b'(Slip Opinion)\n\nAppointment of United States Trade Representative\nWere it constitutional, 19 U.S.C. \xc2\xa7 2171(b)(4) would prohibit anyone \xe2\x80\x9cwho has directly\nrepresented, aided, or advised a foreign entity . . . in any trade negotiation, or trade\ndispute, with the United States\xe2\x80\x9d from being appointed as United States Trade Representative. A nominee\xe2\x80\x99s previous work on two matters involving antidumping or countervailing duty proceedings before administrative agencies would not be disqualifying\nunder the statute, because neither matter was a \xe2\x80\x9ctrade negotiation\xe2\x80\x9d or, during the time\nof his engagement, a \xe2\x80\x9ctrade dispute[] with the United States.\xe2\x80\x9d\nMarch 13, 2017\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT *\nYou have asked for our opinion whether 19 U.S.C. \xc2\xa7 2171(b)(4) (Supp.\nIII 2015), if legally effective, would bar the appointment of Robert E.\nLighthizer as United States Trade Representative. The provision, first\nenacted in 1995, 1 states that anyone \xe2\x80\x9cwho has directly represented, aided,\nor advised a foreign entity (as defined by section 207(f )(3) of title 18) in\nany trade negotiation, or trade dispute, with the United States may not be\nappointed as United States Trade Representative or as a Deputy United\nStates Trade Representative.\xe2\x80\x9d In 1996, we concluded that the provision\xe2\x80\x94\nthen codified at 19 U.S.C. \xc2\xa7 2171(b)(3)\xe2\x80\x94\xe2\x80\x9cis an unconstitutional intrusion\non the President\xe2\x80\x99s power of appointment and thus has no legal effect.\xe2\x80\x9d\nMemorandum for John M. Quinn, Counsel to the President, from Christopher Schroeder, Acting Assistant Attorney General, Office of Legal\nCounsel, Re: Appointment of United States Trade Representative at 1\n\n* Editor\xe2\x80\x99s note: A copy of this opinion was provided to the Senate Committee on Finance before Mr. Lighthizer\xe2\x80\x99s March 14, 2017 confirmation hearing. See Nomination of\nRobert E. Lighthizer: Hearing Before the S. Comm. on Finance, 115th Cong. 3 (2017).\nThe Consolidated Appropriations Act, 2017, made the statutory limitation discussed in\nthis opinion inapplicable to \xe2\x80\x9cthe first person appointed\xe2\x80\x9d as U.S. Trade Representative\nafter May 5, 2017, \xe2\x80\x9cif that person served as\xe2\x80\x9d a Deputy U.S. Trade Representative before\nthe limitation\xe2\x80\x99s 1995 enactment (as Mr. Lighthizer had). Pub. L. No. 115-31, div. B,\n\xc2\xa7 541(a), 131 Stat. 135, 229 (2017). Six days later, the Senate provided its advice and\nconsent to Mr. Lighthizer\xe2\x80\x99s appointment. See 163 Cong. Rec. S2906 (daily ed. May 11,\n2017).\n1 See Lobbying Disclosure Act of 1995, Pub. L. No. 104-65, \xc2\xa7 21(b), 109 Stat. 691,\n704\xe2\x80\x9305.\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\n(July 1, 1996) (\xe2\x80\x9c1996 USTR Memorandum\xe2\x80\x9d) (citation omitted). 2 President Clinton, however, had stated his intention, \xe2\x80\x9cas a matter of practice,\nto act in accordance with [the] provision\xe2\x80\x9d despite its unconstitutionality.\nStatement on Signing the Lobbying Disclosure Act of 1995 (Dec. 19,\n1995), 2 Pub. Papers of Pres. William J. Clinton 1907 (1995). We therefore considered whether the provision, if effective, would have barred the\nproposed 1996 appointment, and we concluded that it would have. See\n1996 USTR Memorandum at 3. Two years later, we addressed whether\nthe same restriction would have barred the appointment of a Deputy\nUnited States Trade Representative, and we concluded that it would not\nhave. See Memorandum for Charles F.C. Ruff, Counsel to the President,\nfrom Beth Nolan, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Appointment of Deputy United States Trade Representative\n(June 25, 1998) (\xe2\x80\x9c1998 Deputy USTR Memorandum\xe2\x80\x9d).\nFor similar reasons, we now conclude, on the basis of publicly available documents and other information you have provided about selected\nmatters on which Mr. Lighthizer has worked, that, if section 2171(b)(4)\nwere legally effective, his work on those matters would not be disqualifying under the statute.\nI.\nSince 1985, Mr. Lighthizer has been in private practice, primarily handling a variety of international-trade matters on behalf of domestic entities, foreign governments, and other foreign entities. You have asked us to\nconsider his work on behalf of two clients and to assume that each of\nthose clients was a \xe2\x80\x9cforeign entity\xe2\x80\x9d as defined by 18 U.S.C. \xc2\xa7 207(f )(3). 3\n\n2\n\nThe portions of the 1996 USTR Memorandum addressing the constitutional question\nwere published as Constitutionality of Statute Governing Appointment of United States\nTrade Representative, 20 Op. O.L.C. 279 (1996).\n3 As defined by 18 U.S.C. \xc2\xa7 207(f )(3), \xe2\x80\x9cthe term \xe2\x80\x98foreign entity\xe2\x80\x99 means the government of a foreign country as defined in section 1(e) of the Foreign Agents Registration\nAct of 1938, as amended, or a foreign political party as defined in section 1(f ) of that\nAct.\xe2\x80\x9d Under the cross-referenced provision, \xe2\x80\x9c\xe2\x80\x98government of a foreign country\xe2\x80\x99 includes\nany person or group of persons exercising sovereign de facto or de jure political jurisdiction over any country, other than the United States, or over any part of such country, and\nincludes any subdivision of any such group and any group or agency to which such\n\n2\n\n\x0cAppointment of United States Trade Representative\n\nThese matters involved Mr. Lighthizer\xe2\x80\x99s representation of Chinese or\nBrazilian entities in antidumping or countervailing duty proceedings\nbefore the Department of Commerce\xe2\x80\x99s International Trade Administration\n(\xe2\x80\x9cITA\xe2\x80\x9d) or the U.S. International Trade Commission (\xe2\x80\x9cITC\xe2\x80\x9d).\nAs relevant here, an antidumping or countervailing duty proceeding\ncommences when an \xe2\x80\x9cinterested party\xe2\x80\x9d\xe2\x80\x94such as a company, a trade\nor business association, or a union\xe2\x80\x94files a petition with both the ITA and\nthe ITC contending that a domestic industry is injured or threatened\nby imports that are being sold in the United States at less than fair value\nor being subsidized by a foreign government. See ITC, Antidumping\nand Countervailing Duty Handbook, USITC Pub. 4540, at I-3 (14th ed.\nJune 2015), available at https://www.usitc.gov/trade_remedy/documents/\nhandbook.pdf (\xe2\x80\x9cITC Handbook\xe2\x80\x9d); see also 19 U.S.C. \xc2\xa7\xc2\xa7 1671a(b), 1673a(b),\n1677(9). Upon receipt of a petition, the ITA must \xe2\x80\x9cnotify the government\nof any exporting country named in the petition\xe2\x80\x9d and, in certain instances,\n\xe2\x80\x9cprovide the government of any exporting country . . . an opportunity for\nconsultations with respect to the petition.\xe2\x80\x9d 19 U.S.C. \xc2\xa7\xc2\xa7 1671a(b)(4)(A),\n1673a(b)(3)(A). Each agency conducts a preliminary investigation and\nrenders a preliminary determination, which may be followed by a final\ninvestigation and final determination by each agency. See 19 U.S.C.\n\xc2\xa7\xc2\xa7 1671\xe2\x80\x931671h, 1673\xe2\x80\x931673h; ITC Handbook at II-3 to II-23. The ITA\nmay impose antidumping or countervailing duties if the following two\nconditions are satisfied: (1) the ITA renders a \xe2\x80\x9cfinal determination\xe2\x80\x9d that\ndumping of goods below fair value has occurred or that an exporting\nnation has provided a countervailing subsidy with respect to the goods;\nand (2) the ITC renders a \xe2\x80\x9cfinal determination\xe2\x80\x9d\xe2\x80\x94in what is referred to as\nthe \xe2\x80\x9cinjury phase\xe2\x80\x9d of the proceeding\xe2\x80\x94that the importer\xe2\x80\x99s behavior materially injures, threatens to materially injure, or materially retards the\nestablishment of, an industry in the United States. See 19 U.S.C. \xc2\xa7\xc2\xa7 1671\xe2\x80\x93\n1671h, 1673\xe2\x80\x931673h, 1677; ITC Handbook at II-14, II-24 to II-25.\nAfter each agency\xe2\x80\x99s final determination is published, a party to the\nproceeding may \xe2\x80\x9ccontest[] any factual findings or legal conclusions upon\nwhich the determination is based\xe2\x80\x9d by commencing a civil action in\nthe U.S. Court of International Trade. 19 U.S.C. \xc2\xa7 1516a(a)(1)\xe2\x80\x93(2); see\n\nsovereign de facto or de jure authority or functions are directly or indirectly delegated.\xe2\x80\x9d\n22 U.S.C. \xc2\xa7 611(e).\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\n28 U.S.C. \xc2\xa7 2631(c). 4 In such an action, the United States is named as\nthe defendant and is represented by either the Department of Justice or\nthe ITC. See 28 U.S.C. \xc2\xa7 516; 19 U.S.C. \xc2\xa7 1333(g); see, e.g., Zhengzhou\nHarmoni Spice Co. v. United States, 34 C.I.T. 40, 42 (Ct. Int\xe2\x80\x99l Trade\n2010) (observing that, in an action challenging a final administrative\ndetermination of the ITA, \xe2\x80\x9cthe only necessary parties are the plaintiff []\nand the defendant (i.e., Commerce)\xe2\x80\x9d); Shandong TTCA Biochemistry Co.\nv. United States, 34 C.I.T. 582, 582 (Ct. Int\xe2\x80\x99l Trade 2010) (counsel listing\ndenoting that, in a challenge to an injury determination by the ITC, the\nITC appeared \xe2\x80\x9cfor Defendant United States\xe2\x80\x9d).\nII.\nAs noted, the matters in question involved antidumping or countervailing duty proceedings before the ITA or ITC. We see no reason to believe\nthat either matter was a \xe2\x80\x9ctrade negotiation.\xe2\x80\x9d Nor was either, during the\nperiod of Mr. Lighthizer\xe2\x80\x99s engagement, a \xe2\x80\x9ctrade dispute[] with the United\nStates\xe2\x80\x9d that would make his work disqualifying under section 2171(b)(4).\nA.\nYou have informed us that, between March and November 1991, Mr.\nLighthizer represented the China Chamber of Commerce for Machinery\nand Electronics Products by \xe2\x80\x9cassisting another partner [at his law firm]\nwith respect to the injury phase of U.S. antidumping litigation [i.e., an\nITC investigation] regarding certain electric fans from China.\xe2\x80\x9d In December 1991, shortly after Mr. Lighthizer\xe2\x80\x99s own involvement ended, the\nITC issued its final determination of material injury to U.S. fan manufacturers. See Certain Electric Fans from the People\xe2\x80\x99s Republic of China,\nInv. No. 731\xe2\x80\x93TA\xe2\x80\x93473, USITC Pub. 2461 (Dec. 1991) (Final).\nIn 1996, we briefly discussed the meaning of a \xe2\x80\x9ctrade dispute[] with the\nUnited States\xe2\x80\x9d under what was then 19 U.S.C. \xc2\xa7 2171(b)(3). We explained\nthat, \xe2\x80\x9cwithin the ordinary meaning of the statutory language, advice about\ndissolving a trade agreement [between the United States and a foreign\n\n4 For goods coming from Canada or Mexico, the administrative determinations of the\nITA and the ITC are subject to review by a \xe2\x80\x9cbinational panel,\xe2\x80\x9d selected by the governments involved. See 19 U.S.C. \xc2\xa7\xc2\xa7 1516a(g)(8), 3432(a)(1)(D)\xe2\x80\x93(E).\n\n4\n\n\x0cAppointment of United States Trade Representative\n\ncountry] would concern a \xe2\x80\x98trade dispute,\xe2\x80\x99 albeit a dispute that might be\naverted.\xe2\x80\x9d 1996 USTR Memorandum at 5. But we reserved the question\n\xe2\x80\x9cwhether the statutory bar is triggered by . . . work on countervailing duty\ncases . . . in administrative fora.\xe2\x80\x9d Id. at 5 n.4. We considered the latter\nquestion in 1998, concluding that while an antidumping or countervailing\nduty matter was pending before the ITA, \xe2\x80\x9cthe dispute was not \xe2\x80\x98with\xe2\x80\x99 the\nUnited States, as we interpret that term in the statute.\xe2\x80\x9d 1998 Deputy\nUSTR Memorandum at 2. 5\nWe reaffirm that reasoning here and confirm that it is equally applicable to work performed during an antidumping or countervailing duty\ninvestigation by the ITC. As we explained in 1998, \xe2\x80\x9c[w]e read the word\n\xe2\x80\x98with,\xe2\x80\x99 in this context, as meaning \xe2\x80\x98in opposition to\xe2\x80\x99 or \xe2\x80\x98against\xe2\x80\x99 the\nUnited States.\xe2\x80\x9d 1998 Deputy USTR Memorandum at 2 (citing Webster\xe2\x80\x99s\nThird New International Dictionary 2626 (def. 1a) (1993)). That is the\nwell-settled meaning of the term with when used in the context of a dispute. See 20 Oxford English Dictionary 443 (2d ed. 1989) (def. 2: \xe2\x80\x9cOf\nconflict, antagonism, dispute, injury, reproof, competition, rivalry, and the\nlike: In opposition to, adversely to: = AGAINST\xe2\x80\x9d). Thus, a foreign entity\nis in a trade dispute \xe2\x80\x9cwith\xe2\x80\x9d the United States only if that entity\xe2\x80\x99s position\nis in opposition, or adverse, to that of the U.S. Government. 6\n\n5\n\nThe nominee at issue in the 1998 Deputy USTR Memorandum disclosed to the\nSenate that she had previously worked on behalf of a foreign governmental entity during\nan ITA proceeding. See Nominations of Susan G. Esserman, Timothy F. Geithner, Gary\nS. Gensler, Edwin M. Truman, & David C. Williams: Hearing Before the S. Comm. on\nFinance, 106th Cong. 42 (1999). Although the statutory prohibition was neither modified\nnor waived, the Senate gave its advice and consent to her appointment.\n6 The plain meaning of the statutory text is reinforced by a structural consideration.\nIn the same section of the 1995 statute that restricted the range of permissible appointees,\nCongress also removed the time limit on the post-employment restriction that forbids a\nformer U.S. Trade Representative or Deputy U.S. Trade Representative from representing,\naiding, or advising a foreign entity \xe2\x80\x9cwith the intent to influence a decision of \xe2\x80\x9d an officer\nor employee of the United States. 18 U.S.C. 207(f )(1)\xe2\x80\x93(2); see Lobbying Disclosure Act\n\xc2\xa7 21(a), 109 Stat. at 704. Congress could have used such a formulation in section 2171 if\nit had intended to exclude from the class of Trade Representative appointees not just those\nwho have opposed a final determination of the ITA or the ITC but also those who have\nappeared before those agencies with \xe2\x80\x9cthe intent to influence\xe2\x80\x9d their officers or employees\nbefore such determinations have been made. In comparison, section 2171(b)(4) seems\n\xe2\x80\x9cdesigned to reach a narrower category of activities, of a more directly adversarial\nnature.\xe2\x80\x9d 1998 Deputy USTR Memorandum at 2.\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nThe kinds of ITA and ITC administrative proceedings at issue here do\nnot present such circumstances. Although the proceedings are adversarial\nin nature, the United States is not one of the adversaries. Instead, when\nthe agencies conduct their investigations, each one is still deciding, on\nbehalf of the U.S. Government, whether to side with the petitioners representing domestic industries or with the foreign respondents. Cf. Sys.\nApplication & Techs., Inc. v. United States, 691 F.3d 1374, 1385 (Fed.\nCir. 2012) (characterizing the ITA\xe2\x80\x99s \xe2\x80\x9crole\xe2\x80\x9d as that of \xe2\x80\x9ca neutral arbiter in\ntrade disputes\xe2\x80\x9d). An antidumping or countervailing duty investigation\nmay be correctly described as a \xe2\x80\x9ctrade dispute[] before the agency.\xe2\x80\x9d JBF\nRAK LLC v. United States, 991 F. Supp. 2d 1343, 1355 (Ct. Int\xe2\x80\x99l Trade\n2014), aff\xe2\x80\x99d, 790 F.3d 1358 (Fed. Cir. 2015) (emphasis added). But the\nforeign respondent in an investigation initiated at the behest of a petitioner does not have a dispute \xe2\x80\x9cwith\xe2\x80\x9d the agency any more than a party in\na district court proceeding has a dispute \xe2\x80\x9cwith\xe2\x80\x9d the court.\nWhen the ITA and the ITC have rendered their final determinations and\none of the parties seeks judicial review, the nature of the trade dispute\nchanges. At that point, the agencies cease to be mere adjudicators. Their\nfinal determinations become the position of the United States, which\nbecomes the defendant, directly adverse to the party challenging the\ndecision (which may or may not be a foreign respondent). As we explained in 1998, the United States is then \xe2\x80\x9ca real party\xe2\x80\x9d before a court (or\na binational panel) and may therefore find itself in a trade dispute \xe2\x80\x9cwith\xe2\x80\x9d\na foreign entity challenging the ITA\xe2\x80\x99s or ITC\xe2\x80\x99s determination. See 1998\nDeputy USTR Memorandum at 3.\nWhile we recognize that any proceeding before the ITA or ITC has\nthe potential to become a \xe2\x80\x9ctrade dispute with the United States,\xe2\x80\x9d that\noutcome is contingent on the position that the agency, and hence the\nUnited States, ultimately adopts. If the ITA and the ITC find in the foreign entity\xe2\x80\x99s favor, the foreign entity will not be adverse to the United\nStates. Instead, the domestic petitioner will be the one that has a trade\ndispute \xe2\x80\x9cwith\xe2\x80\x9d the United States. Indeed, that is what happened in the\nChinese-fan matter after Mr. Lighthizer\xe2\x80\x99s representation concluded. The\njudicial challenge to the ITA\xe2\x80\x99s final determination was filed by \xe2\x80\x9ca major\nAmerican manufacturer of oscillating and ceiling fans.\xe2\x80\x9d Lasko Metal\nProd., Inc. v. United States, 810 F. Supp. 314, 315 (Ct. Int\xe2\x80\x99l Trade 1992),\naff\xe2\x80\x99d, 43 F.3d 1442 (Fed. Cir. 1994). Some Chinese companies\xe2\x80\x94but\n6\n\n\x0cAppointment of United States Trade Representative\n\napparently not the China Chamber of Commerce for Machinery and\nElectronics Products\xe2\x80\x94intervened as defendants and \xe2\x80\x9csupport[ed] the\nagency\xe2\x80\x99s decision.\xe2\x80\x9d Id. at 315, 316. 7\nAccordingly, Mr. Lighthizer\xe2\x80\x99s representation of the China Chamber of\nCommerce for Machinery and Electronics Products, which ended before\nthe ITC\xe2\x80\x99s final injury-phase determination, did not occur in a trade dispute with the United States and therefore would not disqualify him from\nappointment under section 2171(b)(4).\nB.\nFrom October 1985 through February 1986, Mr. Lighthizer represented\nthe Sugar and Alcohol Institute of Brazil (which was then part of the\nBrazilian Ministry of Industry and Commerce) in an effort to achieve a\nsettlement of antidumping and countervailing duty proceedings. On the\nbasis of publicly available information and the facts you have provided,\nwe do not believe that Mr. Lighthizer\xe2\x80\x99s representation of the Institute\nwould be disqualifying under section 2171(b)(4).\nThe relevant matters were initiated by petitions filed with the ITA and\nthe ITC in February 1985. See ITC, Certain Ethyl Alcohol from Brazil,\nInv. Nos. 701\xe2\x80\x93TA\xe2\x80\x93239 and 731\xe2\x80\x93TA\xe2\x80\x93248, USITC Pub. 1678, at 1 (Apr.\n1985) (Preliminary). The ITA issued its final determination in February\n1986, concluding that fuel ethanol imported from Brazil was being sold\nin the United States at less than fair value, and the ITC issued its final\ndetermination in March 1986, finding no injury or threat of injury to an\nindustry in the United States. See Final Determination of Sales of Fuel\nEthanol from Brazil at Less than Fair Value, 51 Fed. Reg. 5572 (Feb. 14,\n1986) (ITA final determination); Certain Ethyl Alcohol from Brazil, Inv.\nNos. 701\xe2\x80\x93TA\xe2\x80\x93239 and 731\xe2\x80\x93TA\xe2\x80\x93248, USITC Pub. 1818 (Mar. 1986)\n7\n\nThe situation here thus differs from one that led us to conclude that a potential appointee had given advice about a \xe2\x80\x9ctrade dispute with the United States\xe2\x80\x9d when she advised\na foreign government about the legal consequences of terminating its trade agreement\nwith the United States. 1996 USTR Memorandum at 5. There, it was readily apparent that,\nshould the foreign government decide to terminate the trade agreement, the termination\nwould initiate an adversarial relationship\xe2\x80\x94a dispute\xe2\x80\x94with the United States. We indicated that any advice prepared for the purposes of informing the foreign government\xe2\x80\x99s\ntermination decision was therefore inseparable from the anticipated trade dispute with the\nUnited States.\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\n(Final). More than two months after Mr. Lighthizer\xe2\x80\x99s last involvement\nin these matters, a challenge to the ITA\xe2\x80\x99s determination was filed in the\nCourt of International Trade. See Internor Trade Inc. v. United States,\n10 C.I.T. 472, 472 (Ct. Int\xe2\x80\x99l Trade 1986) (complaint filed on May 20,\n1986); see also Internor Trade, Inc. v. United States, 651 F. Supp. 1456\n(Ct. Int\xe2\x80\x99l Trade 1986).\nThe November 1985 representation agreement provided that lawyers\nfrom a different firm would \xe2\x80\x9ccontinue representing the government of\nBrazil and the producers in the above mentioned pending antidumping\nand countervailing duty cases,\xe2\x80\x9d while Mr. Lighthizer\xe2\x80\x99s firm would \xe2\x80\x9cassist\nthem to the extent possible in the defense of such cases.\xe2\x80\x9d Skadden, Arps,\nSlate, Meagher & Flom, Registration Statement Pursuant to the Foreign\nAgents Registration Act of 1938 as Amended, Registration No. 3746, app.\n(Dec. 3, 1985). The representation was expected to \xe2\x80\x9cinvolve legal interpretations and advice, the drafting of legal documents and briefs, strategy\nsessions, as well as numerous meetings with administration, congressional\nand U.S. business interests.\xe2\x80\x9d Id. Mr. Lighthizer was named in the agreement and signed it on behalf of the firm. Id. Even assuming that he was\ninvolved in both the ITA and the ITC proceedings, for the reasons set\nforth above, his activities\xe2\x80\x94which occurred during the administrative\nstage, in which each federal agency was an adjudicator rather than a\nparty\xe2\x80\x94did not involve a trade dispute \xe2\x80\x9cwith\xe2\x80\x9d the United States.\nThe registration statement filed by Mr. Lighthizer\xe2\x80\x99s law firm in December 1985 stated more generally that the firm intended to \xe2\x80\x9cprovide\ngeneral legal services related to settlement of disputes between Brazil and\nthe United States involving the trading of ethanol\xe2\x80\x9d and that, in the course\nof the engagement, the firm could communicate on behalf of its client\nwith both Congress and \xe2\x80\x9cexecutive agencies.\xe2\x80\x9d Skadden, Arps, Slate,\nMeagher & Flom, Exh. B to Registration Statement Pursuant to the\nForeign Agents Registration Act of 1938 as Amended, Registration No.\n3746 (Dec. 3, 1985) (emphasis added). Again, insofar as the \xe2\x80\x9cdisputes\xe2\x80\x9d\nreferred to in the registration statement as objects of potential settlement\nwere the same disputes that were being litigated before the ITA and the\nITC, we do not believe they qualify as trade disputes \xe2\x80\x9cwith\xe2\x80\x9d the United\nStates for the purposes of section 2171(b)(4). As explained above, at least\nuntil a party initiates a civil action in the Court of International Trade, any\nadversity is between the petitioners and the respondents in the administra8\n\n\x0cAppointment of United States Trade Representative\n\ntive proceedings, rather than \xe2\x80\x9cwith\xe2\x80\x9d the United States. Because you have\nindicated that the \xe2\x80\x9cdisputes\xe2\x80\x9d referred to in the above-cited materials were\nin fact the investigations that were pending before the ITA and the ITC,\nwe believe that Mr. Lighthizer\xe2\x80\x99s representation in these matters would not\nbe disqualifying under section 2171(b)(4). 8\nIII.\nOn the basis of the information you have provided and our review of\npublicly available documents, we conclude that, if 19 U.S.C. \xc2\xa7 2171(b)(4)\nwere legally effective, neither of the matters discussed above would bar\nMr. Lighthizer\xe2\x80\x99s appointment as United States Trade Representative.\nCURTIS E. GANNON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n8 Because we reach this conclusion, we need not determine whether Mr. Lighthizer was\n\xe2\x80\x9cdirectly represent[ing]\xe2\x80\x9d the Government of Brazil.\n\n9\n\n\x0c'


b'Constitutionality of Vesting Magistrate Judges with\nJurisdiction Over Asset Forfeiture Cases\n\nA statute vesting m agistrate ju d g es with jurisdiction over asset forfeiture cases w ould violate Article 111\no f the C o n stitution\n\nDecember 6, 1993\nM e m o r a n d u m O p in i o n f o r t h e\nD e p u t y D i r e c t o r , P o l i c y a n d L i t i g a t io n\nA s s e t F o r f e it u r e O f f ic e\n\nYou have asked whether Congress may constitutionally enact a statute requiring\nthat asset forfeiture cases involving property valued below a certain level be heard\nby a United States Magistrate Judge rather than a United States District Judge.\nThe limitations imposed by Article III forbid Congress to assign jurisdiction over\nsuch cases to a Magistrate Judge without the assent of the parties. Therefore, we\nmust advise you that the provision you have described would be unconstitutional.\nThe Supreme Court has explained that the power to adjudicate private rights\nmust be vested in an Article III court. See Northern Pipeline Const. Co. v. M ara\xc2\xad\nthon Pipe Line Co ., 458 U.S. 50, 63-76 (1982) (plurality opinion). Although the\nadjudication of public rights need not be assigned to an Article III court, both civil\nand criminal forfeiture cases involve disputes over private, not public, rights. The\nCourt has held that no criminal case can be conceptualized as a public rights dis\xc2\xad\npute even though the United States is a party to all criminal proceedings. Id. at 70\nn.24 (citing United States ex rel. Toth v. Quarles, 350 U.S. 11 (1955)). Similarly,\nthe Court has ruled that Congress generally \xe2\x80\x9ccannot \xe2\x80\x98withdraw from [Art. Ill] judi\xc2\xad\ncial cognizance any matter which, from its nature, is the subject of a suit at the\ncommon law, or in equity, or admiralty,\xe2\x80\x99\xe2\x80\x9d id. at 69 n.23 (quoting M urray\xe2\x80\x99s Lessee\nv. Hoboken Land & Improvement Co., 59 U.S. (18 How.) 272, 284 (1856)), and\nevery civil forfeiture action indubitably constitutes a matter that is the subject of a\nsuit at the common law or in equity. See Calero-Toledo v. Pearson Yacht Leasing\nCo., 416 U.S. 663, 680-83 (1974) (tracing history of forfeiture).\nCongress has the authority in some situations to \xe2\x80\x9cfashion causes of action that\nare closely analogous to common-law claims and place them beyond the ambit o f \xe2\x80\x99\nArticle III, see Granfinanciera, S.A. v. Nordberg, 492 U.S. 33, 52 (1989)\n(discussing congressional authority to abrogate Seventh Amendment right to trial\nby jury), but the Supreme Court has only sustained the exercise of this authority\nwhen Congress creates a regulatory framework that includes administrative adjudi\xc2\xad\ncation of such claims. See Atlas Roofing v. Occupational Safety and Health Re\xc2\xad\nview C om m \xe2\x80\x99n, 430 U.S. 442, 450-61 (1977) (collecting cases); see also\n148\n\n\x0cC onstitutionality o f Vesting M agistrate Judges with Jurisdiction O ver A sset F orfeiture Cases\n\nGranfinaneiera, 492 U.S. at 51-52; Crowell v. Benson, 285 U.S. 22, 50-51 (1932).\n\nAbsent the creation of a separate administrative mechanism for administration and\nadjudication of civil forfeitures, such cases must be assigned in the first instance to\nArticle III judges. Assignment of such cases to Magistrate Judges, who are mere\nadjuncts to United States District Judges, see Gomez v. United States, 490 U.S.\n858, 872 (1989), cannot satisfy the Article III requirement.\nIn upholding 28 U.S.C. \xc2\xa7 636(c), which authorizes Magistrate Judges to con\xc2\xad\nduct civil trials with the consent of the parties, the en banc Ninth Circuit stated\n\xe2\x80\x9cthat parties to a case or controversy in a federal forum are entitled to have the\ncause determined by Article III judges.\xe2\x80\x9d Pacemaker Diagnostic Clinic o f America,\nInc. v. Instromedix, Inc., 725 F.2d 537, 541 (9th Cir. 1984) (Kennedy, J.), cert,\ndenied, 469 U.S. 824 (1984). Therefore, the Ninth Circuit concluded that a\n\xe2\x80\x9cmandatory provision for trial of an unrestricted class of civil cases by a magistrate\nand not by Article 111 judges would violate the constitutional rights of the liti\xc2\xad\ngants.\xe2\x80\x9d Id. at 542. Based upon this rule, any statute vesting jurisdiction over fed\xc2\xad\neral forfeiture cases \xe2\x80\x94 even a limited class of civil forfeiture cases involving small\namounts of money \xe2\x80\x94 in federal Magistrate Judges would almost certainly be con\xc2\xad\nstitutionally infirm.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n149\n\n\x0c'


b'Lack of Authority of the Office of the United States Trade\nRepresentative to Represent Private Industry in Proceedings\nBefore the United States International Trade Commission\nT he O ffice o f th e U nited S lates Trade R epresentative lacks authority under the T rade A ct o f 1974\no r its ow n organic statute to provide legal representation to a private dom estic industry in adm inis\xc2\xad\ntrative p roceedings before the United S tates International Trade C om m ission.\n\nSeptember 24, 1998\nL e t t e r O p i n io n f o r t h e D e p u t y G e n e r a l C o u n s e l\nO f f ic e o f t h e U n it e d S t a t e s T r a d e R e p r e s e n t a t iv e\n\nThis letter responds to your request for our opinion regarding the authority of\nthe Office of the United States Trade Representative ( \xe2\x80\x9c USTR\xe2\x80\x9d ) to provide legal\nrepresentation to a private domestic industry in an administrative investigation\nbefore the United States International Trade Commission (\xe2\x80\x9c ITC\xe2\x80\x9d ).1 Specifically,\nyou have asked whether USTR attorneys may serve as legal counsel to a domestic\nindustry in the context o f an investigation to determine whether that industry is\neligible for relief under section 202 of the Trade Act of 1974, as amended, 19\nU.S.C. \xc2\xa7 2252. We conclude that USTR is not authorized by the pertinent statutes\nto provide such representation.\nPursuant to 19 U.S.C. \xc2\xa7\xc2\xa72251\xe2\x80\x942254 (1994), the President has the authority to\ntake certain actions, including raising tariffs and imposing quotas, to benefit a\ndomestic industry where the ITC determines that imports are a substantial cause\nof serious injury to the industry. Before such presidential action may be taken,\nthe ITC must conduct an investigation (known as a \xe2\x80\x9c section 201 investigation\xe2\x80\x9d ),\nmake a determination that imports constitute a substantial cause (or threat) of\nserious harm to the industry, and recommend the action that would address the\ninjury. See id. \xc2\xa7 2252(a), (b), (e). In addition, with respect to any such determina\xc2\xad\ntion by the ITC, an interagency trade organization chaired by the United States\nTrade Representative is directed to recommend \xe2\x80\x9c what action the President should\ntake\xe2\x80\x9d to grant relief to the industry. Id. \xc2\xa7 2253(a)(1)(C).\nThe statutory scheme providing for section 201 investigations and relief from\nimport competition does not explicitly or implicitly provide for legal representa\xc2\xad\ntion of a private domestic industry by USTR. Indeed, the specific roles that are\nmandated for USTR in that scheme make it clear that Congress did not con\xc2\xad\ntemplate such representation by USTR attorneys.\nUnder 19 U.S.C. \xc2\xa7 2252(a)(1), a petition for relief may be filed with the ITC\nby \xe2\x80\x9c an entity, including a trade association, firm, certified or recognized union,\nor group of workers, which is representative of an industry.\xe2\x80\x9d The statute directs\n1 Letter for Randolph Moss, A cting Assistant Attorney General, Office of Legal Counsel, from Kenneth P Freiberg,\nDeputy General Counsel, Office o f the United States Trade Representative (Sept 10, 1998)\n\n236\n\n\x0cLack o f A uthonty o f the Office o f the United States Trade Representative to Represent Private Industry\nin Proceedings Before the United States International Trade Commission\n\nthat the ITC \xe2\x80\x9c shall promptly transmit copies of the petition to [USTR] and other\nFederal agencies directly concerned.\xe2\x80\x9d Id. \xc2\xa7 2252(a)(3). The petitioner may also\nsubmit to the ITC and USTR a plan to facilitate positive adjustment to import\ncompetition. Id. \xc2\xa7 2252(a)(4). Before submitting such a plan, the petitioner and\nother entities representative of the industry may consult with USTR, or with any\nagency considered appropriate by USTR, to evaluate the adequacy of proposals\nin the plan. Id. \xc2\xa7 2252(a)(5)(A). The statute directs USTR, upon receiving a\nrequest for such consultations, to \xe2\x80\x9c confer with the petitioner and provide such\nassistance, including publication of appropriate notice in the Federal Register, as\nmay be practicable in obtaining other participants in the consultation.\xe2\x80\x9d Id.\n\xc2\xa7 2252(a)(5)(B). With respect to perishable agricultural and citrus products, peti\xc2\xad\ntioners may request USTR to make a provisional determination of injury due to\nimports, which triggers a request to the ITC for monitoring and investigation under\na separate statute, 19 U.S.C. \xc2\xa7 1332(g) (1994). See id. \xc2\xa7 2252(d)(1).\nThe statutory scheme also mandates a specific role for the interagency trade\norganization established under 19 U.S.C. \xc2\xa7 1872(a) (1994), the chairperson of\nwhich is the United States Trade Representative. Specifically, the statute provides\nthat that organization shall, with respect to each determination of import injury\nby the ITC, \xe2\x80\x9c make a recommendation to the President as to what action the Presi\xc2\xad\ndent should take.\xe2\x80\x9d Id. \xc2\xa7 2253(a)(1)(C). Among the factors that the President is\nto take into account in determining what action to take are various considerations\ninvolving the affected domestic industry, as well as considerations involving other\nindustries, firms, and the U.S. economy generally. See id. \xc2\xa7 2253(a)(2).\nIn short, the section 201 scheme gives USTR specific duties involving consulta\xc2\xad\ntion with representatives of the affected industry and recommendations to the\nPresident as to what corrective action is appropriate. Because those statutory duties\ninvolve considerations beyond the interests of the industry, we believe that they\nare inconsistent with a role for USTR that would entail actual legal representation\nof the industry seeking relief. Moreover, neither this statute nor any other of which\nwe are aware provides for dual roles for USTR that would include providing legal\ncounsel for a private domestic industry in a section 201 proceeding.\nFinally, nothing in USTR\xe2\x80\x99s organic statute, 19 U.S.C. \xc2\xa72171 (1994), provides\nfor this type of legal representation by USTR. Section 2171 sets forth the powers\nand duties of the United States Trade Representative\xe2\x80\x94including developing,\ncoordinating, and advising the President on international trade policy, conducting\ninternational trade negotiations, and issuing policy guidance to agencies on inter\xc2\xad\nnational trade\xe2\x80\x94 but does not include any power or duty that can be construed\nas a general authorization for providing the legal representation contemplated in\nyour request.\n\n237\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 22\n\nFor these reasons, we conclude that USTR is not authorized to have its attorneys\nserve as legal counsel to a private domestic industry in the context of a section\n201 investigation.\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n238\n\n\x0c'


b"Access to Criminal History Records by Non-Governmental\nEntities Performing Authorized Criminal Justice Functions\nN on-govem m ental entities perform ing authorized crim inal ju stice functions under contract w ith govern\xc2\xad\nm ent law enforcem ent agencies may be granted access to crim inal history records m aintained under\nthe authority o f 28 U.S.C. \xc2\xa7 534, subject to effective controls to guard against unauthorized use\nand to ensure effective oversight by the D epartm ent o f Justice.\nB ecause D epartm ent o f Justice regulations im plem enting 28 U S C. \xc2\xa7 534 do not affirm atively authorize\ndissem ination o f crim inal history records to non-govem m ental entities under contract to assist law\nenforcem ent agencies, those regulations should be am ended to provide such authorization before\naccess is granted to those entities.\n\nJune 12, 1998\nM e m o r a n d u m O p in io n f o r t h e D e p u t y D ir e c t o r\nF e d e r a l B u r e a u o f In v e s t i g a t i o n\n\nThis responds to your request for our legal opinion concerning the circumstances\nin which non-govemmental entities performing criminal justice functions under\ncontract with government law enforcement agencies may be granted access to\ncriminal history records information ( \xe2\x80\x9c CHRI\xe2\x80\x9d ) subject to the provisions of 28\nU.S.C. \xc2\xa7534 (1994).' We conclude that the Attorney General, or her delegee,2\nmay permit such access in appropriate circumstances under \xc2\xa7 534. Should the\nAttorney General decide to do so, we believe that the governing regulation, 28\nC.F.R. pt. 20 (1997), should be amended in accordance with the rulemaking\nrequirements of the Administrative Procedure Act (\xe2\x80\x9c APA\xe2\x80\x9d ), see 5 U.S.C. \xc2\xa7553\n(1994), for the reasons discussed below.* Finally, any proposal to permit con\xc2\xad\ntractor access to CHRI must incorporate effective controls to guard against\nunauthorized use or release of CHRI by the contractors and to insure that the\nDepartment can maintain effective oversight.\nI.\n\nSection 534 directs the Attorney General to \xe2\x80\x9c acquire, collect, classify, and pre\xc2\xad\nserve identification, criminal identification, crime, and other records\xe2\x80\x9d and to\n\xe2\x80\x9c exchange such records and information with, and for the official use of, author\xc2\xad\nized officials of the Federal Government, the States, cities, and penal and other\n* Editor\xe2\x80\x99s Note. The Department\xe2\x80\x99s regulations have since been amended to authorize the category o f controlled\naccess discussed in this opinion See 28 C.F.R \xc2\xa7 20 33(a)(7) (2000).\n1Memorandum for Dawn Johnsen, Acting Assistant Attorney General, Office o f Legal Counsel, from Robert M\nBryant, Deputy Director, FBI, Re Access to and Dissemination o f Information from the Department o f Justice (DOJ)\nCriminal History Record Information (CHRI) System (Oct. 3, 1997) ( \xe2\x80\x9c FBI M emo\xe2\x80\x9d )\n2 The Attorney General has delegated her CHRI exchange responsibilities to the Federal Bureau of Investigation\n( \xe2\x80\x9c FBI\xe2\x80\x9d ). See 28 C.F R. \xc2\xa7 \xc2\xa7 0 85(b), 20 31(b) (1997).\n\n119\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\ninstitutions.\xe2\x80\x9d 3 28 U.S.C. \xc2\xa7 534(a)(1), (4). The statute thus requires the Attorney\nGeneral to collect, maintain, and exchange criminal identification records with\nfederal, state, and local criminal justice agencies. Although the statute does not\nexpressly preclude such agencies from sharing these records with third parties,\nit provides that \xe2\x80\x9c [t]he exchange o f records and information authorized by sub\xc2\xad\nsection (a)(4) of this section is subject to cancellation if dissemination is made\noutside the receiving departments o r related agencies.\xe2\x80\x9d Id. \xc2\xa7 534(b). This office\nhas previously construed the phrase \xe2\x80\x9c related agencies\xe2\x80\x9d to include only those\nagencies expressly authorized under \xc2\xa7 534(a) to receive CHRI directly from the\nDepartment. See Memorandum to Files, from Mary C. Lawton, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: Railroad Police Access to FBI\nCriminal Identification Records at 5 (June 22, 1978) (\xe2\x80\x9c Lawton M emo\xe2\x80\x9d ).\nAs we read the statute, it does not on its face forbid the government agencies\nthat are authorized to receive CHRI from sharing it with private contractors\nassisting them in the performance o f their duties. However, \xc2\xa7 534(b) provides an\nenforcement mechanism that enables the Attorney General to oversee the use of\nCHRI by recipients. This statutory provision, which vests authority in the Attorney\nGeneral to cancel CHRI exchange arrangements, contemplates that she may invoke\nthat authority in order to guard against the improper use or redissemination of\nthe CHRI that the FBI provides. Accordingly, as further discussed below, the\nstatute would permit the Attorney General to authorize the disclosure of CHRI\nto private contractors performing criminal justice functions for government agen\xc2\xad\ncies that are authorized to receive CHRI, but any such authorization would have\nto impose controls on the recipients and their contractors to preserve the Attorney\nGeneral\xe2\x80\x99s statutory oversight authority.\nRather than expressly prohibiting categories of CHRI disclosures, \xc2\xa7 534(a)(4)\nmerely limits mandatory CHRI exchanges to those that are for the \xe2\x80\x9c official use\xe2\x80\x9d\nof the designated \xe2\x80\x9c authorized officials.\xe2\x80\x9d The text of \xc2\xa7534 does not address\nwhether a private contractor acting under the direction, or on behalf, of such\n\xe2\x80\x9c authorized officials\xe2\x80\x9d could be said to be engaged in, enabling, or facilitating\nthe \xe2\x80\x9c official use\xe2\x80\x9d of the CHRI by those officials.\nOn the other hand, \xc2\xa7 534(b) pointedly discourages the \xe2\x80\x9c dissemination\xe2\x80\x9d of cov\xc2\xad\nered records outside \xe2\x80\x9c the receiving departments or related agencies,\xe2\x80\x9d by providing\nthat such dissemination \xe2\x80\x9c subjects]\xe2\x80\x9d the noncompliant agency or department to\npossible cancellation of its exchange privileges under the statute. 28 U.S.C.\n\xc2\xa7 534(b). Moreover, it is clear that this provision was intended \xe2\x80\x9c to protect the\nprivacy of rap-sheet subjects,\xe2\x80\x9d Departm ent o f Justice v. Reporters Comm, fo r\n3 The reference to \xe2\x80\x9c other institutions\xe2\x80\x9d does n o t generally provide for disclosure to non-govemmental entities.\nSee M emorandum for John Mintz, Legal Counsel, Federal Bureau o f Investigation, from Robert Shanks, Deputy\nAssistant A ttorney General, Office o f Legal Counsel, Re- Proposed Access to NC1C Files by National Center fo r\nMissing and Exploited Children at 2 (July 31, 1984) ( \xe2\x80\x9c NCMEC M emo\xe2\x80\x9d ) Rather, only certain \xe2\x80\x9c railroad police\ndepartm ents\xe2\x80\x9d and \xe2\x80\x9c police departments of private colleges or universities\xe2\x80\x9d are identified as entities \xe2\x80\x9c include[d]\xe2\x80\x9d\nwithin the meaning o f that term 28 U S C \xc2\xa7 534(d)\n\n120\n\n\x0cAccess to Criminal History Records by Non-Governmental Entities Performing Authorized Criminal\nJustice Functions\n\nFreedom o f the Press, 489 U.S. 749, 765 (1989), and should be applied in a\n\nmanner consistent with this purpose.4 Finally, as this office has previously\nobserved, the only enforcement mechanism expressly authorized by \xc2\xa7 534 is the\nDepartment\xe2\x80\x99s authority to cancel the direct recipient\xe2\x80\x99s authority to receive the\ninformation, and the statute should be construed to preserve this oversight\nauthority. See Memorandum for Joseph H. Davis, Assistant Director, Legal\nCounsel Division, Federal Bureau of Investigation, from William P. Barr, Assist\xc2\xad\nant Attorney General, Office of Legal Counsel, Re: Proposal by Federally Char\xc2\xad\ntered o r Insured Financial Institutions to Disseminate FBI Criminal History\nRecord Information to CARCO Group, Inc. at 6-7 (Sept. 1, 1989) ( \xe2\x80\x9c CARCO\n\nMemo\xe2\x80\x9d ); Lawton Memo at 5. To the extent those recipients are permitted to dis\xc2\xad\nclose CHRI to their contractors, however, the Department\xe2\x80\x99s sole recourse under\ncurrent regulations would be to rely on \xe2\x80\x9c the relationship between the local agency\nand the third party\xe2\x80\x9d to prevent abuses. Lawton Memo at 5. Thus, at least in\nthe absence of effective controls over possible redissemination by the contractors,\nthe Department\xe2\x80\x99s ability to limit the use of CHRI by recipients might be impaired\nif recipients were permitted to pass CHRI on to those contractors.\nNone of these considerations, however, compel a construction of the statute\nthat precludes authorized criminal justice agencies from sharing CHRI with nongovemmental contractors performing law enforcement functions where the\narrangements are subject to appropriate controls. First, in providing that the\nexchange of CHRI is \xe2\x80\x9c subject to cancellation\xe2\x80\x9d if disseminated beyond the\nreceiving agency or related agencies, Congress has delegated considerable discre\xc2\xad\ntion to the Attorney General to determine whether cancellation is appropriate in\na given context. The statute does not require the Department to \xe2\x80\x9c terminate\nexchange relationships with users authorized under section 534(a)(1) if those users\ndisseminate FBI criminal history records to unauthorized third parties.\xe2\x80\x9d CARCO\nMemo at 6 n.12. This discretion would seem to carry with it the authority to\ndetermine that a particular class of disclosures\xe2\x80\x94 i.e., those made to contractors\nfor law enforcement purposes and subject to appropriate controls\xe2\x80\x94 is consistent\nwith the statutory purpose of facilitating law enforcement and not inconsistent\nwith its purpose of protecting relevant privacy interests.\nIn addition, a strong argument can be made that disclosures of the sort con\xc2\xad\ntemplated would not constitute \xe2\x80\x9c dissemination\xe2\x80\x9d of the information, within the\nordinary meaning of that word. Indeed, the dictionary defines \xe2\x80\x9c dissemination\xe2\x80\x9d\nto mean \xe2\x80\x9c to spread or send out freely or widely as though sowing or strewing\n4 Although at one tim e this privacy interest was thought to raise potentially significant constitutional limitations\non the use of CHRI, thus requiring a narrow construction o f the statute, see Menard v Mitchell, 328 F Supp.\n718 (D D C. 1971), rev\xe2\x80\x99d sub nom Menard v Saxbe, 498 F.2d 1017 (D.D.C. 1974), Lawton Memo at 4\xe2\x80\x945, subsequent\ndevelopments in the law have made clear that the limitation is not constitutionally derived See United States Secret\nService Use o f National Crime Information Center, 6 Op. O .L C 313, 322 (1982). As a result, it is not necessary\nto construe the statute narrowly in order to avoid a significant constitutional problem. Cf. Edward J DeBartolo\nCorp. v. Florida G ulf Coast Bldg & Constr. Trades Council, 485 U S 568, 575 (1988); NLRB v Catholic Bishop\no f Chicago, 440 U.S 490,5 0 0 (1 9 7 9 )\n\n121\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nseed: make widespread.\xe2\x80\x9d Webster\xe2\x80\x99s Third International Dictionary 656 (1986).\nSharing information with contractors who are assisting in law enforcement and\nwho are subject to carefully drawn controls would not appear to fall within this\ndefinition. Moreover, although the meaning of the phrase \xe2\x80\x9c dissemination\xe2\x80\x9d may\nwell vary based on context,5 it is clear that, at a minimum, the Attorney General\ncould exercise her regulatory authority to define the term in a manner that would\npermit disclosures to contractors who are assisting law enforcement and who are\nsubject to appropriate controls. See Chevron U.S.A. Inc. v. Natural Resources\nDefense Council, Inc., 467 U.S. 837 (1984). Such an interpretation would be con\xc2\xad\nsistent with both the language and purpose of the statute.\nAlthough opinions issued by this office have at times taken a restrictive view\nof \xc2\xa7534, see, e.g., Lawton Memo, we have not interpreted the term \xe2\x80\x9c dissemina\xc2\xad\ntion\xe2\x80\x9d to encompass all disclosures of CHRI to non-govemmental personnel.6\nSome of these opinions, however, have indicated that CHRI disclosures to nongovemmental entities may be made only when the entity \xe2\x80\x9c is the only agency,\npublic or private, performing a criminal justice function under public auspices.\xe2\x80\x9d\nSee Lawton Memo at n.5. In our view, these opinions overstate the statutory\nlimitation on permissible disclosures made by authorized criminal justice agencies\nin this context. We believe that the proper interpretation is expressed in subsequent\nOLC opinions, which more aptly state that the receiving private entity must be\none that \xe2\x80\x98\xe2\x80\x98perform[s] quasi-govemmental functions under strict governmental con\xc2\xad\ntrol.\xe2\x80\x9d CARCO Memo at 4-5; Memorandum for Joseph H. Davis, Assistant\nDirector, Legal Counsel, Federal Bureau of Investigation, from Douglas W.\nKmiec, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Creation\no f a Public Registry o f Law Enforcement Officers Killed in the Line o f Duty at\n2 (July 1, 1988).\nFinally, to the extent the Department must retain the ability adequately to control\nthe use of CHRI, and to cancel the privileges of those who make or permit\nimproper disclosures, we note that regulatory measures may be developed that\nwould serve this purpose, while still allowing contractors to access relevant\ninformation.\nAccordingly, we believe that disclosure of CHRI to authorized criminal justice\ncontractors would not be forbidden by the provisions of \xc2\xa7534 itself. If carefully\ncontrolled, moreover, such disclosures would also be compatible with the statutory\npurpose o f facilitating law enforcement while protecting the privacy interests\naffected.\n5 Compare Zimmerman v Owens, 561 N W 2d 475 (Mich Ct App 1997) (holding that placement of a confidential\nchild protective service report in public court file did not constitute a dissemination) with Essential Information,\nInc. v. U nited Slates Information Agency, 134 F.3d 1165, 1168 (D C Cir 1998) (rejecting argument that the term\n\xe2\x80\x9c dissem ination\xe2\x80\x9d connoted a much broader dispersal of materials than mere \xe2\x80\x9c disclosure\xe2\x80\x9d under the particular statute\nin question, but acknowledging that \xe2\x80\x9c the terms may be so distinguishable under some circumstances\xe2\x80\x9d )\n6 See, e.g , N CM EC M emo at 3 (authorizing C H RI disclosure to private non-govemmental entity, such as the\nNational Center for M issing and Exploited Children, under limited circumstances and \xe2\x80\x9c subject to substantial govern\xc2\xad\nmental controls\xe2\x80\x9d ).\n\n122\n\n\x0cAccess to Criminal History Records by Non-Governmental Entities Performing Authorized Criminal\nJustice Functions\n\nii\n\n.\n\nIn addition to \xc2\xa7534 itself, however, it is necessary to consider the currently\nexisting regulations that implement the statute. See 28 C.F.R. pt. 20 (1997) (gov\xc2\xad\nerning \xe2\x80\x9c Criminal Justice Information Systems\xe2\x80\x9d ) (\xe2\x80\x9c Part 20\xe2\x80\x9d or \xe2\x80\x9c CJIS Regula\xc2\xad\ntions\xe2\x80\x9d ). Subpart C of part 20 applies to the CHRI systems maintained by the\nDepartment of Justice, other federal agencies, and by state and local criminal ju s\xc2\xad\ntice agencies insofar as they use the services of federal CHRI systems. See 28\nC.F.R. \xc2\xa720.30. The regulations provide that CHRI contained in systems main\xc2\xad\ntained by the Department of Justice \xe2\x80\x9c will be made available\xe2\x80\x9d :\n(1) To criminal justice agencies for criminal justice purposes; and\n(2) To Federal agencies authorized to receive it pursuant to Federal\nstatute or Executive order.\n(3) Pursuant to Public Law 92-544 (86 Stat. 1115) for use in\nconnection with licensing or local/state employment or for other\nuses only if such dissemination is authorized by Federal or state\nstatutes and approved by the Attorney General of the United States.\n\n(4) For issuance of press releases and publicity designed to effect\nthe apprehension of wanted persons in connection with serious or\nsignificant offenses.\nId. \xc2\xa7 20.33(a). The regulations further provide, consistent with \xc2\xa7 534(b), that an\n\nagency\xe2\x80\x99s right to receive CHRI \xe2\x80\x9c is subject to cancellation if dissemination is made\noutside the receiving departments or related agencies.\xe2\x80\x9d Id. \xc2\xa7 20.33(b).\nNothing in the subpart C regulations authorizes the dissemination of CHRI to\nprivate entities acting on behalf of government criminal justice agencies. Closest\nis the authorization to disclose CHRI to \xe2\x80\x9c criminal justice agencies for criminal\njustice purposes,\xe2\x80\x9d id. \xc2\xa7 20.33(a)(1), but those agencies are expressly defined to\ninclude only \xe2\x80\x9c courts\xe2\x80\x9d and certain \xe2\x80\x9c government agencies [and] any subunit\nthereof,\xe2\x80\x9d id. \xc2\xa7 20.3(c). They do not include non-govemmental agencies, even\nwhen under contract to perform criminal justice functions. Particularly when read\nin light of the regulatory purpose of protecting \xe2\x80\x9c individual privacy,\xe2\x80\x9d id. \xc2\xa720.1,\nit appears that section 20.33(a) was intended as an exhaustive list of the categories\nof authorized exchange for the covered records, and this office has previously\n123\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nconstrued the provision in this manner.7 Thus, section 20.33(a) does not affirma\xc2\xad\ntively authorize dissemination of CHRI to non-govemmental entities under con\xc2\xad\ntract to assist federal, state or local law enforcement agencies.\nA more difficult question is whether such disclosure of CHRI to private contrac\xc2\xad\ntors, where subject to strict controls over the handling and use of the CHRI, would\nconstitute a \xe2\x80\x9c dissemination\xe2\x80\x9d for purposes of the regulation. Although one might\nplausibly argue that it would not, see supra n.5 and accompanying text, for a\nnumber of reasons we believe that such disclosures should not be authorized with\xc2\xad\nout first amending the regulations. Although we cannot say with certainty that\nsuch an action is legally required, the risks of not doing so are substantial.\nAt the outset, we note that it is more difficult to construe the regulation\xe2\x80\x99s use\nof the word \xe2\x80\x9c dissemination\xe2\x80\x9d in a manner that would allow contractor access than\nto do so with regard to the statute\xe2\x80\x99s use of the same word. In particular, subpart\nB o f the regulations, which sets forth the rules governing certain state and local\n(as opposed to federal) criminal history record information systems, expressly\nauthorizes disclosure to \xe2\x80\x9c individuals and agencies pursuant to a specific agree\xc2\xad\nment with a criminal justice agency to provide services required for the adminis\xc2\xad\ntration of criminal justice.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 20.21(b)(3). Because no similar provision\nappears in subpart C, which governs here, one might reasonably infer that such\ndisclosures are not currently permitted under that provision.\nFurther, as noted in your memorandum of October 3, 1997, earlier opinions\nof this office have taken a restrictive view of the Department\xe2\x80\x99s authority to release\nCHRI to recipients not specifically identified in \xc2\xa7534,8 and the Department\nhistorically has not permitted third-party access to CHRI. The courts have\nindicated that when an agency changes its interpretation of a regulation so fun\xc2\xad\ndamentally that it is equivalent to an amendment of the regulation, the change\nmust be accomplished through notice-and-comment rulemaking. See Shalala v.\nGuernsey M em orial Hosp., 514 U.S. 87 (1995); Paralyzed Veterans o f America\nv. D.C. Arena L.P., 117 F.3d 579, 586 (D.C. Cir. 1997), cert denied, 523 U.S.\n1003 (1998).\nFinally, by proceeding by notice-and-comment rulemaking, the Department will\ninsure that its interpretation of \xc2\xa7 534 receives the full weight of Chevron deference.\nAlthough the question is unsettled, a court might well provide less deference to\nan \xe2\x80\x9c interpretative\xe2\x80\x9d rule, which is not subject to formal rulemaking, than to a\n\xe2\x80\x9c legislative\xe2\x80\x9d rule, which is subject to the notice-and-comment process.9 Compare\nMartin v. Occupational Safety & Health Review Comm'n, 499 U.S. 144, 157\n(1991) (interpretative rules \xe2\x80\x9c not entitled to the same deference as norms that\n1 See Federal Bureau o f Investigations\xe2\x80\x94Disclosure o f Criminal Record\xe2\x80\x94Admission to\n(1979), see also Vtz v. Cullm ane, 520 F 2d 467, 477 n 20 (D C C ir 1975) ( \xe2\x80\x9c regulations\nstandards as to the maximum extent o f dissemination\xe2\x80\x9d )\n8See FBI M emo at 4 n.3 (citing, e.g., Lawton M emo and CARCO Memo)\n9 In our view, the availability o f Chevron deference should turn on whether Congress\napply, and not on w hether a rule is \xe2\x80\x9c interpretative\xe2\x80\x9d or \xe2\x80\x9c legislative \xe2\x80\x9d We cannot say with\nthat a reviewing court would adopt this same view\n\n124\n\nthe Bar, 3 Op. O L.C. 55\nset apparently stringent\n\nintended for deference to\nany certainty, however,\n\n\x0cAccess to Criminal History Records by Non-Governmental Entities Performing Authorized Criminal\nJustice Functions\n\nderive from the exercise of the Secretary\xe2\x80\x99s delegated lawmaking powers\xe2\x80\x9d ) (dicta)\nwith Elizabeth Blackwell Health Ctr. fo r Women v. Knoll, 61 F.3d 170, 182 (3d\nCir. 1995) ( Chevron deference is appropriate \xe2\x80\x9c even though the Secretary\xe2\x80\x99s\ninterpretation is not contained in a \xe2\x80\x98legislative rule\xe2\x80\x99 \xe2\x80\x9d ), cert, denied, 516 U.S.\n1093 (1996). Receiving full Chevron deference, moreover, may prove important\nto sustaining the Department\xe2\x80\x99s position in potential litigation.\nIn light of all these considerations, we believe that to proceed without first\namending the regulations in accordance with the APA would invite significant\nlegal challenge.\n\nIII.\nIf a decision is made to amend the regulations to authorize provision of CHRI\nto criminal justice contractors, it is essential that this goal be achieved in a manner\nthat will subject contractor access to effective controls against unauthorized use\nor further dissemination. As the Supreme Court has observed, Congress intended\nthat \xc2\xa7534 be applied in a manner that is protective of \xe2\x80\x9c the privacy of rap-sheet\nsubjects.\xe2\x80\x9d Reporters Comm, fo r Freedom o f the Press, 489 U.S. at 749, 765.\nMoreover, \xc2\xa7 534(b) provides for Department of Justice oversight of the dissemina\xc2\xad\ntion of CHRI by giving the Attorney General the authority to cancel the exchange\nof CHRI if an unauthorized dissemination is made. The Department\xe2\x80\x99s responsi\xc2\xad\nbility to protect the privacy of CHRI will require, in our view, that it have at\nits disposal the means of controlling the use of this information.\nThe precise form of such controls will depend upon a variety of factors. As\na starting point, however, the Department might consider whether the provisions\ngoverning CHRI access agreements between states and criminal justice contractors\nset forth in subpart B of the CJIS Regulations would provide an appropriate model.\nThe subpart B regulations require that such agreements shall \xe2\x80\x9c limit the use of\ndata to purposes for which given, insure the security and confidentiality of the\ndata consistent with these regulations, and provide sanctions for violations\nthereof.\xe2\x80\x9d 28 C.F.R. \xc2\xa7 20.21(b)(3). We would, of course, be happy to consider\nwhether any particular proposal satisfies statutory requirements.\nFinally, we note that authorizing the provision of federal criminal history records\nto the entities in question would require compliance with the Privacy Act. See\n5 U.S.C. \xc2\xa7552a (1994 & Supp. II 1996). The criminal history records maintained\nby the FBI and provided through the NCIC are part of a system of records that\nis subject to the Privacy Act. Accordingly, covered agencies may not disclose\nsuch records to other agencies or institutions unless the subject of the records\nconsents or one of the statute\xe2\x80\x99s exemptions apply. Id. \xc2\xa7 552a(b).'\xc2\xb0\nl0 In defining covered \xe2\x80\x9c agencies.\xe2\x80\x99' see 5 U .SC. \xc2\xa7 552a(a)( 1). the Privacy Act adopts by cross-reference the\nFreedom of Information Act\xe2\x80\x99s definition o f \xe2\x80\x9c agency,\xe2\x80\x9d which \xe2\x80\x9c includes any executive department, military depart\xc2\xad\nment, Government corporation. Government controlled corporation, or other establishment in the executive branch\nContinued\n\n125\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nHere, the criminal justice or law enforcement uses for which the information\nwould be provided would likely qualify for the issuance o f a \xe2\x80\x9c routine use\xe2\x80\x9d excep\xc2\xad\ntion to the Privacy Act\xe2\x80\x99s prohibitions against unconsented disclosures. See 5\nU.S.C. \xc2\xa7552a(b)(3). A \xe2\x80\x9c routine use\xe2\x80\x9d means, with respect to the disclosure of\na record, \xe2\x80\x9c the use of such record for a purpose which is compatible with the\npurpose for which it was collected.\xe2\x80\x9d Id. \xc2\xa7552a(a)(7). We think that the uses of\nCHRI indicated in the examples you have submitted would generally be compat\xc2\xad\nible with the law enforcement and related purposes for which it was collected\nby the FBI and other agencies. We have not undertaken, however, to determine\nwhether these particular uses would qualify under any of the existing published\nroutine uses applicable to the relevant systems o f records. See, e.g., Privacy Act\nof 1974; Modified Systems of Records Notice (Fingerprint Identification Records\nSystem), 61 Fed. Reg. 6385 (1996); Privacy Act of 1974; Modified System of\nRecords Notice (NCIC), 60 Fed. Reg. 19,774 (1995). Before actually authorizing\nthe disclosure of CHRI to private criminal justice contractors, the Justice Depart\xc2\xad\nment should issue any new routine use notifications necessary to cover the par\xc2\xad\nticular disclosures in question.\nRANDOLPH D. MOSS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\no f the Governm ent (including the Executive O ffice of the President), or any independent regulatory agency \xe2\x80\x9d 5\nU .S C \xc2\xa75 5 2 (0 (1 ) (Supp II 1996)\n\n126\n\n\x0c"


b'Continuation of Terminal Leave for Military\nOfficer Appointed to Federal Civilian Position\nAn active duty military officer on terminal leave who meets the requirements of 5 U.S.C.\n\xc2\xa7 5334a may continue on terminal leave status after his appointment or election to a\nposition covered by 10 U.S.C. \xc2\xa7 973(b)(2)(A).\nMarch 24, 2016\n\nMEMORANDUM OPINION FOR THE\nPRINCIPAL DEPUTY GENERAL COUNSEL\nDEPARTMENT OF HOMELAND SECURITY\nYou asked whether an active duty military officer on terminal leave\nmay continue on terminal leave status after being appointed or elected to\na position covered by 10 U.S.C. \xc2\xa7 973(b)(2)(A), a provision that prohibits\nactive duty military officers from holding certain civilian offices in the\nfederal government. 1 We advised you orally and by e-mail that a military\nofficer appointed or elected to such a position may continue on terminal\nleave status. 2 This opinion further memorializes and explains the basis\nfor that advice. In brief, section 973(b)(2)(A) provides that an active duty\nmilitary officer may hold a covered position if doing so is \xe2\x80\x9cotherwise\nauthorized by law,\xe2\x80\x9d and another statute, 5 U.S.C. \xc2\xa7 5534a, specifically\npermits \xe2\x80\x9c[a] member of a uniformed service\xe2\x80\x9d on \xe2\x80\x9cterminal leave\xe2\x80\x9d to\naccept \xe2\x80\x9ca civilian office or position in the Government of the United\nStates\xe2\x80\x9d and to \xe2\x80\x9creceive the pay of that office or position in addition to\npay and allowances from the uniformed service for the unexpired portion\nof the terminal leave.\xe2\x80\x9d In light of 5 U.S.C. \xc2\xa7 5534a, an officer on terminal\n1 E-mail for Rosemary Hart, Office of Legal Counsel, from Joseph B. Maher, Principal\nDeputy General Counsel, Department of Homeland Security (June 23, 2015, 6:58 PM)\n(\xe2\x80\x9cMaher E-mail\xe2\x80\x9d).\n2 See E-mail for Joseph B. Maher, Principal Deputy General Counsel, Department of\nHomeland Security, from Brian M. Boynton, Deputy Assistant Attorney General, Office\nof Legal Counsel (Aug. 20, 2015, 2:33 PM). In reaching this conclusion, we also considered the views of the Department of Defense, as expressed in a telephone conversation on\nJune 29, 2015 between Brian M. Boynton, Deputy Assistant Attorney General, Office of\nLegal Counsel; Paul S. Koffsky, Deputy General Counsel, Department of Defense; Steven\nT. Strong, Associate Deputy General Counsel, Department of Defense; Joseph B. Maher,\nPrincipal Deputy General Counsel, Department of Homeland Security; and Neal Swartz,\nAssociate General Counsel, Department of Homeland Security.\n\n13\n\n\x0c40 Op. O.L.C. 13 (2016)\n\nleave status is in our view \xe2\x80\x9cauthorized by law\xe2\x80\x9d to serve in a position\ncovered by 10 U.S.C. \xc2\xa7 973(b)(2)(A).\nI.\nWe begin with the relevant background and statutory text. Section\n973(b)(2)(A) of title 10 of the United States Code generally prohibits\nactive duty military officers from holding certain high-level civilian\noffices in the federal government. In particular, it provides:\nExcept as otherwise authorized by law, an officer to whom this\nsubsection applies may not hold, or exercise the functions of, a civil\noffice in the Government of the United States\xe2\x80\x94\n(i) that is an elective office;\n(ii) that requires an appointment by the President by and with\nthe advice and consent of the Senate; or\n(iii) that is a position in the Executive Schedule under sections\n5312 through 5317 of title 5.\nParagraph 1 of section 973(b) explains that the prohibition on holding or\nexercising the functions of covered offices applies to \xe2\x80\x9cregular officer[s] of\nan armed force on the active-duty list (and . . . regular officer[s] of the\nCoast Guard on the active duty promotion list),\xe2\x80\x9d as well as to retired and\nreserve officers serving on active duty in certain circumstances.\nYour question concerns the application of section 973(b)(2)(A)\xe2\x80\x99s prohibition on federal civil office-holding to members of the military on\nterminal leave. \xe2\x80\x9c\xe2\x80\x98Terminal leave\xe2\x80\x99 is \xe2\x80\x98a term of art originating during\nWorld War II\xe2\x80\x99 meaning \xe2\x80\x98a leave of absence granted at the end of one\xe2\x80\x99s\nperiod of service.\xe2\x80\x99\xe2\x80\x9d Rate of Accrual of Annual Leave by a Civilian Employee Appointed While on Terminal Leave Pending Retirement From\nOne of the Uniformed Services, 31 Op. O.L.C. 218, 218 (2007) (quoting\nTerry v. United States, 97 F. Supp. 804, 806 (Ct. Cl. 1951)). An officer\non terminal leave is considered to be on active duty status. See id. at 219;\nsee also Madsen v. United States, 841 F.2d 1011, 1013 (10th Cir. 1987)\n(\xe2\x80\x9cTerminal leave, or leave taken prior to discharge, is statutorily defined\nas active duty service.\xe2\x80\x9d (citing 10 U.S.C. \xc2\xa7 701(e) (1982))). Thus, a military officer on terminal leave is subject to section 973(b)(2)(A)\xe2\x80\x99s general\nprohibition.\n14\n\n\x0cContinuation of Terminal Leave for Military Officer Appointed to Civilian Position\n\nA different statute, 5 U.S.C. \xc2\xa7 5534a, establishes rules for dual pay and\nemployment during an officer\xe2\x80\x99s period of terminal leave. In relevant part,\nsection 5534a provides:\nA member of a uniformed service who has performed active service and who is on terminal leave pending separation from, or release from active duty in, that service under honorable conditions\nmay accept a civilian office or position in the Government of the\nUnited States, its territories or possessions, or the government of the\nDistrict of Columbia, and he is entitled to receive the pay of that office or position in addition to pay and allowances from the uniformed service for the unexpired portion of the terminal leave.\nAs you pointed out in your request for advice, under one view of these\nstatutes, \xe2\x80\x9c[section] 5534a serves as an affirmative authority [for military\nmembers on terminal leave to hold covered positions] that fits within the\nqualification of [section] 973(b)(2)(A) stating that its prohibition applies\n\xe2\x80\x98[e]xcept as otherwise authorized by law.\xe2\x80\x99\xe2\x80\x9d Maher E-mail. Under another\nview, \xe2\x80\x9c[section] 973[(b)(2)(A)] provides the more specific rule regarding\nmilitary officers appointed to certain [civilian positions in the federal\ngovernment] and would therefore prohibit continuation of military status\n(i.e., terminal leave) upon appointment\xe2\x80\x9d to a covered position. Id. The\nDepartment of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d) holds the latter view. For the reasons\nexplained below, we believe the first is the better reading of the two\nstatutes, and therefore conclude that an officer on terminal leave status is\n\xe2\x80\x9cauthorized by law\xe2\x80\x9d to hold a position covered by section 973(b)(2)(A).\nII.\nA.\nWe first analyze the text of sections 973(b)(2)(A) and 5534a. The Supreme Court has explained that, where two statutes govern the same\nsubject matter, \xe2\x80\x9c\xe2\x80\x98the rule is to give effect to both if possible.\xe2\x80\x99\xe2\x80\x9d Morton v.\nMancari, 417 U.S. 535, 551 (1974) (quoting United States v. Borden Co.,\n308 U.S. 188, 198 (1939)); see also, e.g., FCC v. NextWave Personal\nCommc\xe2\x80\x99ns, 537 U.S. 293, 304 (2003); J.E.M. Ag Supply, Inc. v. Pioneer\nHi-Bred Int\xe2\x80\x99l, Inc., 534 U.S. 124, 143\xe2\x80\x9344 (2001); Vimar Seguros y Reaseguros, S.A. v. M/V Sky Reefer, 515 U.S. 528, 533 (1995); Ruckelshaus\n15\n\n\x0c40 Op. O.L.C. 13 (2016)\n\nv. Monsanto Co., 467 U.S. 986, 1018 (1984). \xe2\x80\x9cOnly where a harmonious\nconstruction of two statutes is impossible should one be construed as\noverriding or implicitly repealing the other.\xe2\x80\x9d Access of Department of\nJustice Inspector General to Certain Information Protected from Disclosure by Statute, 39 Op. O.L.C. 12, 20 (2015) (citing Mancari, 417 U.S. at\n551).\nAlthough section 973(b)(2)(A) and section 5534a govern the same\nsubject matter\xe2\x80\x94whether active duty military officers may hold civilian\npositions in the federal government\xe2\x80\x94they are not, in our view, irreconcilable. As described above, section 973(b)(2)(A) provides that active duty officers may not hold certain federal civilian offices \xe2\x80\x9cexcept\nas otherwise authorized by law.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 973(b)(2)(A). Section\n5534a permits active duty military members on terminal leave to accept civilian offices and to be paid as employees of the federal government. In other words, pursuant to section 5534a, active duty military members, including officers, who are on terminal leave are\nspecifically \xe2\x80\x9cauthorized by law\xe2\x80\x9d to hold civilian offices. Officers to\nwhom section 973(b)(2)(A) would otherwise apply are therefore exempted from the statute\xe2\x80\x99s prohibition by virtue of their terminal leave\nstatus. In contrast, officers who are not on terminal leave and are not\n\xe2\x80\x9cotherwise authorized by law\xe2\x80\x9d to hold covered positions remain subject to section 973(b)(2)(A). So understood, section 973(b)(2)(A) and\nsection 5534a do not conflict, but rather co-exist as part of a single,\ncoherent statutory scheme.\nAs noted above, DoD disagrees with this interpretation. As we understand its position, DoD believes section 973(b)(2)(A)\xe2\x80\x99s \xe2\x80\x9cotherwise authorized by law\xe2\x80\x9d exception covers only statutes that refer to specific civilian\noffices, and not statutes like section 5534a that authorize a class of active\nduty officers to hold civilian positions. Further, in DoD\xe2\x80\x99s view, section\n973(b)(2)(A) is more specific than section 5534a and was enacted later in\ntime. As a result, DoD believes that section 973(b)(2)(A) must be understood to override section 5534a. See RadLAX Gateway Hotel, LLC v.\nAmalgamated Bank, 132 S. Ct. 2065, 2071 (2012) (where \xe2\x80\x9ca general permission or prohibition is contradicted by a specific prohibition or permission . . . the specific provision is construed as an exception to the general\none\xe2\x80\x9d); Tenn. Gas Pipeline Co. v. FERC, 626 F.2d 1020, 1022 (D.C. Cir.\n1980) (finding that a \xe2\x80\x9clatter law\xe2\x80\x9d controls an earlier one (citing C. Dallas\n16\n\n\x0cContinuation of Terminal Leave for Military Officer Appointed to Civilian Position\n\nSands, 2A Sutherland on Statutory Construction \xc2\xa7 51.03, at 300 (4th ed.\n1972))).\nWe disagree with this position for a number of reasons. Most fundamentally, we believe section 973(b)(2)(A)\xe2\x80\x99s \xe2\x80\x9cotherwise authorized by\nlaw\xe2\x80\x9d exception includes authorization under section 5534a. DoD is correct\nthat Congress has enacted statutes specifically authorizing active duty\nofficers to hold certain positions subject to section 973(b)(2)(A)\xe2\x80\x99s prohibition. See 10 U.S.C. \xc2\xa7 528 (authorizing military officers to hold certain\npositions in the Intelligence Community, including CIA Director); see\nalso id. \xc2\xa7\xc2\xa7 3017(b), 5036(c), 8017(b) (1982) (noting that, if an active duty\nmilitary officer temporarily acted as Secretary of the Army, Navy, or Air\nForce, such service should not \xe2\x80\x9cbe considered as the holding of a civil\noffice within the meaning of section 973(b)\xe2\x80\x9d); cf. 40 U.S.C. \xc2\xa7 311(c)\n(authorizing the Administrator of General Services to \xe2\x80\x9cuse the services\xe2\x80\x9d\nof \xe2\x80\x9carmed services personnel\xe2\x80\x9d \xe2\x80\x9c[n]otwithstanding section 973 of title\n10\xe2\x80\x9d). But nothing in the provision\xe2\x80\x99s text indicates that the \xe2\x80\x9cotherwise\nauthorized by law\xe2\x80\x9d exception should be read to apply only to those statutes, and not to more general authorizations, as its plain language would\nsuggest. The provision does not, for example, prohibit a military officer\nfrom holding a covered position \xe2\x80\x9cexcept as otherwise authorized by a\nstatute expressly referring to section 973(b),\xe2\x80\x9d or \xe2\x80\x9cexcept as otherwise\nauthorized by a statute referring to a specified position.\xe2\x80\x9d The provision\xe2\x80\x99s\n\xe2\x80\x9cotherwise authorized by law\xe2\x80\x9d clause also does not list specific statutes\nauthorizing active duty officers to hold particular civilian offices. Cf. 16\nU.S.C. \xc2\xa7 2403(b) (\xe2\x80\x9cIt is unlawful for any person, unless authorized by a\npermit issued under this chapter . . . to dispose of any waste in Antarctica\n(except as otherwise authorized by the Act to Prevent Pollution from\nShips)[.]\xe2\x80\x9d). Absent some basis in the language of section 973(b)(2)(A) to\nconstrue the phrase \xe2\x80\x9cotherwise authorized by law\xe2\x80\x9d narrowly, and in light\nof the principle that competing statutes should be interpreted harmoniously whenever possible, we see no reason to exclude section 5534a from the\nreach of section 973(b)(2)(A)\xe2\x80\x99s exception.\nBecause 10 U.S.C. \xc2\xa7 973(b)(2)(A) can be read in harmony with\n5 U.S.C. \xc2\xa7 5534a, there is no need to resort to the canons of statutory\nconstruction on which DoD relies\xe2\x80\x94the \xe2\x80\x9crule of relative specificity\xe2\x80\x9d and\nthe principle that a later-enacted statute will control an earlier one. See,\ne.g., Nat\xe2\x80\x99l Cable & Telecomm. Ass\xe2\x80\x99n v. Gulf Power Co., 534 U.S. 327,\n335\xe2\x80\x9336 (2002) (\xe2\x80\x9cIt is true that specific statutory language should control\n17\n\n\x0c40 Op. O.L.C. 13 (2016)\n\nmore general language when there is a conflict between the two. Here,\nhowever, there is no conflict.\xe2\x80\x9d); Nat\xe2\x80\x99l Ass\xe2\x80\x99n of Home Builders v. Defs. of\nWildlife, 551 U.S. 644, 662 (2007) (\xe2\x80\x9cWe will not infer a statutory repeal\nunless the later statute expressly contradict[s] the original act or unless\nsuch a construction is absolutely necessary . . . in order that [the] words\n[of the later statute] shall have any meaning at all.\xe2\x80\x9d (alterations in original) (internal quotation marks omitted)). But even if those canons were\napplicable, neither would compel the reading of the relevant statutory\nprovisions DoD advances.\nWe agree that section 973(b)(2)(A) is more specific than section 5534a\nwith respect to the federal civilian positions it covers. It applies only to\nelected, presidentially appointed, and Executive Schedule offices, while\nsection 5534a applies to all civilian offices and positions in the federal\ngovernment. Additionally, section 973(b)(2)(A) applies only to \xe2\x80\x9cofficer[s]\xe2\x80\x9d in the military, while section 5534a applies to all \xe2\x80\x9cmember[s] of\na uniformed service.\xe2\x80\x9d But section 5534a is more specific with respect to\nthe status of the active duty military members to whom it applies. Where\nsection 973(b)(2)(A) applies to all \xe2\x80\x9cregular officer[s] of an armed force on\nthe active-duty list (and . . . regular officer[s] of the Coast Guard on the\nactive duty promotion list),\xe2\x80\x9d as well as to certain retired and reserve\nofficers, see 10 U.S.C. \xc2\xa7 973(b)(1), section 5534a applies only to members of the military on terminal leave. Section 5534a thus applies to a\ncategory of military members in a very specific situation: those who are\nnearing the end of their military service and are using the unexhausted\nportion of their accumulated leave prior to separation. As we have previously noted, where competing statutory provisions are \xe2\x80\x9cmore specific\xe2\x80\x9d in\none respect but \xe2\x80\x9cless specific\xe2\x80\x9d in another, the rule of relative specificity\nis unhelpful in resolving the conflict between them. See Restrictions on\nTravel by Voice of America Correspondents, 23 Op. O.L.C. 192, 195 n.2\n(1999) (\xe2\x80\x9cWe cannot resolve the issue by turning to the principle that,\nabsent a clear intention to the contrary, a specific statute controls a general one. Although the statutes on which the State Department relies are\nthe more specific ones on the question of safety, they are less specific on\nthe question of VOA\xe2\x80\x99s freedom to report the news.\xe2\x80\x9d (citation omitted));\ncf. Gulf War Veterans Health Statutes, 23 Op. O.L.C. 49, 52 (1999) (finding the rule inconclusive where \xe2\x80\x9cthe two provisions are at the same order\nof specificity\xe2\x80\x9d). Accordingly, we do not believe the rule of relative specificity would be dispositive here even if it applied.\n18\n\n\x0cContinuation of Terminal Leave for Military Officer Appointed to Civilian Position\n\nWe are also unpersuaded by DoD\xe2\x80\x99s reliance on the principle that a later\nenactment controls an earlier one. Although, as explained below, section\n973(b) was amended to take its current form in 1983, the prohibition on\nmilitary officers serving in federal civilian offices has existed in some\nform since 1870. The authorization for military members on terminal\nleave to hold civilian offices, in contrast\xe2\x80\x94now section 5534a\xe2\x80\x94originated\nin 1945. It is thus unclear how this \xe2\x80\x9clater in time\xe2\x80\x9d canon would apply\nhere. Moreover, even if section 973(b)(2)(A) were in all relevant respects\na later-enacted provision, we do not believe its priority of enactment\nwould be sufficient to demonstrate that it was intended to override section\n5534a. The Supreme Court has explained that while \xe2\x80\x9ca later enacted\nstatute . . . can sometimes operate to amend or even repeal an earlier\nstatutory provision . . . , \xe2\x80\x98repeals by implication are not favored\xe2\x80\x99 and will\nnot be presumed unless the \xe2\x80\x98intention of the legislature to repeal [is] clear\nand manifest.\xe2\x80\x99\xe2\x80\x9d Defs. of Wildlife, 551 U.S. at 662 (brackets in original)\n(quoting Watt v. Alaska, 451 U.S. 259, 267 (1981)). Here, DoD\xe2\x80\x99s reading\nwould compel the conclusion that the 1983 amendment to section 973(b)\nimplicitly repealed section 5534a, at least with respect to the military\nofficers subject to section 973(b)(2)(A)\xe2\x80\x99s prohibition and the federal\ncivilian offices to which the prohibition applies. But nothing in the language of section 973(b)(2)(A) makes such an intent \xe2\x80\x9cclear and manifest.\xe2\x80\x9d\nWe thus conclude that the text of section 973(b)(2)(A) and section\n5534a supports the conclusion that military officers on terminal leave\nwho satisfy the requirements of section 5534a may hold covered federal civilian offices notwithstanding the general prohibition in section\n973(b)(2)(A).\nB.\nIn light of the plain language of section 973(b)(2)(A)\xe2\x80\x99s \xe2\x80\x9cotherwise authorized by law\xe2\x80\x9d exception, there is no need to consider the legislative\nhistory of section 973(b)(2)(A) and section 5534a. To the extent that that\nhistory is considered, however, it supports the conclusion drawn from the\ntext of the provisions, and affirmatively suggests that Congress intended\nsection 5534a to operate as an exception to section 973(b)(2)(A).\nThe prohibition on active duty military officers holding civilian positions dates back to the years immediately following the Civil War. In\n19\n\n\x0c40 Op. O.L.C. 13 (2016)\n\n1870, Congress enacted a statute providing that \xe2\x80\x9cit shall not be lawful for\nany officer of the Army of the United States on the active list to hold any\ncivil office, whether by election or appointment, and any such officer\naccepting or exercising the functions of a civil office shall at once cease\nto be an officer of the army, and his commission shall be vacated thereby.\xe2\x80\x9d Act of July 15, 1870, ch. 294, \xc2\xa7 18, 16 Stat. 315, 319. This prohibition appeared as section 1222 of the Revised Statutes and was made part\nof the United States Code in the 1925 edition as 10 U.S.C. \xc2\xa7 576. See\nRev. Stat. \xc2\xa7 1222 (1st ed. 1875), 18 Stat. pt. 1, at 215 (\xe2\x80\x9cNo officer of the\nArmy on the active list shall hold any civil office, whether by election or\nappointment, and every such officer who accepts or exercises the functions of a civil office shall thereby cease to be an officer of the Army, and\nhis commission shall be thereby vacated.\xe2\x80\x9d); 10 U.S.C. \xc2\xa7 576 (1925)\n(same).\nSection 5534a originated in the post-World War II period. Facing an\ninflux of soldiers returning from the war, Congress sought to ensure that\nmembers of the military would not be forced to choose between forfeiting\nunused leave and taking civilian positions in the federal government. A\ncommittee report accompanying the precursor to section 5534a explained\nthat, under then-current law, \xe2\x80\x9c[a]lthough members of the armed forces on\nterminal leave may accept private employment without forfeiting the pay\nand allowances to which they are entitled while on terminal leave, they\nmay not . . . accept employment in civilian positions under the Federal\nGovernment and receive compensation for such employment concurrently\nwith the receipt of military pay and allowances.\xe2\x80\x9d H.R. Rep. No. 79-1163,\nat 1 (1945). To address that problem, Congress enacted the Act of November 21, 1945. In relevant part, that law provided:\nAny person, who, subsequent to May 1, 1940, shall have performed\nactive service in the armed forces, may, while on terminal leave\npending separation from or release from active duty in such service\nunder honorable conditions, enter or reenter employment of the\nGovernment of the United States, its Territories, or possessions, or\nthe District of Columbia . . . and, in addition to compensation for\nsuch employment, shall be entitled to receive pay and allowances\nfrom the armed forces for the unexpired portion of such terminal\nleave at the same rates and to the same extent as if he had not entered or reentered such employment.\n20\n\n\x0cContinuation of Terminal Leave for Military Officer Appointed to Civilian Position\n\nPub. L. No. 79-226, sec. 1, \xc2\xa7 2(a), 59 Stat. 584, 584; see also H.R. Rep.\nNo. 79-1163, at 2 (explaining the purpose of the proposed legislation).\nNotably, the committee report on the 1945 statute specifically cited the\nprecursor to section 973(b)(2)(A)\xe2\x80\x94section 1222 of the Revised Statutes\xe2\x80\x94as one of the statutory obstacles to Army officers holding civilian\npositions in the federal government. See H.R. Rep. No. 79-1163, at 1\n(\xe2\x80\x9cSection 1222 of the Revised Statutes also prohibits any officer of the\nArmy on the active list from holding civilian office.\xe2\x80\x9d). The report\xe2\x80\x99s reference to section 1222 suggests that, at least in the relevant House committee\xe2\x80\x99s view, the new provision was intended to override that limitation.\nAnd, citing this legislative history, the Comptroller General concluded in\n1946 that the 1945 precursor to section 5534a did just that. See 25 Comp.\nGen. 677, 679 (1946). As the Comptroller General explained:\n[A]n examination of the legislative history of the said act of November 21, 1945, discloses that the provisions of section 1222, along\nwith the various statutes prohibiting dual employment and the receipt of double compensation, were particularly brought to the attention of the Congressional committee considering the proposed legislation. And that it was the intent of the Congress to authorize the\nbenefits provided by the said 1945 statute notwithstanding the provisions of such laws, including section 1222, Revised Statutes, clearly\nappears from House Report 1163, accompanying S. 1036 (which, as\namended by the House of Representatives, became the act of November 21, 1945), wherein specific mention is made of section 1222,\nRevised Statutes, as well as the dual employment and dual compensation statutes, as constituting existing legislation the provisions of\nwhich were intended to be avoided by enactment of the bill.\nId. 3\nThe relevant statutory provisions were subsequently revised and transferred, but none of these changes suggests that Congress had a different\nview of the relationship between the two provisions. In 1956, the precursor to section 973(b) was amended and recodified as 10 U.S.C.\nThe Comptroller General affirmed this position in 1965. See 45 Comp. Gen. 180,\n181 (1965) (\xe2\x80\x9cIn decision of March 28, 1946, 25 Comp. Gen. 677, we held that the\nprovisions of [the Act of Nov. 21, 1945] supersede the provisions of section 1222,\nRevised Statutes[.]\xe2\x80\x9d).\n3\n\n21\n\n\x0c40 Op. O.L.C. 13 (2016)\n\n\xc2\xa7 3544(b). See Pub. L. No. 84-1028, 70A Stat. 1, 203 (1956). The language \xe2\x80\x9c[e]xcept as otherwise provided by law\xe2\x80\x9d was added at this time.\nAccording to the Historical and Revision Notes in the 1958 version of the\nUnited States Code, \xe2\x80\x9cthe words \xe2\x80\x98Except as otherwise provided by law\xe2\x80\x99\n[we]re inserted, since other laws enacted after the date of enactment of\n[10 U.S.C. \xc2\xa7 576] authorize the performance of the functions of certain\ncivil offices.\xe2\x80\x9d 10 U.S.C. \xc2\xa7 3544 (1958) (Historical and Revision Notes).\nAlthough this statement appears to refer to laws permitting Army officers\nto occupy particular civilian offices, it does not in our view suggest that\nthe phrase \xe2\x80\x9c[e]xcept as otherwise provided by law\xe2\x80\x9d should be read\xe2\x80\x94\ncontrary to its plain language\xe2\x80\x94to include only those statutes. Moreover,\nnothing in the legislative history of the 1956 recodification indicates an\nintent to alter the prior understanding\xe2\x80\x94reflected in the legislative history\nof the Act of November 21, 1945 and the 1946 Comptroller General\nopinion relying on that history\xe2\x80\x94that the terminal leave provision operated\nas an exception to the prohibition on Army officers serving in federal\ncivilian positions.\nIn 1967, the terminal leave provision previously added in 1945 was revised and codified at 5 U.S.C. \xc2\xa7 5534a. See Pub. L. No. 90-83, \xc2\xa7 22, 81\nStat. 195, 199\xe2\x80\x93200 (1967). The new section 5534a was in relevant parts\nthe same as the current version. In 1968, the prohibition on active duty\nArmy officers holding civilian offices, then codified at 10 U.S.C.\n\xc2\xa7 3544(b), was expanded to cover officers of the Navy, Air Force, Marine\nCorps, and Coast Guard, and was recodified as 10 U.S.C. \xc2\xa7 973(b). See\nPub. L. No. 90-235, \xc2\xa7 4(a)(5)(A), 81 Stat. 753, 759 (1968). At that time,\nsection 973(b) provided:\nExcept as otherwise provided by law, no officer on the active list of\nthe Regular Army, Regular Navy, Regular Air Force, Regular Marine Corps, or Regular Coast Guard may hold a civil office by election or appointment, whether under the United States, a Territory or\npossession, or a State. The acceptance of such a civil office or the\nexercise of its functions by such an officer terminates his military\nappointment.\nId.\nIn 1983, our Office concluded that 10 U.S.C. \xc2\xa7 973(b) barred Judge\nAdvocate General officers from being appointed as Special Assistant\nUnited States Attorneys to prosecute petty offenses on military reserva22\n\n\x0cContinuation of Terminal Leave for Military Officer Appointed to Civilian Position\n\ntions. See Memorandum for William P. Tyson, Director, Executive Office\nfor United States Attorneys, from Theodore B. Olson, Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Applicability of 10 U.S.C. \xc2\xa7 973(b)\nto JAG Officers Assigned to Prosecute Petty Offenses Committed on\nMilitary Reservations (May 17, 1983). In response to that decision, Congress amended section 973(b) to limit the offices that active duty military\nofficers were prohibited from holding. See Department of Defense Authorization Act, 1984, Pub. L. No. 98-94, sec. 1002(a), \xc2\xa7 973(b)(2)(A),\n97 Stat. 614, 655 (1983). Under the amended version, the prohibition on\nholding federal civilian offices applied, as it does today, only to an office\nthat \xe2\x80\x9cis an elective office,\xe2\x80\x9d that \xe2\x80\x9crequires an appointment by the President\nby and with the advice and consent of the Senate,\xe2\x80\x9d or that \xe2\x80\x9cis a position in\nthe Executive Schedule under sections 5312 through 5317 of title 5.\xe2\x80\x9d Id.\nCongress also made clear that active duty officers assigned or detailed to\nfederal civilian offices not covered by the prohibition could hold those\noffices or exercise their functions. Id. \xc2\xa7 973(b)(2)(B). The legislative\nhistory of the 1983 amendment to section 973(b) confirms that the provision was narrowed in response to the OLC opinion. See S. Rep. No. 98174, at 232\xe2\x80\x9334 (1983); see also H.R. Rep. No. 98-352, at 233 (1983)\n(Conf. Rep.). 4 It makes no mention of any intention to displace the prior\nunderstanding that section 5534a provides an exception to the general\nprohibition on military officers holding federal civilian offices.\nIn sum, the legislative history of the 1945 statute that was the predecessor to section 5534a indicates that the provision was intended to create an\nexception to the general prohibition on military officers holding civilian\n4\n\nAs the Committee report explained:\nThe Committee has been advised by the Department of Defense that the Assistant\nAttorney General, Office of Legal Counsel, of the Department of Justice, has recently issued an opinion that the practice of appointing military commissioned officers as Special Assistant United States Attorneys is now considered to offend the\nprohibitions of section 973(b) of Title 10, United States Code. However, that same\nopinion suggests that legislation be sought to amend section 973(b) to permit the\ncontinuation of this longstanding and successful practice. The Department of Defense has requested such legislation.\nTherefore, the Committee recommends a provision to amend section 973(b) of Title 10 to permit the continuation of this practice of utilizing military attorneys as\nSpecial Assistant United States Attorneys.\n\nS. Rep. No. 98-174, at 233.\n\n23\n\n\x0c40 Op. O.L.C. 13 (2016)\n\noffices in the federal government that had been in force since 1870. Nothing in the history of subsequent amendments to the two provisions provides any basis to conclude that Congress intended these amendments to\nachieve a different result.\nC.\nThe conclusion that section 5534a provides an exception to the general\nprohibition of section 973(b)(2)(A) is also consistent with prior advice\ngiven by this Office. In a July 5, 1973 memorandum to the Attorney General, our Office considered whether the military appointment of General\nAlexander M. Haig, Jr., the Vice Chief of Staff of the Army, had terminated pursuant to section 973(b) when he \xe2\x80\x9cwas called to the White House\nto assume many of the responsibilities formerly held by H.R. Haldeman.\xe2\x80\x9d\nMemorandum for the Attorney General from Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel, Re: Status of General\nAlexander M. Haig, Jr. (July 5, 1973) (internal quotation marks omitted).\nThe facts surrounding General Haig\xe2\x80\x99s service in the White House were\nnot clear at the time the memorandum was written. Among other things,\nthe Office did not know \xe2\x80\x9cwhether the as yet undisclosed arrangement\nbetween the President and General Haig had the effect of placing the\nGeneral on terminal leave.\xe2\x80\x9d Id. at 9. The memorandum concluded, however, that even \xe2\x80\x9c[i]f the facts that are developed show that General Haig\nwas put on terminal leave by the President acting in the capacity of Commander in Chief, it would appear that 10 U.S.C. 973(b) was not violated.\xe2\x80\x9d\nId. at 3. The memorandum explained that the Comptroller General (in the\n1946 opinion discussed above) had \xe2\x80\x9cinterpreted the act of November 21,\n1945, 59 Stat. 584, now 5 U.S.C. 5534a, as exempting officers on terminal leave from the prohibition of what is now 10 U.S.C. 973(b).\xe2\x80\x9d Id. at 7\n(citing 25 Comp. Gen. 677); see also id. at 9 (\xe2\x80\x9c[T]he Comptroller General\nhas ruled, as shown above, that by virtue of 5 U.S.C. 5534a, military\nofficers on terminal leave are not subject to the prohibitions of 10 U.S.C.\n973(b).\xe2\x80\x9d).\nThe Office later provided informal advice to the Department of Defense\nabout whether a Vice Admiral who was willing to retire from the military\ncould be appointed to a position in the Department of the Interior before\nhis active duty service concluded. Our Office \xe2\x80\x9cadvised that 10 U.S.C.\n973(b) would not be a barrier to the appointment if the Admiral were\n24\n\n\x0cContinuation of Terminal Leave for Military Officer Appointed to Civilian Position\n\nplaced on terminal leave since 5 U.S.C. 5534a makes an exception to the\nprohibition on military officers holding civil office if they are on terminal\nleave.\xe2\x80\x9d Memorandum to Files from Mary C. Lawton, Deputy Assistant\nAttorney General, Office of Legal Counsel, Re: Inquiry from DOD on\nexceptions to 10 U.S.C. 973(b) (Oct. 30, 1973) (citing 25 Comp. Gen. 677\nand 45 Comp. Gen. 180); see also Memorandum for the Files from Edward S. Lazowska, Office of the Assistant Solicitor General, Re: Proposed Appointment of Major General Robert McGowan Littlejohn as War\nAssets Administrator (July 2, 1946) (noting the restrictions on civilian\nfederal employment imposed by section 1222 of the Revised Statutes, the\npredecessor to 10 U.S.C. \xc2\xa7 973(b), but concluding that \xe2\x80\x9cas soon as General Littlejohn is placed on terminal leave pending his retirement from the\nArmy he may accept appointment as Administrator . . . under the provisions of the act of November 21, 1945,\xe2\x80\x9d the predecessor to 5 U.S.C.\n\xc2\xa7 5534a).\nAlthough these prior writings predated the 1983 amendment to section\n973(b), we do not believe that that amendment\xe2\x80\x94which narrowed the\nscope of section 973(b)\xe2\x80\x94altered the provision in ways that are material to\nthe question whether a military officer on terminal leave status is \xe2\x80\x9cotherwise authorized by law\xe2\x80\x9d to hold a covered civilian office.\nIII.\nFor the foregoing reasons, we conclude that an active duty military officer on terminal leave who meets the requirements of 5 U.S.C. \xc2\xa7 5534a\nmay continue on terminal leave status after his appointment or election to\na position covered by 10 U.S.C. \xc2\xa7 973(b)(2)(A).\nKARL R. THOMPSON\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n25\n\n\x0c'