supra, whenever a marshal or deputy\nmarshal is already executing federal law within a state, he may exercise the powers\nof a sheriff in that state in carrying out all reasonable aspects of the federal assign\xc2\xad\nment. See United States v. Laub Baking Co., 283 F. Supp. 217, 220-22 (N.D.\nOhio 1968).\nIn 1970, this office opined that Department of Transportation personnel depu\xc2\xad\ntized as Special Deputy Marshals had inherent authority to serve as armed air\nmarshals on civil aircraft in order to prevent acts of air piracy prohibited by 49\nU.S.C. \xc2\xa7 1472(h).12 The thrust of that opinion was that the United States \xe2\x80\x9c has\ninherent authority to take reasonable and necessary steps to prevent [federal\ncrimes].\xe2\x80\x9d Air Piracy Op. at 2 (emphasis added); see id. at 3 (stating that federal\nlaw enforcement personnel have \xe2\x80\x9c the inherent authority to protect against viola\xc2\xad\ntion of federal criminal laws\xe2\x80\x9d ). We most recently reaffirmed this position in\nadvising the USMS that it had inherent legal authority to provide protective serv\xc2\xad\nices to abortion clinics and providers, without regard to the applicability of a court\norder, in order to prevent violations of the Freedom of Access to Clinic Entrances\nAct, 18 U.S.C. \xc2\xa7248.\nThe most prominent judicial authority for the claim of inherent federal enforce\xc2\xad\nment authority is In re Neagle, 135 U.S. 1 (1890). There, the Court held that,\neven in the absence of specific legislation, \xe2\x80\x9c any duty of the marshal to be derived\nfrom the general scope of his duties under the laws of the United States is \xe2\x80\x98a\nlaw\xe2\x80\x99 within the meaning of [the Supremacy Clause].\xe2\x80\x9d Id. at 59. Although Marshal\nDavid Neagle\xe2\x80\x99s actions in shooting a would-be assassin to protect the life of a\nCircuit Justice were not specifically authorized by federal statute, the Court\n11 Under exigent circumstances, federal officers qualifying as peace officers under state law sometimes have the\nauthority, or even the duty, to intervene in state offenses committed in their presence, particularly when responding\nto the call o f a local law enforcement officer. See 5 Op. O.L.C. at 48. We adhere to that interpretation, but it\napplies only in narrow circumstances that do not encompass the issue posed here.\n12 M emorandum for Wayne B. Colburn, Director, U.S. Marshals Service, from Leon Ulman, Deputy Assistant\nAttorney General, Office o f Legal Counsel, Re: Law Enforcement Authority o f Special Deputies Assigned to D O T\nto Guard A gainst Air Piracy (Sept. 30, 1970) ( \xe2\x80\x9c Air Piracy Op.*\xe2\x80\x99).\n\n45\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nconsidered them to be within the general scope of his duties. The Court has reacknowledged and reapplied the \xe2\x80\x9c inherent authority\xe2\x80\x9d principle in subsequent\ncases. See, e.g., In re Debs, 158 U.S. 564 (1895).\nBased on Neagle and the principles underlying our Air Piracy opinion, we\nbelieve that U.S. marshals have inherent authority to take reasonable and necessary\nsteps to prevent federal crimes.13 Participation by federal marshals in cooperative\nfederal-state task forces approved by the Attorney General to pursue and\napprehend fugitive federal felons would appear to be a reasonable and necessary\nstep to prevent violations of the FFA and other federal statutes. We do not think\nthat such participation is rendered legally invalid, or constitutes an insupportable\nexpansion of federal law enforcement authority, merely because it also entails\nthe pursuit and arrest of state law fugitives as the quid pro quo that motivates\nthe participation of state and local police in these operations. State and local\ngovernments cannot be expected to participate in these joint operations unless\nthey receive reciprocal assistance in rounding up fugitives wanted under their laws\nand warrants.\nThe validity of that aspect o f joint task force operations is also fortified by\nthe prospect that many state law fugitives will \xe2\x80\x9c move or travel in interstate com\xc2\xad\nmerce,\xe2\x80\x9d and thus violate the FFA, in the course of their evasive activities. In\nother words, many of the state law fugitives arrested by these joint task forces\nare also potential violators of the FFA and other federal laws.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n13 W e do not base this position on the view that the scope o f federal law enforcement jurisdiction may be expanded\non the basis o f \xe2\x80\x9c federal com m on law.\xe2\x80\x9d Rather, federal common law only provides authority for taking necessary\nactions to implement federal authority that already exists or for taking emergency action to prevent crimes committed\nin the presence o f the federal officer. This v iew is codified in 28 U.S.C. \xc2\xa7 5 6 4 (formerly \xc2\xa7570), which gives U.S.\nmarshals the com m on law authority of a state sheriff in the respective states, but only insofar as he is already\nenforcing fed era l law within that state in the fir s t place.\n\n46\n\n\x0c'


b'Department of Justice Representation in Federal Criminal\nProceedings\nThe Attorney G en eral\xe2\x80\x99s statutory authority to provide legal representation to individual federal\nem ployees sued for acts occurring in the course of their official governm ent duties does not extend\nto representation in a federal crim inal proceeding, since in such a case the interests of the U nited\nStates have been defined by the prosecuting authority to be adverse to those o f the defendant.\n\nFebruary 11, 1982\nM EM ORANDUM OPINION FOR THE GENERAL COUNSEL,\nDEPARTMENT OF DEFENSE\nThis responds to your request that the D epartment of Justice amend its\nregulations regarding representation of federal employees who are defendants in\nfederal criminal proceedings. Current regulations prohibit representation of\nfederal employees by D epartment of Justice attorneys whenever \xe2\x80\x9c [t]he represen\xc2\xad\ntation requested is in connection with a federal criminal proceeding in which the\nemployee is a defendant.\xe2\x80\x9d See 28 C.F.R. \xc2\xa7 50.15(b)(1) (1981).\nYour concern over the existing policy apparently arises from a set of events\ninvolving a Navy lieutenant who was charged with violation of the Migratory\nBird Conservation Act, 16 U .S .C . \xc2\xa7 715 et seq. (1976 & Supp. IV 1980) a\nfederal m isdem eanor offense. The lieutenant, who was not afforded Departm ent\nof Justice representation, defended himself and was acquitted. You have sug\xc2\xad\ngested that application of the regulation prohibiting representation in a federal\ncriminal proceeding is inappropriate when a \xe2\x80\x9c low-level, statutory, strict-liability\nmisdem eanor,\xe2\x80\x9d such as a violation of the M igratory Bird Conservation Act, is at\nissue. You suggest that such a case is really more like a civil case, for which the\nDepartment of Justice routinely defends naval personnel, and that denial of\nrepresentation \xe2\x80\x9c am ounts to a prejudgment against the accused officer,\xe2\x80\x9d in light of\nthe potential legal fees. Thus, you recommend that the Department of Justice\namend its regulations to permit representation in a criminal proceeding when the\nDepartment of Justice and the employing agency concur that the individual was\nacting legitimately within the scope of his or her official capacity.\nThe authority to represent federal employees in civil cases derives from the\nAttorney G eneral\xe2\x80\x99s power to conduct litigation in which the United States \xe2\x80\x9c is\ninterested.\xe2\x80\x9d See 28 U .S .C . \xc2\xa7\xc2\xa7 509, 516-17 (1976 & Supp. IV 1980). Generally,\nthe United States is considered to have two basic \xe2\x80\x9c interests\xe2\x80\x9d in defending\n153\n\n\x0cem ployees w ho are sued in their individual capacities\xe2\x80\x94 or who are subject to\nstate prosecution\xe2\x80\x94 for acts occurring in the course of their official government\nduties: (1) establishing the lawfulness of authorized conduct on its behalf is\nim portant to the government, and (2) extending legal assistance to employees\ntends to prevent their being deterred from vigorous performance of their tasks by\nthe threat of litigation and the burden of defending suits. Thus, the interests of the\nU nited States are deem ed to be served best by extending legal assistance to its\nem ployees when an outside party challenges conduct occurring in the course of\ngovernm ent service.\nIn the case o f a federal criminal prosecution, however, the interests of the\nU nited States have been defined by the prosecuting authority to be adverse to\nthose o f the defendant. Therefore, the Attorney G eneral\xe2\x80\x99s authority to conduct\nlitigation on behalf of the United States does not extend to representation of an\nem ployee being prosecuted by the United States. First, the United States can no\nlonger be considered to have an interest in establishing the lawfulness of the\nem ployee\xe2\x80\x99s conduct, which it seeks to prove unlawful. Second, the federal\ngovernm ent does not have an interest in relieving its employees of the threat of\nfederal prosecution, as it does in relieving them of the threat and burdens of\noutside litigation. To the contrary, the governmental interest is in securing\ncom pliance w ith its own laws. Even in a civil suit, the interests of the United\nStates will not justify representation of an employee if the employee is suing or\nbeing sued by the United States. See 28 C.F.R. \xc2\xa7 5 0 .15(b)(4) (1981). Thus, even\nif a violation o f the Migratory B ird Conservation Act were treated as a \xe2\x80\x9c civil\xe2\x80\x9d\noffense for purposes o f representation, as you suggest, Department of Justice\nattorneys could not represent the federal employee. In sum, representation of\nfederal em ployees is undertaken not to protect the personal interests of the\nem ployees, but to protect the interests of the United States. Therefore, when the\ninterests of the U nited States have been determ ined to be adverse to the interests\no f one o f its em ployees, the Attorney G eneral\xe2\x80\x99s authority to represent the United\nStates cannot extend to representation of that employee.\nYou have suggested that (1) crim inal charges not be brought against a govern\xc2\xad\nm ent official for conduct taken in his or her official capacity without first\ndeterm ining the employing agency\xe2\x80\x99s position, and (2) if the agency and the\nD epartm ent of Justice agree that the employee was acting legitimately within the\nscope o f his o r her official authority, that the Department of Justice represent\nthe em ployee in a subsequent criminal proceeding. Essentially, this would\nprovide for the sam e procedure now mandated when determining whether or not\nto authorize representation in civil litigation. For the reasons explained above,\nhowever, the Justice Department could not in any event agree to represent an\nem ployee subject to federal prosecution. T hus, the consultation suggested could\nnot achieve the result you seek. Furtherm ore, we believe that it would be\ninappropriate to require formal consultation with a federal em ployee\xe2\x80\x99s agency\nbefore bringing crim inal charges. Such a rule would give federal employees a\nfavored status over other subjects of criminal investigations.\n154\n\n\x0cWe do not mean to suggest, however, that investigators do not seek to obtain\ninformation from the em ployee\xe2\x80\x99s agency. To the contrary, a federal criminal\ninvestigation of events occurring in the course of official duties normally would\nentail considerable contact between the Justice Department and the involved\nfederal agency. If, for some reason, the Justice Department investigators fail to\nobtain all the relevant information from the employing agency, that agency of\ncourse may come forward with the information that it believes is relevant. The\nultimate decision to prosecute, however, must remain with the Justice D epart\xc2\xad\nment. Once that decision is made, Justice Department representation of the\nemployee-defendant becomes inappropriate. This represents not merely a policy\ndecision, but a statutory construction of the representation authority vested in the\nAttorney General, and we therefore do not believe that the regulations can be\namended as you suggest.\nI am sympathetic to the arguments that you have made, particularly in light of\nthe specific incident recited in your letter. Of course, it would be inappropriate for\nme to express any judgm ent concerning the handling of that case, or the decision\nto prosecute under the facts there present. However, I do think that the best\nresolution to the point that you make would result if the \xe2\x80\x9c surrounding circum \xc2\xad\nstances [are] carefully evaluated in each case\xe2\x80\x9d at the stage where the decision to\nprosecute is made. I recognize that no system or policy position is foolproof, but\nin light of the im portant concerns underlying the existing policy, I am not inclined\nto recommend a change in basic policy simply because anomalies may occasion\xc2\xad\nally occur. Rather, I would hope that the exercise of proper good judgm ent and\nprosecutorial discretion would take care of the isolated situation in which the\nestablished policies would otherwise appear to work an injustice.\nT\n\nheodore\n\nB. O\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n155\n\n\x0c'


b'Carriage of Firearms by the Marshal, Deputy\nMarshals, and Judges of the Customs Court\nThe Marshal and Deputy Marshals of the Customs Court are not authorized by 18 U.S.C. \xc2\xa7 3053 to\ncarry firearms.\nNeither the official duties of the Marshal, as described by 28 U.S.C. \xc2\xa7 872 and Rule 19 of the Rules of\nthe Customs Court, nor the official duties of the Judges of the Customs Court would appear to\nnecessitate the carriage of firearms.\nIf the Customs Court finds it necessary to rely solely on its Marshal to police its quarters, it would\nprobably have inherent authority to authorize the Marshal and Deputies to carry arms; however,\nthere would be no basis for assuming inherent authority in the Court to authorize possession of arms\nby its Judges.\nA state could not constitutionally require a federal official whose duties necessitate carrying firearms to\nobtain a firearms license.\n\nOctober 3, 1967\n\nMEMORANDUM OPINION FOR THE\nACTING ASSISTANT ATTORNEY GENERAL\nCIVIL DIVISION\nThis is in response to your request for an informal opinion concerning three\nquestions on the carriage of firearms by Judges and Marshals of the Customs\nCourt, forwarded to you by Mr. Vance, the chief of the Customs Section. The\nquestions, which we understand were raised by the Customs Court itself, are as\nfollows:\n1. Are the Marshal and Deputy Marshals of the Customs Court within the authorization of 18 U.S.C. \xc2\xa7 3053 to carry firearms?\n2. Would possession of firearms by the Judges, Marshal, and Deputy\nMarshals of the Customs Court be deemed to be in pursuit of their\nofficial duties?\n3. Does the Customs Court have power to issue orders authorizing\nthe possession of firearms by its Judges, Marshal, or Deputy Marshals?\nIn addition, a related question has been raised indirectly concerning the propriety of subjecting federal officials to state or local licensing requirements involving\nfirearms.\nIn general, our responses to the three questions posed directly are:\n1. Section 3053 does not apply to the Marshal and Deputy Marshals\nof the Customs Court.\n\n290\n\n\x0cCarriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court\n\n2. The duties of the Marshal, as described by 28 U.S.C. \xc2\xa7 872 and\nRule 19 of the Rules of the Customs Court, would not appear to necessitate carrying firearms as part of official duties. However, if responsibility for the physical protection of the Court is, in fact, part of\ntheir duties, the Marshal and Deputies might be considered inherently authorized to carry arms, despite the absence of express statutory\nauthorization. On the other hand, we see no reasonable basis for concluding that carriage of firearms is necessary to carry out the official\nduties of Judges of the Customs Court.\n3. If the Court finds it necessary to rely solely on its Marshal to\npolice its quarters, it would probably have authority to authorize the\nMarshal and Deputies to carry arms. But, in our view, there would be\nno basis for assuming inherent authority in the Court to authorize\npossession of arms by its Judges.\nThe question of the applicability of state firearms licensing laws to federal\nofficials involves both issues of constitutional law and policy considerations.\nWhere federal law expressly authorizes the carrying of arms or where carrying\narms is essential to the performance of a federal function, any attempt to require\nofficials to obtain state licenses would almost certainly be unconstitutional. On the\nother hand, the Administration has, for several years, proposed legislation to\nreinforce local firearms restrictions and encourage further limitations on traffic in\nfirearms. As a matter of policy, it would seem inappropriate to demand exemption\nfrom state firearms restrictions in any but the obviously necessary circumstances\nor to encourage noncompliance on the part of federal officials with such state\nlaws.\nA detailed discussion of these points follows.\nI. Application of 18 U.S.C. \xc2\xa7 3053\nThe language of 18 U.S.C. \xc2\xa7 3053 expressly authorizes \xe2\x80\x9cUnited States marshals\nand their deputies\xe2\x80\x9d to carry firearms. It would appear that the quoted words refer\nto the United States Marshals appointed by the President with the advice and\nconsent of the Senate pursuant to 28 U.S.C. \xc2\xa7 561 and the Deputies appointed\npursuant to 28 U.S.C. \xc2\xa7 562. These are the officers ordinarily referred to as United\nStates Marshals and Deputies. Other special marshals appointed by, and solely\nresponsible to, the Judicial Branch are normally designated by the court which\nthey serve, e.g., the Marshal of the Supreme Court, the Marshal of the United\nStates Court of Appeals for the District of Columbia, the Marshal of the Customs\nCourt. Indeed, Rule 19 of the Rules of the Customs Court refers to its Marshal and\nUnited States Marshals in terms which reflect the distinction between them.\n\n291\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nThe United States Marshals, while serving as officers of the courts to which\nthey are assigned, are likewise law enforcement officers of the Executive Branch.\nThey are regularly responsible for delivering convicted persons to prison and have\nbeen called upon to protect individuals against armed attack. They are authorized\nto arrest persons violating the laws of the United States and it is in connection with\nthis authorization that the permission to carry firearms is granted by 18 U.S.C.\n\xc2\xa7 3053. Accordingly, it would appear that 18 U.S.C. \xc2\xa7 3053 is intended to apply\nonly to the United States Marshals and Deputies who serve as law enforcement\nofficers of the executive branch and would not cover the Marshal of the Customs\nCourt, who is solely an officer of that court.\nII. Relationship of Firearms to the Official Duties of the\nCourt and Its Marshal\nAs outlined in 28 U.S.C. \xc2\xa7 872 and Rule 19 of the Customs Court, the duties of\nthe Marshal are to attend the Court, serve and execute its process and orders,\ndisburse funds, take charge of transportation requests, notify the appropriate\nUnited States Marshal of the time and place of sessions when the Court is on\ncircuit, and perform such other duties as may be assigned by the Court. These\nwould not appear to be law enforcement duties of the type which would necessarily require the carrying of firearms. It is true that process serving may, at times,\nbecome hazardous. Yet federal law does not authorize the carrying of firearms by\nevery person authorized to serve process under Rules 4 and 45 of the Federal\nRules of Civil Procedure or to serve summons or subpoenas under Rules 4 and 17\nof the Federal Rules of Criminal Procedure. Carrying firearms would not appear to\na necessary element of process serving or of any of the other specific duties of the\nMarshal of the Customs Court.\nOn the other hand, if the Marshal and his Deputies are assigned official duties\nof a protective or law enforcement nature, carrying firearms could be a necessary\nelement of those duties. For example, the special police assigned by the General\nServices Administration (\xe2\x80\x9cGSA\xe2\x80\x9d) to protect public buildings pursuant to 40 U.S.C.\n\xc2\xa7 318 carry firearms, and GSA is expressly authorized to furnish the arms and\nammunition to them (40 U.S.C. \xc2\xa7 490(a)(2)). The White House Police (3 U.S.C.\n\xc2\xa7 202), the Capitol Police (40 U.S.C. \xc2\xa7 210), and the Smithsonian Guards (40\nU.S.C. \xc2\xa7 193t) are authorized, either directly or indirectly, to carry arms. The\nSupreme Court Police, although not expressly authorized to carry arms by statue\n(see 40 U.S.C. \xc2\xa7\xc2\xa7 13f, 13n), do in fact carry firearms while engaged in the duty of\nprotecting the Court and court building. Policing duties of this type ordinarily\ninvolve carrying firearms and if the Marshal of the Customs Court is required to\nperform such functions, then, we believe carrying firearms might be said to be a\npart of his official duties.\nIn general terms, the official duty of the Judges of the Customs Court is to hear\nand determine matters involving the customs laws. This is, of course, a judicial\n\n292\n\n\x0cCarriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court\n\nfunction. It does not involve policing or law enforcement in the commonly\nunderstood meaning of those terms. In our view, there would be little, if any, basis\nfor asserting that the carrying of firearms is a necessary or normal element in the\nperformance of the official duty of the Judges of the Customs Court. Federal laws\ndo not specifically authorize the carrying of firearms by any federal judges and, in\nmodern times at least, we know of no proposal that the carriage of arms be\nconsidered a normal element of federal judicial office.\nUndoubtedly there may be instances in which a federal judge requires the\nprotection of arms and these instances may be directly related to the performances\nof his official duties. However, it seems to us that the need for such protection,\nwhile perhaps incidental to the judicial office, is not a basic element of the office\nitself. Carrying a gun, even for self-protection, is not, it seems to us, part of the\nofficial duties of a federal judge. Accordingly, unless there are some special duties\nof the Customs Court necessitating firearms of which we are unaware, carrying a\ngun would not appear to involve the performance of an official duty on the part of\na judge of that court.\nIII. Power of the Customs Court to Authorize Firearms\nThe statutes relating to the Customs Court authorize it to assign the powers and\nduties of its Marshal (28 U.S.C. \xc2\xa7 872), and to exercise the same powers as a\ndistrict court with respect to preserving order (28 U.S.C. \xc2\xa7 1581). Taken together,\nthese provisions might be used as a basis for authorizing the Marshal and his\nDeputies to carry firearms, if it could be established that carrying arms is reasonably related to the protection of the Court in the performance of its duties. Moreover, a good argument could be made to support the view that a court has inherent\npower to take any necessary and proper action to police and protect its quarters\nand need not have any statutory basis for taking such action.\nIt must be noted that the authority to carry arms has ordinarily been granted\nexpressly by statute, even with respect to those whose need to carry guns seems\nobvious: e.g., FBI agents (18 U.S.C. \xc2\xa7 3052), and prison employees (18 U.S.C.\n\xc2\xa7 3050). Where express statutory authority is lacking, however, regulations have\nauthorized the carrying of firearms, see, e.g., 19 C.F.R. \xc2\xa7 23.33(c) (1967), which\nauthorizes customs officers to carry firearms and cites 19 U.S.C. \xc2\xa7 1581, which\nimposes law enforcement duties on customs officers. The validity of such a\nregulation does not appear to have been questioned.\nIt is our view that if the Marshal and Deputy Marshals of the Customs Court\nare assigned policing or law enforcement duties, the Court would probably have\nauthority to authorize them to carry arms. As a practical matter, however, we see\nno need for policing duties to be imposed on the Marshal or his Deputies. In\ngeneral, the obligation to provide guard service and armed protection for federal\nagencies, including courts, throughout the country is imposed on the General\nServices Administration. 40 U.S.C. \xc2\xa7\xc2\xa7 285, 318. Of course, where the federal\n\n293\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nagency is quartered in a building under state, municipal or private ownership it is\nsometimes necessary to make other arrangements. But it seems to us that arrangements for policing the present or the future quarters of the Customs Court should\nbe handled through GSA rather than by the Court itself.\nEnforcement of the orders and contempt authority of the Court might, of\ncourse, require arms depending upon the circumstances. However we do not have\nsufficient facts to indicate whether this presents a real problem and necessitates an\norder or regulation authorizing the carriage of firearms by the Marshal and his\nDeputies.\nWith respect to the Judges of the Customs Court, we are not aware of any\nreasonable basis for the court to authorize by regulation the carrying of firearms.\nAs noted above, this does not appear to be related to the performance of the\njudicial office.\nIV. Compliance with State Law\nIt may be stated as a general principle that a state may not impose restrictions\non the federal government or its officers in connection with official government\nbusiness. In Johnson v. Maryland, 254 U.S. 51 (1920), the Supreme Court held\nthat the state could not impose license requirements on federal employees driving\nPost Office trucks. The Court concluded that the licensing requirement would be\nan impermissible burden on the performance of a federal function. Id. at 57.\nSimilarly, it has been held that an internal revenue officer on his way to make an\narrest could not be convicted of speeding in violation of local laws when speed\nwas necessary to the performance of his duty. City of Norfolk v. McFarland, 145\nF. Supp. 258 (E.D. Va. 1956).\nOn the other hand, the Court noted in Johnson that federal officers and employees are not immune from all state laws and that state law must be complied with\nunless there is a superseding federal law or the state law interferes with the\nperformance of a federal function. 254 U.S. at 56\xe2\x80\x9357.\nWith respect to the carriage of firearms, it seems clear, although there appear to\nbe no federal court decisions directly in point, that a state could not constitutionally require a license of a person authorized by federal law to carry a firearm. Nor,\nin our opinion, could a license be required of a federal official whose duties\nnecessitate carrying arms, even if there is no express federal statute authorizing\narms. It seems equally clear, however, that employment by the federal government, in and of itself, does not automatically exempt a federal officer or employee\nfrom state licensing requirements respecting firearms.\nAs a matter of policy, it is our view that the federal government should not\ninsist upon or request exemption from state firearms laws except in those instances\nwhere it is obviously necessary. The Administration, and particularly the Departments of Treasury and Justice, have urged stricter controls on interstate traffic in\nfirearms, federal support and assistance in the enforcement of state laws on\n\n294\n\n\x0cCarriage of Firearms by Marshal, Deputy Marshals, and Judges of Customs Court\n\nfirearms, and stronger state laws on the subject. It would be inconsistent with the\npublicly announced policy on gun controls to urge any broader exemption from\nstate law with respect to federal officers and employees than is necessary to carry\nout the functions of the federal government.\nFRANK M. WOZENCRAFT\nAssistant Attorney General\nOffice of Legal Counsel\n\n295\n\n\x0c'


b"December 6, 1978\n\n78-64 MEMORANDUM OPINION FOR THE ASSISTANT\nATTORNEY GENERAL, CIVIL DIVISION\nNational Aeronautics and Space Agency\xe2\x80\x94Disposition\nof Items Carried by Astronauts on Space Flights\nThis responds to the inquiry of the National Aeronautics and Space Agency\n(NASA) General Counsel, which you forwarded to us, concerning the\ndisposition of postal covers that several astronauts, acting with or without\nauthorization, took on space flights and now held by NASA or the National\nArchives as custodian.1 We conclude:\n(1) With respect to postal covers the Apollo 15 astronauts took to the\nmoon, a claim to the covers by NASA exists only with respect to\nthose given by a third party to Astronaut Worden and taken by\nhim to the moon for a commercial purpose.\n(2) Should an astronaut sell a souvenir item authorized by NASA to\nbe transported into space as a personal memento, an action by\nNASA in quasi-contract would lie for recovery of the astronaut\xe2\x80\x99s\nprofits from the sale.\n\nI. Summary\nThe postal covers taken to the moon in July 1971 by the Apollo 15\nastronauts and now in NASA\xe2\x80\x99s custody can be considered from the standpoint\nof three separate categories: Covers the astronauts purchased and took to the\nmoon as mementos; covers they purchased or that were given to them by third\nparties, but not for commercial purposes, and subsequently transported with\nauthorization; and covers given to Astronaut Worden that were intended for\ncommercial exploitation. With respect to the Worden covers, his acceptance of\nthe covers and failure to disclose to NASA their source and intended use\nresulted in a breach of fiduciary obligation to NASA that would, in the eyes of a\ncourt, render Worden a trustee on behalf of NASA.\n'References in (his memorandum to covers \xe2\x80\x9c in NASA\xe2\x80\x99s custody\xe2\x80\x9d pertain to covers in the actual\npossession of NASA or the National Archives.\n\n281\n\n\x0cWe further conclude that any sale of covers or other souvenirs by the\nastronauts would constitute a form of unjust enrichment on the basis of which a\nclaim in quasi-contract for the proceeds of the sale could lie. The prospect of\nsuch an action, which could not be used to retain the Worden covers\nthemselves, might even in his case be the preferable means of discouraging\ncommercial use of the covers because of uncertainties in applying a theory of\nfiduciary obligation to the facts presented.\n\nII. The Facts\nNASA, through Donald Slayton, then its assistant director for flight crew\noperations, published regulations on August 18, 1965, permitting astronauts on\nspace flights to take with them into space up to 8 ounces each of personal\nmementos, subject to Slayton\xe2\x80\x99s approval and the approval of the mission\ndirector for each flight. No declaration as to the source or intended use of any\nmemento was required under this procedure. Among the items routinely\napproved and carried on subsequent space flights were a variety of postal\ncovers\xe2\x80\x94 decoratively printed envelopes bearing stamps and special can\xc2\xad\ncellations\xe2\x80\x94that are popular philatelic souvenirs. For example, 279 such covers\nwere carried, with approval, on Apollo flights 11, 13, and 14.\nAfter the flight of Apollo 15, because of events detailed below, NASA asked\nits astronauts to turn over to it postal covers and other souvenir property\npending an appraisal of the legal issues discussed in this memorandum.\nAlthough the discussion that follows applies to all such souvenirs, NASA has\ninvestigated only the facts surrounding the acquisition, transport, and disposi\xc2\xad\ntion of the Apollo 15 souvenirs. Consequently, this memorandum will focus on\nthose facts as garnered from memoranda describing the investigations into\nApollo 15 by NASA, the U.S. Postal Service, and the Senate Committee on\nAeronautical and Space Sciences.\nOn Apollo 15, astronauts David Scott, James Irwin, and Alfred Worden\ncarried with them a total of 642 covers: 398 covers carried by Scott without\nprior authorization; 144 covers carried, with authorization, by Worden that\nwere given to him by F. Herrick Herrick, a stamp collector and former film\ndirector; and 100 covers carried, with authorization, by the three astronauts to\nbe used as gifts or mementos.\nA. The Unauthorized Covers. The astronauts agreed to carry 400 specially\ncacheted covers at the suggestion of Horst Walter Eiermann, a German\nbusinessman, who, in turn, was acting on behalf of a German stamp dealer,\nHermann Sieger.2 The parties agreed that the astronauts would sell 100 covers\nto Eiermann for approximately $200 each and keep the remaining covers for\ntheir own use. The covers were designed by Scott, ordered from a commercial\nprinting company, and paid for by the astronauts.3 Before ordering the\n2The astronauts agreed originally to carry covers to be supplied to them by Sieger, through\nEiermann. Instead, the astronauts prepared the covers themselves.\n3In addition to the covers to be taken to the moon, the astronauts ordered between 800 and 1,000\ncacheted envelopes to be autographed on earth and distributed as flight souvenirs.\n\n282\n\n\x0cenvelopes, Scott submitted his cachet design to Harold Collins, chief of the\nKennedy Space Center Mission Support Office.\nDuring the early morning of July 26, 1971, the Apollo 15 launch date,\nCollins, through a previous arrangement with Forrest Rhodes, chief of the\nKennedy Space Center mail and distribution section, carried several hundred\nenvelopes to the center\xe2\x80\x99s post office. Ten-cent stamps, purchased by the\nastronauts, were affixed to each cover, and the covers were'canceled. Collins\nthen delivered the covers to astronaut quarters.\nJames Smotherman, who was in charge of Apollo 15 flight support and\nresponsible, among other things, for packaging the astronauts\xe2\x80\x99 personal items,\ninstructed two assistants to vacuumpack the envelopes for transportation. He\nneglected to list the covers on Scott\xe2\x80\x99s \xe2\x80\x9c personal property preference list\xe2\x80\x9d\nbecause he confused the covers in question with another set of covers that had\nbeen listed and approved for transport earlier. Scott had not attempted to secure\napproval for the Eiermann covers; however, neither he nor either of the other\nastronauts instructed anyone not to list the covers, and Scott apparently made\nno attempt to conceal from NASA personnel the fact of the covers\xe2\x80\x99 existence.\nAfter packaging, the coveri were given to Scott, who carried them aboard\nApollo 15 in a pocket of his spacesuit.\nFollowing the recovery of Apollo 15 and while aboard the recovery ship,\nU.S.S. Okinawa, the Apollo crew, with assistance from Okinawa crew\nmembers, affixed to the envelopes twin 8-cent \xe2\x80\x9c Space Achievement\xe2\x80\x9d postage\nstamps that the astronauts had paid for, and had the envelopes date-stamped in\nthe ship\xe2\x80\x99s post office. During their flight home from Hawaii, the astronauts\nsigned 100 covers, on the back of each of which appeared a notarized,\ntypewritten certification that the covers had been landed on the moon. Later\nScott mailed the 100 covers to Eiermann in Stuttgart, Germany.\nEiermann subsequently delivered the covers to Sieger, who retained 1, sold\nthe remaining 99, and transferred DM 30,500 (roughly $10,000) to each of\nthree bank accounts he had opened for the astronauts. The 99 covers sold for a\ntotal of approximately $150,000.\nThe astronauts, after receiving bankbooks for their German accounts, called\nEiermann to inform him that they had decided to accept no money for the\ncovers, and transmitted powers of attorney to enable him to close the accounts.\nThey accepted his alternative offer of stamp collections for their children, but\nseveral months later, they also declined this offer.\nUpon learning of the existence of the unauthorized covers. NASA, on June\n30, 1972, impounded the 298 covers remaining in the astronauts\xe2\x80\x99 possession.\n(Despite the astronauts\xe2\x80\x99 plan to carry 400, 298 appears to be the number of\ncovers actually carried.) The covers now in the National Archives\xe2\x80\x99 custody\nrepresent only the unauthorized covers the astronauts intended to keep for their\nown use.\nBecause of their actions, each astronaut was reprimanded; two were assigned\nto new positions, and one retired.\nB. The Worden Covers. Worden carried with him, with authorization, 144\ncovers supplied by Herrick, who had had the covers designed and printed\n283\n\n\x0cthrough a New York advertising executive. Herrick paid for the envelopes,\nstamps, and printing, and for printed cards that were placed in the envelopes.\nWorden did not tell NASA, prior to flight of Apollo 15, of the source of the\ncovers.\nBoth Herrick and Worden denied any agreement between them to compen\xc2\xad\nsate Worden for carrying the covers, and Worden has apparently received no\nmoney from the sale of any of them. However, Herrick did counsel Worden,\nprior to the flight, that taking such souvenirs to the moon would be a wise\ninvestment because of their value to stamp collectors.\nThe astronauts, following their recovery by the Okinawa, signed, stamped,\nand canceled the 144 covers. Of the 144, 16 were reported damaged or\ndestroyed; Worden gave 28 to friends and sent 100 to Herrick, 70 of which\nwere given, in turn, to a New York stamp dealer, who sold 10 covers, and, at\nHerrick\xe2\x80\x99s request turned 60 covers over to Worden. These 60 covers are now in\nthe National Archives\xe2\x80\x99 custody.\nC. Other Authorized Covers. Besides the 144 covers taken by Worden,\nIrwin and Scott carried an additional 100 authorized covers to be used for\nnoncommercial purposes. Irwin carried 88 covers as a favor to a fellow\nastronaut, whose wife is a stamp collector. All 88 covers are reportedly in her\npossession. Irwin also carried eight covers bearing a shamrock insignia; two\nwere given as gifts to Kennedy Space Center employees, and six were retained\nby Irwin, plus a single cover bearing a \xe2\x80\x9c First Man on the Moon\xe2\x80\x9d stamp and a\n\xe2\x80\x9c Bliss Centennial\xe2\x80\x9d 3-cent stamp. Scott carried, with authorization, a 1928\ncover bearing Orville Wright\xe2\x80\x99s signature and two covers furnished by the U.S.\nPostal Service, one of which Scott canceled on the moon and one of which\nremained in the command module. The canceled envelope has been placed on\npublic display by the Postal Service.\n\nIII. Discussion\nWe have identified two questions on which NASA seeks the advice of this\nOffice:\n(1) Whether NASA has any claim to postal covers and other\nsouvenirs that astronauts took into space and that are now in\nNASA\xe2\x80\x99s custody;\n(2) The remedies, if any, available to NASA to prevent astronauts or\nformer astronauts from profiting from the commercial exploita\xc2\xad\ntion of such souvenirs.\nWith respect to the first question as it applies to the Apollo 15 covers that\nNASA now holds, any claim by NASA to the covers themselves must rest on a\nproperty interest antedating the flight of Apollo 15, or on some equitable\nprinciple, the breach of which would make the astronauts constructive trustees\nfor this specific property. Because none of the covers were purchased by public\nfunds or prepared at public expense, NASA has no legal, as opposed to\nequitable, claim. Any claim must rest on a theory of constructive trusteeship.\nAt the time of the Apollo 15 flight, it was still routine NASA practice to\n284\n\n\x0cpermit astronauts to take postal covers into space as personal mementos. There\nthus appears to be no breach of any equitable or other principle that would\nsustain a claim to any of the 100 covers taken into space, with authorization, by\nScott and Irwin for noncommercial purposes. That 88 were given to Irwin by\nAstronaut Gordon and his wife does not alter this conclusion because no\ncommercial use for the covers appears to have been intended. Nor did Irwin\nprofit from his custody of the covers.\nWith respect to the 398 covers taken into space by Scott without authoriza\xc2\xad\ntion; three of the astronauts\xe2\x80\x99 actions may be deemed violations of some\nobligation to NASA: Scott\xe2\x80\x99s failure to secure authorization; the astronauts\xe2\x80\x99\nfailure to disclose the intended commercial use of 100 of the covers; and the\nastronaut\xe2\x80\x99s facilitation of the commercial exploitation of 100 of the covers. The\nsecond and third possible breaches of duty, however, would not sustain a claim\nto any of the 298 covers now held by NASA if it is assumed, as the evidence\nseems to indicate, that the astronauts intended to keep them as personal\nmementos. NASA might well have a colorable claim to the one cover retained\nby Sieger, who participated in any violation of duty that the astronauts\ncommitted. It appears, however, that the 99 other covers have passed to bona\nfide purchasers and are beyond NASA\xe2\x80\x99s reach.\nAs for the 298 unauthorized covers now in NASA\xe2\x80\x99s possession, the failure\nby Scott to secure authorization for the covers that were not intended for\ncommercial use would not be a breach of any equitable principle on which a\nclaim to the covers could be based. The violation of regulations appears\ninadvertent\xe2\x80\x94Scott made no effort to conceal his possession of the covers.\nFurther, Slayton has testified that he would have authorized transportation of\nthe covers had a request been made. Hearing on Commercialization of Items\nCarried by Astronauts Before the Senate Comm, on Aeronautical and Space\nSciences, 92d Cong., 2d sess. 59-60 (August 3, 1972) (statement of Donald\nSlayton to the committee in executive session; unpublished transcript). Although\nthe weight of the covers, 30 ounces, exceeded the 8-ounce limit established in\nthe 1965 regulations, that limit was based on the lesser capabilities of the\nGemini spacecraft then in use; current proposed NASA regulations would\npermit each astronaut up to 1.5 pounds of souvenirs per flight. 43 F. R. 25693,\n25694 (1978).\nA colorable claim does exist, however, with respect to the 60 covers\nremaining from the 144 given by Herrick to Worden. Although Worden did not\ninitiate his dealing with Herrick and did not profit from the sale of any covers,\nhis mere acceptance of the covers, the commercial purpose of which is amply\ndemonstrated by the evidence, may itself be deemed a breach of Worden\xe2\x80\x99s\nfiduciary obligation of complete loyalty to the interest of NASA, his principal,\nwhile employed as its agent.\nIt is fundamental that an agent owes his principal the loyalty of a fiduciary as\nto all matters within the scope of his employment. Restatement of Agency \xc2\xa7 13\n(1933). The duty of loyalty that the astronauts owed to NASA was codified in\n\xe2\x80\x9c Standards of Conduct for NASA Employees,\xe2\x80\x9d 14 CFR \xc2\xa7 1207.735-1 et seq.\n(1977), that were promulgated in October 1967, and governed the conduct.of\n285\n\n\x0cthe Apollo 15 astronauts. In relevant part, those regulations prohibited any\ncommercial exploitation by a NASA employee of his position, 14 CFR\n\xc2\xa7\xc2\xa7 1207.735-100(e)(l), (2), and (6); 1207.735-201(a) and (b)(2); 1207.735-605(a),\n(d); and, in particular, any outside employment that would involve the violation\nof Federal regulations, a conflict of interest, the use of NASA\xe2\x80\x99s name in\nconnection with a privately sold product, or the use of Federal facilities, or any\naction that would otherwise reasonably cause unfavorable criticism of NASA or\nimpair public confidence in the Agency, 14 CFR \xc2\xa7 1207.735-303(a)-(d),\n(f)-(h). In merely accepting covers from Herrick, in the light of Herrick\xe2\x80\x99s\ncommercial purposes, Worden arguably violated each of the foregoing regula\xc2\xad\ntions; insofar as the regulations reasonably define an astronaut\xe2\x80\x99s obligation of\ncomplete loyalty to his employer, those violations evidence a breach of\nfiduciary duty that would result in the imposition of a constructive trust over the\ncovers themselves for NASA\xe2\x80\x99s benefit.\nIn a claim for the imposition of a constructive trust, no actual damage need be\nshown:\nIt is immaterial that the profit was not made at the expense of the\nbeneficiary or principal; it is immaterial that if the fiduciary had not\nmade the profit it would have been made and could have been\nretained by someone else. The constructive trust which is imposed is\nbased upon the broad principle that a fiduciary must act with an eye\nsingle to the interest of his beneficiaries. If he were permitted to keep\na profit made by him in connection with the performance of his duties\nas fiduciary, he would be tempted to consider his own interest and not\nmerely that of the beneficiary. He will not be permitted to put himself\nin a position where there is a conflict between his self-interest and the\ninterest of the beneficiaries. \xe2\x80\xa2\n5 Scott, Law of Trusts \xc2\xa7 502, at 3555 (3d ed., 1967). See also. United States v.\nCarter, 217 U.S. 286 (1910); Byer v. International Paper Co., 314 F. (2d) 831\n(10th Cir. 1963); United States v. Bowen , 290 F. (2d) 40 (5th Cir. 1961). The\n\xe2\x80\x9c single-minded devotion\xe2\x80\x9d theory of fiduciary obligation has been cited with\napproval by courts in suits to recoup profits for the Government that were\nreaped by Government employees, who, during the course of their employ\xc2\xad\nment, had engaged in compromising outside activities. United States v. Carter,\n217 U.S. 286 (1910); United States v. Podell, 572 F. (2d) 31 (2d Cir. 1978);\nUnited States v. Drumm, 329 F. (2d) 109 (1st Cir. 1964); United States v.\nBowen, 290 F. (2d) 40 (5th Cir. 1961).\nIn Worden\xe2\x80\x99s case it may be that the doctrine of constructive trusteeship does\nnot apply because (1) the taking of the covers was not within the scope of his\nemployment, and (2) the benefit conferred on him by Herrick could not\nlawfully have been realized by NASA in the absence of Worden\xe2\x80\x99s acts. Scant\ncase law attempts to analyze these problems directly. Professor Scott discusses\na leading decision by the British House of Lords, holding that the Crown could\nrecover bribes received by a British army sergeant in Cairo, who enabled a\nlorry to pass civilian police without inspection by escorting it through the city\n286\n\n\x0cwhile in uniform. Notwithstanding the objections noted above to the imposition\nof a constructive trust and the Crown\xe2\x80\x99s inability to show any loss in this case,\nthe Lords held that the Crown was entitled to any profit that the sergeant reaped\nby the use of his uniform and pretended authority. Reading v. Attorney\nGeneral, [1951] A.C. 507, aff g Reading v. The King, [1949] 2 K.B. 232, a ff g\n[1948] 2 K.B. 268 (discussed in 5 Scott, Law of Trusts, \xc2\xa7 502 at 3556 (3d ed.\n1967)).\nSimilarly, the second circuit recently held that the Government\xe2\x80\x99s complaint\nagainst a former Congressman, alleging his receipt of unlawful legal fees and\ncampaign contributions, was sufficient to state a claim for the imposition of a\nconstructive trust on the money he received. United States v.. Podell, 572 F.\n(2d) 31 (2d Cir. 1978); see also, Fuchs v. Bidwell, 31 111. App. (3d) 567, 334\nN.E. 2d 117 (1975), rev\xe2\x80\x99d on other grounds, 65 111. (2d) 503, 359 N.E. (2d)\n158 (1976). The results in both cases are sensible because, despite what would\nhave been the respective Governments\xe2\x80\x99 inability to obtain the profits in\nquestion themselves, the balance of equities between the innocent principals\nand their wrongdoing agents unquestionably favored the principals.\nTwo further uncertainties arise in extending traditional fiduciary principles to\nthe unusual facts of the Worden case; we conclude, however, although no\nprecedent squarely resolves these uncertainties, that, because of the policy\ninherent in the concept of fiduciary obligations neither problem would preclude\na successful suit in equity.\nFirst, it might be argued that Worden\xe2\x80\x99s disloyal intent notwithstanding,, his\nintent, at the moment he accepted Herrick\xe2\x80\x99s covers, had not yet materialized\ninto a disloyal act compromising the performance of Worden\xe2\x80\x99s official duties.\nThose breaches that courts penalize by the imposition of constructive trusts\ninvolve acts manifestly in conflict with a trust beneficiary\xe2\x80\x99s interests, or where\nthe profits unlawfully received represent an apparent incentive for trustees to\nperform their duties without full attention to their principals\xe2\x80\x99 interests, e.g.,\nacts adverse to the principals\xe2\x80\x99 financial interest, Byers v. International Paper\nCo., 314 F. (2d) 831 (10th Cir. 1963); acts that deprive the principal of a\nbusiness opportunity, Community Counselling Service, Inc. v. Reilly, 317 F.\n(2d) 239 (4th Cir. 1963); County of Lake v. X-PO Security Police Service, Inc.,\n27 111. App. (3d) 750, 327 N.E. (2d) 96 (1975); unauthorized exploitation of\ninformation obtained through the purported trustee\xe2\x80\x99s employment, Hunter v.\nShell Oil Co., 198 F. (2d) 485 (5th Cir. 1952); or acts that create the\nappearance of a conflict of interest or the possibility that the activity involved\nwill compromise the employee\xe2\x80\x99s judgment in the exercise of his duties, United\nStates v. Carter, 217 U.S. 286 (1910); United States v. Podell, 572 F. (2d) 31\n(2d Cir. 1978); United States v. Drumm, 329 F. (2d) 109 (1st Cir. 1964).\nHowever, Worden\xe2\x80\x99s act need not have conflicted with his tasks in getting to the\nmoon and back in order to have constituted a violation of his duty of undivided\nloyalty to NASA. His acceptance of the covers from a commercially interested\nparty, which, once disclosed, foreseeably compromised his employer\xe2\x80\x99s good\nname and reputation, sufficiently conflicted with the interests of NASA so as to\njustify the imposition of a constructive trust in this case.\n287\n\n\x0cA second question is whether Worden had title to the Herrick covers at the\ntime they were given to him. For a trust to be imposed with respect to any\nproperty, the disposition of property must constitute profit to the trustee in\nviolation of his fiduciary duties. Worden or Herrick could conceivably argue\nthat, assuming a plan to permit Herrick to sell the covers, the covers, at the time\nof their transfer to Worden, were only a loan to Worden and that their transfer\nalone represented no gain to the astronaut. The facts, however, belie any loan\ncharacterization. Worden was able, apparently without dispute, to dispose of\n28 of the covers, of his own accord, as postflight gifts. Further, at Worden\xe2\x80\x99s\nrequest, Herrick secured the return to Worden of 60 unsold covers from the\nstamp dealer Siegel. These acts are consistent only with Worden\xe2\x80\x99s ownership of\nthe covers at the time Herrick delivered them to him.\nAn alternative approach that would apply as well to covers in the hands of\nother astronauts would be legal action to recover, instead of the souvenirs, any\nprofits the astronauts might realize from their sale. In the event of a sale, the\nrelevant case law suggests several theories on which a claim of \xe2\x80\x9c unjust\nenrichment\xe2\x80\x9d may be based. Under any theory, a claim of unjust enrichment\nasserts that profits accrued to the defendant through some wrongful act, and the\ndefendant should, therefore, be compelled to disgorge his profits. 5 Scott, Law\nof Trusts \xc2\xa7 462.2 (3d ed. 1967); Second Restatement of Agency \xc2\xa7 404A(1958).\nCase law and secondary authority suggest three theories under which the\nenrichment of the astronauts can be deemed wrongful; the policy considerations\nunderlying the three theories clearly converge:\nA. Unjust Enrichment Through Violations of Quasi-Contractual Duties.\nRegardless of whether those of NASA\xe2\x80\x99s regulations cited above accurately\ndefine the astronauts\xe2\x80\x99 fiduciary obligations, they do represent duly promulgated\nregulations that would be violated by the astronauts\xe2\x80\x99 commercial exploitation of\ntheir souvenirs. Official duties imposed by statute or regulation are quasicontractual in nature. Cf., Steamship Co. v. Joliffe, 69 U.S. (2 Wall.) 450\n(1864); NLRB v. Killoran, 122 F. (2d) 609 (8th Cir. 1941), cert, denied, 314\nU.S. 696 (1941); In re Shawsheen Dairy, 47 F. Supp. 494 (D. Mass. 1942)\n[per Wyzanski, D.J.]. Where a defendant profits from his violation of a\nquasi-contractual obligation, he is liable to the party to whom he owed his duty\nfor the profits realized.\nB. Unjust Enrichment Through Use of the Principal\xe2\x80\x99s Assets. Whatever\nvalue inheres in souvenirs that were taken to the moon clearly could not have\nbeen realized without the use of NASA\xe2\x80\x99s facilities and equipment. Section 404\nof the Second Restatement of Agency (1958) states that where the use of a\nprincipal\xe2\x80\x99s assets is predominantly responsible for producing a profit for the\nprincipal\xe2\x80\x99s agent, the agent is liable, at the principal\xe2\x80\x99s election, for all profits\nthus realized.\nC. Unjust Enrichment at NASA's Expense. Under the basic principle of\nrestitution, one who is unjustly enriched at the expense of another is required to\ncompensate the other for his loss. Restatement of Restitution \xc2\xa7 1 (1937).\nHowever, where the profiteering violates some independent equitable princi\xc2\xad\nple, for example, the obligations of a fiduciary, the measure of restitution will\n288\n\n\x0cbe the entire profit realized by the defendant and not the value of the plaintiffs\nloss. Restatement of Restitution, \xc2\xa7\xc2\xa7 138, 197 (1937); cf.} Heddendorf v.\nGoldfine, 167 F. Supp. 915 (D. Mass. 1958). This theory is essentially the\nsame as the theory advanced above for the recovery of Worden\xe2\x80\x99s covers, but\nviews the proceeds of a sale rather than the covers as trust property in the hands\nof the astronauts. The application of the theory to recover the profits from any\nsale is more straightforward, under these facts, than the attempt to retain the\ncovers themselves. First, assuming that a breach of duty through such a sale can\nbe shown, there is no question after a sale as to whether the astronaut in\nquestion has profited from his breach. Second, where an astronaut sells his\nsouvenirs\xe2\x80\x94creating the possibility that NASA\xe2\x80\x99s name and reputation may be\nexploited by private parties for personal gain\xe2\x80\x94a plainer case of a potential\nconflict of interests appears than in the case of the initial acceptance of covers\nfrom a private party. This theory, however, can be used to restrain sales by\nastronauts only as long as they are employed by NASA; the termination of\nemployment ends their duty of loyalty to NASA\xe2\x80\x99s interests, and fiduciary\nobligations no longer apply.\nLeon U lm an\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n289\n\n\x0c"