b"June 23, 1977\n\n77-40\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, NUCLEAR\nREGULATORY COMMISSION\nDamage Claims Under the Atomic Energy Act\n\nThis is in response to your request for our opinion concerning the\neffect of a floor amendment proposed by Senator Hathaway (Hathaway\nAmendment), and included in the Act of December 31, 1975, Pub. L.\n94-197, 89 Stat. 1111 (1975 Act), amending the Atomic Energy A ct of\n1954, as amended. The provisions of that Act involved here are known\nas the Price-Anderson Act, 71 Stat. 576 (Sept. 2, 1957), incorporated in\nsections 2, 11, 53, and 170 of the Atomic Energy Act, 42 U.S.C.\n\xc2\xa7\xc2\xa7 2012(i), 2014(j)-(u), 2073(e)(8), 2210 (Act).\nYou suggest that the Hathaway Amendment should be read to elimi\xc2\xad\nnate all provisions of the Price-Anderson Act that allow the reasonable\ncosts of investigation, settlement, and defense of damage claims (costs)\nresulting from a nuclear incident to be absorbed from the various\nsources of funds that the Act makes available. For the reasons given\nbelow, we believe that costs are properly excludable only from the\nNuclear Regulatory Commission\xe2\x80\x99s (NRC) indemnity amount.\nThe Act establishes a complex scheme for meeting public liability\nclaims arising out of accidents at nuclear reactor facilities. First, the\nAct limits the maximum aggregate liability for any single incident to\n$560 million. \xc2\xa7 170(e); 42 U.S.C. \xc2\xa7 2210(e) (Supp. V, 1975). Second, the\nA ct requires each licensee to maintain \xe2\x80\x9cfinancial protection,\xe2\x80\x9d usually\ninsurance, in an amount determined by the NRC, currently $125 mil\xc2\xad\nlion. Third, the Act provides that for awards in excess of the \xe2\x80\x9cfinancial\nprotection\xe2\x80\x9d coverage up to the aggregate liability limit described above,\nthe NRC will indemnify the licensee for the excess over the \xe2\x80\x9cfinancial\nprotection\xe2\x80\x9d coverage. \xc2\xa7 170(c); 42 U.S.C. \xc2\xa7 2210(c) (Supp. V, 1975).\nBecause the maximum aggregate liability is $560 million, and the cur\xc2\xad\nrently required financial protection is $125 million, the maximum in\xc2\xad\ndemnity presently payable by the NRC is $435 million.\nThe Price-Anderson Act was extended and amended by the 1975\nAct. The 1975 Act provides for the establishment of a deferred premi157\n\n\x0cum scheme that, over the course of time, will replace the NRC indem\xc2\xad\nnity wiih one funded by the nuclear power industry.1 Thus, when the\n1975 A ct is implemented, the funds available for paying public liability\nclaims will be composed o f (1) \xe2\x80\x9cfinancial protection\xe2\x80\x9d (insurance); (2)\nthe deferred premium insurance scheme; and (3) the NRC indemnity.\nOn the floor of the Senate, Senator Hathaway introduced an amend\xc2\xad\nment to the 1975 Act that provided, w ith respect to the NRC indemni\xc2\xad\nty, that costs were to be excluded in calculating the indemnity amount.\nPrior to this, the Act clearly provided that the costs of investigating,\nsettling, and defending claims were included in the amount charged\nagainst the maximum liability\xe2\x80\x94$560 million. No amendment was pro\xc2\xad\nposed expressly to exclude costs from the amount required to be cov\xc2\xad\nered by the financial protection provided by licensees and, indeed, the\nprevious statutory language expressly including such costs was reenact\xc2\xad\ned in the 1975 Act. Further, the provisions of the 1975 A ct that added\nthe deferred premium scheme to the Act, expressly included costs\nwithin the sum to be made up by deferred premium payments. Finally,\nno amendment was proposed to exclude costs from the maximum liabil\xc2\xad\nity limits established under the Act. T he Hathaway Amendment was\nadopted by the Senate and enacted into law.*\nThe literal result of the Hathaway Amendment is to provide that\ncosts are to be excluded from that part of the maximum aggregate\nliability payable by the N RC and included for purposes of the financial\nprotection and deferred premium plans. Thus, as the N R C \xe2\x80\x99s exposure\ndeclines as the deferred premium plan assumes a greater part of the\nexposure, the aggregate amount payable to the public will decline,\nbecause a greater portion o f the amounts available within the aggregate\nliability limitation will be exposed to the payment of costs, which, as a\nresult of the Hathaway Amendment, are not included in that portion of\nthe aggregate liability limitation attributable to the NRC indemnity.\nAlthough the words of the Hathaway Amendment changed the treat\xc2\xad\nment of \xe2\x80\x9ccosts\xe2\x80\x9d only with respect to the NRC indemnity, Senator\nHathaway may well have intended this change to apply to all elements\no f the Act. In introducing his amendment, he described it as follows:\nQuite simply, what this amendment does is to require that the\nentire resources of the $560 million fund\xe2\x80\x94or whatever limit is\nestablished through the retrospective premium system\xe2\x80\x94be used\nonly for the purpose o f compensating people who are injured or\nsustain damages as a result of a nuclear accident. It amends several\n1 U n d er the d eferred premium schem e, in the e v en t o f a nuclear accident that exhausts\nth e licensees\xe2\x80\x99 financial protection coverage, all licensees will, in effect, be assessed up to\n$5 m illion p e r facility as the deferred prem ium feature o f the 1975 A c t takes effect.\n\xc2\xa7 170(b) o f th e A ct; 42 U.S.C. \xc2\xa7 2210(b) (Supp. V , 1975).\n\xe2\x80\x99 T h e am endm ent itself amended, inter alia, five sections o f the Act: \xc2\xa7 170(c), 42 U.S.C.\n\xc2\xa7 2210(c) (Supp. V , 1975); \xc2\xa7 170(d), 42 U.S.C. \xc2\xa7 2210(d) (Supp. V, 1975); \xc2\xa7 170(h), 42\nU.S.C. \xc2\xa7 2210(h) (Supp. V , 1975); \xc2\xa7 170(k), 42 U.S.C . \xc2\xa72210(k) (Supp. V , 1975); and\n\xc2\xa7 170(1), 42 U.S.C. \xc2\xa7 2210(1) (Supp. V , 1975).\n\n158\n\n\x0cprovisions of the Price-Anderson Act which at present permit the\npayment of investigative costs, settlement fees, and defense costs\nout of the overall liability limit. My amendment specifically ex\xc2\xad\ncludes these costs from any determination as to when the overall\nliability limitation has been reached. 121 Cong. Rec. S. 40966\n(1975).\nHowever, in a later colloquy with Senator Baker, the comanager of\nthe bill, Senator Hathaway indicated that his amendment was not in\xc2\xad\ntended to change the existing practice o f including costs within the\namounts to be provided by financial protection (insurance).3\nIt is difficult to reconcile the inconsistency between Senator\nHathaway\xe2\x80\x99s statements about what he intended. An intent to exclude\ncosts entirely from the liability limit is incompatible with including\nthem in one o f the three elements of that limit. In addition, the intent to\nexclude costs is incompatible with the pre-1975 language o f \xc2\xa7 170(e),\nwhich expressly included reasonable costs in the limit on liability. Yet\nthe same language was reenacted by the very bill to which Senator\nHathaway\xe2\x80\x99s proposal was directed. \xc2\xa7 170(e) of the Act. See also 121\nCong. Rec. 40959 (1975). If Congress desired to require that costs\nmight not be deducted from the limit on liability, it had only to strike\nfrom \xc2\xa7 170(e) the language that authorized such deduction; instead, the\nsame authorization was included in the revised \xc2\xa7 170(e), which Senator\nHathaway did not amend.\nStill a third inconsistency is evident. The deferred premium scheme,\nthe heart of the 1975 revision of the Price-Anderson Act, makes costs\nan element o f the premiums themselves. Act, \xc2\xa7 170(b). See also 121\nCong. Rec. 40958-9 (1975). As with revised \xc2\xa7 170(e), this language, too,\nwas included in the bill both before and after adoption of the Hathaway\nAmendment. Finally, the 1975 extension continues in effect the existing\ndefinition o f \xe2\x80\x9cfinancial protection,\xe2\x80\x9d specifically including the costs of\ninvestigation, settlement, and defense of claims. A ct \xc2\xa7 11(k); 42 U.S.C.\n\xc2\xa7 2014(k).\nW hatever may have been Senator Hathaway\xe2\x80\x99s intention, Congress\nwent forward and enacted the bill expressly excluding costs from the\nindemnity provision (as per the Hathaway Amendment) and expressly\nincluding costs in the deferred premium and financial protection provi\xc2\xad\nsions. Thus, even were it clear that the subjective congressional intent\nwas to completely eliminate costs, it is unmistakably clear that its\nobjective manifestation and the language chosen was insufficient to\nachieve the intended result; \xe2\x80\x9clegislative intention, without more, is not\nlegislation\xe2\x80\x9d Train v. City o f New York, 420 U.S. 35, 45 (1975). As the\nSupreme Court noted in that case, legislative action can simply be\n3 M r. Baker: \xe2\x80\x9cT h e cost o f the investigation ordinarily is charged against the insurance\nbefore it ever gets to the indem nity side. Is there anything in your [amendment] th at\nchanges that relationship?\xe2\x80\x9d\nM r. H athaw ay: \xe2\x80\x9c N o.\xe2\x80\x9d 121 Cong: Rec. 40967 (1975).\n\n159\n\n\x0c\xe2\x80\x9cinadequate\xe2\x80\x9d to its ends id. at 44, and, in our view, that is the case here,\nas the following review of the principles o f statutory construction\nindicates.\nThe language of a statute is the prime indicator of legislative intent.\nChief Justice Marshall, in one of his earliest opinions, said that a \xe2\x80\x9claw is\nthe best expositor of itself\xe2\x80\x99 Pennington v. Coxe, 6 U.S. (2 Cranch) 33, 52\n(1804), a rule that he stated more completely in The Paulina v. United\nStates, 11 U.S. (7 Cranch) 52, 60 (1812):\nIn construing [a statute] it has been truly stated to be the duty of\nthe court to effect[uate] the intention of the legislature; but this\nintention is to be searched for in the words which the legislature\nhas employed to convey it.\nAccord, United States v. Wiltberger, 18 U.S. (5 Wheat.) 76, 94-95 (1820)\n\n(Marshall, C. J.). The rule no more than states the obvious. In interpret\xc2\xad\ning a statute one must first look to the language that Congress em\xc2\xad\nployed. E.g., Flora v. United States, 357 U.S. 63, 65 (1958); A. Magnano\nCo. v. Hamilton, 292 U.S. 40, 46-47 (1934); United States v. Standard\nBrewery, 251 U.S. 210, 217 (1920); United States v. Union Pacific R. Co.,\n91 U.S. 72, 79 (1875).\nThere is, of course, no more persuasive evidence of the purpose of\na statute than the words by which the legislature undertook to give\nexpression to its wishes. Often these words are sufficient in and of\nthemselves to determine the purpose of the legislation. In such\ncases we have followed their plain meaning. United States v.\nAmerican Trucking Ass'ns Inc., 310 U.S. 534, 543 (1940).\nThis is not to say that other meanings may not be attributed to ambigu\xc2\xad\nous or contradictory statutory phrases. Where that is the case, resort to\nthe rules of construction o r to implications which may be found in\nlegislative history are of course appropriate. But \xe2\x80\x9c[w]ords used in a\nstatute are to be given their ordinary meaning in the absence of persua\xc2\xad\nsive reasons to the contrary. . . .\xe2\x80\x9d Burns v. Alcala, 420 U.S. 572, 58081 (1975).\nApplying this rule, we note that the language of the revised PriceAnderson A ct is clear and unambiguous concerning \xe2\x80\x9ccosts\xe2\x80\x9d and the\nlimit on liability; \xc2\xa7 170(e) o f the amended Act includes costs within that\nlimit in unmistakable terms. T o impose a contrary interpretation on the\nAct, despite the words of \xc2\xa7 170(e), would amount to a finding that the\nsection has been amended by necessary implication from the indemnity\nportions o f the A ct that were more directly changed by Senator\nHathaw ay\xe2\x80\x99s amendments. Repeal and amendments by implication are\nstrongly disfavored. Amell v. United States, 384 U.S. 158, 165-166\n(1966); Silver v. New York Stock Exchange, 373 U.S. 341, 357 (1963);\nMercantile Nat. Bank v. Langdeau, 371 U.S. 555, 565 (1963); United\nStates v. Borden Co., 308 U.S. 188, 198-99 (1939). A new statute will\nnot be treated as amending portions of an older one, not mentioned in\n160\n\n\x0cthe former, unless there is a positive repugnancy between the two,\nRegional R ail Reorganization Act Cases, 419 U.S. 102, 134 (1974), and it\n\ncannot be suggested that the various provisions of the revised PriceAnderson A ct cannot be harmonized. We find no irreconcilable incon\xc2\xad\nsistencies or absurdities of result if the Act be taken on its face and\ngiven its open and obvious meaning.\nIt is a \xe2\x80\x9cwell-settled rule of statutory construction that all parts o f a\nstatute, if at all possible, are to be given effect.\xe2\x80\x9d Weinberger v. Hynson,\nWestcott & Dunning, Inc., 412 U.S. 609, 633 (1973); Jarecki v. G. D.\nSearle & Co., 367 U.S. 303, 307-308 (1961); D. Ginsberg & Sons, Inc. v.\nPopkin, 285 U.S. 204, 208 (1932). To accept your view of the revised\nPrice-Anderson Act would mean that not only would such sections of\nits text as, for example, the definition of \xe2\x80\x9cfinancial protection,\xe2\x80\x9d be given\nno force, but that many of its provisions must be read directly contrary\nto their terms. Where the statute sets an upper limit on all public\nliability from a nuclear incident, we would see only a limit on payments\nto claimants, disregarding all costs.\nSo drastic a reversal of the ordinary meaning of the statutory lan\xc2\xad\nguage cannot be supported by the meager evidence of a single state\xc2\xad\nment by the proponent of an amendment, itself at odds with his later\nwords and the terms of his amendment. We have been unable to\ndiscover in the legislative record any showing of a congressional\xe2\x80\x94as\ndistinct from individual\xe2\x80\x94purpose to change the inclusion of costs\nwithin the limit on liability. Upon the available record, we simply\ncannot conclude that Congress, by accepting Senator Hathaway\xe2\x80\x99s\namendment concerning the treatment of costs under the Governmental\nindemnity, intended to make a similar change in their separate treat\xc2\xad\nment under the limit on public liability.4\nNor do we find support for the view that costs are now excluded\nfrom financial protection insurance and deferred-premium payments,\ndespite the explicit statutory language that includes costs in those\namounts. It could not be contended, for example, that the inclusion of\ncosts in financial protection insurance was an obscure or hidden matter.\nIt is evident on a single reading of the definition of \xe2\x80\x9cfinancial protec\xc2\xad\ntion,\xe2\x80\x9d \xc2\xa7 ll(k), 42 U.S.C. \xc2\xa7 2014(k), and is accepted by insurers, licens\xc2\xad\nees, and the Commission alike. Reenactment of a statute that has ac\xc2\xad\nquired a settled significance ordinarily adopts that meaning in the ab\xc2\xad\nsence of a plain indication to the contrary. Heald v. District o f Colum\xc2\xad\nbia, 254 U.S. 20, 23 (1920). We should point out that with respect to\nfinancial protection, even Senator Hathaway\xe2\x80\x99s own intent is ambiguous.\nHis reply to Senator Baker, supra, denies any purpose to alter the\nexisting relationship between indemnity and financial protection, in\n\xe2\x80\x98You suggest that the trade press and certain staff m em bers o f the Joint Com m ittee on\nA tom ic E nergy understood the H athaw ay A m endm ent to exclude costs from all parts o f\nthe Price-A nderson scheme. Such \xe2\x80\x9csources\xe2\x80\x9d for determ ining legislative intent hardly\nsuffice to enable one to decide that w hen C ongress used the w ord \xe2\x80\x9c including\xe2\x80\x9d it really\nm eant \xe2\x80\x9cexcluding.\xe2\x80\x9d\n\n161\n\n\x0cwhich \xe2\x80\x9ccosts\xe2\x80\x9d were subtracted from that insurance coverage before the\nindemnity could be reached.\nThus, we find no basis for concluding that Congress has altered the\nmeaning o f \xc2\xa7 1l(k)\xe2\x80\x94including costs as an element of the term \xe2\x80\x9cfinancial\nprotection\xe2\x80\x9d \xe2\x80\x94or that Congress intended to abrogate existing insurance\ncontracts that, we understand, similarly provide that the insurer\xe2\x80\x99s liabili\xc2\xad\nty for costs and claims is limited to the required amount of financial\nprotection.\nW e are likewise unable to conclude that the 1975 revision to the\nPrice-Anderson A ct has mandated an exclusion of costs from the deferred-premium element o f its system. To do so would be to contradict\nthe explicit language of \xc2\xa7 3 of the 1975 Act. Section 3 expressly in\xc2\xad\ncludes costs in ascertaining the amount of deferred premiums against\nnuclear licensees.\nIt is suggested that somehow the Supreme Court\xe2\x80\x99s recent decision in\nTrain v. Colorado Public Interest Research Group, Inc., 426 U.S. 1\n(1976), provides a basis for concluding that when Congress used the\nw ord \xe2\x80\x9cincluding\xe2\x80\x9d it intended the word \xe2\x80\x9cexcluding.\xe2\x80\x9d In that case, the\nSupreme Court held that the words \xe2\x80\x9cradioactive material\xe2\x80\x9d in the Fed\xc2\xad\neral W ater Pollution Control A ct did not include source, byproduct, or\nspecial nuclear materials, all of which were already regulated under the\nAtomic Energy Act, and that the courts could properly consider tradi\xc2\xad\ntional legislative history materials in construing the words of a statute,\neven where the statutory words themselves may seem to be clear on\nsuperficial examination.5 In that case, however, the House report, the\nSenate debates, and the conference report all indicated clearly that\nsource, byproduct, and special nuclear materials were not intended to\nbe within the statutory definition of \xe2\x80\x9cradioactive material.\xe2\x80\x9d Thus, the\navailable legislative materials in that case were substantially different\nfrom the inconsistent statements of Senator Hathaway here present.\nM oreover, a determination that \xe2\x80\x9cradioactive materials\xe2\x80\x9d does not mean\n\xe2\x80\x9call radioactive materials,\xe2\x80\x9d is substantially different from a determina\xc2\xad\ntion that \xe2\x80\x9cincluding\xe2\x80\x9d means \xe2\x80\x9cexcluding.\xe2\x80\x9d\nFinally, it is suggested that \xe2\x80\x9cpolicy\xe2\x80\x9d considerations support the view\nthat the Hathaway Amendment should apply even to the unamended\nportions o f the Act. The policy principle cited to support this view is\nthat the licensee is to be responsible for providing financial protection\nto the public. Unfortunately, the Price-Anderson Act attempts to recon\xc2\xad\ncile several conflicting policies, of which the principle noted above is\nonly one. Others include providing protection to the public and a\nfinancial source from which damage awards may be paid, and the\nperceived need to protect the nuclear power industry from unlimited or\n\xe2\x80\x9cunaffordable\xe2\x80\x9d liability\xe2\x80\x94a policy evidenced in the maximum liability\nlimitations of the Act. T hat policy perhaps supports the view that, at\nleast with respect to that portion of the maximum exposure that is the\n5 Train, supra, at 9-11, 24-25.\n\n162\n\n\x0cresponsibility of the licensees, costs were intended to be included so\nthat the maximum exposure could be determined with certainty.\nIn short, we conclude that the Price-Anderson Act, as amended,\nexcludes the costs of investigation, settlement, and defense of claims\nunder the remaining Federal indemnity. The 1975 revision of that Act\ndid not change the treatment of those costs under either the overall\nlimit on public liability arising from a single nuclear incident, the\nfinancial protection insurance required of licensees, or the industryfunded deferred-premium elements of the statutory compensation\nsystem.\nJohn M . H arm on\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n163\n\n\x0c"


b'May 25, 1979\n\n79-37\n\nMEMORANDUM OPINION FOR THE\nSECRETARY OF ENERGY\nEmergency Petroleum Allocation Act of 1973 (15\nU.S.C. \xc2\xa7 751)\xe2\x80\x94The President\xe2\x80\x94Constitutional Law\n(Article II, Section 2, Clause 2)\xe2\x80\x94Delegation of\nAuthority to State Governors in End-user Gasoline\nAllocation Program\n\nThis responds to your request for our opinion regarding several ques\xc2\xad\ntions arising from a proposed delegation of powers under the Emergency\nPetroleum Allocation Act of 1973 (EPAA), 15 U.S.C. \xc2\xa7 751 et seq.: First,\nwhether the President may constitutionally delegate powers under EPAA\nto the Governors of the several States and whether the Governors can exer\xc2\xad\ncise these powers in the absence of any State enabling legislation or in the\npresence of State legislation affirmatively prohibiting the exercise o f such\npowers; second, whether the substantive powers proposed to be delegated\nto the Governors are within the scope of power delegated to the President\nby EPAA. We conclude that delegation of specific powers to the Gover\xc2\xad\nnors on a permissive basis would clearly be authorized except in situations\nin which constitutional provisions of the State prevented the exercise of\nsuch Federal powers by the Governor.\nI. The Constitutionality of Delegating Federal Power to a Governor\nThe delegation of power by Executive order under the EPAA to the\nGovernors of the several States raises two distinct constitutional issues.\nFirst, whether a Governor may constitutionally be delegated the power\nunder a Federal statute in order to implement and enforce Federal law.\nSecond, whether such a delegation is consistent with the \xe2\x80\x9c state sover\xc2\xad\neignty\xe2\x80\x9d values embodied in the Tenth Amendment in the absence of State\nlegislation supportive of the delegations or in the presence of prohibitory\nState statutory or constitutional provisions.\nThe Governors of the several States may be delegated the power to\n231\n\n\x0cimplement and enforce Federal substantive law. It is settled that State of\xc2\xad\nficers are under a constitutional obligation to abide by Federal law, see,\nCoopery. Aaron, 358 U.S. 1 (1958), and that at least some Federal power\nmay be delegated to private citizens, see, Currin v. Wallace, 306 U.S. 1\n(1939). In addition, so long as the President retains the authority to\nwithdraw power once delegated, as he has done here, his prerogatives\nunder Article II, \xc2\xa7 2, C l. 2, to select and control those who will implement\nFederal law is preserved.1 The only substantial question raised by the pro\xc2\xad\nposed delegation relates to the impact it might have on the sovereign status\nof the States in our federal system. Cf., National League o f Cities v.\nUsery, 426 U.S. 833 (1976).\nThe salient feature of the delegation in regard to the Tenth Amendment\nis that each Governor will be free to decline the delegation for any or no\nreason at all. Thus, unlike the situation initially presented to the Supreme\nCourt in Environmental Protection Agency v. Brown, 431 U.S. 99 (1977),\nthe executive branch of any State is completely free to accept or reject the\nresponsibilities attendant to any delegation of Federal power by the Presi\xc2\xad\ndent. Given the permissive nature of the delegation, we do not believe that\nthe concerns expressed by the several Courts of Appeals regarding the\nTenth Amendment implications of the Clean Air Act and that Act\xe2\x80\x99s im\xc2\xad\nposition of certain duties on the States are present here. See, e.g., Brown\nv. Environmental Protection Agency, 521 F. (2d) 827, 837-42, (9th Cir.\n1975), judgment vacated, 431 U.S. 99 (1977). There, the Ninth Circuit sug\xc2\xad\ngested quite strongly that a Federal statute requiring a State to expend\nState funds and utilize State personnel to enforce certain provisions of the\nClean Air Act would present substantial Tenth Amendment problems. We\ndo not believe that the voluntary assumption of such Federal responsi\xc2\xad\nbilities by State officers stands on the same footing as the mandatory re\xc2\xad\nquirements of the regulations issued by the Environmental Protection\nAgency pursuant to the Clean Air A ct.2 Indeed, we believe there is a con\xc2\xad\nstitutional presumption that a State officer will enforce Federal laws when\ncalled upon to do so, see, Cooper v. Aaron, supra. Thus, at least where no\nState statutory or constitutional law is to the contrary, the chief executive\nof a State may be delegated the power to exercise the contemplated func\xc2\xad\ntions under \xc2\xa7 5(b) of the EPAA.\nWhere, however, the executive authority of a State is explicitly pro\xc2\xad\nhibited by State law from assuming such functions, we doubt that a\n\n1 U nder 15 U .S.C . \xc2\xa7 1827(a), the Secretary o f Agriculture was empowered in 1970 \xe2\x80\x9c to\nutilize the officers and employees o f any State, with its consent\xe2\x80\x9d in the carrying out o f a\nFederal program for the protection o f horses. A lthough such provisions are relatively novel,\ntheir usage has now been accepted for at least a decade by Congress and the executive branch.\n2 We note that prior to the Suprem e C o u rt\xe2\x80\x99s decision in Brown, the Environm ental Protec\xc2\xad\ntion Agency conceded that the m andatory provisions o f its regulations for affirmative State\naction were invalid under the Clean Air A ct. For this reason, the Supreme C ourt did not\nreach the merits o f the statutory or constitutional argum ents raised by several States quite\nsuccessfully in the decisions considered by the C ourt in Brown.\n\n232\n\n\x0cGovernor can accept a delegation to perform these Federal functions. The\nthreshold inquiry is whether Congress would have intended S*ate law to be\npreempted by the EPAA. Section 6(b) of that Act, 15 U.S.C. \xc2\xa7 755(b),\ndeals specifically with the subject of preemption, but does not suggest a\ncongressional intent to preempt the kind of State law that would be in\xc2\xad\nvolved here. Because the control of a State\xe2\x80\x99s executive branch by its\nlegislature, including the devotion of State officers to duties other than\nthose prescribed by the State legislatures, appears to us to be a funda\xc2\xad\nmental aspect of State sovereignty under the Tenth Amendment. We\nbelieve that EPAA should not b\xc2\xa3 read, and probably cannot be read, to ef\xc2\xad\nfect such preemption. We think that the specificity of the preemption pro\xc2\xad\nvision contained in the EPAA, which clearly does not contemplate the\nkind of preemption involved here, coupled with the substantial constitu\xc2\xad\ntional question that would be presented, were the EPAA read to preempt\nsuch State law, would be decisive on this point.3\nWe therefore conclude that although power under the EPAA may be\ndelegated by Executive order to Governors on a permissive basis, such a\ndelegation could not be effected in contravention of State law.\nII. The Power to Require End-user Allocation of Gasoline Under EPAA\nUnder the proposed Executive order, a Governor would be empowered\nto require motor-gasoline retail sales outlets in his State or a locality\nthereof to supply gasoline to vehicles on an \xe2\x80\x9c odd-even plate number\nbasis,\xe2\x80\x9d to require purchasers of gasoline to purchase a specified minimum\namount of gasoline, and finally to require retailers to be open or closed for\nthe sale of gasoline at specified times of the day or on specified days. The\nquestion is whether EPAA authorizes the type of such end-user allocation\ncontrols.\nThis question can be subdivided into two parts: First, whether EPAA\nauthorizes the application of mandatory allocation measures applicable to\nend-users; second, if EPAA does authorize these, whether it authorizes the\nspecific type of powers proposed to be delegated.\nEnd-user Allocation\nUnder \xc2\xa7 4 o f EPAA, 15 U.S.C. \xc2\xa7 753, the President was directed to\n\n1 The substantiality o f the constitutional question presented is apparent under all the\nCourts o f Appeals decisions consolidated for review in the Supreme C ourt in Environmental\nProtection Agency v. Brown, supra. Certainly, the requirement that the Governor o f a State\nperform Federal duties is one that could detract substantially from his ability to perform\nState duties imposed on him by State law. Indeed, it is difficult to conceive o f a m ore signifi\xc2\xad\ncant infringement on State authority than to conscript the Governor o f a State, even a willing\nG overnor, into the Federal service in contravention o f State law reserving the services o f the\nGovernor to the people o f his Slate.\n\n233\n\n\x0cestablish a \xe2\x80\x9c mandatory allocation\xe2\x80\x9d program by regulation. As explained\nin the Conference Report on the Act:\nThe mandatory allocation program will operate to compel the al\xc2\xad\nlocation of product throughout the various levels of the petroleum\nmarket. It may be necessary, in selective cases, to compel the\nallocation of product to particular end-users, such as hospitals,\nunits of government, or persons engaged in energy production and\ntransportation; but it is not generally expected that the regulation\npromulgated by the President will be burdened with the complex\xc2\xad\nities of assigning fuels to users unless such assignment is necessary\nto carry out the purposes of the Act. When required, however, it is\nintended that the President would have full authority under this\nAct to identify permissible uses of covered fuels and to restrict the\namounts which may be made available to such uses.4\nIn 1974, the Federal Energy Administration (now the Federal Energy\nRegulatory Commission), exercising the power granted by \xc2\xa7 4 of EPAA,\npromulgated regulations specifically covering the allocation of certain\npetroleum products to end-users. See 10 CFR \xc2\xa7\xc2\xa7 211.10-211.17, reprinted\nin 39 F.R. 35511-19 (Oct. 1, 1974). Thus, from an early date the agency\ncharged with exercising the power of allocation clearly read that statute as\nauthorizing allocation of various petroleum products covered by the Act\nto end-users. This evidence is significant because it is a familiar rule of\nstatutory construction that an agency\xe2\x80\x99s contemporaneous interpretation\nof a statute is normally given great weight. See, Maynard v. Elliott, 283\nU.S. 273 (1931). In connection with its consideration of what ultimately\nbecame the Energy Policy and Conservation Act, 42 U.S.C. \xc2\xa7\xc2\xa7 6261 et\nseq., the Congress reviewed in some detail the allocation regulations that\nhad been issued by the Federal Energy Administration. See H. Rept.\n94-340, 94th Cong., 1st sess., 65-69 and 185-203 (1975). The conse\xc2\xad\nquences of this review were the reenactment of EPAA and the addition to\nit of additional tools to be used by the President to deal with energy alloca\xc2\xad\ntion and shortages. Under such circumstances, the contemporaneous in\xc2\xad\nterpretation of the EPAA in 1974 is \xe2\x80\x9c presumptively the correct interpreta\xc2\xad\ntion of the law.\xe2\x80\x9d See 2A Sutherland, Statutory Construction \xc2\xa7 49.09 (4th\ned. 1973); Cammarano v. United States, 358 U.S. 498, 508-09 (1959). We\nbelieve that the prior interpretations of the EPAA would be viewed as cor\xc2\xad\nrect interpretations and clearly within the scope of EPA A .5\nSpecific End-user Controls\nIn its consideration of the proposed EPCA in 1975, the House\n\n4 H. Rept. 93-628, 93rd C ong., 1st sess., 13 (1973).\n5 Although we believe that \xc2\xa7 4 o f E PA A is adequate support for the proposed Executive\norder, we would additionally note that \xc2\xa7\xc2\xa7 15 and 16 o f E PA A , added to E PA A by the enact\xc2\xad\nment o f the EPCA in 1975, would also appear to provide authority.\n\n234\n\n\x0ccommittee on Interstate and Foreign commerce expressly noted that\nmeasures instituted largely by the States on their own initiative during the\n1973-1974 oil embargo had been successful. More particularly, the Commit\xc2\xad\ntee Report noted that alternate day of the week purchases, requirements\nthat motorists have less than one-half a tank of gas prior to purchase, and\ncontrolled gasoline station business hours had been very effective in dealing\nwith that shortage. Id., at 64. The response of Congress in the EPCA was\nan amendment to EPAA, adding to that latter Act new \xc2\xa7\xc2\xa7 11 and 12, 15\nU.S.C. \xc2\xa7\xc2\xa7 760, 760a. Under \xc2\xa7 11, the President was to review the prior\nregulations issued pursuant to \xc2\xa7 4 of EPAA and to amend them under\nspecified circumstances. Under \xc2\xa7 12, the criteria for amendment were\nestablished. Basically, it was required that \xe2\x80\x9c the regulation, as amended,\n[must provide] for the attainment, to the maximum extent practicable of the\nobjectives stated in \xc2\xa7 4 of the Act.\xe2\x80\x9d\nThis language, coupled with the broad authority conferred on the Presi\xc2\xad\ndent by \xc2\xa7 4 as explained by the language quoted above from the conference\nreport, provides substantial support for a determination that the controls\nthat would be authorized by the proposed Executive order were\n\xe2\x80\x9c necessary\xe2\x80\x9d to carry out the purposes of EPA A.6\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98 The Tem porary Emergency court o f Appeals suggested in dictum that \xc2\xa7 4 would provide a\nbasis for a regulation that would have provided for preferential treatm ent by gasoline retailers\nfor identifiable commercial customers. See, Reeves v. Simon, 507 F. (2d) 455, 461 (1974), cert,\ndenied, 420 U .S. 991 (1975). The Reeves case is necessarily grounded on the proposition that\nEPA A permits the regulation o f gasoline retailers as part o f a program o f end-user allocation.\n\n235\n\n\x0c'


b"Assignment of Army Lawyers to the\nDepartment of Justice\nThe D epartm ent o f Justice may appoint Army attorneys as special attorneys or Special Assistant\nUnited States Attorneys enabling them to perform litigation functions assigned by law to\nDepartment of Justice attorneys, provided, however, that the salaries and expenses of Army\nlawyers so serving must be paid from the Departm ent\xe2\x80\x99s own appropriation.\nThe Departm ent o f Justice may use Army attorneys, performing the functions traditionally\nperformed by \xe2\x80\x9cagency counsel,\xe2\x80\x9d to assist the Departm ent in its litigation functions; Army\nattorneys assisting the Departm ent in this capacity may be paid with Army funds and need not\nbe formally detailed to the Department.\nThe use o f Army lawyers to assist the Departm ent of Justice may violate the Posse Com itatus A ct\nwhere they perform prosecutorial functions involving direct contact with civilians, unless\nsuch Army lawyers are detailed to the Departm ent on a full-time basis and operate under the\nsupervision o f Departm ent personnel.\n\nAugust 22, 1986\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nD\n\nepu ty\n\nA ttorney G eneral\n\nYou have asked for our opinion on the legal issues presented by a proposal to\nassign lawyers from the Army Judge Advocate General\xe2\x80\x99s Corps (JAGC) to the\nDepartment of Justice to assist in connection with certain litigation functions.\nAs discussed in greater detail below, we believe that it would be permissible to\nimplement most of the Army proposal, subject to certain conditions.\nOur conclusions may be summarized as follows:\n1. The Department of Justice may appoint JAGC attorneys as special attor\xc2\xad\nneys or Special Assistant United States Attorneys under 28 U.S.C. \xc2\xa7 \xc2\xa7 5 15(b) or\n543 so that they may perform litigation functions that are assigned by law to\nDepartment of Justice attorneys. If this is done, however, the salaries and\nexpenses of the JAGC lawyers must be paid from the Department\xe2\x80\x99s own\nappropriation.\n2. The Department of Justice may use JAGC attorneys to perform litigation\nfunctions traditionally performed by \xe2\x80\x9cagency counsel.\xe2\x80\x9d When Army attorneys\nare functioning as agency counsel, they may be paid with Army funds, and no\nformal detail to the Department is necessary. The Department of the Army\nshould determine in each case that it has authority to use its appropriation to\nassist in connection with particular litigation.\n115\n\n\x0c3. The Department may use JAGC lawyers to assist in preparing cases and in\nperforming a number of other duties in connection with civil and criminal\nlitigation under our responsibility, without raising issues under the Posse\nComitatus Act. However, questions under the Posse Comitatus Act may be\nraised if military lawyers perform prosecutorial functions involving direct\ncontact with civilians, unless such military lawyers are detailed to the Depart\xc2\xad\nment on a full-time basis and operate under the supervision of departmental\npersonnel.\n\nL T ie Army Proposal\nThe Army proposal has two components. The first component would involve\nfull-time assignment of JAGC lawyers to the Civil and Criminal Divisions and\nvarious United States Attorneys offices for a period of six months to a year.\nThis component of the program would be administered by Army Headquarters.\nIts purpose would be to \xe2\x80\x9cprovide full time assistance\xe2\x80\x9d to Department of Justice\nlawyers in \xe2\x80\x9careas requiring specialization, such as medical malpractice and\ncontract fraud.\xe2\x80\x9d JAGC lawyers would work under the \xe2\x80\x9cdirect supervision\xe2\x80\x9d of\nDepartment of Justice attorneys and would function in both \xe2\x80\x9cagency counsel\xe2\x80\x9d\nand \xe2\x80\x9ctrial attorney\xe2\x80\x9d capacity. The JAGC lawyer would prosecute or defend\nonly cases \xe2\x80\x9carising out of Army or Department of Defense activities.\xe2\x80\x9d\nThe second component o f the Army proposal \xe2\x80\x9cprovides for the Army to\nfurnish, on a part-time basis, Army attorneys to prosecute in U.S. District Court\nfelonies occurring on the Army installation or to assist in defense of [certain]\ncivil suits.\xe2\x80\x9d This component of the Army proposal would not be administered\nby Army Headquarters but would be \xe2\x80\x9cdependent upon local arrangements\nbetween staff judge advocates or command counsel and U.S. Attorneys.\xe2\x80\x9d\nJAGC attorneys would be appointed as Special Assistant United States Attor\xc2\xad\nneys, pursuant to 28 U.S.C. \xc2\xa7 543, and their duties would \xe2\x80\x9cessentially parallel\xe2\x80\x9d\nthose of Assistant United States Attorneys. At the same time, they would \xe2\x80\x9calso\nsimultaneously perform their normal duties as agency counsel.\xe2\x80\x9d1 The United\nStates Attorney would train and supervise the JAGC attorneys in their duties as\nSpecial Assistants, and the JAGC lawyers would \xe2\x80\x9cwork side-by-side\xe2\x80\x9d with an\nAssistant United States Attorney.\nThe purpose of the Army proposal is \xe2\x80\x9cto provide more and better assistance\nto the Department of Justice in representing Army interests\xe2\x80\x9d and, in the Army\xe2\x80\x99s\nview, the \xe2\x80\x9ctwo-component Army attorney program provides the Department of\nJustice with the best possible agency support while enabling us to better\nrepresent the Army.\xe2\x80\x9d\nIt is not clear from the Army proposal exactly what duties could be assigned\nto JAGC attorneys under the first component of the proposal; in particular, it is\nnot dear whether their duties would be such as to require their appointment as\n1 T he A rm y proposal states that \xe2\x80\x9c[i]n effect, Special A ssistants' duties are those usually perform ed by\nagency attorneys rig h t up to the moment Special A ssistants step into the courtroom as the prim ary represen\xc2\xad\ntative o f the U nited S ta te s /'\n\n116\n\n\x0can officer of the Department of Justice.2 We assume from conversations we\nhave had with Defense Department personnel that the Army proposal contem\xc2\xad\nplates assignment of JAGC attorneys to handle the full range of prosecutorial\nresponsibilities and would thus entail their appointment as Department of\nJustice attorneys. As discussed above, the second component of the Army\nproposal expressly provides for the appointment of JAGC lawyers as Special\nAssistant United States Attorneys to prosecute and defend both civil and\ncriminal cases in the name of the United States.\nII. Authority for the Department of Justice to Employ the\nServices of Outside Attorneys to Carry Out the\nDepartment\xe2\x80\x99s Exclusive Responsibilities\nSection 516 of Title 28 reserves to officers of the Department of Justice the\nconduct of litigation in which the United States or one of its agencies is a party.\nA parallel section, 5 U.S.C. \xc2\xa7 3106, provides that, except as otherwise autho\xc2\xad\nrized by law, an executive agency \xe2\x80\x9cmay not employ an attorney . . . for the\nconduct of litigation in which the United States, an agency, or employee\nthereof is a party . .. but shall refer the matter to the Department of Justice.\xe2\x80\x9d\nThere is, however, clear statutory authority for the Department of Justice to use\nnon-departmental attorneys to carry out the Department\xe2\x80\x99s litigating functions.\nAs the Army proposal points out, 28 U.S.C. \xc2\xa7 543 authorizes the Attorney\nGeneral to appoint attorneys to assist the United States Attorneys \xe2\x80\x9cwhen the\npublic interest so requires.\xe2\x80\x9d This appointing authority is a general one, and\nextends both to the appointment of attorneys from other federal agencies, as\nwell as from the private sector, as \xe2\x80\x9cSpecial Assistant United States Attorneys\xe2\x80\x9d\nto perform departmental duties.3 Although this section would permit the ap\xc2\xad\npointment of attorneys from other agencies to carry out Department of Justice\nfunctions, it does not indicate which agency should bear the cost of their\nservices.\n2 A ttorneys not em ployed by the Department o f Justice m ust be appointed by the A ttorney General as\nspecial attorneys in the Department in order to conduct litigation in the name o f the United States. See 28\nU.S.C. \xc2\xa7 5 1 6 (reserving to \xe2\x80\x9cofficers o f the D epartm ent o f Justice, under the direction o f the A ttorney\nG eneral,\xe2\x80\x9d the conduct o f all litigation in which the United States is a party). See also In re Persico , 522 F.2d\n41 (2d Cir. 1975); In re Grand Jury Proceedings , 309 F.2d 440 (3d Cir. 1962). The United States A ttorney\nM anual (USAM ) recognizes that formal appointm ent is a prerequisite for \xe2\x80\x9cthe participation in court proceed\xc2\xad\nings by attorneys not em ployed by the D epartm ent o f Justice.\xe2\x80\x9d See id. at 9-2.162. See also id. at 1-14.300\n(\xe2\x80\x9cnon- departm ent attorneys\xe2\x80\x9d must be appointed before they may conduct grand ju ry proceedings). In a 1979\nopinion, this O ffice concluded that formal appointm ent as an attorney o f the Department o f Justice is\nnecessary before a m ilitary lawyer may represent the U nited States in a judicial proceeding before a U nited\nStates D istrict Judge o r M agistrate. See M emorandum from Larry L. Simms, Deputy A ssistant A ttorney\nGeneral, O ffice o f Legal Counsel to W illiam Tyson, Acting D irector, Executive Office fo r United States\nAttorneys (Nov. 19, 1979) (1979 O pinion).\n3 A nother general source o f authority to appoint attorneys from other agencies to assist in carrying out the\nD epartm ent's litigating functions is 28 U.S.C. \xc2\xa7 515(b), which authorizes the appointm ent of \xe2\x80\x9cspecial\nassistants to the A ttorney G eneral\xe2\x80\x9d o r \xe2\x80\x9cspecial attorneys.\xe2\x80\x9d A ttorneys \xe2\x80\x9cspecially appointed\xe2\x80\x9d under this\nprovision m ay, when so directed by the Attorney G eneral, \xe2\x80\x9cconduct any kind o f legal proceeding, civil or\nc rim in a l. . . which U nited States A ttorneys are authorized by law to conduct.\xe2\x80\x9d Id. \xc2\xa7 516(a). Special attorneys\nappointed under this authority may not be paid an annual salary o f m ore than $12,000. Id. \xc2\xa7 516(b).\n\n117\n\n\x0cGuidance with respect to this question is provided by the Economy Act, 31\nU.S.C. \xc2\xa7 1535, and the principles of appropriations law on which it rests. The\nEconomy Act provides in pertinent part:\nThe head of an agency or major organizational unit within an\nagency may place an order with a major organizational unit\nwithin the same agency or another agency for goods or services\nif \xe2\x80\x94\n(1) amounts are available;\n(2) the head of the ordering agency or unit decides the order\nis in the best interest of the United States Government;\n(3) the agency or unit to fill the order is able to provide the\nordered goods or services; and\n(4) the head of the agency decides ordered goods or services\ncannot be provided as conveniently or cheaply by a commer\xc2\xad\ncial enterprise.\n31 U.S.C. \xc2\xa7 1535(a). The agency ordering the services, including personnel\nservices, must \xe2\x80\x9cpromptly\xe2\x80\x9d provide reimbursement for their full cost to the\nagency providing them. 31 U.S.C. 1535(c).\nIn a recent, thorough examination of the application of the Economy Act to\nthe detail or assignment of personnel from one federal agency to another, the\nComptroller General clarified the question of reimbursement in connection\nwith formal inter-agency details. 64 Comp. Gen. 370 (1985). After examining\nthe legislative history of the Economy Act, the Comptroller General concluded\nthat, except in limited circumstances, formal inter-agency details may not be\nmade on a non-reimbursable basis. Id. at 380. As discussed in the legislative\nhistory, this conclusion is dictated by two generally applicable principles of\nfederal appropriations law: (1) appropriations to an agency are limited to the\npurposes for which appropriated, 31 U.S.C. \xc2\xa7 1301(a), which ordinarily do not\ninclude the performance of the assigned functions of other federal agencies;\nand (2) in the absence of express statutory authority, an agency may not\naugment its appropriation by using another agency\xe2\x80\x99s personnel to carry out its\nown programs. 64 Comp. Gen. at 377. The exceptions to this rule noted by the\nComptroller General would generally not be applicable to the detail of person\xc2\xad\nnel from our client agencies to perform duties that can only be performed by\nofficers of the Department of Justice.4 We believe that the Comptroller General\xe2\x80\x99s\n4 H ie C o m p tro ller G e n eral's opinion recognized an exception for \xe2\x80\x9ca m atter [that is] sim ilar or related to\nm atters o rd in arily handled by the loaning agency and th at will aid the loaning agency in accom plishing a\npurpose fo r w hich its appropriations are provided.\xe2\x80\x9d 64 C om p. Gen. at 380. We do not think that this exception\napplies to the actual co nduct o f civilian litigation by JA G C lawyers because they do not ordinarily engage in\nthis activity. Obviously, civilian cases that involve the military in some w ay may be said to \xe2\x80\x9crelate! ] to matters\nC ontinued\n\n118\n\n\x0cinterpretation of the Economy Act, although not legally binding on the Execu\xc2\xad\ntive Branch, is correct.\nAlthough the Economy Act may not be formally applicable to the appoint\xc2\xad\nment of attorneys from other agencies under 28 U.S.C. \xc2\xa7 543, the same prin\xc2\xad\nciples of appropriations law discussed above would require reimbursement\nfrom this Department\xe2\x80\x99s appropriations to the detailing agency.\nBeyond the general authority for inter-agency details discussed in the fore\xc2\xad\ngoing paragraphs, we are aware of no more specific authority for the employ\xc2\xad\nment of personnel or funds from the Department of the Army to carry out\nlitigating responsibilities assigned exclusively to this Department. Nor are we\naware of any other generally applicable provision of law that would permit the\nDepartment to draw on the appropriation of another agency to carry out\nlitigation functions that are by law assigned to this Department. Accordingly, if\nthis Department is to use the services of assigned JAGC attorneys in place of its\nown attorneys, it can rely only on the general authority for inter-agency details\nin the Economy Act or on 28 U.S.C. \xc2\xa7 543. In either event, the Department\nmust reimburse the Army for the salaries and other expenses of the detailed\npersonnel from its own appropriation.5\nIII. Authority of the Department of the Army to Use Its\nAppropriation to Assist with Litigation that\nAffects Its Mission and Interests\nAlthough Army funds may not be used to do the work of the Justice\nDepartment, this is not to say that Army funds and personnel may not be used\nto assist the Department in performing its litigating functions. Even if Army\nfunds are not available to conduct litigation independently of this Department,\nthey may be used to provide litigation support services.6 Assuming that Army\nfunds are available to assist in the conduct of particular litigation,7 we know of\n4 (Continued)\nordinarily handled by the [m ilitary],\xe2\x80\x9d but if the exception w ere read this broadly it would sw allow up the rule.\nThe C om ptroller G eneral\xe2\x80\x99s opinion also noted an exception for \xe2\x80\x9cdetails for b rie f periods w hen necessary\nservices cannot be obtained, as a practical m atter, by other means and the numbers o f persons and cost\ninvolved are minimal.\xe2\x80\x9d Id. at 381. This exception does not seem to apply here.\n5 When C ongress enacts specific authority for one agency to assist another, through the detailing of\npersonnel o r otherw ise, it generally also gives guidance on the reim bursem ent question. See , e.g., 10 U .S.C.\n\xc2\xa7 377 (giving the Secretary o f D efense discretion to request reim bursem ent from civilian law enforcem ent\nagencies to which the D epartm ent o f D efense provides assistance under this section); 49 U.S.C. \xc2\xa7 324(c)\n(reim bursem ent for D efense D epartm ent personnel detailed to the D epartm ent o f T ransportation \xe2\x80\x9cas m ay be\nconsidered appropriate by the Secretary\xe2\x80\x9d o f T ransportation and the m ilitary departm ent involved). This\nO ffice has previously analyzed the reim bursem ent provision o f 10 U.S.C. \xc2\xa7 377 at length. \xe2\x80\x9cR eim bursem ent\nfor D efense Department A ssistance to C ivilian Law Enforcem ent A gencies,\xe2\x80\x9d 6 Op. O.L.C. 4 64 (1982).\n6 Despite this D epartm ent\xe2\x80\x99s exclusive grant o f litigating authority, we routinely call upon the attorneys of\nother agencies, especially those \xe2\x80\x9cclien t\xe2\x80\x9d agencies charged w ith adm inistering the laws at issue in a particular\npiece o f litigation, for assistance in w hat is com m only know n as an \xe2\x80\x9cagency counsel\xe2\x80\x9d capacity. See, e.g..\nM em orandum from Larry A. H am m ond, D eputy A ssistant A ttorney G eneral, O ffice of Legal Counsel to\nActing D eputy A ssistant Attorney G eneral, Lands and Natural Resources D ivision (Dec. 18, 1978).\n7 W hether the Department o f the Army has authority to expend its appropriation in connection w ith a\nparticular piece o f civilian litigation depends upon the circum stances. This is a question best addressed in the\nC ontinued\n\n119\n\n\x0cno reason why Army lawyers could not be assigned, on a full- or part-time\nbasis, to provide such support services as may be appropriate and needed under\nthe circumstances. As an opinion of this Office has previously recognized:\nDepending upon the nature of a case, this Department may call\nupon agency attorneys not only to provide factual material but\nalso to draft pleadings, briefs and other papers. At times, in\nconjunction with attorneys of this Department, agency attorneys\ntake part injudicial proceedings.\n\xe2\x80\x9cDepartment of Justice \xe2\x80\x94 Transfer of Funds from Another Agency,\xe2\x80\x9d 2 Op.\nO.L.C. 302, 303 (1978).\nOn the other hand, as discussed above, Army funds may not be used for\nactivities that are reserved by statute to officers of the Department of Justice,\nsuch as the responsibility for conducting litigation. We realize that the line\nbetween conducting litigation and assisting in the conduct of litigation will be\ndifficult to draw precisely, but the general rule that this Office has previously\nendorsed is that support services may be provided without reimbursement so\nlong as this Department retains control over the conduct of litigation. 2 Op.\nO.L.C. at 303. The issue of which litigation expenses must be paid from this\nDepartment\xe2\x80\x99s appropriation and which may be borne by a client agency was\nexamined in greater detail in a Memorandum of June 26, 1986 to the Director\nof Litigation Support, Civil Division, from the General Counsel, Justice Man\xc2\xad\nagement Division. This memorandum notes that \xe2\x80\x9cin the absence of specific\nlegislative guidance, substantial weight must be given the good faith judgments\nand practices of the Civil Division and its client agencies in determining\nwhether specific expenses should be paid by the client agency or the Depart\xc2\xad\nment of Justice.\xe2\x80\x9d\nIV. Posse Comitatus Act\nThe Posse Comitatus Act, 18 U.S.C. \xc2\xa7 1385, may also restrict the use of\nJAGC lawyers by this Department. This Reconstruction Era statute makes it a\ncriminal offense to use \xe2\x80\x9cany part of the Army or Air Force as a posse comitatus\nor otherwise to execute the law.\xe2\x80\x9d The Posse Comitatus Act was intended to\nprevent persons subject to military law and discipline from directing com\xc2\xad\nmands to ordinary citizens.8\nThe Posse Comitatus Act has been interpreted to bar many uses of military\npersonnel to assist in connection with civilian law enforcement activities,\n7 (C ontinued)\nfirst instance by the A rm y\xe2\x80\x99s ow n general counsel. We assum e that the A rm y has authority to expend its funds\non litigation support services in connection w ith cases involving such matters as Army procurement,\nc hallen g es to A rm y regulations or practices, o r dam age claim s against A rm y personnel acting in their official\ncapacity.\n8 S ee 7 C ong. Rec. 3 6 7 8 -8 1 , 4243-47 (1878). See generally Note, The Posse Comitatus Act: Reconstruc\xc2\xad\ntion Era Politics Reconsidered , 13 Am. C rim . L. Rev. 703, 7 0 4 -1 0 (1976); M eeks, Illegal Law Enforcement:\nAiding Civilian Authorities in Violation o f the Posse Comitatus Act, 70 M il. L. Rev. 83, 89-93 (1975).\n\n120\n\n\x0cunless Congress has explicitly authorized such assistance. See, e.g., Memoran\xc2\xad\ndum from Mary Lawton, Deputy Assistant Attorney General, Office of Legal\nCounsel to the General Counsel, Department of Defense (Mar. 24, 1978).\nAssuming that the litigation of civil and criminal cases constitutes the \xe2\x80\x9cexecu\xc2\xad\ntion\xe2\x80\x9d of the law within the meaning of the Act, the legality of the use of JAGC\nlawyers by this Department to assist in carrying out its litigating functions\nwould depend upon several factual questions, including the context in which\nsuch lawyers functioned and the specific activities in which they were engaged.\nIn a 1971 opinion of this Office, then-Assistant Attorney General Rehnquist\ndiscussed the applicability of the Posse Comitatus Act in connection with the\ndeputization of military personnel to serve as security guards on civilian\naircraft. Memorandum from William Rehnquist, Assistant Attorney General,\nOffice of Legal Counsel to the Assistant General Counsel, Department of\nDefense (Sept. 30, 1971). That opinion concluded that the arrangement there at\nissue would not violate the Posse Comitatus Act because \xe2\x80\x9cindividual members\nof the Armed Forces assigned to and subject to the exclusive orders of the\nSecretary of Transportation are not \xe2\x80\x98any part of the Army or Air Force\xe2\x80\x99 within\nthe meaning of the Posse Comitatus Act.\xe2\x80\x9d Under the reasoning of that opinion,\nwe believe that the Posse Comitatus Act would not be implicated if JAGC\nlawyers were detailed on a full-time basis to the Department of Justice and\nfunctioned on a day-to-day basis in an entirely civilian capacity under the\nsupervision of civilian personnel.\nOn the other hand, serious questions under the Posse Comitatus Act might be\nraised if military lawyers functioning under the usual military chain-of-command were assigned on a part-time basis to perform civilian law enforcement\nfunctions along with their regularly assigned military duties.9 In order to\nminimize the risk of contravening this criminal statute pending further exami\xc2\xad\nnation of the question presented, military lawyers who are not functioning in an\nentirely civilian environment should not be used to perform any prosecutorial\nfunction that involves direct contact with civilians in a law enforcement con\xc2\xad\ntext, such as the interrogation of witnesses or a personal appearance in court.\nS a m u e l A . A l it o , J r .\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n9 The Army proposal states that m ilitary law yers assigned on a part-tim e basis to assist in connection with\nJustice D epartm ent litigation w ould be supervised by the U nited States A ttorney and \xe2\x80\x9cw ork side-by-side\xe2\x80\x9d\nw ith an A ssistant U nited States Attorney. H ow ever, it is our understanding that in at least som e cases m ilitary\nlaw yers w ould be based on a m ilitary installation some distance away from the United States A ttorney's\nO ffice and would be w orking day-to-day under the direction and supervision o f the installation\xe2\x80\x99s \xe2\x80\x9ccommand\nc o u n se l/\xe2\x80\x99 U nless close and continuous civilian supervision is m aintained, it is difficult to see how the\nstandards in the 1971 opinion could be met.\n\n121\n\n\x0c"


b'Settlement Authority of the United States\nin Oil Shale Cases\nT h e A tto rn e y G e n e ra l has a u th o rity to se ttle cases ev en w h en th e ag en cy c h a rg e d w ith\nad m in isterin g th e u n d erly in g law w o u ld not h av e th at a u th o rity .\nIn settlin g a case, th e A tto rn e y G e n e ra l is not bou n d by w h a te v e r litigating position the\nD e p a rtm e n t o f Ju stice has h e re to fo re taken in th e case, n o r is he b o und by each and\ne v e ry sta tu to ry req u irem en t th at C o n g ress m ay h av e im posed upon som e o th e r agency\nhead in ad m in isterin g th at a g e n c y \xe2\x80\x99s p ro g ram ; at th e sam e tim e, th e re m ay be som e\nfo rm s o f settlem en t th at w o u ld be fo reclo sed , as w h e re the settlem en t w o u ld result in\nactio n p lainly at v aria n c e w ith C o n g re ss\' intent.\n\nSeptember 4, 1980\nM EM ORANDUM OPINION FOR\nTH E DEPUTY ASSISTANT ATTORNEY GENERAL,\nLA ND A N D NATURAL RESOURCES DIVISION\nThis is in response to your memorandum inquiring whether \xe2\x80\x9cthe\nUnited States has authority to settle the outstanding oil shale litigation.\xe2\x80\x9d\nFor the reasons set forth below, our reply is that the Attorney General,\nrepresenting the United States, has such authority, but that his exercise\nof it must be done with close attention to the specific statutes govern\xc2\xad\ning the activities that form the subject matter of the litigation.\nAs the ranking legal official of the federal government, the Attorney\nGeneral has plenary power and supervision over any litigation to which\nthe United States is a party, absent an applicable congressional directive\nto the contrary. United States v. California, 332 U.S. 19, 27 (1947); FTC\nv. Guignon, 390 F.2d 323, 324 (8th Cir. 1968), relying on 28 U.S.C.\n\xc2\xa7\xc2\xa7516 and 519, which respectively reserve the conduct of federal\nlitigation to the Justice Department under the direction of the Attorney\nGeneral, and the supervision of all such litigation to the Attorney\nGeneral.\nIncluded within the broad authority of the Attorney General to carry\non litigation is the power to compromise.1 Halbach v. Markham, 106 F.\nSupp. 475 (D. N.J. 1952), affd, 207 F.2d 503 (3d Cir. 1953), cert,\ndenied, 347 U.S. 933 (1954). \xe2\x80\x9cThis power is in part inherent, appertain\xc2\xad\ning to the Office, and in part derived from various statutes and deci\xc2\xad\nsions . . . .\xe2\x80\x9d 38 Op. A tt\xe2\x80\x99y Gen. 98, 99 (1934). This formal Attorney\n1 T h e w ords \xe2\x80\x9ccom prom ise\xe2\x80\x9d and \xe2\x80\x9csettlement** will be used interchangeably in this memorandum.\n\n756\n\n\x0cGeneral opinion cites numerous supporting opinions of the Attorney\nGeneral and judicial precedents going back more than a century. See\nalso United States v. Newport News Shipbuilding and Dry Dock Co., 571\nF.2d 1283, 1287 (4th Cir. 1978), cert, denied, 439 U.S. 875 (1978); Castell\nv. United States, 98 F.2d 891 (2d Cir. 1938), cert, denied, 305 U.S. 652\n(1938); 38 Op. A tt\xe2\x80\x99y Gen. 124 (1934); and for bedrock authorities see\nthe Confiscation Cases, 74 U.S. 454, 458 (1868), and United States v. San\nJacinto Tin Co., 125 U.S. 273, 284 (1888).\nThe 1934 Attorney General\xe2\x80\x99s opinion contains an expansive descrip\xc2\xad\ntion of the Department\xe2\x80\x99s authority to compromise cases. The opinion\nconcludes that the Attorney General possesses authority to settle cases\neven when the agency charged with administering the underlying law\nwould not have that authority. Indeed, the opinion was written as an\nelaboration upon an earlier formal opinion in which the Attorney Gen\xc2\xad\neral had held that the Secretary of the Treasury did not possess discre\xc2\xad\ntion to compromise income tax cases in the absence of bona fide\ndisputed questions of facts. 38 Op. A tt\xe2\x80\x99y Gen. 94 (1933). The subse\xc2\xad\nquent opinion was written to emphasize that when such cases are\nbrought to the Department of Justice for litigation, the Attorney Gen\xc2\xad\neral could exercise that very power which was not available to the\nSecretary of the Treasury. The scope of the settlement prerogative in\nthe Attorney General is broadly described:\nI have no hesitation in declaring that it is a power\nwhether attaching to the office or conferred by statute or\nexecutive order, to be exercised with wise discretion and\nresorted to only to promote the Government\xe2\x80\x99s best inter\xc2\xad\nest or to prevent flagrant injustice, but that it is broad and\nplenary may be asserted with equal assurance, and it at\xc2\xad\ntaches, of course, immediately upon the receipt of a case\nin the Department of Justice. . . .\n38 Op. A tt\xe2\x80\x99y Gen. at 102.\nSubsequent to our receipt of your request, and after we had prepared\nan initial response, you advised me that it now appears unlikely that a\nsettlement along the lines of your memorandum will prove possible.\nGiven that change of circumstances, it is probably unnecessary to\nexplore the limits on the Department\xe2\x80\x99s settlement prerogative. Instead,\nwe offer the following general guideposts. First, as stated above, the\nAttorney General\xe2\x80\x99s power is quite- broad and is of long-standing vin\xc2\xad\ntage. It is at least sufficiently broad to allow this Department to formu\xc2\xad\nlate a settlement proposal that differs from whatever litigating posture\nwe have heretofore taken. Second, where genuine questions of fact\nremain (as, for instance, whether adequate assessment work was per\xc2\xad\nformed) the Attorney General can exercise his settlement authority\nwith respect to those questions. On the other hand, it should go with\xc2\xad\nout saying that the Attorney General is bound by the duty imposed on\n757\n\n\x0cthe President under Article II of the Constitution to \xe2\x80\x9ctake care that the\nlaws be faithfully executed,\xe2\x80\x9d and that consequently there may be some\nforms of settlement that would be foreclosed, as where the settlement\nwould result in action plainly at variance with Congress\xe2\x80\x99 intent.\nThis latter point suggests a subtle issue. On the one hand, it is\nreasonably clear that the Attorney General\xe2\x80\x94in the exercise of his\nsettlement responsibilities\xe2\x80\x94is not bound by each and every statutory\nlimitation and procedural requirement that Congress may have specifi\xc2\xad\ncally imposed upon some other agency head in the administration of\nthat agency\xe2\x80\x99s programs. For this reason, the two cases cited in your\nmemorandum\xe2\x80\x94 West v. Standard Oil Co., 278 U.S. 200 (1929),2 and\nCameron v. United States, 252 U.S. 450 (1920)\xe2\x80\x94 are not controlling.\nThose cases deal with congressional requirements imposed on officials\nother than the Attorney General, and should not be thought to be\ndirectly applicable to him for the performance of his litigation function.\nOn the other hand, Congress\xe2\x80\x99 will is surely not irrelevant to the A ttor\xc2\xad\nney General\xe2\x80\x99s discretion. With your approval, we agree that it is sensi\xc2\xad\nble to defer a more detailed consideration of the scope of, and limita\xc2\xad\ntions upon, the Attorney General\xe2\x80\x99s power until a precise proposal is\ndeveloped.\nL arry A. H am m ond\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n2 Because the question you have asked relates d irectly to the authority o f the governm ent to\nrelinquish title to land held by the U nited States,\xc2\xbbcases like the Standard Oil case do highlight the\ntension w e perceive in this area o f the law. T h e Suprem e C ourt, after citing well-settled authority for\nthe proposition that the Secretary o f the Interior has broad authority \xe2\x80\x9c to do justice to ail claim ants\nand preserve the rights o f the people o f the U nited States" w ith respect to property, was nonetheless\nquick to conclude that this:\nbroad p o w er o f control and supervision conferred upon the Secretary \xe2\x80\x9cdoes not\nclo th e him w ith any discretion to enlarge o r curtail the rights o f the grantee, nor to\nsubstitute his jud g m en t for the will o f C ongress as manifested in the granting act."\n278 U.S. at 220. If the S ecretary\'s au th o rity is so limited, it is reasonable to question w hether the\nA tto rn ey G en eral\'s general litigation supervisory pow ers w ould give him a g reater discretion. As\nnoted above, if there is a g reater am bit o f discretion, it must be located in C ongress\' actions in creating\na centralized litigating departm ent and clothing it w ith overriding authority to settle particular cases.\n\n758\n\n\x0c'


b"May 9, 1978\n\n78-23\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL, LAND\nAND NATURAL RESOURCES DIVISION\nEminent Domain\xe2\x80\x94 Leaseholds\xe2\x80\x94 Rentals\xe2\x80\x94\nEconomy Act Limitation (40 U.S.C.\xc2\xa7 278(a))\n\nThis responds to your request for our opinion on whether the United States is\nauthorized to acquire leasehold interests in real property by proceedings under\nthe Declaration of Taking Act, 40 U .S.C . \xc2\xa7 258(a), where the estimated fair,\nannual rent exceeds the limitation provided by \xc2\xa7 322 of the Economy Act, 40\nU .S.C . \xc2\xa7 278(a). The General Services A dm inistration (GSA) has requested the\nadvance opinion of the Com ptroller General on this question in connection with\na proposed taking.\nSection 322 of the Economy Act, 40 U .S .C . \xc2\xa7 278(a), provides in pertinent\npart:\nAfter June 30, 1932, no appropriation shall be obligated or ex\xc2\xad\npended for the rent o f any building or part o f a building to be\noccupied for Governm ent purposes at a rental in excess of the per\nannum rate of 15 per centum o f the fair market value o f the rented\npremises at date o f the lease under which the premises are to be\noccupied by the Government . . . .\nGSA states that its estimate o f the fair rental value o f the space to be leased is\ngreater than 15 percent o f its fair market value. Plainly, GSA could not enter\ninto a voluntary lease. The question, then, is whether there is a permissible\nalternative route bypassing the 15 percent limitation. We think not.\nUnder the Declaration o f Taking Act, the Government files a declaration of\ntaking which includes an estimate o f the fair value o f the property involved, and\nit deposits that sum in court. It acquires title when the declaration is filed, and is\nirrevocably committed to pay judicially fixed just compensation. See 40\nU .S.C . \xc2\xa7 258(a).1 As you know, the Federal courts consistently have held that\nthe measure of just compensation for taking a leasehold interest is its fair rental\n\n'See also 74 Cong. Rec. 779 (1931).\n\n96\n\n\x0cvalue. See, e.g ., Kimball Laundry Co. v. United States, 338 U .S. 1, 7 (1949);\nJohn Hancock M utual Life Ins. Co. v. United States, 155 F. (2d) 977, 978 (1st\nCir. 1946); United States v. 883.89 Acres o f Land, E tc., Sebastian Co., A rk.,\n314 F. Supp. 238 (W .D . Ark. 1970), a f f d , 442 F. (2d) 262 (1971). To file a\ndeclaration of taking for a leasehold with fair rental value of more than 15\npercent of the market value of the premises would thus, in effect, obligate the\nUnited States to pay rent at that level.\nSection 3 of the Declaration o f Taking Act, 40 U .S.C . \xc2\xa7 258(c), provides:\nAction under section 1 of this Act [40 U .S.C . \xc2\xa7 258(a)] irrevocably\ncommitting the United States to the payment of the ultimate award\nshall not be taken unless the chief o f the executive department or\nagency or bureau o f the Government empowered to acquire the land\nshall be o f the opinion that the ultimate award probably will be within\nany limits prescribed by Congress on the price to be paid.\nIn addition to its plain language, the legislative history of the section\nconclusively demonstrates that its purpose is to prohibit an agency from using\n\xc2\xa7 258(a) to obligate funds in excess o f any statutory limit. The Act originated\nfrom a condemnation statute for the District o f Columbia which lacked such a\nprovision. The Department o f Justice proposed \xc2\xa7 258(c) after experience with\nthe local statute showed that condemnation proceedings initiated at the request\nof agencies could bypass statutory limits on expenditures. See H. Rept. 2086,\n71st Cong., 3d sess., at 2. During the debate Representative LaGuardia ex\xc2\xad\nplained the section\xe2\x80\x99s purpose as follows:\n1 think section 3, which the gentleman has some misgivings about, is\nfor the very purpose o f preventing abuses and undue expenditures,\nwhich the gentleman seeks to avoid. It states that before you can avail\nyourself o f the benefit o f this law, a responsible agency head must\ncertify that the land in question will not cost, even in condemnation,\nbeyond the amount authorized by C ongress.2 [Emphasis added.]\nIn short, 40 U .S.C . \xc2\xa7 258(c) forbids an agency to initiate proceedings under 40\nU.S.C. \xc2\xa7 258(a) when it knows or believes that the result will be to require\npayment of more than Congress has authorized.\nGSA relies primarily upon a statement in 22 Comp. Gen. 1112, 1114-15\n(1942), that \xc2\xa7 322 of the Economy Act does not, and cannot, limit an ow ner\xe2\x80\x99s\nconstitutional right to receive just compensation for property taken by the\nGovernment. From this, it concludes that any leasehold may be acquired under\nthe Declaration of Taking Act without regard to the limitation provided by\n\xc2\xa7 322. However, this reading of the Com ptroller G eneral\xe2\x80\x99s decision is overly\nbroad.\nThe proceeding discussed in that decision was brought under \xc2\xa7 201 of Title\nII, Second W ar Powers Act, 56 Stat. 177. Under that section, after the\nGovernment filed the condemnation petition, \xe2\x80\x9c immediate possession may be\ntaken and the property may be occupied, used, and improved for the purposes\n274 Cong. Rec. 778 (1931).\n\n97\n\n\x0cof this Act, notwithstanding any other law .\xe2\x80\x9d This language, said the Comptrol\xc2\xad\nler General, \xe2\x80\x98\xe2\x80\x98negatives the idea that it was intended to be subject to the\nrestrictions of \xc2\xa7 322 o f the Economy A c t.\xe2\x80\x9d 22 Comp. Gen. 1112, 1115. Thus,\nthe Comptroller General held that Congress did not intend that \xc2\xa7 322 limit the\namount of compensation for a condemned leasehold.\nIn contrast, 40 U .S.C . \xc2\xa7 258(c) does, in our opinion, incorporate \xc2\xa7 322 of the\nEconomy Act. It does so, however, not as a limit on the compensation received\nby the owner, but as a restriction on the G overnm ent\xe2\x80\x99s authority to take the\nproperty in the first instance. Once a declaration o f taking has been filed, 40\nU .S.C . \xc2\xa7 258(a) com mits the Government to pay whatever sum the court finds\nto be just com pensation. Furtherm ore, the legislative history of the Declaration\nof Taking Act shows that Congress understood that a property ow ner\xe2\x80\x99s constitu\xc2\xad\ntional right to just com pensation was not limited by the statute.3 On the other\nhand, Congress also intended to protect its own constitutional power to control\nthe expenditure of appropriated funds. It reconciled the two by forbidding the\nGovernment to incur liability for just compensation when it appeared that\nstatutory limits on expenditure would be exceeded. Since 40 U .S.C . \xc2\xa7 258(c)\nlimits authority to take, and not the amount o f compensation paid after taking,\nit is not inconsistent with the portion o f the Comptroller G eneral\xe2\x80\x99s decision on\nwhich GSA relies.\nTo summ arize, it is our opinion that 40 U .S.C . \xc2\xa7 258(c) incorporates the\nrestriction on the payment o f rent contained in \xc2\xa7 322 of the Economy Act and\nprohibits the Governm ent from filing a declaration of taking when it knows that\njust compensation would exceed that limit. While the Comptroller General\xe2\x80\x99s\ndecision limits the effect o f \xc2\xa7 322 on the G overnm ent\xe2\x80\x99s duty to pay just\ncom pensation, it does not purport to affect the power of Congress to prevent the\nGovernment from incurring that obligation in the first instance.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n'74 Cong. Rec. 779(1931).\n\n98\n\n\x0c"


b'Authority of the FBI to Conduct Background\nInvestigations for Congress\nThe FBI has statutory authority to conduct background investigations of congressional\nemployees who will have access to classified information or who the Attorney General\nidentifies as having a connection to a matter within the control of the Justice or State\nDepartments for which such an investigation is required.\n\nJune 5, 1989\n\nM em o ra nd um O pin io n\n\nfor th e\n\nA tto rn ey G en eral\n\nYou have asked us to review a series of requests forwarded to you by\nthe Director of the Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) regarding the\nFBI\xe2\x80\x99s authority to conduct background investigations of congressional\nemployees. For the reasons stated below, we conclude that the FBI has\nthe legal authority to conduct investigations of congressional employees\nwho will have access to classified information or with respect to whom\nyou have identified a connection with official matters under the control\nof this Department or the Department of State. The FBI has no statutory\nauthority to conduct background investigations of congressional employ\xc2\xad\nees that do not meet these criteria. If you believe that the FBI\xe2\x80\x99s role in this\narea should be expanded, the best course would be to seek legislation\nauthorizing the FBI to conduct background investigations of all congres\xc2\xad\nsional employees and providing for reimbursement of all costs.\nI. Background\nHistorically, the FBI has conducted background investigations of staff\nmembers of certain congressional committees pursuant to memoranda of\nunderstanding (\xe2\x80\x9cMOUs\xe2\x80\x9d) between this Department and Congress, where\nthose staff members will have access to classified Department of Justice\nor Department of State material.1 The FBI recently received a request\nfrom the Office of Senate Security (\xe2\x80\x9cOSS\xe2\x80\x9d) to expand its role in perform\xc2\xad\ning background investigations (i) to congressional employees who will\nhave access to classified information, but who are not covered by previ\xc2\xad\nous MOUs, and (ii) potentially to all other congressional employees,\n1 Other agencies, including the Defense Investigative Service of the Department of Defense, also con\xc2\xad\nduct background investigations for Congress.\n\n127\n\n\x0cregardless of whether they will have access to classified information. In\nconnection with the OSS request, Senators Dole and Mitchell also asked\nthe FBI to perform expedited investigations necessary to process securi\xc2\xad\nty clearances for ten to twelve Senate employees who will have access to\nclassified information. The FBI has forwarded these requests to you for\nyour advice and approval. You also have received memoranda from\nAssistant Attorney General Flickinger of the Justice Management Division\nand Assistant Attorney General Boyd of the Office of Legislative Affairs\nexpressing policy concerns with the OSS requests.2 You have asked this\nOffice whether the FBI has the legal authority to perform any or all of\nthese investigations. With respect to the policy issues involved, we defer\nto the views of the Justice Management Division and the Office of Legis\xc2\xad\nlative Affairs.\nII. Analysis\nA. The Scope of the FBI\xe2\x80\x99s Authority\n\nThe Attorney General has statutory authority to \xe2\x80\x9cappoint officials ... to\nconduct such ... investigations regarding official matters under the con\xc2\xad\ntrol of the Department of Justice and the Department of State as may be\ndirected by the Attorney General.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 533(3).3 Regulations pro\xc2\xad\nmulgated pursuant to this statute provide that the FBI shall \xe2\x80\x9c[c]onduct\npersonnel investigations requisite to the work of the Department of\nJustice and whenever required by statute or otherwise.\xe2\x80\x9d 28 C.F.R. \xc2\xa7\n0.85(c). Although neither the statute nor the regulations specifically\naddress the FBI\xe2\x80\x99s authority to conduct background investigations for\nCongress, this Office previously has concluded that 28 U.S.C. \xc2\xa7 533(3)\nauthorizes the FBI to perform background investigations for certain com\xc2\xad\nmittee staff members who will have access to classified information.4\nOur analysis is simple. The FBI may conduct any investigations, includ\xc2\xad\n2 On April 24, 1989, we received the following documents for review: ( 1) the letter from Senators Dole\nand Mitchell; ( 11) a memorandum from Director Sessions to you explaining why your approval is needed\nbefore the FBI may conduct those investigations and indicating that the request of Senators Dole and\nMitchell would serve as a test project to allow the FBI to demonstrate its ability to conduct such inves\xc2\xad\ntigations on an expanded basis for all Senate employees for whom security clearances are sought, ( 111) a\nmemorandum from Assistant Attorney General Flickinger, Justice Management Division, expressing pol\xc2\xad\nicy concerns with the requests, and (iv) a memorandum from Assistant Attorney General Boyd, Office of\nLegislative Affairs, concurring in some of Mr. Flickinger\xe2\x80\x99s concerns.\n3 We have interpreted 28 U.S C \xc2\xa7 533(3) to require that either this Department or the Department of\nState have an official interest in a m atter before an investigation may be authorized. See, e.g.,\nMemorandum for the Attorney General, from Larry L. Simms, Deputy Assistant Attorney General, Office\nof Legal Counsel at 6 n 4 (June 8,1983)\n4See Memorandum for Patncia W Wald, Assistant Attorney General, Office of Legislative Affairs, from\nJohn M. Hannon, Assistant Attorney General, Office of Legal Counsel, Re- FBI Background Checks for\nCongressional Committees (May 4, 1978) (the \xe2\x80\x9c1978 Memorandum\xe2\x80\x9d), Memorandum for Frederick D\nBaron, Special Assistant to the Attorney General, from John Harmon, Acting Assistant Attorney General,\nOffice of Legal Counsel, Re. FBI Background Checks for Congressional Committees (Feb 22, 1977).\n\n128\n\n\x0cing background investigations, concerning \xe2\x80\x9cofficial matters under the\ncontrol of the Department.\xe2\x80\x9d 28 U.S.C. \xc2\xa7 533(3). Executive Order No.\n12356 directs all executive officials to ensure that classified information\nis not disseminated outside the executive branch except to persons\nwhose trustworthiness has been determined and under conditions that\nguarantee that the information will be protected. Exec. Order No. 12356,\n\xc2\xa7 4.1, 3 C.F.R. 166 (1983). Thus, if a background investigation is necessary\nto establish the trustworthiness of a congressional employee who will\nhave access to classified information, the Attorney General\xe2\x80\x99s responsibil\xc2\xad\nity under the Executive Order makes such an investigation an \xe2\x80\x9cofficial\nmatter under the control of the Department.\xe2\x80\x9d Pursuant to this analysis,\nthe Attorney General over the last decade has entered into MOUs with\ncertain congressional committee chairmen authorizing the FBI to con\xc2\xad\nduct background investigations of staff members who will have access to\nclassified material. Based on previous advice from this office,5 however,\nthe FBI rarely has performed investigations of congressional employees\nwho were not on those committee staffs.\nWe see no reason why you should not authorize the FBI to conduct\nbackground investigations of the employees designated by Senators Dole\nand Mitchell and other congressional employees who will have access to\nclassified information. The broad language of section 533(3) makes the\navailability of classified information to all such employees a \xe2\x80\x9cmatter[]\nunder the control of the Department\xe2\x80\x9d because their trustworthiness must\nbe ascertained pursuant to the Executive Order.\nWe are unaware, however, of any statutory authority supporting the\nbroader request that the FBI conduct background investigations of all\ncongressional employees. Employees who will have no access to classi\xc2\xad\nfied information lack the nexus to a matter within the control of this\nDepartment such as that identified in Executive Order No. 12356. If you\nwere to identify some other matter within the control of this Department\nor the Department of State that involved some or all of those employees,\nyou would be authorized in our view by section 533(3) to direct the FBI\nto investigate them. Absent a decision by you that such a matter is\ninvolved, however, we believe the FBI would have no authority to per\xc2\xad\nform the investigation.\nB. Reimbursement\nWe also have been asked to address whether Congress should reim\xc2\xad\nburse the FBI for the costs of performing additional background investi\xc2\xad\ngations. To the extent that this presents a policy issue, we defer to the\nviews of the Justice Management Division and the Office of Legislative\nAffairs. It can be argued that the FBI should bear the cost of investigations\nbSee\n\n1978 Memorandum at 3\n\n129\n\n\x0cauthorized by section 533(3) and Executive Order No. 12356 because the\ninvestigations are performed as part of the official business of this\nDepartment and to satisfy your duty under the Executive Order to deter\xc2\xad\nmine the trustworthiness of persons to whom classified information will\nbe released. Nevertheless, Congress undoubtedly will benefit from the\nFBI\xe2\x80\x99s work. It initiated the request for additional assistance, and expand\xc2\xad\ning the FBI\xe2\x80\x99s responsibility beyond the few committee staffs for whom the\nFBI traditionally has provided the service no doubt will tax the FBI\xe2\x80\x99s\nresources. Under these circumstances, equity would suggest that\nCongress should at least share the costs, if not fully shoulder them, and we\nperceive no legal reason why the costs may not be reimbursed. Of course,\nif you decide to seek to expand the FBI\xe2\x80\x99s authority to include congres\xc2\xad\nsional employees who are not covered by section 533(3), legislation autho\xc2\xad\nrizing that work should provide for reimbursement of all costs, as well.\nIII. Conclusion\nThe FBI has the legal authority to conduct background investigations\nof congressional employees to the extent that (i) such employees will\nhave access to classified information or (ii) you have identified a matter\nwithin the control of this Department or the Department of State that\nrequires that such investigations be done. Expanding the FBI\xe2\x80\x99s authority\nbeyond these circumstances will require legislation authorizing the FBI\nto conduct background investigations of any congressional employee.\nSuch legislation also should provide for Congress to reimburse the FBI\nfor the costs of these investigations.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice of Legal Counsel\n\n130\n\n\x0c'