b'Status of National Veterans Business\nDevelopment Corporation\nThe National Veterans Business Development Corporation is a \xe2\x80\x9cGovernment corporation\xe2\x80\x9d under\n5 U.S.C. \xc2\xa7 103 and an \xe2\x80\x9cagency\xe2\x80\x9d under 31 U.S.C. \xc2\xa7 9102.\n\nMarch 19, 2004\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF MANAGEMENT AND BUDGET\nYou have asked for our opinion whether the National Veterans Business Development Corporation (\xe2\x80\x9cNVBDC\xe2\x80\x9d) is a \xe2\x80\x9cGovernment corporation\xe2\x80\x9d under 5\nU.S.C. \xc2\xa7 103 (2000) and an \xe2\x80\x9cagency\xe2\x80\x9d under 31 U.S.C. \xc2\xa7 9102 (2000). We\nconclude that the NVBDC comes within both statutory terms.\nI.\nThe Veterans Entrepreneurship and Small Business Development Act of 1999,\nPub. L. No. 106-50, 113 Stat. 233, established the NVBDC as a federally chartered corporation and provided for it to be incorporated under the laws of the\nDistrict of Columbia. 15 U.S.C. \xc2\xa7 657c(a) (2000). The NVBDC is \xe2\x80\x9cto expand the\nprovision of and improve access to technical assistance regarding entrepreneurship\nfor the Nation\xe2\x80\x99s veterans\xe2\x80\x9d and \xe2\x80\x9cto assist veterans . . . with the formation and\nexpansion of small business concerns by working with and organizing public and\nprivate resources.\xe2\x80\x9d Id. \xc2\xa7 657c(b). To carry out these purposes, the NVBDC is,\namong other things, to set up and maintain a network of information and assistance centers, id. \xc2\xa7 657c(f), and create a \xe2\x80\x9cProfessional Certification Advisory\nBoard\xe2\x80\x9d that will devise uniform guidelines and standards for the professional\ncertification of members of the armed services, aiding in their transition to civilian\noccupations and professions. Id. \xc2\xa7 657c(j)(1).\nThe NVBDC is governed by a board of directors consisting of nine voting\nmembers and three non-voting ex officio members. Id. \xc2\xa7 657c(c)(1). The voting\nmembers, not more than five of whom may be members of the same political\nparty, are appointed by the President, after recommendations by certain members\nof Congress. Id. \xc2\xa7 657c(c)(2). Except for some of the members first appointed, the\nvoting members are appointed for a term of six years. Id. \xc2\xa7 657c(c)(6). A voting\nmember may not be \xe2\x80\x9can officer or employee of the United States while serving as\na member of the Board of Directors or [have been an officer or employee of the\nUnited States] during the 2-year period preceding such service.\xe2\x80\x9d Id. \xc2\xa7 657c(c)(8).\nThe non-voting members are the Administrator of the Small Business Administration, the Secretary of Defense, and the Secretary of Veterans Affairs. Id.\n\xc2\xa7 657c(c)(3). The voting members elect from among themselves a chairperson of\nthe Board of Directors to serve a term of two years. Id. \xc2\xa7 657c(c)(5).\n\n70\n\n\x0cStatus of National Veterans Business Development Corporation\n\nCongress authorized appropriations for the NVBDC for the first four years of\nits existence, see id. \xc2\xa7 657c(k)(1), but the NVBDC may also obtain funds from\nsources other than the federal government. Under the Veterans Entrepreneurship\nAct and a subsequent appropriations bill, Consolidated Appropriations Act, 2001,\nPub. L. No. 106-554, 114 Stat. 2763 (2000), Congress established certain matching requirements so that the annual amount made available to the NVBDC from\nthe federal government will vary according to the NVBDC\xe2\x80\x99s ability to secure nonfederal funding. 15 U.S.C. \xc2\xa7 657c(k)(2). The Board of Directors must \xe2\x80\x9cdeposit all\nfunds of the Corporation in federally chartered and insured depository institutions\xe2\x80\x9d\nuntil the funds are spent, id. \xc2\xa7 657c(e)(1), and the statute specifies the procedures\nby which expenditures are to be approved, e.g., id. \xc2\xa7 657c(e)(2)(A). The NVBDC\nis to institute a plan for raising private funds and becoming a self-sustaining\ncorporation. Id. \xc2\xa7 657c(k)(3). It must report annually to the President and Congress on its \xe2\x80\x9cactivities and accomplishments . . . for the preceding year\xe2\x80\x9d and on\n\xe2\x80\x9cthe efforts of Federal, State and private organizations to assist veterans in the\nformation and expansion of small business concerns.\xe2\x80\x9d Id. \xc2\xa7 657c(g). The NVBDC,\nfinally, \xe2\x80\x9cmay use the United States mails in the same manner and under the same\nconditions as the departments and agencies of the United States.\xe2\x80\x9d Id. \xc2\xa7 657c(i).\nAt issue here is the status of the NVBDC under title 5, United States Code. The\nOffice of Management and Budget (\xe2\x80\x9cOMB\xe2\x80\x9d) and the Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) have concluded that the NVBDC is a \xe2\x80\x9cGovernment corporation\xe2\x80\x9d under 5 U.S.C. \xc2\xa7 103 and thus is an \xe2\x80\x9cExecutive agency\xe2\x80\x9d under 5 U.S.C.\n\xc2\xa7 105 (2000). See Letter for Yvette M. Dennis, Program Examiner, OMB, from\nCharles R. Henry, President and Chief Executive Officer, NVBDC (May 19,\n2003) (summarizing and replying to OMB position) (\xe2\x80\x9cHenry Letter\xe2\x80\x9d); Letter for\nPhyllis Thompson, from James F. Hicks, Assistant General Counsel, OPM (Nov.\n13, 2001). Private law firms retained by the NVBDC have given the contrary\nopinion. Memorandum for Charles Henry, President and Chief Executive Officer,\nNVBDC, from James J. McCullough, et al., Fried, Frank, Harris, Shriver &\nJacobson, Re: Applicability of 5 U.S.C. \xc2\xa7 5373 Pay Cap to the National Veterans\nBusiness Development Corporation (Dec. 5, 2001); Memorandum for Robert\nGlassman, from Jay P. Urwitz, Hale and Dorr, Re: Authority of Corporation to\nHold Closed Directors\xe2\x80\x99 Meeting (June 11, 2001); see also Memorandum for\nMartin Berkowitz, Chief Financial Officer, NVBDC, from Jay Urwitz, Hale and\nDorr, Re: Inapplicability of FAR to NVBDC Procurement (Apr. 15, 2002). Also in\nquestion is whether the NVBDC is an agency under 31 U.S.C. \xc2\xa7 9102, which\nforbids an \xe2\x80\x9cagency\xe2\x80\x9d from creating a corporation to act as an agency unless\nauthorized under a law. This issue is not specifically discussed in the papers that\nhave been provided to us.\n\n71\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nII.\nUnder 5 U.S.C. \xc2\xa7 103, \xe2\x80\x9c\xe2\x80\x98Government corporation\xe2\x80\x99 means a corporation owned\nor controlled by the Government of the United States.\xe2\x80\x9d1 Whether the NVBDC is a\n\xe2\x80\x9cGovernment corporation\xe2\x80\x9d would affect whether certain personnel laws would\napply to the NVBDC.\nApart from the present dispute whether the NVBDC is a \xe2\x80\x9cGovernment corporation\xe2\x80\x9d under this statute, there can be little doubt that it is part of the United States\ngovernment for purposes of the Constitution. In Lebron v. National Railroad\nPassenger Corp., 513 U.S. 374, 400 (1995), the Supreme Court held that \xe2\x80\x9cwhere,\nas [in the case of Amtrak], the Government creates a corporation by special law,\nfor the furtherance of governmental objectives, and retains for itself permanent\nauthority to appoint a majority of the directors of that corporation, the corporation\nis part of the Government for purposes of the First Amendment.\xe2\x80\x9d Although Lebron\ndealt with a claim under the First Amendment, the Court\xe2\x80\x99s decision about the\nconstitutional status of such a corporation cannot be confined to that particular\ncontext. As we have previously concluded, \xe2\x80\x9cwe can conceive of no principled\nbasis for distinguishing between the status of a federal entity vis-a-vis constitutional obligations relating to individual rights and vis-a-vis the structural obligations that the Constitution imposes on federal entities.\xe2\x80\x9d The Constitutional\nSeparation of Powers Between the President and Congress, 20 Op. O.L.C. 124,\n148 n.70 (1996) (citation omitted). Like Amtrak, the NVBDC was created by\nspecial law to further governmental objectives, and the President appoints not just\nthe majority, but the entirety, of the Board of Directors.2 Like Amtrak, therefore,\nthe NVBDC is part of the United States government for constitutional purposes.\nWith respect to Amtrak, Congress had expressly provided that the corporation\nwas \xe2\x80\x9cnot . . . an agency . . . or establishment of the United States Government.\xe2\x80\x9d 45\nU.S.C. \xc2\xa7 541 (1988) (repealed). This provision, the Supreme Court declared, was\n\xe2\x80\x9cassuredly dispositive of Amtrak\xe2\x80\x99s status as a Government entity for purposes of\nmatters that are within Congress\xe2\x80\x99s control\xe2\x80\x94for example, whether it is subject to\nstatutes that impose obligations or confer powers upon Government entities, such\nas the Administrative Procedure Act, and the laws governing Government\nprocurement.\xe2\x80\x9d 513 U.S. at 392 (citations omitted). Here, there is no such express\ndisclaimer. This silence raises the question whether the NVBDC should be treated\nas outside the government for statutory purposes under title 5.\n\n1\nA \xe2\x80\x9c\xe2\x80\x98Government controlled corporation\xe2\x80\x99 does not include a corporation owned by the Government of the United States.\xe2\x80\x9d Id. \xc2\xa7 103(2). In other words, title 5 clarifies that a corporation that would\nfall under the category \xe2\x80\x9ccorporation owned by the Government of the United States\xe2\x80\x9d would not also\nfall under the category \xe2\x80\x9cGovernment controlled corporation.\xe2\x80\x9d The statute does not further define these\nterms.\n2\nThe non-voting ex officio members have been appointed to their underlying offices by the President. 15 U.S.C. \xc2\xa7 657c(c)(3).\n\n72\n\n\x0cStatus of National Veterans Business Development Corporation\n\nA corporation that is within the United States government for the purposes of\nour fundamental law is, in the ordinary sense of the word, a \xe2\x80\x9cGovernment\ncorporation\xe2\x80\x9d\xe2\x80\x94the phrase used in title 5. Although the opinion in Lebron does not\nstate that, if a corporation is part of the United States government for constitutional purposes, it must also be considered an agency of the United States unless\nCongress (as in the case of Amtrak) expressly provides otherwise, we believe that\nwhen Congress has created a corporation after the decision in Lebron\xe2\x80\x94as it has\nhere\xe2\x80\x94and, through the corporation\xe2\x80\x99s structure and purpose, has placed it within\nthe government for constitutional purposes, there is a strong presumption that the\ncorporation is also part of the government for purposes of title 5, which deals with\nthe internal organization of federal government agencies. \xe2\x80\x9cWe may presume \xe2\x80\x98that\nour elected representatives, like other citizens, know the law . . . .\xe2\x80\x99\xe2\x80\x9d Dir., Ofc. of\nWorkers\xe2\x80\x99 Comp. Progs. v. Perini North River Assocs., 459 U.S. 297, 319 (1983)\n(quoting Cannon v. Univ. of Chicago, 441 U.S. 677, 696-97 (1979)). See also\nEdelman v. Lynchburg Coll., 535 U.S. 106, 117 (2002) (\xe2\x80\x9cCongress being presumed to have known of this settled judicial treatment\xe2\x80\x9d). It is anomalous for a\ncorporation to be part of the government under the Constitution, but not to be a\n\xe2\x80\x9cGovernment corporation\xe2\x80\x9d under statute; and it is reasonable to expect that, where\nsuch an anomaly is to be created, Congress would convey its intent to do so by an\nexpress statement or, perhaps, by clear implication.3\nHere, the statute, far from making such an express statement or raising such a\nclear implication, exhibits additional features suggesting that, even apart from the\ncharacteristics on which Lebron relied, the NVBDC is owned or controlled by the\nUnited States government.4 The NVBDC receives federal appropriations, cf. Irwin,\n\n3\nIn view of Lebron, the statutory status of corporations like the NVBDC cannot be dictated by the\ntreatment of entities that Congress did not create \xe2\x80\x9cby special law, for the furtherance of governmental\nobjectives,\xe2\x80\x9d see Forsham v. Harris, 445 U.S. 169 (1980) (privately formed entity, University Group\nDiabetes Program); Gilmore v. Dep\xe2\x80\x99t of Energy, 4 F. Supp. 2d 912 (N.D. Cal. 1998) (Sandia Laboratories not created by act of Congress); cf. United States v. Orleans, 425 U.S. 807, 816 (1976) (employees\nof federal contractors not covered by Federal Tort Claims Act), or of entities a majority of whose\ndirectors are not appointed by the government, see Irwin Mem\xe2\x80\x99l Blood Bank of San Fran. Med. Soc\xe2\x80\x99y v.\nAm. Nat\xe2\x80\x99l Red Cross, 640 F.2d 1051 (9th Cir. 1981) (analyzing Red Cross, a majority of whose board\nmembers are not appointed by the government); cf. Pearl v. United States, 230 F.2d 243 (10th Cir.\n1956) (court finds that the Civil Air Patrol (\xe2\x80\x9cCAP\xe2\x80\x9d) is not part of the United States government for the\nFederal Tort Claims Act; at the time of the decision, although not mentioned by the court, the CAP\nBoard was self-perpetuating and not appointed by the government (see 60 Stat. 346 (1946)). Similarly,\nthe status of the NVBDC cannot be determined by the treatment of those entities that have specifically\nbeen identified in statute as not being agencies of the United States. See Ralis v. RFE/RL, Inc., 770\nF.2d 1121 (D.C. Cir. 1985) (statute says that Radio Free Europe is not an agency of the United States).\n4\nThe cases from courts of appeals cited in the text relate to the definition in title 5 that applies to\nthe Freedom of Information Act, 5 U.S.C. \xc2\xa7 552(f)(1) (2000) (\xe2\x80\x9cFOIA\xe2\x80\x9d). There, the definition of \xe2\x80\x9cagency\xe2\x80\x9d reaches \xe2\x80\x9cany executive department, military department, Government corporation, Government\ncontrolled corporation, or other establishment in the executive branch of the Government (including the\nExecutive Office of the President), or any independent regulatory agency.\xe2\x80\x9d Id. The terms \xe2\x80\x9cGovernment\ncorporation\xe2\x80\x9d and \xe2\x80\x9cGovernment controlled corporation\xe2\x80\x9d are defined at 5 U.S.C. \xc2\xa7 103 \xe2\x80\x9c[f]or the purpose\n\n73\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n640 F.2d at 1056 (Red Cross receives no federal appropriations), and is federally\nchartered, see Rocap v. Indiek, 539 F.2d 174, 180 (D.C. Cir. 1976) (federal charter\nis one indicator of federal control). It must file an annual report with Congress,\n\xe2\x80\x9cdescribing [among other things] the activities and accomplishments of the\n[NVBDC] for the preceding year.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 657c(g); see Rocap, 539 F.2d at\n180 n.12 (requirement of annual report to Congress is one indicator of federal\ncontrol). Congress also has regulated various aspects of the NVBDC\xe2\x80\x99s day-to-day\nfiscal operations. Congress has specified where the NVBDC may deposit its funds.\n15 U.S.C. \xc2\xa7 657c(e)(1). Laying out procedures that must take place before those\nfunds may be spent, Congress has required that expenditures be for \xe2\x80\x9cpurposes that\nare . . . approved by the Board of Directors by a recorded vote with a quorum\npresent,\xe2\x80\x9d id. \xc2\xa7 657c(e)(2)(A); has limited the Board to the purposes set forth in the\nstatute, id. \xc2\xa7 657c(e)(2)(B); and has specified that a quorum consists of five voting\nmembers, id. \xc2\xa7 657c(c)(11).5 The NVBDC is specifically allowed to solicit and\nreceive funds from private and governmental sources, id. \xc2\xa7 657c(d)(8), and \xe2\x80\x9c[t]o\naccept voluntary and uncompensated services,\xe2\x80\x9d id. \xc2\xa7 657c(d)(10)\xe2\x80\x94permissions\nthat may be designed to overcome the usual rules of appropriations law forbidding\nfederal government agencies from augmenting their appropriations, see Payment\nof Expenses Associated with Travel by the President and Vice President, 6 Op.\nO.L.C. 214, 216 (1982); see also General Accounting Office, Principles of\nFederal Appropriations Law 6-103 (2d ed. 1992). Finally, the NVBDC\xe2\x80\x99s purposes\nspecifically include assisting veterans in dealing with federal agencies, including\nparticularly the three agencies (the Small Business Administration, the Department\nof Defense, and the Department of Veterans Affairs) whose heads are non-voting\nex officio members of the Board of Directors and thus in a position to influence\nhow the NVBDC carries out its responsibilities. 15 U.S.C. \xc2\xa7 657c(b)(2), (c)(3); see\nid. \xc2\xa7 657c(c)(1) (NVBDC\xe2\x80\x99s management is \xe2\x80\x9cvested in a Board of Directors composed of nine voting members and three nonvoting ex officio members\xe2\x80\x9d).\nPerhaps the strongest textual argument on the other side is that the NVBDC\n\xe2\x80\x9cmay use the United States mails in the same manner and under the same conditions as the departments and agencies of the United States.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 657c(i). A\n\xe2\x80\x9cGovernment corporation\xe2\x80\x9d under 5 U.S.C. \xc2\xa7 103 is also a \xe2\x80\x9cExecutive agency\xe2\x80\x9d\nunder 5 U.S.C. \xc2\xa7 105, and the statutory formulation about use of the mails, by not\nreferring to \xe2\x80\x9cthe other departments and agencies of the United States,\xe2\x80\x9d could be\nread to suggest that the NVBDC is not such an \xe2\x80\x9cagenc[y]\xe2\x80\x9d and thus not a \xe2\x80\x9cGovernment corporation.\xe2\x80\x9d This argument, however, cannot carry much weight.\nAlthough statutes applicable to \xe2\x80\x9cExecutive agencies\xe2\x80\x9d typically would use the\n\xe2\x80\x9cother departments and agencies of the United States\xe2\x80\x9d language, it is not unpreceof this title,\xe2\x80\x9d and the understanding of those terms reflected in the FOIA cases is therefore relevant to\nthe present question.\n5\nIt is left to the directors to \xe2\x80\x9cprescribe the manner in which the obligations of the [NVBDC] may\nbe incurred and in which its expenses shall be allowed and paid.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 657c(c)(10).\n\n74\n\n\x0cStatus of National Veterans Business Development Corporation\n\ndented for the word \xe2\x80\x9cother\xe2\x80\x9d to be omitted in such statutes. See 12 U.S.C.\n\xc2\xa7 1422b(a)(4) (2000) (the Federal Home Loan Bank Board may \xe2\x80\x9cuse the United\nStates mails in the same manner and under the same conditions as a department or\nagency of the United States\xe2\x80\x9d); 25 U.S.C. \xc2\xa7 2706(b)(5) (2000) (the National Indian\nGaming Commission \xe2\x80\x9cmay use the United States mail in the same manner and\nunder the same conditions as any department or agency of the United States\xe2\x80\x9d). The\nlanguage here is a reasonably apt way to ensure that the Postal Service will treat\nthe NVBDC in the same manner as entities that unquestionably are federal\nagencies, and we would not draw any inference from any slight imprecision in the\nphrasing. Other factors that could weigh against the NVBDC\xe2\x80\x99s being a government corporation are that, in addition to having a federal charter, it is incorporated\nin the District of Columbia, cf. Ehm v. Nat\xe2\x80\x99l R.R. Passenger Corp., 732 F.2d 1250,\n1255 (5th Cir. 1984) (in a case decided before Lebron, the court relies in part on\nthe fact that Amtrak is only \xe2\x80\x9cnonfederally-chartered\xe2\x80\x9d), and that its directors, for\nstatutory purposes, are not federal officers or employees, see id. (Amtrak\xe2\x80\x99s officers\nand employees are not federal employees). Nevertheless, that Congress made the\nNVBDC generally subject to the corporation law of the District of Columbia\nmeans little, because the NVBDC also has a federal charter; and the exemption of\nits directors from the usual restrictions binding federal employees is not inconsistent with the conclusion that the entity itself is a government corporation.6\nOne final argument against our conclusion, advanced by the NVBDC\xe2\x80\x99s President, is that the statute directs the NVBDC to \xe2\x80\x9cinstitute and implement a plan to\nraise private funds and become a self-sustaining corporation,\xe2\x80\x9d 15 U.S.C.\n\xc2\xa7 657c(k)(3); that the NVBDC cannot carry out its plans to meet this directive if it\nis subject to the rules applicable to a government corporation, Henry Letter at 2;\nand that, as a result, the NVBDC\xe2\x80\x99s \xe2\x80\x9cbeing designated a Government agency is\nclearly inconsistent with the intent of Congress,\xe2\x80\x9d id. The statute, however, reveals\nno judgment by Congress about the feasibility of any particular business plan or\nabout whether the NVBDC\xe2\x80\x99s current plan (or something close to it) would be\nessential to privatization, and an inconsistency between that plan and our conclusion does not, therefore, show that our conclusion is unfounded. Furthermore, that\nan entity is to be a self-sustaining corporation would not, in itself, mean that the\nentity is outside the government for statutory purposes. The Federal Deposit\n\n6\nUnder title 31, Congress subjects \xe2\x80\x9cGovernment corporations,\xe2\x80\x9d as specially defined in 31 U.S.C.\n\xc2\xa7 9101 (2000), to various financial controls. The special definition consists of a listing of corporations\nas either \xe2\x80\x9cmixed ownership\xe2\x80\x9d or \xe2\x80\x9cwholly owned\xe2\x80\x9d by the government. When Congress created the\nNVBDC, it did not add it to either list. The separate definition at 5 U.S.C. \xc2\xa7 103 is independent of the\ndefinition in 31 U.S.C. \xc2\xa7 9101, and the treatment in that section of title 31 by no means dictates the\ncoverage under title 5. See Ehm, 732 F.2d at 1255 (\xe2\x80\x9cThere is no statutory nexus between this definition\n[in title 31] and the definition that pertains and is expressly confined to Title 5.\xe2\x80\x9d); cf. Rainwater v.\nUnited States, 356 U.S. 590, 591-92 (1958) (coverage of Commodity Credit Corporation by the\nGovernment Corporation Control Act is relevant to whether the Corporation is part of the government\nfor purposes of the False Claims Act, which had no separate definition).\n\n75\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nInsurance Corporation (\xe2\x80\x9cFDIC\xe2\x80\x9d), for example, is a self-sustaining entity, funded\nthrough premiums for deposit insurance. See, e.g., 12 U.S.C. \xc2\xa7 1815(d) (2000). It\nis nonetheless part of the federal government for many statutory, as well as\nconstitutional, purposes. See, e.g., Stone v. FDIC, 179 F.3d 1368, 1375 (Fed. Cir.\n1999) (citing provisions of title 5, the court states that an FDIC employee \xe2\x80\x9cwas a\ncivil service employee who could not be dismissed except for cause or unacceptable performance\xe2\x80\x9d); see also Dockery v. FDIC, 64 M.S.P.R. 458, 460, 462 (1994)\n(FDIC is a government-controlled corporation, although not an \xe2\x80\x9cagency\xe2\x80\x9d under the\n\xe2\x80\x9cspecialized meaning under 5 U.S.C. \xc2\xa7 5102\xe2\x80\x9d).\nIII.\nUnder 31 U.S.C. \xc2\xa7 9102, which is a provision of the Government Corporation\nControl Act, \xe2\x80\x9c[a]n agency may establish or acquire a corporation to act as an\nagency only by or under a law of the United States specifically authorizing the\naction.\xe2\x80\x9d We believe that the NVBDC is an \xe2\x80\x9cagency\xe2\x80\x9d that, under this provision, is\nbarred from \xe2\x80\x9cestablish[ing] or acquir[ing] a corporation to act as an agency\xe2\x80\x9d unless\nit has specific statutory authority to do so.\nAlthough we have not previously analyzed the scope of the term \xe2\x80\x9cagency\xe2\x80\x9d as it\ndefines the entities ordinarily barred from establishing or acquiring corporations\nunder 31 U.S.C. \xc2\xa7 9102, we have considered the meaning of the term as it appears\nthe second time in the provision (\xe2\x80\x9cto act as an agency\xe2\x80\x9d), and, under the usual\ncanons of construction, we believe that this word should receive the same meaning\nin both places. The \xe2\x80\x9cpresumption that a given term is used to mean the same thing\nthroughout a statute\xe2\x80\x9d is \xe2\x80\x9csurely at its most vigorous when a term is repeated within\na given sentence.\xe2\x80\x9d Brown v. Gardner, 513 U.S. 115, 118 (1994).\nIn our fullest discussion of the meaning of \xe2\x80\x9cagency\xe2\x80\x9d in 31 U.S.C. \xc2\xa7 9102, we\nconcluded that a corporation established by employees of the Small Business\nAdministration to liquidate the assets of a failed company would be acting as an\n\xe2\x80\x9cagency.\xe2\x80\x9d Memorandum for Susan S. Engeleiter, Administrator, Small Business\nAdministration, from J. Michael Luttig, Acting Assistant Attorney General, Office\nof Legal Counsel, Re: Government Corporation Control Act at 8 (June 6, 1990)\n(\xe2\x80\x9c1990 Opinion\xe2\x80\x9d). We noted that, in title 31, the term \xe2\x80\x9cagency\xe2\x80\x9d is defined to mean\n\xe2\x80\x9ca department, agency, or instrumentality of the United States Government.\xe2\x80\x9d 31\nU.S.C. \xc2\xa7 101 (2000). Applying this definition to the words in section 9102, we\nobserved that \xe2\x80\x9c[i]n common usage, an instrumentality is a thing through which a\nperson or entity acts\xe2\x80\x9d and that \xe2\x80\x9c[t]he term implies both that the thing is controlled\nby another actor and that the thing is or may be deliberately used to accomplish\nthe actor\xe2\x80\x99s objectives.\xe2\x80\x9d 1990 Opinion at 8 (footnote omitted). After reviewing the\nlegislative history of the Government Corporation Control Act and judicial\ndecisions about whether, in other contexts, entities were federal instrumentalities,\nwe stated that \xe2\x80\x9cthe test for government instrumentality status varies depending on\nthe specific factual context and the purpose for which the determination is being\n\n76\n\n\x0cStatus of National Veterans Business Development Corporation\n\nmade\xe2\x80\x9d; that \xe2\x80\x9c[r]elevant factors include whether the entity was created by the\ngovernment, the extent of government control over its operations, the source of the\nentity\xe2\x80\x99s funding, the purposes for which it was created, and the functions it\nperforms\xe2\x80\x9d; and that \xe2\x80\x9c[s]ince the purpose of the Government Corporation Control\nAct was to assert greater federal dominion over the financial affairs of entities\ncontrolling federal funds, the source of the entity\xe2\x80\x99s funding is more important here\nthan it might be in other contexts.\xe2\x80\x9d Id. at 11, 12. Under this test, we determined\nthat the corporation at issue acted as an \xe2\x80\x9cagency\xe2\x80\x9d within the meaning of the\nstatute.\nIn 2000, we affirmed this approach. We wrote that \xe2\x80\x9c[s]ubsequent federal case\nlaw, as well as an opinion of the Comptroller General, supports this analytical\nframework,\xe2\x80\x9d although we also acknowledged that these authorities \xe2\x80\x9cappear[ed] to\nrecognize somewhat greater flexibility[, that is, a somewhat narrower understanding of \xe2\x80\x98agency,\xe2\x80\x99] tha[n] we ha[d] endorsed.\xe2\x80\x9d Applicability of Government Corporation Control Act to \xe2\x80\x9cGain Sharing Benefit\xe2\x80\x9d Arrangement, 24 Op. O.L.C. 212,\n219 (2000) (\xe2\x80\x9c2000 Opinion\xe2\x80\x9d). We noted that, in Varicon Int\xe2\x80\x99l v. OPM, 934\nF. Supp. 440 (D.D.C. 1996), a federal district court \xe2\x80\x9c[r]elying on Lebron . . .\napplied a similar multi-factor test to conclude that [a company performing\nbackground checks for the Office of Personnel Management] did not act as an\nagency\xe2\x80\x9d under 31 U.S.C. \xc2\xa7 9102. 2000 Opinion, 24 Op. O.L.C. at 219. In that\ncase, the entity in question was a private company owned by its employees, who\nwere not employed by the United States; the United States had no control over the\ncompany\xe2\x80\x99s board, management, or employees, except as provided in contract; the\nUnited States did not own company stock; the United States could not appoint\nmembers of the board; and the United States provided no financial assistance,\nexcept insofar as it paid for services that the company performed under contract.\n934 F. Supp. at 447. We further noted that the Comptroller General \xe2\x80\x9capplied similar criteria,\xe2\x80\x9d under which instrumentalities of the United States include \xe2\x80\x9c\xe2\x80\x98component parts of the federal government which are vested, by law, with the authority\nto act on behalf of the United States, or to fulfill some statutory mission of the\nfederal government.\xe2\x80\x99\xe2\x80\x9d 2000 Opinion, 24 Op. O.L.C. at 220 (quoting In re the\nHonorable David Pryor, 71 Comp. Gen. 155, 158 (1992)). See also In re the\nHonorable Ted Stevens, B-278,820 (Comp. Gen. Feb. 10. 1998).7\nFollowing the approach of our opinions, as established in 1990 and affirmed in\n2000, we believe that the NVBDC is an \xe2\x80\x9cagency\xe2\x80\x9d under 31 U.S.C. \xc2\xa7 9102. The\nNVBDC was \xe2\x80\x9ccreated by the government,\xe2\x80\x9d 1990 Opinion at 11, and is \xe2\x80\x9cto perform\nfunctions on behalf and for the benefit of the United States,\xe2\x80\x9d id. at 13. As discussed above, the government also exercises a considerable degree of control over\n7\nAs we stated in 2000, \xe2\x80\x9c[t]he opinions and legal interpretations of the General Accounting Office\nand the Comptroller General often provide helpful guidance on appropriations matters and related\nissues,\xe2\x80\x9d but \xe2\x80\x9care not binding upon departments, agencies, or officers of the executive branch.\xe2\x80\x9d 2000\nOpinion, 24 Op. O.L.C. at 216 n.3 (citing Bowsher v. Synar, 478 U.S. 714, 727-32 (1986)).\n\n77\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthe NVBDC. The President appoints the entire Board of Directors, and high-level\nfederal officials serve on the Board, albeit as non-voting members, and thus have a\ndirect role in the NVBDC\xe2\x80\x99s management. The United States, moreover, regulates\nthe NVBDC\xe2\x80\x99s fiscal operations, as outlined above. Finally, the \xe2\x80\x9csource of the\nentity\xe2\x80\x99s funding is more important here than it might be in other contexts,\xe2\x80\x9d 1990\nOpinion at 12, and the NVBDC receives federal appropriations, even as it seeks to\ndevelop private sources of funds. We therefore conclude that the NVBDC is an\n\xe2\x80\x9cagency\xe2\x80\x9d subject to the statutory bar in section 9102 against establishing or\nacquiring a corporation without specific statutory authority.\nM. EDWARD WHELAN III\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n78\n\n\x0c'


b"Government Attorneys* Participation as Plaintiffs\nin a Suit Against the Office of Personnel Management\n\nA ssistant U nited States A ttorneys (A U SA s) a re not barred by 18 U.S.C. \xc2\xa7205 from\nparticipating as plaintiffs in a class action suit challenging the authority o f the O ffice o f\nPersonnel M anagem ent (O P M ) to reduce th e cost o f living allow ance paid to all\nfederal em ployees in Alaska, though they m ay not accept any com pensation for\nassisting in prosecuting the claim s o f the class o r act as agents o r attorneys for the\nclass.\nT h e A U S A \xe2\x80\x99s d u ty o f loyalty to a client u n d e r applicable standards o f professional\nc o n d u c t does not preclude his joining a suit against O P M , but he should avoid taking\nan active o r notorious role in th e litigation.\n\nMarch 9, 1981\nM EM ORAN DUM O PIN IO N FO R A N A SSISTA N T U N IT ED\nSTA TES A TTORNEY , D IST R IC T O F ALASKA\nThis responds to your request for our opinion concerning the profes\xc2\xad\nsional propriety o f Assistant United States Attorneys (AUSAs) partici\xc2\xad\npating as plaintiffs in a class action lawsuit against the Office of Person\xc2\xad\nnel Management (OPM). W e understand that the suit would involve the\nauthority o f OPM to reduce the cost-of-living allowance paid to all\nfederal employees in Alaska. You have advised us that none of the\nplaintiff AUSAs has any privileged government information that is\nrelevant to the lawsuit, and that no government employee will act as\nagent or attorney for the plaintiff class. Under those circumstances, we\nconclude that the AUSAs may properly participate as members o f the\nplaintiff class. However, w e must advise you to avoid taking an active\no r notorious role in organizing or conducting the litigation, and to\nrefuse any compensation for assisting in the lawsuit.1\nT he pertinent conflict o f interest statute is 18 U.S.C. \xc2\xa7205. Section\n205 contains two restrictions that will apply to your situation. (1) It\nprohibits Executive Branch employees from receiving any gratuity,\n1 W e recognize that these restrictions may make it impossible for you to serve as class representa\xc2\xad\ntives in the lawsuit. Since you have indicated that you do not intend to serve as class representatives,\nwe need not explore this possibility further.\n\n74\n\n\x0cshare, or interest in any claim 2 against the United States in consider\xc2\xad\nation for assistance in the prosecution of the claim, and (2) it prohibits\nExecutive Branch employees from acting as agent or attorney for\nanyone3 in connection with any particular matter in which the United\nStates is a party. The first clause of the statute prohibits you from\naccepting any compensation-;for assisting in prosecuting the claims of\nthe class. The second clause of the statute prohibits you from serving as\nagents or attorneys for the class.4 Generally, this is interpreted to\nprohibit representational activity such as appearances in court, signing\npleadings or letters, and direct contact with a federal agency on behalf\nof the class. Should you desire a more detailed explanation of the\nmeaning and scope of the statutory term \xe2\x80\x9cact as agent or attorney,\xe2\x80\x9d\nyou should consult Manning, supra at p. 83, and 5 C.F.R. 737.5(b) (1)\nand (2).\nIn addition to the statutory restrictions, your professional responsibil\xc2\xad\nities to a client agency may also constrain your activities in connection\nwith the lawsuit. The Justice Department\xe2\x80\x99s Standards of Conduct incor\xc2\xad\nporate by reference the Code o f Professional Responsibility of the\nAmerican Bar Association (Code). See 28 C.F.R. 45.735-1. The Code\ncontains several principles that limit the activities that lawyers may\nundertake to the detriment of their clients.5\nCanon 4 of the Code prohibits a lawyer from using a confidence or\nsecret of a client to the disadvantage of the client. DR 4 - 101(B)(2).\nCanon 5 exhorts lawyers to avoid compromising influences and loyal\xc2\xad\nties, including personal interests that may dilute their loyalty to their\nclients. See EC 5-1. Ordinarily, the principles of loyalty and confiden\xc2\xad\ntiality embodied in Canons 4 and 5 preclude a lawyer from acting as an\nadvocate against a client, even if the litigation is wholly unrelated. For\nexample, a lawyer should not ordinarily agree to represent someone in\na tort action against a person for whom he is preparing an estate plan.\nThere are, however, circumstances where a lawyer may act as advo\xc2\xad\ncate against a client. The discussion draft of the ABA\xe2\x80\x99s proposed\n2 We do not have sufficient information to determine w hether your anticipated lawsuit would\nconstitute a \xe2\x80\x9cclaim'* against the United States. The term is not defined in the conflict of interest\nstatute, but there is little doubt that the term covers at least suits seeking direct monetary relief from\nthe United States. F or a discussion of the possible breadth of the term, see Manning, Federal Conflict\nof Interest Law (1964) at pp. 85-88 We will assume hereafter that your lawsuit constitutes a claim\nwithin the meaning o f the statute.\n3 In the past, this Office has taken'the position that \xc2\xa7205 does not prohibit self-representation.\nHowever, in a suit, such as a class action, where there are multiple parties with claims that are\nvirtually identical to the employee's claim, we read the statute to preclude the employee from\nparticipating as agent or attorney\n4There is an exception to this prohibition for \xe2\x80\x9c personnel administration proceedings,\xe2\x80\x99* but we need\nnot determine whether your case would fit that exception because you do not intend to serve as agents\nor attorneys.\n5 For these purposes, you should consider OPM to be your \xe2\x80\x9cclient,\xe2\x80\x9d since your Office represents\nOPM on a continuing basis. We understand that, with one exception, all of the AUSAs in your Office\nhandle civil cases for the client agencies\n\n75\n\n\x0crevision o f its standards o f conduct describes one situation where a\nlaw yer might properly sue his client:\nF o r example, a law yer engaged in a suit against a large\ncorporation with diverse operations may accept employ\xc2\xad\nment by the corporation in an unrelated matter if doing so\nwill not affect the law yer\xe2\x80\x99s conduct of the suit and if both\nthe litigant and the corporation consent upon adequate\ndisclosure. Whether concurrent representation is proper\ncan depend on the nature of the litigation. For example, a\nsuit charging fraud entails conflict to a degree not in\xc2\xad\nvolved in a suit for a declaratory judgment concerning\nstatutory interpretation.\nD raft dated January 30, 1980, at p. 29. Another situation is recognized\nexplicitly in the current C ode\xe2\x80\x94the suit by a lawyer to collect his fee.\nSee D R 4 - 101(C)(4). In our view, the same considerations would make\nit proper for a government lawyer to sue his client/employer over\nconditions of employment.6 Accordingly, we conclude that you may be\nmembers of a plaintiff class in an action against OPM concerning the\nlevel of the cost-of-living allowance.\nA lthough your duty o f client loyalty will not prevent you from\njoining a suit against OPM, we do believe that it should caution you\nagainst taking an active or notorious role in the litigation. In particular,\nyou should avoid organizing or encouraging others to join the suit or to\nbring similar suits against your client. Finally, your Office should take\nsteps to ensure that OPM is adequately represented in the lawsuit by\nother D epartm ent of Justice counsel.\nL\n\narry\n\nL . S im m s\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\neCongress has provided for suits by federal employees against their federal employer in a variety of\nntexts. See,\nSee. e.g..\ne.Q.. 42 U.S.C. \xc2\xa72000e-16.\n8 2000e-16.\ncontexts.\n\n76\n\n\x0c"


b'Illiterate Aliens Seeking Admission as Immigrants\nIlliterate aliens who would otherwise be eligible for admission to this country on visas\nallocated under 8 U.S.C. \xc2\xa7\xc2\xa7 1152 or 1153, may not avoid the literacy requirement o f 8\nU.S.C. \xc2\xa7 1182(a)(25) simply by virtue of their being accompanied by a child who is\nunder the age of 16, if that child\xe2\x80\x99s own eligibility for admission depends upon that of\nhis or her parents. The State D epartm ent\xe2\x80\x99s longstanding administrative practice in this\nregard finds no support in the legislative history of the literacy requirement, which\nestablishes that Congress intended to exempt from its application only those illiterates\nwhose close relatives were independently entitled to be admitted.\n\nDecember 2, 1981\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL,\nIMMIGRATION AND NATURALIZATION SERVICE\nThis responds to your request for assistance in resolving a conflict\nbetween the Department of State and the Immigration and Naturaliza\xc2\xad\ntion Service (INS) involving the provision of the Immigration and\nNationality Act (Act) excluding illiterate aliens, Act, \xc2\xa7 212(a)(25), 8\nU.S.C. \xc2\xa7 1182(a)(25),1 and the exception to that section. Act, \xc2\xa7 212(b), 8\nU.S.C. \xc2\xa7 1182(b).2 You have asked whether an illiterate alien who is\nattempting to enter the country on a visa allocated under 8 U.S.C.\n\xc2\xa7\xc2\xa71152 and 1153 (\xe2\x80\x9cquota visa\xe2\x80\x9d) is eligible for a waiver of the literacy\nrequirement if he is accompanied by a son or daughter who is under\nthe age of 16.3 The argument, as articulated by the State Department, is\nl This section states:\n(a) Except as otherwise provided in this [Act], the following classes of aliens shall be\nineligible to receive visas and shall be excluded from admission into the United States:\n. . (25) Aliens . . . over sixteen years of age, physically capable of reading, who\ncannot read and understand some language or dialect.\n8 U.S.C. \xc2\xa7 1182(a)(25).\n2The exception reads:\nThe provisions of paragraph (25) of subsection ( a ) . . . shall not be applicable to any\nalien w ho (1) is the parent, grandparent, spouse, daughter, or son of an admissible\nalien, . . if accompanying such admissible alien, or coming to join such citizen or\nalien lawfully admitted, and if otherwise admissible.. \xe2\x80\xa2 .\n8 U.S.C. \xc2\xa7 1182(b).\n9 This question was apparently triggered by a request from within INS for an advisory opinion on\nthe issue. Memorandum for Associate Commissioner Wack from Deputy General Counsel Schmidt,\nJanuary 17, 1979. The State Department thereafter submitted a comprehensive memorandum outlining\nits views. Memorandum for Deputy General Counsel Schmidt from Cecil H. Brathwaite, Acting\nChief,, Advisory Opinions Section, Visa Services Directorate, December 12, 1980 (Brathwaite Memo\xc2\xad\nrandum). INS prepared a further response, Memorandum for Deputy General Counsel Schmidt from\nStaff Attorney Masterson, July 14, 1981 (Masterson Memorandum), on which the State Department, at\nthe invitation o f this Office, submitted comments. Memorandum for Assistant Attorney General Olson\nfrom Cecil H. Brathwaite, Chief, Advisory Opinions Section, Visa Services Directorate, September 30,\n1981 (State Memorandum).\n\n367\n\n\x0cas follows: The illiterate alien receives a preference number because of\nhis status\xe2\x80\x94for example, as the brother of a United States citizen, 8\nU.S.C. \xc2\xa7 1153(a)(5)\xe2\x80\x94while his admissibility is determined under 8\nU.S.C. \xc2\xa7 1182. His child, who will receive a visa because of his parent\xe2\x80\x99s\nquota visa, 8 U.S.C. \xc2\xa7 1153(a)(8), is an \xe2\x80\x9cadmissible alien\xe2\x80\x9d under 8\nU.S.C. \xc2\xa7 1153(b) since he is not barred by any of the conditions in 8\nU.S.C. \xc2\xa7 1182(a)( 1)\xe2\x80\x94(33). Simultaneously, therefore, the illiterate alien\nbecomes \xe2\x80\x9cthe parent . . . o f an admissible alien\xe2\x80\x9d who is \xe2\x80\x9caccompanying\nsuch admissible alien\xe2\x80\x9d as provided for in 8 U.S.C. \xc2\xa7 1182(b)(1), and his\nilliteracy may be ignored, while the child becomes entitled to a visa\nbased on his parent\xe2\x80\x99s eligibility for a quota visa. This position is set out\nin the Foreign Affairs Manual, although the example used there in\xc2\xad\nvolves a husband and wife.4\nWe believe that this position is incorrect and that the illiterate alien is\nnot eligible for such a waiver.\nI. Background\nThe State Department, through its consular offices overseas, has\nprimary responsibility for issuing visas to those who wish to enter the\nUnited States as immigrants. 8 U.S.C. \xc2\xa7 1201. For over 2 decades, these\nconsular offices have relied on the position outlined above and have\nissued quota visas to illiterate aliens as long as they were accompanied\nby a child under 16, or a literate spouse.5Brathwaite Memorandum, at\n4 Benefit o f section 212(b) in certain cases.\nThe finding o f ineligibility o f an alien under section 212(a) (25) o f the Act has no\nbearing on entitlement to an approved preference status. An alien on whose behalf a\nrelative petition has been filed, but who has been found ineligible under 212(a)(25),\nbecomes eligible for the benefits of section 212(b) by virtue o f marriage to a literate\nperson w ho is not otherwise ineligible for a visa The literate spouse from whom this\neligibility derives is simultaneously entitled to the preference status of his ineligible\nspouse and is thereby an \xe2\x80\x9celigible alien\xe2\x80\x9d within the meaning of 22 C.F.R.\n42.91 (25)(i)(d). If visa numbers are available for persons in the approved preference\nstatus, the couple may apply for immigrant visas.\n9 Foreign Affairs Manual, \xc2\xa7 42.91(a)(25) note 3.\n5O ne issue, raised by INS, is whether the State Department actually adopted this position in the\nlate 1950s. W e have examined the material and believe that the State Department has held this position\nsince at least 1960. In an Operations M emorandum (OM) dated M arch 25, 1960, sent to the consul in\nNaples, Italy, the D epartm ent approved issuance o f a first preference visa to a Mr. Cifrodelli who was\naccom panied by his wife and children. Since both parents were illiterate, they were \xe2\x80\x9cprima facie\nineligible to receive immigrant visas\xe2\x80\x9d O M , at 2. All the Cifrodelli children were under 16, and were\n\xe2\x80\x9cnot stated to be ineligible on any o th er grounds and therefore may be presumed to be \xe2\x80\x98admissible\naliens\xe2\x80\x99 in their own right.\xe2\x80\x9d I d \xe2\x80\x9cThe problem is then resolved into the single question- being admissible\naliens, may the illiterate children confer upon their illiterate parents, if accompanying them, the\nbenefits o f Section 212(b)(1) o f the Act cited? The Departm ent finds that they may do so, that there is\nnothing in the law w hich requires a contrary finding. Consequently, Mr. and Mrs. Cifrodelli are to be\nconsidered as not ineligible to receive immigrant visas even though they are illiterate aliens.\xe2\x80\x9d Id.\nThe June 6, 1980, letter from the S tate Department to Rep. W alter (then chairman of the House\nJudiciary Com m ittee\xe2\x80\x99s Subcommittee on Immigration and Naturalization) addressed another point\xe2\x80\x94\nthe issue o f w hether an illiterate alien like Mr. Cifrodelli could be eligible at all for a first preference\nvisa, w hich was supposed to be reserved for highly skilled individuals. The letter confirmed that the\nOM cited above \xe2\x80\x9c was correct insofar as the technical matters are concerned, which were the sole\nsubject o f the advisory opinion\n[T]he question put to the Department related exclusively to the\naliens\xe2\x80\x99 eligibility to receive visas in view o f their illiteracy.\xe2\x80\x9d June 6 letter, at 4.\nContinued\n\n368\n\n\x0c10-12. Moreover, the State Department believes that INS has con\xc2\xad\ncurred with this interpretation during this entire period. Id. INS denies\nthat it ever agreed with this argument and has taken the position that\npermitting the child to confer eligibility on the parent is a bootstrap\nconstruction of the statute that violates congressional intent. Masterson\nMemorandum, at 11-14. Because of this dispute, the State Department\nhas suspended the issuance of quota visas to applicants whose exemp\xc2\xad\ntion under \xc2\xa7 1182(b) is based on an accompanying child or spouse.\nWe have carefully reviewed all the memoranda submitted. We recog\xc2\xad\nnize that the State Department has acted in good faith on its interpreta\xc2\xad\ntion for a number of years. Because we are reluctant to overturn\ndecades of administrative practice,6we have made an exhaustive can\xc2\xad\nvass of the literacy provision\xe2\x80\x99s legislative history in an effort to find\nsupport for the State Department\xe2\x80\x99s interpretation. We have also exam\xc2\xad\nined the scanty case law on this issue.7Because of our findings, we are\nforced to conclude that the State Department\xe2\x80\x99s interpretation is inaccu\xc2\xad\nrate and that the INS\xe2\x80\x99 position is correct.\nII. Legislative History\n\nThe literacy provision has a long history. Although it did not\nbecome law until 1917, it had been the subject of fierce debate for over\n20 years. Three times Congress enacted immigration bills containing a\nliteracy test\xe2\x80\x941897, 1913, and 1915\xe2\x80\x94only to have them vetoed in turn\nby Presidents Cleveland,8 Taft,9 and Wilson.10 By that time, it was fair\nFurther, in a June 22, 1960, letter from the State Department to INS, the D irector o f the Visa\nOffice stated that the Cifrodelli case had raised the problem o f whether \xe2\x80\x9cone alien can confer a certain\nstatus on another alien from whom he in turn must derive a benefit under the immigration laws in\norder to apply for and receive a visa." June 22 letter, at 1. The letter said that the issue had been\nresolved by a reference to two p n o r cases in which visas were issued simultaneously in order to\nconfer cross-eligibility under other provisions of the Act.\nThere is no doubt, therefore, that the State Department has held its position for a number of years.\n6 A second issue raised by the State Department is whether INS has concurred in this interpreta\xc2\xad\ntion. On July 3, 1957, IN S wrote to the State Department and said: \xe2\x80\x9c It is the view of the Service that\nan illiterate parent can benefit from the provisions of Section 212(b) regardless of the age of the\naccompanying child and provided, of course, that the accompanying child is fully admissible.\xe2\x80\x9d We\nbelieve that the letter addresses another issue, and that the reference to the fact that the child must be\n\xe2\x80\x9cfully admissible\xe2\x80\x9d is too ambiguous to be interpreted in support of either position.\nINS inspectors at the border apparently rely on the investigations conducted by the consular office\nissuing the quota visa and do not usually act to confirm the immigrant\xe2\x80\x99s bona /ides, unless there is some\nobvious problem Conversation with Deputy General Counsel Schmidt, November 20, 1981. This has\napparently allowed the problem to go unnoticed for a number o f years, despite the fact that both\nimmigration and consular officers are authorized to conduct the literacy test. 8 U.S.C. \xc2\xa7 1182(b).\n1 See United States ex rel. Azizian v Curran, 12 F.2d 502, (2d Cir. 1926); United States ex rel. Barone\nv. Curran, 7 F 2d 302 (2d Cir. 1925); In re F-, 2 I. & N. Dec. 260 (1945) See also United States ex rel.\nEngel v. Tod. 294 F. 820 (2d Cir. 1923); In re Gaglioti, 14 I. & N. Dec. 677 (1974); In re Khan. 14 I &\nN. Dec. 122, affd, sub nom. Santiago v INS. 526. F.2d 488 (9th Cir. 1975), cert, denied, 425 U.S 971\n(1976).\n829 Cong. Rec. 2667 (1897)\n9S. Doc. No. 1087, 62d Cong. 3d Sess. (1913)\n10 H. Doc. No. 1527 (1915), reprinted at 52 Cong. Rec. 2481 (1915). The literacy test was also\nconsidered in 1898, 1902, and 1913, see 52 Cong. Rec. 3014 (1915), but did not pass both Houses in\nthose years.\n\n369\n\n\x0cto describe the literacy test as \xe2\x80\x9cthe bitterest bone of contention in the\nbill.\xe2\x80\x9d 53 Cong. Rec. 4869 (1916) (statement of Rep. Mann). The fourth\nattempt to override the veto of a restrictive immigration law occurred\nin 1917 when President Wilson again vetoed the bill. H. Doc. No. 2003\n(1917), reprinted at 54 Cong. Rec. 2212-13 (1917). That year, however,\nthe supporters of restrictive immigration had sufficient votes to over\xc2\xad\nride the veto, and the bill became law.\nTracing the literacy test over the years, it is clear that it was an\nexpression of strong anti-immigrant sentiment. It was specifically de\xc2\xad\nsigned to curtail the flow of immigrants from southern Europe and\nRussia, whose background was felt to be incompatible with American\ninstitutions. Since these were also the groups with the highest rate of\nilliteracy, it was felt that the quickest and most efficient way to stem\nthe flow was through a literacy test. Although opponents argued that it\nwas discriminatory, not a fair test of character, and a repudiation of\nAmerican ideals, its supporters retorted that diminishing resources ne\xc2\xad\ncessitated a more limited admissions policy. In view of the clear state\xc2\xad\nments by the bill\xe2\x80\x99s proponents that they wanted this provision in order\nto exclude as many aliens as possible, we do not believe, as the State\nDepartment does, Brathwaite Memorandum, at 9, that there is any\nevidence of a congressional desire to have the provision\xe2\x80\x99s exception\ninterpreted liberally.\nWhen first considered by the House in 1896, the exclusion provision\ncontained an exemption only for parents of admitted aliens.11 \xe2\x80\x9cThe\nreason for the exemption of parents whose children have preceded\nthem hither is obvious, and this provision requires no explanation fur\xc2\xad\nther than that it was prompted by humane considerations.\xe2\x80\x9d H.R. Rep.\nNo. 1079, 54th Cong., 1st Sess. 2 (1896).12 This humanitarian concern\nwas repeated in 1912, when the provision was again considered.13\n\xe2\x80\x9c[PJractically the identical bill\xe2\x80\x9d was passed again in 1915, and vetoed\nby President Wilson. 52 Cong. Rec. 50 (statement of Sen. Smith). See\nsupra n.10. Finally, in 1917, Congress, after weeks of vitriolic debate14\nand over President Wilson\xe2\x80\x99s second veto, passed a law excluding illiter\xc2\xad\nate aliens. Act of February 5, 1917, \xc2\xa73, 39 Stat. 874, 877 (1917).15\n11 \xe2\x80\x9c But no parent o f a person now living m, or hereafter admitted to, this country shall be excluded\nbecause o f his inability to read and w rite.\xe2\x80\x9d 28 Cong. Rec 5417 (1896).\n12T he Senate expanded the exception to cover grandparents, 29 Cong. Rec. 46 (1896); id. at 1423\n(1897), and it was ultimately amended to cover wives and minor children. Id. at 2667 (1897).\n13 \xe2\x80\x9cO ut o f regard for marital and other close family ties, and the duties and obligations arising\ntherefrom , as well as high moral considerations, the committee thought proper to make the other\nexceptions em braced in the bill.\xe2\x80\x9d H.R. Rep. No. 851, 62d Cong., 2d Sess. 2 (1912)\n"S ee, e.g., 54 Cong. Rec. 2442-57 (1917); id. at 2465-63, 2620-29; 53 Cong. Rec. 4768-4816 (1916);\nid. at 4841-4885, 4932-4962, 5050-52.\n15 All aliens over sixteen years o f age, physically capable of reading, who can not read the English\nlanguage, or some other language o r dialect, including Hebrew or Yiddish: Provided, (1) That any\nadmissible alien, or any alien heretofore or hereafter legally admitted, or any citizen o f the United\nStates, may b n n g in or send for his father or grandfather over fifty-five years of age, his wife, his\nmother, his grandm other, or his unm arried or widowed daughter, if otherwise admissible, whether\nContinued\n\n370\n\n\x0cThis law remained in force until 1952, when it was replaced by the\npresent provision.16 The 1952 Act was preceded by a three-year study\ncommissioned ,by the Senate which recommended that the literacy\nprovision be retained but that all exemptions for relatives be deleted. S.\nRep. No. 1515, 81st Cong., 2d Sess. 375 (1950). Although the original\nHouse and Senate versions accepted this recommendation, H.R. Rep.\nNo. 2096, 82d Cong., 2d Sess. 24 (1952), and an effort to introduce an\namendment on the floor of the House was defeated, 98 Cong. Rec. 4432\n(1952),17 the final Senate version, which contained the exemptions, was\naccepted by the House and Senate conferees. H.R. Rep. No. 2096, supra\nat 128.18 Minimal attention was paid to this provision because of its\nreduced importance as an exclusionary device.19 The Senate report,\nhowever, refers to illiteracy as one of the \xe2\x80\x9cmore important grounds\xe2\x80\x9d\nfor exclusion, S. Rep. No. 1137, 82d Cong., 2d Sess. 8 (1952), and noted\nthat the clause was being revised to require understanding of, as well as\nreading of, a language. Id. at 10. There is nothing to indicate that\nCongress meant its recodification to result in a more liberal interpreta\xc2\xad\ntion of the section.\nIII. Discussion\n\nIlliterate aliens are one of the groups \xe2\x80\x9cineligible to receive visas,\xe2\x80\x9d 8\nU.S.C. \xc2\xa7 1182(a).20 The exception to this rule operates if the illiterate\nalien is \xe2\x80\x9caccompanying . . . [an] admissible alien.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1182(b).\nEven if we were to decide that admissibility is an issue wholly gov\xc2\xad\nerned by \xc2\xa7 1182 and not dependent on whether one is eligible for a\nquota visa under \xc2\xa7 1153 (an issue we do not resolve), we do not believe\nthat the State Department\xe2\x80\x99s argument that the child of an illiterate alien\nis \xe2\x80\x9cadmissible\xe2\x80\x9d under \xc2\xa7 1182 is correct. Under \xc2\xa7 1182(a)(20), an alien is\nsuch relative can read or not; and such relative shall be permitted to enter. One of the few cases\ninterpreting this provision emphasized that the principal alien had to be capable o f \xe2\x80\x9cbringing] in\xe2\x80\x9d the\nparent, and rejected the claim that a 9-year-old girl could \xe2\x80\x9cbring in\xe2\x80\x99* her mother. United States ex rel.\nAzizian v. Curran, 12 F.2d 502, 503 (2d Cir. 1926)\nx6See nn. 1 & 2.\n17See also 98 Cong. Rec. 4435-36 (1952) (statement o f Rep. Powell).\n18 It is possible that the exemptions w ere reintroduced at the urging of the INS. Internal Justice\nDepartment memoranda commenting on the proposed bills criticized them because they \xe2\x80\x9cseem to\ncreate an anomalous situation. In \xc2\xa7 203(a) (2), (3), and (4), preferences are created in the quota for\nparents, children, and certain other close relatives. These preferences will apparently avail them\nnothing if it should appear that they are illiterate. It is recommended that the attention o f the Congress\nbe invited to this situation so that, if desired, the bill can be changed to provide an exemption for close\nrelatives, similar to that which exists in the present law.\xe2\x80\x9d Memorandum for the Deputy Attorney\nGeneral from the Commissioner of Immigration and Naturalization, December 7, 1951, (56190/113-A)\n(Part II), at 212-18 See also Memorandum for the Deputy Attorney General from the Commissioner\nof Immigration and Naturalization, January 16, 1951, (56190/113-A) (Part II), at 25. Both o f these can\nbe found in the main library o f the Department of Justice, in vol. 1 of the bound legislative history of\nthe 1952 Act.\n19The December 7, 1951 memorandum discussed supra n.18 indicated that fewer than 2,000 illiterate\naliens a year were then applying for admission.\n20 Although the State Department bases its argument in large part on the distinction between\neligibility for a quota visa under \xc2\xa7 1153 and admissibility under \xc2\xa7 1182, Brathwaite Memorandum at 34, an illiterate alien is entitled to neither a visa nor admission under \xc2\xa7 1182 unless he is exempted by\n\xc2\xa7 1182(b).\n\n371\n\n\x0cinadmissible unless he is \xe2\x80\x9cin possession of a valid unexpired immigrant\nvisa.\xe2\x80\x9d See also 8 U.S.C. \xc2\xa7 1181(a), \xc2\xa7 1182(a)(21). The child cannot pos\xc2\xad\nsess a valid immigrant visa until he confers eligibility upon his parent\nwho thereupon becomes eligible for the quota visa, and thus obtains\none for the child. The circularity of this reasoning can be avoided if the\nstatute\xe2\x80\x99s intent is remembered. The \xc2\xa7 1182(b) exception was intended as\na humanitarian exception to permit immigrants to bring their close\xe2\x80\x94but\nilliterate\xe2\x80\x94family members to this country. It was not intended to\npermit illiterates to enter by bringing their children with them. It is\ndifficult to imagine that Congresses uniformly hostile to the admission\nof illiterates intended to create an exception for illiterates with families.\nRather, the statute should be read to permit literate aliens to receive\na quota visa and then to use the exception to bring in their illiterate\nchildren and close relatives. This comports with both of Congress\xe2\x80\x99\ndesires: to exclude illiterates and to provide a humanitarian exception\nminimizing disruption of a qualified alien\xe2\x80\x99s family.21 We therefore con\xc2\xad\nclude that the INS is correct in asserting that illiterates are not eligible\nto receive quota visas because they will be accompanied by a child\nwho is under 16. We assume that the State Department will so advise\nits consular officers and will revise its regulations based on this under\xc2\xad\nstanding.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n21 T he State Departm ent is no doubt correct when it asserts that this interpretation will bar most\nilliterates from receiving quota visas. State Memorandum, supra at 4 That, we believe, was Congress\'\nintention.\n\n372\n\n\x0c'


b'Application of Federal Advisory Committee Act to\nNon-Governmental Consultations\nThe Federal Advisory Committee Act does not apply to the consultations that the Department of\nDefense plans to conduct with various individuals from outside the government regarding the\npolicies and procedures that DoD is developing for military commissions.\n\nDecember 7, 2001\n\nLETTER OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF DEFENSE\nYou have asked for our opinion whether the Federal Advisory Committee Act\n(\xe2\x80\x9cFACA\xe2\x80\x9d), 5 U.S.C. app. (2000), applies to consultations that the Department of\nDefense (\xe2\x80\x9cDoD\xe2\x80\x9d) plans to conduct with various individuals from outside the\nGovernment regarding the policies and procedures that DoD is developing for\nmilitary commissions. Based on your description of the consultations that are\ncontemplated, we conclude that FACA does not apply to the consultations.\nOur conclusion is based on the following facts, which you have provided to us.\nThe Secretary of Defense or his representative will, from time to time, consult\nselected non-governmental individuals concerning the policies and procedures that\nDoD is developing for military commissions. These discussions will generally\noccur on an individual by individual basis, which will not involve participation by\nmore than one individual being consulted. If, on occasion, the Secretary or his\nrepresentative talks with more than one individual at a time, they will solicit\ncomments from the individuals as individuals, and will not solicit comments from\nthem collectively as a group. DoD will not provide any staffing for the individuals\nwho are consulted, although DoD will provide the individuals with materials\nrelating to the consultations. Any written views that the individuals may submit\nwill be submitted individually, not as a group. As appropriate, DoD may make\npublic the fact that it has consulted with the individuals.\nThe basic question when determining whether FACA applies to an agency\xe2\x80\x99s\nnon-governmental consultations is whether the agency has established or utilized a\n\xe2\x80\x9ccommittee, board, commission, council, conference, panel, task force, or other\nsimilar group\xe2\x80\x9d for the purpose of receiving advice or recommendations from the\ngroup. 5 U.S.C. app. \xc2\xa7 3(2). To the extent that the consultations you contemplate\nare only with individuals on an individual basis, we do not believe there is any\nbasis for concluding that FACA\xe2\x80\x99s threshold requirement\xe2\x80\x94the existence of a\n\xe2\x80\x9cgroup\xe2\x80\x9d\xe2\x80\x94has been met.\nMoreover, to the extent that these consultations take place with more than one\nnon-governmental individual at a time, we note that FACA certainly does not\napply to every situation in which executive officers meet with and receive advice\nfrom more than one person at a time. Rather, to fall within FACA, the group of\n\n291\n\n227-329 VOL_25_PROOF.pdf 301\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\npeople with whom the officers meet must have the attributes of a \xe2\x80\x9ccommittee,\nboard, commission,\xe2\x80\x9d etc., and its purpose must be to provide advice or recommendations as a group.\nIn other words, the group must have a collective function: It must have an\nadvisory purpose as a group, not merely as a collection of individuals. By contrast,\nwhen an agency invites a number of individuals to a meeting in order to solicit the\nopinion of each person as an individual, FACA does not apply. See Ass\xe2\x80\x99n of Am.\nPhysicians & Surgeons, Inc. v. Clinton, 997 F.2d 898, 913 (D.C. Cir. 1993) (\xe2\x80\x9ca\ngroup is a FACA advisory committee when it is asked to render advice or\nrecommendations, as a group, and not as a collection of individuals\xe2\x80\x9d); Application\nof Federal Advisory Committee Act to Editorial Board of Department of Justice\nJournal, 14 Op. O.L.C. 53, 53 (1990) (\xe2\x80\x9cthe board would be subject to FACA if it\ndeliberated as a body in order to formulate recommendations, but would not be\nsubject to FACA if each individual member reviewed submissions to the journal\nand gave his own opinion about publication\xe2\x80\x9d); 41 C.F.R. \xc2\xa7 102-3.40(e) (as\namended by 66 Fed. Reg. 37,728, 37,735 (July 19, 2001)) (examples of groups\nthat are not subject to FACA include \xe2\x80\x9cGroups assembled to provide individual\nadvice. Any group that meets with a Federal official(s), including a public\nmeeting, where advice is sought from the attendees on an individual basis and not\nfrom the group as a whole\xe2\x80\x9d). This is true even where the government officers have\nmore than one meeting with such individuals, so long as the purpose of each\nmeeting is to receive the individual input of each person present.\nBased on your description of the circumstances under which DoD may consult\nmore than one individual at a time, we do not believe that those individuals could\nbe viewed as having the attributes of a group, which is the threshold requirement\nfor triggering FACA. Moreover, even if they could be viewed as a group, FACA\nwould not apply because you intend to ask for the individual opinions of whoever\nis consulted and will not solicit the advice or recommendations of those individuals as a group.\nJAY S. BYBEE\nAssistant Attorney General\nOffice of Legal Counsel\n\n292\n\n227-329 VOL_25_PROOF.pdf 302\n\n10/22/12 11:10 AM\n\n\x0c'


b'April 6, 1979\n\n79-21\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE VICE PRESIDENT\nAdvance Personnel\xe2\x80\x94Federal Tort Claims Act (28\nU.S.C. \xc2\xa7 2671)\xe2\x80\x94Form of Contract\n\nO n June 23, 1978, this Office gave its opinion that compensated or un\xc2\xad\ncompensated part-tim e advance personnel for the President or the Vice\nPresident would be Federal employees under the Federal T ort Claims Act,\n28 U .S.C . \xc2\xa7 2671, and that the United States would therefore be exclusively\nliable under 28 U .S.C . \xc2\xa7 2679(b) for damages arising out o f automobile ac\xc2\xad\ncidents occurring in the course o f their official duties. The form contract o f\nemployment used by the Office o f the President and the Office o f the Vice\nPresident for these individuals designates them as independent contractors,\nand you have asked us to consider the effect o f this language on our pre\xc2\xad\nvious opinion.\nIt is our understanding that advance personnel are hired by and act under\nthe close daily supervision o f Presidential or Vice Presidential employees.\nThey perform logistical tasks for official trips that include making hotel,\ntravel and sound-system arrangements. While the more experienced person\xc2\xad\nnel have greater independence o f action than do the others, the day-to-day\nactivities o f all are controlled by Governm ent employees through frequent\ncom munication. The selection o f the cities and events the President or the\nVice President visit and even the more m inor decisions, in most cases, are\nthe responsibility o f the Presidential or Vice Presidential staff.\nOn the foregoing basis, it is our opinion that personnel performing advance\nwork are employees within the meaning o f 28 U.S.C. \xc2\xa7 2671, despite the\nlanguage o f the employment contract. The Supreme Court has said that\nemployees o f a contractor who are not acting under the close, daily, physical\nsupervision o f the Federal Government are not Federal employees. United\nStates v. Orleans, 425 U.S. 807 (1976); Logue v. United States, 412 U.S. 521\n(1973). But individuals who contract with the Federal Government and who\nact under the close, daily, physical supervision o f Federal employees should\nthemselves be considered employees for purposes o f the Act, regardless o f\n138\n\n\x0cthe form o f the contract. See, e.g., Witt v. United States, 462 F. 2d 1261,\n1263-64 (2d Cir. 1972); United States v. Becker, 378 F. 2d 319, 322-23\n(9th Cir. 1967). The exclusion o f contractors from the definition of\nFederal agencies in \xc2\xa7 2671 should not defeat application o f the common\nlaw o f respondeat superior to individuals who contract for their services\nwith a Federal agency. The critical element for liability is the\nGovernm ent\xe2\x80\x99s power \xe2\x80\x9c to control the detailed physical perform ance o f the\ncontractor.\xe2\x80\x9d See, Logue v. United States, 412 U.S. at 527-28. We suggest,\nhowever, that the word \xe2\x80\x9c independent\xe2\x80\x9d preceding \xe2\x80\x9c contractor\xe2\x80\x9d be struck\nfrom the language o f the form. As advance personnel do not act in\xc2\xad\ndependently, this terminology can only confuse their status under \xc2\xa7 2671.\nIt is appropriate to retain the word \xe2\x80\x9c contractor\xe2\x80\x9d rather than\ndenominating the advance people \xe2\x80\x9c consultants\xe2\x80\x9d when contracting for\ntheir services. The authority o f the President and the Vice President to\nprocure the tem porary or intermittent services o f consultants is set forth in\nPub. L. No. 95-570, 92 Stat. 2445 (1978). The Civil Service Commission\nin subchapter 1-2 o f Federal Personnel Manual C hapter 304 states that a\nconsultant who is excepted from the competitive service by statute is \xe2\x80\x9c a\nperson who serves as an adviser to an officer or instrumentality o f the\nGovernment, as distinguished from an officer or employee who carries out\nthe agency\xe2\x80\x99s duties and responsibilities.\xe2\x80\x9d Advance personnel do not serve\nas advisers; they simply carry out responsibilities assigned to Presidential\nor Vice Presidential employees.\nFinally, we remind you o f our recommendation that you inform those\nhired to perform advance work o f their reporting responsibilities under the\nFederal Tort Claims Act. It would seem most appropriate to include this\ninformation in the contract.\nLeon U lm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n139\n\n\x0c'


b'Authority of Department of Housing and Urban Development to\nInitiate Enforcement Actions Under the Fair Housing Act\nAgainst Other Executive Branch Agencies\nB ec a u se su b stan tial se p a ra tio n o f p o w ers c o n c e rn s w o u ld b e ra ised by c o n stru in g the F a ir H o u sin g A ct\nto a u th o riz e the D e p artm e n t o f H o u sin g a n d U rb an D e v e lo p m e n t to initiate e n fo rc e m e n t p ro c e e d \xc2\xad\nin g s ag ain st o th e r e x ec u tiv e b ra n c h a g e n c ie s , th e A c t c a n n o t b e so c o n stru e d u n le ss it c o n ta in s an\ne x p re ss sta te m e n t th at C o n g re ss in te n d e d H U D to h a v e su ch a u th o rity\n\nB ec a u se the A c t d o e s not\n\nc o n ta in su ch an e x p re ss s ta te m e n t, it d o e s n o t g ra n t H U D this a u th o rity\nT h e re is no b asis fo r c o n stru in g th e A ct so th a t th e H U D in v e stig a tiv e a n d a d m in is tra tiv e p ro c e ss u n d e r\nthe A ct m ay b e d e e m e d a p p lic a b le , b u t th e ju d ic ia l e n fo rc e m e n t p ro c e d u re s d e e m e d in a p p lic a b le\n\nMay 17, 1994\nM e m o r a n d u m O p i n io n f o r t h e G e n e r a l C o u n s e l\nD e p a r t m e n t o f A g r ic u l t u r e\n\nPursuant to Executive Order No. 12146, 3 C.F.R. 409 (1979) you have asked us\nto resolve a dispute between the Department of Agriculture (\xe2\x80\x9cUSDA\xe2\x80\x9d) and the\nDepartment of Housing and Urban Development (\xe2\x80\x9cHUD\xe2\x80\x9d) regarding \xe2\x80\x9cwhether a\nFederal agency, such as USDA, may be a respondent under the enforcement proc\xc2\xad\ness contained in sections 810-812 and [814] of [the Fair Housing Act, 42 U.S.C.\n\xc2\xa7\xc2\xa7 3601-3619 (\xe2\x80\x9cthe Act\xe2\x80\x9d)], 42 U.S.C. \xc2\xa7\xc2\xa7 3610-3612, 3614.\xe2\x80\x9d \'\nApplying the standard the Supreme Court has used when a particular interpreta\xc2\xad\ntion or application of an Act of Congress would raise separation of powers or feder\xc2\xad\nalism concerns, we believe that because substantial separation of powers concerns\nwould be raised by construing the Act to authorize HUD to initiate enforcement\nproceedings against other executive branch agencies, we cannot so construe the\nAct unless it contains an express statement that Congress intended HUD to have\nsuch authority. Because the Act does not contain such an express statement, we\nconclude that it does not grant HUD this authority. In light of this conclusion, we\ndo not decide whether such a grant of authority would be constitutional.\nI. B ackground\nA. Enforcement Procedures under the Fair Housing Act\nThe procedures for enforcement of the Act by the government are set forth in\n\xc2\xa7\xc2\xa7 3610-3614 of title 42. Under \xc2\xa7 3610, an aggrieved individual may file a dis\xc2\xad\n1\nL etter for W aller D ellinger, A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from Jam es M ichael\nKelly, A ssociate G eneral C ounsel, U SD A , at 1 (Jan. 6, 1994) ("K elly Letter")\n\n101\n\n\x0cO pinions o f th e O ffice o f L egal C ounsel\n\ncrimination complaint with HUD, or HUD may file such a complaint on its own\ninitiative. HUD must then investigate the complaint and engage in conciliation\nwith respect to it.2 If HUD finds that reasonable cause exists to believe that a dis\xc2\xad\ncriminatory housing practice has occurred, then HUD issues a charge on behalf of\nthe complainant.\nUnder \xc2\xa7 3612, the HUD charge results in either an administrative proceeding\nbefore a HUD administrative law judge (\xe2\x80\x9cALJ\xe2\x80\x9d) or, if elected by the complainant\nor any respondent, a civil action in federal district court. In the HUD administra\xc2\xad\ntive proceeding, the ALJ makes findings of fact and conclusions of law and may\norder relief for any discriminatory housing practice, including damages and civil\npenalties. Judicial review of the final HUD decision (including any review by the\nSecretary) is available in a federal court of appeals. If there is an election for a\ncivil action instead of the administrative proceeding, the Act provides that the Sec\xc2\xad\nretary of HUD \xe2\x80\x9cshall authorize\xe2\x80\x9d and the Attorney General \xe2\x80\x9cshall commence and\nmaintain\xe2\x80\x9d the civil action in federal district court on behalf of the complainant.\nThe court may award the same relief that is available to private plaintiffs under\nsection 3613, including injunctive relief and monetary damages.3\nFinally, under \xc2\xa7 3614(a), the Attorney General may bring a civil action in fed\xc2\xad\neral district court if she believes that \xe2\x80\x9cany person or group of persons is engaged in\na pattern or practice of resistance to the full enjoyment of any of the rights granted\n[under the Act], or that any group of persons has been denied any of the rights\ngranted by [the Act] and such denial raises an issue of general public importance.\xe2\x80\x9d\nShe may also bring a civil action with respect to a breach of a conciliation agree\xc2\xad\nment referred to her by HUD.\nB. U S D A \xe2\x80\x99s Position\nUSDA concedes that it is subject to discrimination prohibitions in the Act,\nKelly Letter at 1 (citing 42 U.S.C. \xc2\xa7\xc2\xa7 3603, 3608(d)), and that it is required to co\xc2\xad\noperate with HUD to further the purposes of the Act, id. at 2 (citing 42 U.S.C.\n\xc2\xa7 3608(d), Exec. Order No. 12259). USDA takes the position, however, that it\nmay not be made be made a respondent in enforcement proceedings brought by\nHUD under the Act.\n2 S ectio n 3611 au th o rizes H U D to \'\xe2\x80\x98issue subpoenas and o rder discovery in aid o f investigations [under\n\xc2\xa7 3610] and h earin g s [u n d er \xc2\xa7 3612] \xe2\x80\x99 \xe2\x80\x9cS u c h subpoenas and discovery may be ordered to the sam e extent\nand su b ject to the sam e lim itatio n s as w ould ap p ly if the subpoenas or discovery w ere ordered or served in\naid o f a civil action in the U nited States d istric t court for the district in w hich the investigation is taking\np lace," \xc2\xa7 3 6 1 1(a), and crim in al penalties are authorized for failure to com ply w ith the subpoenas o r orders,\n\xc2\xa7 3 6 1 1(c)\n3 S ectio n 3613 go v ern s enforcem ent o f th e Act by private parties, but it also provides that the A ttorney\nG eneral m ay intervene in a p riv ate action if she certifies that the case \'\xe2\x80\x98is of general public im portance\xe2\x80\x9d\n(S 3613(e)). T h is O ffic e \xe2\x80\x99s conclusion that th e Act does not w aive the sovereign im m unity o f federal agen\xc2\xad\ncies ag ain st im position o f m o netary relief in private actions under \xc2\xa7 ?6 1 3 is set forth in a recent opinion to\nyou. S e e A u th o rity o f U SD A to Award M o n e ta ry R e lie f f o r D iscrim ination, 18 O p. O L C 52 (1994)\n(\xe2\x80\x9c M on etary R elief M em o ran d u m \xe2\x80\x9d ).\n\n102\n\n\x0cA u thority o f D epartm ent o f H ousing an d Urban D evelopm ent to Initiate E nforcem ent A ctio n s\nU nder the F air H ousing A ct A gainst O ther E xecutive Branch A gencies\n\nUSDA argues that \xe2\x80\x9cthe Act does not provide a sufficiently clear and unequivo\xc2\xad\ncal waiver of the sovereign immunity of the United States to permit Federal agen\xc2\xad\ncies to be subjected to the enforcement procedures of the Act or to pay money\ndamages as is allowed under the Act in either an administrative or a judicial fo\xc2\xad\nrum.\xe2\x80\x9d Id. at 2-3. It also argues that \xe2\x80\x9callowing Federal agencies to be respondents\nunder the Act offends the unitary nature of the Executive Branch by allowing one\nExecutive agency to use a unilateral compulsory process against another,\xe2\x80\x9d id. at 3,\nand that if HUD\xe2\x80\x99s invocation of these procedures against USDA resulted in an ac\xc2\xad\ntion in court, that \xe2\x80\x9cwould create the untenable situation of having the Attorney\nGeneral representing both the aggrieved person and USDA,\xe2\x80\x9d id. at 5. Finally,\nUSDA argues that such a suit \xe2\x80\x9cwould fail to constitute a justiciable controversy\nunder Article III of the Constitution\xe2\x80\x9d because \xe2\x80\x9ca person may not sue himself and\nthere would appear to be serious constitutional difficulties with suits between two\nofficers of the Executive Branch, each serving in his or her official capacity.\xe2\x80\x9d Id.\nC. H U D \xe2\x80\x99s Position\nHUD takes the position that \xe2\x80\x9cit may issue charges against Federal agencies,\nprosecute such claims through administrative proceedings, and have [the Depart\xc2\xad\nment of Justice] prosecute election cases through judicial proceedings.\xe2\x80\x9d Letter to\nWalter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Nel\xc2\xad\nson A. Diaz, General Counsel, Department of Housing and Urban Development, at\n6 (Jan. 26, 1994) (\xe2\x80\x9cDiaz Letter\xe2\x80\x9d).\nHUD argues that the term \xe2\x80\x9crespondent\xe2\x80\x9d is defined in the Act \xe2\x80\x9cas broadly as pos\xc2\xad\nsibly so as to include any \xe2\x80\x98person or entity\xe2\x80\x99 without limitation,\xe2\x80\x9d Diaz Letter at 1,\nand that both the Act and the Administrative Procedure Act (the \xe2\x80\x9cAPA\xe2\x80\x9d), 5 U.S.C.\n\xc2\xa7\xc2\xa7 701-706, provide a sufficient waiver of sovereign immunity for actions against\nfederal agencies, id. at 1-3. HUD rejects USDA\xe2\x80\x99s \xe2\x80\x9cunitary Executive\xe2\x80\x9d argument\nand notes that \xe2\x80\x9cthere exists precedent for allowing one Executive agency to sue\nanother\xe2\x80\x9d and in any event an enforcement action under the Act \xe2\x80\x9cis not a contro\xc2\xad\nversy solely between two Federal agencies, but in addition, involves a controversy\nbetween the USDA and an individual complainant.\xe2\x80\x9d Id. at 4-5. HUD\xe2\x80\x99s concluding\nargument is that\n[A]ggressive enforcement of civil rights statutes requires that\n[HUD] proceed wherever reasonable cause exists to believe that a\nviolation has occurred. [HUD\xe2\x80\x99s] mandate from Congress is to en\xc2\xad\nforce fair housing. Congress gave no indication either in the statute\nor legislative history that it intended that [HUD] make a special ex\xc2\xad\nception for Federal agency respondents that would deprive persons\naggrieved by Governmental discrimination to the right to have their\n\n103\n\n\x0cOpinions o f th e O ffice o f L eg a l Counsel\n\nclaim prosecuted in a fair and impartial manner through the proce\xc2\xad\ndures established in the Act.\nId. at 6.\n\nII. Analysis\nThe initial question presented is whether the Act\xe2\x80\x99s government enforcement\nscheme may be construed to apply to executive branch agencies as a general mat\xc2\xad\nter. If we conclude that it may not be, then there is no need to resolve the Article II\nand Article III constitutional issues raised by USDA, although it will be necessary\nto determine whether the Act may be construed in such a way that only certain as\xc2\xad\npects of the scheme that may raise less of a constitutional problem may found ap\xc2\xad\nplicable. We conclude that neither construction is permissible.4\nA. W hether the A c t\xe2\x80\x99s Enforcem ent Scheme Applies to\nExecutive Branch Agencies\n\nRelying on the Act\xe2\x80\x99s definition of \xe2\x80\x9crespondent\xe2\x80\x9d as meaning \xe2\x80\x9cperson\xe2\x80\x9d or\n\xe2\x80\x9centity,\xe2\x80\x9d 42 U.S.C. \xc2\xa7 3602(n), HUD argues that \xe2\x80\x9cCongress gave no indication ei\xc2\xad\nther in the statute or legislative history that it intended that [HUD] make a special\nexception for Federal agency respondents . . . .\xe2\x80\x9d Diaz Letter at 6.\nWe do not believe that HUD is correct that Congress\xe2\x80\x99s silence in the context of\na broad definition of \xe2\x80\x9crespondent\xe2\x80\x9d justifies the conclusion that Congress intended\nthat executive branch agencies could be made respondents. In the course of con\xc2\xad\nsidering whether the APA applies to the President, the Supreme Court made a fac\xc2\xad\ntual statement that was similar to HU D \xe2\x80\x99s statement about the Fair Housing Act:\n\xe2\x80\x9cThe President is not explicitly excluded from the APA\xe2\x80\x99s purview, but he is not\nexplicitly included, either.\xe2\x80\x9d Franklin v. Massachusetts, 505 U.S. 788, 800 (1992).\nBecause of the separation of powers concerns that would arise from a conclusion\nthat the APA applies to the President, the Court applied an \xe2\x80\x9cexpress statement\xe2\x80\x9d\nstandard and concluded that the President is not covered by the APA:\nOut of respect for the separation of powers and the unique constitu\xc2\xad\ntional position of the President, we find that textual silence is not\nenough to subject the President to the provisions of the APA. We\nwould require an express statement by Congress before assuming it\n4\n\nB ecau se the d isp u te p resen ted tr us is b e tw ee n tw o ex ecu tive branch agencies fully under the supervi-\n\nsion o f the P resid en t, there is no need to ad d ress w hether the A ct authorizes HUD to initiate enforcem ent\np roceed in g s a g ain st an in d ep en d en t agency In addition, because o f our conclusion that the A ct\xe2\x80\x99s g o v e rn \xc2\xad\nm ent e n fo rc e m e n t sch em e does not apply to e x ecu tiv e branch agencies, there is no need to address the sover\xc2\xad\neign im m u n ity issue raised by U SD A That is su e w ould only arise if the ju d ic ia l enforcem ent aspect o f the\nen fo rcem en t sch em e w ere found applicable.\n\n104\n\n\x0cA u thority o f D epartm ent o f H ousing a n d Urban D evelopm ent to Initiate E nforcem ent A ctions\nU nder the F air H ousing A ct A gainst O ther E xecutive Branch A gencies\n\nintended the President\xe2\x80\x99s performance of his statutory duties to be\nreviewed for abuse of discretion. As the APA does not expressly\nallow review of the President\xe2\x80\x99s actions, we must presume that his\nactions are not subject to its requirements.\nId. at 800-01.5 The Supreme Court\xe2\x80\x99s use of an \xe2\x80\x9cexpress statement\xe2\x80\x9d standard in\nFranklin represented an example of the Court\xe2\x80\x99s traditional\n\nreluctance to decide constitutional issues[,] [which] is especially\ngreat where, as here, they concern the relative powers of coordinate\nbranches of government. Hence, [the Court is] loath to conclude\nthat Congress intended to press ahead into dangerous constitutional\nthickets in the absence of firm evidence that it courted those perils.\nPublic Citizen v. Department o f Justice, 491 U.S. 440, 466 (1989) (construing\n\nFederal Advisory Committee Act not to apply to Justice Department\xe2\x80\x99s consulta\xc2\xad\ntions with American Bar Association regarding judicial candidates).6\nWe believe that an \xe2\x80\x9cexpress statement\xe2\x80\x9d requirement is necessary in the present\ncontext, for the same reasons one was applied in Franklin and the federalism cases\ncited above. Substantial separation of powers concerns would arise if the Fair\nHousing Act were construed to authorize HUD to initiate enforcement proceedings\nagainst other executive branch agencies. The concerns relate to both the Presi\xc2\xad\ndent\xe2\x80\x99s authority under Article II of the Constitution to supervise and direct execu\xc2\xad\ntive branch agencies and the Article III limitation that the jurisdiction of the federal\ncourts extends only to actual cases and controversies. These concerns were suc\xc2\xad\ncinctly summarized by President Reagan in his statement vetoing legislation con\xc2\xad\ntaining a provision that would have authorized the Special Counsel of the Merit\nSystems Protection Board to litigate against executive branch agencies:\n\n3\nC f M onetary R elief M em orandum , 18 O p. O .L C at 54-55 (S uprem e C ourt requires an "unequivocal\ne x p re ssio n \'\xe2\x80\x99 o f C ongressional intent to w aive the sovereign im m unity o f the U nited States or to abrogate the\nE leventh A m endm ent im m unity o f the States)\n6\nT h e Suprem e C ourt also applies an \xe2\x80\x9cexpress statem en t\xe2\x80\x9d o r \xe2\x80\x9cclear statem en t\xe2\x80\x9d requirem ent w hen a par\xc2\xad\nticular construction o f a statute w ould raise federalism concerns.\n[A n ] ordinary rule o f statutory construction [is] that if C ongress intends to alter the \xe2\x80\x9cusual c o n \xc2\xad\nstitutional balance betw een the States and the Federal G o v ern m ent,\xe2\x80\x9d it m ust make its intention to\nd o so \xe2\x80\x9c unm istakably clear in the language o f the statute \xe2\x80\x9d A ta sc a d e ro Stale H osp ita l v. Scanlon,\n4 7 3 U.S. 234, 242 (1985)\n. was an E leventh A m endm ent case, but a sim ilar approach is ap\xc2\xad\np lied in other contexts C ongress should m ake its intention \xe2\x80\x9cclear and m anifest\xe2\x80\x9d if it intends to\npre-em pt the historic pow ers o f the States, R ice v Santa F e E leva to r C orp ,3 3 1 U S . 218, 230\n(1947), or if it intends to im pose a condition on the grant of federal m oneys, Pennhurst State\nS c h o o l and H o sp ita l v H alderm an, 451 U.S 1, 16 (1 9 8 1 ), South D akota v. D ole, 483 U.S 203,\n207 (1987)\nW ill v M ichigan D ept, o f State Police, 491 U.S. 58, 65 (1989) S ee also G regory v A sh c ro ft, 501 U S. 452,\n460-64 ( 1 9 9 1) (applying \xe2\x80\x9cplain statem en t\xe2\x80\x9d standard and holding that A ge D iscrim ination in E m ploym ent Act\ndoes not apply to state judges)\n\n105\n\n\x0cO pinions o f the O ffice o f L eg a l C ounsel\n\nImplementation of this provision would place two Executive branch\nagencies before a Federal court to resolve a dispute between them.\nThe litigation of intra-Executive branch disputes conflicts with the\nconstitutional grant of the Executive power to the President, which\nincludes the authority to supervise and resolve disputes between his\nsubordinates. In addition, permitting the Executive branch to liti\xc2\xad\ngate against itself conflicts with constitutional limitations on the ex\xc2\xad\nercise of the judicial power o f the United States to actual cases or\ncontroversies between parties with concretely adverse interests.\nMemorandum of Disapproval on a Bill Concerning Whistleblower Protection, Pub.\nPapers o f Ronald Reagan 1391, 1392 (Oct. 26, 1988).\nAs USDA indicated in its submission for this dispute, see Kelly Letter at 4-6,\nthis Office has discussed in other contexts the separation of powers concerns that it\nraises. With respect to the Article III issue, this Office has consistently said\nthat \xe2\x80\x9clawsuits between two federal agencies are not generally justiciable.\xe2\x80\x9d Nuclear\nRegulatory C om m ission\xe2\x80\x99s Imposition o f Civil Penalties on the Air Force, 13 Op.\nO.L.C. 131, 138 (1989) (citing P roposed Tax Assessment Against the United\nStates P ostal Service, 1 Op. O.L.C. 79 (1977)). We have reasoned that federal\ncourts may adjudicate only actual cases and controversies, that a lawsuit involving\nthe same person as both plaintiff and defendant does not constitute an actual con\xc2\xad\ntroversy, and that this principle applies to suits between two agencies of the execu\xc2\xad\ntive branch. See 13 Op. O.L.C. at 138-39.7 With respect to Article II, we have\nindicated that construing a statute to authorize an executive branch agency to ob\xc2\xad\ntain judicial resolution of a dispute with another executive branch agency impli\xc2\xad\ncates \xe2\x80\x9cthe President\xe2\x80\x99s authority under Article II of the Constitution to supervise his\nsubordinates and resolve disputes among them.\xe2\x80\x9d INS Review o f Final Order in\nEmployer Sanctions Cases, 13 Op. O.L.C. 370, 371 (1989) (citing Myers v. United\nStates, 272 U.S. 52, 135 (1926)).\nThe foregoing separation of powers concerns are the essential backdrop for our\nanalysis of whether the Fair Housing Act authorizes HUD to initiate enforcement\nproceedings against other executive branch agencies. Like the Supreme Court, we\n7\nO u r o p in io n s have carefu lly distinguished th e reported cases in w hich executive agencies w ere nom inally bo th p la in tiff and defen d an t In all o f th e se cases, w e h ave concluded, \xe2\x80\x9cone o f the executive agencies is\nnot the \xe2\x80\x98real p artly ] in in te re st\xe2\x80\x99 b u t simply a stan d -in for p riv ate interests.\xe2\x80\x9d 13 O p O L C at 139 (citing I\nOp. O .L .C at 81). H U D asserts th a t an action u n d e r the A ct on b ehalf o f a private com plainant falls w ithin\nthe ex cep tio n w here one o f the agencies is not th e real party in interest D iaz Letter at 5. A lthough we read\xc2\xad\nily c o n ce d e lhat the private com plainant is o n e o f the parties in interest, the issue is not as sim ple as HUD\nsuggests becau se the A ttorney G eneral, in b rin g in g the action upon a referral from HUD, w ould also be\nrepresen tin g g o v ern m en t in terests Thus, this D ep artm en t and H U D m ight also properly be view ed as parties\nin in te re st and un d er th is view c o u ld not be c h arac te riz e d as m ere \xe2\x80\x9cstand-ins\xe2\x80\x9d for the com plainant Indeed,\nH U D \xe2\x80\x99s su b m issio n m akes this very point* \xe2\x80\x9cT h is is not a c o n tro v ersy so lely betw een tw o F ederal agencies,\nbut in a d d itio n , involves a co n tro v ersy betw een the USDA and an individual com plainant \xe2\x80\x9d Id (em phasis\nadded) S e e g e n e r a lly , A hiU tx o j th e E n viro n m en ta l P rotection A g ency to Sue A n o th er G overnm ent Agency,\n9 O p. O L.C 9 9 (1 9 8 5 ) (rev iew in g cases on \xe2\x80\x9c re a l party in in te re st\xe2\x80\x9d issue)\n\n106\n\n\x0cAuthority o f D epartm ent o f H ousing and Urban D evelopm ent to Initiate E nforcem ent A ctions\nUnder the F air H ousing A ct A gainst O ther Executive Branch A gencies\n\nare \xe2\x80\x9cloath to conclude that Congress intended to press ahead into dangerous con\xc2\xad\nstitutional thickets in the absence of firm evidence that it courted those perils.\xe2\x80\x9d\nPublic Citizen v. Department o f Justice, 491 U.S. at 466.\nNothing in the text of the Act indicates that Congress contemplated enforcement\nactions against executive branch agencies, which would involve (in the administra\xc2\xad\ntive proceeding) a contest between HUD and a respondent agency and (in any judi\xc2\xad\ncial proceeding) a contest between this Department and the respondent agency,\nwhich would be entitled to be represented by this Department. Indeed, we are in\xc2\xad\nclined to agree with USDA that, in light of the Act\xe2\x80\x99s various express references to\nthe United States and the federal government, see, e.g., 42 U.S.C. \xc2\xa7\xc2\xa7 3603(a),\n3608(d), 3612(p), 3613(c)(2), 3614(d)(2), Congress\xe2\x80\x99s \xe2\x80\x9cfailure to include the\nUnited States in the definition of respondent [42 U.S.C. \xc2\xa7 3602(n)] \xe2\x80\x94 a term used\nrepeatedly throughout the statutory description of the enforcement mechanism \xe2\x80\x94\nevinces an intent that Federal agencies are not subject to the administrative proce\xc2\xad\ndure.\xe2\x80\x9d Kelly Letter at 3. In any event, \xe2\x80\x9cno purpose to alter the President\xe2\x80\x99s usual\nsuperintendent role is evident from the text of the statute.\xe2\x80\x9d Franklin v. M assachu\xc2\xad\nsetts, 505 U.S. at 800.8\nBecause initiating statutory enforcement proceedings that could result in judicial\nresolution of disputes between HUD and respondent executive branch agencies\nwould necessarily \xe2\x80\x9cprevent[] [the President] from exercising his accustomed su\xc2\xad\npervisory powers over his executive officers\xe2\x80\x9d (id.), and raise substantial justicia\xc2\xad\nbility questions if litigation ensued, we believe that the \xe2\x80\x9cexpress statement\xe2\x80\x9d\nstandard used by the Supreme Court in Franklin and other cases applies here. We\nconclude in the absence of such an express statement in the Act that the Act does\nnot authorize enforcement actions against executive branch agencies.\nB.\nW hether Non-Judicial Aspects o f the A c t\xe2\x80\x99s\nEnforcem ent Scheme Apply to Executive Branch Agencies\nThe foregoing discussion makes it clear that the most constitutionally problem\xc2\xad\natic aspect of applying the Act\xe2\x80\x99s government enforcement scheme to executive\nbranch agencies is that such an interpretation might result in judicial rather than\nPresidential resolution of inter-agency disputes. We therefore consider now\nwhether the Act may be construed so that the HUD investigative and administrative\nprocess may be deemed applicable, but the judicial enforcement procedures\ndeemed inapplicable.\nThe executive branch, which is constitutionally charged with enforcing the Act,\nmay enjoy somewhat greater latitude to construe a statute to avoid constitutional\n8\nN or does the A c t\'s legislative history suggest in any w ay an intent to authorize H U D to initiate enforcem ent proceedings against executive branch agencies. As w ith the statutory text, the legislative history sim \xc2\xad\nply speaks o f \xe2\x80\x9crespondents" w hen it lays out the enforcem ent procedures\nSee H .R Rep N o 100-711\n(1988), rep rin ted in 1988 U S C C A N . 2 1 7 3\n\n107\n\n\x0cO pinions o f the O ffice o f Legal C ounsel\n\ndifficulties than does a court. In this instance, however, while construing the Act\nto remove the courts from any role in HUD\xe2\x80\x99s enforcement against other executive\nbranch agencies would reduce the constitutional problem, it would not eliminate it.\nSuch a construction would remove the Article III \xe2\x80\x9ccase or controversy\xe2\x80\x9d issue, but it\nwould merely substitute one interference with the President\xe2\x80\x99s Article II authority to\nsupervise and guide the executive branch for another: although no judicial role\nwould threaten the President\xe2\x80\x99s ability to resolve an intra-executive branch dispute,\nthe Act as construed would mandate a dispute resolution mechanism within the\nexecutive branch. This Department has long objected on separation of powers\ngrounds to congressional micromanagement of executive branch decisionmaking.\nThe manner and method of resolving disputes within the executive branch should\nbe determined by the President, not by Congress.\nMoreover, even if there were no constitutional difficulty presented by a con\xc2\xad\nstruction of the Act that authorized HUD to bring enforcement proceedings against\nexecutive branch agencies so long as resolution of the dispute would remain within\nthe executive branch, we do not believe that such a construction would be permis\xc2\xad\nsible in this instance because it would amount to a rewrite rather than a construc\xc2\xad\ntion of the statute. See generally Eubanks v. Wilkinson, 937 F.2d 1118 (6th Cir.\n1991) (discussing distinction between construing and rewriting a statute). To read\nout of the Act\xe2\x80\x99s government enforcement scheme the provisions authorizing judi\xc2\xad\ncial review of final HUD administrative action and authorizing complainants and\nrespondents to elect judicial resolution and the Attorney General to bring enforce\xc2\xad\nment actions would \xe2\x80\x9ccreate a program quite different from the one the legislature\nactually adopted,\xe2\x80\x9d which is the mark of illegitimate rewriting. Sloan v. Lemon, 413\nU.S. 825, 834 (1973). Nothing in the text or legislative history of the Act provides\nus any indication of a congressional intent that would serve as a basis for us to\neven consider such an exercise.\nIII. Conclusion\nBecause of the absence of an express statement in the Fair Housing Act author\xc2\xad\nizing HUD to initiate enforcement proceedings against other executive branch\nagencies under the Act, we conclude that the Act does not grant such authority to\nHUD. We find no basis for construing the Act to eliminate judicial resolution of\nintra-executive branch disputes while retaining the statutory administrative mecha\xc2\xad\nnism.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n108\n\n\x0c'