b'Authority of the Attorney General to Make Successive\nDesignations of Interim United States Marshals\n\nUnder 28 U S.C. \xc2\xa7 562, the A ttorney General may make two or m ore successive designations o f a\nperson to serve as interim United States m arshal in a judicial district where the m arshal\xe2\x80\x99s office is\nvacant\n\nA fter the expiration o f an initial designation o f a United States m arshal under 28 U.S C \xc2\xa7 562, the\nAttorney General m ay authorize a person to act as m arshal under 28 U.S.C. \xc2\xa7\xc2\xa7 509, 510.\n\nJanuary 19, 1993\n\nM e m o r a n d u m O p in io n\n\nfor t h e\n\nO f f ic e\n\nof the\n\nA s s is t a n t\n\nto the\n\nAt t o rn e y G eneral\n\nA tto rn ey G eneral\n\nThis memorandum responds to your request for our opinion whether, under 28\nU.S.C. \xc2\xa7 562, the Attorney General may make tw o or more successive designations\nof a person to serve as interim United States marshal in a judicial district where the\nmarshal\xe2\x80\x99s office is vacant.1 You have also asked whether, after the expiration o f an\ninitial designation under \xc2\xa7 562, the Attorney General may authorize a person to act\nas marshal under 28 U.S.C. \xc2\xa7\xc2\xa7 509, 510. W e conclude that \xc2\xa7 562 permits the A t\xc2\xad\ntorney General to make successive interim designations, and that the Attorney\nGeneral also may authorize a person to act as marshal under \xc2\xa7\xc2\xa7 509 and 510.\nI.\n\nYou have advised us that, in several judicial districts, deputy marshals were\nserving or are serving as interim marshals, pursuant to designations made under 28\nU.S.C. \xc2\xa7 5 6 2 , and delegations under 28 U.S.C. \xc2\xa7 5 1 0 . The designations, under\n\xc2\xa7 562, of some of these interim marshals expired thirty days after the end of the\n1 28 U S.C \xc2\xa7 562 provides.,\n(a) In the case of a vacancy in the office of a United Stales marshal, the Attorney General may\ndesignate a person to perform the functions of and act as marshal, except that the Attorney Gen\xc2\xad\neral may not designate to act as marshal any person who was appointed by the President to that\noffice but with respect to such appointment the Senate has refused to give its advice and consent.\n(b) A person designated by the Attorney General under subsection (a) may serve until the earli\xc2\xad\nest of the following events:\n(1) The entry into office of a United Slates marshal appoinied by the President, pursuant\nto section 561(c)\n(2) The expiration of the thirtieth day following the end of the next session of the Sen\xc2\xad\nate\n(3) If such designee of ;he Attorney General is appointed by the President pursuant to\nsection 561(c), but the S enne refuses to give its advice and consent to the appointment, the\nexpiration of the thirtieth day following such refusal\n\n1\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nsecond session o f the Senate for th e 102nd Congress. Other interim designations\nwill expire thirty days after the en d of the current session o f the Senate.2 Faced\nwith the prospect that a new marshal would not have entered into office by the ex\xc2\xad\npiration date o f som e o f the interim designations, the Attorney General issued or\xc2\xad\nders redesignating the same deputies as interim marshals and delegating to them\nauthority to act as m arshals. If this situation recurs, the Attorney General wishes to\npursue a sim ilar course, redesignating the same deputy marshal, or another deputy\nmarshal, to serve as interim marshal and delegating appropriate authority to that\nperson. N one o f the designees has been, or will have been, appointed a marshal by\nthe President, and refused advice and consent by the Senate.\nII.\nSection 562 grants the Attorney General authority, subject to specific eligibility\nlim itations, to \xe2\x80\x9cdesignate a person to perform the functions o f and act as marshal\xe2\x80\x9d\nwhen the office of marshal is vacant. W hile the marshal vacancy statute imposes\nlimits on the authority it grants to the Attorney General, the language of the statute\nis com patible with a grant of authority to make successive designations.3 The stat\xc2\xad\nute does not explicitly bar the A ttorney General from issuing a new designation\nwhen a previous one expires.4 W e hesitate to read such a limitation into the stat\xc2\xad\nute. Doing so could lead to serious gaps in the United States M arshals Service\xe2\x80\x99s\nlegal authority to perform its vital duties, including its \xe2\x80\x9cprimary role and mission\xe2\x80\x9d\no f \xe2\x80\x9cprovid[ing] for the security\xe2\x80\x9d o f the federal courts. 28 U.S.C. \xc2\xa7 566(a). For any\nnum ber o f reasons, a new marshal may not yet have taken office when an interim\nm arshal\xe2\x80\x99s designation expires. T he President may not have submitted a nominee to\nthe Senate; the Senate may fail to act on the nomination, or may reject it.\nIf the Senate is in recess on the date an interim m arshal\xe2\x80\x99s designation terminates\nw ithout a new m arshal\xe2\x80\x99s having taken office, the President may exercise his con\xc2\xad\nstitutional authority to make a recess appointm ent to the vacant marshal position.\n2 We interpret the phrase "end of the next session o f the Senate,\xe2\x80\x9d in 28 U S.C. \xc2\xa7 562(b)(2), to have the\nsame meaning as the nearly identical phrase in the Recess Appointments Clause, U.S. Const, art. II, \xc2\xa7 2, cl\n3, that is, the adjournment sine die of the session of the Senate for the first session of Congress that begins\nafter the designation was made. See Recess Appointments, 41 Op. A tfy Gen 463, 469-71 (I960), Recess\nAppointm ents Issues, 6 Op. O L C. 585, 586-87 (1982) Thus, interim marshal designations made during the\nfirst session of the 102nd Congress expired thirty days after the adjournment of the Senate si/ie die for the\nsecond session of the 102nd Congress. Designations made during the second session of the 102nd Congress\nwill term inate, under \xc2\xa7 562(b)(2), thirty days after the adjournment of the Senate sine die for the first session\no f the 103rd Congress, probably November o r December, 1993\n3 The first rule of statutory construction is to look to the language o f the statute. See, e.g., Pennsylvania\nD e p \xe2\x80\x99t o f Pub Welfare v. Davenport, 495 U.S. 552, 557-58 (1990), Touche Ross & Co. v. Redington, 442\nU.S. 560, 568 (1979); Greyhound Corp v M l. Hood Stages, Inc., 437 U S. 322, 330 (1978)\n4 The legislative history does not address the situation in which an interim appointment has automatically\nterm inated without a permanent marshal\xe2\x80\x99s having entered into office. It says little more than that \xc2\xa7 562\n\xe2\x80\x9cprovide[s] for the appointment of an Acting Marshal by the Attorney General\xe2\x80\x9d and \xe2\x80\x9calso assures the tempo\xc2\xad\nrary nature of such interim appointments . . by providing for the automatic termination of such interim\nappointm ents \xe2\x80\x9d 134 Cong. Rec. 32,709 ( 1988)\n\n2\n\n\x0cA u th o rity o f the A tto rn ey G eneral to M ake Successive D esignations o f Interim U nited States M arshals\n\nU.S. Const, art. II, \xc2\xa7 2, cl. 3. But the Senate will not necessarily be in recess on the\nthirtieth day following the end of its session, or following its refusal to give advice\nand consent to an appointment. In such circumstances, \xc2\xa7 562, if construed as per\xc2\xad\nmitting only a single exercise of the authority to designate an interim marshal,\nwould provide no mechanism for conferring upon anyone the authority to perform\nthe functions of a marshal in a district where the m arshal\xe2\x80\x99s office is vacant. Such a\nconstruction would be contrary to the apparent purpose o f \xc2\xa7 562, which is to pro\xc2\xad\nvide continuity in the performance of the m arshal\xe2\x80\x99s functions.\nW hile the courts have not addressed the issue o f successive interim designations\nunder the marshal vacancy statute, judicial interpretation of a statute governing\ninterim United States attorney appointments supports our analysis of \xc2\xa7 562. Simi\xc2\xad\nlar to the marshal vacancy statute, the United States attorney vacancy statute\nauthorizes the Attorney General to \xe2\x80\x9cappoint a United States attorney for the district\nin which the office . . . is vacant\xe2\x80\x9d to serve for 120 days, or until the President fills\nthe office by appointment. 28 U.S.C. \xc2\xa7 546. At least one court has found that this\nlanguage permits the Attorney General to appoint as \xe2\x80\x9cActing United States A ttor\xc2\xad\nney\xe2\x80\x9d a person whose 120-day interim appointm ent as United States Attorney for\nthe same district had expired. In re Grand Jury Proceedings, 671 F. Supp. 5, 6 &\nn.3 (D. Mass. 1987).5\nIII.*\n\nThe Attorney General has broad authority to delegate almost \xe2\x80\x9c [a]ll functions\nof other officers of the Department o f Justice and all functions of . . . employees\no f the Department\xe2\x80\x9d to \xe2\x80\x9cany other officer [or] employee . . . of the D epartm ent.\xe2\x80\x9d6\nThe language of these statutes supports the view that the Attorney General\nmay delegate the authority to perform all o f the functions of a United States\nmarshal to a deputy marshal, without regard to whether that deputy marshal, or\n\n5 There is a difference between ihe two vacancy statutes that suggests that successive interim appointments by the Attorney General may be more clearly permissible under the marshal statute. Unlike \xc2\xa7 562, \xc2\xa7\n546 explicitly provides a means for dealing with the automatic expiration o f a first interim appointment: In\nthat circumstance, \xe2\x80\x9cthe district court . . . may appoint a United States attorney to serve until the vacancy is\nfilled.\xe2\x80\x99\xe2\x80\x99 28 U S.C. \xc2\xa7 546(d). See also Memorandum for W illiam P Tyson, Director, Executive Office for\nUnited States Attorneys, from Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office o f Legal\nCounsel (Nov 13, 1986) (suggesting that the Attorney General may not make successive interim appoint\xc2\xad\nments pursuant to section 546); but see In re Grand Jury Proceedings, 673 F. Supp. 1138, 1142 n. 11 (D.\nMass 1987) (\xe2\x80\x9c(I]t is not clear . . that the Attorney General him self would be foreclosed from making a\nsecond interim appointment under\xe2\x80\x9d section 546).\n\xe2\x80\x99 Editors Note- The Vacancies Reform Act o f 1998 has called into question the conclusions reached in\nthis section. See Pub. L No 105-277, 112 Stat 2681-611 (1999) (to be codified at 5 U.S.C. \xc2\xa7\xc2\xa7 3345-3349d)\n6 28 U.S C \xc2\xa7 509 provides, \xe2\x80\x9cAll functions of other officers o f the Department of Justice and all functions\no f agencies and employees of the Department of Justice are vested in the Attorney General except*\xe2\x80\x99 for sev\xc2\xad\neral functions irrelevant here.\nSection 510 of title 28 provides, \xe2\x80\x9cThe Attorney General may from time to time make such provisions as\nhe considers appropriate authorizing the performance by any other officer, employee, or agency of the De\xc2\xad\npartment of Justice of any function of the Attorney General.\xe2\x80\x9d\n\n3\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nanyone else, has been serving as an interim marshal for the district, pursuant to\n\xc2\xa7 562.7\nIt is, nonetheless, possible to construe \xc2\xa7 562 as limiting the Attorney G eneral\xe2\x80\x99s\nbroad authority under \xc2\xa7\xc2\xa7 509 and 510. On that view, because \xc2\xa7 562 grants the\nAttorney G eneral m ore specific authority to address vacancies in United States\nm arshals\xe2\x80\x99 offices, the section must have meant to set forth the full extent o f the\nAttorney G eneral\xe2\x80\x99s authority in that area. It might also be argued that such a\nreading of \xc2\xa7 562 is necessary to m ake the section\xe2\x80\x99s time limits on interim marshal\ndesignations m eaningful. Allowing the Attorney General to make potentially un\xc2\xad\nlimited delegations o f the authority to act as a marshal, such an argument might\nconclude, could displace the process o f appointm ent by the President and advice\nand consent by the Senate.\nThe better view is not to read into \xc2\xa7 562 such a limitation on the Attorney Gen\xc2\xad\neral\xe2\x80\x99s authority under \xc2\xa7\xc2\xa7 509 and 510. Section 562 establishes procedures and\ncriteria that the A ttorney General m ust follow if he wishes to designate a person to\nserve as an interim m arshal pursuant to the authority conferred by the marshal va\xc2\xad\ncancy statute. One need not, and should not, assume that \xc2\xa7 562 provides the exclu\xc2\xad\nsive m eans by which the Attorney G eneral may delegate the authority to perform a\nm arshal\xe2\x80\x99s functions, or that \xc2\xa7 562 displaces any additional legal authority that the\nAttorney General otherw ise would possess to address marshal vacancies.8 Our\ninterpretation preserves a function fo r \xc2\xa7 562 without requiring that it operate so as\nto interfere with law enforcement, co u rt security or the performance of other vital\nfunctions o f the m arshal\xe2\x80\x99s office.\nT his conclusion finds support in judicial interpretations of the Attorney Gen\xc2\xad\neral\xe2\x80\x99s authority to delegate under \xc2\xa7\xc2\xa7 509 and 510, and construction of those stat\xc2\xad\nutes in conjunction with m ore \xe2\x80\x9cspecific\xe2\x80\x9d statutes governing the Attorney G eneral\xe2\x80\x99s\nauthority to designate or appoint others to perform functions of the Department of\nJustice. See, e.g., In re Subpoena o f Persico, 522 F.2d 41, 54-55 (2d Cir. 1975)\n(Attorney General has authority to assign others to perform prosecutorial functions\n\xe2\x80\x9cnot only under 28 U.S.C. \xc2\xa7 515 [authorizing specific designation], but also under\n. . . other statutes,\xe2\x80\x9d including \xc2\xa7\xc2\xa7 509 and 510); In re G rand Jury Proceedings, 673\nF. Supp. at 1138-39, 1142 (accepting Attorney G eneral\xe2\x80\x99s delegation, under \xc2\xa7 510,\nof authority to act as U.S. attorney, to person whose interim appointment as U.S.\nattorney under \xc2\xa7 546 had terminated); Bruzzone v. Hampton, 433 F. Supp. 92, 97\n(S.D.N.Y. 1977) (statute authorizing marshals to remove deputy marshals did not\n\n7 As "officials o f the [United Slates M arshals] Service,\xe2\x80\x9d 28 U S.C \xc2\xa7\xc2\xa7 564, 566(d), deputy marshals are\n\xe2\x80\x9cofficer[s or] employee[s]\n. o f ihe Department of Justice,\xe2\x80\x9d 28 U.S.C. \xc2\xa7 510.\n8 We do not regard the Vacancies Act, 5 U S.C \xc2\xa7\xc2\xa7 3345-3349, as limiting the Attorney General\xe2\x80\x99s author\xc2\xad\nity to delegate under \xc2\xa7\xc2\xa7 509 and 510 Our long-standing view is that the time limits the Vacancies Act im\xc2\xad\nposes on designations apply only to designations made under that act, and that \xc2\xa7\xc2\xa7 509 and 510 should be\nconstrued as remedial legislation superseding the Vacancies Act. See, e g_, Memorandum for Rudolph W\nGiuliani, Associate Attorney General, from Ralph W Tarr, Deputy Assistant Attorney General, Office of\nLegal Counsel (Dec. 30, 1982).\n\n4\n\n\x0cA u thority o f the A ttorney G eneral to M ake Successive D esignations o f Interim U nited States M arshals\n\ndiminish Attorney G eneral\xe2\x80\x99s power, under \xc2\xa7 509, to \xe2\x80\x9cperform the functions of the\nM arshal\xe2\x80\x9d or to delegate to another officer the m arshal\xe2\x80\x99s authority to remove deputy\nmarshals).9\nIV.\nFor the reasons set forth above, we conclude that 28 U.S.C. \xc2\xa7 562 authorizes the\nAttorney General (subject to the limitations the statute explicitly imposes) to des\xc2\xad\nignate a deputy marshal to serve as interim marshal upon the expiration o f his, or\nanother person\xe2\x80\x99s, prior designation as interim marshal in a judicial district where\nthe m arshal\xe2\x80\x99s office is vacant. We also conclude that 28 U.S.C. \xc2\xa7\xc2\xa7 509, 510\nauthorize the Attorney General to delegate the authority to perform the functions of\na United States marshal to a deputy marshal. We recommend that Attorney Gen\xc2\xad\neral Orders designating interim United States marshals recite, in an abundance of\ncaution, that the Attorney General acts pursuant to the authority granted by 28\nU.S.C. \xc2\xa7 \xc2\xa7 5 0 9 ,5 1 0 , 562.\nJOHN C. HARRISON\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n9\nSee also Memorandum for Robert A. McConnell. Assistant Attorney General, Office of Legislative\nAffairs, from Robert B Shanks, Deputy Assistant Attorney General, Office of Legal Counsel (May 24, 1983)\n(Attorney General has authority to appoint acting U S. attorneys under \xc2\xa7 510, predecessor to \xc2\xa7 546 vacancy\nstatute is unnecessary). An earlier OLC opinion suggested that \xc2\xa7 510 gave the Attorney General authority to\nmake interim appointments to vacant U.S attorney positions, but not necessarily to vacant U.S. marshal\npositions. That opinion stressed that a marshal was principally \xe2\x80\x9can officer of the court,\xe2\x80\x9d that a statute\nauthorized district courts to make interim marshal appointments, and that marshals (including interim ap\xc2\xad\npointees in vacant posts) had to give a personal bond to guarantee proper handling of funds Memorandum\nfor Lawrence E Walsh, Deputy Attorney General, from Robert Kramer, Assistant Attorney General, Office\no f Legal Counsel at 3 (Oct 21, 1959) Those factors have changed\' marshals now have substantial investi\xc2\xad\ngatory and law enforcement duties, 28 U.S C \xc2\xa7 566, the current marshal vacancy statute does not give courts\ninterim appointment power (while the U.S attorney vacancy statute now does, see, supra note 6), and mar\xc2\xad\nshals are no longer required to give personal bonds.\n\n5\n\n\x0c'


b'Authority of Florida Police Officers to Make\nArrests on the Basis of FBI Pick-Up Notices\nThe authority of a Florida police officer to make a warrantless arrest for an alleged violation of federal\nlaw depends on state law and cannot be based merely on the existence of an FBI pick-up notice.\n\nJanuary 28, 1953\n\nMEMORANDUM OPINION FOR THE DIRECTOR\nFEDERAL BUREAU OF INVESTIGATION\nWith your memorandum of October 9, 1952, addressed to the Deputy Attorney\nGeneral and referred to this office for reply, you sent a copy of an opinion given\nby Attorney General Richard W. Ervin of Florida to the Florida Peace Officers\xe2\x80\x99\nAssociation (dated September 15, 1952) containing answers to several questions\nregarding the authority to make arrests by municipal police officers of Florida.\nThe portion concerning the federal government and this Department came under\nthe heading of question 4. The question read:\n4. What authority, if any, does a municipal police officer have to\nmake arrests upon the basis of pick-up notices sent out by other\nofficers?\nThe answer took the view that under the Florida statutes a municipal police officer\n(regarded as a peace officer, see page 2 of the opinion), who receives a pick-up\nnotice from another peace officer of Florida showing that a named person is\nwanted for a felony under the laws of Florida, may accept the notice as reasonable\nground to believe that a felony has been committed and reasonable ground to\nbelieve that the wanted person committed it, and has authority to arrest the wanted\nperson. On the other hand, without assigning any reason the answer assumed a\ndistinction in the case of pick-up notices received from federal officers and further\nassumed that a municipal police officer has only the common law right of a private\ncitizen to arrest for a federal felony. If he should make an arrest, it was stated the\nmunicipal police officer acts at his peril (subject to liabilities indicated in the\nanswer to question 5) when he arrests for a federal felony on the strength of the\nfederal pick-up notice, even if it is sufficient to give him reasonable ground to\nbelieve that a federal felony has been committed and that the person to be arrested\nhas committed it, because, as in the case of arrest by a private citizen, reasonable\nground to believe that a federal felony has been committed will not suffice; a\nfederal felony must actually have been committed and the municipal police officer\nmust have reasonable ground to believe that the person to be arrested committed it.\nThe answer further stated that a municipal police officer acting as a private citizen\nhad no authority to arrest for a federal misdemeanor upon the basis of a pick-up\nnotice.\n\n149\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nYou have pointed out that substantially all of the requests for pick-ups made by\nthe FBI are in cases where federal warrants are outstanding and that the opinion\ndoes not distinguish between the situation where a warrant is outstanding and the\nsituation where one has not been issued.\nWe think that the Florida opinion on this subject is unfortunate in this and\nseveral other respects. In testing the lawfulness of arrest, if we were to assume that\nan arrest by a state or municipal police officer pursuant to an FBI pick-up notice is\nan arrest without a warrant, there is no basis in federal or state law at the present\ntime for distinguishing between the conduct of a state or local police officer when\nhe arrests without a warrant for a state felony or a federal felony. The United\nStates Supreme Court dealt squarely with the issue in United States v. Di Re, 332\nU.S. 581 (1948). Speaking through Mr. Justice Jackson, the Court said:\nWe believe, however, that in absence of an applicable federal\nstatute the law of the state where an arrest without warrant takes\nplace determines its validity. By one of the earliest acts of Congress,\nthe principle of which is still retained, the arrest by judicial process\nfor a federal offense must be \xe2\x80\x9cagreeably to the usual mode of process\nagainst offenders in such state.\xe2\x80\x9d8 There is no reason to believe that\nstate law is not an equally appropriate standard by which to test\narrests without warrant, except in those cases where Congress has\nenacted a federal rule. Indeed the enactment of a federal rule in some\nspecific cases seems to imply the absence of any general federal law\nof arrest.\n. . . No act of Congress lays down a general federal rule for arrest\nwithout warrant for federal offenses. None purports to supersede\nstate law. And none applies to this arrest which, while for a federal\noffense, was made by a state officer accompanied by federal officers\nwho had no power of arrest. Therefore the New York statute provides the standard by which this arrest must stand or fall.\nId. at 589\xe2\x80\x9390, 591 (footnote 8 below is from page 589 of the reported opinion).\nThe test which the Court applied (in this arrest by a state police officer for a\nfederal war rationing violation) was section 177 of the New York Code of\nCriminal Procedure, which is a statute cast in general terms providing the\n\n8\nThe Act of September 24, 1789 (Ch. 20, \xc2\xa7 33, 1 Stat. 91), concerning arrest with warrant, provided: \xe2\x80\x9cThat for any crime or offence against the United States, the offender may, by any justice or judge\nof the United States, or by any justice of the peace, or other magistrate of any of the United States\nwhere he may be found agreeably to the usual mode of process against offenders in such state, and at\nthe expense of the United States, be arrested, and imprisoned or bailed, as the case may be, for trial\nbefore such court of the United States as by this act has cognizance of the offense.\xe2\x80\x9d This provision has\nremained substantially similar to this day. 18 U.S.C. \xc2\xa7 591. See also 1 Op. Att\xe2\x80\x99y. Gen. 85, 86.\n\n150\n\n\x0cAuthority of Florida Police Officers to Make Arrests on Basis of FBI Pick-Up Notices\n\nauthority of a peace officer to arrest without warrant in three types of cases. The\nstatute resembles section 901.15, Florida Statutes, 1951 (which is quoted at length\nat a later point in this memorandum), except that the Florida statute is somewhat\nbroader in its coverage. It is important for our purposes to observe that, although\nthe arrest and subsequent search in Di Re failed because the arresting officer had\nno information which would lead him to believe that either a felony or misdemeanor had been committed by Di Re, the action of the arresting officer was\ntested by New York\xe2\x80\x99s statutes on arrest applicable to peace officers and not on any\ntheory that the state peace officer was acting as a private citizen or that there was\nany special or different rule when he acted to arrest for a federal offense.\nDi Re was followed shortly by Johnson v. United States, 333 U.S. 10 (1948), in\nwhich an arrest on a federal narcotics violation, effected without a warrant by\nfederal narcotics agents and a city police officer, was tested by the law of the State\nof Washington applicable to state officers, the Court holding again that state law\ndetermines the validity of arrest without warrant.\nStill later, the contemporaneous state of the law of arrest, as it was confirmed in\nDi Re, was described by Judge Learned Hand in United States v. Coplon as\nfollows:\nIn the absence of some controlling federal law the validity of an\narrest for a federal crime depends upon whether an arrest for a state\ncrime would have been valid under the state law, if made in the same\ncircumstances. Whatever the doubts which might have existed as to\nthis before 1948, they were laid in that year. At common law a private person, as distinct from a peace officer, had the power to arrest\nwithout warrant for a felony, committed in his presence, and for one,\nactually committed in the past, if he had reasonable ground to suppose that it had been committed by the person whom he arrested. A\n\xe2\x80\x9cconstable\xe2\x80\x9d or other \xe2\x80\x9cconservator of the peace\xe2\x80\x9d had all the powers of\narrest without warrant of a private person, and in addition the power\nto arrest for felony, although no felony had actually been committed,\nif he had reasonable ground to suppose that the person arrested had\ncommitted the felony. That was the only distinction between their\npowers and those of a private person. The law of New York is nearly, if not quite, in accord with this.\n185 F.2d 629, 633\xe2\x80\x9334 (2d Cir. 1951) (footnotes omitted).\nIt might be observed that the law of Florida as codified in section 901.15, Florida Statutes, 1951, is even more nearly in accord with the common law, as noted in\nDorsey v. United States, 174 F.2d 899 (5th Cir. 1949). In this case, cited by the\nFlorida Attorney General\xe2\x80\x99s opinion, the Court acknowledged the rule of Di Re; but\nthe point of Dorsey is that investigators of the federal Office of Price Administration who the court said were not arresting officers, but who nevertheless made an\n\n151\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\narrest without a warrant for a federal offense, had no greater rights than private\npersons in effecting the arrest. In Florida, though the statutes make no provision\nfor arrest by a private person, the Court held he may nevertheless act under the\ncommon law rule to arrest for a felony committed in his presence. This was the\nsituation in the case and the arrest was sustained. The opinion is entirely in accord\nwith the views laid down by the Supreme Court and applied in the other circuits,\nas hereinafter noted. But the holding of the Dorsey case does not deal with the\npowers of arresting officers, and in our view is misapplied if it is used, as it\nappears to be used in the Florida Attorney General\xe2\x80\x99s opinion, to correlate the\npowers of arresting officers, state or federal, to that of private citizens in making\narrests without warrants for federal felonies.\nIllustrating that the Supreme Court opinions in Di Re and Johnson did not\nestablish \xe2\x80\x9cnew\xe2\x80\x9d law, but confirmed a long-accepted practice, is Cline v. United\nStates, in which the court held that \xe2\x80\x9c[t]he procedure for making arrests which\nobtains under the state practice is applicable to arrests made for crimes against the\nUnited States,\xe2\x80\x9d 9 F.2d 621, 621 (9th Cir. 1925) (citing Prize Ship and Crew\xe2\x80\x94How\nTo Be Disposed Of, 1 Op. Att\xe2\x80\x99y. Gen. 85, 86 (1798)), and a group of early federal\ncases. Other cases in other circuits or districts which have followed and applied\nthe Di Re case are Pon v. United States, 168 F.2d 373 (1st Cir. 1948), a narcotics\ncase, holding the validity of arrest to be determined by the law of Massachusetts\nunder which an arrest by an officer without a warrant is authorized if the officer\nhas reasonable grounds to believe that a felony was committed by the defendant;\nBrubaker v. United States, 183 F.2d 894 (6th Cir. 1950), a Dyer Act violation,\nholding the legality of the arrest to be governed by the law of Tennessee, which\nprovides that an officer may without a warrant arrest a person when a felony has in\nfact been committed and the officer has reasonable cause for believing the person\narrested committed the felony; United States v. Horton, 86 F. Supp. 92 (W.D.\nMich. 1949), upholding an arrest without a warrant by city police for a federal\nnarcotics violation as tested by the law of Michigan, the pertinent of which are\npractically identical with subsection (2) and (3) of section 901.15, Florida Statutes,\n1951; and United States v. Guller, 101 F. Supp. 176 (E.D. Pa. 1951), testing an\narrest in a narcotics case by the Pennsylvania law which accords with the common\nlaw rules.\nIn the Di Re and subsequent cases involving arrests for federal offenses by state\nofficers, apparently it was accepted without argument, so far as the opinions show,\nthat a state officer may arrest for federal offenses. The issue was the standard to be\napplied. But the matter assumed had not gone without argument, earlier, and the\nleading case is probably Marsh v. United States, 29 F.2d 172 (2d Cir. 1928). In an\nopinion by Judge Learned Hand, the court held that a state police officer had\nauthority to arrest for violation of federal law. The court pointed out that the state\nstatute (section 177 of the New York Code of Criminal Procedure, the same statute\nlater applied in Di Re, which provides that a peace officer may without a warrant\narrest a person for a crime committed or attempted in his presence) had been\n\n152\n\n\x0cAuthority of Florida Police Officers to Make Arrests on Basis of FBI Pick-Up Notices\n\nuniversally used by New York police officers in arresting for federal crimes\nregardless of whether they were felonies or misdemeanors. But the court went on\nto say:\nMoreover, we should be disposed a priori so to understand it. Section 2 of article 6 of the Constitution makes all laws of the United\nStates the supreme law of the land, and the National Prohibition Law\nis as valid a command within the borders of New York as one of its\nown statutes. True, the state may not have, and has not, passed any\nlegislation in aid of the Eighteenth Amendment, but from that we do\nnot infer that general words used in her statutes must be interpreted\nas excepting crimes which are equally crimes, though not forbidden\nby her express will. We are to assume that she is concerned with the\napprehension of offenders against laws of the United States, valid\nwithin her border, though they cannot be prosecuted in her own\ncourts.\nMarsh, 29 F.2d at 174.\nThe court went on further to reject the argument that Congress in enacting\nsection 33 of the Judiciary Act of 1789, providing for arrest and commitment or\nbail of offenders against federal law by state officials \xe2\x80\x9cagreeably to the usual mode\nof process against offenders in such state,\xe2\x80\x9d had by implication forbidden any state\narrests for federal offenses without warrant. Act of Sept. 24, 1789, ch. 20, \xc2\xa7 33, 1\nStat. 73, 91, later codified as amended at Rev. Stat. \xc2\xa7 1014 (2d ed. 1878), 18 Stat.\npt. 1, at 189 (repl. vol.), and at 18 U.S.C. \xc2\xa7 591 (1925\xe2\x80\x9326), now 18 U.S.C. \xc2\xa7 3041\n(1952). On the contrary, said the court anticipating what was later held in Di Re, it\nwould be unreasonable to suppose that it had been the purpose of the Congress to\ndeny to the United States any help that the states may allow. Marsh was followed\nin United States v. One Packard Truck, 55 F.2d 882 (2d Cir. 1932).\nIn the light of the well-established body of law and practice reviewed here, it\nwould seem to us that there is no justification, and it is contrary to the precedents,\nto read section 901.15, Florida Statutes, 1951, particularly subsections (3) and (4),\nas purporting to exclude arrests for federal offenses. The Florida statute is cast in\ngeneral terms like the New York, Michigan, Tennessee, Massachusetts, and other\nstatutes construed by the courts, and its language and derivation afford no basis for\nthe artificial distinction. Unfortunately in this regard the opinion of the Florida\nAttorney General in dealing with question 4 paraphrases rather than quotes the\nFlorida statute, and in so doing inserts the word \xe2\x80\x9cFlorida\xe2\x80\x9d in several places where\nit does not appear in the statute, thereby creating an erroneous impression. For\nyour benefit there is set out verbatim the provisions of section 901.15:\nWhen arrest by officer without warrant is lawful.\xe2\x80\x94A peace officer\nmay without warrant arrest a person:\n\n153\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\n(1) When the person to be arrested has committed a felony or\nmisdemeanor or violation of a municipal ordinance in his presence. In the case of such arrest for a misdemeanor or violation of\na municipal ordinance, the arrest shall be made immediately or on\nfresh pursuit.\n(2) When a felony has in fact been committed, and he has reasonable ground to believe that the person to be arrested has committed it.\n(3) When he has reasonable ground to believe that a felony has\nbeen or is being committed and reasonable ground to believe that\nthe person to be arrested has committed or is committing it.\n(4) When a warrant has been issued charging any criminal offense\nand has been placed in the hands of any peace officer for execution.\nThese are, as said of the comparable New York statute by Judge Learned Hand,\n\xe2\x80\x9cgeneral words used in her statutes,\xe2\x80\x9d Marsh, 29 F.2d at 174, from which it is not to\nbe inferred that there are excepted crimes which are equally crimes by the supreme\nlaw of the land though not forbidden expressly by Florida law. The notion that\nfederal criminal law may be \xe2\x80\x9cforeign\xe2\x80\x9d to the states was laid to rest by the Supreme\nCourt in Testa v. Katt, 330 U.S. 386 (1947), where the Court said:\nIt cannot be assumed, the supremacy clause considered, that the\nresponsibilities of a state to enforce the laws of a sister state are identical with its responsibilities to enforce federal laws. Such an\nassumption represents an erroneous evaluation of the statutes of\nCongress and the prior decisions of this Court in their historic setting. Those decisions establish that state courts do not bear the same\nrelation to the United States that they do to foreign countries. The\nfirst Congress that convened after the Constitution was adopted conferred jurisdiction upon the state courts to enforce important federal\ncivil laws, and succeeding Congresses conferred on the states jurisdiction over federal crimes and actions for penalties and forfeitures.\nEnforcement of federal laws by state courts did not go unchallenged. Violent public controversies existed throughout the first part\nof the Nineteenth Century until the 1860\xe2\x80\x99s concerning the extent of\nthe constitutional supremacy of the Federal Government. During that\nperiod there were instances in which this Court and state courts\nbroadly questioned the power and duty of state courts to exercise\ntheir jurisdiction to enforce United States civil and penal statutes or\n\n154\n\n\x0cAuthority of Florida Police Officers to Make Arrests on Basis of FBI Pick-Up Notices\n\nthe power of the Federal Government to require them to do so. But\nafter the fundamental issues over the extent of federal supremacy\nhad been resolved by war, this Court took occasion in 1876 to review\nthe phase of the controversy concerning the relationship of state\ncourts to the Federal Government. Claflin v. Houseman, 93 U.S. 130.\nThe opinion of a unanimous court in that case was strongly buttressed by historic references and persuasive reasoning. It repudiated\nthe assumption that federal laws can be considered by the states as\nthough they were laws emanating from a foreign sovereign. Its\nteaching is that the Constitution and the laws passed pursuant to it\nare the supreme laws of the land, binding alike upon states, courts,\nand the people, \xe2\x80\x9cany Thing in the Constitution or Laws of any State\nto the Contrary notwithstanding.\xe2\x80\x9d It asserted that the obligation of\nstates to enforce these federal laws is not lessened by reason of the\nform in which they are cast or the remedy which they provide.\nId. at 389\xe2\x80\x9391 (footnotes omitted).\nIt would therefore seem to us that the Attorney General of Florida should have\nno difficulty in regarding subsection (3) of section 901.15 as ample authority for a\nmunicipal police officer to arrest without a warrant for a federal felony on a pickup notice emanating from a federal officer. As the Attorney General of Florida has\nalready indicated to be the case for state pick-up notices in state felonies, so the\nfederal pick-up notice can equally afford the arresting officer reasonable ground to\nbelieve that a federal felony has been committed and that the wanted person has\ncommitted it. Reliance on hearsay, and on reasonableness of belief or reasonable\nor probable cause, in making arrests is supported in the cases, such as United\nStates v. Bianco, 189 F.2d 716 (3d Cir. 1951); United States v. Heitner, 149 F.2d\n105 (2d Cir. 1945), cert. denied sub nom. Cryne v. United States, 326 U.S. 727,\nreh\xe2\x80\x99g denied, 326 U.S. 809; Brinegar v. United States, 338 U.S. 160 (1949).\nTo the extent that the FBI pick-up notice advises with particularity that a warrant of arrest has been placed in the hands of a federal marshal or deputy (who, it\nwill be remembered, enjoys the corresponding powers of a state sheriff, 28 U.S.C.\n\xc2\xa7 549, and is regarded as a peace officer, In re Neagle, 135 U.S. 1, 68\xe2\x80\x9369 (1890)),\nor any other peace officer, it would also seem that the Attorney General of Florida\ncould with propriety advise that subsection (4) of section 901.15, Florida Statutes,\n1951, might also provide the basis for a Florida peace officer arresting the wanted\nperson in reliance on the pick-up notice, whether the offense charged is a felony or\nmisdemeanor (since the express wording of subsection (4) covers \xe2\x80\x9cany criminal\noffense\xe2\x80\x9d), without the Florida peace officer having the warrant in his possession.\nRule 4(c)(1) of the Federal Rules of Criminal Procedure (1952) permits the federal\ncriminal warrant to be executed \xe2\x80\x9cby a marshal or by some other officer authorized\nby law\xe2\x80\x9d; under Rule 4(c)(3), the officer need not have a warrant in his possession\nat the time of the arrest; and, under Rule 4(c)(2) and Rule 9(c)(1), the warrant may\n\n155\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nbe executed anywhere in the United States regardless of the district in which it\nissued. See, e.g., United States v. Donnelly, 179 F. 2d 227 (7th Cir. 1950) (sustaining an arrest in Missouri made by FBI agents and Missouri police as the result of a\nteletype message from Chicago after issuance of a commissioner\xe2\x80\x99s warrant for the\ndefendant\xe2\x80\x99s arrest in Chicago), overruled on other grounds, United States v.\nBurke, 781 F.3d 1234 (7th Cir. 1985).\nIn view of the doubt that may have been created by the portion of the Florida\nAttorney General\xe2\x80\x99s opinion we have discussed, it would be helpful if reconsideration of that portion of the opinion could be had.\nWhile the problem, as it affects arrests for federal offenses, is one of interpretation and application of state law, it has nevertheless been made so by the action of\nCongress and the judicial extension of section 33 of the Judiciary Act of 1789 (18\nU.S.C. \xc2\xa7 3041). The correct application of the appropriate state law in the federal\ncases is therefore not only a matter of federal interest but may involve, in the legal\nsense, a federal question, cf. Dice v. Akron, Canton and Youngstown R.R. Co., 342\nU.S. 359 (1952); Davis v. Wechsler, 263 U.S. 22 (1923).\nSince the oversight in interpretation ought to be susceptible of clarification by a\nfurther interpretation, it would be most unfortunate if, as is intimated in your\nmemorandum, the matter would have to be rectified by state legislation. A request\nfor, or enactment of, legislation on this point in one state might unnecessarily give\nrise to confusion and doubts in the other judicial districts of the United States\nwhere, so far as we know, no similar difficulty has been encountered under\ncomparable state law.\nNo doubt you have available suitable means of raising the question with Attorney General Ervin, in order to bring about the desired correction. We might add\nthat this office has in the past enjoyed good relationships with his office on a\nnumber of matters, and we would be quite willing to do whatever we can to assist.\nJ. LEE RANKIN\nAssistant Attorney General\nExecutive Adjudications Division\n\n156\n\n\x0c'


b'(Slip opinion)\n\nAuthority of Individual Members of Congress to\nConduct Oversight of the Executive Branch\nThe constitutional authority to conduct oversight\xe2\x80\x94that is, the authority to make official\ninquiries into and to conduct investigations of executive branch programs and activities\xe2\x80\x94may be exercised only by each house of Congress or, under existing delegations,\nby committees and subcommittees (or their chairmen).\nIndividual members of Congress, including ranking minority members, do not have the\nauthority to conduct oversight in the absence of a specific delegation by a full house,\ncommittee, or subcommittee. They may request information from the Executive\nBranch, which may respond at its discretion, but such requests do not trigger any obligation to accommodate congressional needs and are not legally enforceable through a\nsubpoena or contempt proceedings.\nMay 1, 2017\n\nLETTER OPINION FOR THE COUNSEL TO THE PRESIDENT\nWe understand that questions have been raised about the authority of\nindividual members of Congress to conduct oversight of the Executive\nBranch. As briefly explained below, the constitutional authority to conduct oversight\xe2\x80\x94that is, the authority to make official inquiries into and to\nconduct investigations of executive branch programs and activities\xe2\x80\x94may\nbe exercised only by each house of Congress or, under existing delegations, by committees and subcommittees (or their chairmen). Individual\nmembers of Congress, including ranking minority members, do not have\nthe authority to conduct oversight in the absence of a specific delegation\nby a full house, committee, or subcommittee. Accordingly, the Executive\nBranch\xe2\x80\x99s longstanding policy has been to engage in the established process for accommodating congressional requests for information only when\nthose requests come from a committee, subcommittee, or chairman authorized to conduct oversight.\nThe Constitution vests \xe2\x80\x9c[a]ll legislative Powers\xe2\x80\x9d in \xe2\x80\x9ca Congress of the\nUnited States, which shall consist of a Senate and House of Representatives.\xe2\x80\x9d U.S. Const. art. I, \xc2\xa7 1. The Supreme Court has recognized that one\nof those legislative powers is the implicit authority of each house of\nCongress to gather information in aid of its legislative function. See\nMcGrain v. Daugherty, 273 U.S. 135, 174 (1927). Each house may exercise its authority directly\xe2\x80\x94for example, by passing a resolution of inquiry\nseeking information from the Executive Branch. See 4 Deschler\xe2\x80\x99s Precedents of the United States House of Representatives, ch. 15, \xc2\xa7 2, at 30\xe2\x80\x9350\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\n(1981) (describing the practice of resolutions of inquiry and providing\nexamples); Floyd M. Riddick & Alan S. Frumin, Riddick\xe2\x80\x99s Senate Procedure, S. Doc. No. 101-28, at 882 (1992) (\xe2\x80\x9cThe Senate itself could investigate or hear witnesses as it has on rare occasions[.]\xe2\x80\x9d).\nIn modern practice, however, each house typically conducts oversight\n\xe2\x80\x9cthrough delegations of authority to its committees, which act either\nthrough requests by the committee chairman, speaking on behalf of the\ncommittee, or through some other action by the committee itself.\xe2\x80\x9d Application of Privacy Act Congressional-Disclosure Exception to Disclosures\nto Ranking Minority Members, 25 Op. O.L.C. 289, 289 (2001) (\xe2\x80\x9cApplication of Privacy Act\xe2\x80\x9d); see also Alissa M. Dolan et al., Cong. Research\nServ., RL30240, Congressional Oversight Manual 65 (Dec. 19, 2014). As\nthe Supreme Court has explained, \xe2\x80\x9c[t]he theory of a committee inquiry is\nthat the committee members are serving as the representatives of the\nparent assembly in collecting information for a legislative purpose\xe2\x80\x9d and,\nin such circumstances, \xe2\x80\x9ccommittees and subcommittees, sometimes one\nCongressman, are endowed with the full power of the Congress to compel\ntestimony.\xe2\x80\x9d Watkins v. United States, 354 U.S. 178, 200\xe2\x80\x9301 (1957).\nBy contrast, individual members, including ranking minority members,\n\xe2\x80\x9cgenerally do not act on behalf of congressional committees.\xe2\x80\x9d Application\nof Privacy Act, 25 Op. O.L.C. at 289; see also id. at 289\xe2\x80\x9390 (concluding\nthat \xe2\x80\x9cthe Privacy Act\xe2\x80\x99s congressional-disclosure exception does not generally apply to disclosures to ranking minority members,\xe2\x80\x9d because ranking\nminority members \xe2\x80\x9care not authorized to make committee requests, act as\nthe official recipient of information for a committee, or otherwise act on\nbehalf of a committee\xe2\x80\x9d). Under existing congressional rules, those members have not been \xe2\x80\x9cendowed with the full power of the Congress\xe2\x80\x9d (Watkins, 354 U.S. at 201) to conduct oversight. See Congressional Oversight\nManual at 65; see also Exxon Corp. v. FTC, 589 F.2d 582, 593 (D.C. Cir.\n1978) (\xe2\x80\x9c[D]isclosure of information can only be compelled by authority\nof Congress, its committees or subcommittees, not solely by individual\nmembers; and only for investigations and congressional activities.\xe2\x80\x9d).\nIndividual members who have not been authorized to conduct oversight\nare entitled to no more than \xe2\x80\x9cthe voluntary cooperation of agency officials\nor private persons.\xe2\x80\x9d Congressional Oversight Manual at 65 (emphasis\nadded).\nThe foregoing reflects the fundamental distinction between constitutionally authorized oversight and other congressional requests for infor2\n\n\x0cAuthority of Individual Members of Congress to Conduct Oversight\n\nmation. When a committee, subcommittee, or chairman exercising delegated oversight authority asks for information from the Executive Branch,\nthat request triggers the \xe2\x80\x9cimplicit constitutional mandate to seek optimal\naccommodation . . . of the needs of the conflicting branches.\xe2\x80\x9d United\nStates v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977); see also id. at\n130\xe2\x80\x9331 (describing the \xe2\x80\x9c[n]egotiation between the two branches\xe2\x80\x9d as \xe2\x80\x9ca\ndynamic process affirmatively furthering the constitutional scheme\xe2\x80\x9d).\nSuch oversight requests are enforceable by the issuance of a subpoena and\nthe potential for contempt-of-Congress proceedings. See McGrain, 273\nU.S. at 174; 2 U.S.C. \xc2\xa7\xc2\xa7 192, 194; see also Standing Rules of the Senate,\nRule XXVI(1), S. Doc. No. 113-18, at 31 (2013) (empowering all standing committees to issue subpoenas); Rules of the House of Representatives, 115th Cong., Rule XI, cl. 2(m)(1) (2017) (same). Upon receipt of\na properly authorized oversight request, the Executive Branch\xe2\x80\x99s longstanding policy has been to engage in the accommodation process by\nsupplying the requested information \xe2\x80\x9cto the fullest extent consistent with\nthe constitutional and statutory obligations of the Executive Branch.\xe2\x80\x9d\nMemorandum for the Heads of Executive Departments and Agencies from\nPresident Ronald Reagan, Re: Procedures Governing Responses to Congressional Requests for Information (Nov. 4, 1982). But a letter or inquiry\nfrom a member or members of Congress not authorized to conduct oversight is not properly considered an \xe2\x80\x9coversight\xe2\x80\x9d request. See Congressional\nOversight Manual at 56 (\xe2\x80\x9cIndividual Members, Members not on a committee of jurisdiction, or minority Members of a jurisdictional committee,\nmay, like any person, request agency records. When they do, however,\nthey are not acting pursuant to Congress\xe2\x80\x99s constitutional authority to\nconduct oversight and investigations.\xe2\x80\x9d). It does not trigger any obligation to accommodate congressional needs and is not legally enforceable\nthrough a subpoena or contempt proceedings.\nMembers who are not committee or subcommittee chairmen sometimes\nseek information about executive branch programs or activities, whether\nfor legislation, constituent service, or other legitimate purposes (such as\nSenators\xe2\x80\x99 role in providing advice and consent for presidential appointments) in the absence of delegated oversight authority. In those nonoversight contexts, the Executive Branch has historically exercised its\ndiscretion in determining whether and how to respond, following a general policy of providing only documents and information that are already\npublic or would be available to the public through the Freedom of Information Act, 5 U.S.C. \xc2\xa7 552. Whether it is appropriate to respond to\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nrequests from individual members will depend on the circumstances. In\ngeneral, agencies have provided information only when doing so would\nnot be overly burdensome and would not interfere with their ability to\nrespond in a timely manner to duly authorized oversight requests. In many\ninstances, such discretionary responses furnish the agency with an opportunity to correct misperceptions or inaccurate factual statements that are\nthe basis for a request.\nCURTIS E. GANNON\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n4\n\n\x0c'


b"August 28, 1979\n\n79-63\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nENERGY\nReal Property\xe2\x80\x94Title\xe2\x80\x94Authority of the Attorney\nGeneral (40 U.S.C. \xc2\xa7 255)\xe2\x80\x94Strategic Petroleum\nReserve\n\nThis memorandum responds to your request for our opinion with\nrespect to the application and interpretation o f certain Departm ent of\nJustice regulations in connection with a potential real property transaction\nrelating to the Strategic Petroleum Reserve (SPR) under the Energy Policy\nand Conservation Act o f 1975 (EPCA), 42 U.S.C. \xc2\xa7 6201, et seq. The reg\xc2\xad\nulations in question (which are unpublished) set forth the standards pursu\xc2\xad\nant to which the Attorney General exercises the authority, conferred on\nhim by \xc2\xa7 355 o f the Revised Statutes, 40 U .S.C . \xc2\xa7 255 (hereinafter \xc2\xa7 255),\nto pass on the sufficiency o f title to lands to be acquired by the United\nStates.1 As we understand it, you wish to know whether \xc2\xa7 255 applies to\ntransactions for the SPR and, if so, whether under the regulations the\ntransaction in question should be approved. For the reasons that follow, it\nis our conclusion that your D epartm ent\xe2\x80\x99s real property transactions with\nrespect to the SPR must be subjected to the Attorney General\xe2\x80\x99s review\nprocess contem plated by \xc2\xa7 255. It is our further conclusion that the appli\xc2\xad\ncation o f the regulations implementing \xc2\xa7 255 requires disapproval o f the\ntransaction outlined in your request.\nAlthough the statutory scheme o f the EPCA is not a simple one, an un\xc2\xad\nderstanding o f its several central provisions is im portant to a resolution of\nthe issues involved. Section 154(a) o f the EPCA , 42 U .S.C . 6234(a), m an\xc2\xad\ndates the establishment o f locations for the storage o f petroleum products\n\n'Section 255 provides in pertinent part:\nUnless the A ttorney General gives prior written approval o f the sufficiency o f the title to\nland for the purpose for which the property is being acquired by the United States,\npublic money may not be expended for the purchase o f the land or any interest therein.\n\n337\n\n\x0c(known as the SPR). Under \xc2\xa7 159(f) the Secretary of Energy is authorized,\n\xe2\x80\x9c to the extent necessary or appropriate to implement\xe2\x80\x9d the SPR program, to:\n(B) acquire by purchase, condemnation, or otherwise, land\nor interests in land for the location of storage and related\nfacilities;\n(C) construct, purchase, lease, or otherwise acquire storage\nand related facilities;\n(D) use, lease, maintain, sell, or otherwise dispose of\nstorage and related facilities acquired pursuant to this part;\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n(F) store petroleum products in storage facilities owned and\ncontrolled by the United States or in storage facilities owned by\nothers if such facilities are subject to audit by the United States;\n(G) execute any contracts necessary to carry out the provi\xc2\xad\nsions o f such Strategic Petroleum Reserve Plan, Early Storage\nReserve Plan, proposal or amendment * * * .\nAs defined in \xc2\xa7 152(4), 42 U.S.C. 6232(4), an \xe2\x80\x9c interest in land\xe2\x80\x9d which the\nSecretary is authorized to acquire under (B) includes\nany ownership or possessory right with respect to real property, in\xc2\xad\ncluding ownership in fee, an easement, a leasehold, and any sub\xc2\xad\nsurface or mineral rights.\nSection 154(b) provides for submission o f an SPR plan to Congress, which\nmust detail the Secretary\xe2\x80\x99s plans for designing, constructing, and filling the\nReserve. All proposals to acquire land and construct facilities must be in\xc2\xad\ncluded in the plan. Under \xc2\xa7 159, 42 U.S.C. \xc2\xa7 6239, the plan does not\nbecome effective and may not be implemented unless neither House o f C on\xc2\xad\ngress has disapproved it within 45 days (or both Houses affirmatively ap\xc2\xad\nprove it). Although amendments may be made to the plan, these too must\nbe submitted to Congress for its review prior to taking effect. We under\xc2\xad\nstand that the real property transaction that is the subject o f your request\nwould, pursuant to this requirement, ultimately be submitted to Congress as\nan amendment to the existing SPR plan.\nUnder \xc2\xa7 255, the Attorney General has the responsibility for passing on\nthe \xe2\x80\x9c sufficiency\xe2\x80\x9d o f the title being acquired by the United States whenever\npublic money is expended for the purchase o f land \xe2\x80\x9c or any interest\ntherein.\xe2\x80\x9d While \xc2\xa7 255 was codified in its present form in 1970, the Attorney\nGeneral has been vested with the responsibility o f approving titles to land\nacquired by the United States or its agencies under successive statutes since\nthe mid- 19th century.2 We have been informed that the Land and\n\n'T he earliest statutory precursor o f \xc2\xa7 255, enacted in 1841, 5 Stat. 468, made it \xe2\x80\x9c the duty of\nthe Attorney General to examine into titles o f the land or sites for the purpose of erecting\nthereon armories, and other public works or buildings * *\n\n338\n\n\x0cNatural Resources Division (Land Division) o f this Department has con\xc2\xad\nsistently taken the position that if Congress wishes to establish exceptions\nto the requirement o f Attorney General approval under \xc2\xa7 255, it must do\nso explicitly.\nThe regulations implementing \xc2\xa7 255 require a determination \xe2\x80\x9c that the\nproposed interest in property is in accord with the authorizing legislation\nand that such interest is sufficient for the purposes for which the property\nis being acquired.\xe2\x80\x9d Regulation 5(a). In administering these regulations,\nthe Land Division has generally taken the position that where permanent\nimprovements o f substantial value are to be erected, the only interest suffi\xc2\xad\ncient to protect the Federal investment is a full fee simple title. Thus, Reg\xc2\xad\nulation 5, \xe2\x80\x9c Character o f Title Which May be A pproved,\xe2\x80\x9d provides in per\xc2\xad\ntinent part as follows:\n(b) * * * [T]here may be restrictive covenants or agree\xc2\xad\nments in conveyances to prior owners under which the title\nmight revert to the grantors in such deeds upon the use o f the\nproperty for an unauthorized purpose or for other reasons.\nWhen permanent type improvements or improvements o f\nsubstantial value are to be erected on lands, a defeasible title to\nsuch lands is not acceptable and must not be approved, unless\nthe estate is clearly authorized by the Congress.\n(c) Other covenants and conditions in the deeds to the\nUnited States or in prior deeds may limit the use o f the prop\xc2\xad\nerty in a manner which may prevent the sale and disposition of\nthe property under laws relating to the disposition o f surplus\nproperty so as to prevent the recovery o f a substantial portion\no f the Governm ent\xe2\x80\x99s investment in the property. Titles are not\nacceptable which are subject to such covenants and conditions\nin the absence o f clear authorizing legislation.\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n*\n\n(0 A defeasible fe e title to land may be acquired by pur\xc2\xad\nchase or donation when no permanent improvements are to be\nerected thereon, provided that the statute authorizing the ac\xc2\xad\nquisition in question does not preclude acquisition o f title to\nthe interest which the agency intends to acquire, the interest in\xc2\xad\ntended to be acquired is sufficient to permit the use o f the land\ncontem plated, and the consideration for the land has been de\xc2\xad\ntermined with reference to the value o f the limited interest that\nis acquired. In the event it is decided at some future time to\nerect permanent improvements on such land, the provision for\ndefeasance must be eliminated. [Emphasis added.]\nThese regulations recognize that Congress may authorize the acquisition o f\nany interest in real property and may empower the making o f expenditures\nto improve the property, no m atter how risky; but they also recognize that\n339\n\n\x0c\xe2\x80\x9c it is very seldom that a particular interest is authorized by legislation.\xe2\x80\x9d\nRegulation 4(a). A general legislative authorization to acquire and build\non land has not been regarded as sufficient to bring a particular transac\xc2\xad\ntion within the exceptions in Regulation 5(b) and 5(c). Thus, in cases\nwhere \xc2\xa7 255 applies, this Departm ent has regularly refused to approve the\nacquisition o f less than fee simple title if permanent and substantial im\xc2\xad\nprovements are to be constructed on the land, unless Congress has sepa\xc2\xad\nrately and explicitly approved the particular acquisition. We see no legal\nbasis upon which to take issue with this consistent interpretation o f the\nreach o f \xc2\xa7 255, and we do not understand your request to question this in\xc2\xad\nterpretation o f the A ttorney G eneral\xe2\x80\x99s responsibility.\nAs explained in your request, your Departm ent proposes to acquire a\nservitude to an underground mine cavern at Cote Blanche, Louisiana, to\nan underground buffer zone around the cavern, and to sufficient surface\narea to install or construct \xe2\x80\x9c pumps, valves, and other support equipment\nand facilities.\xe2\x80\x9d You state, that under the proposed terms o f acquisition,\nthe servitude would be granted for the purpose o f storing liquid hydro\xc2\xad\ncarbons, and for that purpose only, and that\n[i]f the Government no longer required and used the premises for\nthe specific purpose for which the servitude was granted, i.e., the\nstorage o f liquid hydrocarbons, the Government would not be\nable to use the servitude for other Government purposes and\ncould not enjoy the benefit o f the improvements made thereon.\nWhile it is not yet clear exactly how great an investment is anticipated in\norder to ready the site for petroleum storage, your Office has informed us\nthat it would be substantial. The improvements that would be installed or\nconstructed would not be readily removable in the event that the site were\ndetermined at some point to be no longer useful, or if for some other\nreason the United States were no longer in a position to utilize the land as a\npetroleum storage facility.3 In addition, you have identified six circum\xc2\xad\nstances the occurrence o f any o f which would, under Louisiana law, result\nin the term ination o f the servitude:\n1. By the destruction o f the estate which owes the servitude,\no r o f that to which the servitude is due, or by such a change tak\xc2\xad\ning place that the thing subject to the servitude cannot be used;\n2. By confusion;\n3. By the abandonm ent o f that part o f the estate which owes\nthe servitude;\n4. By the renunciation o f the servitude on the part o f him to\nwhom it is due, or by the express or tacit remission o f his right;\n\n\xe2\x80\x99Indeed, there appears to be some question whether, under Louisiana law, the United\nStates could retain title to the improvem ents erected on the site in the event the servitude were\nto lapse. See La. Civ. C ode \xc2\xa7\xc2\xa7 505, 508; Yiannopoulos, Civil Law o f Property \xc2\xa7 46, at 141\n(1968).\n\n340\n\n\x0c5. By the expiration o f the time for which the servitude was\ngranted, or by the happening o f the dissolving condition attached\nto the servitude; or\n6. By the dissolution o f the right o f him who established the\nservitude.\nSome o f these occurrences appear to be within the control o f the United\nStates (e.g., renunciation and \xe2\x80\x9c confusion\xe2\x80\x9d ) but others are not. One\ntroublesome possibility which you recognize is that the estate that owes the\nservitude might be destroyed or changed in some way so as to make it im\xc2\xad\npossible to use the servitude for the purposes originally intended. You\npoint out that \xe2\x80\x9c [i]t is conceivable that the salt dome might collapse and\nthat the servitude would be considered term inated\xe2\x80\x9d and that \xe2\x80\x9c the Govern\xc2\xad\nment could lose at least the right to remove the improvem ents.\xe2\x80\x9d You also\nrefer to other ways in which, through circumstances beyond its control,\nthe United States could lose its investment in the land and improvements:\nif oil were unavailable to fill the caverns, or if at some future\ntime the Government decided not to use the servitude for hydro\xc2\xad\ncarbon storage, or if the cavern were to collapse, then although\nthe Governm ent\xe2\x80\x99s right to use the property would not terminate\nafter ten years\xe2\x80\x99 non-use, the Government would have no right to\nuse the servitude for other Government purposes for which the\nservitude and improvements thereon may be suitable. Moreover,\ngiven the limited purposes o f the servitude and the fact that pre\xc2\xad\nscription would run against one to whom the Government alien\xc2\xad\nated its interest, the potential for the Governm ent\xe2\x80\x99s recovery of\nits investment through sale o f its servitude interest, is uncertain.\nOn the basis o f its own analysis o f Louisiana law, and the various risks\nattending the transaction described in the preceding paragraphs, the Land\nDivision has concluded that the title proposed to be acquired is not suffi\xc2\xad\ncient to permit approval under the regulations implementing \xc2\xa7 255. This\nposition has been based not only on the potential for destruction o f the\nservitude under Louisiana law, but also on the restrictions on use incor\xc2\xad\nporated in the terms of acquisition.\nWe do not understand you to be asking us to review the reasonableness\no f the substantive standards contained in the regulations. Rather, you\nwish an opinion on whether they should be applied to the transaction in\nquestion. Thus stated, your request has two parts: first, whether \xc2\xa7 255 and\nits implementing regulations apply at all to transactions o f the SPR; and\nsecond, if \xc2\xa7 255 applies, whether the transaction in question should none\xc2\xad\ntheless be approved under the regulations as having been \xe2\x80\x9c clearly author\xc2\xad\nized\xe2\x80\x9d by Congress.\nAs noted above, this Departm ent\xe2\x80\x99s position for some time now has been\nthat exemptions from the statutory requirement o f A ttorney General ap \xc2\xad\nproval must be explicit. We think the terms o f \xc2\xa7 255 and its legislative\nhistory support this interpretation. Prior to its revision in 1970, \xc2\xa7 255 pro\xc2\xad\nvided that no public money should be expended upon any land purchased\n341\n\n\x0cby the United States for the purpose o f erecting any public building until\nthe Attorney General had given his written opinion \xe2\x80\x9c in favor o f the valid\xc2\xad\nity o f the title.\xe2\x80\x9d The A ttorney General was authorized to approve titles\nsubject to infirmities only where the sale price o f the land did not exceed\n$10 per acre, and the total value o f the interest being acquired did not ex\xc2\xad\nceed $3,500. A num ber o f Federal agencies were exempted in whole or in\npart from the provisions o f \xc2\xa7 255, including the Departments o f the Army,\nthe Interior, and Agriculture, and the Tennessee Valley A uthority. In ad\xc2\xad\ndition, the A ttorney General was specifically authorized to approve title to\neasements and the rights-of-way under certain circumstances, although\napparently not for the purpose o f constructing permanent improvements\non them. In P ub. L. No. 91-393, 84 Stat. 835 (1970), Congress sub\xc2\xad\nstantially revised \xc2\xa7 255 to simplify and consolidate its provisions, and to\ncentralize in the A ttorney General responsibility for approving titles to\nland or interests in land acquired by the United States. In so doing, it\nspecifically rejected a bill proposed by the Department of Justice that\nwould in effect have made each agency responsible for its own land trans\xc2\xad\nactions. Both the Senate and House Committees concluded that \xe2\x80\x9c the A t\xc2\xad\ntorney General as the chief law officer o f the United States should retain\nthe primary responsibility for the approval o f land titles.\xe2\x80\x9d S. Rept. 1111,\n91st Cong., 2d sess. 4 (1970); H. Rept. 970, 91st Cong., 2d sess. 3 (1970).\nThe bill passed by Congress in 1970 rescinded the statutory exemptions for\nall agencies but the Tennessee Valley A uthority. Instead, the Act author\xc2\xad\nized the Attorney General to delegate his responsibility to other depart\xc2\xad\nments and agencies, subject to his general supervision, and in accordance\nwith regulations prom ulgated by him.\nSince 1970, then, the A ttorney General has had responsibility, either di\xc2\xad\nrectly or in a supervisory capacity, for approving title to land or interests\nin land acquired by all Governm ent agencies except the Tennessee Valley\nAuthority. We are informed by the Land Division that this authority has\nregularly been exercised in connection with land acquisitions by such\ndiverse entities as the St. Lawrence Seaway, the National Park Founda\xc2\xad\ntion, and the Pennsylvania Avenue Redevelopment C orporation.4\n\n\xe2\x80\x98Beyond the exem ption in \xc2\xa7 255 itself for the TVA, there appears to be only one agency\nwhose land transactions have, since 1970, been exempted from \xc2\xa7 255 review. Section 410(a)\no f the Postal Reorganization Act o f 1970, 39 U .S.C . \xc2\xa7 410(a), exempts the Postal Service\nfrom all but certain enum erated Federal laws dealing with, inter alia, property and funds.\nThis Departm ent has taken the position that title to land acquired by the Postal Service need\nnot be approved by the A ttorney General. Beyond this, Congress has specifically exempted a\nfew categories o f land acquisition. See 48 U .S.C . \xc2\xa7 1409b (Interior Departm ent may con\xc2\xad\nstruct projects on land acquired in Virgin Islands); see also successive appropriation bills\nsince the mid-70s for the Departm ent o f Defense and the International Com munications\nAgency, which have contained specific exemptions from the requirement o f prior Attorney\nGeneral approval to acquire land and begin construction o f buildings for military housing\nand other purposes, and for radio facilities in foreign countries. See, e.g., Pub. L.\nNo. 95-457, 92 Stat. 1231 (1978); P ub. L. No. 95-431, 92 Stat. 1021 (1978). The fact that\nCongress continues to carve out specific exem ptions from \xc2\xa7 255 lends weight to the view that\nexem ptions from the reach o f \xc2\xa7 255 will not be implied from a general statutory authorization\nto acquire interests in land.\n\n342\n\n\x0cWe have found nothing in the EPCA or its legislative history to indicate\nthat Congress intended to exempt any transactions from the review appli\xc2\xad\ncable to virtually all other agency acquisitions.\nWe conclude, therefore, that \xc2\xa7 255 does apply, and that it requires A t\xc2\xad\ntorney General approval o f land acquisitions for the SPR. The question\nthen becomes whether the transaction has been or will be \xe2\x80\x9c clearly author\xc2\xad\nized by the Congress\xe2\x80\x9d so as to satisfy the requirements contained in Regu\xc2\xad\nlation 5. The fact that EPCA authorizes the Secretary generally to pur\xc2\xad\nchase interests in land\xe2\x80\x94defined to include the acquisition o f an easement\nor leasehold interest\xe2\x80\x94is not by itself sufficient. Indeed, as we have stated,\nnothing short o f a direct and specific approval by Congress o f a particular\nacquisition will suffice whenever substantial improvements are to be made\nand the acquisition o f less than fee title is contem plated.5 We therefore\nreach the issue o f whether the submission o f this transaction to Congress\nas a proposed amendm ent to the SPR plan constitutes an appropriate ve\xc2\xad\nhicle for obtaining the necessary specific congressional approval. Stated\ndifferently, may the failure o f either House o f Congress to take any action\nto block a proposed am endment to the SPR pursuant to the one-House\nveto provision o f \xc2\xa7 159 be regarded as constituting the specific congres\xc2\xad\nsional approval necessary to satisfy the requirements o f the \xc2\xa7 255 regula\xc2\xad\ntions? We think it cannot.\nAs you know, the President in his statement o f June 21, 1978, to C on\xc2\xad\ngress6 reaffirmed the view expressed both by earlier Presidents and by a\nsuccession o f Attorneys General that so-called \xe2\x80\x9c legislative veto\xe2\x80\x9d mech\xc2\xad\nanisms are unconstitutional. The central constitutional principal underly\xc2\xad\ning that often-stated view is that the Constitution prescribes one way\xe2\x80\x94and\none way only\xe2\x80\x94for the enactm ent o f laws. The procedure set forth in A rti\xc2\xad\ncle I, section 7, which contemplates affirmative approval o f legislative\nproposals by both Houses followed by submission to the President for the\nexercise o f his veto prerogative, is the exclusive m ethod o f lawmaking.\nWhile congressional guidance in the form o f a resolution o f disapproval or\nveto adopted pursuant to a statute that does not com port with Article I,\nsection 7, may be regarded as performing a useful advisory function, we\nhave repeatedly concluded that even such affirmative acts have no binding\nlegal significance. It follows, a fortiori, that Congress\xe2\x80\x99 total inaction, by\nvirtue o f both Houses\xe2\x80\x99 failure to adopt even an advisory resolution with\n\n\xe2\x80\x99Nor do we believe that an exemption from \xc2\xa7 255 must necessarily be implied from the statu\xc2\xad\ntory scheme o f the EPCA. The legislative history o f that Act suggests that Congress anticipated\nthat some land might usefully be acquired for the location o f storage and related facilities which\nwould not require the construction o f substantial permanent improvements. See H. Rept.\nNo. 340, 94th Cong., 1st sess. 35 (1975) (bill authorizes \xe2\x80\x9c acquisition o f interests in land, storage\nand related facilities or construction o f such storage and related facilities \xe2\x80\xa2 * * .\xe2\x80\x9d [Emphasis\nadded.] And, it is our understanding that a leasehold interest or servitude might be acquired on\nexisting pipelines or storage facilities. Therefore, to say that no substantial permanent improve\xc2\xad\nments may be constructed on land that the United States does not own in fee does not nullify the\nstatutory authorization to acquire lesser interests in land.\n\xe2\x80\x98H. Doc. 95-357, reprinted at 124 C o n g r e s s i o n a l R e c o r d H. 5879 (June 21, 1978).\n\n343\n\n\x0crespect to any particular am endm ent o f the SPR plan, cannot be regarded\nas providing the legislative imprimatur required by the regulations. It\nshould be understood, however, that our conclusion would be different if\nboth Houses o f Congress acted affirmatively by joint resolution to ap\xc2\xad\nprove the proposed transaction\xe2\x80\x94an alternative apparently contemplated\nby \xc2\xa7 551(c)(2) o f the EPC A , 42 U .S.C . \xc2\xa7 6421(c)(2). This section sets forth\nthe procedure for congressional review o f Presidential requests to imple\xc2\xad\nment certain energy actions. If this course were followed, the President\xe2\x80\x99s\ntransmittal message should set forth the limited circumstances under\nwhich it is being subm itted.7\nThe Com ptroller G eneral\xe2\x80\x99s conclusion that Congress did intend to\nauthorize construction o f improvements on leased land under the EPCA ,\nto which you refer, is not necessarily inconsistent with the position this\nDepartment has taken with respect to similar construction on a servitude.\nThe authority under which the Com ptroller General passes upon expend\xc2\xad\nitures for the construction o f public buildings on leased land is signifi\xc2\xad\ncantly different from that governing the A ttorney General\xe2\x80\x99s role under\n\xc2\xa7 255. The only specific statutory basis for the Com ptroller General\xe2\x80\x99s dis\xc2\xad\napproving expenditures over a certain am ount is in \xc2\xa7 322 o f the Economy\nAct o f 1932, 40 U .S.C . \xc2\xa7 278a. The Com ptroller General\xe2\x80\x99s \xe2\x80\x9c general rule\xe2\x80\x9d\nthat appropriated funds may not be used to make permanent improve\xc2\xad\nments to private property without specific statutory authority, has itself\nno statutory basis other than those laws that deal generally with appropri\xc2\xad\nations. See 39 Com p. Gen. 388, 390 (1959). The Com ptroller General\ntakes the position that neither that rule nor \xc2\xa7 322 was intended to apply in\nsituations in which Congress clearly anticipated and approved the making\no f improvements on land not owned by the United States. Compare 46\nComp. Gen. 60 (1966), with 53 Comp. Gen. 317 (1973). The Comptroller\nGeneral has no basis upon which to disapprove the am ount o f an expend\xc2\xad\niture where the expenditure itself has been explicitly authorized. By con\xc2\xad\ntrast, the A ttorney General remains responsible under \xc2\xa7 255 for determin\xc2\xad\ning the sufficiency o f title for the purpose intended, whether or not the\ntransaction may otherwise be authorized by law. Congress can therefore\nreasonably be expected to make itself absolutely clear when the exercise o f\nthis responsibility is to be waived.8\n\n\xe2\x80\x99We note that any legislation enacted by Congress, whether by bill or joint resolution and\nwhether passed pursuant to 42 U .S.C . \xc2\xa7 6421(c)(2) or without reference to that statute, would\nsuffice to satisfy the requirem ents o f A rt. 1, \xc2\xa7 7.\n'A dditionally, the interest in land represented by a leasehold is generally o f a more certain\nquality than a servitude under Louisiana law. A lease is for a period certain, and it is there\xc2\xad\nfore possible to predict exactly how long the land will be available for the contem plated use.\nThe G overnm ent may plan to construct improvem ents whose useful life will more or less\ncoincide with the term o f the lease, and may otherwise take steps to control the disposition o f\nits investment after the expiration o f the lease. A servitude, on the other hand, may be ex\xc2\xad\ntinguished at any time following its acquisition upon the happening o f a num ber o f cir\xc2\xad\ncumstances beyond the control o f the Governm ent. The risk o f this happening in the instant\ncase is acknowledged by you. T o the extent that a degree o f discretion is involved in both\nsituations, we find nothing necessarily incongruous about the differing conclusions reached\nby the C om ptroller General and this D epartm ent.\n\n344\n\n\x0cWhile these differences in statutory responsibility may satisfactorily\njustify a difference in the conclusions reached heretofore by the Com p\xc2\xad\ntroller General and those stated in this opinion, it should be pointed out\nthat insofar as the Com ptroller General\xe2\x80\x99s opinion purports to rely on the\nfact o f congressional \xe2\x80\x9c approval\xe2\x80\x9d pursuant to the veto mechanism, we dis\xc2\xad\nagree with it. As stated above, we are unable to find any legal significance\nin the failure o f disapproval.\nLarry A . H\n\nammond\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n345\n\n\x0c"