b'Ethics Issues Related to the Federal\nTechnology Transfer Act of 1986\nA g o v ern m en t em p lo y ee-inventor who assigns his rights in an invention to the U nited States and ac\xc2\xad\ncepts the g o v ern m en t\xe2\x80\x99s paym ent of am ounts tied to the resulting royalties, as provided in the F ed\xc2\xad\neral T echnology T ransfer Act of 1986, m ay continue to w ork on the invention w ithout violating the\nstatu te ag ain st taking part in matters in w hich he has a financial interest, 18 U .S.C. \xc2\xa7 208, or the\nstatu te forbidding supplem entation of federal salaries, 18 U.S.C. \xc2\xa7 209\nU nder 18 U .S.C \xc2\xa7 208, a governm ent em ployee-inventor m ay not take official action with respect to\nan agreem ent for developm ent of his invention entered into by the U nited States and a com pany\nw ith w h ich the em p lo yee has contracted to exploit the invention abroad.\n\nSeptem ber 13, 1993\nM\n\nem orandum\n\nO ffice\n\nof\n\nO p in io n\n\nfo r t h e\n\nD ir e c t o r\n\nG o v e r n m e n t E t h ic s\n\nY ou have asked us to advise w hether we agree with a Septem ber 27, 1988, letter\nfrom the Office o f Government Ethics (\xe2\x80\x9cOGE\xe2\x80\x9d) to the Departm ent of Commerce\n(\xe2\x80\x9c 1988 O G E letter\xe2\x80\x9d) and to review a draft O G E letter to the Special Counsel for\nEthics at the D epartm ent of Health and Human Services (\xe2\x80\x9cdraft OGE letter\xe2\x80\x9d).\nBoth letters address issues involving the relationship between federal conflict-ofinterest laws and the Federal Technology Transfer A ct of 1986 (\xe2\x80\x9cFTTA\xe2\x80\x9d), as\namended, 15 U.S.C. \xc2\xa7\xc2\xa7 3701-3717. W e believe that the 1988 OGE letter was cor\xc2\xad\nrect in concluding that payments to a government employee under FTTA section 7\ndo not violate 18 U.S.C. \xc2\xa7 208 or 18 U.S.C. \xc2\xa7 209(a). W e also agree with the con\xc2\xad\nclusion o f the draft O G E letter that, on the specific facts stated there, \xc2\xa7 208 bars an\nemployee from w orking in his official capacity on an invention for which the em \xc2\xad\nployee holds a foreign patent, and for which the employee has contracted for for\xc2\xad\neign com m ercialization with the sam e company that is under contract with the\nfederal governm ent to develop the invention.\nI.\nC ongress enacted the FTTA in 1986 as part o f a continuing effort to encourage\ntechnology transfers from federal research laboratories to private industry. The\nFTTA am ended the Stevenson-W ydler Technology Innovation Act o f 1980, Pub.\nL. No. 96-480, 94 Stat. 2311, which created incentives for federal agencies and\nemployees to w ork with private industry in com m ercializing new technologies de\xc2\xad\nveloped in federal laboratories.1 T o this end, section 7 o f the FTTA requires a\n1 See, e.g., 132 Cong. Rec. 20,388 (1986) (statement of Sen. Gorton) (\xe2\x80\x9cThe FTTA is designed to improve the transfer o f technology out of the Federal laboratories and into the marketplace. . . . It improves the\n\n46\n\n\x0cEthics Issues R elated to the FTTA o f 1986\n\ngovernment agency to \xe2\x80\x9cpay at least 15 percent of the royalties or other income the\nagency receives on account of any invention to the inventor . . . if the inventor .. .\nassigned his or her rights in the invention to the United States.\xe2\x80\x9d 15 U.S.C.\n\xc2\xa7 3710c(a)(l)(A )(i). Once section 7 payments are made to an employee-inventor,\nthe individual generally will continue to work on the development and im prove\xc2\xad\nment of the invention, including its commercialization as part of federal research\nand development efforts. These efforts may include a cooperative research and\ndevelopment agreement (\xe2\x80\x9cCRADA\xe2\x80\x9d). CRADAs are cooperative agreements with\nuniversities or other entities in the private sector and are aimed at refining an in\xc2\xad\nvention and transferring it to the marketplace. They are specifically authorized\nunder section 2 of the FTTA.2\nAt the same time, federal ethics laws generally prohibit government em ployees\nfrom personally participating in matters where they have a \xe2\x80\x9cfinancial interest.\xe2\x80\x9d\nUnder 18 U.S.C. \xc2\xa7 208:\nExcept as permitted by subsection (b) hereof [concerning waivers\nand other exclusions], whoever, being an officer or employee of the\nexecutive branch o f the United States Government . . . participates\npersonally and substantially as a Government officer or employee,\nthrough decision, approval, disapproval, recommendation, the ren\xc2\xad\ndering o f advice, investigation, or otherwise, in a judicial or other\nproceeding, application, request for a ruling or other determination,\ncontract, claim, controversy, charge, accusation, arrest, or other\nparticular matter in which, to his knowledge, he . . . has a financial\ninterest \xe2\x80\x94 Shall be subject to the penalties set forth in section 216\no f this title.\n18 U.S.C. \xc2\xa7 208(a).3 If amounts paid to government employees under FTTA sec\xc2\xad\ntion 7 constitute a \xe2\x80\x9cfinancial interest\xe2\x80\x9d in the invention, then the employee-inventor\nprobably would be forbidden to continue working on the project while receiving\nsection 7 payments.\nincentives for Federal scientists to put in the time and effort to explore the commercial possibilities o f their\ninventions by requiring agencies to share **t least 15 percent of the royalties received from patents with the\ninventor.\xe2\x80\x99\xe2\x80\x99)\n\xe2\x80\x98 Section 2 provides in relevant part:\nEach Federal agency may permit the director of any of its Government-operated Federal laborato\xc2\xad\nries, and, to the extent provided in an agency-approved joint work statement, the director of any\nof its Govemment-owned, contractor-operated laboratories \xe2\x80\x94\n(1) to enter into cooperative research and development agreements on behalf of such agency\n. and\n(2) to negotiate licensing agreements . . for inventions made or other intellectual property\ndeveloped at the laboratory and other inventions or other intellectual property that may be vol\xc2\xad\nuntarily assigned to the Government\n15 U.S.C \xc2\xa7 3710a(a).\n* Section 216 provides both civil and criminal penalties for violations of \xc2\xa7 208. 18 U S C. \xc2\xa7 216\n\n47\n\n\x0cO pinions o f th e O ffice o f L egal Counsel\n\nIn- 1988, OGE resolved this apparent conflict by concluding that amounts paid\nto federal em ployees under section 7 constitute compensation from the government\nand that such com pensation does not constitute \xe2\x80\x9ca financial interest\xe2\x80\x9d under \xc2\xa7 208.\nWhile the 1988 opinion was not reviewed by this Office at that time, it is consistent\nwith views we expressed in an earlier opinion. In 1980, this Office concluded that\n\xc2\xa7 208(a) does not cover a situation \xe2\x80\x9cin which the" only financial interest in the\n[particular matter] is that which federal employees have in their government posi\xc2\xad\ntion and salary, as to which no outside financial interest is im plicated.\xe2\x80\x9d See M emo\xc2\xad\nrandum for Thom as M artin, Deputy Assistant Attorney General, Civil Division,\nfrom Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: 18 U.S.C. \xc2\xa7 208 a n d Pending Salary Adjustm ent Litigation at 3 (Jan. 24,\n1980) (\xe2\x80\x9c 1 9 8 0 O pinion\xe2\x80\x9d) 4\nThe question whether the term \xe2\x80\x9c financial interest\xe2\x80\x9d as used in \xc2\xa7 208 covers com\xc2\xad\npensation received by a government employee in connection with his government\nem ploym ent has never been conclusively settled.5 As in any task of statutory con\xc2\xad\nstruction, we begin with the text, see, e.g., United States v. Turkette, 452 U.S. 576,\n580 (1981) (\xe2\x80\x9cIn determ ining the scope o f a statute, we look first to its language.\xe2\x80\x9d),\nand are bound by the \xe2\x80\x9cfundamental canon\xe2\x80\x9d that \xe2\x80\x9cunless otherwise defined, words\nwill be interpreted as taking their ordinary, contemporary, common meaning.\xe2\x80\x9d\nPerrin v. United States, 444 U.S. 37, 42 (1979). Section 208 does not define the\nterm \xe2\x80\x9cfinancial interest.\xe2\x80\x9d It could b e interpreted to refer to any number of potential\nmonetary or other personal interests of a covered person, including an individual\xe2\x80\x99s\nfederal com pensation.\n\n4 In 1985 and again in 1987, we admittedly questioned the correctness of the 1980 Opinion in light of\nthe \xe2\x80\x9c\xe2\x80\x98plain language\xe2\x80\x9d of \xc2\xa7 208(a) See Memorandum for Richard K. Willard, Assistant Attorney General,\nCivil Division, from Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, Re 18 U.S.C\n\xc2\xa7 2 0 8 a nd Participation o f Departmental A ttorneys in Debt Ceiling Litigation at 2 n 1 (Dec. 6, 1985);\nMemorandum for the Solicitor of the Intenor, from Samuel A. Alito, i r , Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re Scope of the Term \xe2\x80\x9cParticular Matter \xe2\x80\x9d Under 18 U.S.C 208 at 9 n 13 (Jan.\n12, 1987) Notwithstanding those opinions, w e adhere to our 1980 Opinion.\n5 The only case arguably on point is U nited States v. Lund, 853 F.2d 242 (4th Cir. 1988) In that case,\nthe court applied \xc2\xa7 208 to interests arising from a federal em ployee\xe2\x80\x99s government salary. The facts of that\ncase, however, are unique. The defendant w as a federal manager who married a subordinate and kept their\nm am age secret. The defendant continued to supervise his wife and, over time, granted her higher pay, pro\xc2\xad\nmoted her over another applicant, and recommended her for a government-funded graduate school program\nThis conduct was found to violate \xc2\xa7 208. The specific issue before the Court, however, was whether\n\xc2\xa7 208(a) was \xe2\x80\x9capplicable to conflicts of interest in intra-agency personnel matters." Id. at 243. Based upon\nthe statute\xe2\x80\x99s plain language, the Court concluded that \xc2\xa7 208(a) was applicable to such conflicts, rejecting the\nargument that the statute\xe2\x80\x99s \xe2\x80\x9creach is limited to conflicts of interest in matters involving outside suppliers of\ngoods and services to the government.\xe2\x80\x9d Id. at 244.\nThe implication of the Lund court\xe2\x80\x99s decision was that a federal em ployee\xe2\x80\x99s spouse\xe2\x80\x99s employment contract\nrepresented a \xc2\xa7 208 \xe2\x80\x9cfinancial interest,\xe2\x80\x9d even if that contract was with the federal government. The Court\ndid not, however, directly address the issue whether the covered employee\xe2\x80\x99s own federal employment con\xc2\xad\ntract could constitute a \xe2\x80\x9cfinancial interest\xe2\x80\x9d giving rise to a prohibited conflict. Moreover, it is significant that\nthe arrangement was kept secret As will be discussed infra, Congress appears to have been principally\nconcerned with financial interests that would not be known to the agency involved In any case, it is unclear\nwhether Lund could be extended beyond its very peculiar facts.\n\n48\n\n\x0cEthics Issues R elated to the FTTA o f 1986\n\nIt is also true, however, that in \xe2\x80\x9cascertaining the plain meaning of [a] statute, the\ncourt must look to . . . the language and design of the statute as a whole.\xe2\x80\x9d K Mart\nCorp. v. Cartier, Inc., 486 U.S. 281, 291 (1988).6 In this regard, the provisions of\n\xc2\xa7 208(b) may illuminate the meaning of subsection (a). Section 208(b) provides\nthat:\nSubsection (a) hereof shall not apply (1) if the officer or employee\nfirst advises the Government official responsible for appointment to\nhis position o f the nature and circumstances o f the judicial or other\nproceeding, application, request for a ruling or other determination,\ncontract, claim, controversy, charge, accusation, arrest, or other\nparticular matter and makes full disclosure of the financial interest\nand receives in advance a written determination made by such offi\xc2\xad\ncial that the interest is not so substantial as to be deemed likely to\naffect the integrity of the services which the Government may ex\xc2\xad\npect from such officer or employee.\n18 U.S.C. \xc2\xa7 208(b).\nThe creation o f a procedure whereby employees may obtain exceptions from the\nprohibitions o f subsection (a) upon disclosure of their financial interest indicates\nthat Congress was not referring to \xe2\x80\x9cfinancial interests\xe2\x80\x9d that need no disclosure,\nsuch as the compensation a federal employee receives from the government. This\nrationale led to our original determination that the compensation received by fed\xc2\xad\neral employees was not a \xe2\x80\x9cfinancial interest\xe2\x80\x9d within the meaning of \xc2\xa7 208(a). As\nnoted in the 1980 Opinion, the full disclosure requirements of \xc2\xa7 208(b) \xe2\x80\x9csuggest\nthat the interest of concern is one that, without such disclosure, would not be ordi\xc2\xad\nnarily known to the appointing official. Otherwise, there would appear to be no\nlogical or practical reason for requiring \xe2\x80\x98full disclosure\xe2\x80\x99 by the federal em ployee.\xe2\x80\x9d\n1980 Opinion at 2.\nThis interpretation of \xc2\xa7 208 is supported by its legislative history. Section 208\nwas enacted in its present form in 1962.- Before its enactment, 18 U.S.C. \xc2\xa7434\nforbade federal employees from acting for the United States in the transaction of\nbusiness with any business entity in which they were \xe2\x80\x9cdirectly or indirectly\ninterested in the pecuniary profits or contracts.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 434 (1958). In 1962\n\xc2\xa7 434 was replaced by \xc2\xa7 208, which was intended to broaden the scope of its pro\xc2\xad\nhibitions \xe2\x80\x94 in particular to cover financial interests held by the spouse, children\nand partners of covered persons. However, as noted in our 1980 Opinion, it is\ndoubtful that Congress meant to \xe2\x80\x9csweep within \xc2\xa7 208\xe2\x80\x99s ambit every conceivable\nfinancial interest o f whatever type.\xe2\x80\x9d 1980 Opinion at 3. For example, the Senate\nReport on the bill that became \xc2\xa7 208 explained that:\n6\nSee also Richards v United Stales, 369 U S. I (1962), Federal Power Comm\'it v Panhandle Eastern\nPipe Line Co , 337 U S 498 (1949)\n\n49\n\n\x0cO pinions o f th e O ffice o f Legal C ounsel\n\nThe disqualification of the subsection embraces any participation on\nbehalf o f the Government in a matter in which the employee has an\noutside fin a n cia l interest, even though his participation does not in\xc2\xad\nvolve the transaction of business.\nId. (citing S. Rep. No. 87-2213, at 13 (1962)) (emphasis added). Thus, \xc2\xa7 208 was\nenacted to extend the reach of federal conflict-of-interest prohibitions to cover the\n\xe2\x80\x9coutside\xe2\x80\x9d financial interests of a covered employee \xe2\x80\x94 those interests outside of the\nindividual\xe2\x80\x99s federal employment contract that would not necessarily be evident to\nthe em ployee\xe2\x80\x99s superiors. Examples would include personal investments or the\nfinancial interests o f an em ployee\xe2\x80\x99s family or business partners. There is little evi\xc2\xad\ndence that Congress m eant also to encom pass the em ployee\xe2\x80\x99s interest in his own\nfederal com pensation.\nIndeed, if \xe2\x80\x9cfinancial interest\xe2\x80\x9d is interpreted to include compensation received\nfrom the federal governm ent, the section could lead to absurd results. If an em\xc2\xad\nployee\xe2\x80\x99s federal salary w ere characterized as a \xe2\x80\x9cfinancial interest\xe2\x80\x9d under \xc2\xa7 208(a),\nany action taken with the intent to increase that salary \xe2\x80\x94 enthusiastically and con\xc2\xad\nscientiously perform ing his or her duties in the hope of promotion for example \xe2\x80\x94\nmight be forbidden by that section. O r an em ployee who must decide claims\nbrought against the United States \xe2\x80\x94 a Social Security hearing officer for example\n\xe2\x80\x94 m ight well violate \xc2\xa7 208 whenever he or she decides in favor o f the federal gov\xc2\xad\nernm ent. An em ployee might be said to have a conflicting \xe2\x80\x9cfinancial interest\xe2\x80\x9d in\nprotecting the federal treasury, from which his or her own livelihood is drawn, and\n\xc2\xa7 208(a) expressly reaches the financial interests of the government em ployee\xe2\x80\x99s\nemployer. There appears to be no principled distinction that would exclude such\nactions or determ inations made by an officer or employee from \xc2\xa7 208\xe2\x80\x99s reach, if\nfederal com pensation is considered a \xe2\x80\x9cfinancial interest.\xe2\x80\x9d Such an interpretation of\nthe statute would subject federal em ployees to possible prosecution under \xc2\xa7 208 for\nthe vigilant perform ance o f their duties.\nIn addition, we note that Congress enacted the FTTA against the background of\nthe conflict-of-interest laws, including \xc2\xa7 208. It is well settled that statutes must be\nconstrued as consistent if possible, and that an earlier statute should not be read\nbroadly when the result would be to circum vent a later enactment. See Watt v.\nAlaska, 451 U.S. 259, 266-67 (1981); Patterson v. McLean Credit Union, 491\nU.S. 164, 181 (1989). In this connection, we note that the Supreme Court has de\xc2\xad\nclined to interpret federal conflict-of-interest laws broadly when the effect would\nbe to forbid activity specifically authorized by Congress in a later enactment. See\nU nited States v. Chemical Found., Inc., 272 U.S. 1, 17-19 (1926) (predecessor\nstatute o f \xc2\xa7 208 does not cover transactions authorized under later measure passed\nto deal with wartim e conditions).7 W e believe that \xc2\xa7 208 can and should be inter\xc2\xad\npreted as consistent with the provisions of the FTTA.\n\n50\n\n\x0cEthics Issues R elated to the FTTA o f 1986\n\nPayments made to employees under FTTA section 7 are federal compensation,\nindistinguishable for these purposes from salary, benefits, and other paym ents such\nas performance awards. The 1988 OGE letter concluded that royalty payments\nmade under section 7 should be viewed as \xe2\x80\x9cadditional compensation for Federal\nservice,\xe2\x80\x9d noting that the United States retains ownership rights in the invention\nunder FTTA section 7 and that the inventor receives his or her share in the royalty\npayments from the United States, not directly from the outside licensee. This con\xc2\xad\nclusion finds additional support in section 7, which provides that em ployees can\nreceive payments in excess o f $100,000 under this program only with the approval\nof the President under the provisions regarding presidential cash awards \xe2\x80\x94 5\nU.S.C. \xc2\xa7 4504. 15 U.S.C. \xc2\xa7 3710c(a)(3).\nTherefore, we conclude that compensation received by an employee under\nFTTA section 7 does not constitute a \xe2\x80\x9cfinancial interest\xe2\x80\x9d under \xc2\xa7 208. Such em\xc2\xad\nployees may receive payments under section 7 and continue to work on the devel\xc2\xad\nopment and commercialization of their inventions.8\nII.\nIn addition, we agree with the 1988 OGE letter\xe2\x80\x99s conclusion that FTTA section\n7 payments are not prohibited supplementations of salary under 18 U.S.C.\n\xc2\xa7 209(a). Section 209(a) prohibits federal employees from receiving any supple\xc2\xad\nmentation of salary in consideration of the performance of their official duties\n\xe2\x80\x9cfrom any source other than the Government o f the United States.\xe2\x80\x9d Since an em\xc2\xad\nployee receives section 7 payments from the federal agency holding the rights to\nthe invention, the payments are not subject to \xc2\xa7 209(a)\xe2\x80\x99s prohibition.\nIII.\nThe draft OGE letter concerns section 8 of the FTTA. Under that section, when\nan agency having the right to ownership of an invention\n7 See also Bustc v United States, 446 U.S 398, 406 (1980) (more specific statute given precedence over\nmore general one, regardless of sequence of enactment).\nWe acknowledge that the Senate report on the FTTA stated that the provisions of the bill \xe2\x80\x9cma[d]e no\nchanges in the conflict of interest laws affecting Federal employees or former Federal employees \xe2\x80\x9d S Rep\nNo. 99-283, at 10 (1986) This statement, however, could indicale that the Congress that passed the FTTA\nmay well have believed that \xc2\xa7 208 did not reach any forms of compensation by the government\n8 Given this conclusion, it follows that an employee entitled, or potentially entitled, to payments under\nsection 7 also may work on an invention pursuant to a CRADA, without violating \xc2\xa7 208 It would be entirely\narbitrary to conclude that an employee could work on an invention potentially leading to such payments\nbefore, but not after, a CRADA is signed by the federal laboratory that employs him. He would have the\nsame interest m the potential payments, and the substance of his research would likely be the same, both\nbefore and after his laboratory entered into the CRADA. Furthermore, the FTTA expressly contemplates that\nemployees, in at least some circumstances, will continue to work on their inventions under CRADAs. \xe2\x80\xa2 15\nU.S C. \xc2\xa7 3710a(b)(5) Application of \xc2\xa7 208 would mean that, absent a waiver, employees could never do\nsuch work under CRADAs, because successful work would enable the employees to receive larger payments\nunder section 7. There is no indication that Congress intended such a result\n\n51\n\n\x0cOpinions o f th e O ffice o f L eg a l C ounsel\n\ndoes not intend to file for a patent application or otherwise to pro\xc2\xad\nmote com m ercialization of such invention, the agency shall allow\nthe inventor, if the inventor is a G overnm ent employee or former\nem ployee who m ade the invention during the course of employment\nwith the G overnm ent, to retain title to the invention [subject to res\xc2\xad\nervation o f a nonexclusive, license for the Government],\n15 U.S.C. \xc2\xa7 3710d(a). Under this provision and implementing regulations, an\nagency may determ ine to prosecute a patent application in the United States, but\nnot abroad, leaving foreign rights to the em ployee-inventor. 37 C.F.R. \xc2\xa7 101.8\n(1993).\nThe draft O G E letter addresses a case in which the federal government, while\nchoosing to com m ercialize an invention in this country, has permitted the inventors\nto retain foreign patent rights. Specifically, three federal em ployee-inventors share\nthe rights to obtain certain foreign patents. The United States owns the domestic\npatent. These individuals have obtained some foreign patent rights and have en\xc2\xad\ntered a licensing agreem ent with a private firm, granting it the right to exploit the\ninventions overseas in exchange for royalties. Draft OGE letter, at 2-3. At the\nsame tim e, the agency employing th e three inventors has awarded an exclusive\nlicense to develop and exploit the inventions domestically to the same licensee.\nM oreover, the agency intends to enter a CR A D A with the licensee under which\nthat firm would handle the clinical trials necessary to test and evaluate the inven\xc2\xad\ntion for the m arketplace. \xe2\x80\x98Thus, the private firm has an exclusive license for both\nthe G overnm ent\xe2\x80\x99s dom estic patent rights and the em ployee-inventors\xe2\x80\x99 foreign pat\xc2\xad\nent rights, plus a research and developm ent agreement with the Government to\ndevelop and test the product.\xe2\x80\x9d Id. at 4. Two o f the three employee-inventors will\nbe directly involved, as part of their official duties, with work related to the inven\xc2\xad\ntion through the CRADA. It is, in fact, \xe2\x80\x9ctypical for the inventor and the Govern\xc2\xad\nment to enter into licensing agreements with the same firm \xe2\x80\x9d and \xe2\x80\x9cit is often in the\nG overnm ent\xe2\x80\x99s best interest to allow inventors w ho hold foreign rights to continue\nto develop their w ork.\xe2\x80\x9d Id. at 4.\nO G E has concluded that the em ployee-inventors have a \xc2\xa7 208 \xe2\x80\x9cfinancial inter\xc2\xad\nest\xe2\x80\x9d in their inventions \xe2\x80\x9cbecause they own the foreign patent rights from which they\nreceive royalties,\xe2\x80\x9d and that they cannot, therefore, \xe2\x80\x9cofficially act on any matter\ninvolving the private firm to which they assigned their patent rights. This prohibi\xc2\xad\ntion would include work by the em ployee-inventors on the research and develop\xc2\xad\nment agreem ent with the private firm .\xe2\x80\x9d Id. at 5. In distinguishing these interests\nfrom the interest of an employee-inventor in section 7 royalty payments, OGE\nnotes that here the inventors, not th e United States, own the patent rights and that\nthey consequently are \xe2\x80\x9cplaced into a direct relationship with the party paying roy\xc2\xad\nalty fees.\xe2\x80\x9d Id. M oreover, OGE points out that the licensing agreement itself con\xc2\xad\nstitutes a \xc2\xa7 208 \xe2\x80\x9cfinancial interest.\xe2\x80\x9d\n\n52\n\n\x0cEthics Issues R elated to the FTTA o f 1986\n\nW e agree with OGE that the employee-inventors are prohibited by \xc2\xa7 208(a)\nfrom taking official action involving the CRADA between the United States and\ntheir licensee. The license agreement between the employee-inventors and the\ngovernm ent\xe2\x80\x99s contractor appears to constitute a \xe2\x80\x9cfinancial interest\xe2\x80\x9d under \xc2\xa7 208(a).\nAccordingly, the employee may not participate \xe2\x80\x9cthrough decision, approval, disap\xc2\xad\nproval, recommendation, the rendering o f advice, investigation or otherwise,\xe2\x80\x9d in\nthe performance or administration of the CRADA. W e do not, however, believe it\nnecessary to determine whether the inventor-employees\xe2\x80\x99 interest in foreign patent\nrights constitutes a \xe2\x80\x9cfinancial interest\xe2\x80\x9d that in itself would prohibit them from oth\xc2\xad\nerwise continuing the governm ent\xe2\x80\x99s research into this invention. W hile the employee-inventors\xe2\x80\x99 section 8 ownership interest in the foreign patent rights to the\ninvention is distinguished from their royalty rights under section 7, both interests\nconstitute an integral part of the FTTA incentive program created by Congress.\nBoth arguably may be characterized as \xe2\x80\x9ccom pensation\xe2\x80\x9d to the employee, and there\nseems little reason to distinguish between the two interests \xe2\x80\x94 both o f which will be\nknown to the individuals\xe2\x80\x99 supervisors. It is unnecessary to resolve this broader\nquestion, and we decline to do so.9\n\nW ALTER DELLINGER\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n9\nThere does, how ever, appear to be a cle ar d istinction betw een ow ning the patent rights them selves, and\nan interest in a licensing agreem ent under w hich those rights are exploited T his w ould be a nalogous to an\nem ployee who receives section 7 royalty paym ents, and w ho invests those sum s in the shares o f a business\ncorporation Such an em ployee w ould be forbidden by \xc2\xa7 208(a) to participate in a C R A D A w ith th a t corpo\xc2\xad\nration involving the em p lo y e e\'s invention T his is true not because the royalties, or patent rig h ts under\nsection 8 are a "financial interest,\xe2\x80\x9d but because the em p lo y ee\xe2\x80\x99s investm ent, or licensing agreem ent, is such\nan interest\n\n53\n\n\x0c'


b"April 10, 1979\n\n79-23\n\nMEMORANDUM FOR THE GENERAL\nCOUNSEL, GENERAL SERVICES\nADMINISTRATION\nMilitary Officer\xe2\x80\x94Appointments to Civil Office\xe2\x80\x94\nAdministrator of General Services\xe2\x80\x94Effect on\nMilitary Office\xe2\x80\x94 10 U.S.C. \xc2\xa7 973; 40 U.S.C.\n\xc2\xa7 751(c)\n\nThis responds to your letter o f March 27, 1979, inquiring: first, whether\na commissioned military officer can retain his commission if he accepts a\nPresidential designation as Acting A dm inistrator o f General Services; and\nsecond, whether the officer can retain his commission if subsequently ap\xc2\xad\npointed as Adm inistrator. In our opinion, both questions must be\nanswered in the negative; indeed, we believe that he may not be designated\nas Acting Adm inistrator. Section 973(b) o f Title 10 U.S. Code, provides:\n(b) Except as otherwise provided by law, no officer on the active\nlist o f the Regular Army, Regular Navy, Regular Air Force,\nRegular Marine Corps, or Regular Coast G uard may hold a civil\noffice by election or appointm ent, whether under the United\nStates, a Territory or possession, or a State. The acceptance of\nsuch a civil office or the exercise o f its functions by such an of\xc2\xad\nficer terminates his military appointm ent.\n(We assume that the officer in question is on the active list.) The accept\xc2\xad\nance o f a civilian office or the exercise o f its functions by such an officer\nthus terminates his military appointm ent unless otherwise provided by\nlaw.\nWith respect to your first question, the legal mem orandum o f law o f\nyour office takes the position that such an exception is found in \xc2\xa7 101(c)\no f the Federal Property and Administrative Services Act o f 1949, 40\nU .S.C . \xc2\xa7 751(c). It provides in substance that, in the event o f a vacancy in\nthe Office o f the A dm inistrator o f General Services, the Deputy A d\xc2\xad\nm inistrator shall be Acting Adm inistrator o f General Services unless the\nPresident shall designate \xe2\x80\x9c another officer o f the G overnm ent.\xe2\x80\x9d\n148\n\n\x0cAlthough you have not raised the issue, a threshold question is whether\na commissioned military officer on the active list is \xe2\x80\x9c another officer o f the\nGovernm ent\xe2\x80\x9d within the meaning o f \xc2\xa7 101(c). Your m em orandum points\nto the close relationship between \xc2\xa7 101(c) and the provisions o f the Va\xc2\xad\ncancy Act, 5 U .S.C . \xc2\xa7\xc2\xa7 3345-3349, in particular 5 U.S.C. \xc2\xa7 3347. That sec\xc2\xad\ntion authorizes the President to fill a vacancy in an executive or military\ndepartment on a temporary basis by directing an officer in an Executive or\nmilitary departm ent, appointed by the President by and with the advice\nand consent o f the Senate, to perform the duties o f the office during the\nvacancy.' While it is true that the Vacancy Act itself is not applicable to\nthe General Services Adm inistration,2 the interpretation given o f the\nphrase in \xc2\xa7 3347 \xe2\x80\x9c officer in an executive or military departm ent\xe2\x80\x9d has a\nsignificant bearing on the meaning o f \xe2\x80\x9c officer o f the G overnm ent\xe2\x80\x9d in\n\xc2\xa7 101(c).\nAttorney General Wickersham ruled in 1909 that not every commis\xc2\xad\nsioned military officer is \xe2\x80\x9c an officer in a departm ent\xe2\x80\x9d eligible to be\ndesignated by the President under R.S. \xc2\xa7 179, the predecessor o f 5 U.S.C.\n\xc2\xa7 3347. 28 Op. A .G . 95. He concluded that the only military officers eligi\xc2\xad\nble for designation under R.S. \xc2\xa7 179 are those who hold statutory offices\nin a departm ent, such as the chiefs o f its several bureaus, whose appoint\xc2\xad\nments are provided for by law (pp. 97-98). Again, in 1919 Attorney\nGeneral Palmer ruled that while the War Department is an executive\ndepartm ent, the Army is not a part o f the W ar Departm ent, so that an of\xc2\xad\nficer in the Army is not by virtue of that fact alone an officer in the\nDepartment o f the Army. 31 Op. A .G . 471. This distinction between the\nmilitary departm ents and the military services was also recognized by the\nComptroller o f the Treasury and the Comptroller General. 19 Comp. Dec.\n834 (1913); 17 Comp. Gen. 1066 (1938).\nWe realize, o f course, that 5 U.S.C. \xc2\xa7 3347 uses the term \xe2\x80\x9c officer in an\nExecutive or military departm ent,\xe2\x80\x9d while the corresponding language of\n\xc2\xa7 101(c) reads \xe2\x80\x9c another officer o f the G overnm ent.\xe2\x80\x9d Both statutes,\nhowever, deal with the same subject m atter\xe2\x80\x94the tem porary filling of\nvacancies in the executive branch. Hence, they are in pari materia and\nshould be interpreted in a manner consistent with one another. United\nStates v. Jefferson Electric C o., 291 U.S. 386, 396 (1934); Hynes v.\nGrimes Packing Co., 337 U.S. 86, 116 (1949). We cannot impute to C on\xc2\xad\ngress the intent that a commissioned military officer on active duty cannot\nserve in an acting capacity in any o f the executive or military departm ents,\n\n1 We also assume that the officer in question has been appointed by the President with the\nadvice and consent o f the Senate. Pursuant to 5 U .S.C . \xc2\xa7 3348 such a direction cannot endure\nfor more than 30 days beginning with the date when the vacancy occurred. It should be noted\nthat \xc2\xa7 101(c) does not contain a time limitation.\n2 The General Services Adm inistration is not one o f the executive or military departm ents\nenumerated in 5 U .S.C . \xc2\xa7\xc2\xa7 101, 102, but an independent establishment as defined in 5 U.S.C.\n\xc2\xa7 104. Moreover, we believe that the special provisions o f \xc2\xa7 101(c) supersede the general pro\xc2\xad\nvisions o f the Vacancy Act.\n\n149\n\n\x0cbut is nevertheless qualified to serve as an Acting Adm inistrator of\nGeneral Services. We therefore conclude that the phrase \xe2\x80\x9c officer o f the\nGovernm ent\xe2\x80\x9d in \xc2\xa7 101(c) must be given the same meaning as \xe2\x80\x9c officer in an\nExecutive or military departm ent\xe2\x80\x9d used in 5 U .S.C . \xc2\xa7 3347. It follows that\na commissioned military officer can be designated Acting Administrator\no f General Services only if he holds a statutory position in a military\ndepartm ent. As far as we know, the military officer here involved does not\nhold such a position.\nBut even if \xc2\xa7 101(c) were to be construed to the effect that a military of\xc2\xad\nficer is an officer o f the Government within the meaning o f that provision,\nit would not constitute a provision to the contrary within the meaning of\n10 U .S.C . \xc2\xa7 973(b). That section embodies an im portant policy designed to\nmaintain civilian control o f the Government. In Riddle v. Warner, 522 F.\n(2d) 882, 884 (1st Cir. 1975) the court, while commenting on the history of\nthe legislation from which 10 U .S.C . \xc2\xa7 973(b) is derived, pointed out:\nA comment by the chairman o f the reporting committee,\nhowever, shows that a principal concern o f the bill\xe2\x80\x99s proponents\nwas to assure civilian preeminence in government, i.e., to prevent\nthe military establishment from insinuating itself into the civil\nbranch o f government and thereby growing \xe2\x80\x9c param ount\xe2\x80\x9d to it.\nSee Cong. Globe, 41st Cong., 2d Sess. App. 150 (1870).3\nT hat policy cannot be overcome implicitly by a broad and vague\nstatutory authority to designate an Acting A dm inistrator in the absence o f\nexpress language stating that such designation is to be effective not\xc2\xad\nwithstanding the m andate o f 10 U .S.C . \xc2\xa7 973(b). W here Congress wishes\nto permit a military officer to occupy a civilian position on an acting basis\nwithout forfeiting his commission, it has done so explicitly. See 10 U.S.C.\n\xc2\xa7\xc2\xa7 3017(b), 5036(c), 8017(b). We therefore are compelled to conclude that\neven if \xc2\xa7 101(c) were to be construed to authorize the President to\ndesignate a military officer to be Acting Adm inistrator o f General Serv\xc2\xad\nices, his acceptance o f that office4 or the exercise o f its functions would\nresult in the term ination o f the officer\xe2\x80\x99s military appointm ent.\nWe therefore conclude that a military officer who does not occupy a\nstatutory office in a military departm ent is not eligible for designation as\nActing A dm inistrator o f General Services and that, in any event, accept\xc2\xad\nance o f that office or the exercise o f its functions would result in the ter\xc2\xad\nmination o f his military commission.\n\n\xe2\x80\x98 For the legislative history o f that bill, see also C o n g r e s s i o n a l G l o b e 41st C ong., 2d\nSess., pp. 3394-3404.\n4 The position o f an acting officer may not comply with the formal requirements o f tenure,\nduration, emolum ents, and duties postulated as the elements o f an \xe2\x80\x9c office\xe2\x80\x9d in United States\nv. Hartwell, 73 U.S. (6 W all.) 385, 393 (1868). The A ttorneys General, however, have ruled\nthat if the prohibitions o f the predecessor statute 10 U .S.C . \xc2\xa7 973(b) \xe2\x80\x9c are to have any\nsubstantial operatio n ,\xe2\x80\x9d the term \xe2\x80\x9c officer\xe2\x80\x9d must be given a nontechnical interpretation and\nthat the policy o f the statute points to a very broad interpretation o f the term \xe2\x80\x9c civil officer.\xe2\x80\x9d\n15 O p. A .G . 551, 553 (1876); 18 O p. A .G . 11, 12 (1884); 35 O p. A .G . 187, 189 (1927).\n\n150\n\n\x0cYour second question asks whether a military officer could be ap\xc2\xad\npointed Adm inistrator o f General Services without forfeiting his commis\xc2\xad\nsion. Your request and the mem orandum o f law attached to it do not con\xc2\xad\ntain any authority in support o f that proposition. We are also not aware o f\nany pertinent exceptions to the prohibition o f 10 U.S.C. \xc2\xa7 973(b). I there\xc2\xad\nfore am constrained to answer the question in the negative.\nJohn M. Harm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n151\n\n\x0c"


b'Removal of Members of the\nAdvisory Council on Historic Preservation\nC ongress did not intend to limit the P resident\'s pow er to remove m em bers o f the Advisory C ouncil on\nH istoric Preservation without cause prior to the expiration of their term s of office. W hile certain of\nthe C o u n c il\xe2\x80\x99s structural attributes an d substantive functions suggest that Congress intended to vest\nthe C ouncil w ith a m easure of day-to-day independence from other federal agencies, this does not\nm ean that it intended the Council to operate free o f the supervision and control of the President\nh im self through his exercise of th e removal power.\nT he prim ary functions o f the Council are executive in nature, and thus not such as would permit\nC ongress co nstitutionally to insulate its m em bers from the President\xe2\x80\x99s removal power; it will\ntherefore not be inferred from C ongress silence on the m atter that it intended to do so.\nA legislative schem e in w hich disputes betw een executive agencies are to be settled in federal or state\ncourt w ould raise a num ber of serious constitutional problem s, under both Article II and Article\nIII, and such an intent on Congress part will not be assum ed absent the m ost com pelling and\nunam biguous language.\n\nMarch 11, 1982\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nThis memorandum addresses the question whether the members of the Adviso\xc2\xad\nry Council on Historic Preservation (Council) are removable by the President\nwithout cause prior to the expiration of their terms of office. For the reasons set\nforth below, we conclude that Congress did not intend the Council to operate free\nof the supervision and control of the President, and specifically that it did not\nintend to impose restraints on the President\xe2\x80\x99s presumptive authority to remove his\nappointees to the Council. We conclude in addition that the primary functions of\nthe Council are not such as would permit Congress, consistent with the Constitu\xc2\xad\ntion, to insulate Council members from the President\xe2\x80\x99s removal power.\nI. The Council\nThe Council was created by the 1966 National Historic Preservation Act (the\nAct), Pub. L. No. 89-665 , 80 Stat. 915, 917, with the specific mandate of\nadvising the President and Congress on matters relating to historic preservation,\nrecommending measures to coordinate public and private preservation efforts,\nand \xe2\x80\x9c reviewing\xe2\x80\x9d federal agency actions affecting properties listed on the Na\xc2\xad\ntional Register of Historic Places. See H.R. Rep. No. 1916,86th Cong., 2d Sess.\n\n180\n\n\x0c1 (1966). As amended in 1980 by Pub. L. No. 96-515, 94 Stat. 2987, the Act\nprovides that the Council should be composed of 19 members, 17 of whom are\nappointed by the President.1Of the 17 presidential appointees, seven are other\xc2\xad\nwise officers of the United States: the Secretary of the Interior, the Secretary of\nAgriculture, and the Architect of the Capitol serve ex cfficio; the President\nappoints the heads of four other \xe2\x80\x9c agencies of the United States\xe2\x80\x9d whose activities\naffect historic preservation. The remaining ten members consist of one governor,\none mayor, four experts in the field of historic preservation, three at-large\nmembers from the general public, and a chairman selected from the general\npublic, all appointed by the President. The tenure of the federal agency heads on\nthe Council is, we believe, dependent on their continuing service as agency\nheads. And, with the exception of the two members whose tenure depends in part\nupon state or local election results, the non-federal presidential appointees serve\nfor terms of four years. The statute and its legislative history are silent on the\nmatter of Council members\xe2\x80\x99 removal from office prior to the end of a term .2\nThe Council is established \xe2\x80\x9c as an independent agency of the United States\nGovernment.\xe2\x80\x9d 16 U.S.C. \xc2\xa7 470i. It is exempt from the Federal Advisory Com\xc2\xad\nmittee Act, but is subject to the Administrative Procedure Act, 16 U.S.C.\n\xc2\xa7 470g. It has an independent budget as a \xe2\x80\x9c related agency\xe2\x80\x9d of the Department of\nthe Interior, 16 U.S.C. \xc2\xa7 470t, and authority to hire its own executive director\nand staff, 16 U.S.C. \xc2\xa7 470m(a). Its executive director is in turn authorized to\nappoint a general counsel and other staff attorneys. 16 U.S.C. \xc2\xa7 470m(b). The\nCouncil must submit an annual report to the President and Congress, 16 U.S.C.\n\xc2\xa7 470j(b), and is authorized to submit legislative recommendations and testi\xc2\xad\nmony directly to relevant congressional committees without prior clearance from\nthe Office of Management and Budget. 16 U.S.C. \xc2\xa7 470r.\nBecause the nature of the functions performed by an entity is an important\nfactor in determining the constitutional limits of congressional power to restrict\nthe President\xe2\x80\x99s power to remove his appointees, see Wiener v. United States, 357\nU.S. 349, 353 (1958), that subject has also become a focal point in determining\ncongressional intent concerning presidential removal power. We therefore set out\nthe Council\xe2\x80\x99s duties in full in the following paragraphs.\nThe Council\xe2\x80\x99s advisory functions are described in \xc2\xa7 202 of the Act, 16 U.S.C.\n\xc2\xa7 470j. As there directed, the Council shall:\n1 The C hairm an of the N ational Trust for H istoric Preservation and the President o f the N ational C onference o f\nState H istoric Preservation O fficers serve on the C ouncil ex cfficio See 16 U .S .C . \xc2\xa7 470i(a)(7) an d (8) B ecause\nthese tw o m em bers o f the C ouncil are not appointed by the P resident, they m ay not participate in any C o uncil\nfunctions in w hich they m ust constitutionally act as officers of the U nited States, an d m u st confine th e ir participation\nin the C o u n cil\xe2\x80\x99s ac tivities to those areas in w hich its role is purely advisory See letter o f Dec 1, 1980, from A lan A\nfarker, A ssistant A ttorney G eneral, to the D irector, O ffice of M anagem ent and Budget.\n2 The discussion of th e P resid en ts rem oval pow er in this m em orandum applies to all o f his ap pointees w hose\ntenure in office j s not o therw ise subject to his control by virtue o f their positions as officers of the U nited States\xe2\x80\x94 a\ngroup w hich constitutes at least ten persons, and thus a m ajonty o f the Council T he P resid en ts pow er to rem ove the\ntw o C abinet m em bers w ho serve ex cfficio is unquestioned. The four other agency heads are likew ise su b ject to\npresidential rem oval, at least in their capacity as head of an Executive Branch agency. T hough the A rchitect o f the\nC apitol is listed as a congressional officer o r agent of C ongress in the C ongressional D irectory, and is largely su b ject\nto congressional direction in the perform ance of his d u ties, he is appointed and subject to rem oval by the P resident\nalone. See letter o f A ugust 13. 1979, from A ssistant A ttorney G eneral H arm on to Senator D o m en ici, citin g an\nopinion o f the O ffice o f Legal C ounsel dated June 1, 1953\n\n181\n\n\x0c(1) advise the President and the Congress on matters relating to\nhistoric preservation; recommend measures to coordinate ac\xc2\xad\ntivities of Federal, State, and local agencies and private institu\xc2\xad\ntions and individuals relating to historic preservation; and advise\non the dissemination of information pertaining to such activities;\n(2) encourage, in cooperation with the National Trust for His\xc2\xad\ntoric Preservation and appropriate private agencies, public inter\xc2\xad\nest and participation in historic preservation;\n(3) recommend the conduct of studies in such areas as the\nadequacy of legislative and administrative statutes and regulations\npertaining to historic preservation activities of State and local\ngovernments and the effects of tax policies at all levels of govern\xc2\xad\nment on historic preservation;\n(4) advise as to guidelines for the assistance of State and local\ngovernments in drafting legislation relating to historic preserva\xc2\xad\ntion; and\n(5) encourage, in cooperation with appropriate public and\nprivate agencies and institutions, training and education in the\nfield of historic preservation;\n(6) review the policies and programs of Federal agencies and\nrecommend to such agencies methods to improve the effec\xc2\xad\ntiveness, coordination, and consistency of those policies and\nprograms with the policies and programs carried out under this\nSubchapter; and\n(7) inform and educate Federal agencies, State and local gov\xc2\xad\nernments, Indian tribes, other nations and international organiza\xc2\xad\ntions and private groups and individuals as to the Council\xe2\x80\x99s\nauthorized activities.\n16 U .S.C . \xc2\xa7 470j(a).\nIn addition, under \xc2\xa7 106 of the Act, federal agency heads are required to afford\nthe Council \xe2\x80\x9c a reasonable opportunity to comment\xe2\x80\x9d before approving any\nexpenditure of federal funds on, or licensing of, an undertaking which would\naffect properties on the National Register of Historic Places. See 16 U.S.C.\n\xc2\xa7 470f.3 Section 211 of the Act authorizes the Council to promulgate \xe2\x80\x9c such rules\n3\n\nS everal c o u rts have had occasion to co n stru e the \xe2\x80\x9c reasonable oppo rtu n ity to co m m en t\xe2\x80\x9d authority in \xc2\xa7 106. In\n\nWATCH v. H arris, 603 F.2d 3 1 0 (2d Cir. 1979), cert, denied, 444 U .S 9 9 5 (1979), Ju d g e O akes review ed the\nlegislative h isto ry o f \xc2\xa7 106 an d concluded th a t C ongress intended to provide a \xe2\x80\x9c m eaningful review " o f fed eral or\nfederally assiste d projects w hich affect h isto ric properties. 603 F.2d at 324. T h e S ecretary o f H ousing an d U rban\nD ev elo p m en t w as found to have violated \xc2\xa7 1 0 6 in failing to consider the im pact o f a h ousing project o n certain\nh isto ric p ro p e rtie s , and in failing to solicit th e C ouncil\'s ad v ice. T h e court o f appeals th erefore affirm ed th e district\nc o u rt\'s in ju n ctio n ag a in st proceeding with th e project. B ut see Commonwealth c f Pennsylvania v. Morton, 381 F.\nS u p p 2 9 3 , 2 9 9 (D .D .C . 1974). in which th e S ecretary o f th e Interior h ad initially failed to co nsult w ith and\ns u b se q u en tly failed to follow th e recom m endations o f th e A dvisory C ouncil in a m atter involving a land exchange\na g ree m en t an d th e c o n stru c tio n o f a tower o n previously federal property n e a r G ettysburg N ational C em etery. The\nc o u rt found th a t th e S ecretary had \xe2\x80\x9c substantially co m p lied \xe2\x80\x9d w ith \xc2\xa7 106 by referrin g the m atter to the C o u n cil fo r its\nc o m m en ts afte r th e land ex c h an g e agreem ent h a d been sig n ed , and that " [ i] f he deviated from its recom m endation,\nth e S ecretary w as authorized to d o so in his d isc re tio n by th e express term s\xe2\x80\x9d o f 16 U .S .C . \xc2\xa7 4601-22(b). See 381 F.\nSupp. at 298 n .7 . T h e C o u n c il\'s reviewing a u th o rity under \xc2\xa7 106 is enhanced by Executive O rd er 11593, 36 Fed.\nC o ntinued\n\n182\n\n\x0cand regulations as it deems necessary to govern the implementation\xe2\x80\x9d of \xc2\xa7 106 of\nthe Act. 16 U.S.C. \xc2\xa7 470s.\nAs previously noted, the Council\xe2\x80\x99s executive director is authorized to appoint a\nGeneral Counsel and other staff attorneys, who in turn are authorized:\nto assist the General Counsel, represent the Council in courts of\nlaw whenever appropriate, including enforcement of agreements\nwith Federal agencies to which the Council is a party, assist the\nDepartment of Justice in handling litigation concerning the Coun\xc2\xad\ncil in courts of law, and perform such other legal duties and\nfunctions as the Executive Director and the Council may direct.\n16 U.S.C. \xc2\xa7 470m(b). The Council would appear, therefore, to be authorized to\nbring lawsuits under some circumstances against at least some other federal\nagencies.4\nThe 1980 Amendments to the Historic Preservation Act expanded the Coun\xc2\xad\ncil\xe2\x80\x99s authority in a new \xc2\xa7 214, under which the Council is authorized to make\nrules for exempting certain federal actions from the requirements of the Act:\nThe Council, with the concurrence of the Secretary, shall promul\xc2\xad\ngate regulations or guidelines, as appropriate, under which\nFederal programs or undertakings may be exempted from any or\nall of the requirements of this Act when such exemption is\ndetermined to be consistent with the purposes of this Act, taking\ninto consideration the magnitude of the exempted undertaking or\nprogram and the likelihood of impairment of historic properties.\n16 U.S.C. \xc2\xa7 470v.5\nR eg. 8921 (1971), w hich requires thal an agency proposing to \xe2\x80\x9c sell, dem olish o r substantially alter\xe2\x80\x9d an y federally\now ned p roperty w h ich \xe2\x80\x9c m ight q u alify \xe2\x80\x9d fo r nom ination to the N ational Register, m ay take n o action until the\nA dvisory C ouncil has been provided \xe2\x80\x9c an opportunity to com m ent.\xe2\x80\x9d E xecutive O rd er 11593 also requires that\nfederal agencies consult w ith th e C ouncil in adopting procedures to assure that th e ir policies and program s\ncontribute to the preservation o f both federally and non-federally ow ned properties o f h isto n c significance See\nWATCH v H a m s, 603 F.2d at 325\nU nder the 1980 A m endm ents to the A ct, a sim ilar \xe2\x80\x9c opportunity to co m m en t\xe2\x80\x9d m ust be afforded the C ouncil un d er\n\xc2\xa7 1 1 0 (0 of the A ct w henever federal agency actions \xe2\x80\x9c m ay directly and adversely affect\xe2\x80\x9d any d esignated N ational\nH istoric L andm ark. See \xc2\xa7 206 o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. 2987, 2996.\n4 T he phrase \xe2\x80\x9c including en forcem ent o f agreem ents w ith Federal agencies to w hich the C ouncil is a p arty \xe2\x80\x9d was\nadded to th e statute in 1980 See \xc2\xa7 301(i) o f Pub. L. N o. 9 6 -5 1 5 , 94 Stat. at 2999. W hile no referen ce to them\nappears elsew here in the A ct, the legislative history of the 1980 A m endm ents suggests that the referenced\n\xe2\x80\x9c agreem ents\xe2\x80\x9d are those described in the C o u n c il\xe2\x80\x99s regulations in fc rt 800 o f Title 36, C o d e o f Federal Regulations\nSee 36 C .F .R . \xc2\xa7 8 0 0 .6 (c) (M em orandum o f A greem ent). See also H .R Rep. N o. 1457, 96 th C o n g ., 2d Sess. 42\n(1980) (1 980 H ouse Report) (\xe2\x80\x9c specifically added is language that refers to the enforcem ent o f agreem ents w ith\nFederal agencies u n d er S ection 106, other authorities contained in this A ct and im plem enting regulations\xe2\x80\x9d ). T he\nagreem ents are en tered into by parties to the \xe2\x80\x9c consultation process\xe2\x80\x9d by w hich the C ouncil carries o u t its\ncom m enting function under \xc2\xa7 106 o f the A ct, w henever it is determ ined that a federal undertaking w ill have an\nadverse effect on an historic property. T h e agreem ent m ust \xe2\x80\x9c detail[] the actions agreed upon by the consulting\nparties to be taken to avoid, satisfactorily m itigate, o r accept the adverse effects o n the property.\xe2\x80\x9d 3 6 C .F .R .\n\xc2\xa7 8 00.6(c)(1). \xe2\x80\x9c T h e consulting parties\xe2\x80\x9d include the head of the federal agency having responsibility fo r the\nundertaking, the H istoric P reservation O fficer o f the State involved, and the executive d irecto r o f th e C o u n cil. O th er\npublic and private \xe2\x80\x9c parties in in terest\xe2\x80\x9d m ay b e invited by the consulting parties to p articipate in the consultation\nprocess.\n3 T h e term s o f \xc2\xa7 2 1 4 are am biguous w ith respect to the nature o f the authority co n ferred , and have not y et b een\ninterpreted by e ith e r th e C ouncil o r th e co u rts. T h e rulem aking authority und er \xc2\xa7 214 clearly cannot b e exercised\nabsent prio r secretarial \xe2\x80\x9c co n c u rre n ce.\xe2\x80\x9d O n ce exercised w ith th e S ecretary\xe2\x80\x99s con cu rren ce, however, th a t authority,\nunlike the \xe2\x80\x9c o p p o rtu n ity to co m m en t\xe2\x80\x9d requirem ent o f \xc2\xa7 106, appears to co ntem plate the estab lish m en t an d\nenforcem ent o f a substantive standard o f co n d u c t w hich w ill be binding on \xe2\x80\x9c Federal program s o r u n d ertak in g s\xe2\x80\x9d\nhaving an im pact o n historic properties\n\n183\n\n\x0cFinally, \xc2\xa7 202(b) directs the Council to submit an annual report on its activities\nto the President and Congress, as well as any additional periodic reports that it\ndeems advisable:\nEach report shall propose such legislative enactments and other\nactions as, in the judgment of the Council, are necessary and\nappropriate to carry out its recommendations and shall provide\nthe Council\xe2\x80\x99s assessment of current and emerging problems in the\nfield of historic preservation and an evaluation of the effectiveness\nof the programs of Federal agencies, State and local governments,\nand the private sector in carrying out the purposes of this Act.\n16 U .S.C . \xc2\xa7 470j(b).\nIn sum, the Council\xe2\x80\x99s role under the statute is primarily that of an advocate,\nadvisor, and educator in matters relating to historic preservation, with certain\nancillary responsibilities as \xe2\x80\x9c watchdog\xe2\x80\x9d over federal agencies whose activities\naffect historic properties.\nII. Statutory Restraints on the President\xe2\x80\x99s Power to\nRemove Council Members\nAt no time since the Council\xe2\x80\x99s establishment has Congress expressed any\nintent to limit presidential control over the tenure of its members. It is true that\ncertain of the structural attributes and substantive functions described in the\nforegoing section suggest that Congress intended to vest the Council with a\nmeasure of day-to-day independence from other federal agencies. This does not\nmean, however, that Congress intended the Council to operate free of the\nsupervision and control of the President himself through the exercise of the\nremoval power.\nWith respect to the Council\xe2\x80\x99s structure, we do not regard a statutory description\nof an entity as \xe2\x80\x9c independent\xe2\x80\x9d as dispositive of the question of the President\xe2\x80\x99s\npower to remove its members. In this case, the legislative history of the Act\nconfirms the limited sort of \xe2\x80\x9c independence\xe2\x80\x9d Congress intended for the Council.\nUnder the 1966 Act, the Council was organizationally part of the Department of\nthe Interior, with its budget and staff integrated into those of the National Park\nService. By 1976, dissatisfaction with the limits this arrangement placed on the\nCouncil\xe2\x80\x99s ability to function \xe2\x80\x9c on an equal and independent basis,\xe2\x80\x9d particularly in\nreviewing actions of the Department of the Interior under \xc2\xa7 106 of the Act, gave\nrise to the amendments which reorganized the Council \xe2\x80\x9c as an independent\nagency in the Executive Branch.\xe2\x80\x9d See \xc2\xa7 201(5) of Pub. L. 94\xe2\x80\x94422 as described in\nS. Rep. No. 367, 94th Cong., 1st Sess. 11 (1975) (\xe2\x80\x9c 1975 Senate Report\xe2\x80\x9d). In\nCommittee Reports and in Hearings, the Council\xe2\x80\x99s need for \xe2\x80\x9c equal and inde\xc2\xad\npendent\xe2\x80\x9d status is discussed in terms of the conflicts arising from its admin\xc2\xad\nistrative involvement with the Department of the Interior, and the resulting dayto-day pressures which had hampered the efficiency and impaired the objectivity\nof the Council. The change in status was effectuated, however, by nothing more\n184\n\n\x0cthan modifying arrangements for the Council\xe2\x80\x99s budget and staff. See 1975 Senate\nReport at 11; Hearings on S. 327 before the Subcommittee on Parks and\nRecreation cf the Senate Committee on Interior and Insular Affairs (Part 3), 94th\nCong., 1st Sess. 301-05(1975) (Statement of Clement M. Silvestro, Chairman,\nAdvisory Council on Historic Preservation) (1975 Senate Hearings). There is no\nsuggestion in the 1976 Amendments or their legislative history that Congress\nintended that the Council be insulated from the ultimate control of the President,\nor, in particular, that its members should no longer be subject to his power to\nremove them.6 Indeed, the Council\xe2\x80\x99s new \xe2\x80\x9c independence\xe2\x80\x9d enhances its ability to\nperform its duty of advising the President apart from influence from the Depart\xc2\xad\nment of the Interior, and strengthens the Council\xe2\x80\x99s difect relationship and respon\xc2\xad\nsiveness to the President rather than weaken them.\nThe statute\xe2\x80\x99s provisions dealing with the Council\xe2\x80\x99s relationship with Congress\nare more problematic. As noted above, the Council has since its creation been\nexplicitly charged with advising Congress as well as the President. In addition,\nsince \xc2\xa7 210 was added to the Act in 1976, the Council is relieved of any\nrequirement to submit its legislative recommendations or testimony to any\n\xe2\x80\x9c officer or agency\xe2\x80\x9d in the Executive Branch prior to their submission to Con\xc2\xad\ngress. Because this direct reporting authority may have an important bearing on\nthe removal power of the President, it is worth quoting in full:\nNo officer or agency of the United States shall have any\nauthority to require the Council to submit its legislative recom\xc2\xad\nmendations, or testimony, or comments on legislation to any\nofficer or agency of the United States for approval, comments, or\nreview, prior to the submission of such recommendations, testi\xc2\xad\nmony, or comments to the Congress. In instances in which the\nCouncil voluntarily seeks to obtain the comments or review of any\nofficer or agency of the United States, the Council shall include a\ndescription of such actions in its legislative recommendations,\ntestimony, or comments on legislation which it transmits to the\nCongress.\n16 U.S.C. \xc2\xa7 470r.\nOn the one hand, the Council\xe2\x80\x99s direct access to Congress suggests a legislative\nintent to have its own lines of communication with the Council kept free from\npolitical or policy influence from elsewhere in the Executive Branch. On the\nother hand, this reporting scheme need not necessarily interfere with the Presi\xc2\xad\ndent\xe2\x80\x99s general administrative control over the Council\xe2\x80\x99s activities, and as far as\nwe are aware, it has never done so.7 In this regard, it is significant that the 1980\n6 N one of the structural attributes and substantive functions of the Council w hich m ight suggest a legislative intent\nto make its m em bers \xe2\x80\x9c independent\xe2\x80\x9d of the P resident\xe2\x80\x99s rem oval pow er w ere part o f the statute u n d er the 1966 A ct\nP rior to 1976, therefore, there can have been no doubt that its m em bers were rem ovable by the President.\n7 In deed, we question w hether the statutory classification \xe2\x80\x9c officer or ag en cy \xe2\x80\x9d in \xc2\xa7 470r m ust n ecessarily be\nco n strued to include the President h im se lf C om pare the definition o f \xe2\x80\x9c officer\xe2\x80\x9d in \xc2\xa7 2104 o f T itle 5 o f the U nited\nStates C ode, w hich on its face w ould appear not to include the P resident. To the extent that a b ro ad co n struction o f\nthis perm issive bypass provision in the legislative reporting area w ould itself raise constitutional separation o f\npow ers issues, we w ould be inclined to read it narrow ly to perm it the President h im self a continued supervisory ro le.\nSee Congress Construction Corp v. United States, 314 F 2 d 527, 5 3 0 -3 2 (C t C l. 1963) (P resid en t\xe2\x80\x99s p o w er o f\ncontrol includes the right to supervise and coordinate all replies and com m ents from the E x ecutive B ranch to\nC ongress)\n\n185\n\n\x0cAmendments to the Act repealed what had been the first sentence of \xc2\xa7 210, which\ndirected the Council\xe2\x80\x99s concurrent submission to Congress of any and all of its\nlegislative recommendations to the President.8 The present reporting scheme\nthus leaves the Council free to communicate with Congress directly and inde\xc2\xad\npendently if it chooses, but does not obligate the Council to share simultaneously\nwith Congress all or indeed any of its advice to the President. The result is a\npotentially strengthened tie between the Council and the President, one freed of\nthe congressional oversight im posed by the 1976 Amendments. Congress\xe2\x80\x99\nwillingness in 1980 to give up the mandatory features of its own direct access to\nthe Council and restore some measure of privacy to the relationship between the\nCouncil and the President, is scarcely consistent with an intention that the\nCouncil should not be subject to the President\xe2\x80\x99s supervision and control, and in\nparticular its members to his removal power.\nIn summary, we find nothing in any of the structural aspects of the Council that\nestablish an intent on the part of Congress to insulate the Council\xe2\x80\x99s membership\nfrom the President\xe2\x80\x99s removal power.9 Indeed, the most recent amendments to the\nAct suggest an intent to strengthen, rather than attenuate, the Council\xe2\x80\x99s rela\xc2\xad\ntionship with the President, to the point that Congress has actually relinquished\nsome of the control it asserted in 1976.\nAn examination of the Council\xe2\x80\x99s functions leads us to the same basic con\xc2\xad\nclusion. The Council\xe2\x80\x99s advisory and reviewing roles under \xc2\xa7\xc2\xa7 106 and 202 of the\nAct are primarily executive in nature, and, on a constitutional spectrum, locate\nthe Council squarely within \xe2\x80\x9c the Executive Branch.\xe2\x80\x9d While its \xe2\x80\x9c watchdog\xe2\x80\x9d\nfunctions suggest the desirability of the Council\xe2\x80\x99s maintaining a certain inde\xc2\xad\npendence from other Executive Branch agencies, this need for independence\ndoes not extend to the President himself. Indeed, it is likely that the Council\nwould find it useful in fulfilling its statutory tasks to be able to call upon the\nPresident for support and assistance in its dealing with other federal agencies\nwhose heads are subject to his removal power. A power to make rules and grant\nexemptions from them does not distinguish the Council from a number of other\n8 T h e d eleted sentence provided:\nW henever th e C ouncil transmits an y legislative recom m endatio n s, o r testim ony, o r com m ents on\nlegislation to the P resident or the O ffice o f M anagem ent and B udget, it shall con cu rren tly transm it\nc o p ies th ereo f to the H o u se Com m ittee o n Intenor and In su lar A ffairs an d the Senate C om m ittee on\nIn te rio r and In su lar A ffairs\nT h e 1980 H o u se R eport co m m en ts on the requirem ent as having\nproven to h in d e r the C ouncil in its p ro v isio n of independent advice to both the P resident and the\nC o n g ress.\n\nSee 1980 H ouse R ep o rt at 42 . We would in an y event question th e constitutionality of a legislative requirem ent that\nth e C o u n c il\xe2\x80\x99s reports and recom m endations b e transm itted to C ongress w ith o u t affording it the oppo rtu n ity to\nco m m u n icate them first to th e President See note 7 , supra, an d Feb. 21, 1977, M em orandum O pinion fo r the\nA ttorney G en eral on \xe2\x80\x9c In sp ecto r General L e g is la tio n ,\xe2\x80\x9d 1 Op. O .L .C . 16, 1 7 (1 9 7 7 ) C fB u c k le y \\ Valeo, 424 U .S .\n1, 1 3 7 -3 8 (1976)\n9 C o n g ress m ay, o f c o u rse, utilize its ow n com m ittees for th e gathering o f inform ation o r appoint advisory\nco m m ittees to assist in its o w n legislative fu nctions. W here C ongress places the pow er o f appointm ent in the\nP resid en t, how ever, it m ust b e assum ed to have been aware that as a practical m atter presidential appointees w ill be\nd ep e n d en t upon th e P resident and not on C o n g re ss, and that a s a constitutional m atter the pow er to rem ove will\nfollow fro m and be dictated by the structure chosen.\n\n186\n\n\x0csimilarly charged Executive Branch agencies whose heads are clearly subject to\nthe President\xe2\x80\x99s removal power. See, e.g., 42 U.S.C. \xc2\xa7 7418 (federal facilities\nmust comply with EPA emissions rules under Clean Air Act); 42 U .S.C .\n\xc2\xa7 2000e-16 (federal employers are subject to rules and regulations of Equal\nEmployment Opportunity Commission).\nAuthority in the Council to bring lawsuits against other Executive Branch\nagencies to enforce the provisions of the Act is somewhat more difficult to\nreconcile with a congressional intent that its members be subject to the Presi\xc2\xad\ndent\xe2\x80\x99s removal power. We therefore must examine closely the provisions in\n\xc2\xa7 205(b) of the Act purporting to.give the Council authority to seek judicial\n\xe2\x80\x9c enforcement of [its] agreements with Federal agencies.\xe2\x80\x9d\nAs noted in the preceding section, \xc2\xa7 205(b) of the Act authorizes the Council\xe2\x80\x99s\nlegal staff to \xe2\x80\x9c represent the Council in courts of law whenever appropriate,\nincluding enforcement of agreements with Federal agencies to which the Council\nis a party,\xe2\x80\x9d and to \xe2\x80\x9c assist the Department ofMustice in handling litigation\nconcerning the council. . . .\xe2\x80\x9d 16 U.S.C. \xc2\xa7 470m(b). Our understanding of this\nambiguous mandate is not enhanced by reference to the legislative history of the\nprovision. As originally enacted in 1976, this provision appears to have been\nintended to deal with the \xe2\x80\x9cjurisdictional conflicts\xe2\x80\x9d generated by the Council\xe2\x80\x99s\nclose administrative association with the Department of the Interior, and in\nparticular the provision of day-to-day legal services to, the Council by the\nSolicitor of the Interior. See 1975 Senate Report at 12, 32; 1975 Senate Hearings\nat 303-04. It did not include the phrase referring to the enforcement of agree\xc2\xad\nments with other federal agencies. While the legislative history does not explain\nwhat Congress considered \xe2\x80\x9c appropriate\xe2\x80\x9d representation of the Council in court\nby its own attorneys, it is possible that Congress had in mind some situation in\nwhich the Department of Justice was unwilling or unable for some reason to\nrepresent the United States in connection with a violation of the Act. Whatever\nlitigating authority was intended for the Council in 1976, the addition in 1980 of\nthe phrase referring to the enforcement of the Council\xe2\x80\x99s agreements with other\nagencies suggests that Congress may by that time have been thinking of a\nsituation in which the Department of Justice might be obligated to represent some\nother federal agency whose position as a party to one of the \xe2\x80\x9c agreements\xe2\x80\x9d\ndescribed in the Council\xe2\x80\x99s regulations conflicted with that asserted by the Council\nitself.10\n10 T hus the 1980 H o u se R eport states:\nS ection 301(i) clarifies the existing authority o f the C ouncil to institute legal p ro ceedings on its\now n b eh a if to en su re com pliance w ith the A ct. Specifically added is language that refers to the\nenforcem ent o f agreem ents w ith Federal agencies under S ection 106, o th er authorities contained in\nthis A ct and im plem enting regulations. In m ost instances it is expected th at the C ouncil w ill utilize\nthe services o f the D epartm ent o f Justice w ith regard to litigation However, it is reco g n ized that\n\nsituations may arise where a Federal agency may violate the provisions c f this Act a nd the only\nrecourse is initiation c f legal proceedings by the Council in its own name.\n1980 H ouse R eport at 42 (em phasis supplied). We know o f no situation in w hich the Council has asserted fo r itse lf a\nlitigating authority independent of the Justice D epartm ent, m uch less an authority to take an o p posing p o sitio n in\nlitigation.\n\n187\n\n\x0cA legislative scheme in which disputes between Executive Branch agencies\nare to be settled in some forum other than one responsible to the President\xe2\x80\x94 in\nthis case federal or state court\xe2\x80\x94 would raise a number of serious problems under\nboth Article II and, potentially, Article III of the Constitution.\' 1Indeed we doubt\nthat Congress could constitutionally authorize one Executive Branch agency to\nsue another in a context such as this one. We will, therefore, not assume that\nCongress intended such a scheme absent the most compelling and unambiguous\nstatutory language.12\nIII. Constitutional Analysis\nAft examination of the relevant principles of constitutional law reinforces our\nconclusion that Congress intended Council members to be freely removable by\nthe President.\nAlthough the Constitution does not explicitly provide for the removal of\nofficers of the United States, it has long been the general rule that \xe2\x80\x9c [i]n the\nabsence of specific provision to the contrary, the power of removal is incident to\nthe power of appointment.\xe2\x80\x9d //? re Hennen, 38U .S. (13Pet.)230, 259(1839). See\nalso Myers v. United States at 119. The specification of a term of office does not\nindicate a congressional intent to preclude mid-term removal, but is merely a\nlimitation of the period that the officer may serve without reappointment. See\nParsons v. United States, 167 U .S. 324 (1897). Where the President\xe2\x80\x99s appoint\xc2\xad\nment power is involved, the presumption against limiting the removal power is\nrooted in the \xe2\x80\x9c take care\xe2\x80\x9d clause of the Constitution, and any limitations on it\n11 A rticle II o f the C onstitution vests the ex e cu tiv e pow er of th e U nited S tates in the P resident, a pow er w hich\nincludes general adm inistrative control over th o s e executing the law s See M yers v. United States, 272 U S 52,\n16 3-64 (1926) T his pow er o f control extends to the entire E xecutive B ranch, and includes the coordination and\nsupervision of all litigation undertaken in the nam e of the U nited States. It w as the intention o f the F ram ers, as\nrecognized by the S uprem e C o u rt in the Myers c a se , that the executive power w ould be exercised in a \xe2\x80\x9c unitary and\nu n ifo rm \xe2\x80\x9d way. 272 U .S . at 135. T h e President th u s has a special obligation to review decisions o r actions that have\ngiven rise to conflict w ithin the Executive B ra n c h , and C o n g ress has no p o w er to p revent his exercising his\nsu pervisory authority for the purpose of reso lv in g inter-agency disputes See discussion in Feb 2 1 , 1977,\nM em orandum O pinion fo r the A ttorney G en eral on \xe2\x80\x9c Inspector G eneral L eg islatio n ,\xe2\x80\x9d 1 Op. O L C 16 (1977)\nSim ilarly, C ongress m ay n ot, consistent with A rticle III o f the C onstitu tio n , d irect federal courts to ^ d ju d ic a te\ncontroversies w hich do not m eet constitutional standards of ju sticia b ility See Muskrat v United States, 219 U .S .\n3 4 6 (1 9 1 1 ). I f both the C ouncil and the agency alleg ed to have violated the Act are w ithin the Executive B ranch, then\nthe P resident has both th e pow er an d the duty to resolve any dispute between th em as to w hether a violation o f the A ct\nh as o cc u rre d To provide instead that the ju d ic ia ry should resolve the d isp u te w ould g o against the established\np rinciple o f federal ju risd ictio n that a person c a n n o t create a ju sticia b le controversy against him self, and itself raise a\nseparation o f pow ers issue. T h e co u rts might w ell question w hether, in light o f th e P resident\xe2\x80\x99s overall authority over\nboth agencies, sufficient ad v e rsan n e ss exists in such a situation. C f South Spring Hill Gold Mining Co. v Amador\nMedean G old Mining C o., 145 U .S . 300 (1892). They m ight also conclude th at legal disputes between Executive\nB ranch agencies are m ore properly for the P resident to resolve as p a rt o f his constitutional du ty to \xe2\x80\x9c take C are that the\nLaw s be faithfully ex ecu ted .\xe2\x80\x9d A rt II, \xc2\xa7 3. See M em orandum O pinion for the A cting A ssistant A ttorney G en eral,\nTax D ivision, A pril 2 2 , 1977, 1 O p. O L C . 7 9 , 83 (1977) (dispute between Internal R evenue S ervice and Postal\nS ervice not ju sticia b le). Compare UnitedStates v Nixon, 418 U S . 683 (1974) an d United States v. ICC, 337 U .S .\n4 2 6 (1949). In this ca se it is un lik ely that the C o u n c il\xe2\x80\x99s enforcem ent o f one o f its agreem ents w ith another federal\nagency w ould be regarded as an action taken o n b e h a lf o f a private p a rty or p arties, so as to satisfy the requirem ents\no f ju sticia b ility suggested by the holding of U nited States v. ICC.\n12 We express n o view s as to w hether the C o u n c il\xe2\x80\x99s legal staff m ay be authorized by the A ct to bring suit against\nindependent regulatory c o m m issio n s such as th e Federal Trade C om m ission w h o se m em bers d o not serve at the\npleasure of th e P resident, or to represent the p o sitio n of the U nited States in co u rt in connection w ith a violation o f\nthe A ct w here the Ju stice D ep artm en t is unw illing or for som e reaso n unable to d o so. N either o f these authorities\nw ould in any event be in c o n sisten t with C o u n cil m em bers\xe2\x80\x99 being subject to the President\'s rem oval pow er\n\n188\n\n\x0cmust be strictly and narrowly construed. See Myers v. United States at 161, 164.\nTherefore Congress may constitutionally restrict the President\xe2\x80\x99s removal power\nonly if the officer serves on an \xe2\x80\x9c independent\xe2\x80\x9d body whose tasks are primarily\nquasi-legislative or quasi-judicial, and which tasks \xe2\x80\x9c require absolute freedom\nfrom Executive interference.\xe2\x80\x9d Wiener v. United States, 357 U.S. 349, 353\n(1958). See Humphrey\xe2\x80\x99s Executor v. United States, 295 U.S. 602 (1935). If an\nagency\xe2\x80\x99s primary functions are \xe2\x80\x9c purely executive,\xe2\x80\x9d the President\xe2\x80\x99s power to\nremove its members must under the Constitution be unfettered. Id. at 631-32.13\nAs discussed in the preceding section, the Council is structured in such a way\nas to make it administratively \xe2\x80\x9c independent\xe2\x80\x9d within the Executive Branch. In\nparticular, we have noted the statutory provisions which purport to prohibit its\nbeing required to channel its reports to Congress through the Executive Office of\nthe President. None of its structural features is, however, necessarily incompati\xc2\xad\nble or inconsistent with its also being ultimately subject to the authority and\nsupervision of the President himself. More importantly, as the Court noted in\nWiener, \xe2\x80\x9c the most reliable factor for drawing an inference regarding the Presi\xc2\xad\ndent\xe2\x80\x99s power of removal . . . is the nature of the function that Congress vested in\nthe [Council].\xe2\x80\x9d 357 U.S. at 353. An examination of the Council\xe2\x80\x99s functions\nleaves no doubt that they are primarily executive in nature. The Council\xe2\x80\x99s\nadvisory and reviewing roles under \xc2\xa7\xc2\xa7 106 and 202 of the Act suggest the\ndesirability of its maintaining a certain independence of other Executive Branch\nagencies, but these are \xe2\x80\x9c purely executive\xe2\x80\x9d functions which do not require\n\xe2\x80\x9c absolute freedom from Executive interference\xe2\x80\x9d under the standards set forth in\nHumphrey\xe2\x80\x99s Executor and Wiener.14 While the rulemaking and exemptiongranting authorities arguably conferred on the Council by \xc2\xa7\xc2\xa7 211 and 214 of the\nAct are closer to the quasi-legislative or quasi-adjudicative functions which may\nconstitutionally be insulated from the threat of removal, these are not its primary\ntasks. Finally, even if one assumes some limited authority in the Council to\nlitigate in the name of the United States, this is the prototype of a \xe2\x80\x9c purely\nexecutive\xe2\x80\x9d function.15\nIn sum, the primary functions of the Council, as interpreted in light of the\nrelevant constitutional principles, are not such as to permit its members\xe2\x80\x99 insula\xc2\xad\n13 In Humphrey\'s Executor the C o u rt ruled that m em bers of the Federal Trade C om m ission needed secu rity\nagainst m id-term rem oval in order to \xe2\x80\x9c exercise [their] jud g m en t w ithout the leave o r hindrance o f an y o th er official\nor any departm ent o f the governm ent \xe2\x80\x9d 295 U S . at 6 2 5 -2 6 Specifically, its quasi-legislative an d q u asi-judicial\nfunctions required that it be free of executive control. See 295 U .S at 628. Sim ilarly, in Wiener, the ad judicative\nfunctions o f the War C laim s C om m ission w ere held to require freedom from \xe2\x80\x9c control o r coercive in flu en ce\xe2\x80\x9d by the\nExecutive. 357 U S at 355, quoting from 295 U .S at 629.\n14 In the context of exam ining the nature o f the functions of another advisory body created to ad v ise an E xecutive\nBranch D epartm ent, the D istrict C ourt for the D istrict of M assachusetts recently recognized that g iv in g advice and\nm aking recom m endations \xe2\x80\x9c fall into the category of \xe2\x80\x98purely executive\nMartin v Reagan, 525 F S u p p 110, 1 13\n(D . M ass. 1981) (N ational Institute o f Justice A dvisory Board) See also Patino v Reagan, C ivil N o . S - 8 1 -4 6 9\nM LS (E .D C al S ept 29, 1981). T hose cases involved removal by the President o f his appointees to ad v iso ry\nboards w hich advised the National Institute of Justice (N IJ) The N IJ, as the C ouncil here, has been expressly\nendow ed by C ongress w ith a m easure o f independence from the A ttorney G eneral in its day-to-day decisio n m ak in g :\nits director, however, serves at the pleasure of the President\n15 We doubt that C ongress could constitutionally authorize the C o u n cil\xe2\x80\x99s legal staff to sue other Executive B ranch\nagencies if those agencies w ere, like the C ouncil, subject to direction and supervision by the P resident. See note 11,\n\nsupra\n\n189\n\n\x0ction from the President\xe2\x80\x99s authority and control. We will not, therefore, infer from\nCongress\xe2\x80\x99 silence on the matter that it intended to impose any restrictions on his\npower to remove his appointees to the Council whenever he wishes to do so, and\nfor whatever reason he chooses.\nT h eo d o r e B. O lson\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n190\n\n\x0c'


b'Propriety of Asserting a Governmental Privilege\nin Response to a Court Order\nB oth the com m on law governm ental p n v ileg e and the constitutionally based executive privilege may\nbe asserted to p rotect certain docum ents reflecting the deliberation of close presidential advisers\nfrom d isclosure in response to a court order.\n\nOctober 13, 1982\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have requested the advice of the Office of Legal Counsel (OLC) con\xc2\xad\ncerning the propriety of asserting a governmental privilege in response to a court\norder that purports to require the production of certain White House staff\ndocuments and presidential Military Manpower Task Force documents. In re\xc2\xad\nsponse to your request, OLC has reviewed the relevant documents and has\ncarefully evaluated your claim o f governmental privilege. Based upon this\nreview, OLC has concluded, for reasons set forth more fully below, that the\ndocuments identified are properly subject to a claim of governmental privilege\nand that the privilege may properly be asserted with respect to those documents.\nThe court order in question was issued in a case involving a prosecution for\nfailure to register for the draft. U nited States v. Wayte, Crim. No. 82-630 (C.D.\nCal.). In that case, defendant has alleged that his indictment was based upon\nimpermissible selective prosecution. After ruling that defendant had established\na prim a fa cie case of selective prosecution, District Court Judge Terry J. Hatter,\nJr., ordered a full hearing on that issue and required the government to produce\ncertain documents and witnesses. In an order issued from the bench, the court\nordered production of documents from the files of the White House, the Presi\xc2\xad\ndent\xe2\x80\x99s Military Manpower Task Force (MMTF), the Department of Defense,\nSelective Service, and the Department of Justice. As initially articulated on\nOctober 1, 1982, the court order required production of \xe2\x80\x9cgeneral policy state\xc2\xad\nments dealing with the prosecution of nonregistrants, including transcripts of\nmeetings at which such policy was discussed.\xe2\x80\x9d A second statement by the court,\nwhich purported to be a clarification of the initial order, seems to require the\nproduction of \xe2\x80\x9ceverything dealing with the active and passive [nonregistration]\nenforcement systems.\xe2\x80\x9d In response to the court\xe2\x80\x99s order, members of your staff\nassembled the relevant documents from the files of both the MMTF and the White\nHouse itself. Upon review of these documents, the White House has determined\n564\n\n\x0cthat a number of the documents are within the scope of the deliberative process\nprivilege. You have requested OLC to review that privilege claim.\nThe documents that have be\xc2\xa7n assembled and for which a claim of privilege is\nunder consideration generally reflect the deliberations of close presidential\nadvisers concerning the policies to be implemented with respect to selective\nservice registration. Most of the documents relate to the MMTF, a special\nadvisory group established by the President to make recommendations con\xc2\xad\ncerning the manpower needs of the Nation\xe2\x80\x99s military forces, including the\npossible need for and implementation of a selective service registration system.*\nThese MMTF documents include reports, agendas, and verbatim transcripts of\nvarious meetings and deliberations of the MMTF. The MMTF documents also\ninclude several drafts and a final copy of the report of the MMTF to the President\nwhich sets forth a number of recommendations concerning military manpower\npolicy. In addition to the MMTF documents, the documents include memoranda\nand notes that reflect pre-decisional discussions among presidential advisers\nconcerning various aspects of selective service policy.\nAfter a careful review of these documents, we have concluded that they are\nprotected by the common-law governmental privilege and the constitutionally\nbased executive privilege for documents reflecting the deliberative process.\nThere is no doubt that the Executive enjoys a privilege for intra-agency memo\xc2\xad\nranda and documents that reflect the deliberative decisionmaking process. United\nStates v. Nixon, 418 U.S. 683 (1974); Kaiser Aluminum & Chemical Corp. v.\nUnited States, J57 F. Supp. 939 (Ct. Cl. 1958) (Reed, J.). The Supreme Court has\nstated that the \xe2\x80\x9cprivilege is fundamental to the operation of Government and\ninextricably rooted in the separation of powers under the Constitution.\xe2\x80\x9d United\nStates v. Nixon, 418 U.S. at 708 (footnote omitted). There are two principal\ngrounds for this deliberative process privilege. The first ground is\nthe valid need for protection of communications between high\nGovernment officials and those who advise and assist them in the\nperformance of their manifold duties; the importance of this\nconfidentiality is too plain to require further discussion. Human\nexperience teaches that those who expect public dissemination of\ntheir remarks may well temper candor with a concern for ap\xc2\xad\npearances and for their own interests to the detriment of the\ndecision-making process.\nUnited States v. Nixon, 418 U.S. at 705 (footnote omitted). The second ground is\nthat pre-decisional analyses or memoranda do not necessarily reflect the basis for\nthe ultimate decision of the agency. As one court recently stated, \xe2\x80\x9c[d]ocuments\nwhich are protected by the privilege are those which would inaccurately reflect or\nprematurely disclose the views of the agency, suggesting as agency position that\nwhich is as yet only a personal position.\xe2\x80\x9d Coastal States Gas Corp. v. DOE, 617\nF.2d 854, 866 (D.C. Cir. 1980).\n\xe2\x99\xa6The MMTF was chaired by the Secretary of Defense and included, among others, the Counsellor to the President,\nthe Chairman of the Council of Economic Advisers, and the Director of OMB\n\n565\n\n\x0cThe attached documents seem clearly to fall within the deliberative process\nprivilege outlined above. All of the documents relate to pre-decisional discus\xc2\xad\nsions concerning possible implementation of selective service registration. The\ndocuments reflect consideration of a wide range of alternatives and possible\npolicy directions. Even the M MTF\xe2\x80\x99s final report to the President is simply a\nrecommendation to the President concerning proposed military manpower pol\xc2\xad\nicy; it is not a final decision itself. The policies that underlie the deliberative\nprocess privilege would be impaired by release of these documents. Frank and\nopen discussion would certainly be inhibited if presidential advisers knew that\ntranscripts or other descriptions o f their deliberative meetings would be released\nto the public. Moreover, none of the specified documents reflect the final\ndecisions made by the Executive Branch on any of the issues discussed therein.\nFor these reasons, we have concluded that these documents are within the scope\nof the deliberative process privilege.\nIn evaluating the possible release of privileged documents for use in a court\nproceeding, however, it is necessary to consider not only the basis for the\nprivilege, but also the need for the documents in the court proceeding. See United\nStates v. N ixon, 418 U.S. 683 (1974). In this case, based upon our review of the\nspecified documents, we have concluded that the documents are of little rele\xc2\xad\nvance to the court\xe2\x80\x99s consideration of defendant\xe2\x80\x99s selective prosecution claim. For\nthe most part, these documents reflect general considerations concerning se\xc2\xad\nlective service policy. To the extent that they touch upon selective service\nprosecution at all, the documents are general and descriptive; they set forth no\ngovernment policies concerning how selective service violators should be pros\xc2\xad\necuted. When the limited relevance of these documents is weighed against the\nclear applicability of the deliberative process privilege, the balance tips heavily\nin favor of nondisclosure.\nIn conclusion, it is the opinion of this Office that the specified documents are\nwell within the scope of the deliberative process privilege and that that privilege\nmay be asserted in the Government\xe2\x80\x99s response to the court order in the instant\ncase.\nT heodore\n\nB.\n\nO\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n566\n\n\x0c'