b'Authority of Military Investigators to Request Search\nWarrants Under Rule 41\nThere is no legal im pedim ent to the Attorney G eneral\'s am ending 28 C.F.R . \xc2\xa7 60.2(g) to add m ilitary\nm em bers of D epartm ent o f Defense investigative agencies to the list of law enforcem ent officers\nauthorized to seek and execute search warrants pursuant to Rule 41 of the Federal Rules o f Civil\nProcedure\nThe Posse C om itatus Act does not prohibit the issuance o f search warrants to m ilitary investigators\nengaged in the enforcem ent of the U niform Code of M ilitary Justice (UCM J), since that statute\nonly restricts m ilitary involvement in civilian law enforcem ent activities.\nM ilitary investigators engaged in the enforcem ent of the UCM J may be regarded as \xe2\x80\x9cfederal law\nenforcem ent officers\xe2\x80\x9d within the scope of Rule 41, and federal m agistrates would thus be\nauthonzed to issue civilian search warrants to them upon the appropriate am endm ent of,28 C .F .R .\n\xc2\xa7 60.2(g).\n\nOctober 18, 1982\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis memorandum responds to a request originally filed with this Office by the\nGeneral Counsel of the Department of Defense (DOD) on December 7, 1979,\nand renewed by the General Counsel on March 26, 1982, concerning the\nissuance of search warrants to military investigators pursuant to Rule 41 of the\nFederal Rules of Criminal Procedure.1Specifically, DOD seeks an amendment to\n1 This request has had a long and circuitous history. Following the December 7, 1979, request, this Office\nreceived a memorandum dated December 18. 1979, from the Criminal Division\'s Office of Legislation questioning\nwhether DOD investigators who are authorized to enforce the Uniform Code of Military Justice (UCMJ) are\n\xe2\x80\x9cengaged in the enforcement of the criminal laws" within the meaning of Rule 4 1(h) so as toqualify for authorization\nby the Attorney General to request search warrants, and, whether a violation of the UCMJ is a \xe2\x80\x9ccriminal offense" so\nas to provide a basis for the issuance of a warrant under Rule 41. The memorandum also questioned whether military\ninvestigators or civilian investigators under military direction fell within the category of \xe2\x80\x9cfederal law enforcement\nofficer[s]\'\' authonzed by Rule 41(a) to request issuance of search warrants. These issues were discussed with the\nDefense Department\'s Office of General Counsel; on April 17, 1980, the Office of General Counsel formally\nsubmitted its views on the matter. See letter of Apr. 17, 1980. from Associate General Counsel Dondy, Department\nof Defense, to Assistant Attorney General Hannon, Office of Legal Counsel.\nOn November 18, 1980, this Office transmitted to the Cnminal Division a memorandum setting forth our\nconclusion that federal courts would generally lack jurisdiction to issue search warrants for violations of the UCMJ\nOn February 27, 1981, the Criminal Division responded with a memorandum supporting the view taken in our\nmemorandum.\nOn October 8, 1981, this Office advised the General Counsel o f the Department of Defense of the Justice\nDepartment\'s views regarding its earlier request and of our intention, based on those views, to recommend to the\nAttorney General that \xc2\xa7 60 2(g) be repealed altogether. On March 26, 1982, the General Counsel responded with a\nmemorandum reiterating DOD\'s view that there are no legal impediments to extending the \xc2\xa7 60.2(g) authonty to\nrequest search warrants to military Defense investigators and renewed DOD\xe2\x80\x99s request for such an amendment.\nUpon further reflection and analysis of the issues raised by DOD\'s request, we have reached the conclusions, set\nforth in the text above, which are contrary to those tentatively reached by this Office and the Criminal Division in our\nearlier consideration of the issue.\n\n567\n\n\x0c\xc2\xa7 60.2(g) of Title 28 of the Code of Federal Regulations which would permit\nmilitary members of the various DOD investigative agencies, as well as the\ncivilian agents presently authorized by that regulation, to request from federal\nmagistrates search warrants to investigate violations of the Uniform Code of\nMilitary Justice (UCMJ), 10 U .S.C . \xc2\xa7 801-940.\nSection 60.2(g) was codified in 1979, pursuant to Attorney General Order No.\n826-79, which revised the catalogue of officials authorized to request search\nwarrants under Rule 41 of the Federal Rules of Criminal Procedure to include\n\xe2\x80\x9c [a]ny civilian agent of the Department of Defense who is authorized to enforce\nthe Uniform Code of Military Justice\xe2\x80\x9d (UCMJ). Attorney General Order No.\n826-79, 44 Fed. Reg. 21785 (1979). The order was issued in response to a\nrequest by the Department of Defense for designation of civilian agents of the\nDefense Investigative Service, Army Criminal Investigation Command, Naval\nInvestigative Service, and Air Force Office of Special Investigations as persons\nempowered to obtain search warrants under Rule 41 when they are otherwise\n\xe2\x80\x9cauthorized to enforce laws of the United States.\xe2\x80\x9d2\nAt the time that the order was under consideration, the Department\xe2\x80\x99s initial\nconcern was whether the grant of such authority to agents of the military\ndepartments would violate the Posse Comitatus Act, 18 U.S.C. \xc2\xa7 1385, which\ngenerally prohibits the use of military personnel for civilian law enforcement\npurposes.3 This concern was quickly eliminated in view of the Act\xe2\x80\x99s explicit\nexception from its prohibition of those \xe2\x80\x9ccases and . . . circumstances\xe2\x80\x9d in which\nthe use of the military is \xe2\x80\x9cexpressly authorized by the Constitution or Act of\nCongress.\xe2\x80\x9d Because 10 U.S.C. \xc2\xa7\xc2\xa7 802, 807, 816-26 and 846-474 expressly\nauthorize the Armed Forces to enforce the UCMJ, we concluded that the Posse\nComitatus Act posed no impediment to military requests for, and execution of,\nsearch warrants for that purpose.5 Because DOD\xe2\x80\x99s original request for warrant\nauthority was with respect to civilian DOD agents only, this Office did not\nconsider whether there existed any potential legal impediments to the exercise of\nsuch authority by military DOD agents.\nIn considering DOD\xe2\x80\x99s request that \xc2\xa7 60.2(g) be expanded \xe2\x80\x9cto include all DOD\ninvestigators, regardless of whether they are military or civilian, in the enforce\xc2\xad\n2 See H ammond, Deputy Assistant Attorney General, Office o f Legal Counsel, \xe2\x80\x9cMemorandum for Philip B.\nHeymann, Assistant Attorney G eneral, Criminal Division, re. Authority of Department of Defense Civilian Agents\nto Obtain Search W arrants\'\xe2\x80\x99 (Nov. 16, 1978); H annon, Assistant Attorney General, Office of Legal Counsel,\n\xe2\x80\x9cM emorandum for Philip Heymann, Assistant Attorney G eneral, Criminal Division, re: Department of Defense\nRequest to A mend Attorney General Order 5 1 0 -7 3 \xe2\x80\x9d (Sept. 11, 1978).\n3 The Posse Comitatus Act provides that\n[wjhoever, except in cases and under circumstances expressly authorized by the Constitution or\nAct o f C ongress, willfully uses any part o f the Army o r the Air Force as a posse comitatus or\notherwise to execute the laws shall be fined not more than $10,000 or imprisoned not more than two\nyears, or both.\n18 U .S C. \xc2\xa7 1385. See generally Note, The Posse Comitatus Act: Reconstruction Politics Reconsidered, 13 Am\nCrim. L Rev. 703 (1976); M eeks, Illegal Law Enforcement \xe2\x96\xa0Aiding Civil Authorities in Violation c f the Posse\nComitatus Act, 70 Mil. L. Rev. 83 (1975)\n4 These sections set forth the arrest and apprehension procedures for persons subject to the Code and procedures\nfor courts-martial\n5 See H ammond, \xe2\x80\x9cM emorandum for Philip B . Heymann\xe2\x80\x9d (Nov. 16, 1978), supra; Harmon, \xe2\x80\x9cMemorandum for\nPhilip Heymann" (Sept. 11, 1978), supra.\n\n568\n\n\x0cment of the Uniform Code of Military Justice,\xe2\x80\x9d6 we were confronted by two\nissues: first, whether the Posse Comitatus Act would bar the extension of\n\xc2\xa7 60.2(g) to military investigators engaged in the enforcement of the UCMJ even\nthough it would not bar such activity by civilian employees of DOD; and, second,\nwhether Rule 41 of the Federal Rules of Criminal Procedure authorizes United\nStates magistrates to issue search warrants in aid of the enforcement of the\nUCMJ. We conclude that the exception contained in the Posse Comitatus Act\npermitting the Armed Forces to enforce the UCMJ encompasses military as well\nas civilian DOD investigators, and that DOD investigators may be authorized by\nthe Attorney General to seek search warrants from United States magistrates,\npursuant to Rule 41, for the enforcement of the UCMJ.7\nNevertheless, although we conclude that no legal impediments exist to grant\xc2\xad\ning DOD\xe2\x80\x99s request for expanded authority under \xc2\xa7 60.2(g), there well may exist\npolicy reasons for the Attorney General, in the exercise of his discretion under\nRule 41(h), to deny this authority. This memorandum is therefore being for\xc2\xad\nwarded to you through the Assistant Attorney General in charge of the Criminal\nDivision for any comments that that Division may have on this policy issue.\n\nI. The Posse Comitatus Act\nAs indicated above, the Posse Comitatus Act excepts from its general prohibi\xc2\xad\ntion against the use of military personnel for law enforcement purposes those\n\xe2\x80\x9ccases and . . . circumstances\xe2\x80\x9d in which the use of the military is \xe2\x80\x9cexpressly\nauthorized by the Constitution or Act of Congress.\xe2\x80\x9d 18U.S.C. \xc2\xa7 1385. We relied\non this exception\xe2\x80\x94 as applied to the military\xe2\x80\x99s statutory authorization to enforce\nthe UCMJ\xe2\x80\x94 when we made our original determination, regarding Attorney\nGeneral Order No. 826-79, that the Posse Comitatus Act would not prohibit the\ninvolvement of civilian DOD agents in military law enforcement activities even\nthough such agents may be subject generally to military control. Although DOD\ndid not request our opinion at that time regarding the impact of the Posse\nComitatus Act on the involvement of military agents in the enforcement of the\nUCMJ, the statutory authorizations for law enforcement activities contained in\nthe UCMJ do not distinguish between military and civilian agents of the Depart\xc2\xad\nment of Defense. See, e.g., 10 U.S.C. \xc2\xa7 807; Manual for Courts-Martial (1969\nRev. ed.) 11 19. Indeed, the concerns which gave rise to the Posse Comitatus Act,\nenacted in 1878, involved the perceived potential for abuse in circumstances\nwhere persons subject to military law and discipline\xe2\x80\x94 who, because of their\nhigher duty to obey orders without question, were thought to be less sensitive to\nlegal restraints and constitutional rights\xe2\x80\x94 might become involved in civilian law\nenforcement.8 However, there was never any question of the propriety of military\n6 Rushforth, Assistant General Counsel for Intelligence, International and Investigative Programs, Department\nof Defense, Letter to John Hannon (Dec. 7, 1979)\n7 We note that the regulatory provision pursuant to which DOD seeks warrant authority requires that, except for\n\xe2\x80\x9cin the very rare and emergent case,\xe2\x80\x9d the agent seeking a search warrant obtain the concurrence of the appropriate\nUnited States Attorney\'s Office. See 28 C F R . \xc2\xa7 60 1 (1981).\n8 See. e g , 7 Cong Rec 3581, 3678-79, 4240-4247 (1878). See generally Lawton, Deputy Assistant Attorney\nGeneral, Office o f Legal Counsel, Letter to General Counsel, Department of Defense (M ar 24, 1978).\n\n569\n\n\x0cpersonnel engaging in military law enforcement activities\xe2\x80\x94 i.e., enforcing the\nUCMJ against those who are subject to the UCMJ. To the contrary, Congress\nspecifically so provided. See, e. g. , 10 U.S.C. \xc2\xa7\xc2\xa7 802, 807, 816-26, 846-47.\nThus, the same statutory exceptions to the Posse Comitatus Act which permitted\nus to make our initial determination that civilian investigators could lawfully\nengage in UCMJ law enforcement activities would also support a similar deter\xc2\xad\nmination regarding military investigators.\n\nII. Rule 41 Authority to Issue Search W arrants to Enforce the UCMJ\nRule 41 authorizes \xe2\x80\x9cfederal magistrate[s] [and] judge[s] of . . . state court[s]\nof record,\xe2\x80\x9d having jurisdiction over the property to be searched, to issue search\nwarrants upon the request of a federal law enforcement officer, defined as \xe2\x80\x9cany\ngovernment agent . . . who is engaged in the enforcement of the criminal laws\nand is within any category of officers authorized by the Attorney General to\nrequest the issuance of a search warrant.\xe2\x80\x9d Fed. R. Crim. R 41(a), (h). Subsection\n(c) provides that the warrant \xe2\x80\x9cshall be directed to a civil officer of the United\nStates authorized to enforce or assist in enforcing any law thereof or to a person so\nauthorized by the President of the United States.\xe2\x80\x9d Rule 41 was promulgated\npursuant to 18 U .S.C . \xc2\xa7 3771, which authorizes the Supreme Court to:\nprescribe, from time to time, rules of pleading, practice, and\nprocedure with respect to any or all proceedings . . . in criminal\ncases and proceedings to punish for criminal contempt of court in\nthe United States district courts . . . and in proceedings before\nUnited States magistrates.\nTwo lines of inquiry are suggested by the language of Rule 41 as relevant to our\nconsideration of whether DOD investigators\xe2\x80\x94 whether military or civilian\xe2\x80\x94 may\nrequest search warrants before United States magistrates. One inquiry is whether\nmilitary and civilian investigators engaged in enforcement of the UCMJ may be\nregarded as \xe2\x80\x9cfederal law enforcement officers\xe2\x80\x9d for purposes of Rule 41; the other\ninquiry is whether there is power under Rule 41 to issue search warrants in aid of\nenforcement of the UCMJ.\nA. D O D Investigators as \xe2\x80\x9cFederal Law Enforcement Officers\xe2\x80\x9d\n\nThe first line of inquiry involves a determination whether DOD investigators\nengaged in the enforcement of the UCMJ may be regarded as \xe2\x80\x9cfederal law\nenforcement officers\xe2\x80\x9d within the scope of Rule 41. As noted above, subsection\n(h) of Rule 41 defines \xe2\x80\x9cfederal law enforcement officer\xe2\x80\x9d as a government agent\nwho is both \xe2\x80\x9cengaged in the enforcement of the criminal laws\xe2\x80\x9d and \xe2\x80\x9cauthorized\nby the Attorney General to request the issuance of a search warrant.\xe2\x80\x9d Without\nregard to the latter condition, which the Attorney General may, in the exercise of\nhis discretion, provide, the focus of this inquiry is whether agents engaged in the\n570\n\n\x0cenforcement of the UCMJ are \xe2\x80\x9cengaged in the enforcement of the criminal laws\xe2\x80\x9d\nas contemplated by Rule 41.\nWe begin our analysis by noting that many offenses which are violations of the\nUCMJ also constitute violations of Title 18, the federal criminal code,9 or have\ncounterparts in the civilian criminal laws enforced by the States.10 In addition,\nArticle 134 incorporates \xe2\x80\x9call . . . crimes and offenses not capital . . . [t]hough\nnot specifically mentioned\xe2\x80\x9d in the Code as violations of the UCMJ. Such offenses\nare no less \xe2\x80\x9ccriminal\xe2\x80\x9d because they are punishable by courts-martial rather than\nin criminal proceedings in federal or state courts. See generally O \xe2\x80\x99Callahan v.\nParker, 395 U.S. 258 (1969); Grafton v. United States, 206 U.S. 333 (1907);\nUnited States v. Trottier, 9 M.J. 337 (U.S.C.M .A. 1980); United States v.\nHarris, 8 M.J. 52 (U.S.C.M .A. 1979). Moreover, even those offenses which are\npurely military and would not be punishable as crimes in civilian courts" are\nconsidered by both civilian courts and military courts to be \xe2\x80\x9ccrimes\xe2\x80\x9d punishable\nby courts-martial. See generally O \xe2\x80\x99Callahan v. Parker, 395 U.S. at 265-66\n(\xe2\x80\x9cArticle 134 . . . punishes as a crime \xe2\x80\x98all disorders and neglects to the prejudice\nof good order and discipline in the armed forces.\xe2\x80\x99 \xe2\x80\x9d) (emphasis added); United\nStates v. Levy, 39 C .M .R . 672 (1968); petition for review denied, 18\nU.S.C.M .A. 627 (1969) (petitioner also filed several habeas petitions in the\ncivilian courts, culminating in Parker v. Levy, 417 U.S. 733 (1974)).12\nSecondly, examination of the legislative history of the UCMJ leads to the\nconclusion that the drafters envisioned the punitive articles of the Code as\nconstituting criminal offenses. In the 1949 hearings before a subcommittee of the\nHouse Committee on Armed Services, the chairman of the Committee\xe2\x80\x99s working\ngroup which drafted the Code described the Committee\xe2\x80\x99s efforts to reconcile the\nvarious definitions of the punitive offenses used by the military services in their\nrespective service manuals, and noted that the Committee tried to pattern the\nCode after modem state penal codes. See Uniform Code c f M ilitary Justice:\nHearings on H. R. 2498 Before Subcomm. No. 1 cf the House Comm, on Armed\nServices, 81st Cong., 1st Sess., at 1237\xe2\x80\x9441 (1949). See also H.R. Rep. No. 491,\n\n81st Cong., 1st Sess. (1949); S. Rep. No. 486, 81st Cong., 1st Sess. (1949).\nThroughout these hearings and reports, the punitive articles, including the\n9 See, e.g , Art. 81 (\xc2\xa7 371) (conspiracy to defraud or commit offense against the United States); Art. 88 (\xc2\xa7 871)\n(threats against the President), Art. 90 (\xc2\xa7 111) (assaulting certain officers), Art. 94 (\xc2\xa7 2193) (revolt or mutiny of\nseamen). See also Art. 95 (\xc2\xa7\xc2\xa7 751-2); Art. 96 (\xc2\xa7 755), Art 104 (\xc2\xa7\xc2\xa7 794, 798), Art. 106 (\xc2\xa7 794(b)); Art. 107\n(\xc2\xa7 1001); Art. 116(\xc2\xa7 2101); Art. 118(\xc2\xa7 1111); Art. 119(\xc2\xa7 1112); Art 120(\xc2\xa7\xc2\xa7 2031-2), Art. 121 (\xc2\xa7\xc2\xa7 641,661);\nArt. 122 (\xc2\xa7 2111-12); Art. 124 (\xc2\xa7 114); Art 126 (\xc2\xa7 81), Art. 128 (\xc2\xa7 113); Art. 131 (\xc2\xa7 1621), and A ft. 132\n(\xc2\xa7\xc2\xa7 1002, 1003, 1025)\n10 See, e g , A it 118 (murder); Art. 119 (manslaughter); Art 120(rape), A rt 121 (larceny); Art. 123 (forgery),\nand Art. 128 (assault).\n11 See. e.g.. Art. 83 (fraudulent enlistment), Art. 85 (desertion); Art. 86 (absent without leave). Art. 87 (missing\nmovement); Art. 89 (disrespect toward superior commissioned officer), Art. 113 (misbehavior of a sentinel); Art.\n117 (provoking speeches and gestures); Art 133 (conduct unbecoming an officer and a gentleman).\n12 See also 1 W. Winthrop, Military Law and Precedents 107-08 (2d ed. 1920)\'\n[TJhe specific military offenses may be divided into (1) those which are purely military and (2) those\nwhich are also crimes at the civil law\n. But in regard to these two forms of offenses it is to be\nobserved that all are criminal and all military\xe2\x80\x94 criminal because the jurisdiction of courts-martial is\ncriminal only; military because all offenses of officers and soldiers cognizable by courts-martial are\nnecessarily military offenses\n\n571\n\n\x0cgeneral articles 133 and 134, were referred to as \xe2\x80\x9ccrimes.\xe2\x80\x9d Id. From these reports\nit seems fairly clear that Congress\xe2\x80\x99 intent in enacting the UCMJ was the passage\nof a code by which the military could maintain the high level of discipline and\norder which is so necessary to its proper functioning, infractions of which would\nconstitute criminal offenses.13\nThe Supreme Court\xe2\x80\x99s pronouncements in Parker v. Levy, 417 U.S. 733, 749\n(1974), and M iddendorf v. Henry, 425 U.S. 25, 34 (1976), that \xe2\x80\x9cthe UCMJ\ncannot be equated to a criminal code,\xe2\x80\x9d and that a summary court-martial is not a\n\xe2\x80\x9c \xe2\x80\x98criminal prosecution\xe2\x80\x99 within the meaning of the Sixth Amendment\xe2\x80\x9d do not\ndeter us from our conclusion that the enforcement of the UCMJ constitutes\n\xe2\x80\x9cenforcement of the criminal laws\xe2\x80\x9d within the purview of Rule 41. Those\npronouncements were made by the Court in the context of challenges to the\nconstitutionality of particular provisions of the Code,14and certain aspects of the\nsummary court-martial procedures,15 and not to the \xe2\x80\x9ccriminal\xe2\x80\x9d nature of the\npunitive articles of the Code for purposes of securing warrant authority.\nAn issue related to the authority of DOD agents to request search warrants\nunder Rule 41 concerns the apparent limitation contained in subsection (h)\nregarding who may execute the warrant. Subsection (c) provides that warrants\nissued pursuant to Rule 41 \xe2\x80\x9cshall be directed to a civil officer of the United States\nauthorized to enforce or assist in enforcing any law thereof or to a person so\nauthorized by the President of the United States.\xe2\x80\x9d (Emphasis added.) While we\n13 In a memorandum to the Assistant Attorney General of this Office dated Apnl 17, 1980 at pp 2 -3 , the\nAssociate Genera! Counsel of DOD pointed out numerous other indicia of the UCMJ\xe2\x80\x99s character as a code of\n\xe2\x80\x9ccrim inal\xe2\x80\x9d laws.\nThe Congress has provided that persons convicted by courts-martial are to be treated as other\nconvicted felons and denied the right to receive Government annuities or retirement pay (5 U.S C\n\xc2\xa7 8312). The executive branch of the Federal Government also recognized lhat the UCMJ is a\n\xe2\x80\x9ccriminal code\xe2\x80\x9d when (he Rules Governing Petitions for Executive Clemency were promulgated in\nO cto b ero f 1962. 28C .F.R \xc2\xa7 1.1 These rules deal with convictions both in federal criminal courts\nand military courts-martial where persons convicted in these tribunals seek to be pardoned by the\nPresident In addition, a large percentage of states treat convictions by courts-martial as a federal\nconviction for purposes of denying the right to vote in general elections. (AFP 211-4)\nIn the context o f \xe2\x80\x9csearch and seizure,\xe2\x80\x9d th e UCMJ constitutes a body of \xe2\x80\x9ccriminal laws,\xe2\x80\x9d subjecting\nthe enforcers thereof to the potential sanction o f the exclusionary rule should they violate the Fourth\nAmendment s proscription against unreasonable searches and seizures. See United States v Fimmano. 8 M J 197 (C.M A. 1980). U nited States v Ezell, 6 M J 307 (C M A 1979)\n. . [In\naddition, the Department of Justice] has promulgated a regulation that provides for the operation of\ninteragency criminal information exchange systems entitled \xe2\x80\x9cCriminal Justice Information Sys\xc2\xad\ntems \xe2\x80\x9d 28 C F R Part 20. All arrests for violations of the punitive articles of the UCMJ. even those\nwith no civilian counterpart, are routinely reported to the DOJ for inclusion in the individual\'s\ncriminal record.\nIndeed, DOJ treats the purely military offense of AWOL as a felony and\nauthorizes their law enforcement officials to arrest and detain [any] AWOL suspect without a warrant\nand without the suspect having committed any offense in the presence of the arresting officer.\n14 In Parker v. Levy. 417 U .S. at 749, the C ourt upheld Articles 133 (10 U.S C \xc2\xa7 933, which punishes a\ncommissioned officer for \xe2\x80\x9cconduct unbecoming an officer and a gentleman\xe2\x80\x9d) and 134 (10 U S.C. \xc2\xa7 934, which\npunishes any person subject to the Code for, inter alia, \xe2\x80\x9call disorders and neglects to the prejudice of good order and\ndiscipline in the armed forces\xe2\x80\x9d) against First and Fifth Amendment challenges that those provisions were overbroad\nand unconstitutionally vague in violation of the Due Process Clause, observing that, because of the peculiar\nexigencies of the military community, the UCMJ regulates "a far broader range of the conduct of military personnel\nthan a typical state criminal code regulates of the conduct of civilians \xe2\x80\x9d Id. at 750.\n|S In M iddendorf v. Henry, 425 U S. at 38. the C ourt held that the Sixth Amendment right to counsel did not attach\nin summary court-m artial proceedings because such proceedings are sufficiently distinct from \xe2\x80\x9ctraditional civilian\ncriminal trialfsj\xe2\x80\x9d as to fall outside the scopc of \xe2\x80\x9ccriminal proceeding.\xe2\x80\x9d as contemplated by the Sixth Amendment.\n\n572\n\n\x0chave no doubt that \xe2\x80\x9ccivil officer\xe2\x80\x9d in this context means \xe2\x80\x9cnonmilitary officer,\xe2\x80\x9d 16we\ndo believe that military and civilian investigators engaged in the enforcement of\nthe UCMJ are persons \xe2\x80\x9cauthorized by the President\xe2\x80\x9d \xe2\x80\x9cto enforce or assist in\nenforcing\xe2\x80\x9d the laws of the United States, so as to come within the limitation\ncontained in subsection (h) setting forth to whom warrants under Rule 41\nproperly may be issued.\nParagraph 19a of Manual for Courts-Martial (Rev. ed. 1969), E.O. 11476\n(June 19, 1969) 34 Fed. Reg. 10503, which authorizes \xe2\x80\x9c[a]ll commissioned\nofficers, warrant officers, petty officers, noncommissioned officers, and, when in\nthe execution of their . . . police duties, Air Force security police, military\npolice, members of the shore patrol, and such persons as are designated by proper\nauthority to perform . . . police duties, including duties as criminal inves\xc2\xad\ntigators" to enforce the UCMJ by apprehending persons reasonably believed to\nhave violated the Code, provides the requisite presidential authority (emphasis\nadded). As no serious question can be raised regarding the UCMJ\xe2\x80\x99s status as\n\xe2\x80\x9claw[s] of the United States,\xe2\x80\x9d we believe that DOD investigators, both military\nand civilian, are entitled to receive civilian search warrants upon proper applica\xc2\xad\ntion pursuant to Rule 41.\nB. United States M agistrates\xe2\x80\x99 Authority to Issue Warrants to DOD Agents\n\nThe second line of inquiry concerns the authority of United States magistrates\nto issue search warrants pursuant to Rule 41 for the enforcement of the UCMJ.\nThe prerequisites for a magistrate\xe2\x80\x99s or court\xe2\x80\x99s issuance of a lawful search warrant\nare: (1) that the court have jurisdiction over the place to be searched; (2) that the\nwarrant is based on probable cause to believe that the items to be searched for will\nbe found on the premises; and (3) that the warrant specify with particularity the\nitems or physical effects to be obtained. See generally 8A Moore\xe2\x80\x99s Federal\nPractice 11 41.02 (2d ed. 1981). There is no requirement that the offenses for\nwhich evidence is sought with warrants issued pursuant to Rule 41 be violations\nof Title 18 of the United States Code\xe2\x80\x94 it is sufficient that, once probable cause is\nestablished by a federal law enforcement officer, as required by Rule 41(a), the\nissuing authority have territorial jurisdiction over the place to be searched. See\nUnited States v. Strother, 578 F.2d 397 (D.C. Cir. 1978). Thus, while the needs of\n16 Prior lo the promulgation of Rule 41, the statutory provision governing search warrants authorized the issuance\nof warrants "to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or\nto a person so duly authorized by the President of the United States \xe2\x80\x99\xe2\x80\x99Title XI of the Espionage Act of June 15. 1917,\nch 30. 40 Stat 217, 229. The legislative history reflects that, as referred to the Senate Committee on the Judiciary,\nthe Espionage Act expressly permitted the issuance of warrants to military or naval officers as well as civil officers\nand persons authonzed by the President to enforce the laws The Senate accepted an amendment by the Committee\ndeleting the inclusion of military or naval officers from the classes of persons eligible to execute warrants, but added\na proviso permitting the issuance of warrants to naval or military officers tn time of war. 55 Cong Rec 1866 (1917)\nThat proviso was deleted without explanation when the search warrant section was completely rewritten in\nconference H .R. C onf Rep. No. 69, 65th Cong , 1st Sess. 14, 20 (1917)\nIn construing this provision, the Supreme Court has held that the term \xe2\x80\x9ccivil officer\xe2\x80\x9d was intended by Congress to\nbe a limitation \xe2\x80\x9cthat the person designated shall be a civil and not a military agent of the government " Steele v.\nUnited States, 267 U .S. 498, 507 (1925) See also United Stales v. Pennington, 635 F.2d 1387 ( 10th Cir. 1980).\n\n573\n\n\x0cDOD investigators to search persons subject to the Code and premises under\nmilitary control are met by \xe2\x80\x9csearch authorizations\xe2\x80\x9d issued by military command\xc2\xad\ners or judges, their needs to search private dwellings or other premises beyond the\nmilitary\xe2\x80\x99s jurisdiction for evidence of UCMJ violations can only be met by their\nobtaining the authority to conduct such searches from civilian judicial au\xc2\xad\nthorities, whether state or federal. If the civilian authorities are federal, the\nproper procedure for obtaining search authority is that which is set out in Rule 41.\nAs circumstances presently exist, DOD investigators may obtain \xe2\x80\x9cauthoriza\xc2\xad\ntions to search\xe2\x80\x9d from military commanders or their delegees, judges, or magis\xc2\xad\ntrates upon a showing of probable cause to conduct searches of persons subject to\nmilitary law, military property, persons, and property within military control, or\nnonmilitary federal property within a foreign country. Rule 315 of the Military\nRules of Evidence, Manual for Courts-Martial (Rev. ed. 1969, as amended by\nExec. Order No. 12198, Mar. 12, 1980,45 Fed. Reg. 16932,16953). Toconduct\ninvestigations beyond the jurisdiction of these military \xe2\x80\x9cauthorizations to\nsearch,\xe2\x80\x9d DOD military agents under a military chain of command must now\nenlist the aid of civilian federal investigative agencies to obtain and execute\ncivilian search warrants on their behalf. See Letter from Associate General\nCounsel, DOD to Assistant Attorney General, Office of Legal Counsel (April 17,\n1980), supra. In contrast, civilian agents of the DOD, by virtue of Attorney\nGeneral Order No. 826-79, now may seek directly from U.S. magistrates, with\nthe concurrence of the local United States Attorney\xe2\x80\x99s office and pursuant to Rule\n41, search warrants for the enforcement of the UCMJ. Although military agents\nand, prior to 1979, civilian DOD agents, are completely dependent upon a\ndetermination by civilian agencies to expend time and human resources to\nobtain, and in some cases, execute warrants for investigation of offenses over\nwhich they exercise no particular law enforcement responsibilities or otherwise\nhave very little interest, the fact remains that without regard to whether the\nwarrant is ultimately issued to military or civilian investigators, DOD agents or\nAssistant U.S. Attorneys, United States magistrates have been exercising their\nauthority properly under Rule 41 to issue search warrants for the enforcement of\nthe UCMJ.\nThe use of civilian search warrants in military investigations has been con\xc2\xad\ntemplated at least since the 1909 Articles of War, Art. 106 of which provided for\ncivilian apprehension of military deserters. See 35 Stat. 622 (1909); 34 U.S.C.\n\xc2\xa7 1011 (1946), and the present-day Art. 8, 10 U .S.C. \xc2\xa7 808 (1976). In addition,\nthe Military Rules of Evidence, recently amended by E.O. 12198 (March 12,\n1980), specifically define \xe2\x80\x9csearch warrant\xe2\x80\x9d as permission to search and seize\nissued by \xe2\x80\x9ccompetent civilian authority.\xe2\x80\x9d See Rule 315(b)(2). Were such use not\ncontemplated, there would exist a gap between investigations for which the\nmilitary courts and commanders had authority to order searches and those over\nwhich civilian courts exercised jurisdiction, into which would fall a rather large\nnumber o f military investigations o f UCMJ offenses for which crucial evidence is\nlodged off-base. Such an occurrence was evidently not within the contemplation\nof Congress (in placing no \xe2\x80\x9ccivilian\xe2\x80\x9d limitations on Rule 41), the President (in\n574\n\n\x0cissuing the Manual for Courts-Martial), the military courts, or indeed, the\nSupreme C ourt.17\n\nIII. Policy Considerations\nWhile we do not believe that any purely legal problems are presented by\nDOD\xe2\x80\x99s request that military agents be granted the authority, under \xc2\xa7 60.2(g), to\nseek and execute Rule 41 search warrants directly, we believe that the appropri\xc2\xad\nateness of such authority and its implications, as a policy matter, should be\nexamined carefully before a decision to grant DOD\xe2\x80\x99s request is made. For\nexample, a primary area of concern might be whether adequate safeguards exist\nto protect the privacy interests of civilians, whose, premises could be searched as\na subject of third-party searches by military agents for evidence of UCMJ\nviolations by persons subject to the Code. Although this situation does not raise\nPosse Comitatus Act problems of military involvement in civilian law enforce\xc2\xad\nment, the concerns which gave rise to the proscriptions contained in the 1878 Act\ncould be raised as potentially legitimate concerns today.\nThis concern, however, may be more abstract than real. The practical dif\xc2\xad\nference made by granting military agents \xc2\xa7 60.2(g) authority is arguably negligi\xc2\xad\nble. Without \xc2\xa7 60.2(g) authority, a military agent must now find a civilian law\nenforcement officer to accompany him to the courthouse and officially request\nthe search warrant on his behalf. It is not clear whether warrants obtained in this\nmanner also require civilian execution, although DOD has informed us that once\nthe warrant has been obtained, military investigative agents do execute the\nwarrant, unaccompanied by civilians. With \xc2\xa7 60.2(g) authority, military agents,\nlike their civilian counterparts, may, upon obtaining the concurrence of the\nappropriate United States Attorney\xe2\x80\x99s office, go to the courthouse, unaccom\xc2\xad\npanied by a civilian law enforcement officer, to request search warrants which\nthey may execute during the course of their investigations. Thus, assuming that\nmilitary agents already have been executing search warrants obtained for their\ninvestigations, the only practical difference that designating military agents\nunder \xc2\xa7 60.2 would make is that military agents would no longer have to wait for\ncivilian law enforcement authorities to physically accompany them to the\ncourthouse. Such designation would not, except for \xe2\x80\x9cin the very rare and\nemergent case,\xe2\x80\x9d relieve the agent of the responsibility under \xc2\xa7 60.1 to obtain\napproval from civilian authorities before seeking the warrant.\nIn addition, with respect to third-party searches, the Attorney General\xe2\x80\x99s\nguidelines promulgated pursuant to the Privacy Protection Act of 1980, 42\nU.S.C. \xc2\xa7 2000aa, so severely restrict the propriety and scope of third-party\nsearches as to minimize substantially the concerns expressed above regarding\nmilitary searches of civilian premises. See 28 C.F.R. \xc2\xa7 59 (1981). The guidelines\n17 See statement of facts in Schlesitxger v. Councilman, 420 U S. 738, 741 (1975), in which the Court recounts the\napprehension of a military defendant by civilian law enforcement authorities who, based on probable cause\nestablished by military investigations, searched defendant\'s off-post apartment and found illegal drugs Defendant\nwas then turned over to military authorities for prosecution under the UCMJ.\n\n575\n\n\x0cestablish strict criteria and procedural requirements which must be met before a\nsearch warrant may be used to obtain documentary evidence held by disinterested\nthird parties. Nevertheless, the guidelines would not apply in circumstances\nwhere the \xe2\x80\x9cthird-party\xe2\x80\x9d civilian is a participant in the criminal activity, or is\nbelieved by the investigator to have reason to harbor or protect the alleged\noffender. Nor would the guidelines apply to \xe2\x80\x9ccontraband, the fruits or instrumen\xc2\xad\ntalities of a crime, or things otherwise criminally possessed,\xe2\x80\x9d 18 such as drugs\xe2\x80\x94\nthe detection of which, and subsequent prosecution of military offenders, is a\nvery high priority for DOD investigators. Thus, the impact of these guidelines on\nmilitary investigations remains to be determined.\n\nIV. Conclusion\nFor the reasons stated above, we have concluded that there are no legal\nimpediments to granting DOD\xe2\x80\x99s request to include military agents among the list\nof law enforcement officers in \xc2\xa7 60.2 who are authorized to request search\nwarrants pursuant to Rule 41. We would add that, in view of some of the issues\nraised in part III above, the policy implications of such authority should be\nexplored further.\nT h eo d o r e B . O lso n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n,BSee 28 C.F.R. \xc2\xa7 59 2(c).\n\n576\n\n\x0c'


b'A pril 6, 1977\n\n77-18\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nApplication of the Hatch Act to the Vice President\xe2\x80\x99s\nStaff\n\nIn a previous memorandum to the President\xe2\x80\x99s Counsel regarding\npolitical trips, we indicated that the exception in 5 U.S.C. \xc2\xa7 7324(d)(1)\nfor employees paid \xe2\x80\x9cfrom the appropriation for the Office of the Presi\xc2\xad\ndent\xe2\x80\x9d did not apply to persons paid from the separate line item in the\nExecutive Office Appropriation Act of 1977 for \xe2\x80\x9cexpenses necessary to\nenable the Vice President to provide assistance to the President in\nconnection with specially assigned functions.\xe2\x80\x9d When our Office con\xc2\xad\ntacted the Hatch Act section of the General Counsel\xe2\x80\x99s Office at the\nCivil Service Commission, we were informed that the issue of the\napplication of the Hatch A ct to the Vice President\xe2\x80\x99s staff had apparent\xc2\xad\nly not arisen before. Because the Civil Service Commission had no\nofficial views on the subject, we conducted our own study of the\nquestion and concluded on the basis of the legislative history of both\nthe Hatch A ct and the Appropriation A ct that the Vice President\xe2\x80\x99s\nOffice was covered.\nW e read a copy of a letter written by a former Civil Service Com\xc2\xad\nmission General Counsel, stating that his Office \xe2\x80\x9chas interpreted the\nlanguage found in 5 U.S.C. \xc2\xa7 7324(d)(1) to be applicable to employees\npaid from the appropriation for the White House Office or from appro\xc2\xad\npriations made to provide assistance to the President in connection with\nspecial functions or projects.\xe2\x80\x9d On this basis, and without further discus\xc2\xad\nsion, it was concluded that the Vice President\xe2\x80\x99s Special Counsel was\nexempt. We do not believe this conclusion is consistent with the origi\xc2\xad\nnal intent of the Hatch Act.\nT he predecessor of 5 U.S.C. \xc2\xa7 7324(d) was introduced in 1939 in the\nHouse as a floor amendment to be substituted for the original \xc2\xa7 9 of the\n\n54\n\n\x0cHatch bill, S. 1871. 84 Cong. Rec. 9625.1 In introducing the amend\xc2\xad\nment, Representative Dempsey explained that its purpose was to allow\nthe President, the Vice President, and other policymaking officials to\ndefend their actions in public. 84 Cong. Rec. 9626; see, id. at 9630. To\nserve this purpose, he continued, \xe2\x80\x9cthe amendment . . . clearly\nexempts . . . the staff of the President and those who obtain their\nsalaries from the appropriation made for White House purposes.\xe2\x80\x9d Id.\nAt the time of the enactment of the Hatch Act in 1939, the appropri\xc2\xad\nation for the \xe2\x80\x9cOffice of the President,\xe2\x80\x9d which provided for \xe2\x80\x9cpersonal\nservices in the office of the President,\xe2\x80\x9d was the only appropriation for\npersonnel under the heading \xe2\x80\x9cExecutive Office.\xe2\x80\x9d 2 Later that year the\nExecutive Office of the President was established, and the Bureau of\nthe Budget and other agencies were transferred to it.3 To reflect the\nchange in organization, the next Appropriation Act carried a general\nheading for \xe2\x80\x9cExecutive Office of the President.\xe2\x80\x9d Instead of \xe2\x80\x9cOffice of\nthe President,\xe2\x80\x9d the item covering \xe2\x80\x9cpersonal services\xe2\x80\x9d was entitled\n\xe2\x80\x9cWhite House Office.\xe2\x80\x9d 4 With changes in form, the appropriation for\nthe President\xe2\x80\x99s personal staff has been carried under this item since\nthen.5\nIn other words, the current item for the \xe2\x80\x9cWhite House Office\xe2\x80\x9d is the\nlineal descendant of the only appropriation for Presidential staff that\nexisted when the Hatch Act was passed. As new functions and agencies\nhave been added to the Executive Office of the President, this item has\ncontinued as the source of the salaries of the inner circle of personal\n\'I n pertinent part, the amendm ent, as enacted in 1939, reads:\nF o r the purposes o f this section the term \xe2\x80\x9cofficer o r em ployee\xe2\x80\x9d shall not be c o n \xc2\xad\nstrued to include (1) the President or Vice President of the United States; (2) persons\nw hose com pensation is paid from the appropriation for the office o f the President; (3)\nheads and assistant heads o f executive departm ents; (4) officers w ho are appointed by\nthe President with the advice and consent o f the Senate, and who determ ine policies\nto be pursued by the United States in its relations w ith foreign pow ers or in the\nN ation-w ide adm inistration o f Federal laws. 53 Stat. 1148.\nC lause (1) has since been stricken as unnecessary. See 5 U.S.C. \xc2\xa7 7324, H istorical and\nRevision Note.\n2 T h e item for \xe2\x80\x9cOffice o f the President\xe2\x80\x9d read:\nSalaries: F o r personal services in the office o f the President, including the S ecretary\nto the President, and tw o additional secretaries to the President at $10,000 each:\n$136,500: Provided, that employees o f the executive departm ents and o th er establish\xc2\xad\nm ents o f the governm ent may be detailed from time to time to the office o f the\nPresident o f the U nited States for such tem porary assistance as m ay be deem ed\nnecessary. 53 Stat. 524.\n3 Reorganization Plan No. 1 o f 1939, 53 Stat. 1423. T he Plan does not m ention the\nO ffice o f the President o r the W hite H ouse Office.\n4 Independent Offices A ppropriation A ct o f 1941, 54 Stat. 112. Except for an additional\nauthorization for six adm inistrative assistants, the language was identical to the p rior act.\nT h e President\xe2\x80\x99s message supporting the reorganization plan, the legislative response to the\nplan, and the legislative history o f the A ppropriation A ct do not discuss the change.\n5T h e current item reads:\nF o r expenses necessary for the W hite H ouse office as authorized by law, including\nnot to exceed $3,850,000 for . . . o ther personal services w ithout regard to the\nprovisions o f law regulating the em ploym ent and com pensation o f persons in the\nG overnm ent service; . .\nExecutive Office A ppropriation A ct o f 1977., Pub. L.\nNo. 94-363, 90 Stat. 966.\n\n55\n\n\x0cadvisers to the President. It is this group of advisers, assistants, and\nspeech writers whom the sponsor of the exemption viewed as adjuncts\nto the President in his role as a political officer.\nDuring the debate on the 1939 amendment, Representative Michener\nraised the issue whether personnel of agencies such as the Bureau of the\nBudget, which would be transferred to the Executive Office of the\nPresident under the proposed Reorganization Plan of 1939, would be\ncovered by the \xe2\x80\x9cOffice of the President\xe2\x80\x9d exemption. 84 Cong. Rec.\n9633. To clarify this point, he offered an amendment that would have\nrestricted the exemption to positions in the Office of the President \xe2\x80\x9cas\nclassified prior to the Reorganization A ct of 1939.\xe2\x80\x9d Id. When Mr.\nM ichener\xe2\x80\x99s time expired, no Member o f the House, including Repre\xc2\xad\nsentative Dempsey, attempted to address the point. There was no\ndebate, and the proposal was never voted on. 84 Cong. Rec. 9634. The\nindifference o f the House to the point suggests that the House consid\xc2\xad\nered the amendment unnecessary, as it understood that the exemption\nclearly applied only to w hat Mr. Michener called \xe2\x80\x9cthe President\xe2\x80\x99s\nsecretariat and incidental employees,\xe2\x80\x9d i.e., employees in \xe2\x80\x9cthe Office of\nthe President.\xe2\x80\x9d8\nIt is for these reasons that we conclude that the exemption to the\nH atch A ct in 5 U.S.C. \xc2\xa7 7324(d)(1) was intended to apply only to\npersons paid from the item for the \xe2\x80\x9cW hite House Office.\xe2\x80\x9d This office\nhas previously advised the W hite House that the \xe2\x80\x9cOffice of the Presi\xc2\xad\ndent\xe2\x80\x9d is the equivalent of the White House Office.7\nIt should be noted that persons detailed from other agencies to the\nW hite House are ordinarily subject to the Hatch Act because they are\nnot paid out o f the White House Office appropriation.8 In the Execu\xc2\xad\ntive Office Appropriation A ct of 1971, 84 Stat. 866, Congress signifi\xc2\xad\ncantly increased the appropriation for the White House Office by trans\xc2\xad\nferring Special Projects from the item. The reason the transfer was\nrequested was to pay Presidential staff who had been essentially on\npermanent detail from other agencies out of this item.9 Although the\npoint was not raised in the legislative history of the 1971 Act, it is\nreasonable to conclude that the White House realized that the change\nwould enlarge the number o f employees who were clearly exempt from\nthe Hatch Act.\n\xe2\x80\x98 T h ere is no discussion o f the applicability o f the H atch A c t in the legislative history\no f the 1941 ap propriation for the P resident\xe2\x80\x99s Office.\n\xe2\x80\x99 W e previously advised the W hite H ouse that O ffice o f M anagem ent and Budget\n(O M B ) personnel w ere subject to th e H atch A c t and that D om estic C ouncil staff paid\nunder a separate item w ere subject to the H atch A ct.\n\xe2\x80\x9cW e have also advised the White H ouse that detailed em ployees may be subject to the\nH atch A c t even if paid from this appropriation. A uthority to detail is provided by 3\nU .S.C. \xc2\xa7 107.\n\xe2\x80\xa2H ea rin g s Before a Subcom m ittee o f the A ppropriations C om m ittee o f the H ouse o f\nR epresentatives, E xecutive Office A ppropriations fo r 1971, 91st Cong., 2d Sess., pp. 5-7\nSee also H.R. Rep. 91-994, 91st Cong., 2d Sess.\n\n56\n\n\x0cIn the same statute, a separate line item for \xe2\x80\x9cexpenses necessary for\nthe Vice President to provide assistance to the President in connection\nwith specially assigned functions\xe2\x80\x9d was added for the first time. The\nspokesman for the Administration testified before the House Committee\nthat over the years the responsibility of the Vice President in assisting\nthe President had increased and that he had been provided with a\nsufficient staff only by a detail of employees from other agencies. The\npurpose of the appropriation, he explained, was to give the Vice Presi\xc2\xad\ndent an explicit source of staff support for his governmental responsibil\xc2\xad\nities in the executive branch.10 The legislative history does not discuss\nthe applicability of the Hatch Act to these employees.\nIn light of the legislative history discussed above, it would not appear\nthat persons paid from this item are within the scope of 5 U.S.C.\n\xc2\xa7 7324(d)(1). If either the Administration or Congress had wanted them\nexempted from the Hatch Act, it could have explicitly done so by\nfollowing the procedure used at the same time for detailed Presidential\nstaff, such as shifting expenses from other appropriations to the \xe2\x80\x9cWhite\nHouse Office\xe2\x80\x9d item. Instead, a separate line item was requested and\ngiven. In the case of Vice President Mondale, he was able to retain his\nlegislative staff, who were not covered by the Hatch A ct.11 Because his\nlegislative appropriation was not decreased in 1971 and subsequent\nyears, it could have been expected that his political staff would be paid\nfrom this source.12 Finally, because the Administration requested staff\nassistance for the Vice President in performing his functions within the\nexecutive branch,13 it is reasonable to conclude that Congress intended\nto provide a staff only for those functions.\nThe Office of the Vice President has argued that 5 U.S.C.\n\xc2\xa7 7324(d)(1) applies because the item in question provides \xe2\x80\x9cfor expenses\nnecessary to enable the Vice President to provide assistance to the\nPresident in connection with specially assigned functions.\xe2\x80\x9d In other\n10 Hearings before a Subcom m ittee o f the A ppropriations Com m ittee o f the House o f\nRepresentatives, Executive Offices A ppropriations for 1971, 91st Cong., 2d Sess., pp. 18589. See also H.R. Rep. 91-994, 91st Cong., 2d Sess.\n" I n 1971, the V ice President\xe2\x80\x99s appropriation for executive staff was $700,000. E xecu\xc2\xad\ntive Offices A ppropriation A ct o f 1971, Pub. L. No. 91-422, 84 Stat. 872. F o r \xe2\x80\x9cclerical\nassistance to the Vice President," he received $367,263 under the L egislative B ranch\nA ppropriation A ct o f 1971 Pub. L. No. 91-382, 84 Stat. 807. T his was an increase from\nthe prior year. F o r 1977, the V ice President received $1,246,000 for executive staff and\n$615,015 for legislative staff. See 90 Stat. 966, 967.\n11 In 1971, the Vice President\xe2\x80\x99s legislative staff num bered 23 persons, clerical and\notherw ise. H earings o f a Subcom m itee o f the Senate A ppropriation C om m ittee, E xecutive\nOffices A ppropriation o f 1971, 91st Cong., 2d Sess., p. 1255. T here is no discussion o f\ntheir duties in the legislative history.\n13 A m ong the Vice President\xe2\x80\x99s functions cited as requiring staff w ere his m em bership in\nthe Cabinet, the National Security Council, and the Council on Environm ental Quality;\nhis duties as head o f the O ffice o f Intergovernm ental Relations; and his m em bership on\nvarious advisory com m ittees and councils. Hearings by a Subcom m ittee o f the A ppropri\xc2\xad\nation C om m ittee o f the H ouse of Representatives, Executive Office A ppropriation o f\n1971, 91st Cong., 2d Sess., pp. 185-86. T h e testim ony concentrated on the need for staff\nsupport if the V ice President w ere to function as an adviser and official spokesman. Id. at\n187-89.\n\n57\n\n\x0cwords, it is asserted that the status o f the Vice President\xe2\x80\x99s staff is\nderived from the duties assigned to the Vice President. But this argu\xc2\xad\nment proves too much. T h e Vice President has no active executive\nresponsibilities under the Constitution, and the President has no consti\xc2\xad\ntutional duty to assign him any. The Vice President\xe2\x80\x99s status as an\nassistant to the President is therefore the same as that of other policy\xc2\xad\nmaking officials or advisers who are not subject to the Hatch A ct.14 If\nit is argued that employees w ho furnish him with staff assistance derive\nan exemption on the basis o f his functions, there is no reason why the\nsame should not be true o f the staff o f the Office of Management and\nBudget, the Domestic Council, and other agencies within the Executive\nOffice of the President whose heads are exempt. This result would be\ncontrary to the congressional intent underlying 5 U.S.C. \xc2\xa7 7324(d) and\nto its settled construction. Had Congress considered derivative exemp\xc2\xad\ntion possible under the Act, it would not have been necessary for the\nDempsey amendment to provide specifically for the President\xe2\x80\x99s person\xc2\xad\nal staff after having exempted the President or to exempt assistant heads\nas well as heads of departments.\nIn conclusion, it is our opinion that the legislative intent behind 5\nU.S.C. \xc2\xa7 7324(d)(1) was to exempt from the Hatch A ct a limited\nnumber o f close personal advisers to the President and their staff\nmembers. This was accomplished by basing the exemption on the ap\xc2\xad\npropriation for the \xe2\x80\x9cOffice o f the President,\xe2\x80\x9d from which this inner\ncircle was paid. At the same time, this was the only appropriation for\npersonnel directly under the President\xe2\x80\x99s control. As other agencies\nwere added to the Executive Office of the President and nomenclature\nchanged, the White House Office was the only lineal descendant of the\nformer Office of the President. The remaining employees in the Execu\xc2\xad\ntive Office of the President are subject to the Hatch Act unless covered\nby another exemption. Nothing in the legislative history of the appro\xc2\xad\npriation for the Vice President\xe2\x80\x99s executive staff shows a congressional\nintent to treat those employees differently from other staff in the Ex\xc2\xad\necutive Office of the President outside the White House Office. In our\nopinion, there is no rational basis for doing so that will distinguish the\nVice President\xe2\x80\x99s staff from other staffs that are not exempt.\nIt has been suggested that this interpretation is archaic and anoma\xc2\xad\nlous because the staffs of the President and Vice President are for\npractical purposes intermingled. It is true that when Congress enacted\nthe Hatch A ct it did not consider the role of the Vice President\xe2\x80\x99s staff,\nbecause the Vice President had no role in the executive branch at that\ntime. Circumstances have changed, and Presidents now use Vice Presi\xc2\xad\ndents as both political spokesmen and policy advisers. It may be desir\xc2\xad\n14 T h e original version o f the H a tch A ct specifically exem pted the President and Vice\nPresident. See U.S.C. \xc2\xa7 7324, H istorical and Revision note; A c t o f A ugust 2, 1937, \xc2\xa7 9(a),\n53 Stat. 1148. H eads and assistant h ead s o f executive or m ilitary departm ents and policy\xc2\xad\nm aking officials appointed subject to advice and consent by the Senate are exempt. 5\nU .S.C . \xc2\xa7 7324(d)(2)-(3).\n\n58\n\n\x0cable to have the Vice President\xe2\x80\x99s staff as freely available for political\nduties as the President\xe2\x80\x99s. If so, legislation will be necessary. One ap\xc2\xad\nproach would be to incorporate the appropriation for the Vice Presi\xc2\xad\ndent\xe2\x80\x99s staff in the general appropriation for the White House Office,\nthereby removing all doubts on the matter. The other, more direct,\nsolution would be to amend the Hatch Act specifically to exempt the\nVice President\xe2\x80\x99s staff.\nJohn M. H\n\narm on\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n59\n\n\x0c'


b"Participation in Congressional Hearings During an\nAppropriations Lapse\nUnder the Antideficiency Act, an officer or employee of the Department o f Justice m ay participate\nin a congressional hearing during a lapse in appropriations for the Department if he or she is\na Senate-confirmed officer, if appropriated funds are available for his or her participation, if he\nor she is subpoenaed, or if there exists other express or necessarily implied authorization to partici\xc2\xad\npate in the hearing.\n\nNovember 16, 1995\nM e m o r a n d u m O p in io n\n\nfor th e\n\nAttorn ey G en era l\n\nThe Department of Justice has been informed that various congressional\ncommittees intend to hold hearings at which Department of Justice officials have\nbeen requested to testify, during the period in which the Department lacks appro\xc2\xad\npriations to pay for the services of those officials. You have asked under what\ncircumstances Department officials may participate in these hearings.\nThe Antideficiency Act (\xe2\x80\x9c Act\xe2\x80\x9d ) provides that \xe2\x80\x9c [a]n officer or employee of\nthe United States Government or of the District of Columbia government may\nnot . . . involve either government in a contract or obligation for the payment\nof money before an appropriation is made unless authorized by law.\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1341(a)(1)(B). In addition, the Act establishes that \xe2\x80\x9c [a]n officer or employee\nof the United States Government . . . may not accept voluntary services . . .\nor employ personal services exceeding that authorized by law except for emer\xc2\xad\ngencies involving the safety of human life or the protection of property.\xe2\x80\x9d 31\nU.S.C. \xc2\xa71342. These provisions are enforceable by criminal sanctions and their\nrequirements must be observed. All federal officers and employees must comply\nwith the law, whether they serve in the executive, legislative, or judicial branch.\nWhere the Act applies, it restricts the functions that federal officers and employees\nmay perform during an appropriations lapse to only those functions that are\nencompassed by one of the exceptions to the Act\xe2\x80\x99s general prohibitions. The ques\xc2\xad\ntion thus becomes under what conditions, if any, does participation in congres\xc2\xad\nsional hearings constitute an excepted function for employees subject to the Act\xe2\x80\x99s\nrestrictions.\nBefore addressing those exceptions, we note that the Act is not implicated at\nall by the activities of federal employees for whom no obligation in advance of\nan appropriation is incurred by employing a particular individual, even when\nappropriations are currently lacking for that individual. A prominent example is\nprovided by those officers who are appointed by the President with the advice\nand consent of the Senate. These officers are entitled to their salaries by virtue\nof the office that they hold and without regard to whether they perform any serv\xc2\xad\nices during the period of appropriations lapse. See United States v. Grant, 237\n301\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nF.2d 511 (7th Cir. 1956). Therefore, no federal officer or employee incurs an\nobligation in advance of appropriations when these officers perform services;\ninstead, this obligation arises by virtue of their status and cannot be obviated by\nplacing them on furlough status.1\nWhere the Act does not apply, as in cases like these, officers and employees\nmay participate in congressional hearings, although the participation of Senateconfirmed officers is subject to the significant limitation that support persons to\nwhom the Act does apply may not assist those officers unless these activities\nare independently justified under the Act\xe2\x80\x99s exceptions. You have indicated that\nyou do not intend to make available Senate-confirmed officials of the Department\nto participate in congressional hearings unless they have adequate and thorough\nsupport to ensure full preparation. This effectively means that the exceptions of\nthe Act define the limits of the Department\xe2\x80\x99s ability to comply with requests for\ntestimony. We turn, therefore, to address the scope of those exceptions.\nThere are two major exceptions to the Act. First, there is an exception for func\xc2\xad\ntions that relate to \xe2\x80\x9c \xe2\x80\x98emergencies involving the safety of human life or the protec\xc2\xad\ntion o f property.\xe2\x80\x99 \xe2\x80\x9d 31 U.S.C. \xc2\xa7 1342. The Act states that this phrase \xe2\x80\x9c does not\ninclude ongoing, regular functions of government the suspension of which would\nnot imminently threaten the safety of human life or the protection of property.\xe2\x80\x9d\nId. In the highly unusual event that suspension of the Department\xe2\x80\x99s participation\nin a congressional hearing would imminently threaten the safety of human life\nor the protection of property, the Department may legally participate in the\nhearing.\nThe Act also states that governmental functions that are otherwise authorized\nto be undertaken despite a lack o f appropriations may continue during an appro\xc2\xad\npriations lapse. See 31 U.S.C. \xc2\xa7 1341(a)(1)(B); id. \xc2\xa71342. In the context of the\nDepartment\xe2\x80\x99s participation in congressional hearings, there are two types of\nauthority that satisfy this \xe2\x80\x9c otherwise authorized\xe2\x80\x9d exception: express authorization\nand necessarily implied authorization. See Authority for the Continuance o f\n1 Sim ilarly, the Act would not forbid a furloughed officer or employee from participating in a congressional hearing\nif that officer or em ployee participated in his o r her individual capacity. So, for instance, an officer or employee\nwho is nom inated for a position that is subject to Senate confirmation may, while on furlough status, participate\nin his or her ow n confirm ation hearing.\nA nother analogous situation may arise when a non-Senate confirm ed officer or employee reports for work because\nhis or her duties fall within an exception to th e Act, but there are intervals during the day when the officer or\nem ployee is not engaged in an excepted function. If these intervals are anticipated to be brief, such that the officer\nor em ployee could not be dismissed from w ork and then recalled in time to perform the next excepted function\nactivity, then the employee may remain at w ork throughout the intervals. During these intervals, officers and\nemployees may perform non-excepted functions, because the need for the officer or em ployee's availability would\njustify the Department in keeping the officer o r employee in the close vicinity o f his or her duty station to await\nthe onset o f the excepted function. Consequently, the Department would be obligated to compensate such employees\nwhile they are awaiting the excepted function w ork whether they spend this interval performing the non-excepted\nfunction o r simply sit idle. During these intervals, then, such officers and employees are akin to Senate-confirmed\npresidential appointees in that they must be paid fo r these intervals regardless o f whether they perform a non-excepted\nfunction, and thus the government incurs no additional obligation by virtue o f that work being performed. The nonexcepted functions that such officers o r employees may perform during these b n e f intervals between excepted func\xc2\xad\ntions include services relating to participation in congressional hearings where participation is not otherwise author\xc2\xad\nized.\n\n302\n\n\x0cParticipation in Congressional Hearings During an Appropriations Lapse\n\nGovernment Functions During a Temporary Lapse in Appropriations, 5 Op.\nO.L.C. 1 ,3 -5 (1 9 8 1 ).\nOfficers and employees of the Justice Department may participate in congres\xc2\xad\nsional hearings that take place during a lapse in appropriations if there is express\nlegal authority to participate despite a lack of appropriations, or an express require\xc2\xad\nment to do so. We are not aware of any statute that grants the officers and\nemployees o f this Department such authority in the case of general requests for\ncongressional testimony. Express authority would exist, however, if Congress or\na committee were to issue a subpoena requiring the Department or specific offi\xc2\xad\ncials to participate in a hearing during an appropriations lapse. Departmental poli\xc2\xad\ncies with respect to responsibilities to the judicial system provide a precedent:\nit has long been the Department\xe2\x80\x99s position that, during an appropriations lapse,\nattorneys representing the government are to comply with a court order that they\ncontinue with litigation even though the litigation does not fall within an exception\nto the Act. See Memorandum for William P. Tyson, Director, Executive Office\nfor United States Attorneys, from Robert Shanks, Deputy Assistant Attorney Gen\xc2\xad\neral, Office of Legal Counsel, att. at 2 (Mar. 24, 1982) (\xe2\x80\x9c Tyson Memorandum\xe2\x80\x9d );\nsee also Rojas v. United States, 55 F.3d 61 (2d Cir. 1995) (scheduling order\nimposes a duty on attorney, nonperformance of which can subject attorney to con\xc2\xad\ntempt sanctions under 18 U.S.C. \xc2\xa7401(3)). We would follow the same principles\nwith respect to a congressional order that imposes a legal duty. See 2 U.S.C.\n\xc2\xa7\xc2\xa7192, 194 (imposing legal duty to comply with a duly issued legislative sum\xc2\xad\nmons or subpoena).\nThe Department\xe2\x80\x99s officers and employees may also participate in a hearing\ndespite an appropriations lapse if authority for such participation arises by nec\xc2\xad\nessary implication from another specific statutory duty or duties. See 5 Op. O.L.C.\nat 3-5. In the context of congressional hearings, this exception permits the Depart\xc2\xad\nment to participate where there is express authority or an express and specific\nappropriation for the hearing itself, and the Department\xe2\x80\x99s participation is necessary\nfor the hearing to be effective, even though there is no specific authority or appro\xc2\xad\npriation available for the Department to participate. This exception also operates\nwhere there is express authority for a specific Department official to participate \xe2\x80\x94\nsuch as might arise from a subpoena\xe2\x80\x94 but no express authority for support or\nassistance of the witness. The Department would regard support and assistance\nto the otherwise authorized participation as being justified by necessary implica\xc2\xad\ntion. This approach follows from the well-settled practice with respect to Social\nSecurity. See 5 Op. O.L.C. at 5 n.7.\nWe are not aware of any other exceptions to the Act that would permit the\nDepartment to participate in congressional hearings during an appropriations lapse.\nIt has from time to time been suggested that the \xe2\x80\x9c authorized by law\xe2\x80\x9d exception\nto the Act includes all activities that derive from or relate to a constitutional\npower, such as the \xe2\x80\x9c legislative power.\xe2\x80\x9d Such a construction would authorize Con-\n\n303\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\ngress to continue holding hearings during an appropriations lapse and would allow\nthe Department to participate. Such a construction, however, is impermissible\nbecause it would necessarily nullify the Antideficiency Act. The Federal Govern\xc2\xad\nment is a government of limited and expressly enumerated powers. Those powers\nare denominated in the Constitution, and the Federal Government may only under\xc2\xad\ntake those activities that are constitutionally authorized. See United States v.\nLopez, 514 U.S. 549 (1995). Consequently, if all constitutionally authorized func\xc2\xad\ntions\xe2\x80\x94 legislative, executive, and judicial \xe2\x80\x94 were excepted, the Act would not\napply to any activity of the Federal Government.\nWe have also considered whether a decision by Congress to go forward with\nhearings in which Department officers cannot participate would result in a\ncongressional encroachment upon the President\xe2\x80\x99s constitutional authority.2 We\nconclude that no encroachment would occur. The Supreme Court has repeatedly\npronounced that statutes are to be construed to avoid serious constitutional ques\xc2\xad\ntions, where such a construction is permissible. See, e.g., Crowell v. Benson, 285\nU.S. 22, 62 (1932). Attorney General Civiletti recognized in his 1981 opinion\nthat it would \xe2\x80\x9c raise grave constitutional questions\xe2\x80\x9d if the Act were to be read\nto prohibit the President from exercising his constitutional powers. 5 Op. O.L.C.\nat 6. Construing the Act as covering executive branch participation in congres\xc2\xad\nsional hearings generally, however, does not raise grave concerns over impermis\xc2\xad\nsible congressional encroachment on the Executive\xe2\x80\x99s constitutional role.3 The Con\xc2\xad\nstitution grants the President authority to \xe2\x80\x9c recommend to [Congress\xe2\x80\x99s] Consider\xc2\xad\nation such Measures as he shall judge necessary and expedient.\xe2\x80\x9d U.S. Const, art.\nII, \xc2\xa73. Congress does not encroach upon this power by refusing to include the\nparticipation o f the President or his subordinates in a regular congressional\nhearing, however unwise and counterproductive such a decision might be. So long\nas the President retains a means o f making legislative recommendations, Congress\ngenerally is not obligated to grant the executive a platform at its hearings.4\nThe Antideficiency Act places a substantial limit on the functioning of federal\nofficers and employees generally, including officers and employees of the Depart\xc2\xad\nment of Justice. These limits extend to participation in congressional hearings con\xc2\xad\n2 We have applied this same analysis in exam ining the application o f the Act to the judicial branch. See Tyson\nM emorandum at 2; cf. Plaut v. Spendthrift Farm, Inc., 514 U.S. 211 (1995) (striking down congressional encroach\xc2\xad\nment on the judicial branch).\n3 This assertion is made with the exceptions to the Act in mind. W e believe that any instances where grave concerns\nmight otherwise be raised would fall within the emergency exception or one o f the other exceptions to the Act.\nWe also note that the Act does not raise corresponding encroachment concerns when applied to Congress. Whereas\nthe Attorneys General and the courts appropriately remain vigilant against congressional encroachment, there is no\n\xe2\x80\x9c grave constitutional\xe2\x80\x9d obstacle that prevents Congress, through the Act, from deciding to curtail \xe2\x80\x94 or to postpone\nuntil appropriations are available\xe2\x80\x94 regular legislative, investigative, o r oversight hearings. Moreover, the Act does\nnot prohibit m embers o f Congress by themselves from conducting hearings, because their salaries are paid from\npermanent appropriations. It is extremely difficult to see how interpreting the Act to preclude Department o f Justice\nofficers o r em ployees from participating in those hearings would raise a grave question as to whether Congress\nhas encroached on its ow n constitutionally-based authority to conduct hearings.\n4 That said, the decision to exclude the President from the deliberations at crucial moments in the legislative\nprocess w ould be relevant in a presidential decision to veto such a bill.\n\n304\n\n\x0cParticipation in Congressional Hearings During an Appropriations Lapse\n\nducted during a period of lapsed appropriations. During such a period, an officer\nor employee of the Department of Justice may participate in congressional\nhearings if he or she is a Senate-confirmed officer, if appropriated funds are avail\xc2\xad\nable for his or her participation, if he or she is subpoenaed, or if the hearing\nfalls within one of the categories set forth above.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n305\n\n\x0c"


b'Funding of Attorney Fee Awards Against\nthe United States Under Rule 37\nAttorney fee awards may be im posed against the United States for abuse of discovery under Rule 37 of\nthe Federal Rules o f Civil Procedure, by virtue of the general waiver o f sovereign im m unity in 28\nU .S .C . \xc2\xa7 2412(b) (Supp. V 1981), which was intended to make the U nited States and private\nlitigants equally liable for a fee award based on the com m on law or on an applicable fee-shifting\nstatute.\nRule 37 by itself could not provide sufficient authority for a court to award attorney fees against the\nU nited States; the requisite w aiver of sovereign im m unity cannot be accom plished by a courtm ade rule, but only by explicit legislative action.\nA judgm ent awarding attorney fees against the U nited States under authority of 28 U .S .C . \xc2\xa7 2412(b)\nis ordinarily paid from the judgm ent fund. See 28 U .S .C . \xc2\xa7 2412(c)(2). However, where a fee\naward is based on a finding of bad faith on the part of a governm ent agency, as is the case here, it\nm ust be paid from the agency\'s general appropriation.\n\nSeptember 13, 1982\nMEMORANDUM OPINION FOR THE\nASSISTANT ATTORNEY GENERAL, CIVIL DIVISION\nThis responds to your request for our opinion regarding the appropriate source\nof funding for the payment of an attorney fee award assessed against the United\nStates pursuant to Rule 37 of the Federal Rules of Civil Procedure. In the\nparticular case at issue, National Lawyers Guild v. Attorney General, No. 77 Civ.\n999 (CLB) (S.D.N.Y.), the magistrate found that the Government\xe2\x80\x99s failure to\ncomply with discovery orders was based on \xe2\x80\x9c bad faith, willfulness and fault,\xe2\x80\x9d\nand awarded $11,231.00 in fees and costs against the United States as a discovery\nsanction. The question is whether this award is to be paid from the judgment fund\nor from agency funds. For reasons set forth in detail below, we conclude that the\nattorney fee award in this case should be paid from agency funds.1\nRule 37 of the Federal Rules of Civil Procedure has since 1938 authorized\nfederal courts to impose a variety of sanctions against parties in litigation for\nabuse of the discovery process, including an award of attorney fees. It is common\nground that until 1980 sovereign immunity prevented an award of fees against the\n\n1 Our conclusion that the award should be paid from agency funds makes it unnecessary to address the second\nquestion you raise viz , whether and to what extent \xc2\xa7 207 of the Equal Access to Justice Act restricts payment of\nattorney fee awards against the United States from the judgment fund.\n\n525\n\n\x0cUnited States under Rule 37. The principle of sovereign immunity was recog\xc2\xad\nnized in the text of Rule 37(0, which read as follows:\nExcept to the extent permitted by statute, expenses and fees may\nnot be awarded against the United States under this rule.\nWe say \xe2\x80\x9c recognized\xe2\x80\x9d because we believe it is clear that even in the absence of\nsubsection (f), Rule 37 would not itself have constituted a waiver of sovereign\nimmunity so as to permit a court to award a money judgment against the United\nStates. This is because Rule 37 was not enacted by Congress, but promulgated by\nthe Supreme Court pursuant to the authority given in the Rules Enabling Act, 28\nU.S.C. \xc2\xa7 2072. That Act authorizes the promulgation of rules governing court\npractice and procedure, but by its terms does not permit the enactment of laws\nabridging, enlarging or modifying \xe2\x80\x9c the substantive rights of any litigant.\xe2\x80\x9d See\nSibbach v. Wilson & Co., 312 U .S. 1, 7-8 (1941).\nIn particular, the authority given the court in the Rules Enabling Act \xe2\x80\x9c to make\nrules of procedure for the exercise of its jurisdiction is not an authority to enlarge\nthat jurisdiction.\xe2\x80\x9d United States v. Sherwood, 312 U.S. 584,589-91 (1941). See\nalso Sibbachv. Wilson, 312U.S. at 10 (court rules may not \xe2\x80\x9c extend or restrict the\njurisdiction conferred by a statute\xe2\x80\x9d ). It is commonplace that sovereign immunity\nis jurisdictional, see, e .g ., Soriano v. United States, 352 U.S. 270, 276 (1957),\nand that \xe2\x80\x9c the terms of [the sovereign\xe2\x80\x99s] consent to be sued in any court define that\ncourt\xe2\x80\x99s jurisdiction to entertain the suit.\xe2\x80\x9d United States v. Sherwood, 312 U.S. at\n586. While the United States as a party to litigation is concededly subject to\ncertain court-imposed sanctions for noncompliance with discovery orders, see In\nre A ttorney General of the United States, 596 F.2d 58 (2d Cir.), cert, denied, 444\nU.S. 903 (1979), a court may not impose a monetary penalty upon the United\nStates under Rule 37 in the absence of an explicit waiver of sovereign immunity.\nSee Land v. Dollar, 330 U.S. 731, 738 (1947) (absent a legislative waiver of\nsovereign immunity, a court has no power to make an award which would\n\xe2\x80\x9c expend itself on the public treasury or domain . . .\xe2\x80\x9d ). See also United States v.\nSumitomo M arine & Fire Ins. C o ., 617F.2d 1365 (9th Cir. 1980). Therefore, the\nRules do not and could not by themselves empower a court to impose a monetary\nremedy against the government.\nPrior to 1980, Congress had consented to the award of attorney fees against the\nU nited States in only a few specific situations. See, e .g ., 42 U .S .C .\n\xc2\xa7 2000e-5(k). The court-fashioned rule of statutory construction against implied\nwaivers of sovereign immunity was generally held to immunize the United States\nagainst attorney fee awards absent very clear authority to the contrary, authority\nusuaHy found only in compelling language in the text of a statute itself. See\nNAACP v. Civiletti, 609 F.2d 514 (D.C. Cir. 1979), cert, denied, 447 U.S. 922\n(1980). Indeed, Congress had in 28 U.S.C. \xc2\xa7 2412 (1976) expressly prohibited\nan award of attorney fees against the United States, \xe2\x80\x9c [e]xcept as otherwise\nspecifically authorized by statute.\xe2\x80\x9d See also Alyeska Pipeline Service Co. v.\nW ilderness Society, 421 U.S. 240, 265-69, and n. 44 (1975) (\xe2\x80\x9can award [of\n\n526\n\n\x0cattorney fees] against the United States is foreclosed by 28 U.S.C. \xc2\xa7 2412 in the\nabsence of other statutory authorization\xe2\x80\x9d ).\nIn\' 1980, Congress modified and expanded \xc2\xa7 2412 to permit an award of\nattorney fees against the United States in a variety of different situations. See\n\xc2\xa7 204 of the Equal Access to Justice Act, Pub. L. No. 96-481, Title II, 94 Stat.\n2325 (1980) (the Act). The provision in the former \xc2\xa7 2412, which had permitted\nan award of costs against the United States, was retained in \xc2\xa7 2412(a), and a new\nprovision was added authorizing a court to award attorney fees against the United\nStates in any case in which an award would be available against private parties\nunder common law and statutory exceptions to the \xe2\x80\x9cAmerican rule\xe2\x80\x9d on feeshifting. The new \xc2\xa7 2412(b) provided as follows:\nUnless expressly prohibited by statute, a court may award\nreasonable fees and expenses of attorneys, in addition to the costs\nwhich may be awarded pursuant to subsection (a), to the prevail\xc2\xad\ning party in any civil action brought by or against the United\nStates or any agency and any official of the United States acting in\nhis or her official capacity in any court having jurisdiction of such\naction. The United States shall be liable for such fees and ex\xc2\xad\npenses to the same extent that any other party would be liable\nunder the common law or under the terms of any statute which\nspecifically provides for such an award.\nAt the same time, in \xc2\xa7 205(a) of the Act, Congress repealed subsection (f) of\nRule 37. Both House and Senate reports explained that the \xe2\x80\x9c change reflects the\nbelief that the United States should be liable for fees the same as other parties\nwhen it abuses discovery.\xe2\x80\x9d See H.R. Rep. No. 1418, 96th Cong., 2d Sess. 19\n(1980) (Report of the House Committee on the Judiciary) (House Report); S.\nRep. No. 253, 96th Cong., 1st Sess. 22 (1979) (Senate Report).\nThe question you have raised is whether Congress\xe2\x80\x99 repeal of subsection (f)\nmade Rule 37 a source of authority for fee awards against the United States\nindependent of the waiver of sovereign immunity in \xc2\xa7 2412(b). A memorandum\nprepared by the Civil Division\xe2\x80\x99s Torts Branch points out that it would not have\nbeen necessary to repeal subsection (f) in order to allow awards to be made\nagainst the United States as a discovery sanction under authority of the new\n\xc2\xa7 2412(b). This is because subsection (f) would have permitted fee awards \xe2\x80\x9c to\nthe extent permitted by statute.\xe2\x80\x9d Therefore, it is argued, the fact that Congress\nnonetheless repealed subsection (0 indicates that it intended thereby to accom\xc2\xad\nplish a separate waiver of sovereign immunity independent of that contained in\n\xc2\xa7 2412(b).\nThe question is important because of its implications for the source of funding\nto pay the award in this case. Section 205 itself does not specify the source of\nfunds to pay awards made under Rule 37. Ordinarily, in the absence of some\nspecific statutory provision to the contrary, an award against the United States\nwould be paid in accordance with the procedures set forth in 28 U.S.C. \xc2\xa7\xc2\xa7 2414\n527\n\n\x0cand 2517, under authority of the permanent indefinite appropriation for judg\xc2\xad\nments against the United States established by 31 U.S.C. \xc2\xa7 724a. However,\npayment of awards made under authority of \xc2\xa7 2412(b) is governed by the\nprovisions of \xc2\xa7 2412(c)(2):\nAny judgment against the United States or any agency and any\nofficial of the United States acting in his or her official capacity for\nfees and expenses of attorneys pursuant to subsection (b) shall be\npaid as provided in sections 2414 and 2517 of this title, except that\nif the basis for the award is a finding that the United States acted in\nbad faith, then the award shall be paid by any agency found to\nhave acted in bad faith and shall be in addition to any relief\nprovided in the judgment.\nIn short, if fee awards against the Government under Rule 37 have been\nseparately consented to by Congress, they must be paid from the judgment fund.\nIf, instead, they are made \xe2\x80\x9cpursuant to\xe2\x80\x9d \xc2\xa7 2412(b), they are subject to the\nfunding provisions contained in \xc2\xa7 2412(c)(2). Under that section, in a case such\nas this one in which the Government has been found to have acted in bad faith, the\naward must be paid \xe2\x80\x9c by any agency found to have acted in bad faith,\xe2\x80\x9d not from\nthe judgment fund.\nWe think it theoretically possible for the repeal of subsection (f) to have some\nindependent significance as a legislative act waiving sovereign immunity, even\nthough Rule 37 itself, as promulgated by the Court under the Rules Enabling Act,\ncould not waive sovereign immunity. The question is essentially one of Congress\xe2\x80\x99\nintent. That is, the question is whether Congress intended by its repeal of\nsubsection (f) to accomplish a waiver of sovereign immunity separate from that in\n\xc2\xa7 2412(b). While the text of \xc2\xa7 2412(b) provides no ready answer to that ques\xc2\xad\ntion,2the legislative history of the Act indicates that Congress believed \xc2\xa7 2412(b)\nwould provide the authority for Rule 37 awards, and that the repeal of subsection\n(f) was intended merely as a conforming amendment to eliminate a nowmeaningless provision from the Federal Rules.\nBoth the House and Senate Reports explained that the new \xc2\xa7 2412(b) was\nintended to hold the United States \xe2\x80\x9c to the same standards in litigating as private\nparties.\xe2\x80\x9d House Report at 9; Senate Report at 4. Thus it is \xe2\x80\x9c consistent with the\nhistory of \xc2\xa7 2412 which reflects a strong movement by Congress toward placing\nthe Federal Government and civil litigants on a completely equal footing.\xe2\x80\x9d Id. If\n\xc2\xa7 2412(b) was thus intended to authorize fee awards against the United States in\nany context in which a private party could be held liable, this would include\nabuse of discovery under Rule 37. In its section-by-section analysis, the Senate\nReport makes explicit reference to Rule 37 awards in describing the scope of\n\xc2\xa7 2412(b):\n2 ft is not clear, for example, whether a Rule 37 fee award would be considered to fail into one of the \xe2\x80\x9c common\nlaw*\' categories, o r w hether Rule 37 should itself be considered a \xe2\x80\x9c statute\xe2\x80\x9d providing for such an award. See, e.g.,\nSibbach v. Wilson. 312 U .S. at 11 (Rule 37 is a n ile of procedure within the authority of the Supreme Court under the\nRules Enabling Act. and, under the terms of that law. supersedes \xe2\x80\x9c all laws in conflict with [it].").\n\n528\n\n\x0cSection 2412(b) permits a court in its discretion to award\nattorney fees and other expenses to prevailing parties in civil\nlitigation involving the United States to the same extent it may\naward fees in cases involving private parties. Thus, under this\nsection, cases involving the United States would be subject to the\n\xe2\x80\x9c bad faith,\xe2\x80\x9d \xe2\x80\x9c common fund,\xe2\x80\x9d and \xe2\x80\x9c common benefit\xe2\x80\x9d excep\xc2\xad\ntions to the American rule against fee-shifting. The United States\nwould also be liable under Rule 37. Federal Rules cf Civil\nProcedure and under the same standards which govern awards\n\nagainst private parties under federal statutory exceptions, unless\nthe statute expressly provides otherwise.\nSenate Report at 19 (emphasis supplied). See also Senate Report at 4.\nAs further evidence of Congress\xe2\x80\x99 intent in repealing subsection (f), we think it\nsignificant that \xc2\xa7 205 of the Act is captioned in the conference report as \xe2\x80\x9c Tech\xc2\xad\nnical and Conforming Amendments.\xe2\x80\x9d H.R. Rep. No. 1434,96th C ong., 2d Sess.\n11 (1980). And the other provisions of \xc2\xa7 205 are plainly so characterized:\n\xc2\xa7 205(b) amended the table of rules of the Federal Rules to reflect the repeal of\nRule 37(0 accomplished by \xc2\xa7 205(a); and \xc2\xa7 205(c) amended 42 U.S.C. \xc2\xa7 1988\nto strike out language relating to fee awards against the United States in tax cases.\nWith respect to the latter provision, the House Report explained that:\n[t]he deletion of this section is required because it is intended that\ncases arising under the internal revenue laws be covered by the\nprovisions of \xc2\xa7 2412(d) of title 28 as added by this bill.\nHouse Report at 19. See also Senate Report at 22. While neither the House nor\nSenate Report mentioned \xc2\xa7 2412(b) in connection with the repeal of Rule 37(f),\nthe fact of their complementary relationship seems inescapable.\nOur conclusion that Rule 37 awards are made \xe2\x80\x9c pursuant to\xe2\x80\x9d 28 U.S.C.\n\xc2\xa7 2412(b), and therefore must be paid in accordance with the funding provisions\ncontained in \xc2\xa7 2412(c)(2), is strengthened by reference to Congress\xe2\x80\x99 purpose in\nenacting these provisions, and the Act generally, which was to make \xe2\x80\x9c individual\nagencies and departments accountable for actions pursued in bad faith.\xe2\x80\x9d House\nReport at 17; Senate Report at 20. A result which would permit an agency to\nescape fiscal responsibility for its bad faith under Rule 37 would be inconsistent\nwith Congress\xe2\x80\x99 expectation that \xe2\x80\x9c [t]he awards and resulting impact on the budget\nwill provide a concrete basis for evaluating agency error.\xe2\x80\x9d Id. See also 126 Cong.\nRec. 28106 (1980) (\xe2\x80\x9cThe implicit assumption in the approach taken by this\nlegislation is that affecting the \xe2\x80\x98pocketbook\xe2\x80\x99 of the agency is the most direct way\nto assure more responsible bureaucratic behavior\xe2\x80\x9d ) (remarks of Sen. Thurmond\non the adoption of the conference report).\n\n529\n\n\x0cWe therefore conclude that awards under Rule 37 are subject to the funding\nprovisions contained in 28 U.S.C. \xc2\xa7 2412(c)(2), and that the award in this case\nshould accordingly be paid from agency funds.3\nL arry\n\nL.\n\nS im m s\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n3 We have no information which bears on the question of which agency should be responsible for paying the award\nin this case, and express no views on that issue.\n\n\x0c'