b'Applicability of Anti-Discrimination\nStatutes to the Presidio Trust\nThe issue the Presidio Trust has presented is of the sort that Executive Order 12146 calls upon the\nAttorney General, and hence the Office of Legal Counsel, to resolve.\nThe Presidio Trust is exempt from section 717 of Title VII of the Civil Rights Act of 1964 and section\n15 of the Age Discrimination in Employment Act of 1967 to the extent that these statutes apply to\nthe appointment, compensation, duties, or termination of Trust employees, but not otherwise.\n\nJune 22, 2004\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nPRESIDIO TRUST\nCongress established the Presidio Trust (the \xe2\x80\x9cTrust\xe2\x80\x9d) in 1996 as a whollyowned federal government corporation charged with administering historic\nbuildings and property that were formerly part of the Presidio of San Francisco\nmilitary base.1 Section 103(c)(7) of the Presidio Trust Act authorizes the Trust\n[n]otwithstanding any other provision of law, . . . to appoint and fix\nthe compensation and duties and terminate the services of an executive director and such other officers and employees as it deems necessary without regard to the provisions of title 5, United States Code,\nor other laws related to the appointment, compensation or termination of Federal employees.\n16 U.S.C. \xc2\xa7 460bb note (2000). The Trust has asked us to determine whether in\nthis provision Congress has exempted it from section 717 of Title VII of the Civil\nRights Act of 1964, 42 U.S.C. \xc2\xa7 2000e-16(a) (\xe2\x80\x9cTitle VII\xe2\x80\x9d), and section 15 of the\nAge Discrimination in Employment Act of 1967 (\xe2\x80\x9cADEA\xe2\x80\x9d), 29 U.S.C. \xc2\xa7 633a.2\nWe first address the argument of the Equal Employment Opportunity Commission\n(\xe2\x80\x9cEEOC\xe2\x80\x9d) that, pursuant to Executive Order 12146 (\xe2\x80\x9cEO 12146\xe2\x80\x9d), we should\nrefrain from resolving the question before us. We conclude that the issue presented\nby the Trust is of the sort that EO 12146 calls upon the Attorney General, and\n1\n\nSee Omnibus Parks and Public Lands Management Act of 1996, Pub. L. No. 104-333, tit. I,\n\xc2\xa7 103(c)(7), 110 Stat. 4093 (codified at 16 U.S.C. \xc2\xa7 460bb note) (\xe2\x80\x9cPresidio Trust Act\xe2\x80\x9d).\n2\nOur opinion on this matter is informed by letters from both the Trust and the EEOC setting forth\ntheir respective views on this issue. See Letter for Edward Whelan, Acting Assistant Attorney General,\nOffice of Legal Counsel, from Karen Cook, General Counsel, Presidio Trust (Apr. 25, 2003) (\xe2\x80\x9cPresidio\nRequest\xe2\x80\x9d); Letter for Noel J. Francisco, Deputy Assistant Attorney General, Office of Legal Counsel,\nfrom Karen A. Cook, General Counsel, Presidio Trust (Aug. 8, 2003); Letter for Noel J. Francisco,\nDeputy Assistant Attorney General, Office of Legal Counsel, from David L. Frank, Legal Counsel,\nEqual Employment Opportunity Commission (July 25, 2003) (\xe2\x80\x9cEEOC Response\xe2\x80\x9d); Letter for Noel J.\nFrancisco, Deputy Assistant Attorney General, Office of Legal Counsel, from Peggy R. Mastroianni,\nAssociate Legal Counsel, Equal Employment Opportunity Commission (Oct. 8, 2003).\n\n84\n\n\x0cApplicability of Anti-Discrimination Statutes to the Presidio Trust\n\nhence this Office, to resolve. Turning to the merits, we conclude that in enacting\nsection 103(c)(7) of the Trust\xe2\x80\x99s organic statute, Congress exempted the Trust from\nsection 717 of Title VII and section 15 of the ADEA to the extent that these\nstatutes apply to the appointment, compensation, duties, or termination of Trust\nemployees, but not otherwise.3\nI.\nWe first address the threshold question whether it is appropriate for us to resolve the question before us under EO 12146, 44 Fed. Reg. 42,657 (1979); 28\nU.S.C. \xc2\xa7 509 note (2000). The EEOC argues that \xe2\x80\x9ca dispute arising out of an\nadjudicatory process, in which one agency, who is a party to the adjudication,\ndisagrees with the decision of the other agency, who is the adjudicator, is [not] the\nkind of dispute between agencies that the Executive Order intended the Attorney\nGeneral to resolve.\xe2\x80\x9d EEOC Response, supra note 2, at 2. We have previously (and\nrecently) rejected this contention. See Authority of the Equal Employment\nOpportunity Commission to Impose Monetary Sanctions Against Federal Agencies\nfor Failure to Comply With Orders Issued by EEOC Administrative Judges, 27\nOp. O.L.C. 24, 25 (Jan. 6, 2003) (\xe2\x80\x9cEEOC Monetary Sanctions\xe2\x80\x9d) (\xe2\x80\x9c[N]either the\nfact that EEOC has authority to enforce Title VII in the federal workplace nor the\nfact that agencies \xe2\x80\x98shall\xe2\x80\x99 comply with EEOC rules and orders, see 42 U.S.C.\n\xc2\xa7 2000e-16(b) (2000), divests us of authority to issue this opinion.\xe2\x80\x9d). We adhere to\nthat position.\nWe believe that the dispute before us is of the sort that this Office is charged\nwith resolving. As we explained in our EEOC Monetary Sanctions opinion, EO\n12146 specifically calls upon the Attorney General to review an interagency\ndispute over whether one agency has jurisdiction to regulate the activities of\nanother. In particular, section 1-401 of the Executive Order provides:\nWhenever two or more Executive agencies are unable to resolve a\nlegal dispute between them, including the question of which has jurisdiction to administer a particular program or to regulate a particular activity, each agency is encouraged to submit the dispute to\nthe Attorney General.\n\n3\nWe have limited our analysis to section 717 of Title VII and section 15 of the ADEA because,\ninsofar as we are aware, these are the only employment discrimination statutes under which the EEOC\nhas asserted jurisdiction over the Trust. See Newman v. Rosenblatt, EEOC Appeal No. 01A24736, 2004\nWL 602178 (Mar. 18); Newman v. Rosenblatt, EEOC Appeal No. 01A24736, 2003 WL 1624696 (Mar.\n18). We do not address whether the Trust is subject to other employment laws, which may or may not\nhave features that distinguish them from sections 717 and 15 for purposes of applying the section\n103(c)(7) exemption. See, e.g., 29 U.S.C. \xc2\xa7 791 (2000) (Rehabilitation Act); 29 U.S.C. \xc2\xa7 206(d) (2000)\n(Equal Pay Act).\n\n85\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\n44 Fed. Reg. at 42,658 (emphasis added). The Trust\xe2\x80\x99s request falls within the plain\nlanguage of this provision. The Trust specifically raises \xe2\x80\x9cthe question . . . [whether\nthe EEOC] has jurisdiction to . . . regulate a particular activity\xe2\x80\x9d\xe2\x80\x94here, certain\nemployment decisions made by the Trust\xe2\x80\x94an issue with respect to the resolution\nof which the Trust and the EEOC are in disagreement.4 As we stated in our EEOC\nMonetary Sanctions opinion, \xe2\x80\x9c[a]t its base, the present dispute is whether EEOC\nhas exceeded its own jurisdiction; the dispute is therefore entirely appropriate for\nresolution by this Office.\xe2\x80\x9d 27 Op. O.L.C. at 25 (citing EO 12146, \xc2\xa7 1-401). And\nsince the Attorney General has delegated to this Office his authority to exercise\nthe functions delegated him under the Executive Order, see 28 C.F.R. \xc2\xa7 0.25\n(2003), we believe that section 1-401 of the Executive Order clearly permits us to\nresolve this issue.\nThe EEOC, however, argues that section 1-402 of EO 12146 divests us of\nauthority to resolve this dispute. Section 1-402 provides:\nWhenever two or more Executive agencies whose heads serve at the\npleasure of the President are unable to resolve such a legal dispute,\nthe agencies shall submit the dispute to the Attorney General prior to\nproceeding in any court, except where there is specific statutory vesting of responsibility for a resolution elsewhere.\n44 Fed. Reg. at 42,658. As we understand the EEOC\xe2\x80\x99s argument, where \xe2\x80\x9cthere is\nspecific statutory vesting of responsibility for a resolution\xe2\x80\x9d of a legal dispute in an\nagency other than the Department of Justice, then section 1-402 prohibits the\nDepartment of Justice from resolving that dispute even if requested to do so\npursuant to section 1-401. And because, the EEOC argues, both it and the courts\nare vested with responsibility for resolving disputes under the federal employment\ndiscrimination laws involving employees of the federal government, see 42 U.S.C.\n\xc2\xa7 2000e-16(b), (c) (Title VII); 29 U.S.C. \xc2\xa7 633a(b), (c) (ADEA), section 1-402\nprohibits the Attorney General from resolving legal issues arising out of these\ndisputes. See EEOC Response, supra note 2, at 2.\nWe disagree with the EEOC\xe2\x80\x99s interpretation of section 1-402 of the Executive\nOrder. Even assuming arguendo that \xe2\x80\x9cthere is specific statutory vesting of\nresponsibility [in the EEOC and the courts] for a resolution\xe2\x80\x9d of the issue raised by\nthe Trust, all that section 1-402 does is establish a requirement that agencies must\n\n4\nThe EEOC has suggested that there is no interagency dispute within the meaning of section 1-401,\nreasoning that \xe2\x80\x9c[s]ince the Presidio Trust raised the jurisdictional issue in an appeal over which the\nEEOC has adjudicatory authority, EEOC is not \xe2\x80\x98unable to resolve\xe2\x80\x99 . . . this dispute within the meaning\nof section 1-401.\xe2\x80\x9d EEOC Response, supra note 2, at 2. As we explain, however, we are not addressing\nthe EEOC\xe2\x80\x99s resolution of a specific employment discrimination claim, but rather are resolving an\nongoing general statutory dispute between two agencies. And as the submissions to us from the Trust\nand the EEOC make clear, see id. n.2, the Trust and the EEOC have not resolved their dispute on this\nbroader legal issue.\n\n86\n\n\x0cApplicability of Anti-Discrimination Statutes to the Presidio Trust\n\nsatisfy before they are permitted to bring an action in court. As section 1-402\nstates, executive agencies \xe2\x80\x9cshall submit the [interagency legal] dispute to the\nAttorney General prior to proceeding in court, except where there is specific\nstatutory vesting of responsibility for a resolution elsewhere.\xe2\x80\x9d 44 Fed. Reg. at\n42,658. In other words, if an agency has already utilized an alternative, statutorilycreated mechanism for resolving an interagency legal dispute, the agency may,\nconsistent with section 1-402, \xe2\x80\x9cproceed[] in . . . court\xe2\x80\x9d without also asking the\nAttorney General to resolve the dispute. Id. This process for resolving interagency\ndisputes helps avoid the constitutionally dubious scenario that arises when the\nExecutive Branch seeks to have a court resolve its internal legal disputes.5 Nothing\nin section 1-402, however, prohibits an agency from seeking the Attorney\nGeneral\xe2\x80\x99s opinion on a legal issue, or the Attorney General from rendering such an\nopinion if asked, even where another entity is likewise vested with responsibility\nfor resolving that dispute.\nThis understanding of section 1-402 finds support in a previous opinion issued\nby this Office. See Application of the Davis-Bacon Act to Urban Development\nProjects That Receive Partial Federal Funding, 11 Op. O.L.C. 92 (1987) (\xe2\x80\x9cDavisBacon\xe2\x80\x9d). There, we addressed whether section 1-402 modified our authority to\nresolve a dispute under 28 U.S.C. \xc2\xa7 512 (2000), which authorizes \xe2\x80\x9c[t]he head of an\nexecutive department [to] require the opinion of the Attorney General on questions\nof law arising in the administration of his department.\xe2\x80\x9d 11 Op. O.L.C. at 95.6 The\nSecretary of Housing and Urban Development had requested our opinion, but the\nDepartment of Labor argued that because it was statutorily vested with authority to\nresolve the legal issue before us, section 1-402 precluded the Attorney General\nfrom resolving the issue.\nWe rejected this argument, explaining that all that section 1-402 did was impose a requirement on the agencies between which the legal dispute had arisen:\nEven assuming, however, that Reorganization Plan No. 14 of 1950\xe2\x80\x94\ndirecting the Secretary of Labor to prescribe appropriate laborrelated standards, regulations, and procedures\xe2\x80\x94constitutes \xe2\x80\x9cspecific\n5\nWe have frequently noted serious constitutional questions presented\xe2\x80\x94both under principles of a\nunitary executive and Article III justiciability\xe2\x80\x94when the Executive Branch seeks to have a court\nresolve its internal legal disputes. See, e.g., Administrative Assessment of Civil Penalties Against\nFederal Agencies Under the Clean Air Act, 21 Op. O.L.C. 109 ( 1997) (\xe2\x80\x9cClean Air Act\xe2\x80\x9d); Authority of\nDepartment of Housing and Urban Development to Initiate Enforcement Actions Under the Fair\nHousing Act Against Other Executive Branch Agencies, 18 Op. O.L.C. 101 (1994); Proposed Tax\nAssessment Against the United States Postal Service, 1 Op. O.L.C. 79 (1977). Indeed, the Solicitor\nGeneral recently asked the Supreme Court to vacate an Eleventh Circuit decision that held justiciable a\ndispute between two Executive Branch agencies. See TVA v. EPA, 278 F.3d 1184, 1193\xe2\x80\x9398 (11th Cir.\n2002), rev\xe2\x80\x99d on other grounds, 336 F.3d 1236 (11th Cir. 2003), cert. denied sub nom. Leavitt v. TVA,\n124 S. Ct. 2096 (2004).\n6\nBecause we conclude that we may resolve this issue under EO 12146, we need not address\nwhether we may also do so under 28 U.S.C. \xc2\xa7 512 or any other authority.\n\n87\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nstatutory vesting of responsibility for a resolution\xe2\x80\x9d of the present\ndispute within the Secretary of Labor, the reorganization legislation\nin no sense affects the authority of the head of an executive department to seek, or the Attorney General to render, an opinion under 28\nU.S.C. \xc2\xa7 512 on questions of law that arise in the administration of\nhis department. Rather, under the above assumption, Reorganization\nPlan No. 15 of 1950 at most would mean that \xc2\xa7 1-402 of Executive\nOrder No. 12146 does not require the Secretaries of HUD and Labor\nto submit this legal dispute to the Attorney General.\nId. at 97 (emphasis in original). Section 1-402 did not, however, prohibit an agency from seeking the views of the Attorney General. Nor did it prohibit the\nAttorney General from providing his views upon request. So too here. Assuming\narguendo that the EEOC and the courts are statutorily vested with resolving the\nissue that the Trust has raised, the most that can be said of section 1-402 is that it\ndoes not require the EEOC and the Trust to seek resolution of this issue by the\nAttorney General before proceeding in court. It does not, however, preclude the\nAttorney General from rendering such an opinion if requested to do so in accordance with section 1-401 of EO 12146.\nWe recognize that notwithstanding the foregoing analysis, some dicta in one of\nour other opinions might be construed to suggest that section 1-402 prohibits this\nOffice from resolving a dispute under section 1-401 if another agency is statutorily\nvested with responsibility for resolving that dispute. See Memorandum for Henry\nL. Solano, Solicitor, Department of Labor, and Leigh A. Bradley, General\nCounsel, Department of Veterans Affairs, from Randolph D. Moss, Assistant\nAttorney General, Office of Legal Counsel, Re: The Effect of Veterans\xe2\x80\x99 Health\nAdministration Nurses\xe2\x80\x99 Additional Pay for Sunday and Night Duty on Calculation\nof Workers\xe2\x80\x99 Compensation Benefits (Jan. 19, 2001) (\xe2\x80\x9cNight Duty\xe2\x80\x9d). There, the\nDepartment of Labor argued that it, rather than this Office, was vested with\nresponsibility for resolving a dispute with the Department of Veterans Affairs\n(\xe2\x80\x9cVA\xe2\x80\x9d) over the proper computation of workers\xe2\x80\x99 compensation benefits for certain\nVA employees. We rejected this argument for two reasons: First, the statutes cited\nby the Department of Labor did not vest in it responsibility for deciding the\ndispute before us. Id. at 3\xe2\x80\x937. Second, even if the statutes had vested responsibility\nfor deciding the dispute in the Department of Labor, we had separate authority to\nresolve it under 28 U.S.C. \xc2\xa7 512. Night Duty at 7 (citing Davis-Bacon, 11 Op.\nO.L.C. 92). Nevertheless, we observed without analysis that under section 1-402,\n\xe2\x80\x9cwe have authority to decide this question unless [the statutes cited by Labor]\nvest[] responsibility for resolution in DOL.\xe2\x80\x9d Id. at 3 (emphasis added). This dicta\ncould be construed as suggesting that section 1-402 did not just impose a requirement upon agencies between which an interagency legal dispute has arisen, but in\naddition, that it limited the Attorney General\xe2\x80\x99s authority to resolve that dispute\neven if requested to do so under section 1-401 of the Order. In view of the\n\n88\n\n\x0cApplicability of Anti-Discrimination Statutes to the Presidio Trust\n\nforegoing analysis, as well as the absence of any substantive explanation for our\napparent suggestion in the Night Duty opinion, we hereby disavow the Night Duty\ndicta to the extent that it suggests that the Attorney General\xe2\x80\x99s authority to resolve\ninteragency disputes when properly requested to do so pursuant to section 1-401 of\nthe Executive Order is limited by section 1-402.\nIn any event, the EEOC and the courts are not statutorily vested with resolving\nthe issue raised by the Trust. Sections 717(b) and (c) of Title VII, 42 U.S.C.\n\xc2\xa7 2000e-16(b), (c), upon which the EEOC relies, authorize the EEOC and the\ncourts to resolve specific complaints of employment discrimination alleged by\nemployees of the federal government. The Trust, however, is not asking us to\nreview the EEOC\xe2\x80\x99s resolution of any of these specific complaints. Rather, the\nTrust is asking us to address the broad and generic legal question whether it is\nsubject to the EEOC\xe2\x80\x99s jurisdiction pursuant to section 103(c)(7) of its organic\nstatute\xe2\x80\x94a question upon which \xe2\x80\x9cthere is [not] a specific statutory vesting of\nresponsibility for a resolution\xe2\x80\x9d in the EEOC or the courts. 44 Fed. Reg. at 42,658.\nOther portions of our Night Duty opinion illustrate this distinction. One of the\nstatutes upon which the Department of Labor relied in its argument that this Office\nlacked authority to resolve its legal dispute with the Department of Veterans\nAffairs provided that the Secretary of Labor\xe2\x80\x99s decision \xe2\x80\x9callowing or denying a\npayment\xe2\x80\x9d is \xe2\x80\x9cfinal and conclusive\xe2\x80\x9d and \xe2\x80\x9cnot subject to review by another official\nof the United States.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 8128(b) (2000). As we explained:\nIt is clear to us that this provision does not apply to this dispute. Section 8128(b) on its face addresses the Secretary of Labor\xe2\x80\x99s exclusive\njurisdiction to determine specific adjudications of claims for benefits\narising under FECA. Because the issue presented to us is a broad\nstatutory dispute between two agencies rather than an administrative\nadjudication on a specific claim for benefits, it does not present the\ntype of determination intended to be insulated from review under\n[section] 8128.\nNight Duty at 4. The same is true here. We are not resolving the EEOC\xe2\x80\x99s resolution of \xe2\x80\x9can administrative adjudication on a specific claim\xe2\x80\x9d brought by an\nemployee against his federal employer, but rather, \xe2\x80\x9ca broad statutory dispute\nbetween two agencies.\xe2\x80\x9d Id. The latter is simply not the type of dispute that the\nEEOC is charged with resolving. See EEOC Monetary Sanctions, 27 Op. O.L.C.\n24; Reconsideration of Applicability of the Davis-Bacon Act to the Veterans\nAdministration\xe2\x80\x99s Lease of Medical Facilities, 18 Op. O.L.C. 109, 122\xe2\x80\x9323 (1994)\n(Department of Labor\xe2\x80\x99s authority to administer statute does not supersede\nAttorney General\xe2\x80\x99s authority to resolve legal dispute between agencies); Clean Air\nAct, 21 Op. O.L.C. at 116\xe2\x80\x9317 (rejecting argument that statute precludes resolution\nof dispute by Attorney General).\n\n89\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nWe therefore conclude that this Office is fully authorized to resolve the legal\ndispute that the Trust has presented to us.\nII.\nHaving determined that we have authority to resolve this dispute, we now turn\nto whether Congress has exempted the Trust from section 717 of Title VII and\nsection 15 of the ADEA. See 42 U.S.C. \xc2\xa7 2000e-16; 29 U.S.C. \xc2\xa7 633a. In section\n103(c)(7) of the Trust\xe2\x80\x99s organic statute, as amended, Congress provided:\nNotwithstanding any other provision of law, the Trust is authorized\nto appoint and fix the compensation and duties and terminate the\nservices of an executive director and such other officers and employees as it deems necessary without regard to the provisions of title 5,\nUnited States Code, or other laws related to the appointment, compensation or termination of Federal employees.\n16 U.S.C. \xc2\xa7 460bb note (emphasis added). Both the Trust and the EEOC seem to\nagree that, but for the language emphasized above, the Trust would be subject to\nsections 717 and 15. See Presidio Request, supra note 2, at 14; EEOC Response,\nsupra note 2, at 3\xe2\x80\x934. The precise question before us, however, is whether sections\n717 and 15 are \xe2\x80\x9cother laws related to the appointment, compensation or termination of Federal employees\xe2\x80\x9d within the meaning of the Trust\xe2\x80\x99s organic statute. If\nthey are, then in enacting this language, Congress exempted the Trust from these\notherwise applicable laws.\nAs a definitional matter, there can be no doubt that section 717 and section 15\nfall within the general category of laws \xe2\x80\x9crelated to the appointment, compensation\nor termination of Federal employees.\xe2\x80\x9d Section 717 requires \xe2\x80\x9c[a]ll personnel\nactions [of the federal government] affecting employees or applicants for employment . . . [to] be made free from any discrimination based on race, color,\nreligion, sex, or national origin.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 2000e-16(a). The ADEA similarly\nrequires \xe2\x80\x9c[a]ll personnel actions [of the federal government] affecting employees\nor applicants for employment who are at least 40 years of age . . . [to] be made\nfree from any discrimination based on age.\xe2\x80\x9d 29 U.S.C. \xc2\xa7 633a(a). The \xe2\x80\x9cpersonnel\nactions\xe2\x80\x9d referenced in Title VII and the ADEA plainly include \xe2\x80\x9cthe appointment,\ncompensation or termination of federal employees.\xe2\x80\x9d\nThat these federal employment discrimination laws are \xe2\x80\x9crelated\xe2\x80\x9d to the \xe2\x80\x9cappointment, compensation or termination of Federal employees,\xe2\x80\x9d however, does not\nnecessarily resolve the question before us. \xe2\x80\x9c[U]nder the established interpretive\ncanons of noscitur a sociis and ejusdem generis, \xe2\x80\x98[w]here general words follow\nspecific words in a statutory enumeration, the general words are construed to\nembrace only objects similar in nature to those objects enumerated by the\npreceding specific words.\xe2\x80\x99\xe2\x80\x9d Wash. Dep\xe2\x80\x99t of Soc. & Human Serv. v. Guardianship\n\n90\n\n\x0cApplicability of Anti-Discrimination Statutes to the Presidio Trust\n\nEstate of Danny Keffeler, 537 U.S. 371, 384 (2003) (quoting Circuit City Stores,\nInc. v. Adams, 532 U.S. 105, 114\xe2\x80\x9315 (2001)). In Keffeler, the Court addressed a\nprovision in the Social Security Act protecting benefits from \xe2\x80\x9cexecution, levy,\nattachment, garnishment, or other legal process.\xe2\x80\x9d Id. at 382. The Court rejected the\nstate court\xe2\x80\x99s holding that \xe2\x80\x9cother legal process\xe2\x80\x9d in this context covers a state\nagency\xe2\x80\x99s use of benefits to reimburse itself as representative payee. While\nrecognizing that \xe2\x80\x9cin the abstract the department does use legal process as the\navenue to reimbursement,\xe2\x80\x9d the Court interpreted that phrase more restrictively in\nits context to include only those processes similar to the judicial processes of\nexecution, levy, attachment and garnishment. Id. at 384. See also Circuit City, 532\nU.S. at 112 (Federal Arbitration Act exemption for \xe2\x80\x9ccontracts of employment of\nseamen, railroad employees, or any other class of workers engaged in foreign or\ninterstate commerce\xe2\x80\x9d covers only transportation workers, not all contracts under\nCongress\xe2\x80\x99s commerce power). Here, the relevant phrase\xe2\x80\x94\xe2\x80\x9cother laws related to\nthe appointment, compensation or termination of Federal employees\xe2\x80\x9d\xe2\x80\x94is\npreceded by the phrase \xe2\x80\x9cthe provisions of title 5, United States Code.\xe2\x80\x9d Under the\nnoscitur a sociis and ejusdem generis canons, therefore, it might well be argued\nthat only those laws \xe2\x80\x9csimilar in nature\xe2\x80\x9d to the provisions in title 5 are within the\ngeneral \xe2\x80\x9cother laws\xe2\x80\x9d referenced in section 103(c)(7).\nEven under these interpretive principles, however, we think it clear that section\n717 and section 15 are \xe2\x80\x9cother laws\xe2\x80\x9d within the meaning of section 103(c)(7). In\nparticular, two features common between \xe2\x80\x9cthe provisions of title 5, United States\nCode,\xe2\x80\x9d on the one hand, and section 717 and section 15, on the other, lead us to\nthe conclusion that they are generally similar to one another for purposes of\napplying the noscitur a sociis and ejusdem generis canons.\nPerhaps most significantly, the salient feature of title 5 is that it sets forth laws\nthat apply exclusively to federal employment. Title 5 as a whole is entitled\n\xe2\x80\x9cGovernment Organization and Employees.\xe2\x80\x9d Its provisions establish the basic\nstructure of the federal government. Part III of title 5, moreover, deals exclusively\nwith federal employment. Title 5, in other words, contains \xe2\x80\x9claws related to the\nappointment, compensation or termination of Federal employees.\xe2\x80\x9d 16 U.S.C.\n\xc2\xa7 460bb note (emphasis added). The \xe2\x80\x9cother laws\xe2\x80\x9d referenced in section 103(c)(7),\ntherefore, surely include laws that, like title 5, relate exclusively to federal\nemployment. Like title 5, however, the provisions of section 717 of Title VII and\nsection 15 of the ADEA relate exclusively to \xe2\x80\x9cFederal employees.\xe2\x80\x9d Id.\nSection 717 is illustrative. Title VII\xe2\x80\x99s general antidiscrimination provision\napplies only to \xe2\x80\x9cemployers,\xe2\x80\x9d see 42 U.S.C. \xc2\xa7 2000e-2 (2000) (prohibiting an\n\xe2\x80\x9cemployer\xe2\x80\x9d from unlawful discrimination on the basis of race, color, religion, sex\nor national origin), a term that expressly excludes the federal government, see 42\nU.S.C. \xc2\xa7 2000e(b) (defining \xe2\x80\x9cemployer\xe2\x80\x9d to exclude \xe2\x80\x9cthe United States, a corporation wholly owned by the Government of the United States, an Indian tribe, or any\ndepartment or agency of the District of Columbia subject by statute to procedures\nof the competitive service\xe2\x80\x9d). In contrast, section 717 applies only to the federal\n\n91\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\ngovernment. In particular, section 717(a), added to the statute in 1972 (before\nwhich the federal government was entirely exempt from Title VII\xe2\x80\x99s antidiscrimination requirements), provides:\nAll personnel actions affecting employees or applicants for employment (except with regard to aliens employed outside the limits of the\nUnited States) in military departments as defined in section 102 of title 5, in executive agencies as defined in section 105 of title 5 (including employees and applicants for employment who are paid\nfrom nonappropriated funds), in the United States Postal Service and\nthe Postal Rate Commission, in those units of the Government of the\nDistrict of Columbia having positions in the competitive service, and\nin those units of the judicial branch of the Federal Government having positions in the competitive service, . . . and in the Library of\nCongress shall be made free from any discrimination based on race,\ncolor, religion, sex, or national origin.\n42 U.S.C. \xc2\xa7 2000e-16(a) (2000). As this provision makes clear, section 717 is not\na general employment discrimination law that happens also to apply to the federal\ngovernment. Rather, it is a law that, like title 5, applies specifically to federal\nemployment. It is, in other words, an \xe2\x80\x9cother law[] related to the appointment,\ncompensation or termination of Federal employees.\xe2\x80\x9d 16 U.S.C. \xc2\xa7 460bb note.\nThe same is true of section 15 of the ADEA, which in relevant respects is\nidentical to section 717 of Title VII. As in Title VII, the ADEA\xe2\x80\x99s general antidiscrimination provision applies to \xe2\x80\x9cemployers,\xe2\x80\x9d see 29 U.S.C. \xc2\xa7 623(a) (2000)\n(prohibiting an \xe2\x80\x9cemployer\xe2\x80\x9d from unlawful discrimination on the basis of age), a\nterm that expressly excludes the federal government, see 29 U.S.C. \xc2\xa7 633(b)\n(defining \xe2\x80\x9cemployer\xe2\x80\x9d to exclude \xe2\x80\x9cthe United States, or a corporation wholly\nowned by the Government of the United States\xe2\x80\x9d). And as with section 717 of Title\nVII, section 15, added to the ADEA in 1974 (before which the federal government\nwas entirely exempt from the ADEA), applies only to the federal government:\nAll personnel actions affecting employees or applicants for employment who are at least 40 years of age . . . in military departments . . . , in executive agencies . . . , in the United States Postal\nService and the Postal Rate Commission, in those units in the government of the District of Columbia having positions in the competitive service, and in those units of the judicial branch of the Federal\nGovernment having positions in the competitive service, in the\nSmithsonian Institution, and in the Government Printing Office, the\nGeneral Accounting Office, and the Library of Congress shall be\nmade free from any discrimination based on age.\n\n92\n\n\x0cApplicability of Anti-Discrimination Statutes to the Presidio Trust\n\n29 U.S.C. \xc2\xa7 633a(a). This section also incorporates the remedial and procedural\nprovisions contained in section 717 of Title VII. Id. \xc2\xa7 633a(a), (b).\nThe most salient feature of title 5, in other words, is replicated in section 717 of\nTitle VII and section 15 of the ADEA: All three are \xe2\x80\x9claws related to the appointment, compensation or termination of Federal employees.\xe2\x80\x9d 16 U.S.C. \xc2\xa7 460bb\nnote. Indeed, all three apply exclusively to federal employment. In this light, it is\ndifficult to distinguish these statutes in any meaningful way.\nSection 717 and section 15 are also similar to title 5 in a second important\nrespect: All three seek to prohibit employment discrimination in the federal\ngovernment. As discussed above, sections 717 and 15 provide that \xe2\x80\x9cpersonnel\nactions affecting employees or applicants for [federal] employment\xe2\x80\x9d \xe2\x80\x9cshall be\nmade free from any discrimination based on race, color, religion, sex, or national\norigin\xe2\x80\x9d and \xe2\x80\x9cfree from any discrimination based on age,\xe2\x80\x9d respectively. 42 U.S.C.\n\xc2\xa7 2000e-16(a); 29 U.S.C. \xc2\xa7 633a(a). Likewise, chapter 72, subchapter I of title 5,\nentitled \xe2\x80\x9cAntidiscrimination in Employment,\xe2\x80\x9d provides, among other things, that\n\xe2\x80\x9c[i]t is the policy of the United States to insure equal employment opportunities\nfor employees without discrimination because of race, color, religion, sex, or\nnational origin,\xe2\x80\x9d further stating that \xe2\x80\x9c[t]he President shall use his existing authority\nto carry out this policy.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7201(b) (2000). It has similar provisions\nrelated to discrimination on the basis of marital status, see 5 U.S.C. \xc2\xa7 7202\n(2000),7 and disability, see 5 U.S.C. \xc2\xa7 7203 (2000).8 See also 5 U.S.C. \xc2\xa7 7204(b)\n(2000) (\xe2\x80\x9cIn the administration of chapter 51, subchapters III and IV of chapter 53,\nand sections 305 and 3324 of this title, discrimination[] because of race, color,\ncreed, sex, or marital status is prohibited with respect to an individual or a position\nheld by an individual.\xe2\x80\x9d). Section 717, section 15, and title 5, in other words, all\nseek to prohibit employment discrimination by the federal government.\nIn short, it is difficult to distinguish section 717 of Title VII and section 15 of\nthe ADEA from title 5 on any principled basis. All three regulate employment in\nthe federal government and, more specifically, all three prohibit the federal\ngovernment from engaging in specified categories of employment discrimination.\n7\nSection 7202 provides: \xe2\x80\x9c(a) The President may prescribe rules which shall prohibit, as nearly as\nconditions of good administration warrant, discrimination because of marital status in an Executive\nagency or in the competitive service. (b) Regulations prescribed under any provision of this title, or\nunder any other provision of law, granting benefits to employees, shall provide the same benefits for a\nmarried female employee and her spouse and children as are provided for a married male employee and\nhis spouse and children. (c) Notwithstanding any other provision of law, any provision of law\nproviding a benefit to a male Federal employee or to his spouse or family shall be deemed to provide\nthe same benefit to a female Federal employee or to her spouse or family.\xe2\x80\x9d\n8\nSection 7203 provides: \xe2\x80\x9cThe President may prescribe rules which shall prohibit, as nearly as\nconditions of good administration warrant, discrimination because of handicapping condition in an\nExecutive agency or in the competitive service with respect to a position the duties of which, in the\nopinion of the Office of Personnel Management, can be performed efficiently by an individual with a\nhandicapping condition, except that the employment may not endanger the health or safety of the\nindividual or others.\xe2\x80\x9d\n\n93\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nNor does anything in either the statutory or legislative history suggest that\nsection 103(c)(7)\xe2\x80\x99s reference to \xe2\x80\x9cother laws\xe2\x80\x9d is not intended to encompass section\n717 of Title VII and section 15 of the ADEA. In its original form, section\n103(c)(7) of the Presidio Trust Act authorized the Trust to appoint and fix the\ncompensation and duties of an executive director and such other officers and\nemployees as it deems necessary without regard to the provisions of title 5, United\nStates Code, governing appointments in the competitive service, and [to] pay them\nwithout regard to the provisions of chapter 51, and subchapter III of chapter 53,\ntitle 5, United States Code, relating to classification and General Schedule pay\nrates. 110 Stat. at 4100. In 1997, however, Congress broadened the section\n103(c)(7) exemption. See Department of the Interior and Related Agencies\nAppropriations Act, 1998, \xc2\xa7 351, Pub. L. No. 105-83, 111 Stat. 1543, 1607 (1997).\nAs amended, section 103(c)(7) now authorizes the Trust\n[n]otwithstanding any other provision of law, . . . to appoint and fix\nthe compensation and duties and terminate the services of an executive director and such other officers and employees as it deems necessary without regard to the provisions of title 5, United States Code,\nor other laws related to the appointment, compensation or termination of Federal employees.\n16 U.S.C. \xc2\xa7 460bb note. This amendment was adopted without debate by unanimous consent. See 143 Cong. Rec. 19,444\xe2\x80\x9348 (1997). And as both the Trust and\nthe EEOC seem to agree, nothing in the legislative history gives any indication,\none way or the other, as to what Congress intended to accomplish by this amendment. See Presidio Request, supra note 2, at 8 (acknowledging that \xe2\x80\x9cthere is little\nlegislative history regarding the amendment\xe2\x80\x9d); EEOC Response, supra note 2, at 4\n(acknowledging that \xe2\x80\x9c[u]nfortunately, there is no legislative history to support or\ncontradict either EEOC\xe2\x80\x99s or the Trust\xe2\x80\x99s interpretations\xe2\x80\x9d). We are thus left with the\nlanguage of the amendment itself, which, we have explained, on its face encompasses sections 717 and 15.9\nAlthough we believe that the foregoing discussion amply establishes that in\nenacting section 103(c)(7) Congress exempted the Trust from application of\nsections 717 and 15 to the extent that these statutes apply to the appointment,\n9\nThe EEOC has suggested that an interpretation of \xe2\x80\x9cother laws\xe2\x80\x9d that includes section 717 of Title\nVII and section 15 of the ADEA would be so broad that it \xe2\x80\x9cwould mean that the Trust would not have\nto make Social Security payments on its employees\xe2\x80\x99 behalf, and would not have to withhold federal\nincome taxes from their paychecks.\xe2\x80\x9d See E-mail for Leslie A. Simon, Office of Legal Counsel, from\nThomas Schlageter, EEOC, Re: Presidio Trust (Mar. 1, 2004) (\xe2\x80\x9cEEOC E-mail\xe2\x80\x9d). The section 103(c)(7)\nexemption, however, only encompasses laws \xe2\x80\x9crelated to the appointment, compensation or termination\nof Federal employees,\xe2\x80\x9d and then only permits the Trust to \xe2\x80\x9cappoint and fix the compensation and duties\nand terminate the services\xe2\x80\x9d of Trust employees without regard to such laws. 16 U.S.C. \xc2\xa7 460bb note. It\nis difficult to understand how Social Security payments and withholding taxes would fall within these\ncategories.\n\n94\n\n\x0cApplicability of Anti-Discrimination Statutes to the Presidio Trust\n\ncompensation, duties or termination of Trust employees, two other considerations\nprovide further confirmation of our conclusion. First, section 104(b) of the\nPresidio Trust Act exempts the Trust from \xe2\x80\x9c[f]ederal laws and regulations\ngoverning procurement by Federal agencies . . . with the exception of laws and\nregulations related to Federal government contracts governing working conditions\nand wage rates . . . and any civil rights provisions otherwise applicable thereto.\xe2\x80\x9d\n16 U.S.C. \xc2\xa7 460bb note. Congress easily could have carved employment discrimination laws out of its section 103(c)(7) exemption, just as it did with respect to\ncivil rights provisions in section 104(b). That it did not do so suggests that the\nterm \xe2\x80\x9cother laws\xe2\x80\x9d in section 103(c)(7) encompasses the federal employment\ndiscrimination laws as we have discussed.\nSecond, we are guided by the requirement that we \xe2\x80\x9c\xe2\x80\x98give effect, if possible, to\nevery clause and word of a statute.\xe2\x80\x99\xe2\x80\x9d United States v. Menasche, 348 U.S. 528,\n538\xe2\x80\x9339 (1955) (citation omitted). See also Pa. Pub. Welfare Dep\xe2\x80\x99t v. Davenport,\n495 U.S. 552, 562 (1990) (\xe2\x80\x9cOur cases express a deep reluctance to interpret a\nstatutory provision as to render superfluous other provisions of the same enactment.\xe2\x80\x9d) (citation omitted). Were we to conclude that the \xe2\x80\x9cother laws\xe2\x80\x9d in section\n103(c)(7) of the Trust Act did not include these federal employment discrimination laws insofar as they regulate the appointment, compensation, duties or\ntermination of federal employees, it is unclear to us what the \xe2\x80\x9cother laws\xe2\x80\x9d\nreferenced in section 103(c)(7) would include. Although we have identified a few\nprovisions scattered throughout the U.S. Code relating to veterans\xe2\x80\x99 employment\nrights, see, e.g., 38 U.S.C. \xc2\xa7\xc2\xa7 4214, 4314, 4324 (2000), and a criminal prohibition\nagainst a federal employee\xe2\x80\x99s receiving salary supplementation from an outside\nsource, see 18 U.S.C. \xc2\xa7 209 (2000), these bear no more relationship to title 5 than\ndo the federal employment discrimination laws discussed above.10\nWe hasten to note, however, that section 103(c)(7) does not exempt the Trust\nfrom all applications of sections 717 and 15. Section 103(c)(7)\xe2\x80\x99s exemption allows\n10\nThe EEOC points to two other possible examples of \xe2\x80\x9cother laws related to the appointment,\ncompensation or termination of Federal employees\xe2\x80\x9d: 5 C.F.R. \xc2\xa7 530.203(a) (2004) and 2 U.S.C. \xc2\xa7 356\n(2000). See Newman v. Rosenblatt, 2004 WL 602178, at *2; EEOC E-mail, supra note 9. The Trust is\nexempt from these provisions, however, not by virtue of the \xe2\x80\x9cother laws\xe2\x80\x9d language, but rather by virtue\nof its exemption from title 5 itself. See 16 U.S.C. \xc2\xa7 460bb note (\xe2\x80\x9cwithout regard to the provisions of\ntitle 5, United States Code\xe2\x80\x9d). For example, 5 C.F.R. \xc2\xa7 530.203(a) sets forth circumstances in which\n\xe2\x80\x9c[n]o executive branch employee . . . may receive any allowance, differential, bonus, award, or other\nsimilar cash payment under title 5, United States Code\xe2\x80\x9d (emphasis added). This regulation, moreover,\nspecifically implements section 5307 of title 5, which is substantively identical to the regulation. See\n5 U.S.C. \xc2\xa7 5307 (2000). The Trust, however, is explicitly exempt from title 5 and, as a result, is\nexplicitly exempt from this title 5 restriction on its ability to pay its employees. The same is true of\n2 U.S.C. \xc2\xa7 356, which authorizes the Citizens\xe2\x80\x99 Commission on Public Service and Compensation to\n\xe2\x80\x9cconduct . . . a review of the rates of pay of . . . offices and positions under the Executive Schedule in\nsubchapter II of chapter 53 of Title 5\xe2\x80\x9d (emphasis added). It is unclear to us whether this Commission\nhas authority other than to conduct a \xe2\x80\x9creview,\xe2\x80\x9d and therefore how it would affect the Trust\xe2\x80\x99s ability to\ncompensate its employees. But in any event, as with 5 C.F.R. \xc2\xa7 530.203(a), this provision only applies\nto the extent that title 5 itself applies, from which, as we have explained, the Trust is explicitly exempt.\n\n95\n\n\x0cOpinions of the Office of Legal Counsel in Volume 28\n\nthe Trust to \xe2\x80\x9cappoint and fix the compensation and duties and terminate the\nservices\xe2\x80\x9d of its employees \xe2\x80\x9cwithout regard to the provisions of title 5, United\nStates Code, or other laws related to the appointment, compensation or termination\nof Federal employees.\xe2\x80\x9d 16 U.S.C. \xc2\xa7 460bb note. Many applications of the federal\nemployment discrimination laws, however, do not regulate the appointment,\ncompensation, duties or termination of federal employees. Title VII, for example,\nhas been held to prohibit racially and sexually hostile work environments, see\nSingletary v. District of Columbia, 351 F.3d 519, 526 (D.C. Cir. 2003); see also\nMeritor Sav. Bank v. Vinson, 477 U.S. 57 (1986), and racial and sexual harassment, see, e.g., Bundy v. Jackson, 641 F.2d 934, 943\xe2\x80\x9344 (D.C. Cir. 1981). To the\nextent that these statutes cover employment actions other than the appointment,\ncompensation, duties or termination of Trust employees, they remain applicable to\nthe Trust notwithstanding section 103(c)(7).11\nIn sum, we conclude that in enacting section 103(c)(7) of the Trust\xe2\x80\x99s organic\nstatute, Congress exempted the Trust from section 717 of Title VII and section 15\nof the ADEA to the extent that these statutes apply to the appointment, compensation, duties or termination of Trust employees, but not otherwise.\nNOEL J. FRANCISCO\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n11\n\nWe note that we do not here address the application to the Trust of Executive Orders prohibiting\ndiscrimination in federal employment, see, e.g., Exec. Order No. 11478, \xc2\xa7\xc2\xa7 1, 2, 34 Fed. Reg. 12,985\n(1969); Exec. Order No. 11141, 29 Fed. Reg. 2477 (1964) (age), or whether a Trust employee could\nbring an employment discrimination suit against the Trust under the equal protection component of the\nDue Process Clause, see Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.\n388 (1971); Davis v. Passman, 442 U.S. 228, 247 (1979); Brown v. GSA, 425 U.S. 820 (1976).\n\n96\n\n\x0c'


b'Status of the Commission on Railroad\nRetirement Reform for Purposes of the\nApplicability of Ethics Laws\nThe Com m ission on Railroad Retirement Reform is not an agency in the executive branch\nfor purposes o f determining what obligations m em bers o f the Com m ission may have\nunder the laws governing conflicts o f interest and financial disclosure.\nBecause the Com m ission is not part o f the executive branch for these purposes, the O ffice\no f Legal Counsel is without authority to advise the Com mission regarding the obligations\no f its members under whatever conflicts laws may apply to them.\n\nSeptember 14, 1989\nM e m o r a n d u m O p in io n\nC o m m is s io n\n\non\n\nfo r the\n\nE x e c u t iv e D i r e c t o r\n\nR a il r o a d R e t ir e m e n t R e f o r m\n\nYou have asked for our opinion whether the Commission on Railroad\nRetirement Reform (\xe2\x80\x9cCommission\xe2\x80\x9d) should be regarded as an agency in\nthe executive branch for purposes o f determining what obligations mem\xc2\xad\nbers of the Commission may have under the laws governing conflicts o f\ninterest and financial disclosure. See 18 U.S.C. \xc2\xa7\xc2\xa7 201-211; 5 U.S.C. app.\n\xc2\xa7\xc2\xa7 201-211; 2 U.S.C. \xc2\xa7\xc2\xa7 701-709. We have examined the relevant statutory\nprovisions and the legislative history of the Commission and have con\xc2\xad\ncluded that the Commission should not be considered part o f the execu\xc2\xad\ntive branch for the purposes as to which you have inquired. Accordingly,\nwe are unable to advise the Commission\xe2\x80\x99s members regarding their oblig\xc2\xad\nations under applicable conflict o f interest and financial disclosure laws.\n\nAnalysis\nThe Commission was established by section 9033 of the Omnibus\nBudget Reconciliation Act of 1987, Pub. L. No. 100-203, 101 Stat. 1330,\n1330-296 to 1330-299. The status within the government of an office cre\xc2\xad\nated by statute is a matter of statutory interpretation, controlled by leg\xc2\xad\nislative intent. Ameron, Inc. v. United States Army Corps of Engineers,\n787 F.2d 875, 892-93 (3d Cir.) (Becker, J., concurring in part) (regarding\nComptroller General), modified, 809 F.2d 979 (3d Cir. 1986), cert, dis\xc2\xad\nmissed, 488 U.S. 918 (1988). Neither the statute nor its legislative history,\nhowever, expressly provide the branch of the government within which\nthe Commission fits, either for purposes o f determining the applicable\n285\n\n\x0cethics and disclosure regulations or otherwise.1 Therefore, inferences\nmust be drawn from the structure and purpose o f the Commission as pro\xc2\xad\nvided by the statute.\nFour o f the Commission\xe2\x80\x99s seven officers are appointed by the\nPresident, and the Speaker o f the House o f Representatives, the\nPresident pro tempore of the Senate, and the Comptroller General each\nappoint one o f the remaining three members. \xc2\xa7 9033(c)(l)(A)-(C).2 The\nCommission is directed to\nconduct a comprehensive study o f the issues pertaining to\nthe long-term financing o f the railroad retirement system ...\nand the system\xe2\x80\x99s short-term and long-term solvency. The\nCommission shall submit a report containing a detailed\nstatement o f its findings and conclusions together with rec\xc2\xad\nommendations to the Congress for revisions in, or alter\xc2\xad\nnative to, the current system.\n\n\xc2\xa7 9033(b) (emphasis added). The Commission\xe2\x80\x99s study must consider var\xc2\xad\nious factors relating to the economic outlook for the railroad industry\nand its retirement system, as well as \xe2\x80\x9cany other matters which the\nCommission considers would be necessary, appropriate, or useful to the\nCongress in developing legislation to reform the system.\xe2\x80\x9d \xc2\xa7 9033(b)(5)\n(emphasis added). The Commission is further directed to transmit the\nreport to the President and to each chamber o f the Congress by October\nI, 1989. \xc2\xa7 9033(f).3\nWith the possible exception of the transmission of its report to the\nPresident, the Commission performs only \xe2\x80\x9cinvestigative and informative\xe2\x80\x9d\nfunctions that could be undertaken by a congressional committee and\nthat are removed from the administration and enforcement of public law.\nSee Buckley v. Valeo, 424 U.S. 1, 126, 137-38 (1976). The Commission\xe2\x80\x99s\nmembers therefore need not be officers o f the United States, appointed\nin conformity with the Appointments Clause o f the Constitution, Article\nII, Section 2, Clause 2.4 Id. Rather, the Commission\xe2\x80\x99s functions, broadly\n1 The statute\xe2\x80\x99s sole ethics provision, an undesignated subpart o f the subsection governing the\nCommissioner\xe2\x80\x99s manner o f appointment and qualifications, states only that \xe2\x80\x9c[a]ll public members o f the\nCommission shall be appointed from among individuals who are not m the employment o f and are not\npecuniarily or otherwise interested in any employer . or organization o f employees.\xe2\x80\x9d \xc2\xa7 9033(c)(1).\n2 Although the President\xe2\x80\x99s power to remove officials would be o f decisive importance in determining\nwhether those officials are executive officers, see Bowsher v. Synar, 478 U.S 714, 726-30 (1986);\nMistrelta v United States, 488 U.S 361,423 (1989) (Scalia, J., dissenting), the statute at issue here makes\nno express provision for removal o f Commissioners, merely providing that u[a] vacancy in the\nCommission shall be filled in the manner in which the original appointment was made \xe2\x80\x9d \xc2\xa7 9033(c)(1)\n3 Congress later extended this deadline by one year in section 7108 o f the Technical and Miscellaneous\nRevenue Act o f 1988, Pub. L No. 100-647, 102 Stat. 3342, 3774\n4 The provisions o f the statute relating to provision o f personnel or information by federal agencies to\nthe Commission do not, m our view, vest the Commission or its Chairman with the ability to \xe2\x80\x9cexercis[e]\nContinued\n\n286\n\n\x0cconsidered, are of the sort characteristically exercised by agencies of\neither the executive branch, see U.S. Const, art. II, \xc2\xa7 3 (\xe2\x80\x9c[The President]\nshall from time to time give to the Congress Information o f the State of\nthe Union, and recommend to their Consideration such Measures as he\nshall judge necessary and expedient. . . Applicability of the Hatch Act\nto the Chairman of the Native Hawaiians Study Commission, 6 Op.\nO.L.C. 292, 295 (1982) (\xe2\x80\x9c[T]he making o f recommendations to Congress is\nnot a purely legislative function, but falls squarely within the duties and\npowers o f the Executive.\xe2\x80\x9d), or the legislative branch. See Buckley v.\nValeo, 424 U.S. at 137-38; McGrain v. Daugherty, 273 U.S. 135, 175\n(1927).5\nIf the Commission were deemed because of these duties to be part of\nthe executive branch, however, other provisions concerning the manner\nin which the Commission is to execute these duties, as well as the man\xc2\xad\nner o f appointment o f the Commissioners, could raise serious constitu\xc2\xad\ntional questions with respect to the statute. As noted above, section\n9033(b) requires the Commission to \xe2\x80\x9csubmit a report containing a\ndetailed statement o f its findings and conclusions together with recom\xc2\xad\nmendations to the Congress for revisions in, or alternatives to, the cur\xc2\xad\nrent system.\xe2\x80\x9d This requirement is recapitulated in section 9033(f), which\nprovides that \xe2\x80\x9c[t]he Commission shall transmit a report to the President\nand to each House o f the Congress [that] shall contain a detailed state\xc2\xad\nment of the findings and conclusions together with recommendations to\nthe Congress for revisions in, or alternatives to, the current system.\xe2\x80\x9d This\nrequirement is recapitulated in section 9033(f), which provides that \xe2\x80\x9c [t]he\nCommission shall transmit a report to the President and to each House of\nCongress [that] shall contain a detailed statement o f the findings and con\xc2\xad\nclusions o f the Commission, together with its legislative recommenda\xc2\xad\ntions." (Emphasis added.)\nIt has been the longstanding view o f the Department o f Justice that\nArticle III, Section 3 o f the Constitution vests in the President plenary and\n\n4 (...continued)\nsignificant authonty pursuant to the laws o f the United States,\xe2\x80\x9d Buckley v Valeo, 424 U.S. at 126, because\nthey do not either directly or indirectly involve the exercise by the Commission o f authonty over or on\nbehalf o f third parties. See Cun\'in v Wallace, 306 U S 1, 15 (1939) Indeed, for the most part these pro\xc2\xad\nvisions merely permit federal agencies to respond to the requests o f the Commission or its Chairman.\nSection 9033(d)(4) provides that u[u]pon request o f the Commission, the Railroad Retirement Board and\nany other Federal agency may detail, on a reimbursable basis, any o f the personnel thereof to the\nCommission to assist the Commission in carrying out its duties under this section \xe2\x80\x9d (Emphasis added )\nSimilarly, section 9033(e)(1) provides that \xe2\x80\x9c[tjhe Commission may, as appwpriate, secure directly from\nany department or agency o f the United States information necessary to enable it to carry out this sec\xc2\xad\ntion Upon request o f the Chainnan o f the Commission, the head o f such department or agency shall, as\nappropriate, furnish such information to the Commission.\xe2\x80\x9d (Emphasis added.)\n5The fact that the Commission is required to provide its report both to Congress and the President, and\nthus might be said to be vested with \xe2\x80\x9c(obligations to two branches[, is] not .. impermissible and the\npresence o f such dual obligations does not prevent [its] characterization\nas part o f one branch \xe2\x80\x9d\nBowsher v. Synar, 478 U S. at 746 (Stevens, J , concum ng in the judgment)\n\n287\n\n\x0cexclusive discretion concerning legislative proposals submitted by the\nexecutive branch to the Congress. Thus, Congress may not require execu\xc2\xad\ntive branch officials to submit legislative proposals to the Congress. See,\ne.g., Constitutionality of Statute Requiring Executive Agency to Report\nDirectly to Congress, 6 Op. O.L.C. 632, 640 (1982) (legislation mandating\n\nsubmission o f legislative proposals trenches on President\xe2\x80\x99s Article n,\nSection 3 authority). Similarly, the Department has repeatedly opined that\nstatutes purporting to require that executive branch officials submit\nreports directly to Congress, without any prior review by their superiors,\nwould raise serious constitutional questions by impairing the President\xe2\x80\x99s\nconstitutional right to direct his subordinates. See, e.g., id.-, Inspector\nGeneral Legislation, 1 Op. O.L.C. 16, 17-18 (1977) (concurrent reporting\nrequirements in inspector general legislation offends President\xe2\x80\x99s Article II\npower to direct); see also Myers v. United States, 272 U.S. 52,163-64 (1926)\n(\xe2\x80\x9cArticle II grants to the President the executive power of the Government,\ni.e., the general administrative control o f those executing the laws ....\xe2\x80\x9d);\nCongress Construction Corp. v. United States, 314 F.2d 527, 530-32 (Ct.\nCl.), cert, denied, 375 U.S. 817 (1963). The above-referenced reporting pro\xc2\xad\nvisions of the statute would involve both of these infirmities if the\nCommission were treated as an executive branch agency.6 In addition, this\nOffice has expressed the view that provision of advice and recommenda\xc2\xad\ntions to the executive branch is an executive function, The President\xe2\x80\x99s\nPower to Remove Members o f the Federal Council on the Aging, 5 Op.\nO.L.C. 337, 343 (1981), and therefore congressional appointment o f those\nperforming such a function would raise constitutional questions. See Letter\nfor Alexander H. Platt, General Counsel, National Economic Commission,\nfrom Douglas W. Kmiec, Deputy Assistant Attorney General, Office o f Legal\nCounsel (June 22, 1988).7\nAgainst the background of such constitutional questions we are obliged\nto \xe2\x80\x9cfirst ascertain whether a construction o f the statute is fairly possible\nby which the question may be avoided.\xe2\x80\x9d Crowell v. Benson, 285 U.S. 22,\n62 (1932). See also International Ass\xe2\x80\x99n o f Machinists v. Street, 367 U.S.\n6 Although the Department o f Justice has narrowly interpreted such broadly worded provisions in\nstatutes unquestionably applying to executive branch agencies in the past to avoid raising these consti\xc2\xad\ntutional issues, see, e.g., 41 Op. Att\xe2\x80\x99y Gen. 507, 525 (I960), 6 Op. O.L.C. at 643, it would be anomalous to\nso construe the reporting provisions o f this statute, where the basis for such a construction \xe2\x80\x94 the applic\xc2\xad\nability o f such provisions to an executive branch entity \xe2\x80\x94 is itself in dispute.\n7 The fact that a majority o f its members are appointed by the President, although o f some significance,\nis not in our view dispositive o f the Commission\xe2\x80\x99s status, particularly where, as in this case, three o f the\nPresident\xe2\x80\x99s four appointees are to be \xe2\x80\x9cappointed on the basis o f recommendations made by\xe2\x80\x9d repre\xc2\xad\nsentatives o f railroad employers, railroad employees, and commuter railroads, respectively.\n\xc2\xa7 90 33(c)(l)(A )(i)-(iii). The remaining Presidential appointee is to be appointed from among \xe2\x80\x9cmembers\no f the public." \xc2\xa7 9033(c)(l)(A )(iv). Cf. \xc2\xa7 9033(c)(1)(B) (Speaker\xe2\x80\x99s appointee from among members o f the\npublic); \xc2\xa7 9033(c)(1)(C ) (President pro tempore\xe2\x80\x99s appointee from among members o f the public);\n\xc2\xa7 9033(c)(1)(D ) (Comptroller General\xe2\x80\x99s appointee from among members o f the public with expertise in\nretirement systems and pension plans). We express no opinion concerning the validity o f these appoint\xc2\xad\nment provisions.\n\n288\n\n\x0c740, 749-50 (1961); Ashwander v. TVA, 297 U.S. 288, 348 (1936) (Brandeis,\nJ., concurring). In our view, it is reasonable to construe the two reporting\nprovisions as contemplating that the Commission\xe2\x80\x99s report would be pre\xc2\xad\npared principally for Congress\xe2\x80\x99 benefit, with the President as an inciden\xc2\xad\ntal recipient. The statute\xe2\x80\x99s detailed reporting provision makes no refer\xc2\xad\nence to the President and expressly states that the Commission is to\nsubmit a report of its findings, conclusion, and recommendations \xe2\x80\x9cto the\nCongress," including, inter cilia, \xe2\x80\x9cany other matters ... necessary, appro\xc2\xad\npriate, or useful to the Congress.\xe2\x80\x9d \xc2\xa7 9033(b) (emphasis added). Cf. 31\nU.S.C. \xc2\xa7 719(a) (Comptroller General, a legislative officer, is required to\nprovide Congress with annual report but must also provide it to President\nupon his request); see generally Bowsher v. Synar, 478 U.S. at 745-46\n(Steven J., concurring) (Comptroller General\xe2\x80\x99s responsibilities to execu\xc2\xad\ntive branch, including responsibility to provide President with reports\nupon request, do not prevent his being characterized as legislative offi\xc2\xad\ncer); Gannett News Service, Inc. v. Native Hawaiians Study Comm\xe2\x80\x99n,\nNo. 82-0163 (D.D.C. June 1, 1982) (for purposes o f Federal Advisory\nCommittee Act, Native Hawaiians Study Commission advisory to\nCongress, not the President, although both receive copy of final factual\nreport); Applicability of the Federal Advisory Committee Act to the\nNative Hawaiians Study Commission, 6 Op. O.L.C. 39, 41 (1982) (\xe2\x80\x9cThat\nthe President is to receive a copy o f the [Native Hawaiians Study\nCommission] study, perhaps simply as a courtesy or for his general infor\xc2\xad\nmation, does not mean the study was intended to \xe2\x80\x98advise\xe2\x80\x99 him [for pur\xc2\xad\nposes of the Federal Advisory Committee Act].\xe2\x80\x9d).\nMoreover, most of the factors to be considered by the Commission in\npreparing its report relate to future legislation rather than nonlegislative\npurposes such as assisting the executive branch in its administration o f\nexisting programs.8 These features o f the bill strongly suggest that\nCongress created the Commission primarily to assist it, rather than the\nPresident, in considering these issues.9 Because such a construction\n\n8 This conclusion is also consistent with the sparse legislative history o f the provision, which notes the\nCommission role as advisor to the Congress. See 134 Cong Rec. 14,647 (1988) (statement o f Rep.\nWhittaker) ( \xe2\x80\x9cThe Commission can pave the way for a comprehensive, consensus approach to needed\nreforms, and can give the Congress the benefit o f a studied, analytical approach to the problem . \xe2\x80\x9d).\n9 Our conclusion is supported by the fact that Congress has in the recent past created other commissions\nto assist it m legislating in this area See Pub L. No. 91-377, \xc2\xa7 7, 84 Stat 791, 792-94 (1970) (creating\nCommission on Railroad Retirement compnsed o f three Presidential and two congressional appointees to\n\xe2\x80\x9crecommend[] to the Congress ... changes in [the] . benefits thereunder;\xe2\x80\x9d its final report was to be sub\xc2\xad\nmitted to Congress and the President), Pub L. No. 92-460, \xc2\xa7 6, 86 Stat 765, 767 (1972) (requiring represen\xc2\xad\ntatives o f railway labor and management to submit to congressional committees and the Railroad\nRetirement Board a report containing joint recommendations); Pub. L. No. 93-69, \xc2\xa7 107, 87 Stat. 162, 165\n(1973) (requiring representatives o f railway labor and management to submit to congressional committees\na report containing \xe2\x80\x9cjoint recommendations for restructuring the railroad retirement system ... (which) shall\nbe . in the form o f a draft bill0); Pub L No. 98-76, \xc2\xa7 504, 97 Stat. 411, 441-42 (1983) (codified at 45 U S C \xc2\xa7\n362) (creating Railroad Unemployment Compensation Committee consisting o f representatives of railway\nlabor and management and the public, to submit \xe2\x80\x9ca report to the Congress concerning recommendations\xe2\x80\x9d)\n\n289\n\n\x0cavoids the constitutional problems and is \xe2\x80\x9cnot only \xe2\x80\x98fairly possible\xe2\x80\x99 but\nentirely reasonable,\xe2\x80\x9d Machinists v. Street, 367 U.S. at 750, we are con\xc2\xad\nstrained to adopt it in this instance.10\n\nConclusion\nUnder these circumstances, we conclude that the Commission is not\npart o f the executive branch o f the government for the purposes as to\nwhich you have inquired. Consequently, we are without authority to\nadvise the Commission regarding the obligations of its members under\nwhatever conflicts laws may apply to them. See 28 U.S.C. \xc2\xa7\xc2\xa7 511-513. We\nsuggest that you consult with the responsible ethics counsels of the\nHouse o f Representatives and the Senate in this regard.11\nLYNDA GUILD SIMPSON\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n10 The statute\xe2\x80\x99s housekeeping provisions appear to be o f limited value in assessing Congress\xe2\x80\x99 intent.\nThe General Services Administration, an agency within the executive branch, is directed to provide the\nCommission with administrative support services on a reimbursable basis, \xc2\xa7 9033(e)(3), and federal\nagencies are authorized to provide personnel and information to the Commission. \xc2\xa7\xc2\xa7 9033(d)(4),\n9033(e)(1) In addition, the Commission is authorized to use the United States mails \xe2\x80\x9cin the same man\xc2\xad\nner and under the same conditions as other departments and agencies o f the United States.\xe2\x80\x9d \xc2\xa7 9033(e)(2).\nThe Chairman o f the Commission is also authonzed, subject to some limitations, to procure temporary\nand intermittent services under 5 U S C. \xc2\xa7 3109(b), an authonty permanently available to specified agen\xc2\xad\ncies in all three branches o f the government \xc2\xa7 9033(d)(3). See also 5 U S.C \xc2\xa7 5721(1) (defining \xe2\x80\x9cagency\xe2\x80\x9d\nfor purposes of, inter alia, 5 U.S C \xc2\xa7 3109 as an executive agency, military department, federal court or\nthe Administrative Office o f the United State Courts, the Library o f Congress, the Botanic Garden, the\nGovernment Printing Office, or the District o f Columbia Government) We regard these provisions as o f\nlimited relevance to the question before us.\n11 We are aware that other agencies within the executive branch have considered the Commission\xe2\x80\x99s sta\xc2\xad\ntus for purposes o f the Federal Advisory Committee Act (\xe2\x80\x9cFACA\xe2\x80\x9d), 5 U SC . app. \xc2\xa7\xc2\xa7 1-15, and o f the\nCommission\xe2\x80\x99s funding. We do not regard either the Commission\xe2\x80\x99s unilateral action in filing a charter with\nthe General Services Administration pursuant to FACA or the Commission\xe2\x80\x99s source of funding as neces\xc2\xad\nsarily reliable indicia o f Congress\xe2\x80\x99 mtent concerning the Commission\xe2\x80\x99s status within the government for\npurposes o f the conflicts-of-interest and disclosure laws This office has suggested that the National\nEconomic Commission, which was expressly made subject to FACA by the Congress, was nevertheless not\na part o f the executive branch, see Letter for Alexander W. Platt, General Counsel, National Economic\nCommission, from Douglas W. Kiruec, Deputy Assistant Attorney General, Office o f Legal Counsel (June 22,\n1988) Similarly, although an agency\xe2\x80\x99s source o f funding may sometimes be indicative of Congress\xe2\x80\x99 inten\xc2\xad\ntions as to its status, see 6 Op. O L C at 41 (provision funding a commission from Senate\xe2\x80\x99s contingent fund\nevidences mtent that it advise Congress, not the President), the Commission\xe2\x80\x99s source of funding does not\nsupport such an inference The Commission\'s Fiscal Year 1989 appropriation, the first funding provided for\nthe Commission, was contained in title IV, the \xe2\x80\x9cRelated Agencies\xe2\x80\x9d portion of the Departments of Labor,\nHealth and Human Services, and Education and Related Agencies Appropriation Act, 1989, Pub. L No. 100436, 102 Stat. 1680, 1709, while the President\xe2\x80\x99s Fiscal Year 1990 budget included the Commission\xe2\x80\x99s budget\nproposal in the legislative branch appropriation, together with such entities as the Copyright Royalty\nTribunal and the General Accounting Office. Budget o f the United States Government, Fiscal Year 1990 \xe2\x80\x94\nAppendix, at I-A25,1-A24,1-A20 (1989). Even if the contemporaneous legislative source of an agency\xe2\x80\x99s fund\xc2\xad\ning were indicative o f Congress\xe2\x80\x99 mtent as to its status either as a general matter or as regards applicable\nconflicts-of-interest or disclosure laws, moreover, inferences concerning Congress\xe2\x80\x99 intent in creating the\nCommission in December 1987 are less reliably drawn from funding enactments in 1988 and later. See gen\xc2\xad\nerally Consumer Prod Safety Comm\xe2\x80\x99n v GTE Sylvania, Inc., 447 U S. 102, 117-18 & n.13 (1980)\n\n290\n\n\x0c'


b"January 15, 1979\n\n79-2\n\nMEMORANDUM OPINION FOR THE\nCOMMISSIONER, IMMIGRATION AND\nNATURALIZATION SERVICE\nImmigration and Naturalization Service\xe2\x80\x94Special\nLitigation Unit\xe2\x80\x94Alleged Nazi War Criminals\xe2\x80\x94\nFunds Available for the Operation of the Unit\xe2\x80\x94\nAppropriation Act\xe2\x80\x94Authorization Act\n\nThis responds to your request for the opinion of the Office of Legal\nCounsel concerning the availability of funds for the Immigration and Na\xc2\xad\nturalization Service\xe2\x80\x99s (INS) Special Litigation Unit. This unit handles\ncases involving alleged Nazi war criminals. The Department of Justice\nAuthorization Act, Pub. L. No. 95-624 \xc2\xa7 2(9), 92 Stat. 3459, 3460,\nauthorizes funding for INS of \xe2\x80\x9c $320,722,000, of which $2,052,000 shall\nbe made available for the investigation and prosecution of denaturaliza\xc2\xad\ntion and deportation cases involving alleged Nazi war criminals.\xe2\x80\x9d The\nearlier Department of Justice Appropriation Act of 1979, Pub. L. No.\n95-431, 92 Stat. 1021, appropriates $299,350,000 for \xe2\x80\x9c salaries and ex\xc2\xad\npenses\xe2\x80\x9d of INS and does not specify any portion thereof for the Special\nLitigation Unit. As you point out, Congress passed the Authorization Act\nafter the Appropriation Act with knowledge of the $21 million difference.\nYour request raises three issues: first, whether the absence of a specific\nitem for the Special Litigation Unit in the Appropriation Act and INS\nbudget estimate restricts the availability of funds for the Unit; second,\nwhether the Authorization Act permits or requires INS to devote\n$2,052,000 o f available funds for the Unit; third, if INS is required or per\xc2\xad\nmitted to commit appropriated funds to the Unit, the roles, if any, of the\nOffice of Management and Budget and the Department\xe2\x80\x99s Office of\nManagement and Finance in the process. We conclude that INS is required\nto make $2,052,000 of the total funds already appropriated for INS avail\xc2\xad\nable to the Unit. We have requested the views of the Assistant Attorney\nGeneral for Administration before responding to the third question, since\nit involves a technical problem within the competence of his office.\nThe Appropriation Act authorizes a general, lump sum appropriation\nfor INS with no restrictions or subdivisions. A long-standing rule of the\nComptroller General is that an agency may use appropriated funds for the\naccomplishment of its mission unless another specific fund is created or\nthe particular expenditure is prohibited. See, e.g., 42 Comp. Gen. 708, 712\n(1963); 29 Comp. Gen. 419, 421 (1950). The enforcement of the denaturali\xc2\xad\nzation and deportation laws against alleged Nazi war criminals is clearly\n9\n\n\x0cwithin the scope of INS\xe2\x80\x99s mission, and the Appropriation Act places no\nrestriction on using funds for this purpose.' In the absence of other legisla\xc2\xad\ntion, INS may therefore use appropriated funds to support its Special\nLitigation Unit.\nThe second question concerns the effect the subsequently passed\nAuthorization Act has on INS\xe2\x80\x99s funding of the Unit. Section 2(9) of the\nAct expressly earmarks $2,052,000 of the authorized $320,722,000 for the\nSpecial Litigation Unit. The legislative history of the Act shows that Con\xc2\xad\ngress intended to require INS to allocate that amount out of whatever\nfunds were appropriated. Before the House Judiciary Committee, you\ntestified that INS intended to reprogram $1.6 million from its other ac\xc2\xad\ntivities to support a Special Litigation Unit of a given size.2 The com\xc2\xad\nmittee\xe2\x80\x99s report expressed dissatisfaction with the reprogramming method\nbecause it would necessitate the Unit \xe2\x80\x9c to compete for already scarce\nresources with other programs within INS.\xe2\x80\x9d 3 Therefore, the report con\xc2\xad\ntinued, the Authorization Act would earmark $2,052,000 for the Special\nLitigation Unit \xe2\x80\x9c to assure financing and maximum operational efforts\xe2\x80\x9d\nwith a larger staff.4 This report expressed a clear legislative intent to re\xc2\xad\nserve $2,052,000 for the functions of the Special Litigation Unit out of\nwhatever resources were available to INS.\nAlthough the Authorization Act was passed after the Appropriation Act\nand although it authorized $21 million more for INS than originally ap\xc2\xad\npropriated, this alone does not indicate a contrary intent. As your\nmemorandum points out, the conference report on the Authorization Act\nnoted the difference between the amount authorized and that already ap\xc2\xad\npropriated, and it invited the Administration to request a supplemental\nappropriation to cover the difference.5 The report attributed the increase\nto the need \xe2\x80\x9c to improve INS efforts to control the illegal alien problem, as\nwell as to reduce the adjudication and naturalization backlogs in the vari\xc2\xad\nous INS offices around the country.\xe2\x80\x9d 6 The three areas in which the House\nhad authorized additional positions than INS had requested or the Senate\n\n1 We note that the Comptroller General has long held that \xe2\x80\x9c subdivisions o f an appropria\xc2\xad\ntion contained in an agency\xe2\x80\x99s budget request or in committee reports are not legally binding\non the department or agency concerned unless they are specified in the appropriation act\nitself.\xe2\x80\x9d 55 Comp. Gen. 812, 819-20 (1976); see also 55 Comp. Gen. 307, 319-21 (1975); 17\nComp. Gen. 147, 150 (1937). Therefore, the lack of a specific item for the Special Litigation\nUnit in INS\xe2\x80\x99s budget request or the Appropriations Committee reports does not prevent it\nfrom expending funds for the Unit.\n2 INS intended to staff the unit with eight attorneys, three investigators, three paralegals,\nand three secretaries. Hearings Before the Committee on the Judiciary of the House of\nRepresentatives on Department o f Justice Appropriation Authorizations, 95th Cong., 2d\nsess., at 71-72, 372.\n\xe2\x80\x99 H. Rept. 95-1148, 95th Cong., 2d sess., at 13.\n4 H. Rept. 95-1148, 95th Cong., 2d sess., at 13. The report states that the increase will per\xc2\xad\nmit the Unit to have 10 attorneys, 8 investigators, 4 paralegals, and the necessary number of\nclericals. Id.\n' H. Rept. 95-1777, 95th Cong., 2d sess., at 12.\n\xe2\x80\x98 H. Rept. 95-1777, 95th Cong., 2d sess., at 12.\n\n10\n\n\x0chad authorized are antismuggling investigators, adjudication personnel,\nand naturalization processing personnel.7 Unlike the Special Litigation\nUnit, funds for these positions were not earmarked specifically in the\nAuthorization Act, and the House report points to the provision of addi\xc2\xad\ntional resources in these areas rather than allocation of existing funds.\nTherefore the \xe2\x80\x9c additional positions\xe2\x80\x9d for which the conference report\nstated a supplemental appropriation would be necessary are not related to\nthe Special Litigation Unit.\nIn summary, funds appropriated to INS in the Department o f Justice\nAppropriation Act are available for the Special Litigation Unit. The intent\nof Congress in subsequently enacting \xc2\xa7 2(9) of the Department of Justice\nAppropriation Authorization Act was to commit the use of $2,052,000 of\nthe appropriated funds to that purpose.\nL e o n U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99 See H. Rept. 95-1148, 95th Cong., 2d sess., at 7-12.\n\n11\n\n\x0c"


b'Presidential Authority To Use Funds From the\nUnited States Emergency Refugee and\nMigration Assistance Fund\nT h e U n ited . S tates E m e rg e n c y R e fu g ee an d M ig ratio n A ssistan ce F u n d , established by\n\xc2\xa7 2(c) o f th e M ig ratio n and R e fu g ee A ssistan ce A c t o f 1962, is av ailab le to c o v e r the\nad m in istrativ e co sts o f p ro cessin g a re c e n t influx o f C u b an m ig ra n ts to th e U nited\nS tates, ev en th o u g h th e y h a v e n ot been classified as refugees an d are thus ineligible for\nassistance u n d e r o th e r p ro g ra m s a u th o riz e d by th e A ct.\nC o n g re ss in ten d ed th e P re sid en t to h av e d isc re tio n to use th e F u n d for an y em erg en cy\nsitu atio n in v o lv in g u n ex p ected refu g ee an d m ig ra tio n needs, w h e n e v e r and w h e re v e r it\no ccu rs.\n\nJune 5, 1980\nM EM ORANDUM OPINION FOR TH E DEPUTY G EN ER A L\nCOUNSEL, O FFIC E O F M A N A G EM EN T AN D BUDGET\nThis responds to your inquiry asking whether the President is author\xc2\xad\nized to use money from the United States Emergency Refugee and\nMigration Assistance Fund (\xe2\x80\x9cthe Fund\xe2\x80\x9d), 22 U.S.C. \xc2\xa7 2601(c)(2), to\ncover the administrative costs of processing the recent influx of Cuban\ncitizens. Presidential Determination No. 80-18, 45 Fed. Reg. 29,787\n(1980). We believe that the Fund is available to meet the needs of these\nCuban citizens and that the President properly exercised his authority\nin issuing Determination No. 80-18. The State Department has come to\nthe same conclusion.\nThe Migration and Refugee Assistance Act of 1962 (the Act), 22\nU.S.C. \xc2\xa7 2601 et seq., was passed while the wave of Hungarian refugees\nwas still fresh and during one of the first waves of Cuban emigration.\nAs originally enacted, \xc2\xa7 2(c) of the Act, 22 U.S.C. \xc2\xa7 2601(c) was in\xc2\xad\ntended to give the President authority to use up to $10 million from his\nforeign aid contingency fund to meet such unexpected problems:\nSection 2(c) of the bill would authorize the President to\nuse not to exceed $10 million in any fiscal year in order to\nmeet unexpected refugee and migration developments\nwhen the President determines such use to be important\nto the national interest. Experience since World War II\nteaches that international tensions and Communist efforts\nto increase such tensions will result in escapee and refugee\n670\n\n\x0cproblems. These situations may arise suddenly and it is\nimpossible to predict where trouble may come. The bill\nrecognizes the necessity of being prepared for such\neventualities by the inclusion of the emergency provision\njust referred to.\nS. Rep. No. 989, 87th Cong., 1st Sess. 3 (1962). See also H.R. Rep. No.\n1369, 87th Cong., 2d Sess. 48 (1962) (H.R. 10079) (\xe2\x80\x9cThese problems\narise suddenly and it is often impossible to predict where and when the\nproblems may arise.\xe2\x80\x9d) H.R. Rep. No. 1066, 87th Cong., 1st Sess. 2728 (1961). The legislative history of the Act indicates that the Fund\ncould be used inside or outside the United States:\nThe President of the United States has the authority\nnow under the contingency fund to earmark whatever\nmoneys he thinks are necessary in emergency situations.\n[The influx of Cubans] is a difficult problem for us to deal\nwith. The President has dealt with it on an emergency\nbasis by making available for Dade County, Fla., suffi\xc2\xad\ncient funds to reimburse [the county]. All this bill does is\nto write the same provision in the law, spell it out, so that\nin the event it is necessary in our judgment to cope with\nthis sort of problem, it can be dealt with openly and\neverybody knowing exactly what we are doing, pursuant\nto congressional authorization and appropriation of funds.\n108 Cong. Rec. 3384 (1962) (remarks of Rep. Walker, floor manager). It\nis clear, therefore, that Congress foresaw that one of the immediate\xe2\x80\x94\nand continued\xe2\x80\x94uses of the Fund would be to aid individuals of uncer\xc2\xad\ntain status within the United States.\nThis analysis of the scope of \xc2\xa7 2(c) is not affected by the fact that\n\xc2\xa7 2(b) of the Act is limited to refugees. Sections 2(b) and 2(c) were\ndesigned to meet different needs. Section 2(b) consisted of the continu\xc2\xad\nation of membership in various international refugee organizations, 22\nU.S.C. \xc2\xa7 2601(b)(1) (Supp. IV 1959-62), the continuation of a program\nfor escapees from Communist countries, id. \xc2\xa7 2601(2), and the regulariz\xc2\xad\ning of aid to refugees within the United States. Id. \xc2\xa7 2601(b)(3)-(6). See\nH.R. Rep. No. 1066, supra, at 12-27. Section 2(b)(3)-(6)\xe2\x80\x99s aid was\nlimited to those who met its definition of refugee, 22 U.S.C.\n\xc2\xa7 2601(b)(3) (Supp. IV 1959-62), one almost identical to that of the\nRefugee Act of 1980. Section 2(c) permitted the President to provide\n\xe2\x80\x9ceconomic assistance\xe2\x80\x9d of up to $10 million from the contingency fund\nof the Act for International Development of 1961 for \xe2\x80\x9cunexpected\nrefugee and migration developments . . . .\xe2\x80\x9d H.R. Rep. No. 1066, supra,\nat 27, 28 [emphasis added]. This contingency fund, in turn, was meant\n1 T he A ct and H .R. 10079 did not differ from each o th e r except for one provision w hich is not\nrelevant here. H .R . Rep. No. 1923, 87th C ong., 2d Sess. 4 (1962).\n\n671\n\n\x0cto be used \xe2\x80\x9cwith broad discretion\xe2\x80\x9d by the President \xe2\x80\x9cto meet require\xc2\xad\nments which are either completely unforeseen or which are identified\nbut without enough precision to warrant inclusion in one of the other\ncategories.\xe2\x80\x9d Id. at 27, quoting from H.R. Rep. No. 851, 87th Cong., 1st\nSess. 48 (1961) (contingency fund authorization). Migration is not de\xc2\xad\nfined in 22 U.S.C. \xc2\xa72601.2 We have found no evidence that Congress\nintended to limit the President\xe2\x80\x99s ability to aid migrants on an emer\xc2\xad\ngency basis, although aid to them individually was not covered in \xc2\xa7 2(a)\nor (b). We do not believe, therefore, that the use of the emergency fund\nin \xc2\xa7 2(c) is tied to the express provisions of \xc2\xa7 2(a) or (b). The Fund is\ndiscretionary\xe2\x80\x94for any emergency situation involving \xe2\x80\x9cunexpected\nurgent refugee and migration needs\xe2\x80\x9d whenever and wherever they\noccur. 22 U.S.C. \xc2\xa7 2601(c) (Supp. IV 1959-62). See also H.R. Rep. No.\n1369, supra, at 48.\nThe 1975 amendments, which created a standing fund in place of the\ntransfer authority described above, did nothing to change this analysis.\nThe President\xe2\x80\x99s discretion was reaffirmed. Assistance was to be \xe2\x80\x9con\nsuch terms and conditions as he may determine. . . .\xe2\x80\x9d 22 U.S.C.\n\xc2\xa7 2601(c)(1) (1976). Expenditures would not need prior statutory\napproval:\nOnce created through this authorization and the neces\xc2\xad\nsary appropriation, the Fund would be available to meet\nemergency needs as determined by the President. For\nspecific uses of the Fund, Congressional oversight would\nbe retrospective, with justification being sent to the for\xc2\xad\neign affairs and appropriations committees after the event.\nOver the longer run, however, the need for appropria\xc2\xad\ntions to replenish the Fund should enable Congress to\nmaintain control and effective oversight.\nS. Rep. No. 337, 94th Cong., 1st Sess. 23-24 (1975).\nThe Refugee Act of 1980 did not change this framework. It did\nremove the care of refugees in the United States from \xc2\xa7 2(b). Refugee\nAct of 1980, \xc2\xa7 312(b)(1). It did not, however, make any change in the\nPresident\xe2\x80\x99s use of the \xc2\xa7 2(c) Fund except to raise the amount of money\navailable. Id., \xc2\xa7 312(b)(2). A provision in H.R. 2816, which would have\nlimited use of the Fund to those within the United States, was deleted\nfrom the final bill without explanation. The House did recognize that\nemergency funds from \xc2\xa7 2(c) have been used within the United States\n8 T h e Intergovernm ental C om m ittee for E uropean M igration, 6 U.S.T. 603, 207 U .N .T.S. 189,\nreferred to in 22 U.S.C. \xc2\xa7 2601(b)(1), does not define the term. It does, how ever, make clear that\nrefugees are only one kind o f m igrant. Annex, H 4, 6 U .S.T. at 615, 207 U .N .T.S. at 210. M igrate is\ndefined in W ebster\xe2\x80\x99s N ew International D ictionary (2d ed. 1957) as: \xe2\x80\x9cT o go from one place to another;\nesp., to m ove from one co u n try , region, o r place o f abode o r sojourn to another, w ith a view to\nresidence; to m ove; as, the M oors w h o migrated from A frica into Spain.\xe2\x80\x9d\n\n672\n\n\x0cfor individuals of uncertain status. H. Rep. No. 608, 96th Cong., 1st\nSess. 4 (1979).\nWe believe that the legislative history of 22 U.S.C. \xc2\xa7 2601(c) indi\xc2\xad\ncates a longstanding congressional intent to permit the President to use\nthe Fund for purposes other than those specifically listed in 22 U.S.C.\n\xc2\xa7 2601(a) and (b). Since the Refugee Act of 1980 did not amend the\nlanguage of 22 U.S.C. \xc2\xa7 2601(c)(1), money in the Fund may continue to\nbe used within the United States to aid Cubans who have not yet been\nclassified as refugees.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n673\n\n\x0c'


b"Applicability of the California Penal Code to\nInvestigations Conducted by the Federal Bureau of\nInvestigation\nA federal law enforcement officer who must violate state criminal law in the course of\nperforming his official- duty is immune from criminal prosecution and civil liability\nstemming from such a violation.\nAn informer may claim immunity from civil liability under state law by virtue of the\nSupremacy Clause, and it would be unwise to base an informer's defense on sovereign\nimmunity, given the potential for government liability if the informer\xe2\x80\x99s actions were to\nbe characterized as those o f a government employee.\n\nNovember 5, 1981\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY\nGENERAL, CRIMINAL DIVISION\nThis responds briefly to your request for the views of this Office on\nyour proposed response to the Federal Bureau of Investigation\xe2\x80\x99s (FBI\xe2\x80\x99s)\nrequest for the Department\xe2\x80\x99s views on the applicability of the Califor\xc2\xad\nnia Penal Code to investigations conducted by the FBI involving elec\xc2\xad\ntronic monitoring and recording of a confidential communication with\nthe consent of one party to the conversation. FBI Legal Counsel has\nraised the question whether criminal or civil liability could be imposed\non agents, informers, or cooperating third parties for invasion of pri\xc2\xad\nvacy under \xc2\xa7\xc2\xa7 630-637.2 of the California Penal Code. We concur in\nyour conclusion that no federal officer, or cooperating party under his\nor her direction,1 acting in compliance with applicable federal law on\nelectronic monitoring and recording, could be held liable under state\nlaw.\nCalifornia penal law prohibits wiretapping and prohibits electronic\nrecording of conversations where it reasonably appears that any party\nintended the communication to be confined to the parties. See Cal.\nPenal Code \xc2\xa7\xc2\xa7 631, 632 (West 1970 and Supp. 1981). The state courts\nhave apparently uniformly construed the penal code to prohibit one\nparty to a confidential communication from recording that conversation\nwithout the knowledge or consent of the other party. See, e.g.. Forest E.\nOlson, Inc. v. Superior Court, 63 Cal. App. 3d 188, 133 Cal. Rptr. 573\n1 We include both informers and third parties cooperating for the purpose o f the monitoring or\nrecording\n\n323\n\n\x0c(1976). A civil remedy and minimum damages award of $3,000 are also\nprovided for violations of these prohibitions, see Cal. Penal Code\n\xc2\xa7 637.2 (West 1970).\nSection 633 provides an exemption for certain state law enforcement\nofficers and persons acting pursuant to their direction. In an opinion of\nthe California Attorney General, in the context of other state law\nenforcement officers, this exemption was construed to be limited to the\nofficers specifically identified. 55 Op. Cal. Att\xe2\x80\x99y Gen. 151 (1972). The\nFBI questioned, therefore, whether the exemption, which does not\nexpressly include federal officers, would be unavailable to federal offi\xc2\xad\ncers or cooperating parties, who might then be held criminally or\ncivilly liable.\nYou have responded that, in addition to the legislative history of\nTitle III of the Omnibus Crime Control and Safe Streets Act of 1968,\n18 U.S.C. \xc2\xa7\xc2\xa7 2510-2518, the case law indicates that a federal investiga\xc2\xad\ntor would be immune from state criminal prosecution in consensual\nmonitoring situations notwithstanding the more restrictive requirements\nof California law. We agree. This Office has repeatedly maintained that\nfederal law enforcement officers who must violate state criminal law in\nthe course of performance of their official duties could maintain a\ndefense based upon the supremacy of a proper federal law enforcement\nfunction. In re Neagle, 135 U.S. 1, 75 (1890); Clifton v. Cox, 549 F.2d\n722 (9th Cir. 1977). When the federal law enforcement operation re\xc2\xad\nquires the use of an informer or other cooperating party, our opinions\nhave treated this party as sharing in the officer\xe2\x80\x99s immunity.\nWith regard to civil liability imposed under California law for viola\xc2\xad\ntion of the penal code, you have also concluded that the federal officer\nor a person acting under his or her direction would not be personally\nliable. Again, we agree that the officer would be immune. In addition\nto the same defense based on the Supremacy Clause,2 a federal official\nis shielded by sovereign immunity when sued for civil damages for\nactions committed \xe2\x80\x9cwithin the outer perimeter of [the official\xe2\x80\x99s] line of\nduty.\xe2\x80\x9d Barr v. Matteo, 360 U.S. 564, 575 (1959); cf. Clifton v. Cox, 549\nF.2d at 726-28. The officer\xe2\x80\x99s compliance with federal wiretapping law\nwould meet this standard.\nThe immunity of the cooperating party in a civil action presents an\nadditional consideration. Your memorandum concludes that the cooper\xc2\xad\nating party wouid in all likelihood be found to be a \xe2\x80\x9cgovernment\nagent\xe2\x80\x9d immune from criminal prosecution and that similar reasoning\nwould seem to exempt him or her from civil liabililty under the BarrClifton line of cases. It is true, as your memorandum points out, that\ninformers have been treated as government agents for purposes of\ncertain constitutional principles limiting government action, see, e.g.,\n2 T he Supremacy Clause defense is not limited to the criminal context. Our prior opinions have\nrecognized that the defense would be available, for example, in a state bar disciplinary proceeding.\n\n324\n\n\x0cHoffa v. United States, 385 U.S. 293, 307 (1966); United States v. Celia,\n568 F.2d 1266, 1282 (9th Cir. 1977), United States v. Upton, 502 F.\n\nSupp. 1193, 1196 n.l (D.N.H. 1980). But to assert that, in addition the\nimmunity from liability under state civil law granted by virtue of the\nSupremacy Clause, the informer is clothed with the government\xe2\x80\x99s own\nimmunity from civil damages, might raise the question whether the\ngovernment itself would be liable for the actions of informers in cir\xc2\xad\ncumstances where the government has waived its sovereign immunity\nto suit under the Federal Tort Claims Act (FTCA), 28 U.S.C. \xc2\xa7\xc2\xa7 2671\xe2\x80\x94\n2680, for the actions of its officers and employees.\nThis Office has thus far resisted the conclusion that informers are\ngovernment employees within the meaning of the FTCA. The Ninth\nCircuit, at least, has recently agreed. Slagle v. United States, 612 F.2d\n1157, 1159-61 (9th Cir. 1980). At least where the same assurance of\nimmunity can be provided to the cooperating party on Supremacy\nClause grounds, we see no reason to raise the defense of sovereign\nimmunity, given the potential for government liability for the informer\xe2\x80\x99s\nactions, if not on these facts, then on others, if the informer were to be\ncharacterized as an employee.\nThe FBI has also requested advice on the procedure that the Depart\xc2\xad\nment would follow if an agent or cooperating party were named as a\ndefendant in a state criminal prosecution or civil action. As your memo\xc2\xad\nrandum notes, the defense to a criminal prosecution could be asserted\nupon removal of the prosecution to federal court, see 28 U.S.C.\n\xc2\xa7 1442(a)(1), or by application to a federal court for pretrial habeas\ncorpus relief, see 28 U.S.C. \xc2\xa7 2241(c)(2). The civil action could also be\nremoved to federal court. 28 U.S.C. \xc2\xa7 1442(a)(1). We note additionally\nthat neither removal nor habeas corpus relief in cases involving cooper\xc2\xad\nating parties would be dependent on the party\xe2\x80\x99s status as an employee.\nRemoval, for example, is available to persons \xe2\x80\x9cacting under\xe2\x80\x9d an officer\nof the United States; habeas corpus relief may be granted to persons \xe2\x80\x9cin\ncustody for an act done or omitted in pursuance of an Act of Con\xc2\xad\ngress.\xe2\x80\x9d Thus procedurally as well as substantively the defense of sover\xc2\xad\neign immunity adds nothing to the full protection afforded to cooperat\xc2\xad\ning parties by the Supremacy Clause. With this slight reservation with\nrespect to the reasoning of your memorandum, we concur.\nT h e o d o r e B. O l so n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n325\n\n\x0c"