b"March 15, 1979\n\n79-17\n\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL, CIVIL\nRIGHTS DIVISION\nCivil Rights\xe2\x80\x94Busing\xe2\x80\x94Effects of Eagleton-Biden\nAmendments (92 Stat. 1586)\xe2\x80\x94Department of\nJustice Use o f Personnel and Resources of the\nDepartment of Health, Education, and Welfare in\nDesegregation Litigation\n\nThis responds to your m em orandum o f December 13, 1978, concerning\nthe applicability o f the Eagleton-Biden Amendment to use by the Civil\nRights Division o f employees and other resources o f the Department of\nHealth, Education, and Welfare (HEW ).\nI. Background; Summary\nA.\nThe Eagleton-Biden Am endm ent is \xc2\xa7 209 o f the Department of\nHealth, Education, and Welfare A ppropriation Act for Fiscal Year 1979,\nPub. L. No. 95-480, 92 Stat. 1586 (1978). Section 209 reads as follows:\nNone o f the funds contained in this Act shall be used to require,\ndirectly or indirectly, the transportation o f any student to a\nschool other than the school which is nearest the student\xe2\x80\x99s home,\nexcept for a student requiring special education, to the school o f\xc2\xad\nfering such special education, in order to comply with title VI of\nthe Civil Rights Act o f 1964. For the purpose o f this section an\nindirect requirement o f transportation o f students includes the\ntransportation o f students to carry out a plan involving the re\xc2\xad\norganization o f the grade structure o f schools, the pairing of\nschools, or the clustering o f schools, or any com bination o f\ngrade restructuring, pairing, or clustering. The prohibition de\xc2\xad\nscribed in this section does not include the establishment of\nmagnet schools.\nAn essentially identical provision was contained in the HEW appropriation\n104\n\n\x0cact for fiscal year 1978,' and similar provisions were included in the ap\xc2\xad\npropriation acts for the previous 3 years.\nYour memorandum states that HEW wishes to refer to the Civil Rights\nDivision, for the bringing o f a lawsuit to enforce Title VI of the Civil\nRights Act o f 1964, the m atter o f the desegregation o f the Chicago public\nschools. According to your m em orandum, a suit against the Chicago\nschool system would considerably overtax the resources o f this D epart\xc2\xad\nment, and HEW has offered to provide the resources needed for the suit.\nIn light o f the fact that any appropriate remedy would, it appears, cer\xc2\xad\ntainly require transporting some students beyond their nearest schools,\nyou have raised a number o f questions concerning the ability o f this\nDepartment to use HEW resources.\nB.\nThe basic issue is whether \xc2\xa7 209 applies at all to the conduct o f such\nlitigation. Although the question, which is essentially one o f statutory con\xc2\xad\nstruction, may be thought by some not to be free from doubt, in our opin\xc2\xad\nion, the statute was not intended to bar H EW \xe2\x80\x99s cooperation with this De\xc2\xad\npartment. Our view, as explained below, is that \xc2\xa7 209 restricts only H E W \xe2\x80\x99s\nconduct o f administrative fund-term ination proceedings and that it does\nnot limit the use o f HEW funds to support a lawsuit brought by this\nDepartment.\nAt the outset, however, we should note that there are other limits upon\nthe ability o f the Department o f Justice to use the resources o f other agen\xc2\xad\ncies. Provisions in Titles 5 and 28 o f the United States Code assign to this\nDepartment general responsibility for conducting litigation involving\nFederal agencies. With regard to the role o f HEW attorneys in title VI\nlitigation, those provisions must be considered. Also, quite apart from\n\xc2\xa7 209, HEW funds must be used in a manner consistent with the HEW ap\xc2\xad\npropriation statute. Within the limits o f these several statutes, we believe\nthat it would be permissible for this Department to make substantial use o f\nHEW employees and resources in connection with title VI litigation, in\xc2\xad\ncluding school desegregation cases that may result in studenttransportation orders.\nn . Discussion\nA. The Meaning o f the Eagleton-Biden Amendment\nAs your m em orandum indicates, the language o f \xc2\xa7 209 may be in\xc2\xad\nterpreted in various ways. The statutory interpretation that would bar\nH EW \xe2\x80\x99s cooperation can be simply stated: the work o f Government at\xc2\xad\ntorneys in preparing or bringing a desegregation suit in which the rem\xc2\xad\nedy is likely to involve busing is \xe2\x80\x9c indirectly requiring\xe2\x80\x9d the transportation\no f students beyond their nearest schools. Yet, the language o f the stat\xc2\xad\nute does not readily lend itself to that construction. Moreover, that con\xc2\xad\nstruction is not supported by the legislative history. The history o f \xc2\xa7 209\nmakes clear that Congress intended to bar use o f HEW fund-term ination\n\n' See \xc2\xa7 208 o f P ub. L. No. 95-205, 91 Stat. 1460 (1977).\n\n105\n\n\x0cproceedings as means o f requiring busing. It also makes clear that C on\xc2\xad\ngress did not intend to interfere either with the ability o f HEW to refer\nsuch cases to the Departm ent o f Justice or with the m anner in which this\nDepartment conducts the litigation o f those cases. For example, in oppos\xc2\xad\ning Senator B rooke\xe2\x80\x99s am endm ent to delete \xc2\xa7 209, Senator Eagleton re\xc2\xad\nferred to H E W \xe2\x80\x99s administrative proceeding against the school system of\nKansas City, Missouri, as \xe2\x80\x9c the kind o f situation the Eagleton-Biden\nam endment is designed to prevent.\xe2\x80\x9d 2 Then he added: \xe2\x80\x9c The amendment\nputs HEW on notice that if they want busing in a school district, they are\ngoing to have to get it through the Federal courts.\xe2\x80\x9d The same basic view\nthat \xc2\xa7 209 applies only to \xe2\x80\x9c administrative busing\xe2\x80\x9d ordered by HEW was\nmade by Senator B iden.3\nO ur review o f the legislative history reveals no discussion o f the ques\xc2\xad\ntion whether HEW personnel can assist the Departm ent o f Justice in\npreparing or bringing a title Vl-based lawsuit for desegregation o f a school\nsystem. In our opinion, such assistance is not contrary to the purpose of\n\xc2\xa7 209. The legislative history shows that Congress opposed requiring bus\xc2\xad\ning in the context o f HEW administrative proceedings. W hen a matter is\nreferred to the D epartm ent o f Justice, the context becomes a judicial pro\xc2\xad\nceeding and the G overnm ent\xe2\x80\x99s position is controlled by this Department.\nThere is no reason to read \xc2\xa7 209 as barring HEW from assisting this\nDepartm ent, even with regard to the student-assignment or busing aspects\no f a lawsuit. The crucial point is that, if a busing requirement results from\nlitigation, the basis will be a court order or a negotiated settlement, not the\nthreat o f fund term ination.\nO ur view is supported by the fact that Congress was fully aware o f the\ndecision regarding the constitutionality o f the virtually identical fiscal year\n1978 version o f the Eagleton-Biden Am endm ent. Brown v. Califano, 455\nF. Supp. 837 (D .D .C . 1978).4 In rejecting the plaintiff\xe2\x80\x99s view that the pro\xc2\xad\nvision was unconstitutional on its face, the District Court stressed the fact\nthat HEW could enforce title VI by referring matters to this Department.\nIn its conclusion, the court stated the following:5\nShould further proceedings in this case reveal that the litigation\noption left undisturbed by these provisions cannot, or will not,\nbe made into a workable instrument for effecting equal educa\xc2\xad\ntional opportunities, the C ourt will entertain a renewed challenge\nby plaintiffs on an as applied basis * * *. [Emphasis in\noriginal.]\nAn interpretation o f \xc2\xa7 209 that would prohibit or severely restrict HEW\n\n1 124 C o n g . R e c . S 16302 (d a ily e d ., S e p t. 27, 1978).\n* 124 C o n g . R e c . S16303 (daily e d ., Sept. 27, 1978).\n* Senator Biden placed the co u rt\xe2\x80\x99s decision in the C o n g r e s s i o n a l R e c o r d . He and Sen\xc2\xad\n\nators Eagleton and Brooke referred to the decision during the Senate debate on the am end\xc2\xad\nment to delete \xc2\xa7 209. 124 C o n g . R e c . S16298 (Senator Brooke), SI6302 (Senator Eagleton),\nand S16303-305 (Senator Biden) (daily ed., Sept. 27, 1978).\n\xe2\x80\x99 455 F. Supp. at 843.\n\n106\n\n\x0cassistance to this Departm ent in regard to referred cases might make ap\xc2\xad\nplication of the legislation more vulnerable to attack. This is a further\nreason for concluding that the proponents o f \xc2\xa7 209 did not intend such an\ninterpretation.\nIn sum, it appears to us plain that Congress intended to leave untouched\nthis D epartm ent\xe2\x80\x99s litigation authority in these cases. It must likewise be\nconcluded that, had Congress intended to effect a significant alteration in\nthe usual relationship between this Department and HEW in the handling\no f that litigation, its intent would have been clearly spelled out. We have\nfound no evidence in the legislative consideration o f H E W \xe2\x80\x99s appropriation\nfor fiscal year 1979 to suggest a congressional intent to curtail H E W \xe2\x80\x99s\nusual role o f providing assistance in these cases: W ith that conclusion in\nmind, we will turn to a review o f the statutory limitations ordinarily im\xc2\xad\npinging upon interagency cooperation in litigation.\nB. Limits U pon Departm ent o f Justice Use o f HEW Resources\nA primary purpose for creating the Department o f Justice was to cen\xc2\xad\ntralize control o f litigation involving the United States or a Federal\nagency. This is reflected in 28 U.S.C. \xc2\xa7 516, which reads as follows:\nExcept as otherwise authorized by law, the conduct o f litigation\nin which the United States, an agency, or officer thereof is a\nparty * * *, and securing evidence therefor, is reserved to of\xc2\xad\nficers o f the Departm ent o f Justice, under the direction o f the\nA ttorney General.\nA parallel section, 5 U.S.C. \xc2\xa7 3106, provides that, except as otherwise\nauthorized by law, an executive departm ent \xe2\x80\x9c may not employ an\nattorney * * * for the conduct o f [such] litigation * * * or for the\nsecuring o f evidence therefor, but shall refer the m atter to the Departm ent\no f Justice.\xe2\x80\x9d\nAs a practical m atter, cooperation between attorneys o f this D epart\xc2\xad\nment and agency attorneys is necessary.6 So long as this Departm ent re\xc2\xad\ntains control over the conduct o f the litigation, even an extensive role for\nattorneys o f other agencies seems consistent with the purposes o f 28\nU.S.C. \xc2\xa7 516 and 5 U .S.C . \xc2\xa7 3106. The large num ber o f agreements be\xc2\xad\ntween this Departm ent and our \xe2\x80\x9c client\xe2\x80\x9d agencies (most o f which are sum\xc2\xad\nmarized in the Civil Division\xe2\x80\x99s Practice Manual) attests to the im portance\no f cooperation.\nA related question is allocation, between this Departm ent and an agency\ninvolved in a civil suit, o f the expense o f litigation. Clearly, when one\ndepartment is given sole responsibility for a type o f activity, the appropri\xc2\xad\nation of another departm ent may not properly be used to cover the cost of\nthat activity. See 31 U .S.C . \xc2\xa7 628. With respect to litigation, however, the\n\n\xe2\x80\x98 As you probably know, litigation management is the subject o f a study by the President\xe2\x80\x99s\nReorganization Project.\n\n\x0cauthority o f this Departm ent has never been read as ousting other agencies\nfrom performing a supporting role. Given this long history, and given the\nnecessity o f cooperation, we think it may be assumed that, ordinarily,\nwhen Congress appropriates funds for an agency general counsel\xe2\x80\x99s office,\nCongress intends a portion o f such funds to be used to carry out the\nagency\xe2\x80\x99s functions concerning litigation.\nWe are not suggesting that this Departm ent could adopt a practice of\ncharging other agencies, such as HEW , for the cost o f bringing lawsuits.\nO ur point is that, in general, the other agencies have the responsibility o f as\xc2\xad\nsisting this Departm ent and that agency appropriations may properly be\nused for that purpose. C f 39 Comp. Gen. 643 , 646-47 (1960). Regarding\nthe present m atter, we believe that there is broad latitude regarding the\nam ount and types o f assistance that HEW may provide to this Department.\nHEW attorneys and supporting personnel may properly provide factual\nmaterial and may also draft interrogatories, pleadings, briefs, and other\npapers. HEW employees, whose salaries are paid by HEW , may be de\xc2\xad\ntailed to this Departm ent to work on such matters. An HEW attorney,\nwho has been designated as a special attorney under 28 U .S.C . \xc2\xa7 543 or\n\xc2\xa7 515(a), may take part in judicial proceedings.\nAs a m atter o f policy, in view o f the possibility that the Eagleton-Biden\nAmendment may be susceptible to a more prohibitive interpretation, you\nmay wish to consider whether it might be advisable to limit the role of\nHEW employees with respect to the busing-related aspects o f a case. That\nis, regarding those issues, an HEW attorney detailed to this Department\nmight refrain from assuming the lead role in conducting negotiations or\nlitigation. The likelihood o f successfully defeating a claim o f violation of\n\xc2\xa7 209 would be enhanced if the busing-related aspects o f the case were\nclearly controlled by a Departm ent o f Justice employee.\nWith regard to use o f HEW com puter programmers and com puter time,\nthere should be much leeway. This kind o f support would seem to be a\nproper use o f H EW \xe2\x80\x99s appropriation.\nThere have been situations in which HEW has paid the travel expenses\no f Department o f Justice employees. Ordinarily, however, this type o f ex\xc2\xad\npense is paid from the appropriation o f this Departm ent. The propriety of\naccepting travel funds from HEW might well depend upon the particular\ncircumstances (e.g., whether the travel is for an investigation or for trial).\nFor example, when HEW makes a referral, it is responsible for performing\nat least a preliminary investigation. Thus, if a Departm ent o f Justice\nemployee were to assist HEW in conducting an HEW investigation, it\nwould seem proper for HEW to pay his or her expenses and even his or her\nsalary. In other words, HEW would be purchasing services from this\nDepartm ent. See \xc2\xa7 601 o f the Econom y Act, 31 U .S.C . \xc2\xa7 686.\nYour m em orandum describes three hypothetical situations and raises a\nnum ber o f questions with regard to each o f them. O ur views on most o f\nthese questions are indicated by the general guidelines set forth above, but\nwe will respond briefly to the specific issues.\n108\n\n\x0cCase 1: Detail o f H E W Personnel\n(A) HEW employees, paid by HEW , could properly be de\xc2\xad\ntailed to your Education Section and could work on cases in\xc2\xad\nvolving Eagleton-Biden questions, i.e., busing. An HEW at\xc2\xad\ntorney could properly work, in a subsidiary role, on any aspect\no f such cases. As a policy matter, as noted above, we question\nwhether an HEW employee should be the lead attorney regard\xc2\xad\ning Eagleton-Biden issues.\nA detailed HEW employee could work on cases not involving busing,\nassuming the case is related to the responsibilities o f H E W .7\nBecause o f our construction o f \xc2\xa7 209, our views do not depend upon the\nstatutory basis o f the case (title IV, title VI, etc.) or the timing o f a referral\nby HEW .\n(B) HEW employees, paid by HEW , could properly be de\xc2\xad\ntailed to a Civil Rights division Section other than the Educa\xc2\xad\ntion Section. Their work would not have to relate to title VI, if\nit related to some other responsibility o f H E W .8\nYou ask whether this Departm ent could properly \xe2\x80\x9c dem and,\xe2\x80\x9d as a con\xc2\xad\ndition for accepting a referral o f the Chicago case, that HEW detail a\nnumber o f employees to the Civil Rights Division. This question is more\ndifficult, and the answer would seem to depend upon the particular facts.\nRegarding this kind o f litigation, there is no precise dividing line between\nthe responsibilities o f this Departm ent and o f the other agency. We can\nproperly insist that the other agency cooperate and provide substantial\nassistance. Still, basic responsibility for conducting the litigation and bear\xc2\xad\ning its expense belongs to this Departm ent. If our funds are not adequate\nto permit the bringing o f a large-scale suit, we would ordinarily consider\nseeking an additional appropriation. While a greater am ount o f interim,\nor short-term, assistance might be appropriate in particular cases, there is\nprobably a point at which H EW \xe2\x80\x99s assistance would constitute a circum\xc2\xad\nvention on this D epartm ent\xe2\x80\x99s appropriation limitations.\nObviously, it is difficult to identify the proper line beyond which this De\xc2\xad\npartment should not go in demanding assistance from \xe2\x80\x9c client\xe2\x80\x9d agencies. If\nHEW is unable or unwilling to provide sufficient assistance, we would be\npleased to consider the m atter further in light o f the specific circumstances.\nCase 2: Use, Within HEW, o f H E W Resources\n(A)-(C) HEW personnel and resources could properly be\n\n\xe2\x80\x99 Clearly, a suit involving higher education or sex discrimination in education would relate\nto the statutory responsibilities o f H EW . A more general\xe2\x80\x94but probably valid\xe2\x80\x94basis for de\xc2\xad\ntailing HEW employees would be training, i.e., the benefits o f learning techniques o f in\xc2\xad\nvestigating and litigating civil rights cases.\n\xe2\x96\xa0 See footnote 7, supra.\n\n109\n\n\x0cused, within HEW , to assemble material regarding any aspect of\na potential school-desegregation case. Such work could be done\nbefore or after a referral of the m atter to this Departm ent.\n(D) O ur opinion is the same with regard to preparing litiga\xc2\xad\ntion material, such as pleadings and exhibits. O f course, mate\xc2\xad\nrial o f this type would be subject to review by Departm ent o f\nJustice attorneys.\nCase 3: Expert Witnesses\nWe do not construe \xc2\xa7 209 as limiting in any way this D epartm ent\xe2\x80\x99s use\no f expert witnesses. For example, an expert who is an HEW employee\ncould properly express views concerning student assignment practices and\nnecessary remedies, including busing. In our opinion, such statements\nwould not am ount to \xe2\x80\x9c indirectly requiring\xe2\x80\x9d busing.\nLarry A . H am m ond\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n110\n\n\x0c"


b'Assertion of Executive Privilege Over Communications\nRegarding EPA\xe2\x80\x99s Ozone Air Quality Standards and\nCalifornia\xe2\x80\x99s Greenhouse Gas Waiver Request\nThe President may lawfully assert executive privilege in response to congressional subpoenas seeking\ncommunications within the Executive Office of the President or between the Environmental Protection Agency and the EOP concerning EPA\xe2\x80\x99s promulgation of a regulation revising national ambient\nair quality standards for ozone or EPA\xe2\x80\x99s decision to deny a petition by California for a waiver from\nfederal preemption to enable it to regulate greenhouse gas emissions from motor vehicles.\n\nJune 19, 2008\n\nTHE PRESIDENT\nTHE WHITE HOUSE\nDear Mr. President:\nYou have asked for my legal advice as to whether you may assert executive\nprivilege with respect to documents subpoenaed by the Committee on Oversight\nand Government Reform (the \xe2\x80\x9cCommittee\xe2\x80\x9d) of the House of Representatives. The\nCommittee has issued three subpoenas, two directed to the Administrator of the\nEnvironmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) and one to the Administrator of the\nOffice of Information and Regulatory Affairs of the Office of Management and\nBudget (\xe2\x80\x9cOIRA\xe2\x80\x9d), a component of the Executive Office of the President (\xe2\x80\x9cEOP\xe2\x80\x9d).\nThe subpoena to OIRA and one of the subpoenas to EPA seek documents related\nto EPA\xe2\x80\x99s promulgation of a regulation revising national ambient air quality\nstandards (\xe2\x80\x9cNAAQS\xe2\x80\x9d) for ozone on March 12, 2008. The other subpoena directed\nto EPA seeks documents reflecting communications between EPA and the EOP\nconcerning the agency\xe2\x80\x99s decision to deny a petition by California for a waiver\nfrom federal preemption to enable it to regulate greenhouse gas emissions from\nmotor vehicles.\nThe Office of Legal Counsel of the Department of Justice has reviewed the\ndocuments that EPA and OIRA have identified as responsive to the subpoenas but\nhave not provided to the Committee. The great majority of these documents are\ninternal to EOP and were generated in the course of advising and assisting you\nwith respect to your consideration of EPA\xe2\x80\x99s proposed ozone regulation. The great\nmajority of the EOP documents are internal OIRA deliberative work product in\nsupport of your participation in the ozone decision. The remaining OIRA documents consist of deliberative communications between OIRA and others within\nthe EOP, including White House staff. The EPA documents include unredacted\ncopies of notices for meetings between EPA officials and senior White House staff\nto discuss the ozone regulation and California waiver decisions; redacted copies of\nthe notices that are being produced to the Committee indicate the time and place of\nthe meetings, but the identities of the meeting participants are redacted. The only\nother EPA document concerning the ozone regulation is a set of talking points for\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nthe EPA Administrator to use in a meeting with you. The remaining EPA\ndocuments consist of talking points for EPA officials to use in presentations to\nsenior White House staff at meetings at which California\xe2\x80\x99s waiver petition was\ndiscussed, communications within EPA and with EOP staff concerning the\npreparation of talking points for you to use in a conversation with the Governor of\nCalifornia, communications with EOP staff regarding how to respond to a letter to\nyou from the Governor, and a response to a request from senior White House staff\nfor a report on EPA\xe2\x80\x99s goals and priorities.\nThe Office of Legal Counsel is satisfied that the subpoenaed documents fall\nwithin the scope of executive privilege. For the reasons discussed below, I agree\nwith that determination and conclude that you may properly assert executive\nprivilege in response to the subpoenas.\nI.\nDocuments generated for the purpose of assisting the President in making a\ndecision are protected by the doctrine of executive privilege. See, e.g., In re Sealed\nCase, 121 F.3d 729, 752\xe2\x80\x9353 (D.C. Cir. 1997) (addressing presidential communications component of executive privilege); Assertion of Executive Privilege With\nRespect to Clemency Decision, 23 Op. O.L.C. 1, 1\xe2\x80\x932 (1999) (opinion of Attorney\nGeneral Janet Reno) (same). As the Supreme Court recognized in United States v.\nNixon, 418 U.S. 683 (1974), there is a\nnecessity for protection of the public interest in candid, objective,\nand even blunt or harsh opinions in Presidential decisionmaking. A\nPresident and those who assist him must be free to explore alternatives in the process of shaping policies and making decisions and to\ndo so in a way many would be unwilling to express except privately.\nThese . . . considerations justify[] a presumptive privilege for Presidential communications. The privilege is fundamental to the operation of Government and inextricably rooted in the separation of powers under the Constitution.\nId. at 708.\nThe doctrine of executive privilege also encompasses Executive Branch deliberative communications that do not implicate presidential decisionmaking. As the\nSupreme Court has explained, the privilege recognizes \xe2\x80\x9cthe valid need for\nprotection of communications between high Government officials and those who\nadvise and assist them in the performance of their manifold duties.\xe2\x80\x9d Nixon, 418\nU.S. at 705. Based on this principle, the Justice Department\xe2\x80\x94under administrations of both political parties\xe2\x80\x94has concluded repeatedly that the privilege may be\ninvoked to protect Executive Branch deliberations against congressional subpoenas. See, e.g., Assertion of Executive Privilege With Respect to Prosecutorial\n\n2\n\n\x0cAssertion of Executive Privilege Over Communications Regarding Air Quality Standards\n\nDocuments, 25 Op. O.L.C. 1, 2 (2001) (opinion of Attorney General John D.\nAshcroft) (\xe2\x80\x9cThe Constitution clearly gives the President the power to protect the\nconfidentiality of executive branch deliberations.\xe2\x80\x9d); Assertion of Executive\nPrivilege With Respect to Clemency Decision, 23 Op. O.L.C. at 2 (explaining that\nexecutive privilege extends to deliberative communications within the Executive\nBranch); Assertion of Executive Privilege in Response to a Congressional\nSubpoena, 5 Op. O.L.C. 27, 30 (1981) (opinion of Attorney General William\nFrench Smith) (assertion of executive privilege to protect deliberative materials\nheld by the Department of Interior). 1\nThe subpoenaed documents implicate both the presidential communications\nand deliberative process components of executive privilege. The EPA Administrator\xe2\x80\x99s talking points regarding the ozone regulation were provided for your use and\nare thus subject to the presidential communications component of the privilege.\nThe OIRA documents fall within the scope of the presidential communications\ncomponent because they are deliberative documents generated by your staff in\nreviewing a proposed agency regulation on your behalf and developing a position\nfor presentation to you. Among other things, the OIRA documents contain candid\nassessments of alternative actions that EPA or you could pursue. Addressing the\nsubpoenaed documents in their entirety, I believe that publicly releasing these\ndeliberative materials to the Committee could inhibit the candor of future deliberations among the President\xe2\x80\x99s staff in the EOP and deliberative communications\nbetween the EOP and Executive Branch agencies, particularly deliberations\nconcerning politically charged issues. As the Supreme Court explained, \xe2\x80\x9c[h]uman\nexperience teaches that those who expect public dissemination of their remarks\nmay well temper candor with a concern for appearances and for their own interests\nto the detriment of the decisionmaking process.\xe2\x80\x9d Nixon, 418 U.S. at 705. Accordingly, I conclude that the subpoenaed materials at issue here fall squarely within\nthe scope of executive privilege.\nII.\nUnder controlling case law, a congressional committee may overcome an assertion of executive privilege only if it establishes that the subpoenaed documents are\n\n1\nThe Justice Department\xe2\x80\x99s long-standing position finds strong support in various court decisions\nrecognizing that the deliberative process privilege protects internal government deliberations from\ndisclosure in civil litigation. See, e.g., NLRB v. Sears, Roebuck & Co., 421 U.S. 132, 151 (1975)\n(\xe2\x80\x9cManifestly, the ultimate purpose of this long-recognized privilege is to prevent injury to the quality of\nagency decisions.\xe2\x80\x9d); Landry v. FDIC, 204 F.3d 1125, 1135\xe2\x80\x9336 (D.C. Cir. 2000) (describing how\nagencies may assert the \xe2\x80\x9cdeliberative process\xe2\x80\x9d component of executive privilege in litigation); Dow\nJones & Co., Inc. v. Dep\xe2\x80\x99t of Justice, 917 F.2d 571, 573\xe2\x80\x9374 (D.C. Cir. 1990) (describing the\n\xe2\x80\x9c\xe2\x80\x98deliberative process\xe2\x80\x99 or \xe2\x80\x98executive\xe2\x80\x99 privilege\xe2\x80\x9d as an \xe2\x80\x9cancient privilege . . . predicated on the\nrecognition that the quality of administrative decision-making would be seriously undermined if\nagencies were forced to operate in a fishbowl\xe2\x80\x9d) (internal quotation marks omitted).\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\n\xe2\x80\x9cdemonstrably critical to the responsible fulfillment of the Committee\xe2\x80\x99s functions.\xe2\x80\x9d Senate Select Comm. on Presidential Campaign Activities v. Nixon, 498\nF.2d 725, 731 (D.C. Cir. 1974) (en banc). Those functions must be in furtherance\nof Congress\xe2\x80\x99s legitimate legislative responsibilities. See McGrain v. Daugherty,\n273 U.S. 135, 160 (1927) (Congress has oversight authority \xe2\x80\x9cto enable it efficiently to exercise a legislative function belonging to it under the Constitution\xe2\x80\x9d). In\nparticular, a congressional committee must \xe2\x80\x9cpoint[] to . . . specific legislative\ndecisions that cannot responsibly be made without access to [the privileged]\nmaterials.\xe2\x80\x9d Senate Select Comm., 498 F.3d at 733. I do not believe that the\nCommittee has satisfied this high standard with respect to the subpoenaed\ndocuments.\nIn assessing the Committee\xe2\x80\x99s need for the subpoenaed documents, the degree to\nwhich the Committee\xe2\x80\x99s stated legislative interest has been, or may be, accommodated through non-privileged sources is highly relevant. See id. at 732\xe2\x80\x9333\n(explaining that a congressional committee may not obtain information protected\nby executive privilege if that information is available through non-privileged\nsources); United States v. AT&T Co., 567 F.2d 121, 127 (D.C. Cir. 1977) (explaining that each branch has a \xe2\x80\x9cconstitutional mandate to seek optimal accommodation\xe2\x80\x9d of each other\xe2\x80\x99s legitimate interests); Assertion of Executive Privilege, 23 Op.\nO.L.C. at 3\xe2\x80\x934 (finding that documents were not demonstrably critical where\nCongress could obtain relevant information \xe2\x80\x9cthrough non-privileged documents\nand testimony\xe2\x80\x9d).\nWith respect to the ozone standards, the Committee asserts that it needs the\nsubpoenaed materials to understand why the White House rejected EPA\xe2\x80\x99s\n\xe2\x80\x9crecommendations regarding the ozone standard\xe2\x80\x9d and to determine whether White\nHouse staff complied with the Clean Air Act when evaluating EPA\xe2\x80\x99s proposed\nregulation. Letter for Stephen L. Johnson, Administrator, EPA, from Henry A.\nWaxman, Chairman, House Committee on Oversight and Government Reform at 2\n(May 16, 2008). The Committee offers similar justifications in support of its\ndemand for materials related to the California waiver issue. See, e.g., Letter for\nStephen L. Johnson, Administrator, EPA, from Henry A. Waxman, Chairman,\nHouse Committee on Oversight and Government Reform at 1 (Dec. 20, 2007)\n(\xe2\x80\x9cYour decision appears to have ignored the evidence before the agency and the\nrequirements of the Clean Air Act.\xe2\x80\x9d).\nThe Committee\xe2\x80\x99s claim that it must have the subpoenaed materials to understand the reasons for EPA\xe2\x80\x99s decision on the ozone regulation is unconvincing\ngiven the substantial information already available to the Committee. To date,\nEPA and OIRA have produced or made available to the Committee approximately\n30,000 pages of documents related to the revised ozone NAAQS standard. See,\ne.g., Memorandum for the Members of the Committee on Oversight and Government Reform, from the Majority Staff of the Committee on Oversight and\nGovernment Reform, Re: Supplemental Information on the Ozone NAAQS at 1\n\n4\n\n\x0cAssertion of Executive Privilege Over Communications Regarding Air Quality Standards\n\n(May 20, 2008) (30,000 pages of documents received from EPA and the Office of\nManagement and Budget); see also Letter for Henry A. Waxman, Chairman,\nHouse Committee on Oversight and Government Reform, from Jeffrey A. Rosen,\nGeneral Counsel, Office of Management and Budget at 1 (May 20, 2008) (OIRA\nprovided the Committee with access to more than 7,558 pages of documents). In\nparticular, EPA and OIRA produced to the Committee copies of all communications between the Administrator of OIRA and the Administrator of EPA concerning the ozone NAAQS regulation. These communications explain in considerable\ndetail the views of OIRA, EPA, the White House, and the President concerning the\nozone NAAQS standard. See, e.g., Letter for Stephen L. Johnson, Administrator,\nEPA, from Susan E. Dudley, Administrator, OIRA at 1 (Mar. 12, 2008) (describing disagreements between OIRA and EPA and advising EPA of the President\xe2\x80\x99s\ndecision). Moreover, EPA publicly disclosed the substance of these concerns in\nthe preamble to its Federal Register notice for the final ozone regulation. Finally,\nthe Administrators of both EPA and OIRA testified before the Committee on May\n20, 2008, concerning the ozone regulation. At that hearing, the Committee had\nample opportunity to explore with the witnesses the decisions and rationale for the\nregulation.\nIt is of particular importance in considering the Committee\xe2\x80\x99s need for the internal OIRA documents\xe2\x80\x94which constitute the great bulk of the documents at issue\xe2\x80\x94\nthat when the Administrator of OIRA testified before the Committee on May 20,\nthe Committee had the opportunity to ask her about OIRA\xe2\x80\x99s role, as well as that of\nyou and the White House staff, in the process leading up to the issuance of final\nNAAQS ozone regulation. Yet, the Committee asked no such questions. Indeed,\nAdministrator Dudley was asked only four questions during the entire hearing.\nNone of the questions put to the Administrator related to OIRA\xe2\x80\x99s internal deliberations or communications with the White House, and none demonstrated a need for\nadditional documents or information from OIRA. See Letter for Henry A.\nWaxman, Chairman, House Committee on Oversight and Government Reform,\nfrom Jeffrey A. Rosen, General Counsel, Office of Management and Budget at 2\n(June 18, 2008).\nEPA made similar accommodations with respect to the California waiver decision. The agency has made available to the Committee approximately 27,000\npages of documents concerning the decision. See Memorandum for the Members\nof the Committee on Oversight and Government Reform, from the Majority Staff\nof the Committee on Oversight and Government Reform, Re: EPA\xe2\x80\x99s Denial of the\nCalifornia Waiver at 1 (May 19, 2008). Again, these materials describe in\nconsiderable detail\xe2\x80\x94as a memorandum prepared by Committee Staff demonstrates\xe2\x80\x94the reasons behind EPA\xe2\x80\x99s decision to deny California\xe2\x80\x99s petition. Beyond\nreceiving access to tens of thousands of pages of documents, the Committee also\n\xe2\x80\x9cdeposed or interviewed eight key officials from the EPA\xe2\x80\x9d concerning the\nCalifornia waiver decision, id. at 1, and, as discussed above, the Committee had an\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 32\n\nopportunity to explore the California waiver decision with the EPA Administrator\nat the public hearing on May 20.\nOIRA\xe2\x80\x99s and EPA\xe2\x80\x99s efforts represent an extraordinary attempt to accommodate\nthe Committee\xe2\x80\x99s interest in understanding why EPA denied California\xe2\x80\x99s waiver\npetition, why EPA issued the revised NAAQS for ozone, and the involvement of\nyou and your staff in both decisions. Given the overwhelming amount of material\nand information already provided to the Committee, it is difficult to understand\nhow the subpoenaed information serves any legitimate legislative need. In any\nevent, when I balance the Committee\xe2\x80\x99s attenuated legislative interest in the\nsubpoenaed documents against the Executive Branch\xe2\x80\x99s strong interest in protecting\ntheir confidentiality, I conclude that the Committee has not established that the\nsubpoenaed documents are \xe2\x80\x9cdemonstrably critical to the responsible fulfillment\xe2\x80\x9d\nof the Committee\xe2\x80\x99s legitimate legislative functions. Senate Select Comm., 498\nF.2d at 731.\nIII.\nFor these reasons, I conclude that you may properly assert executive privilege\nin response to the Committee\xe2\x80\x99s subpoenas.\nMICHAEL B. MUKASEY\nAttorney General\n\n6\n\n\x0c'


b'Whether the District of Columbia\xe2\x80\x99s Clean Air Compliance Fee\nMay Be Collected From the Federal Government\nThe D istrict o f Colum bia\xe2\x80\x99s Clean Air Compliance Fee is a tax and may not be imposed on the federal\ngovernment, because the D.C. Council lacks authority to impose taxes on the property o f the United\nStates.\n\nJanuary 23, 1996\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nG e n e r a l S e r v ic e s A d m in is t r a t io n\n\nThis memorandum responds to your request for our opinion on whether the\nDistrict of Columbia (\xe2\x80\x9c District\xe2\x80\x9d ) may collect from the General Services Adminis\xc2\xad\ntration the Clean Air Compliance Fee (\xe2\x80\x9c Clean Air Fee\xe2\x80\x9d or \xe2\x80\x9c Fee\xe2\x80\x9d ) established\nby a District of Columbia statute, the Clean Air Compliance Fee Act of 1994\n(\xe2\x80\x9c A ct\xe2\x80\x9d ), D.C. Act 10-387, reprinted in 42 D.C. Reg. 86 (1995).1 As discussed\nbelow, we conclude that the District may not collect the Fee with respect to prop\xc2\xad\nerty owned by the United States. The Fee is a tax on such property, and such\ntaxes are beyond the authority of the Council of the District of Columbia (\xe2\x80\x9c D.C.\nCouncil\xe2\x80\x9d ) under the District of Columbia Self-Government and Governmental Re\xc2\xad\norganization Act, D.C. Code Ann. \xc2\xa7\xc2\xa7 1-201 to 1-299.7 (1992) (\xe2\x80\x9c Self-Government\nAct\xe2\x80\x9d ).\nI.\n\nThe following finding in the Act sets forth the D.C. Council\xe2\x80\x99s statement of\nthe Act\xe2\x80\x99s purpose:\nBy requiring payment from employment parking that is not subject\nto the parking sales and use tax and by allocating the revenues to\nthe transit component of the [District\xe2\x80\x99s] Clean Air Regulatory Pro\xc2\xad\ngram the [District] will simultaneously discourage the use of single\xc2\xad\noccupancy vehicles for home-to-work travel while encouraging the\nuse of car pools and transit, thereby reducing air pollution in com\xc2\xad\npliance with requirements under the Clean Air Act.\nAct \xc2\xa72(5). In its operative provisions, the Act requires owners of real property\nin the District containing parking spaces that are used for commuting more than\n1 In considering this question, we have received the assistance o f the Tax and Environment and Natural Resources\nDivisions o f the Department o f Justice and w e have carefully considered the views submitted by the O ffice of\nthe C orporation Counsel o f the Government o f the District o f Columbia. See Letter for W alter Dellinger, Assistant\nAttorney General, O ffice o f Legal Counsel, from Garland Pinkston, Jr., Acting Corporation Counsel, Office o f the\nCorporation Counsel (June 19, 1995) ( \xe2\x80\x9c Corporation Counsel Letter\xe2\x80\x9d ).\n\n12\n\n\x0cWhether the District o f Columbia\xe2\x80\x99s Clean Air Compliance Fee May Be Collected From the Federal\nGovernment\n\ntwo days per week and for which the District\xe2\x80\x99s parking sales and use tax is not\ncollected to register the spaces and pay a Clean Air Fee calculated at a rate of\n$20 per month per space. Id. \xc2\xa7\xc2\xa73-5. Penalties are prescribed for failure by prop\xc2\xad\nerty owners to register employment parking spaces or to pay the Fee. Id. \xc2\xa7 10.\nProperty owners may seek reimbursement of the Fee from users of the parking\nspaces. Id. \xc2\xa7 4(b).\nThe Act provides that revenues from the Fee \xe2\x80\x9c shall be used to defray the cost\nof the transit component of the [District\xe2\x80\x99s] Clean Air Regulatory Program.\xe2\x80\x9d Id.\n\xc2\xa711. The Act\xe2\x80\x99s legislative history makes it clear that the D.C. Council intended\nthat the proceeds of the Fee would be used exclusively to subsidize mass transit:\n\xe2\x80\x9c The Committee [of the Whole of the D.C. Council] directs that the revenue\ncollected from this fee be used to fund the District\xe2\x80\x99s payment to [the Washington\nMetropolitan Area Transit Authority (\xe2\x80\x9c WMATA\xe2\x80\x9d )] as part of a mass transpor\xc2\xad\ntation subsidy . . . .\xe2\x80\x9d Report to All Councilmembers, from David A. Clarke,\nChairman, Re: Bill 10-610, the \xe2\x80\x9c Clean A ir Com pliance Fee Act o f 1994\xe2\x80\x9d at 10\n(July 5, 1994) (\xe2\x80\x9c Council Report\xe2\x80\x9d ).\nThe threshold, and ultimately dispositive, question presented here is whether\nthe Clean Air Fee, to the extent it applies to property owned by the United States,\nis a \xe2\x80\x9c tax\xe2\x80\x9d or a \xe2\x80\x9c fee.\xe2\x80\x9d This question would necessarily arise in connection with\nany fee imposed on the federal government by a state or local government, be\xc2\xad\ncause the federal government is immune from state and local taxation. See\nMcCulloch v. M aryland, 17 U.S. (4 Wheat.) 316, 436 (1819) (\xe2\x80\x9c [T]he states have\nno power, by taxation or otherwise, to retard, impede, burden, or in any manner\ncontrol the operations of the constitutional laws enacted by Congress to carry into\nexecution the powers vested in the general government.\xe2\x80\x9d ). It has long been estab\xc2\xad\nlished that a state or local government cannot impose a tax upon the United States,\nits agencies, or its instrumentalities \xe2\x80\x9c without a clear congressional mandate.\xe2\x80\x9d\nKem-Limerick, Inc. v. Scurlock, 347 U.S. 110, 122 (1954).\nThe \xe2\x80\x9c tax or fee\xe2\x80\x9d question arises in a unique context here because the federal\ngovernment has divided the legislative authority for the District between Congress\nand the D.C. Council. As the District of Columbia Court of Appeals has summa\xc2\xad\nrized:\nThe United States Constitution vests Congress with the exclusive\nlegislative authority for the District of Columbia. U.S. Const, art.\nI, \xc2\xa78, cl. 17. In 1973, Congress passed the Self-Government Act\nto \xe2\x80\x9c relieve Congress of the burden of legislating upon essentially\nlocal District matters.\xe2\x80\x9d D.C. Code 1981, \xc2\xa7l-201(a). Subject to its\nretention of the ultimate legislative authority over the District of\nColumbia, Congress delegated certain specific legislative powers to\nthe District of Columbia government. Id. . . . In addition [to \xe2\x80\x9c ex\xc2\xad\npressly reserv[ing] its right \xe2\x80\x98to exercise its constitutional authority\n13\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nas legislature for the District, by enacting legislation for the District\non any subject\xe2\x80\x99\nCongress placed several explicit limitations on\nthe Council\xe2\x80\x99s legislative authority.\nD istrict o f Colum bia v. Greater Washington Cent. Labor Council, 442 A.2d 110,\n113 (1982) (quoting Self-Government Act, \xc2\xa7 1-206), cert, denied, 460 U.S. 1016\n\n(1983).2\nAs in the cited District of Columbia Court of Appeals case, \xe2\x80\x9c [t]he specific\nlimitation[ ] which [is] pertinent to the issue before us [is] enumerated in \xc2\xa7 1233.\xe2\x80\x9d Id. Subsection (a)(1) of \xc2\xa71-233 provides that \xe2\x80\x9c [t]he Council shall have\nno authority to . . . [ijmpose any tax on property of the United States or any\nof the several states.\xe2\x80\x9d Thus, if the Clean Air Fee is a \xe2\x80\x9c tax on property of the\nUnited States,\xe2\x80\x9d then the D.C. Council lacked the authority to impose it.3\nII.\n\nA tax is an \xe2\x80\x9c enforced contribution to provide for the support of government.\xe2\x80\x9d\nUnited States v. LaFranca, 282 U.S. 568, 572 (1931). In distinguishing between\n\ngovernment taxes and fees, courts have identified two different types of fees:\n\xe2\x80\x9c user or service fees\xe2\x80\x9d and \xe2\x80\x9cregulatory fees.\xe2\x80\x9d The D.C. Council imposed the\nClean Air Fee on owners of parking spaces in the District and directed that reve\xc2\xad\nnues from the Fee be used exclusively to subsidize the mass transit system. For\nthe reasons set forth below, we conclude that the Fee does not qualify as either\na \xe2\x80\x9c user or service fee\xe2\x80\x9d or a \xe2\x80\x9c regulatory fee\xe2\x80\x9d but is instead an \xe2\x80\x9c enforced con\xc2\xad\ntribution to provide for the support o f government.\xe2\x80\x9d Id . 4\n2 This O ffice has consistently expressed the sam e understanding o f the limitations on the D.C. Council\xe2\x80\x99s authority.\nFor exam ple, in 1976 we opined that the legislative power o f the D.C. Council\nis subject to careful reservations by the Congress o f its ow n constitutional powers and to specific limitations\nincluded in title V I o f the Home Rule Act. Indeed, the very grant o f pow er in section 404(a) begins with\nthe words, \xe2\x80\x9c (sjubject to the limitations specified in title V I o f this Act, . .\nThus there are real limits\non the C ouncil\xe2\x80\x99s authority to act.\nThe most specific o f those title VI limitations are set forth in Section 602 [D.C. Code 1981, \xc2\xa7 1-233]\no f the Home Rule Act.\nMemorandum for H ugh M. D urham, Legislative Counsel, Office o f Legislative Affairs, from Mary C. Lawton, Deputy\nAssistant Attorney G eneral, Office o f Legal C ounsel, Re: District o f Columbia Enrolled Bill B -l-137, the District\no f Columbia Shop-Book Rule Act at 2 (Feb. 18, 1976).\n3 The foregoing discussion indicates that principles o f federal immunity from local taxation and limitations on\nthe D.C. C ouncil\xe2\x80\x99s authority are both implicated by the \xe2\x80\x9c tax o r fee\xe2\x80\x9d question. If the Clean Air Fee is a \xe2\x80\x9c tax,\xe2\x80\x9d\nthen under either principle only Congress could authorize the imposition o f the tax on the United States. It is important\nto recognize, how ever, that congressional authorization o f the D istrict\xe2\x80\x99s tax w ould require tw o analytically distinct\nsteps, whereas congressional authorization o f o th e r state and local taxes requires only one. Congress may waive\nfederal immunity against a properly enacted state or local tax, acting solely in its capacity as legislature for the\nUnited States. O n the other hand, for Congress to authorize the D istrict\xe2\x80\x99s C lean Air Fee, it must both waive federal\nimmunity and either authorize the D.C. Council to impose the tax (acting as legislature for the United States) or\nimpose the tax directly itself (acting as legislature fo r the District).\n4 In light o f this conclusion, there is no need to consider the argument that the Clean A ir Fee falls within the\nscope o f the w aiver o f federal immunity against state and local taxation and regulation set forth in section 118\nof the federal C lean A ir Act, 42 U.S.C. \xc2\xa77418. See Corporation Counsel Letter at 3-7. For even if the Fee satisfies\nthe terms o f that w aiver, it may not be imposed on the United States because its enactment was beyond the D.C.\n\n14\n\n\x0cWhether the District o f Columbia\xe2\x80\x99s Clean A ir Compliance Fee May Be Collected From the Federal\nGovernment\n\nA.\nCentral to the analysis of whether a government levy is a user or service fee\nor instead a tax is whether it is imposed to collect payment for a benefit or service\nprovided by the government to the specific payor as a result of a voluntary act\nby the payor, or whether instead the payment is viewed as a mandatory contribu\xc2\xad\ntion for the general support of the government. The clearest Supreme Court guid\xc2\xad\nance on whether an exaction is a tax or a user or service fee is set forth in N ational\nCable Television A ss\xe2\x80\x99n v. United States, 415 U.S. 336 (1974). In considering\nwhether a fee imposed by the Federal Communications Commission was a tax\nand therefore beyond the FCC\xe2\x80\x99s authority, the Court opined:\nTaxation is a legislative function, and Congress, which is the sole\norgan for levying taxes, may act arbitrarily and disregard benefits\nbestowed by the Government on a taxpayer and go solely on ability\nto pay, based on property or income. A fee, however, is incident\nto a voluntary act, e.g., a request that a public agency permit an\napplicant to practice law or medicine or construct a house or run\na broadcast station. The public agency performing those services\nnormally may exact a fee for a grant which, presumably, bestows\na benefit on the applicant, not shared by other members of soci\xc2\xad\nety. . . . A \xe2\x80\x9c fee\xe2\x80\x9d connotes a \xe2\x80\x9c benefit\xe2\x80\x9d . . . .\nId. at 340-41 (footnote omitted).\nIn United States v. City o f Huntington, W.Va., 999 F.2d 71 (4th Cir. 1993),\ncert, denied, 510 U.S. 1109 (1994), the court applied a facts-and-circumstances\n\ntest to determine whether a so-called \xe2\x80\x9c municipal service fee,\xe2\x80\x9d consisting of a\n\xe2\x80\x9c fire service fee\xe2\x80\x9d and a \xe2\x80\x9c flood protection fee,\xe2\x80\x9d imposed upon property owners\nin Huntington, West Virginia, including federal agencies, was a tax upon the\nC ouncil\xe2\x80\x99s authority under the Self-Government Act. W aivers o f immunity apply only to properly enacted state and\nlocal measures.\nNor is there a need to ascertain the scope o f the Clean Air Act waiver o f federal immunity in order to conclude\nthat there is no basis for construing that w aiver as an implied repeal o f the Self-Government A ct\xe2\x80\x99s limitation on\nthe authority of the D.C. Council. The District did not make this implied repeal argument in its submission to\nthis Office, see Corporation Counsel Letter, but the argument was analyzed in a Congressional Research Service\nmemorandum concerning the Clean Air Fee, see M emorandum by George Costello, American Law Division, Congres\xc2\xad\nsional Research Service, Re: Application o f District o f Columbia " Clean Air Compliance Fee Act" to the Federal\nGovernment at 6 -7 (Mar. 24, 1995). We believe the argument has no merit. It is a well-established principle o f\nstatutory construction that \xe2\x80\x9c repeals by implication are strongly disfavored.\xe2\x80\x9d United Stales v. Fausto, 484 U.S. 439,\n452 (1988). \xe2\x80\x98\xe2\x80\x98[A] later statute will not be held to have implicitly repealed an earlier one unless there is a clear\nrepugnancy between the tw o.\xe2\x80\x9d Id. at 453 (citations omitted). There is no repugnancy between the Self-Government\nAct and the subsequently enacted section 118 o f the Clean A ir Act. They address fundamentally different subjects:\nthe latter addresses federal immunity (i.e., the relationship between the federal government and state and local govern\xc2\xad\nments), while the former addresses D.C. Council legislative authority ( i.e\xe2\x80\x9e the relationship between Congress and\nthe D.C. Council). Moreover, neither the text nor the legislative history o f Clean A ir Act section 118 contain the\nslightest indication that during its deliberations on waiving federal immunity Congress gave any thought to the legisla\xc2\xad\ntive authority of the D.C. Council.\n\n15\n\n\x0cO pinions o f the Office o f Legal Counsel in Volume 20\n\nUnited States or was instead a fee for services rendered. The court stated that\n\xe2\x80\x9c [u]ser fees are payments given in return for a government-provided benefit.\nTaxes, on the other hand, are \xe2\x80\x98enforced contribution[s] for the support of govern\xc2\xad\nment.\xe2\x80\x99 \xe2\x80\x9d Id. at 74 (quoting U nited States v. LaFranca, 282 U.S. at 572). The\ncourt held that the municipal service fee was \xe2\x80\x9c a thinly disguised tax\xe2\x80\x9d because\nthe federal agencies\xe2\x80\x99 liability for the fee \xe2\x80\x9c arises from [their] status as property\nowners and not from their use of a City service.\xe2\x80\x9d Id.\nIn U nited States v. C ity of Columbia, Mo., 914 F.2d 151 (8th Cir. 1990), the\ncourt considered whether a levy charged by a city as part of the price of water\nand electricity was a tax or a fee. Even though the levy was described in the\napplicable city ordinance as being in lieu of a tax, the court held that the levy\nwas part of the utility rate and was unlike a tax in many significant respects:\nit was not contained in a section dealing with the city\xe2\x80\x99s taxing power; it was\ncharged to the customer as part o f the price of electricity and water; and failure\nto pay the levy would result in termination of services rather than subject the\ncustomer to penalties. As for the levy\xe2\x80\x99s application to the federal government,\nthe court said that\n[t]he United States\xe2\x80\x99 obligation to pay the [levy arose] only from\nits consensual purchase of the City\xe2\x80\x99s [water and electricity]; it d[id]\nnot arise automatically, as does tax liability, from the United States\xe2\x80\x99\nstatus as a property owner, resident, or income earner. When the\nUnited States purchases water, electricity, and related services, and\nthen pays the utility bill, it does so as a vendee pursuant to its\nvoluntary, contractual relationship with the City. The City imposes\nthe charge not in its capacity as a sovereign, but as a vendor of\ngoods and services.\nId. at 155-56 (citing National C able Television, 415 U.S. at 340-41).\nThe results in Columbia and Huntington represent straightforward applications\nof the Supreme Court\xe2\x80\x99s approach in National Cable Television. In Columbia, the\n\nlevy was held not to be a tax because the federal agency voluntarily used certain\namounts of electricity and water and the levy was for the service actually provided\nto the agency. In contrast, in Huntington the assessment was not based on actual\nfire and flood services that had been provided on request, but rather represented\na charge to property owners for fire and flood protection available to all inhab\xc2\xad\nitants of the city; thus, it was a tax \xe2\x80\x94 a mandatory contribution for the support\nof government services provided to the entire public.\nThe Clean Air Fee cannot qualify as a user or service fee because the revenue\nfrom the Fee is used to provide an undifferentiated benefit to the entire public.\nThe Fee is indistinguishable for present purposes from the assessment to support\ncommunity-wide services that was held to be a tax in Huntington. It is not a\n16\n\n\x0cWhether the District o f Columbia\xe2\x80\x99s Clean A ir Compliance Fee May Be Collected From the Federal\nGovernment\n\ncharge for any identifiable District services provided specifically to the owners\nof parking spaces upon their request. Rather, it is a charge to support the mass\ntransit services the District provides to all inhabitants (permanent and temporary)\nof the District. Such services, as was the case with the \xe2\x80\x9c [f]ire and flood protection\nand street maintenance [services at issue in Huntington ,] are core government serv\xc2\xad\nices\xe2\x80\x9d available to all inhabitants of the city. Huntington, 999 F.2d at 73.\nThe court\xe2\x80\x99s rationale in Huntington is fully applicable here: If the argument\nthat the Clean Air Fee is a user fee rather than a tax were to be accepted, then\n\xe2\x80\x9c virtually all of what now are considered \xe2\x80\x98taxes\xe2\x80\x99 could be transmuted into \xe2\x80\x98user\nfees\xe2\x80\x99 by the simple expedient of dividing what are generally accepted as taxes\ninto constituent parts, e.g., a \xe2\x80\x98police fee.\xe2\x80\x99 \xe2\x80\x9d Id. at 74. Taxes imposed on property\nowners are traditionally used to support government services for the whole com\xc2\xad\nmunity, and the Clean Air Fee is no different.\nMoreover, in contrast to the levy held to be a fee in Columbia, the United\nStates\xe2\x80\x99 obligation to pay the Clean Air Fee does not arise from any consensual\npurchase of a good or service from the District, but rather arises automatically\nfrom its status as a property owner. See Columbia, 914 F.2d at 155. The United\nStates is in no respect acting \xe2\x80\x9c as a vendee pursuant to its voluntary, contractual\nrelationship with the [District].\xe2\x80\x9d Id. at 156. In short, the District has \xe2\x80\x9c impose[d]\nthe charge . . . in its capacity as a sovereign, [not] as a vendor of goods and\nservices.\xe2\x80\x9d Id. Also in contrast to the Columbia fee, the District will enforce the\nFee through civil penalties, not the denial of any supposed benefit that the Fee\nmakes possible.\nB.\n\nThe case law concerning whether a government levy is a regulatory fee or a\ntax was summarized by then-Chief Judge Breyer of the First Circuit Court of\nAppeals in San Juan Cellular Telephone v. Public Serv. Comm\xe2\x80\x99n, 967 F.2d 683\n(1st Cir. 1992):\nCourts have had to distinguish \xe2\x80\x9c taxes\xe2\x80\x9d from regulatory \xe2\x80\x9c fees\xe2\x80\x9d\nin a variety of statutory contexts. . . . They have sketched a spec\xc2\xad\ntrum with a paradigmatic tax at one end and a paradigmatic fee\nat the other. The classic \xe2\x80\x9c tax\xe2\x80\x9d is imposed by a legislature upon\nmany, or all, citizens. It raises money, contributed to a general fund,\nand spent for the benefit of the entire community. The classic \xe2\x80\x9c reg\xc2\xad\nulatory fee\xe2\x80\x9d is imposed by an agency upon those subject to its\nregulation. It may serve regulatory purposes directly by, for exam\xc2\xad\nple, deliberately discouraging particular conduct by making it more\nexpensive. Or, it may serve such purposes indirectly by, for exam17\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\npie, raising money placed in a special fund to help defray the agen\xc2\xad\ncy\xe2\x80\x99s regulation-related expenses.\nCourts facing cases that lie near the middle of this spectrum have\ntended . . . to emphasize the revenue\xe2\x80\x99s ultimate use, asking wheth\xc2\xad\ner it provides a general benefit to the public, of a sort often financed\nby a general tax, or whether it provides more narrow benefits to\nregulated companies or defrays the agency\xe2\x80\x99s costs of regulation.\nId. at 685 (citations omitted).\n\nWe believe that the Clean Air Fee is considerably closer to being a paradigmatic\ntax than a paradigmatic regulatory fee. In Judge Breyer\xe2\x80\x99s terms, the Fee \xe2\x80\x9c is im\xc2\xad\nposed by a legislature [the Council] upon many, or all, citizens [all owners of\nemployment parking spaces]. It raises money, contributed to a general fund, and\nspent for the benefit of the entire community [the account funding the District\xe2\x80\x99s\nsubsidy for mass transit, which is a service available to the entire community].\xe2\x80\x9d\nId. In other words, the Fee is imposed by a legislative body on property owners\nto raise revenue; it is not imposed by a \xe2\x80\x9c [regulatory] agency upon those subject\nto its regulation.\xe2\x80\x9d Id. Moreover, the fact that the Fee applies only if the District\xe2\x80\x99s\nsales and use tax has not been imposed already on the parking service for the\nvehicle also suggests that the Fee is a tax, because it indicates that the Fee is\nintended to complement the parking tax. Indeed, the D.C. Council indicated as\nmuch in its report on the Act when it stated that \xe2\x80\x9c [t]he fee will only be imposed\non persons who do not currently pay the District\xe2\x80\x99s parking tax.\xe2\x80\x9d Council Report\nat 10.\nThe District\xe2\x80\x99s argument that the Clean Air Fee is a regulatory fee is as follows:\nWe conclude that the District is required by the Federal Clean\nAir Act to reduce, eliminate and control sources of air pollution\nand that the monetary exaction imposed by the Clean Air Compli\xc2\xad\nance Fee Act is designed to encourage the use of mass transit and\ndecrease air pollution associated with automobile traffic. Inasmuch\nas the primary purpose of this exaction is the control and abatement\nof air pollution, we conclude that this exaction is a \xe2\x80\x9c fee\xe2\x80\x9d not a\n\xe2\x80\x9c tax.\xe2\x80\x9d\nCorporation Counsel Letter at 3.\nAs a threshold matter, it is open to question whether it is correct to view the\nFee\xe2\x80\x99s primary purpose as being to regulate air pollution by automobile traffic rath\xc2\xad\ner than to raise revenue for mass transit that benefits the general public. The fact\nthat the proceeds of the Fee are to be allocated entirely to support the mass transit\nsystem strongly suggests that the primary purpose of the Fee is to raise revenue\nto support government operations. See Act \xc2\xa711; Council Report at 10. In addition,\nalthough discouraging the use of automobiles for commuting no doubt does serve\n18\n\n\x0cWhether the District o f Columbia\xe2\x80\x99s Clean A ir Compliance Fee May Be Collected From the Federal\nGovernment\n\nair pollution regulatory purposes, the actual reduction in automobile commuting\nthat can be expected here, as a result of the imposition of the Fee, is indirect\nand speculative compared to the direct and immediate revenue impact and support\nfor mass transit that will result.5\nIn any event, even assuming that the Clean Air Fee falls in the middle of the\nfee-tax spectrum, following Judge Breyer\xe2\x80\x99s focus on the revenue\xe2\x80\x99s ultimate use\nleads to the conclusion that this exaction is a tax. To accept the District\xe2\x80\x99s charac\xc2\xad\nterization would require that we conclude either that subsidizing mass transit is\na regulation-related cost of the District\xe2\x80\x99s air pollution regulatory program or that\nthe assumed regulatory impact of the Fee on air pollution (as a result of reduced\nautomobile commuting and increased use of mass transit) is sufficient by itself\nto render it a regulatory fee notwithstanding the remaining aspects of the Fee\nthat all suggest it is a tax. With respect to the first of these alternatives, while\nwe do not doubt that encouraging the use of mass transit can have a beneficial\neffect on air pollution, the costs of a separate, non-regulatory government program\nthat benefits the public as a whole are not the kind of costs that courts have\nviewed as defrayable by regulatory fees. See supra pp. 17-19. The subsidization\nof mass transit is not a regulatory cost, but rather a general government expense\ntypically defrayed by taxes: subsidization of mass transit \xe2\x80\x9c provides a general ben\xc2\xad\nefit to the public, of a sort often financed by a general tax.\xe2\x80\x9d San Juan Cellular\nTelephone, 967 F.2d at 685.\nAs for the second alternative, the simple response is that ascribing a regulatory\npurpose to a tax does not mean that it is not a tax. Taxes often have a significant\nregulatory purpose: \xe2\x80\x9c [A] tax is a powerful regulatory device; a legislature can\ndiscourage or eliminate a particular activity that is within its regulatory jurisdiction\nsimply by imposing a heavy tax on its exercise.\xe2\x80\x9d Massachusetts v. United States,\n435 U.S. 444, 455-56 (1978). See also National Cable Television A ss\xe2\x80\x99n v. United\nStates, 415 U.S. 336, 341 (1974) (\xe2\x80\x9c The lawmaker may, in light of the \xe2\x80\x98public\npolicy or interest served,\xe2\x80\x99 make the assessment heavy if the lawmaker wants to\ndiscourage the activity; or it may make the levy slight if a bounty is to be be\xc2\xad\nstowed . . . . Such assessments are in the nature of \xe2\x80\x98taxes\xe2\x80\x99 . . . .\xe2\x80\x9d ). Thus, the\nfact that discouraging automobile commuting is one of the stated reasons for the\nClean Air Fee does not convert it from a tax into a regulatory fee when its rev\xc2\xad\nenue-raising purpose in support of separate, non-regulatory government operations\nis so direct and substantial. The foregoing analysis is supported by the decision\ns See, e.g., Statement o f Art Lawson, Administrator, Office o f Mass Transit, Department of Public Works, Before\nthe Council o f the District o f Columbia Committee o f the Whole at 1 -2 (May 18, 1994). ( \xe2\x80\x9c A lthough these measures\nwill not on their own result in measurable reductions o f automobile use within the District o f Columbia it is the\ndirection setting that is most important here. Additionally, these measures are important because they will generate\ndesperately needed revenues to help fund the District\xe2\x80\x99s FY 1994 and 1995 W MATA operating budget. . . . [T]he\nDistrict\xe2\x80\x99s subsidy to support WMATA was reduced by $7.2 million in the current budget year. This reduction left\nWMATA underfunded by approximately $7 million. The Committee on Regional Authorities proposed to m ake up\nthe $7 million by implementing a series o f transfer charges and fare increases on District Metrobus service. . . .\n[Councilwoman Mason] has proposed that the revenue from these bills be used to fund the W MATA deficits thereby\nmaking the fare and transfer charge proposals unnecessary. \xe2\x80\x99 \xe2\x80\x99). See also id. at 6.\n\n19\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 20\n\nin San Juan C ellular Telephone and the cases cited in Judge Breyer\xe2\x80\x99s opinion\nin that case. In San Juan, the court held that a three percent of gross revenues\ncharge imposed on a telephone company by the Puerto Rico Public Service Com\xc2\xad\nmission as a condition of the company\xe2\x80\x99s authorization to provide cellular tele\xc2\xad\nphone service was a regulatory fee. Judge Breyer stressed that the fee was assessed\nby a regulatory agency, was placed in a special fund, and was not to be used\nfor a general purpose but rather to defray specific costs of regulation (investigative\nexpenses, hiring of services, and acquisition of equipment). 967 F.2d at 686. His\nopinion distinguished the case before the court, as well as other cited examples\nof regulatory fees,6 from those cases that had held charges to be taxes because\nthe proceeds from the charges were used for general purposes or to raise general\nrevenue.7\nSchneider Transport, Inc. v. Cattanach is particularly instructive for our pur\xc2\xad\nposes. In that case, it was argued that truck registration fees imposed on trucking\ncompanies were \xe2\x80\x9c regulatory licensing fees.\xe2\x80\x9d The Seventh Circuit rejected this\nargument, finding that \xe2\x80\x9c [although not denominated as such, the registration fees\nare imposed for revenue-raising purposes, a characteristic of any tax . . . [, and]\n[t]he fees are deposited in a segregated fund, the state transportation fund, for\ntransportation purposes, including highway construction.\xe2\x80\x9d 657 F.2d at 132 (cita\xc2\xad\ntions omitted). Thus, as with the Clean Air Fee, the charge went beyond regulatory\npurposes and raised revenue to support a separate, non-regulatory government pro\xc2\xad\ngram.\nFinally, we observe that our conclusion that the Clean Air Fee is not a regulatory\nfee does not conflict with Judge Breyer\xe2\x80\x99s statement that a regulatory fee \xe2\x80\x9c may\nserve regulatory purposes [by] deliberately discouraging particular conduct by\nmaking it more expensive.\xe2\x80\x9d 967 F.2d at 685. The fact that some bona fide regu\xc2\xad\nlatory fees serve regulatory purposes in this way does not mean, of course, that\nevery charge with a regulatory purpose that raises revenue beyond what would\ndefray regulatory costs must be viewed as a fee rather than a tax. As discussed\nabove, supra p. 19, taxes often have regulatory purposes. See Massachusetts v.\nUnited States, 435 U.S. at 455\xe2\x80\x9456; N ational Cable Television A ss\xe2\x80\x99n v. United\nStates, 415 U.S. at 341.\nJudge Breyer cited only one case involving this type of regulatory fee. 967\nF.2d at 685 (citing South Carolina ex rel. Tindal v. Block, 717 F.2d 874 (4th\nCir. 1983), cert, denied, 465 U.S. 1080 (1984)). Block concerned a charge imposed\n6 See, e.g., Union Pac. R.R. v. Public Util. Comm\xe2\x80\x99n, 899 F.2d 854, 856 (9th Cir. 1990) (assessment helped defray\nutility com m ission\'s \xe2\x80\x9c cost o f performing [its] regulatory duties\'*); Mississippi Power & Light Co. v. United States\nNuclear Regulatory Comm\xe2\x80\x99n , 601 F.2d 223 (5th C ir. 1979), cert, denied, 444 U .S. 1102 (1980) (NRC charge helped\npay costs o f environm ental reviews, hearings, and administrative and technical support).\n7 See id. at 685 (citing Schneider Transport, Inc. v. Cattanach , 657 F.2d 128 (7th Cir. 1981) (charge on truckowners used to pay for highw ay construction), cert, denied, 455 U.S. 909 (1982); Keleher v. New England Tel.\n& Tel. Co., 947 F.2d 547 (2d Cir. 1991) (public utility com panies using city streets charged fee tied to utility\xe2\x80\x99s\ngross revenues and not cost o f regulating utility\xe2\x80\x99s use o f city streets), Robinson Protective Alarm Co. v. City o f\nPhiladelphia, 581 F.2d 371, 376 (3d Cir. 1978) (charges on central aJarm companies based on gross revenues and\n\xe2\x80\x9c added to the public fisc, rather than applied exclusively to contractual services o w ed" to the companies)).\n\n20\n\n\x0cWhether the District o f Columbia\'s Clean A ir Compliance Fee May Be Collected From the Federal\nGovernment\n\nby the Secretary of Agriculture on the proceeds of all milk sold commercially.\nThe charge was remitted to the Commodity Credit Corporation (\xe2\x80\x9c CCC\xe2\x80\x9d ) as part\nof a milk price support program administered for the Secretary by the CCC. The\npurposes of the charge were \xe2\x80\x9c to encourage dairy farmers to reduce milk produc\xc2\xad\ntion and to offset a portion of the cost of the milk price support program.\xe2\x80\x9d 717\nF.2d at 876. Although Block principally concerned Administrative Procedure Act\nchallenges to the Secretary\xe2\x80\x99s imposition of the charge on milk sales, the court\xe2\x80\x99s\nopinion also briefly discussed the allegation that the Secretary\xe2\x80\x99s charge was a\ntax and therefore was unconstitutional for two reasons: it did not originate in the\nHouse of Representatives, and Congress cannot delegate its authority to tax. The\ncourt easily concluded that the charge was not a tax because it was authorized\nby Congress pursuant to its commerce power rather than taxing power, citing\nWickard v. F ilbum , 317 U.S. I l l (1942), for the proposition that \xe2\x80\x9c [t]he imposi\xc2\xad\ntion of assessments have long been held to be a legitimate means of regulating\ncommerce.\xe2\x80\x9d 717 F.2d at 887.8\nBlock does not support the position that the Clean Air Fee is a regulatory fee,\nbecause the charge addressed in that case differed from the Fee in two funda\xc2\xad\nmental respects: it was imposed on regulated parties, not property owners, and,\nmost significantly, the revenue raised from the charge was used only for the spe\xc2\xad\ncific regulatory program of which it was a part, and to which the regulated parties\nwere subject, not to support government operations in a separate, non-regulatory\nprogram that benefits the public generally.\nC.\nThe \xe2\x80\x9c tax or fee\xe2\x80\x9d cases cited by the Office of the Corporation Counsel, see\nCorporation Counsel Letter at 2, included both user or service fee cases and regu\xc2\xad\nlatory fee cases. The cited cases are consistent with our conclusion that the Clean\nAir Fee is a tax and not a fee. For example, in Valandra v. Viedt, 259 N.W.2d\n510 (S.D. 1977), the court held that a \xe2\x80\x9c mobile home license fee\xe2\x80\x9d was principally\na tax because \xe2\x80\x9c 85% of the fee collected [allocated to the county highway and\nbridge fund] is for revenue purposes and bears no relationship to the cost of ad\xc2\xad\nministering the [mobile home] registration system,\xe2\x80\x9d and only the fifteen percent\nallocated \xe2\x80\x9c to defray costs of titling, registration and for unusual use of the high\xc2\xad\nway\xe2\x80\x9d was arguably a fee. Id. at 512. Similarly, the Clean Air Fee is allocated\nto support a mass transit system and is not tied to any governmental service or\n8 The two cases cited in this regard by the Block court each held that administrative sanctions imposed against\nfarmers for exceeding marketing quotas were authorized under the commerce pow er and did not constitute taxes.\nSee United States v. Stangland, 242 F.2d 843, 848 (7th Cir. 1957); Rodgers v. United Stales, 138 F.2d 992, 994\n(6th Cir. 1943). The central rationale o f the cases was that the charge in question \xe2\x80\x9c [was] not a charge on property\nfor the purpose o f raising revenue. Revenue may incidentally arise therefrom, but that fact does not divest the regula\xc2\xad\ntion of its commerce character and render it an exercise o f the taxing power.\xe2\x80\x9d Rodgers, 138 F.2d at 995. In contrast,\nthe Clean Air Fee\xe2\x80\x99s production o f revenue to subsidize mass transit is anything but incidental: the Fee is a charge\non property for the purpose o f raising revenue.\n\n21\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nbenefit specifically provided to owners of parking spaces. See also Radio Common\nCarriers v. State, 601 N.Y.S.2d 513, 516 (N.Y. 1993) (\xe2\x80\x9c Section 1150 . . . is\nin effect a tax. The monthly one dollar fee is not related to licensing or other\nservices performed for the [fee-payor] by the state . . . . The money collected\nis added to the general state fisc . . . .\xe2\x80\x9d ).\nThose of the cases cited by the Corporation Counsel that held that the charge\nin question was a fee generally differ from the present case in the critical respect\nthat they involved payments to defray costs attributable to regulated parties. For\nexample, in holding that a ten dollar criminal history records check charge paid\nby potential firearms buyers was a fee, the court in In re Shooters Emporium,\nInc., 135 B.R. 701 (Bnkr. S.D. Fla. 1992), stated that\nthe nature of the payment is voluntary. Payment is required only\nif one desires to purchase a firearm. The purpose of the payment\nis for private benefit. Only people who pay the fee may purchase\na firearm. Furthermore, this payment is clearly designed to recoup\nthe costs of regulation from the people regulated, rather than to\nraise general revenues. This payment can not be reasonably con\xc2\xad\nstrued to be an involuntary exaction for a public purpose.\nId. at 702-03.9 In contrast to these cases, the Act makes clear that the Clean\n\nAir Fee is allocated to support mass transit; it does not defray costs attributable\nto parking space owners or any other regulated parties.\nIII.\nFor the reasons set forth above, we conclude that the Clean Air Fee is a tax.\nTo the extent that the Fee is imposed on property owned by the United States,\nit is a \xe2\x80\x9c tax on property of the United States\xe2\x80\x9d and therefore beyond the authority\nof the D.C. Council under the Self-Government Act. The District may not collect\nthe Fee from the federal government.\nTERESA WYNN ROSEBOROUGH\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\' 9 See also City o f Vanceburg, Ky. v. Federal Energy Regulatory Comm\xe2\x80\x99n, 571 F.2d 630, 644 (D.C. Cir. 1977)\n(dam-use charges are \xe2\x80\x9c exacted against a licensee in exchange for a privilege which the licensee has requested or\napplied for and from which the licensee derives a special benefit\xe2\x80\x9d ), cert, denied, 439 U.S. 818 (1978); Strater\nv. Town o f York, 541 A.2d 938 (M e. 1988) (ten dollar charge for harbor usage); Memphis Retail Liquor Dealers\xe2\x80\x99\nAss\'n v. City o f Memphis, 547 S.W .2d 244 (Tenn. 1977) (emphasizing uniqueness of regulation o f alcoholic beverage\nindustry and com m on practice o f regulating that industry through license taxes, holding that five percent inspection\nfee im posed on retailers was a fee even though it produced revenues that were 200 times the cost o f regulation).\n\n22\n\n\x0c'


b'September 21, 1979\n\n79-69\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nDEFENSE\nNational Guard\xe2\x80\x94Technician Dress and Grooming\nRegulations\xe2\x80\x94Executive Order No. 11491\xe2\x80\x94Review\no f Decisions of Federal Labor Regulations\nAuthority\n\nThis responds to your request for the opinion o f the Department of\nJustice concerning Federal Labor Relations Council (Council) decisions\non the negotiability o f National G uard technician dress-and-grooming\nregulations. The question arose in administrative proceedings instituted by\nlabor organizations on behalf o f the technicians. Accompanying the re\xc2\xad\nquest was a petition to the A ttorney General from the A djutants General\no f the 50 States, the Virgin Islands, Puerto Rico, and the District o f Col\xc2\xad\numbia, and a m em orandum in support o f their position that the Council\xe2\x80\x99s\ndecisions are without legal support. As framed in that m em orandum, the\nquestions on which our opinion is requested are whether the Council has\njurisdiction to direct negotiations concerning a military regulation ap\xc2\xad\nplicable only to National Guard technicians and promulgated pursuant to\nstatute by the Departm ent o f Defense, and, if so, whether the Council ap\xc2\xad\nplied an invalid standard o f review and thus erroneously determined that\nthe regulation is negotiable.\nIn o ur view; the Council did have jurisdiction to determine the\nnegotiability o f the regulation in question. Although the m ethod for ap\xc2\xad\npealing its decisions is disputed, it does appear that administrative and\njudicial remedies are available to the dissatisfied party. It would be inap\xc2\xad\npropriate under these circumstances for us to comment on the second\nquestion.\n\n368\n\n\x0cThe Background\nExecutive Order No. 11491 was issued in 1969 to govern labor-management relations in the executive branch o f the Federal G overnm ent.\' It\nestablished the Federal Labor Relations Council to administer and inter\xc2\xad\npret the order2 and the Federal Service Impasses Panel (Panel) to settle\nnegotiation impasses.3 It also set forth guidelines for negotiation o f collec\xc2\xad\ntive bargaining agreem ents.4 Section 11(a), as amended prior to 1979, pro\xc2\xad\nvided:\n(a)\nAn agency and a labor organization that has been ac\xc2\xad\ncorded exclusive recognition, through appropriate represent\xc2\xad\natives, shall meet at reasonable times and confer in good faith\nwith respect to personnel policies and practices and matters af\xc2\xad\nfecting working conditions, so far as may be appropriate\nunder applicable laws and regulations, including policies set\nforth in the Federal Personnel Manual; published agency\npolicies and regulations for which a compelling need exists\nunder criteria established by the Federal Labor Relations\nCouncil and which are issued at the agency headquarters level\nor at the level of a primary national subdivision; a national or\nother controlling agreement at a higher level in the agency; and\nthis o rd er.5\nGenerally, the procedures for settling disputes as to negotiability were as\nfollows: if an issue developed whether a proposal was negotiable, either\nparty could seek a determ ination from the head o f the agency concerned.6\nIf the agency head determined an issue was not negotiable, a labor\norganization could appeal this determ ination to the Council. If, after a\nCouncil decision, the parties were unable to settle their differences, either\nparty could request the Federal Service Impasses Panel to consider the\nm atter.8 Failure to obey a Panel order directing settlement was an unfair\nlabor practice9 and a complaint could be filed with the Assistant Secretary\no f Labor for Labor-M anagement R elations.10 The Assistant Secretary\xe2\x80\x99s\n\n\'This order was am ended by Executive Orders Nos. 11616, 11636, 11838, 11901, 12073,\n12107, and 12126. Executive O rders Nos. 12107 and 12126 conform ed the order to the pro\xc2\xad\ncedures established by the Civil Service Reform Act o f 1978, 5 U .S.C . \xc2\xa7\xc2\xa7 7101-7135. Unless\notherwise specified, all citations to Executive O rder No. 11491 refer to the order as am ended\nprior to Executive O rder No. 12107.\n\xe2\x80\x99Exec. Order No. 11491, \xc2\xa7 4.\n\xe2\x80\x99Exec. O rder No. 11491, \xc2\xa7 5.\n*Exec. O rder No. 11491, \xc2\xa7 11.\n\xe2\x80\x99This version o f \xc2\xa7 11(a) appears in Executive O rder No. 11838 (Feb. 6, 1975).\n\xe2\x80\x98Exec. O rder No. 11491, \xc2\xa7 11(c)(2).\n\xe2\x80\x99Exec. Order No. 11491, \xc2\xa7 11(c)(4).\n\'Exec. O rder No. 11491, \xc2\xa7 17.\n\xe2\x80\x99Exec. Order No. 11491, \xc2\xa7 19(a)(6).\n\'\xe2\x80\x9cExec. Order No. 11491, \xc2\xa7 6(a)(4).\n\n369\n\n\x0cdecision could be appealed to the C ouncil." A party dissatisfied with the\nCouncil\xe2\x80\x99s decision on the unfair labor practice could seek relief in a\nFederal district c o u rt.12\nTitle VII o f the Civil Service Reform Act, 5 U.S.C. \xc2\xa7\xc2\xa7 7101-7135, re\xc2\xad\nvised these procedures, but did not affect matters pending as o f January\n11, 1979, the effective date o f the A c t:13\nNo provision o f this Act shall affect any administrative pro\xc2\xad\nceedings pending at the time such provision takes effect. Orders\nshall be issued in such proceedings and appeals shall be taken\ntherefrom as if this Act had not been enacted.14\nThe Council and the Panel have considered num erous cases on the nego\xc2\xad\ntiability o f the National G uard technician dress and grooming regulations.\nNational G uard technicians are civilians employed full-time for the ad\xc2\xad\nministration and training o f the National G uard and the maintenance and\nrepair o f supplies issued to the National G uard or the Armed Forces.15\nTechnicians must be members o f the National G u ard .16 They are\nemployees o f the Departm ent o f the Army or the Department o f the Air\nF orce,17 but technician employment and administration are delegated by\nthe Secretaries o f these departm ents to the A djutants General o f the States\nand territories.1*\nPursuant to regulatory authority,19 the Secretaries o f the Army and the\nAir Force have required National G uard technicians to wear military\nuniforms when performing technician duties, and to comply with groom \xc2\xad\ning standards o f the appropriate service.20 Controversy arose when\nbargaining units o f the National G uard technicians proposed amendments\nto modify the requirement that uniform s be worn. When National Guard\nofficials refused to negotiate the m atter, the unions, following the pro\xc2\xad\ncedures o f Executive O rder 11491, requested a determ ination from the\nhead o f the National Guard Bureau. In each case, he determined that\nnegotiation was barred by Bureau regulations. Thereafter, the unions peti\xc2\xad\ntioned the Council for review. They argued that negotiation is not barred\n\n"E xec. O rder N o. 11491, \xc2\xa7 4(c)(1).\n11See, e.g., Montana Chapter o f Assoc, o f Civ. Tech., Inc. v. Young, 514 F.(2d) 1165,\n1168 (9th Cir. 1975); National Treasury Employees Union v. Fasser, 428 F. Supp. 295, 297\n(D .D .C . 1976).\n\'T h e section specifying the effective date is Civil Service Reform Act o f 1978, Pub. L. No.\n95-454, \xc2\xa7 907.92 Stat. 1227.\n\xe2\x80\x9c Civil Service Reform Act o f 1978, P ub. L. N o. 95-454, \xc2\xa7 902(b), 92 Stat. 1224, 5 U .S.C .\n\xc2\xa7 1101 note.\n"32 U .S.C . \xc2\xa7 709(a).\n\xe2\x80\x9c 32 U .S.C . \xc2\xa7 709(b).\n\'\xe2\x80\x9932 U .S.C . \xc2\xa7 709(d).\n"32 U .S.C . \xc2\xa7 709(c).\n\' \xe2\x80\x9932 U .S.C . \xc2\xa7 709(a), relating to the employm ent o f National G uard technicians.\n\xe2\x80\x99\xe2\x80\x9cTechnician Personnel M anual 200 (213.2), Subchapter 2-4, provides in part: \xe2\x80\x9c Techni\xc2\xad\ncians in the excepted service will wear the military uniform appropriate to their service and\nfederally recognized grade when perform ing technician duties and will comply with uniform\nstandards o f the services.\xe2\x80\x9d\n\n370\n\n\x0cbecause, one, the regulation was not issued at or above the level o f a\nprimary national subdivision o f the agency, and two, no compelling need\nfor the regulation exists. The Council found that the National G uard\nBureau is a primary national subdivision o f the Departm ent o f Defense\nwithin the meaning o f section 11(a) o f the order, but that no compelling\nneed existed for the regulations in question.21 It decided, therefore, that\nthe proposals o f the union were subject to negotiation.\nIn most o f these cases, the parties still could not reach an agreement.\nThe unions requested the Federal Service Impasses Panel to consider the\nnegotiation impasses. The Panel issued recommendations that the parties\nadopt language in their agreements that the employees should have the op\xc2\xad\ntion o f wearing either a uniform or an agreed-upon standard civilian at\xc2\xad\ntire, and that the parties should agree upon exceptions to cover occasions\non which the wearing o f the military uniform may be required.22 W hen\nthese suggestions were rejected, the Panel issued orders directing the par\xc2\xad\nties to adopt the Panel\xe2\x80\x99s recommended language in their agreements.23\nSome o f these cases are still pending before the Panel.\nDiscussion\nIt is our opinion that the Council had the authority under Executive\nOrder No. 11491 to determine the negotiability o f the dress-and-grooming\nregulations. That order explicitly gave the Council authority to resolve\nnegotiability disputes.24 It applied, with certain exceptions, to all\nemployees and agencies o f the executive branch.25 It does not appear to us\nthat any o f the exceptions are relevant here. The A djutants General con\xc2\xad\ntend that the exception provided in \xc2\xa7. 3(b)(3) o f the order removes them\nfrom its application. This section provides:\n(b) This Order * * * does not apply to \xe2\x80\x94\n(3) any other agency, or office, bureau, or entity within an\nagency, which has as a primary function intelligence, investi\xc2\xad\ngative, or security work, when the head o f the agency deter\xc2\xad\nmines, in his sole judgm ent, that the Order cannot be applied\nin a manner consistent with national security requirements and\nconsiderations * * * .\n\xe2\x80\x99\'See Council Consolidated Decision on Negotiability Issues, Nos. 76A-16, 76A-17,\n76A-40, 76A-43, 76A-54 (Jan. 19, 1977); Consolidated Decision on Negotiability Issues,\nNos. 76A-75, 76A-76, 76A-84 (Jan. 19, 1977).\n11See, e.g.. Panel Reports and Recom m endations for Settlement, In the Matter o f State o f\nNew York and New York Council Assoc, o f Civilian Tech. Inc., 78 FSIP 32 (Sept. 28, 1978);\nIn the Matter o f Penn. National Guard and Penn. State Council Assoc, o f Civilian Techni\xc2\xad\ncians, Inc., 77 FSIP 29 (Jan. 20, 1978); In the Matter o f Kansas A rm y Nat \xe2\x80\x99I Guard and Local\nRI4-S7, N a t\xe2\x80\x99l Assoc, o f G ov\'t Employees, 77 FSIP 30 (Nov. 2, 1977); In the Matter o f Mass.\nAir National Guard and Local 3004, AFL-CIO, 77 FSIP 18 (Aug. 26, 1977).\n\xe2\x80\x99\xe2\x80\x99See, e.g., Decisions and Orders, In the Matter o f Mass. Arm y N a t\xe2\x80\x99l Guard and Local\n1629, N a t\xe2\x80\x99l Federation o f Federal Employees, 77 FSIP 31 (Aug. 22, 1978); In the Matter o f\nOregon A rm y/A ir N at\xe2\x80\x99l Guard and Local 2986, AFL-CIO, 77 FSIP 53 (Aug. 22, 1978); In\nthe Matter o f California N at\xe2\x80\x99l Guard and Local RI2-I05, N a t\xe2\x80\x99l Assoc, o f G ov\xe2\x80\x99t Employees,\n77 FSIP 70 (April 13, 1977).\n\xe2\x80\x9c Exec. Order No. 11491, \xc2\xa7\xc2\xa7 4(c)(2), 11(c)(4).\n\xe2\x80\x99\xe2\x80\x99Exec. Order No. 11491, \xc2\xa7\xc2\xa7 2(a), 3(a).\n\n371\n\n\x0cThe A djutants General reason that they, as heads o f their agencies, have\ndetermined that the wearing o f the uniform by the technicians is required\nas a m atter o f security and that this determ ination cannot be reviewed by\nthe Council because it is left to the \xe2\x80\x9c sole judgm ent\xe2\x80\x9d o f the agency head.\nWe disagree because the National G uard does not have as its primary\nfunction \xe2\x80\x9c intelligence, investigative or security w ork.\xe2\x80\x9d The primary func\xc2\xad\ntion o f the National G uard is to m aintain and assure the strength and\norganization o f reserve com ponents o f the Armed Forces.26 This is not the\ntype o f security work excepted from the order. The maxim noscitur a\nsociis (a word is known by the com pany it keeps) applies here to limit the\nterm \xe2\x80\x9c security work\xe2\x80\x9d to the type o f work associated with intelligence and\ninvestigative w ork.27\nW hether the Council applied an invalid standard o f review is not a m at\xc2\xad\nter for the Departm ent o f Justice to determine. Under the order, the\nCouncil is the final administrative authority.28 There is no right to appeal\nto the Attorney General, and it would be inappropriate for the D epart\xc2\xad\nment o f Justice to comment on the decision.29 The right o f appeal lies else\xc2\xad\nwhere. Issues arising out o f the controversy now are pending before the\nFederal Labor Relations A uthority30 and at least one Federal co u rt.31\nThere is a long line o f opinions o f the Attorneys General to the effect that\nit is not proper to express an opinion upon a judicial question that is pend\xc2\xad\ning in, or must ultimately be decided by, the courts.32 Accordingly, we\ndecline to comment on the Council\xe2\x80\x99s decisions in these cases.\nLeon U\n\nlm an\n\nD eputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c 32 U .S.C . \xc2\xa7 102. Section 709(e)(2) deals with the military security standards applicable to\nindividual members o f a reserve com ponent. It does not define the primary function o f the\nNational G uard.\nCf., Third N a t\xe2\x80\x99l Bank v. Impac. Limited, Inc. 432 U .S. 312 (1977), Jarecki v. G.D.\nSearte & Co.. 367 U .S. 303, 307 (1961).\n\xe2\x80\x9c Exec. O rder No. 11491, \xc2\xa7 11(c)(4).\n"See 11 O p. A tt\xe2\x80\x99y Gen. 407, 408 (1865); 10 O p. A tt\xe2\x80\x99y Gen. 347, 349 (1862); 6 O p. A tt\xe2\x80\x99y\nGen. 289 (1854).\n\xe2\x80\x9c The Federal L abor Relations A uthority was created by the Civil Service Reform Act o f\n1978, 5 U.S.C. \xc2\xa7 7105. It is the \xe2\x80\x9c successor\xe2\x80\x9d to the Council. Section 7123 o f the Act provides\nfor judicial review o f final orders o f the A uthority.\n"See, Nevada N a t\xe2\x80\x99l Guard v. United States, No. 79-7235 (9th C ir., filed May 31, 1979).\n"See, e.g., 41 O p. A tt\xe2\x80\x99y Gen. 266, 272 (1956); 37 O p. A tt\xe2\x80\x99y Gen. 34, 42 (1932); 33 Op.\nA tt\xe2\x80\x99y Gen. 86, 87 (1922).\n\n372\n\n\x0c'