b'Presidential Authority to Extend Deadline for Submission of an\nEmergency Board Report Under the Railway Labor Act\nT h e P re s id e n t m a y re q u ire an E m e rg e n c y B o a rd u n d e r th e R a ilw a y L a b o r A c t to s u b m it its\nr e p o rt b e fo re th e sta tu to ry d e a d lin e , b u t h e m a y n o t e x te n d th a t th irty -d a y d e a d lin e u n le s s th e\np a rtie s in v o lv e d h av e e n te re d in to a s id e a g re e m e n t e x te n d in g th e sta tu s q u o p e rio d d u rin g\nw h ic h th e y re fra in fro m self-h e lp .\n\nT h e re is s u b sta n tia l d o u b t as to w h e th e r a c o u rt w o u ld c o n c lu d e th a t s u c h a s id e a g re e m e n t\nb e tw e e n th e p a rtie s n o t to re s o rt to se lf-h e lp is e q u ita b ly e n fo rc e a b le u n d e r th e N o rris L a G u a rd ia A c t.\n\nT h e P re s id e n t d o e s n o t h a v e th e a u th o rity to im p o s e a s ec o n d s ta tu s q u o p e rio d b y c o n v e n in g a\ns e c o n d E m e rg e n c y B o a rd o r re c o n v e n in g th e o rig in a l B o ard .\n\nMarch 13, 1990\nM e m o r a n d u m O p in io n f o r\nth e\n\nA s s o c ia t e C o u n s e l t o t h e P r e s id e n t\n\nThis memorandum responds to your request for our views as to the extent\nof the President\xe2\x80\x99s power to alter the length of the thirty-day time period\nwithin which an Emergency Board appointed under section 10 of the Rail\xc2\xad\nway Labor Act (\xe2\x80\x9cRLA\xe2\x80\x9d), 45 U.S.C. \xc2\xa7 160, must submit its report to the\nPresident. As explained more fully below, we conclude that, because the\nfiling of the report has specific legal consequences, the President does not\nhave the authority to unilaterally extend the statutory deadline. He may,\nhowever, shorten the time for filing a report. We also conclude that the\nPresident may grant an extension in situations where the parties involved\nhave agreed to extend the period during which they will refrain from selfhelp. Given the lack of case authority, however, it is difficult to determine\nwhether a court would equitably enforce such an agreement. In our view,\nthere is no more than an even chance that a court would conclude that such\nagreements are equitably enforceable despite the Norris-LaGuardia Act, and\nthere remains a substantial litigation risk that a court would reach a contrary\nconclusion. Finally, we conclude that the President does not have the authority\n\n57\n\n\x0cto impose a new status quo period creating a second Emergency Board.\n\nL lackgrounnidl\nWe understand that under National Mediation Board (\xe2\x80\x9cNMB\xe2\x80\x9d) auspices,\nthe National Railway Labor Conference and seven of the affected railway\nlabor organizations (collectively \xe2\x80\x9cthe parties\xe2\x80\x9d)1 have agreed to an extended\ntwo-phase Emergency Board procedure for addressing all of the unresolved\nissues in the current round of national bargaining. Under the contemplated\nprocedure, the National Mediation Board would proffer arbitration to the\nparties on all of the outstanding issues, and the parties would decline the\nproffer, thus triggering a thirty-day \xe2\x80\x9ccooling-off\xe2\x80\x99 period. See 45 U.S.C. \xc2\xa7\n155 First.\nThe NMB would then promptly recommend that the President appoint an\nEmergency Board under section 10 of the RLA, 45 U.S.C.\xc2\xa7 160. Although\nthe Emergency Board would be established to address all issues involved in\nthe collective bargaining dispute, it would produce two separate reports,\nwith the first addressing the health and welfare issues and the final report\naddressing the wages and rules issues. As soon as the health and welfare\nreport was issued, the NMB would, at the request of the parties, engage in\nfurther intensive emergency mediation on the wages and rules issues. In\norder to allow the Emergency Board sufficient time to prepare its reports,\nthe parties have agreed to an extension of the deadline for submission of the\nEmergency Board\xe2\x80\x99s final report to the President. Specifically, the parties\nhave requested that all reports and recommendations o f the Emergency Board\nbe issued by September 15, 1990, and the parties have agreed to any reason\xc2\xad\nable request for an extension of time of the Emergency Board to allow\nample time for hearings, mediation and formulation of recommendations.\nThe parties have also agreed not to resort to self-help until after the expira\xc2\xad\ntion o f the thirty-day RLA statutory \xe2\x80\x98cooling-off\xe2\x80\x99 period following the report\nby the Emergency Board on the Wage and Rules issues, and then only if\nCongress is in session.\nWe understand that this proposal is only one of several under consider\xc2\xad\nation. Accordingly, this memorandum discusses general principles concerning\nthe limits on altering the RLA procedures, rather than analyzing the particu\xc2\xad\nlars o f any specific proposal.\n\nEL Discussions\nSection 10 o f the Railway Labor Act provides that, once created, an Emer\xc2\xad\n\n\' W e a re in fo rm e d b y the N M B that th e re are o th e r la b o r o rg anizations that have yet to agree to this\np ro c e d u re .\n\n58\n\n\x0cgency Board \xe2\x80\x9cshall investigate promptly the facts as to the dispute and make\na report thereon to the President within thirty days from the date of its\ncreation.\xe2\x80\x9d 45 U.S.C. \xc2\xa7 160. Section 10 further provides that \xe2\x80\x9c [a]fter the\ncreation of such board and for thirty days after such board has made its\nreport to the President, no change, except by agreement, shall be made by\nthe parties to the controversy in the conditions out of which the dispute\narose.\xe2\x80\x9d Id. Thus, on its face the statute appears to contemplate a status quo\nperiod of no more than sixty days after creation of an Emergency Board.\nA. President\xe2\x80\x99s pow er to alter deadline fo r submitting report\n\n1. President may not unilaterally extend deadline\nWe believe that the President may not unilaterally extend the deadline for\nsubmission of the Emergency Board report. First, the language of the stat\xc2\xad\nute does not provide for any extension in the thirty-day time period within\nwhich the Emergency Board must submit its report. Moreover, the legisla\xc2\xad\ntive history indicates a fairly clear intent not to permit extensions of the\nreporting deadline and the subsequent start of the thirty-day cooling-off pe\xc2\xad\nriod. Indeed, Congress, in enacting the RLA, specifically rejected an\namendment that would have authorized unilateral presidential extensions of\nthe reporting deadline.\nIn the House hearings on the bill, Congressman Burtness questioned rep\xc2\xad\nresentatives of both labor and management about the adequacy of the\nthirty-day time period. Mr. Richberg, the counsel for the organized railway\nemployees, stated that thirty days would be adequate, that the Emergency\nBoard provision had been the subject of very difficult negotiation, and that\nbecause of the status quo provision, the parties did not want an Emergency\nBoard that would \xe2\x80\x9coperate indefinitely after a controversy has gone to this\nstage.\xe2\x80\x9d Railroad Labor Disputes: Hearings on H.R. 7180 Before the House\nComm, on Interstate and Foreign Commerce, 69th Cong., 1st Sess. 100 (1926)\n(\xe2\x80\x9cHouse Hearings").2 Mr. Thom, the General Counsel of the Association of\nRailway Executives, testified to the same effect, explaining that the thirtyday period was the result of a compromise between labor and management,\nthat this was a significant concession, and that the parties involved did not\nwant \xe2\x80\x9canything but a prompt method of dealing with the situation in the case\nof an emergency board.\xe2\x80\x9d Id. at 128.\nApparently not satisfied with these responses, Congressman Burtness of\xc2\xad\nfered an amendment on the floor of the House that would have provided that\n\xe2\x80\x9cthe President may in his discretion extend such time in which the report is\n2 T h e Su p rem e C ourt has repeatedly noted that, because the R LA w as frankly a ck n o w led g ed to be \xe2\x80\x9c an\na g re em en t w o rk ed out betw een m anagem ent and labor, and ratified by the C o n g ress and the P resid e n t,"\nthe \xe2\x80\x9c statem en ts o f the spokesm en fo r th e tw o parties m ade in the h earings on the proposed A ct are\ne n title d to great w eight in th e construction o f the A ct.\xe2\x80\x9d Chicago & N.W. Ry. v. United Transp. Union,\n40 2 U S 5 7 0 ,5 7 6 (1971).\n\n59\n\n\x0cto be made an additional period of not to exceed thirty days.\xe2\x80\x9d Staff of\nSubcomm. on Labor, Senate Comm, on Labor and Pub. Welfare, 93d Cong.,\n2d Sess., Legislative History o f the Railway Labor Act, As Amended 453\n(Com m . Print 1974) (reprinting congressional debates). Congressman\nBurtness argued that thirty days would often not be sufficient time and that\nthere would be no danger in allowing the President to have this discretion to\nextend the deadlines. Id. The amendment was rejected with little debate. Id.\nWe recognize that it might be argued that an extension is permissible\nbecause the thirty-day period is meant merely to be directory rather than\nmandatory. Cf. United States v. Air Florida, Inc., 534 F. Supp. 17, 20 (S.D.\nFla. 1982) (thirty-day time period in which NMB, under section 2 Ninth of\nthe RLA, must certify conclusions of representational dispute, was \xe2\x80\x9cdirec\xc2\xad\ntory rather than mandatory;\xe2\x80\x9d accordingly, failure of NMB to meet deadline\ndid not invalidate its investigation and subpoena request); see also System\nF ed \xe2\x80\x99n No. 40, Ry. Employees D e p \xe2\x80\x99t v. Virginian Ry., 11 F. Supp. 621, 627\n(E.D. Va. 1935), a ff\xe2\x80\x99d , 84 F.2d 641 (4th Cir. 1936), aff\'d, 300 U.S. 515\n(1937). In light o f the legislative history of the provision, however, it would\nbe difficult to conclude that the thirty-day statutory deadline was merely\nm eant to be directory, rather than mandatory. Indeed, were the deadline\nread to be merely directory, the President could unilaterally extend the re\xc2\xad\nporting date, thus effectively extending the status quo period. An Emergency\nBoard would be able to achieve the same result simply by delaying the\nsubmission o f its report. Either of these conclusions would directly contra\xc2\xad\ndict the intent of the RLA drafters as expressed in the legislative history.\nO ur conclusion is not altered by the general rule of construction that a\n\xe2\x80\x9cstatutory time period is not mandatory unless it both expressly requires an\nagency or public official to act within a particular time period and specifies\na consequence for failure to comply with the provision.\xe2\x80\x9d Thomas v. Barry,\n729 F.2d 1469, 1470 n.5 (D.C. Cir. 1984) (quoting Fort Worth N a t\xe2\x80\x99l Corp. v.\nFSLIC, 469 F.2d 47, 58 (5th Cir. 1972)); see also St. Regis Mohawk Tribe v.\nBrock, 769 F.2d 37, 41 (2d Cir. 1985) (collecting cases), cert, denied, 476\nU.S. 1140 (1986); Usery v. Whitin Machine Works, Inc., 554 F.2d 498, 501\n(1st Cir. 1977). The statutory time table at issue defines a narrow exception\nto the parties\xe2\x80\x99 rights to use self-help. .General rules of construction cannot\nbe used to defeat these specific restrictions and create a unilateral, discre\xc2\xad\ntionary ability to derogate from these rights. Furthermore, we question\nwhether this general rule of construction could be applied to contradict \xe2\x80\x9cclear\nindications of congressional intent that the limitations are to be strictly en\xc2\xad\nforced.\xe2\x80\x9d U sery, 554 F.2d at 501.\nIn any event courts would likely hold that application of this rule indi\xc2\xad\ncates that the deadline in section 10 is mandatory. Section 10 expressly\nrequires the Emergency Board to submit its report \xe2\x80\x9cwithin thirty days from\nthe date of its creation.\xe2\x80\x9d 45 U.S.C. \xc2\xa7 160. Moreover, although on its face\nthe RLA does not specify the consequences of the late filing of an Emer\xc2\xad\ngency Board report, it seems clear from the above discussion of the legislative\n\n60\n\n\x0chistory that the RLA effectively penalizes late reports by failing to toll the\nstart of the statutory cooling-off period, thus refusing to extend the status\nquo period beyond sixty days.\nFinally, as discussed more fully below, we believe that courts would likely\ngive significant weight to any construction of the Act that was supported by\nlong-established administrative practice. In this regard, we are not aware o f\nany instance in the sixty-four years of practice under the RLA where the\nPresident unilaterally extended the time for report over the objection of the\nparties.3 The information supplied to us by the NMB indicates that exten\xc2\xad\nsions have generally been made only upon the request of the parties, who\ngenerally made a separate side agreement extending the status quo.\nAccordingly, we conclude that the thirty-day deadline for the submission\nof the report is mandatory, and that it may not be extended by the President\nor by an Emergency Board.\n2. P residen t\xe2\x80\x99s pow er to shorten deadline\nAn Emergency Board is appointed by the President and is within the\nexecutive branch. Nothing in the language of the statute even purports to\nlimit the President\xe2\x80\x99s constitutional authority to supervise the board. Indeed,\nthe legislative history of the Act appears to contemplate that the board would\nfunction at the direction and control of the President.4 Accordingly, we\nbelieve that the President may alter the deadline within which an Emergency\nBoard must submit its report, so long as the new deadline is within the\nstatutory thirty-day time period. The President may therefore require the\nboard to submit its report in less than thirty days.\nB. Extension o f report deadline with the consent o f the parties\n\nWe note that research by the NMB staff indicates that at least fifty Emer\xc2\xad\ngency Boards created since 1960 have submitted their reports more than\nthirty days after their creation. With apparently few exceptions5, these ex\xc2\xad\ntensions were the result of requests by the parties or the board that an\nextension be granted by the President, accompanied by an agreement by the\nparties to abide by an extended status quo period (usually until thirty days\n3T he N M B h as inform ed us that E m ergency B oard No. 209 subm itted its rep o rt four d a y s late w ith o u t\no b ta in in g the c o n se n t o f the parties. We are not aw are, how ever, w hether the E m ergency B oard o b \xc2\xad\nta ined a fo rm al p resid en tial ex ten sio n , o r sim ply subm itted its rep o rt ju s t a few days late.\n4 In th is reg ard , w e note that the legislative history places con sid erable em phasis on th e fact th a t an\nE m ergen cy B oard is a presidential board. See, e.g.. S ta ff o f Subcom m . on Labor, S en a te C om m , on\nL ab o r an d Pub. W elfare, 93d C ong., 2d Sess., Legislative History o f the Railway Labor Act, As Am ended\n2 94 (C om m . P rin t 1974) (reprinting congressional debates) (statem ent o f R ep. N ew ton) (stating th a t\np arties w ould c o o p erate w ith an E m ergency B oard because "[n ]eith er party w ould defy the P resid en t o f\nthe U n ited S tates\xe2\x80\x9d ); id. at 229 (statem ent o f R ep. C ooper) (E m ergency B oard is backed by \xe2\x80\x9cthe p o w e r\na n d prestig e o f the P resident").\n\xe2\x80\x99 T he N M B h as in d icated that E m ergency B oard N o 209 su b m itted its rep o rt four days la te w ith o u t any\na g re em en t by th e p arties to abide by an extension. See note 3 supra.\n\n61\n\n\x0cafter the late report is submitted). The Department of Labor has informed\nus that the total number of such extensions since the enactment of the RLA\nis more than seventy. The Labor Department also reports that, up to the\npresent time, no party has ever reneged on a side agreement to forbear from\nself-help. O f course, as noted below, this perfect track record means that the\nlegally binding character of these extensions has never been subject to liti\xc2\xad\ngation.\n1. Legality o f an extension granted with p arties\' consent\nWe believe that, despite our earlier conclusions concerning unilateral ex\xc2\xad\ntensions, several arguments can be made that an extension granted with the\nconsent of the parties would not violate section 10 of the RLA. First, and\nmost importantly, the granting of extensions when the parties have agreed to\nextend the status quo period is supported by a long and consistent adminis\xc2\xad\ntrative practice under the Act. This practice would presumably be entitled to\nconsiderable weight in the construction of the statute. See, e.g.. Chevron,\nU.S.A., Inc. v. N atural Resources Defense Council, Inc., 467 U.S. 837, 844\n(1984) (noting that the Court has \xe2\x80\x9clong recognized that considerable weight\nshould be accorded to an executive department\xe2\x80\x99s construction of a statutory\nscheme it is entrusted to administer\xe2\x80\x9d); see also North Haven Bd. o f Educ. v.\nBell, 456 U.S. 512, 535 (1982) (\xe2\x80\x9cWhere \xe2\x80\x98an agency\xe2\x80\x99s statutory construction\nhas been fully brought to the attention of the public and the Congress, and\nthe latter has not sought to alter that interpretation although it has amended\nthe statute in other respects, then presumably the legislative intent has been\ncorrectly discerned.\xe2\x80\x99\xe2\x80\x9d) (quoting United States v. Rutherford, 442 U.S. 544,\n554 n.10 (1979)).6 Indeed, this office, in an earlier opinion approving the\nuse o f extensions with the consent of the parties, placed considerable weight\non this past practice, noting that \xe2\x80\x9cthis is a point upon which \xe2\x80\x98a page of\nhistory is worth a volume o f logic.\xe2\x80\x99\xe2\x80\x9d M emorandum for Laurence H.\nSilberman, Deputy Attorney General, from Robert G. Dixon, Jr., Assistant\nAttorney General, Office of Legal Counsel, Re: President\'s Power to Extent\n[sic ] in which Emergency B oard Under Railway Labor Act M ust Submit its\nR eport at 2 (June 19, 1974) (quoting New York Trust Co. v. Eisner, 256 U.S.\n\n345, 349 (1921)).\nSecond, we note that the existence o f an enforceable7 side-agreement\nbetween the parties extending the status quo period would have the effect of\nremoving all consequences of late submission of the report. By binding the\nparties to refrain from the use o f self-help until after a specified period, the\nside agreement renders the running of the statutory clock irrelevant. There\n\n\xe2\x80\x98 G iv e n th e freq u e n c y o f th e practice, a n d C o n g ress\xe2\x80\x99 o c casio n al statu to ry intervention into the resolud o n o f p a rtic u la r d isp u te s, it cannot serio u sly be d o ubted th at C ongress has been fully aw are o f the use\no f e x te n sio n s. We are not aw are of any co n g ressio n al atte m p ts to lim it such practices.\n7W e d is c u s s th e issu e o f enforceability b elow . See infra pp. 63-66.\n\n62\n\n\x0cwould thus be no consequences to a failure to meet the section 10 deadline,\nand, in these circumstances, it might fairly be said that the import of the\nthirty-day deadline was merely \xe2\x80\x9cdirectory\xe2\x80\x9d rather than \xe2\x80\x9cmandatory.\xe2\x80\x9d See\nThomas , 729 F.2d at 1470 n.5 (statutory time period is not mandatory unless\nit expressly requires action within a particular time period an d specifies\nconsequences for a failure to comply). In short, when failure to comply\nwith the deadline is completely without practical effect, there is no reason\nwhy the deadline may not, in those circumstances, be treated as directory.\nFinally, we note that nothing in the legislative history is inconsistent with\nthese conclusions. The legislative history discussed above indicates that the\ndrafters were concerned with the delays that might be caused by unilateral\npresidential or board action. See supra pp. 59-60 ; see also House Hearings\nat 100 (statement of Mr. Richberg) (stating that indefinite extensions for an\nEmergency Board\xe2\x80\x99s report were undesirable because \xe2\x80\x9cthere is always a great\ninterest on the part of one person to have delay and on the part o f the other\nperson not to have delay.\xe2\x80\x9d) By contrast, where the parties have themselves\nagreed to extend the status quo period, the drafters\xe2\x80\x99 concerns are fully satis\xc2\xad\nfied. Indeed, permitting an extension in such circumstances would be\nconsistent with the RLA\xe2\x80\x99s declared purposes of avoiding interruptions to\ncommerce and of providing for the \xe2\x80\x9cprompt and orderly settlement\xe2\x80\x9d of dis\xc2\xad\nputes between carriers and employees. 45 U.S.C. \xc2\xa7 151a. Of course, given\nthe President\xe2\x80\x99s power to insist upon the report within the statutory time\nframe, see supra p. 61, the President may refuse to grant an extension despite\nthe parties\xe2\x80\x99 agreement to refrain from self-help and despite their request that\nhe permit the extension.\n2.\n\nEnforceability o f an agreem ent to refrain from self-help during\nextended Emergency Board proceedings\n\nWe believe that the issue of whether any side agreement by the parties\nwould be equitably enforceable under the Norris-LaGuardia Act, 29 U.S.C.\n\xc2\xa7\xc2\xa7 101-115 is a difficult one, give the lack of judicial authority on this\nquestion.8 We believe that there is no more than an even chance that a court\nwould enforce such an agreement given the consistent past practice, over a\nlong period of time, of using these agreements to facilitate the RLA dispute\nsettlement processes. Nevertheless, a significant argument can be made that\nthese agreements are, strictly speaking, outside the process mandated by the\nRLA, and there is thus a substantial litigation risk that they would be de\xc2\xad\nclared to be equitably unenforceable.\nAmong other things, section 4 of the Norris-LaGuardia Act, 29 U.S.C. \xc2\xa7\n104, provides:\nNo court of the United States shall have jurisdiction to issue\nany restraining order or temporary or permanent injunction in\n! In th is regard, w e note that the Labor D epartm ent has advised us that the enfo rceab ility o f s u c h side\na g re em en ts has n e v er been subject to litigation.\n\n63\n\n\x0cany case involving or growing out o f any labor dispute to pro\xc2\xad\nhibit any person or persons participating or interested in such\ndispute . . . from . . . [cjeasing or refusing to perform any\nwork or to remain in any relation of employment . . . .\nThe Supreme Court has held that, despite the broad reach of this language,\nthe Norris-LaGuardia Act \xe2\x80\x9cdoes not deprive the federal court[s] of jurisdic\xc2\xad\ntion to enjoin compliance with various mandates of the Railway Labor Act.\xe2\x80\x9d\nBurlington N.R.R. v. Brotherhood o f Maintenance o f Way Employees, 481\nU.S. 429, 445 (1987) (quoting International A ss\xe2\x80\x99n o f Machinists v. Street,\n367 U.S. 740, 772-73 (1961)). The Court emphasized, however, that \xe2\x80\x9c[t]his\nexception is necessarily a limited one,\xe2\x80\x9d and that, even when a party seeking\ninjunctive relief is able to show a violation of a duty imposed by the RLA,\n\xe2\x80\x9c[c]ourts should hesitate to fix upon the injunctive remedy . . . unless that\nremedy alone can effectively guard the plaintiff\xe2\x80\x99s right.\xe2\x80\x9d Id. at 446 (quoting\nInternational A s s \xe2\x80\x99n o f Machinists, 367 U.S. at 773).\nThe key issue is whether a breach of the side agreement would violate\nany o f the \xe2\x80\x9cvarious mandates of the Railway Labor Act.\xe2\x80\x9d We believe that a\npersuasive argument can be made that any breach of the side agreement\nwould violate section 2 First of the RLA, 45 U.S.C. \xc2\xa7 152 First, which\nprovides:\nIt shall be the duty o f all carriers, their officers, agents, and\nemployees to exert every reasonable effort to make and main\xc2\xad\ntain agreements concerning rates o f pay, rules, and working\nconditions, and to settle all disputes, whether arising out of\nthe application of such agreements or otherwise, in order to\navoid any interruption to commerce . . . .\nIn C hicago & N.W. Ry. v. United Transp. Union, 402 U.S. 570 (1971), the\nSuprem e C ourt held that, notwithstanding the provisions of the NorrisLaGuardia Act, a federal court has jurisdiction in appropriate circumstances\nto enjoin a strike, even during the self-help period, where the union has\nfailed to satisfy its section 2 First obligation to use every reasonable effort\nto settle the dispute.\nThe precise scope of this duty, and of the exception to the anti-injunction\nprovisions of the Norris-LaGuardia Act that it creates, is difficult to discern.\nIn Trans I n t\xe2\x80\x99l Airlines, Inc. v. International Bhd. o f Teamsters, 650 F.2d 949,\n962 (9th Cir. 1980), cert, denied, 449 U.S. 1110 (1981), the court held, per\nJudge (now Justice) Kennedy, that a breach of a contractual promise not to\nstrike during the self-help period was an enjoinable violation of the section\n2 First duty only if there is a substantial relationship between the breach and\n\n64\n\n\x0cthe RLA dispute resolution procedures: \xe2\x80\x9cAbsent a substantial nexus with\nstatutory dispute settlement mechanisms or an agreement to arbitrate, an\ninjunction may not issue to prevent a plain breach of a no-strike clause by a\nunion.\xe2\x80\x9d Applying this standard, the court concluded that the contract at\nissue, which flatly prohibited strikes against certain flights, was not equita\xc2\xad\nbly enforceable. The contract regulated conduct during the self-help period,\nwhen the parties had fully exhausted the RLA dispute resolution procedures,\nand therefore the \xe2\x80\x9cRLA plan for avoiding disruption [was] not threatened by\nthe . . . strike.\xe2\x80\x9d Id. at 963. Chicago & N.W. Ry. was distinguished on the\ngrounds that, in that case, \xe2\x80\x9cthe union had failed to use reasonable efforts to\ncomply with the mandatory disputes settlement mechanisms that lie at the\nheart of the Act,\xe2\x80\x9d and that the injunction in that case therefore protected the\n\xe2\x80\x9cintegrity\xe2\x80\x9d of the RLA processes. Trans In t\xe2\x80\x99l Airlines, 650 F.2d at 963.\nWe believe that the best argument for enforcing such side agreements is\nthat they have a \xe2\x80\x9csubstantial nexus with [the] statutory dispute settlement\nmechanismf].\xe2\x80\x9d Id. at 962. Given the long-established practice of entering\ninto side agreements to facilitate the production of the statutorily required\nreports by the Emergency Board, we believe that these agreements are argu\xc2\xad\nably part of the dispute resolution process. At a minimum, it would appear\nthat they indeed have a \xe2\x80\x9csubstantial nexus\xe2\x80\x9d to that process.9\nThere is, however, a potential counterargument. As our earlier discussion\nshows, these side agreements regulate conduct that is, strictly speaking, out\xc2\xad\nside the statutory status quo period. Accordingly, their \xe2\x80\x9cnexus\xe2\x80\x9d to the statutory\nscheme might be questioned, especially if a court were to read Trans Int\'l\nA irlines as broadly prohibiting any injunctions once the strict statutory dead\xc2\xad\nlines had passed.\nIt might also be argued in support of enforcing the agreement that a strike\ncalled before the expiration of the extended period specified in the side\nagreement is a violation of the status quo provisions of section 10.10 We\nbelieve, however, that this argument is untenable in light of our earlier con\xc2\xad\nclusion that late submission of the report will not toll the running of the\nstatutory status quo period. Indeed, the possibility of an extension being\ngranted at all hinges upon the parties\xe2\x80\x99 willingness, by private contract, to\n\n\xe2\x80\x99 Indeed , it m ight also be argued that the u n io n \xe2\x80\x99s c o n d u ct in agreeing to an extension o f the statu s q uo\np e rio d , w ith its con seq u en t effects in altering the norm al R LA process, is a breach o f the section 2 F irst\nd u ty w here, as is likely to be the case, the union intended all along to abide only by the strict statu to ry\nde fin itio n o f the status quo period. Such a case w ould clo sely resem ble Chicago & N.W. Ry., w hich\nau th o riz e d an ap p ro p riate injunction, during the self-help period, w here the union failed to use re a so n \xc2\xad\nab le efforts to settle the d isp u te d u rin g the RLA d isp u te settlem en t pro ced u res. In d eed , a u n io n \'s\na ctio n s in cau sin g the delay o f the subm ission o f the rep o rt, w ith the intent to take full ad v an tag e o f the\nstric t statutory d ead lin e, w ould arguably \xe2\x80\x9c threaten" the \xe2\x80\x9c RLA plan for a voiding d isru p tio n ," an d an\nap p ro p ria te injunction against the ensuing strike w ould \xe2\x80\x9cp ro tect" the \xe2\x80\x9c integrity o f these m e c h an ism s.\xe2\x80\x9d\nTrans In t\'l Airlines, 650 F.2d at 963. T he availability o f this argum ent, how ever, w ould a p p ea r to turn\non the u n io n \xe2\x80\x99s in ten t at the tim e o f entering into the side agreem ent.\nl0It is c le a r th at a federal c o u rt has ju risd ic tio n to en fo rce co m p lian ce w ith the status q u o p ro v isio n s o f\nsec tio n 10. See, e.g.. Pan American World Airways, Inc. v. Flight E ng\'rs\' In t\xe2\x80\x99l A s s \xe2\x80\x99n, 3 06 F.2d 840, 846\n(2 d Cir. 1962).\n\n65\n\n\x0cextend the status quo period beyond that specified in the statute." Accord\xc2\xad\ningly, we conclude that, although a union might violate the side agreement\nby calling a strike outside the sixty-day statutory period, it does not thereby\nviolate section 10.12\nLastly, it might be argued that, to the extent that there is any ambiguity in\nthe side agreement concerning the extent of the restrictions on self-help, the\nnecessary interpretation of the agreement raises a \xe2\x80\x9cminor\xe2\x80\x9d dispute that must\nbe resolved under the compulsory arbitration provisions of the RLA, see 45\nU.S.C. \xc2\xa7 153. The Supreme Court has held that, pending the resolution of\nthese minor dispute resolution procedures, the parties have an equitably en\xc2\xad\nforceable obligation to refrain from self-help. See Brotherhood o f R.R.\nTrainmen v. Chicago River & I.R.R., 353 U.S. 30 (1957). This argument\nmay be unavailing for two reasons. First, if Trans Int\xe2\x80\x99l Airlines is correct in\nholding that agreements to regulate conduct during the self-help period are\nnot equitably enforceable, it is unclear how there can be any need for arbi\xc2\xad\ntration to determine to what extent the side agreement limits self-help; the\nagreem ent will be equitably unenforceable regardless of the extent of its\nrestrictions.13 Second, the availability of this argument hinges on the precise\nwording of the restrictions in the side agreement drafted by the parties, a\nfactor that is not within the control of the executive branch. If the restric\xc2\xad\ntions are clearly worded, no minor dispute can arise, and no equitable relief\nwill be available under this theory.\nC. Presidential p o w er to reconvene emergency boards\nWe do not believe that the President possesses power to impose a second\nstatus quo period by convening a second Emergency Board or by reconven\xc2\xad\ning the original board. Neither the text nor the legislative history of the\nRLA provide any support for such a power. Indeed, the legislative history\xe2\x80\x99s\nemphasis on the need for a prompt resolution of the board\xe2\x80\x99s activities, within a\nfixed period of time, affirmatively undercuts the notion that the President may\nextend the status quo period simply by reconvening or reappointing the board.\nNor do we believe that past practice under the Act provides any support\nfor such a power. The NMB has informed us that there appears to have been\n\n" M o re o v e r , b e ca u se the possibility o f an ex ten sio n d e p en d s upon the p a rtie s\xe2\x80\x99 p rivate co n tract, there is\na rg u a b ly n o reaso n w h y the parties m ay not agree to ex te n d the status quo period until ten o r tw enty\n(ra th e r th a n th irty ) d a y s a fte r the E m erg en cy B o a rd \xe2\x80\x99s late su b m ission o f the report. It w ould be d ifficu lt\nto a rg u e th a t such an \xe2\x80\x9c ex ten sio n plus te n d ay s\xe2\x80\x9d period is eq u iv alen t, fo r purposes o f the R LA and the\nN o rris-L a G u a rd ia A ct, to th e statutory p e rio d described in section 10.\nI! W e re a ch th is c o n clu sio n despite th e fa c t that the statu te states th at the co o lin g -o ff period com prises\nth e \xe2\x80\x9c th irty d a y s a fte r su ch board has m a d e its rep o rt to the P resid e n t." As discussed above, the w ording\no f th is s e c tio n w a s b a se d o n the d ra fte rs \xe2\x80\x99 assu m p tio n th a t the thirty-day d e ad lin e w ou ld be stric tly\nc o m p lie d w ith .\n13 It m ig h t be arg ued , how ever, that in te rp reta tio n o f the ag reem ent w ould still be necessary in o rd e r to\nd e te rm in e th e e x te n t o f entitlem ent to o th e r form s o f relief, such as dam ages.\n\n66\n\n\x0conly two such reconventions in the last forty-one years.14 The information\nthat we have been given concerning such reconvention indicates the fairly\nnarrow circumstances under which boards have been reconvened. Thus,\nboth of the two boards that were reconvened between 1950 and 1987 were\nreconvened only after the parties had requested this action and only for the\npurpose of clarifying an ambiguous point in the board\xe2\x80\x99s original report. See\nLetter from H. Witt, Member, NMB to the President (Sept. 8, 1986) (recon\xc2\xad\nvening of Emergency Board No. 211); Letter from Emergency Board No.\n187 to the President (Nov. 26, 1975) (report of reconvened board). These\nvery limited precedents provide no support for the view that the President\nmay impose a new status quo period by reconvening an Emergency Board\nover the objections of the parties or to deal with completely different issues.15\n\nCONCLUSION\nWe conclude that the President may grant an extension for filing a report\nby an Emergency Board appointed under section 10 of the Railway Labor\nAct only if the parties consent to the extension by making a side agreement\nthat extends the status quo period. As a practical matter, the effectiveness o f\nany such extension of the status quo period depends upon the equitable\nenforceability of the side agreement, a matter concerning which there is\nsubstantial doubt. Furthermore, although the President may not unilaterally\nextend the thirty day deadline for filing a report, he may shorten it. Finally,\nany subsequent boards appointed by the President (whether by reconvening\nan Emergency Board or appointing a new one) cannot bind the parties to\nstatus quo without their consent.\nJOHN O. McGINNIS\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\nu T he NM B has stated that there m ay have been as m any as fo u r reconventions in the first tw e n ty -fo u r\nyears, but it does not as yet have in fo rm atio n on the circu m stan ces o f the reconventions.\n15O f co u rse, the P resid en t m ay ch o o se to c onsult w ith the m em bers o f the form er b o a rd ab o u t any issu e\nrelatin g to th e dispute, but this w o u ld not be an action taken u n d er the R L A , and it w o u ld not h a v e the\neffe c t o f im posing a new status q u o period.\n\n67\n\n\x0c'


b'Use of the Disaster Relief Act of 1974 in\nan \xe2\x80\x9cImmigration Emergency\xe2\x80\x9d\nT he D isaster R elief A ct authorizes the provision o f federal aid to state and local governm ents in the\nevent o f an em ergency or major disaster, w hether resulting from natural o r m an-m ade causes.\nW h eth er a p articu lar \xe2\x80\x9c immigration em ergency\xe2\x80\x9d so threatens property or hum an life as to fall\nw ithin the scope o f the A ct is a m atter for the President in his discretion to determ ine.\n\nNovember 19, 1982\nMEMORANDUM OPINION FOR\nTHE ASSOCIATE ATTORNEY GENERAL\nThis responds to your inquiry whether it would be appropriate for the President\nto use the Disaster Relief Act, 42 U.S.C. \xc2\xa7\xc2\xa7 5121\xe2\x80\x945202 (1982) (Act), in a\nsituation comparable to the recent Cuban boatlift or other similar \xe2\x80\x9cimmigration\nemergency.\xe2\x80\x9d The legal question raised is whether such an \xe2\x80\x9cimmigration emer\xc2\xad\ngency\xe2\x80\x9d would constitute either an emergency\' or a major disaster2 under the Act.\nWe have concluded that the Act covers emergencies arising from both man-made\nand natural disasters. We have also concluded that whether a particular situa\xc2\xad\ntion\xe2\x80\x94 such as an \xe2\x80\x9cimmigration emergency\xe2\x80\x9d\xe2\x80\x94 falls within the scope of the Act is a\nmatter for the President to determine\xe2\x80\x94 a determination that has been placed\nwholly within the President\xe2\x80\x99s discretion. 42 U.S.C. \xc2\xa7 5122(2). We believe that\nthe Act was meant to encompass catastrophic events\xe2\x80\x94either impending or\nactual\xe2\x80\x94 that threaten property and the lives of people. In the absence of specific\nfacts, we are unable to say with certainty whether a particular \xe2\x80\x9cimmigration\nemergency\xe2\x80\x9d would constitute such a catastrophic event. Similarly, we are unable\n\n1 The Act defines an emergency as\nany hurricane, tornado, storm, flood, high water, w ind-dnven water, tidal wave, tsunam i, earth\xc2\xad\nquake, volcanic eruption, landslide, mudslide, snowstorm, drought, fire, explosion, or other\ncatastrophe in any part o f the United Slates which requires Federal emergency assistance to\nsupplem ent State and local efforts to save lives and protect property, public health and safety or to\navert or lessen the threat of a disaster\n42 U S.C \xc2\xa7 5122(1) (1982)\n2 A "m ajor disaster\xe2\x80\x9d is any of the events listed in the definition of \xe2\x80\x9cemergency," supra, n 1,\nwhich, in the determination of the President, causes damage of sufficient seventy and magnitude to\nwarrant major disaster assistance under this chapter, above and beyond emergency services by the\nFederal G overnment, to supplement the efforts and available resources of States, local governments,\nand disaster relief organizations in alleviating the dam age, loss, hardship, or suffering caused\nthereby.\n42 U .S .C . \xc2\xa7 5122(2) (1982)\n\n708\n\n\x0cto say that the Act could never apply. Rather, we will outline what we believe to be\nthe touchstones of an emergency under the Act.\n\nI. The Disaster Relief Act\nThe Act is the most recent version of legislation that was first enacted in 1950.\nDisaster Relief Act of 1950, Pub. L. No. 81-875, 64 Stat. 1109 (1950). A major\ndisaster was originally defined by a somewhat shorter list,3 but the central\npurpose\xe2\x80\x94 to create a coherent framework for dealing with the unexpected\xe2\x80\x94 was,\nfrom the beginning, expressed clearly:\nThe purpose of the bill is to provide for an orderly and continuing\nmethod of rendering assistance to the States and local govern\xc2\xad\nments in alleviating suffering and damage resulting from a major\npeacetime disaster and in restoring public facilities and in supple\xc2\xad\nmenting whatever aid the States or local governments can render\nthemselves.\nS. Rep. No. 2571, 81st Cong., 2d Sess. 1 (1950).4\nThe 1950 legislation was intended to create permanent legislation to deal with\nwhat had, to that point, been covered in an ad hoc, haphazard manner:5\nFor obvious reasons, it is not possible for the committee to\napprove legislation in each disaster in any particular area. Our\ncommittee would be overworked with legislation of that kind. The\nlegislation that is before us today is the kind that will meet all\nemergencies of a disaster, and gives the President the necessary\nauthority for not only providing the relief but for coordinating the\nrelief.\n96 Cong. Rec. 11902 (1950). The Act was drafted by Members of Congress who\nwere willing to exchange the careful congressional evaluation of each event that\nhad heretofore been involved for the quicker response that an emergency situa\xc2\xad\ntion usually calls for, a response that the Executive, acting alone, can provide.\nFrom the beginning, Congress realized that the Act, because of this calculus,\nplaced broad discretionary power in the hands of the President. Statements from\n3 The list of covered events included \xe2\x80\x9c floods, drought, fire, hurricane, earthquake, storm or other catastrophe.\xe2\x80\x9d\n42 U S C \xc2\xa7 1855a(a) (1952).\n4 See also H.R Rep No 2727, 81st Cong., 2d Sess. 2 (1950), 96 Cong Rec. 11895-96, 11907 (1950).\n5 Rep Hagen inserted a list of 128 acts passed by Congress since 1803 to cover various disasters. % Cong. Rec\n11900-02 (1950). It is nol evident that this list was necessarily intended to identify the kinds of disasters the 1950\nlegislation was intended to cover. It is interesting to note that although Rep. Hagen referred to it as covenng\n\xe2\x80\x9csufferers from floods, fires, earthquakes and other natural disasters,\xe2\x80\x9d 96 Cong Rec. 11899 (1950), the list in fact\nincluded statutes that covered man-made disasters, food for Florida residents driven from their homes by Indian\ndepredations, 5 Stat. 131 (1836); monetary relief for survivors of an Indian massacre. 12 Stat 652 (1863); relief\nfrom import duties for charitable contributions sent to blacks \xe2\x80\x9cwho may have emigrated from their homes to other\nStates,\xe2\x80\x9d 21 Stat. 66(1880); money for the relief of destitute American citizens in Cuba, 30 Stat. 220(1897); money\nfor losses suffered by the crew of the If S.S Maine when it exploded, 30 Slat 346 (1898), and supplies for the relief\nof destitute Cubans who were suffering from the disruptions of war, 30 Slat. 419 (1898) Id. at 1069 (1899).\n\n709\n\n\x0cthe 1950 debate reflect this recognition, including the awareness that, as with any\ngrant of discretionary authority, there was a danger of abuse.\nWhen it comes to providing for human suffering, to provide for\nthe protection of human life, we must give some discretion. I will\nrisk the President of the United States and the governors of the\nStates.\n96 Cong. Rec. 11898 (1950) (statement of Rep. Whittington).6\nThe debate continued:\nMR. KEATING: [I]t seems to me that the essential difference\nbetween the way we have been handling this\nand the way it is proposed to handle it under\n. . . this measure is that heretofore Congress\nhas passed upon the need for the funds, but\nunder this it is left entirely to the Executive to\nsay whether the disaster threatens to be of\nsufficient severity and magnitude to warrant\ndisaster assistance by the Federal Government.\nMR. WHITTINGTON: . . . That is exactly what we had done.\n96 Cong. Rec. 11910 (1950).\nMR. ROBERTSON: Is it the Senator\xe2\x80\x99s interpretation that the bill\nwould apply to whatever disaster the Presi\xc2\xad\ndent might be pleased to have it apply?\nMR. McCLELLAN: That is correct. . . .\nHowever, I think we certainly can rely\nupon whoever may be President of the\nUnited States having some judgment, and\nalso having some humanitarian feelings\nand applying such feelings in making a\ndecision as to what is a major disaster,\nwhere people have suffered or are about to\nsuffer, and where the Federal Government\nshould step in and assist.\n96 Cong. Rec. 15096, 15097 (1950).\nWe have not found anything in the subsequent amendments to this legislation\nindicating a desire to limit this discretion.\n\nII. Natural and Man-made Disasters\nThere has been some confusion over the years as to whether the phrase \xe2\x80\x9cor\nother catastrophe\xe2\x80\x9d includes events other than those usually thought of as\n6 Rep W hittington was Chairman of the H ouse Committee on Public Works, which had drafted the bill\n\n710\n\n\x0c\xe2\x80\x9c natural,\xe2\x80\x9d i.e., hurricanes, earthquakes, and tornadoes.7 We believe that the\nFederal Emergency Management Agency (FEMA) and its predecessors have\nadministered the Act to cover man-made as well as natural events. Given the\nmany years of congressional acquiescence in this administration of the Act, this\nadministrative interpretation would normally, without more, be regarded as\nauthoritative and correct.\nWhen the 1950 legislation was being debated, most references were to what\nare generally considered \xe2\x80\x9cnatural\xe2\x80\x9d disasters. But reference was made to a nuclear\ndisaster. Referring to the $5,000,000 appropriation made under the bill, Rep.\nKeating said:\n[A]s the gentleman from Wisconsin said, $5,000,000 is just a\nstarter. If a major disaster struck this Nation, such as an atomic\nexplosion or something of that kind, the Congress of the United\nStates would be the first on the spot to alleviate any suffering in\nsuch a situation as that.\n96 Cong. Rec. 11911 (1950).\nIt is true that when the Act was under consideration in 1974, its sponsors\nreferred to the \xe2\x80\x9cnatural\xe2\x80\x9d hazards that will be covered.8 But there was also\nreference, albeit ambiguous, to the definition as covering \xe2\x80\x9cany one of a number of\nnatural hazards or other catastrophes causing damage that requires emergency\nassistance.\xe2\x80\x9d 120 Cong. Rec. 4169 (1974) (statement of Sen. Burdick, floor\nmanager) (emphasis added). Extensive hearings were held,9 but they were held in\ntowns that had suffered from the most recent disasters\xe2\x80\x94 Hurricanes Camille and\nAgnes, and the Rapid City, South Dakota flood\xe2\x80\x94 all of which happened to be\nnatural, and the testimony received focused on the aid needed, not on the\ndisasters\xe2\x80\x99 causes.10\nIn order to clarify whether the Act can properly be used to cover man-made\ndisasters, an issue that is apparently now disputed by FEM A,11we have examined\nthe administrative practice under the Act and its predecessors. It is apparent from\nthe list provided to us by FEMA of all the emergencies that have been covered\nsince May 1, 1953, by the Act or its predecessors, that man-made disasters have\nbeen covered for as long as there has been specific disaster legislation. A survey\nof the list shows that the President has declared a disaster to cover the presence of\n7 This Office once examined the issue in terms o f \xe2\x80\x9cnatural\xe2\x80\x9d versus man-made disasters and concluded that the\ndamage caused by the riots of the late 1960s was not covered by the Act. Memorandum for David Ginsberg,\nExecutive Director, National Advisory Commission on Civil Disorders, from Warren Christopher, Deputy Attorney\nGeneral, Nov. 22, 1967. Our files contain an unsigned memorandum, however, dated Aug. 16, 1965, that am ves at\nthe opposite conclusion.\ns See, e g , 120 Cong Rec. 4162, 4165, 4166 (1974) (statement of Sen. Burdick)\n9 To Investigate the Adequacy and Effectiveness c f Federal Disaster Relief Legislation. Hearings Before the\nSubcomm. on Disaster Relief c f the Senate Comm on Public Works, Pts 1-6, 93rd Cong , 1st and 2d Sess.\n(1973-1974)\n10 The same is tme o f the hearings held in 1950. See Disaster R elief Hearing on S. 2415 Before the Subcomm. c f\nthe Senate Comm on Public Works, 81st Cong., 2d Sess (1950), and infra, n 23\n11 Compare Letter to Ms Renee L Szybala, Special Assistant to the Associate Attorney G eneral, from George\nW Jett, General Counsel, FEMA, Aug. 2, 1982, with Memorandum for Robert Bedell, Office of Management and\nBudget, from George W. Jett, General Counsel, FEMA, May 3, 1980.\n\n711\n\n\x0ca sunken barge in the Mississippi River because of its cargo of 2,200,000 pounds\nof liquid chlorine;12a massive power failure in Alaska;13the presence of chemical\nwastes in the soil underlying a residential area;14 explosions in the sewer system\nof Louisville, Kentucky because of illegal chemical dumping;15 dam collapses\ndue solely to engineering failures;16 fires due to arson;17 and the sudden influx of\napproximately 250,000 illegal aliens from Cuba. 16 Weekly Comp. 868 (1980).\nThere is no indication in the legislative history of the Act or any of its predeces\xc2\xad\nsors that Congress intended the President to distinguish between floods caused by\nrivers swollen by melting snow, floods caused by the collapse of dams eroded by\nheavy rains, see 9 Weekly Comp. 657 (1973), and floods caused by the collapse of\nmechanically flawed dams, see note 16 supra. Nor is there any indication that the\nExecutive was to spend valuable time distinguishing\xe2\x80\x94-if it were possible\xe2\x80\x94\nbetween, for example, brush fires started by arsonists and those started by\nlightning. Rather, revisions to the Act have focused on improving the delivery of\naid, and increasing the kinds that are available. Unless we are willing to read\n\xe2\x80\x9cnaturally occurring\xe2\x80\x9d into the statute as a modifier to \xe2\x80\x9cfire\xe2\x80\x9d and \xe2\x80\x9c explosion,\xe2\x80\x9d we\ncannot read it in to modify \xe2\x80\x9ccatastrophe.\xe2\x80\x9d\nWe would note that the Act has been amended five times since 1950,18 and that\neach time the President and his aides have been criticized for various delays in\nproviding aid. Each time there have been calls for more, not less, aid, and quicker\nresponse tim es.19 We have not been able to find suggestions that the President\ndelay the delivery of aid while the exact cause of the disaster is unearthed. The\nwhole point of the Act is to provide assistance to those in need as soon as possible\nand to leave the careful sifting o f cause and effect by time-consuming investiga\xc2\xad\ntions to the future.20\n12 The emergency was declared on October 6 , 1962 U nitedStates v Cargill, 367 F.2d 971 (5th Cir 1966), o ff d\nsub nom. Wyandotte Transportation Co v U nited States, 389 U S. 191 (1967). The United States successfully\nraised the barge and sued lo recover the $3,081,000 cost, much of which was for measures taken to alert the public lo\npotential risks and to protect them in case the chlorine tanks ruptured See also N Y. Times, O ctober 11,1962, at 24,\ncol. 2, id., November 6, 1962 at 12, col. 5.\n13 10 Weekly Comp. 1149(1974) The federal government provided supplementary generators until power could\nbe restored\n14 16 Weekly Comp 967 (1980) (Love Canal).\n15 17 Weekly Comp. 333 (1981) The explosions were later found to be the responsibility of a company whose\nsoybean mill leaked a highly explosive industrial solvent into the sewers.\n16 12 Weekly Comp 1036-37, 1049 (1976) (Grand Teton Dam).\n17 17 Weekly Comp 1351 (1981) (Massachusetts fire set by arsonist that caused $40 million in damage); 16\nWeekly Comp. 2780 (1980) (California brush fire started by illegal campfire that caused $25 million in damage)\n18 Although the law w asam ended in 1962 to cover the ternlories, Pub L No 87-502, 76Stat 111 (1962), and m\n1966, Pub. L. No 89-769, 80Stat 1316(1966), and 1969, Pub. L. No. 9 1 -7 9 , 83 Stat. 125 (1969), to increase the\nkinds of assistance available, it was nol until 1970 that it was comprehensively amended. Pub L. No. 91-606, 84\nStat. 1744 (1970) The 1970 law reenacted th e major provisions of the earlier laws, consolidating in one statute\nprovisions that had been scattered throughout the Code, and added several new forms of aid. See 116 Cong. Rec.\n31045 (1970) (statement of Sen. Bayh),S Rep 1157,91st C ong., 2d Sess (1970).Thedefim tionofm ajordisaster\nwas specifically retained, see H.R Rep No. 1752, 91st Cong , 2d Sess 18 (1970); S. Rep No 1157, 91st Cong ,\n2d Sess 25(1970), except for certain specific additions to the list: tornadoes, high water, wind-driven water and tidal\nwaves. 42 U .S .C . \xc2\xa7 4401 (1970) The 1974 A ct, which contains the most recent amendments, had as its central\npurpose the same kind of consolidation and expansion. See H .R Rep No. 1037, 93rd Cong., 2d Sess (1974); S.\nRep No 1778, 93rd C ong., 2d Sess (1974).\n19 See, e.g . 116 Cong Rec. 34795 (1970) (statement of Rep. Clausen) (\xe2\x80\x9c It is our intent to equip ihe executive\nbranch, which we believe is now hampered, w ith the kind of authority to move in the direction of a definite action\nprogram to give immediate relief to the people who need it at the most possibly important lime in their life \xe2\x80\x9d)\n20 Indeed, in some cases the cause will never be known, i.e., experts may suspect that a fire was arson but find it\nimpossible to prove.\n\n712\n\n\x0cGiven this prior administrative practice, the breadth of the President\xe2\x80\x99s discre\xc2\xad\ntion as perceived by Congress, and the fact that Congress could have limited the\nstatute to natural disasters,21 we believe that the Act covers man-made as well as\nnatural disasters.\n\nIII. Immigration Emergencies\nFEMA has taken the position that use of the Act for an immigration emergency\nis inappropriate for three reasons. While we do not, as indicated below, find any\nof these reasons persuasive, obviously the Act will not be available for every\nimmigration emergency. Rather, we believe that the President may use the Act in\nany emergency, including an immigration emergency, if he finds that the\ndamage, loss, hardship, or suffering is of the kind encompassed by the Act. As a\nguide, we detail below some of the indicia which may be relevant in determining\nwhen a crisis is an emergency covered by the Act.\nFEMA advances three reasons why the Act is not available for immigration\nemergencies. First, as an indication of Congress\xe2\x80\x99 concern with the Act\xe2\x80\x99s use for\nman-made emergencies, it points to S. 2250, a bill which passed the Senate in\nJune and has now been referred to the House Public Works Committee. S. 2250\nwould change the last phrase in 42 U.S.C. \xc2\xa7 5122(2) to \xe2\x80\x9cor other natural\ncatastrophe.\xe2\x80\x9d S. 2250, \xc2\xa7 5(1), 97th Cong., 2d Sess. (1982) (emphasis added).\nThe accompanying report recognizes that the Act has been used to cover non\xc2\xad\nnatural catastrophes. S. Rep. No. 459, 97th Cong., 2d Sess. 2 (1982), and that\nthese uses have \xe2\x80\x9cprovoked recent Congressional concern.\xe2\x80\x9d Id. We would note\nthat this amendment would only limit the declaration of a \xe2\x80\x9cmajor disaster,\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 5122(2), not the more limited declaration of an \xe2\x80\x9cemergency.\xe2\x80\x9d Id.\n\xc2\xa7 5122(1).\nThis proposed amendment is of minimal use in interpreting the statute as\npresently enacted. Congressional critics may take issue with particular non\xc2\xad\nnatural emergencies the President has chosen to cover, but the Senate report itself\nrecognizes the long history of the President\xe2\x80\x99s reliance on the Act to respond to\nnon-natural emergencies. This would seem to undercut any argument that only\nnatural emergencies may be covered. In fact, S. 2250\xe2\x80\x99s retention of a definition of\n\xe2\x80\x9cemergency\xe2\x80\x9d that is not limited to \xe2\x80\x9cnatural\xe2\x80\x9d events would seem to indicate a\ncontinued desire that some federal aid rem ain available for m an-m ade\nemergencies.\nSecond, FEMA indicates that Lee Thomas, Associate Director for State and\nLocal Programs and Support, testified during his Senate confirmation hearings\nthat he would only recommend coverage for an emergency if it were a natural\ndisaster or one specifically mentioned in the Act. We have been asked a legal\nquestion about underlying authority to act, not the policy question about when\nFEMA will recommend that the President exercise his discretion to act. We defer\n21 Compare Wise. Stat. \xc2\xa7 49.19 (1 l)(b) (1975) (aid limited to \xe2\x80\x9cnatural disaster\xe2\x80\x9d), discussed in Kozinski v.\nSchmidt, 436 F. Supp 201 (E.D . Wise. 1977).\n\n713\n\n\x0cto Mr. Thomas on the latter question, but it is one that has no relevance to our\ndiscussion of the legal issues.\nFinally, FEMA cites two cases decided by the district court in Puerto Rico\nwhich held that the Act was only intended to cover natural disasters. Colon v.\nCarter, 507 F. Supp. 1026, 1031-32 (D.P.R.), vacated on other grounds, 633\nF.2d 964 (1 st Cir. 1980); Commonwealth c f Puerto Rico v. Muskie, 507 F. Supp.\n1035, 1044-45 (D.P.R.), vacated on other grounds, 668F .2d611 (1st Cir. 1981).\nEven if both decisions had not been vacated by the First Circuit, with the court\nspecifically noting that there was no need to reach the issue of whether the Act\napplied, Colon, supra, 633 F.2d at 966 n.3, we would remain unpersuaded. The\ndistrict court assumed that all the events listed in the Act were \xe2\x80\x9cnatural\xe2\x80\x9d disasters\nand did not consider that fires and explosions, for example, can be man-made.\nNor did the district court address the longstanding administrative practice\xe2\x80\x94 a\npractice of which it may well have been unaware.22\nWe should note that in 1980, at the start of the Cuban boatlift, this Office was\nasked, on an expedited basis, to examine the Act\xe2\x80\x99s applicability. No formal\nopinion was issued but, despite some doubts as to its availability for man-made\ndisasters, we did not interpose any objection to the use of the Act. We relied in\npart on FEM A\xe2\x80\x99s determination that the Act was available. See note 11, supra.\nWe believe that whether a disaster is triggered by human or natural agents is\nlegally irrelevant. The issue for the President is whether it has caused \xe2\x80\x9cdamage of\nsufficient severity and magnitude\xe2\x80\x9d to warrant additional federal assistance to\nalleviate \xe2\x80\x9cthe damage, loss, hardship or suffering caused thereby.\xe2\x80\x9d 42 U.S.C.\n\xc2\xa7 5122(2). There is usually general agreement about what a disaster is\xe2\x80\x94 whether\nit comes in the form of a hurricane or as the imminent meltdown of a nuclear\nreactor\xe2\x80\x94but in those cases in which there is some question, Congress has given\nthe President guidance for determining the extent of his discretion. The most\nprominent of these is the request for aid by a state governor. \xe2\x80\x9cThe basis which has\nalways been applied is that the disaster must be of such major proportions that the\ngovernor of the State in which the disaster takes place feels that it is beyond the\npower of the State and of the local units of government to meet it adequately.\xe2\x80\x9d 96\nCong. Rec. 15097 (1950) (statement of Sen. Holland). This requirement ensures\nthat the chief executive of the affected area believes there is a severe problem that\nstate and local resources are inadequate to handle. The President can then\nconsider whether the emergency calls for the kind of aid made available under the\nAct. If an event calls for one o r more of several forms of assistance, it seems\nlikely that Congress intended the Act to cover it.23 The President should,\n22 The district court states that the legislative history supports this interpretation but refers only to a House report\nissued during the 1966 amendments. Colon, supra, 507 F. Supp. at 1032. Since this Department appealed the\ndistrict court\'s decision to the First Circuit, it is self-evident that neither this Department nor the Executive in any\nway acquiesced in the reading given the A ct by the district court.\n23 M ajor disasters that may strike American communities can be of all kinds. No two disasters are alike\nin nature, scope of damage, or amounts of available State and local government resources.\nConsequently, the kind and amount o f Federal aid required wiU vary in each case. In one case the\nprincipal Federal assistance may be medical aid; in another case, temporary housing, in another case,\nevacuation transportation, and so forth.\nD isaster R elief\' Hearings on H .R . 8396, H .R 8461, H .R . 8420. H .R . 8390, and H R. 8435 Before the House\nComm, on Public Works, 81st Cong., 2d Sess. 7 8 -7 9 (1950) (statement of Elmer B. Staats, Assistant Director of the\nBureau o f the Budget).\n\n714\n\n\x0ctherefore, in deciding whether an event is an emergency or a major disaster,\nexamine the following statutory factors:\n1. The need for immediate centralized coordination of federal agency relief\nefforts;24\n2. The need for a central federal officer to coordinate with private relief\norganizations;25\n3. The need to take immediate steps to safeguard lives and property; to\nperform essential community services; or to distribute food and medicine;26\n4. The need to provide emergency mass care, including shelter and the\nprovision of food and other essential needs;27\n5. The need to take immediate steps to clear roads, build bridges, demolish\nunsafe structures, or erect temporary ones;28\n6. The need to warn the public about a risk;29\n7. The need to give priority to certain locales for applications for public\nhousing and for repair and construction of public facilities;30\n8. The need to allocate, on a tem porary basis, materials necessary for\nconstruction;31\n9. The need to take immediate steps to repair and restore certain nonprofit\nfacilities, such as schools, hospitals, and utilities;32\n10. The need to remove debris and wreckage;33\n11. The need to take immediate steps to provide temporary rent-free housing\nor mortgage or rental payments;34\n12. The need to provide extraordinary unemployment assistance, individual\nor family grants, and food stamps;35\n13. The need to provide assistance to those in need of immediate psychiatric\ncounseling;36\n14. The need to set up emergency communications and transportation\nsystems.37\nIt is obviously not possible, without specific facts, to opine on whether a\nparticular set of facts constitutes an emergency or a major disaster. We have not\nfound anything, either in the Act, its legislative history, or administrative practice\nunder it, that would disqualify an emergency or major disaster merely because it\ninvolved a massive influx of aliens into the country. President Carter used the Act\nto declare an emergency during the Cuban boatlift, and the specifics of the\ndamage being done to Florida at that time will no doubt aid others in evaluating\n24 42\n23 42\n\xe2\x80\x9c 42\n27 42\n28 42\n29 42\n30 42\n31 42\n32 42\n33 42\n34 42\n35 42\n36 42\n37 42\n\nU .S.C.\nU.S C.\nU SC\nU S.C\nU S.C.\nU .S.C\nU .S.C .\nU.S C.\nU.S C.\nU SC\nU SC\nU S.C.\nU S.C.\nU.S C.\n\n\xc2\xa7 5142(a).\n\xc2\xa7 5143(b)(3).\n\xc2\xa7 5145\n\xc2\xa7 5146(a)(4)\n\xc2\xa7 5146(a)(4)\n\xc2\xa7 5146(a)(4).\n\xc2\xa7 5153(a).\n\xc2\xa7 5158.\n\xc2\xa7 5172(b).\n\xc2\xa7 5173.\n\xc2\xa7 5174.\n\xc2\xa7\xc2\xa7 5177, 5178.\n\xc2\xa7 5183.\n\xc2\xa7\xc2\xa7 5185, 5186\n\n715\n\n\x0cthe merits of future requests. Not every immigration emergency will necessarily\nbe an emergency or major disaster under the Act\xe2\x80\x94 the President must make\nseparate determinations for each. We do not believe, however, that there is\nanything in the Act to preclude him from using the Act if he did determine that the\nrequisite need and suffering existed.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n716\n\n\x0c'


b'October 3, 1979\n\n79-74\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nJudges\xe2\x80\x94Appointment\xe2\x80\x94Age Factor\n\nRepresentative Pepper, Chairm an o f the House Select Committee on\nAging, has expressed concern over the practice o f considering the age o f\ncandidates for judicial appointm ent and excluding from consideration\nthose who are older than age 60. This brief m em orandum discussed the\nlegality o f that practice.\nThe practice is lawful. The C onstitution gives the President the power to\nappoint Federal judges. A rt. II, \xc2\xa7 2, cl. 2. In making these appointm ents,\nthe President is constitutionally entitled to exercise his discretion and to\nfollow policies that in his view will serve the interests o f the Nation. The\npractice o f considering the age o f judicial candidates reflects such a\npolicy.*\nRepresentative Pepper suggests that this practice is inconsistent with the\nAge Discrimination in Em ployment Act o f 1967, as amended (the \xe2\x80\x9c A ct\xe2\x80\x9d ).\nSee 29 U .S.C . \xc2\xa7 621 et seq. The Act provides, inter alia, that \xe2\x80\x9c [a]ll person\xc2\xad\nnel actions affecting * * * applicants for employment * * * in those\nunits o f the * * * judicial [branch] o f the Federal Government having\npositions in the competitive service * * * shall be made free from any\ndiscrimination based on age.\xe2\x80\x9d 29 U .S.C . \xc2\xa7 633a(a).\nW hatever this language means, it does not purport to bind the President\nin making appointm ents for judicial office. Candidates for judicial office\nare not \xe2\x80\x9c applicants for em ploym ent\xe2\x80\x9d in the ordinary sense o f that phrase.\nMoreover, by limiting the applicability o f the statute to \xe2\x80\x9c units o f the\n\n\xe2\x80\x98 The practice is not barred by any o ther provisions o f the Constitution. It is doubtful that\nthe President\xe2\x80\x99s power to appoint persons to high Governm ent office is subject to any\nrestraint such as those grounded in the First and Fifth Am endm ents, which may regulate in\nsome respects the hiring and firing o f some kinds o f Governm ent employees. In any case, the\npractice o f considering a judicial candidate\xe2\x80\x99s age abridges no such restraint. It presents no\nFirst A m endm ent question. It deprives no one o f liberty or property. It establishes an age\nclassification that is fully as rational and defensible from a constitutional standpoint as age\nclassifications that have been upheld in other contexts. C f, Massachusetts v. Murgia, A ll\nU.S. 307 (1976); Palmer v. Ticcione, 576 F. (2d) 459 (2d Cir. 1978).\n\n388\n\n\x0c* * * judicial [branch] * * * having positions in the competitive service,\xe2\x80\x9d\nCongress may have intended to exclude noncompetitive positions from the\ncoverage o f the statute, at least with respect to the judicial branch. The\noperative language was added to the Act by Pub. L. No. 93-259, 88 Stat.\n74. We have found nothing in the legislative history o f that amendment that\nwould support or require a contrary conclusion.\nRepresentative Pepper suggests that the \xe2\x80\x9c policy\xe2\x80\x9d o f the Act is violated\nnonetheless. With all due respect, that argument is o f doubtful merit. The\nAct does not apply to all appointm ents in the Federal Government; and it\nexpresses on policy whatever, so far as we can determine, with respect to\njudicial appointm ents or candidates for judicial appointm ent. Indeed, if\nCongress had purported to bar the President from considering age in the\nselection o f judicial appointees, the Act would present a substantial consti\xc2\xad\ntutional question. Congress has power to prescribe qualifications for office;\nbut the power o f appointm ent belongs to the President, and it cannot be\nusurped or abridged by Congress. See, Buckley v. Valeo, 424 U.S. 1 (1976);\ncf., Springer v. Philippine Islands, 277 U.S. 189 (1928). There is no settled\nconstitutional rule that determines how these two powers\xe2\x80\x94the power of\nCongress to prescribe qualifications and the power o f the President to ap\xc2\xad\npoint\xe2\x80\x94are to be reconciled,*but it seems clear that there must be some con\xc2\xad\nstitutionally prescribed balance. The balance may shift depending on the\nnature o f the office in question. For example, Congress has required that\nthe President appoint members o f both parties to certain kinds o f boards\nand commissions; there is serious question whether Congress could con\xc2\xad\nstitutionally require the President to follow the same practice with respect to\nhis Cabinet.\nThe question o f age discrimination in the selection o f candidates for\njudicial office presents a similar problem. The power to appoint Federal\njudges, who hold office on good behavior, is by tradition and design one o f\nthe most significant powers given by the Constitution to the President. It\nprovides one o f the few administrative mechanisms through which the\nPresident can exert a long-term influence over the development and adm in\xc2\xad\nistration o f law in the courts. The President\xe2\x80\x99s present power to exert that in\xc2\xad\nfluence to the fullest by preferring candidates for appointm ent who are like\xc2\xad\nly to have long, rather than short, careers on the bench is therefore a m atter\no f constitutional significance. W hether Congress could deny the President\nthat power by requiring him to disregard utterly the age o f candidates for\nappointm ent has never been considered by the courts, but because o f the\ngravity o f the constitutional questions it raises, we would be most reluctant\nto construe any statute as an attem pt to regulate the President\xe2\x80\x99s choice in\nthat way, absent a very clear indication in the Age Discrimination in\nEmployment Act o f 1967.\nJohn M . Harmon\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n389\n\n\x0c'


b'Scope of Treasury Department Purchase Rights with Respect to\nFinancing Initiatives of the U.S. Postal Service\nIf the Treasury Departm ent has declared its election to purchase a proposed U.S. Postal Service bond\nissue pursuant to 39 U.S.C. \xc2\xa7 2006(a) prior to the proposed date of issuance and is pursuing goodfaith negotiations towards such purchase as o f such date, the USPS is not free to proceed with\nissuance o f the bonds to other purchasers solely because Treasury has not completed purchase\nof the bonds within a 15-day period following USPS\xe2\x80\x99 initial notice of the proposed issue.\nIf, in the above circumstances, Treasury and the USPS are unable to negotiate mutually agreeable\nterms for purchase by Treasury within a commercially reasonable period of time following USPS\xe2\x80\x99\nproposed date for the issuance o f its bonds, then the USPS may proceed with the issuance of\nsuch bonds to other purchasers.\nTreasury is not authorized to dictate or control the terms of the USPS offering, but it must be afforded\na reasonable opportunity to reach mutually agreeable terms with the USPS when the original terms\nproposed by the USPS are unacceptable. That reasonable opportunity is not rigidly limited by\nthe 15-day period for declaring an election to purchase.\n\nOctober 10, 1995\nM e m o r a n d u m O pin io n\n\nf o r the\n\nV ic e P r e s id e n t\n\nand\n\nG en er a l Counsel\n\nU n i t e d S t a t e s P o s t a l S e r v ic e\nand\n\nT h e G en era l C oun sel\nDe p a r t m e n t\n\nof the\n\nT reasury\n\nI. Background and Summary\nThis memorandum responds to the U.S. Postal Service\xe2\x80\x99s (\xe2\x80\x9c USPS\xe2\x80\x9d ) request that\nthis Office reconsider and rescind an opinion issued on January 19, 1993,1 in\nwhich we responded to the Department of the Treasury\xe2\x80\x99s (\xe2\x80\x9c Treasury\xe2\x80\x9d ) request\nfor an opinion regarding the statutory relationship between the USPS and Treasury\nwith respect to USPS financing initiatives. In the 1993 opinion, we concluded\nthat (1) under 39 U.S.C. \xc2\xa7 2006(a), Treasury\xe2\x80\x99s failure to purchase a USPS bond\nissue prior to the scheduled date of sale on the market proposed by USPS does\nnot relieve USPS of further obligation to negotiate with the Treasury towards\nagreeable terms of sale, or permit USPS to proceed with the market sale as origi\xc2\xad\nnally scheduled, as long as Treasury has duly declared its \xe2\x80\x9c election\xe2\x80\x9d to purchase\nand continues to negotiate in good faith towards the purchase; and (2) the transfer\nof the proceeds of a bond offering by the USPS to a trustee for the purpose of\nhaving the trustee employ those proceeds to make and use investments to dis1\n\nAuthority o f the Secretary o f the Treasury Regarding Postal Service Bond Offering, 17 Op. O.L.C. 6 (1993)\n\n(\xe2\x80\x9c 1993 opinion\xe2\x80\x9d )-\n\n238\n\n\x0cScope o f Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal\nService\n\ncharge outstanding USPS debt would require the prior approval of the Treasury\nunder the provisions of 39 U.S.C. \xc2\xa7 2003.\nIn response to arguments and representations made by USPS, and after giving\nwritten notice to Treasury, this Office has undertaken a reconsideration of its 1993\nopinion.2 We now reaffirm the conclusions reached in that opinion, with the fol\xc2\xad\nlowing clarification. We conclude that, although Treasury\xe2\x80\x99s declared election to\npurchase a USPS offering may require USPS to negotiate with Treasury towards\nagreeable terms of sale even beyond the originally scheduled market offering date,\nUSPS is not required to postpone the market sale indefinitely if Treasury has\nnot purchased the offering after that date has passed. Rather, USPS is only obli\xc2\xad\ngated to negotiate with Treasury in good faith for a commercially reasonable\nperiod o f time, under the circumstances presented by the proposed transaction,\nbefore proceeding with the sale.\nII. Analysis\nThe original opinion addressed two distinct issues, and both were resolved in\nfavor of the position advocated by Treasury.\nOn the first issue, we conclude that this Office was correct in opining that,\nunder 39 U.S.C. \xc2\xa7 2003(c)-(d), Treasury\xe2\x80\x99s approval was required as a precondition\nto USPS placing the proceeds of its proposed bond offering with a trustee who\nwould invest the proceeds in securities and use the investment return to discharge\noutstanding USPS debt. We find no basis for changing or revising the original\nopinion\xe2\x80\x99s analysis of this issue, and we hereby readopt and reaffirm that analysis.\nHowever, there appears to be some basis for clarifying one particular aspect\nof that portion of the opinion interpreting Treasury\xe2\x80\x99s purchase rights under 39\nU.S.C. \xc2\xa7 2006(a). Specifically, our 1993 opinion suggested that the negotiations\nthat could be invoked by Treasury\xe2\x80\x99s \xe2\x80\x9c election\xe2\x80\x9d to purchase the USPS bond\noffering were not subject to any time limitation, even when Treasury has not\neffected a purchase of the offering by the date originally scheduled by USPS for\nsale on the market. We now conclude that if such negotiations are conducted\nin good faith by USPS, yet are not concluded within a commercially reasonable\nperiod of time following the initially proposed offering date, USPS may proceed\nwith the proposed offering notwithstanding Treasury\xe2\x80\x99s unconsummated election\nto purchase.\n2 Our reconsideration o f the original opinion in this matter was initiated by a request from the USPS. The request\nwas originally set forth in a letter dated May 4, 1993, from Mary S. Elcano, Vice President and General Counsel\no f the U.S. Postal Service, to Daniel Koffsky, Acting Assistant Attorney General, Office of Legal Counsel. By\nletter dated March 17, 1995, the USPS has consented to be bound by the final opinion to be issued by this Office\nin this matter. On the basis o f that consent, we are proceeding with our reconsideration o f the 1993 opinion.\n\n239\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nA . Treasury Restraints on USPS Authority to Invest or Deposit Funds\n\nThe first and easier issue concerns the restraints on the authority of USPS to\ninvest or deposit moneys of the Postal Service Fund (\xe2\x80\x9c Fund\xe2\x80\x9d ) set forth in 39\nU.S.C. \xc2\xa72003. Section 2003(c) provides that if USPS determines there are Fund\nmoneys \xe2\x80\x9c in excess of current needs,\xe2\x80\x9d such funds may be invested in Government\nsecurities by and through the Secretary of the Treasury and, subject to the Sec\xc2\xad\nretary\xe2\x80\x99s prior approval, such excess funds may also be invested in non-Govemment securities. Section 2003(d) separately provides that the Secretary of the\nTreasury must pre-approve any \xe2\x80\x9c deposits\xe2\x80\x9d of Fund moneys in a Federal Reserve\nbank, a depository for public funds, or in \xe2\x80\x9c such other places\xe2\x80\x9d as the USPS and\nthe Secretary \xe2\x80\x9c may mutually agree.\xe2\x80\x9d\nUSPS proposed to place the proceeds of its bond refinancing with a trustee,\nwho would then invest the funds in government securities (it is not disputed that\nthe refinancing proceeds would constitute part of the Fund). The trustee would\nthen use the principal and interest of those government securities to redeem\napproximately $2.6 billion in outstanding USPS debt (i.e., the debt being\nrefinanced). Treasury contended that USPS could not place the bond proceeds\nwith the trustee without Treasury\xe2\x80\x99s prior approval \xe2\x80\x94 which apparently would not\nbe forthcoming\xe2\x80\x94 under the above-quoted provisions of 39 U.S.C. \xc2\xa72003. USPS\ncontends that neither \xc2\xa7 2003(c) nor (d) applied to this proposed \xe2\x80\x9c in substance\ndefeasance,\xe2\x80\x9d on the theory that the investments made under the trustee arrange\xc2\xad\nment would not constitute true investments because they were only an alternative\nmechanism for the repayment of debt; and on the further theory that placement\nof the funds with the trustee did not constitute a \xe2\x80\x9c deposit\xe2\x80\x9d within the meaning\nof 39 U.S.C. \xc2\xa7 2003(d).\nUSPS\xe2\x80\x99 renewed argument that the statutory requirement for Treasury\xe2\x80\x99s handling\nor approval of Fund investments is inapplicable to these arrangements is\nunpersuasive and is adequately addressed in the original OLC opinion. The\ntrustee\xe2\x80\x99s investment of the Fund moneys in government securities is clearly an\ninvestment for purposes of \xc2\xa72003(c)\xe2\x80\x99s restrictions, notwithstanding the participa\xc2\xad\ntion of the trustee as an intermediary. See Postal Reorganization Act\xe2\x80\x94 Investment\no f Excess Funds o f the Postal Service, 43 Op. Att\xe2\x80\x99y Gen. 45, 47 (1977).3 This\ninvestment arrangement is therefore subject to the requirements of 39 U.S.C.\n\xc2\xa7 2003(c).\nThe additional argument that the initial \xe2\x80\x9c placement\xe2\x80\x9d of funds with a trustee\nis not a \xe2\x80\x9c deposit\xe2\x80\x9d within the meaning of \xc2\xa7 2003(d), and therefore not subject\nto approval by Treasury, is also unconvincing. In this regard, we reject the USPS\n3 In his 1977 opinion construing the investment and deposit restrictions o f 39 U.S.C. \xc2\xa72003, the Attorney General\nem phasized that \xe2\x80\x9c the limitations in \xc2\xa72003 are limitations on any general powers [of the USPS] insofar as they\napply to the Fund.\xe2\x80\x9d 43 Op. A tt\xe2\x80\x99y Gen. at 47. He further stated that \xe2\x80\x9c the authority to purchase Government Obliga\xc2\xad\ntions, carefully described and carefully circum scribed in \xc2\xa7 2003(c), is to the exclusion o f any other authority in\nthis regard.\xe2\x80\x9d Id.\n\n240\n\n\x0cScope o f Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal\nService\n\ncontention that the placement of funds with the trustee was not a deposit within\nthe meaning of that section because the funds were not subject to free withdrawal\nby USPS as depositor. There is nothing in \xc2\xa7 2003(d) that requires or indicates\nsuch a narrow interpretation of the term \xe2\x80\x9c deposit.\xe2\x80\x9d Rather, that subsection broadly\nencompasses the deposit of Fund moneys not only in Federal Reserve banks or\nin \xe2\x80\x9c depositories for public funds,\xe2\x80\x9d but also \xe2\x80\x9c in such other places and in such\nmanner as the Postal Service and the Secretary may mutually agree.\xe2\x80\x9d That expan\xc2\xad\nsive description demonstrates that \xc2\xa7 2003(d) was intended to apply to virtually\nany disposition of Fund moneys, not merely to conventional bank-type deposits.\nThis conclusion is consistent with the broad interpretation of Treasury\xe2\x80\x99s\nauthority under \xc2\xa7 2003(d) reflected in the Attorney General\xe2\x80\x99s opinion in 1977,\nresolving a comparable dispute between Treasury and the Postal Service. In con\xc2\xad\nfirming that \xc2\xa7 2003(d) imposed limitations on the general powers of the USPS\nin making dispositions of the Fund, the Attorney General stated:\nThus, for example, \xc2\xa7 2003(d), which authorizes the Postal Service\nto deposit moneys in the Fund in bank accounts with the approval\nof the Secretary, restricts any implicit authority to open accounts\nwhich the Service might otherwise have under the general provi\xc2\xad\nsions of the Postal Reorganization Act; and it could not reasonably\nbe argued that in addition to deposits made under this authority\nthe Service might make Fund deposits anywhere else, without the\nSecretary\xe2\x80\x99s approval.\n\n43 Op. Att\xe2\x80\x99y Gen. at 47 (emphasis added). The Attorney General\xe2\x80\x99s 1977 opinion\nreenforces our view that the purposely restrictive provisions of \xc2\xa7 2003(d) should\nnot be circumvented by an unduly narrow interpretation of the verb \xe2\x80\x9c deposit.\xe2\x80\x9d\nB. Treasury Restraints on USPS Right to Sell Bonds\nThe second issue is whether the USPS was entitled to proceed with a proposed\nmarket offering of USPS bonds when Treasury, within the 15-day pre-offering\nnotice period required by 39 U.S.C. \xc2\xa7 2006(a), had invoked (but not actually exer\xc2\xad\ncised) its right to purchase that offering. That section provides (emphasis added):\nAt least 15 days before selling any issue of obligations under\nsection 2005 of this title, the Postal Service shall advise the Sec\xc2\xad\nretary of the Treasury of the amount, proposed date of sale, matu\xc2\xad\nrities, terms and conditions, and expected maximum rates of interest\nof the proposed issue in appropriate detail and shall consult with\nhim or his designee thereon. The Secretary may elect to purchase\nsuch obligations under such terms, including rates o f interest, as\n241\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nhe and the Postal Service may agree, but at a rate of yield no less\n\nthan the prevailing yield on outstanding marketable Treasury securi\xc2\xad\nties of comparable maturity, as determined by the Secretary. If the\nSecretary does not purchase such obligations, the Postal Service\nmay proceed to issue and sell them to a party or parties other than\nthe Secretary upon notice to the Secretary and upon consultation\n\nas to the date of issuance, maximum rates of interest, and other\nterms and conditions.\nUSPS argues that even if Treasury has declared its \xe2\x80\x9c election\xe2\x80\x9d to purchase the\noffering, and negotiations to reach an agreement on terms have been undertaken,\nthe only way Treasury can prevent USPS from proceeding on schedule with the\nproposed market offering is by completing the actual purchase of the offering\n(and not through mere continuation of good-faith negotiations) before expiration\nof the 15-day advance notice period. In contrast, Treasury has contended that it\nhas an \xe2\x80\x9c absolute right of first refusal\xe2\x80\x9d with respect to the proposed offering and,\nonce it has given notice of its \xe2\x80\x9c election\xe2\x80\x9d to purchase within the 15-day period,\nUSPS is barred from proceeding with a market sale of the bonds and must con\xc2\xad\ntinue to pursue negotiations with Treasury \xe2\x80\x94 if necessary, beyond the initially pro\xc2\xad\nposed offering date.\nOur original opinion (1) rejected the USPS argument that nothing less than\nactual purchase of the offering by Treasury could prevent USPS from proceeding\nwith the scheduled offering; (2) determined that the statute does not require\nTreasury to have agreed on terms with USPS before exercising its election to\npurchase and enables Treasury to require USPS to bargain exclusively with\nTreasury even beyond the date originally proposed for the offering; and (3)\nindicated that \xe2\x80\x9c [t]here is no limit on the negotiation period\xe2\x80\x9d that is implicitly\nrequired by the statute once Treasury has stated that it \xe2\x80\x9c elect[s] to purchase\xe2\x80\x9d\nthe offering. 17 Op. O.L.C. at 7, 9-11.\nWe reaffirm conclusions (1) and (2) and again reject the USPS argument that\nTreasury\xe2\x80\x99s priority purchase right under 39 U.S.C. \xc2\xa7 2006(a) automatically expires\nif Treasury\xe2\x80\x99s election to purchase does not result in the completion of negotiations\nand consummation of the purchase by the proposed sale date.\nOn this point, we have again considered USPS\xe2\x80\x99 contentions that certain legisla\xc2\xad\ntive history underlying the Federal Financing Bank Act of 1973, Pub. L. No. 93224, 87 Stat. 937 (1973) (\xe2\x80\x9c FFBA\xe2\x80\x9d ) confirms the USPS argument that Treasury\nmust complete (as opposed to merely initiating) the purchase of a proposed USPS\ndebt offering within 15 days after receiving first notice of the offering, or waive\nall purchase rights. In particular, USPS cites language from committee reports\non the FFBA stating that \xe2\x80\x9c the Secretary of the Treasury may purchase all Postal\nService obligations if he does so within the time period prescribed in 39 U.S.C.\n2006(a).\xe2\x80\x9d H.R. Rep. No. 93-299, at 5 (1973), reprinted in 1973 U.S.C.C.A.N.\n242\n\n\x0cScope oj Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal\nService\n\n3153, 3157 (\xe2\x80\x9c PRA House Report\xe2\x80\x9d ). Although this argument is not without force,\nwe do not find it sufficiently persuasive to alter our conclusion on this point.\nFirst, observations in committee reports concerning the FFBA simply do not\nprovide persuasive legislative history for purposes of the Postal Reorganization\nAct, Pub. L. No. 91-375, 84 Stat. 719 (1970) (\xe2\x80\x9c PRA\xe2\x80\x9d ). The FFBA was enacted\nthree years after the PRA and concerned a more comprehensive range of federal\nagency financing issues. It is well-settled that the pronouncements of a subsequent\nCongress do not constitute reliable evidence of the intent or understandings of\na prior Congress. Consumer Product Safety Comm\xe2\x80\x99n v. GTE Sylvania, Inc., 447\nU.S. 102, 117 (1980); United States v. Price, 361 U.S. 304, 313 (1960). We are\nnot persuaded that this sound general principle should be disregarded in inter\xc2\xad\npreting the PRA.\nSecond, the committee report on the FFBA was not concerned with the discrete\nissue raised here \xe2\x80\x94 whether Treasury must merely initiate, or actually effectuate,\nthe purchase of a USPS offering within the 15-day initial notice period \xe2\x80\x94 as\nopposed to the broader question of whether the USPS would retain \xe2\x80\x9c independent\nfinancing authority\xe2\x80\x9d after enactment of the F F B A . The segments of the FFBA\ncommittee reports in question were intended to provide broad assurance that the\nFFBA would not unduly impair USPS\xe2\x80\x99 existing financing authority under the\nPRA, and thus presented a broad interpretation of that authority. These post-enactment descriptions of \xc2\xa7 2006(a) simply cannot be equated with a contemporaneous\nand authoritative explication of the section\xe2\x80\x99s provisions by the Congress that\nenacted it.\nThird, the excerpts from the FFBA legislative history themselves contain an\nelement of ambiguity on the matter in dispute. Although the segment quoted above\nwould support the USPS contentions, it is followed by the following additional\nstatement:\nHowever, if the [Federal Financing] Bank or the Secretary [of the\nTreasury] did not act to take up a proposed Postal borrowing within\nthe prescribed time limit [provided in 39 U.S.C. 2006(a)], the Postal\nService could, on its own initiative, borrow in the private market\nunder its independent Postal Reorganization Act authority.\nPRA House Report at 5, reprinted in 1973 U.S.C.C.A.N. at 3157-58 (emphasis\nadded). Treasury\xe2\x80\x99s declaration of an election to purchase can certainly be viewed\nas \xe2\x80\x9c actfing] to take up\xe2\x80\x9d the proposed obligations, even when the purchase has\nnot been fully consummated. That phrase connotes the initiation of the purchasing\nprocess. Consequently, even the FFBA committee report highlighted by USPS\ndoes not unambiguously support its interpretation of \xc2\xa7 2006(a).\nFinally, and most importantly, the text of \xc2\xa7 2006(a) strongly indicates that its\ndrafters contemplated that Treasury would sometimes find it necessary to negotiate\n243\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nmodified terms to govern the proposed issue after Treasury has declared its elec\xc2\xad\ntion to purchase. Thus, the section specifically provides:\nThe Secretary may elect to purchase such obligations under such\nterms, including rates o f interest, as he and the Postal Service may\nagree, but at a rate of yield no less than the prevailing yield on\n\noutstanding marketable Treasury securities of comparable maturity,\nas determined by the Secretary.\n39 U.S.C. \xc2\xa7 2006(a) (emphasis added). If the section required Treasury to consum\xc2\xad\nmate its purchase option within 15 days after initial notice, USPS could easily\nfrustrate the statute\xe2\x80\x99s provision for purchase by Treasury at negotiated terms that\nmay sometimes differ from those originally proposed by USPS. It could do so\nby simply refusing to budge in any respect from its original terms during the\n15-day period following initial notice. We do not believe that Congress intended\nto circumscribe Treasury\xe2\x80\x99s purchase options to that degree in enacting \xc2\xa7 2006(a).\nHowever, we modify our prior opinion insofar as it indicates that Treasury may\ndelay the USPS offering indefinitely with unlimited negotiations once it has stated\nits election to purchase. We conclude that such negotiations cannot be prolonged\nbeyond USPS\xe2\x80\x99 scheduled market offering date to such an extent as to impair\nsubstantially USPS\xe2\x80\x99 capacity to consummate the proposed offering in a timely\nfashion; rather, Treasury\xe2\x80\x99s option to purchase must be consummated within a\ncommercially reasonable period of time.\nEnabling Treasury to force an indefinite delay in a proposed USPS bond\noffering \xe2\x80\x94 even when it has not bound itself to purchase the offering on the terms\nproposed by US>PS or on any other specified terms by the scheduled date of sale \xe2\x80\x94\nappears inconsistent with the statute\xe2\x80\x99s intent to provide USPS with a significant\ndegree of business freedom and to prevent Treasury from exercising a blanket\nveto over USPS financial offering proposals. Thus, the House Report on the PRA\nemphasized that Treasury\xe2\x80\x99s authority under \xc2\xa7 2006(a) did not extend to preventing\nUSPS from borrowing and did not include \xe2\x80\x9c any inappropriate power . . . to con\xc2\xad\ntrol the scale of Postal Service operations.\xe2\x80\x9d H.R. Rep. No. 91-1104, at 21 (1970),\nreprinted in 1970 U.S.C.C.A.N. 3649, 3669 (\xe2\x80\x9c House Report\xe2\x80\x9d ).\nIn other commercial contexts, courts have established that a purchase option\nor right of first refusal4 (which was Treasury\xe2\x80\x99s description of the rights granted\nto it under the statute) must be exercised within a \xe2\x80\x9c commercially reasonable\xe2\x80\x9d\nperiod of time. E.g., Barco Urban Renewal Corp. v. Housing Auth. o f Atlantic\nCity, 674 F.2d 1001, 1007 (3d Cir. 1982) (\xe2\x80\x9c in these circumstances the right of\nfirst refusal lasts for a commercially reasonable time\xe2\x80\x9d ); West Texas Transmission,\n4 In a portion o f our 1993 opinion, we used the term \xe2\x80\x9c right o f first refusal*\xe2\x80\x99 as a shorthand label for one of\nthe three possible readings that might be applied to Treasury\xe2\x80\x99s purchase rights under \xc2\xa7 2006(a). 17 Op. O.L.C. at\n9. Here, we use the term in its general com m ercial sense rather than in the narrower sense in which we employed\nit in the 1993 opinion to describe a particular interpretation o f \xc2\xa7 2006(a).\n\n244\n\n\x0cScope o f Treasury Department Purchase Rights with Respect to Financing Initiatives o f the U.S. Postal\nService\n\nL.P. v. Enron Corp., 907 F.2d 1554, 1562 (5th Cir. 1990), cert, denied, 499 U.S.\n906 (1991); Brauer v. Hobbs, 391 N.W.2d 482, 486 (Mich. Ct. App. 1986). In\n\nthe absence of contrary language in the statute, this well-established commercial\nprinciple provides a relevant consideration in construing the purchase rights incor\xc2\xad\nporated in \xc2\xa7 2006(a).\nWe do not think the statute was intended to enable Treasury to prevent USPS\nfrom proceeding with a proposed bond offering by requiring USPS to submit to\nan indefinite and unlimited period of negotiations. Such power would constitute\nthe kind of \xe2\x80\x9c inappropriate power in the Treasury to control the scale of Postal\nService operations\xe2\x80\x9d that was foresworn in the legislative history. See House\nReport at 21, reprinted in 1970 U.S.C.C.A.N. at 3669.\nIf Treasury\xe2\x80\x99s ability to delay the proposed USPS offering date for purposes\nof negotiating agreeable purchase terms is limited to a commercially reasonable\nperiod, however, it would not be inordinate or inappropriate.5 Although we cannot\nproject a specific period or time-range that would be \xe2\x80\x9c reasonable\xe2\x80\x9d for the varying\ncircumstances that USPS might confront in the future, we believe that a delay\nof such length as to substantially alter the circumstances which established the\npremises of the originally proposed offering would generally be considered\nunreasonable. Generally accepted custom and practice in the government securities\nsector would provide an appropriate point of reference for determining commer\xc2\xad\ncially reasonable timeframes in this context.\nIn summary, our conclusions regarding Treasury\xe2\x80\x99s purchase rights under 39\nU.S.C. \xc2\xa7 2006(a) are as follows:\n1. If Treasury has declared its election to purchase the proposed issue before\nthe proposed sale date, and Treasury is still pursuing good-faith negotiations\ntowards mutually agreeable terms, the USPS is not free to proceed with a sale\non the market merely because Treasury has not completed the purchase within\nthe 15-day period following initial notice of the proposed sale.\n2. Treasury may not frustrate USPS\xe2\x80\x99 right to sell the obligations elsewhere for\nan indefinite period by declining to purchase at the originally proposed terms\nwhen good-faith negotiations have failed to produce mutually agreeable alternative\nterms. If Treasury and USPS are unable to negotiate mutually agreeable terms\nwithin a commercially reasonable period of time following the originally proposed\nsale date, USPS may proceed to sell to another purchaser.\n3. Treasury is not authorized to dictate or control the terms of the USPS\noffering, but it must be afforded a reasonable opportunity to reach mutually agree\xc2\xad\nable terms with USPS when the original terms proposed by USPS are unaccept\xc2\xad\n5 This interpretation is consistent with then Under Secretary o f the Treasury Paul Volcker\xe2\x80\x99s testimony during the\nSenate hearings on the PRA, where he stated that the provisions in question would give the Secretaiy the authority\n\xe2\x80\x9c to supervise the timing o f the financing and the terms o f any financing by the postal authority, but he can never\nput him self in a position where he is preventing the postal authority from obtaining what financing they think is\nne ce ssa ry /\xe2\x80\x99 Postal Modernization: Hearings Before the Senate Comm, on Post Office and Civil Service, 91st Cong.\n311 (1969).\n\n245\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nable. That reasonable opportunity is not rigidly limited by the 15-day period for\ndeclaring an election to purchase.\nWALTER DELLINGER\nAssistant Attorney General\nOffice of Legal Counsel\n\n246\n\n\x0c'