b'Acquisition of Land by the Department of the Air Force\nThe requirem ent in 40 U .S .C . \xc2\xa7 255 that the Attorney General review and approve the sufficiency of\ntitle to land p rio r to its acquisition by the governm ent applies to all federal land acquisitions, except\nthose specifically exem pted from it, including the acquisition of land proposed by the Air Force in\nthis case. T he statutory provision which allows the A ir Force to begin construction on land before\nits title is approved does not create an exception to the generally applicable requirem ent in 40\nU .S .C . \xc2\xa7 255, but is m erely intended to allow m ilitary construction projects to get underway\npending a determ ination on the validity o f title.\nUnder regulations prom ulgated by the A ttorney G eneral, which are binding on agencies to w hich he\nhad delegated his authority to approve title, less than fee sim ple title may not be approved for lands\non which the United States is placing perm anent im provem ents, except where Congress has\nauthorized a lesser estate. Even where Congress arguably authorized acquisition of a lesser e s ta te ,\nthe Attorney G eneral and his delegees are still responsible for determ ining w hether the title to be\nacquired in a particular case is sufficient for the intended governm ent purposes.\nThe title proposed to be acquired from the C olorado State Board o f Land Com m issioners in this\ncase\xe2\x80\x94 a right-of-way subject to a reversion interest\xe2\x80\x94 is not sufficient under Colorado law to\nprotect the interests of the federal governm ent where the A ir Force intends to build a m ultim illion\ndollar m ilitary com plex on the land.\n\nJune 28, 1982\nMEMORANDUM FOR THE ASSISTANT ATTORNEY GENERAL,\nLAND AND NATURAL RESOURCES DIVISION\nThis responds to your request for advice on several issues arising out of the\nDepartment of the Air Force\xe2\x80\x99s proposed acquisition of land in Colorado for\nconstruction of a Consolidated Space Operations Center (CSOC). You have asked\nwhether the Attorney General must review the sufficiency of the title to the land\nin Colorado on which the CSOC will be based. We agree with your determination\nthat the Attorney General must review the sufficiency of the title to the land, and\nwould further advise that the title is not sufficient for the purposes for which it is\nbeing acquired.\nWe should state at the outset that the Land and Natural Resources Division has\nbeen delegated the authority to exercise the Attorney General\xe2\x80\x99s discretion in\nmatters of title approval. 28 C.F.R. \xc2\xa7 0.66(1981). Our comments concerning the\nexercise of that discretion should not be viewed in any sense as a preemption of\nyour duty to make the final decision.\n431\n\n\x0cI. Background\nThe CSOC is planned as a center for Air Force activities involving military\noperations in space. The land in question consists of 640 acres in Colorado\npresently owned by the State of Colorado. The Air Force plans to spend\napproximately $150 million constructing the CSOC, as well as additional sums\nover the years on maintenance and expansion. The deed between the state and the\nAir Force, as presently drafted, would give the United States a \xe2\x80\x9c right-of-way in\nperpetuity\xe2\x80\x9d over the 640 acres.1 The right-of-way would revert to the state if it\nwere no longer used for governmental purposes. Draft Agreement, 1 7. Colora\xc2\xad\ndo would retain mineral and water rights, and the land would be subject to\nexisting easements and rights-of-way. Id., TH 5, 6, 9.\nII. Sufficiency off the Title Moist Be Reviewed by\nthe Attorney Generali or His Designee\nSince at least 1841,2one of the Attorney General\xe2\x80\x99s formal functions has been to\nexamine and approve the sufficiency of land titles prior to federal land purchases.\nThe relevant statute presently provides:\nUnless the Attorney General gives prior written approval of the\nsufficiency of the title to land fo r the pu rp o se f o r which the\np ro p e rty is being acqu ired by the United States, public money\nmay not be expended for the purchase of the land or any interest\ntherein.\n40 U.S.C. \xc2\xa7 255 (emphasis added).3This approval requirement, see, e .g ., 6 Op.\n1 The Draft Agreement states:\n4. NOW, THEREFORE, THESE PRESENTS W ITNESSETH, that the said party of the first part, in\nconsideration of the premises, and in the further consideration of the sum of $48,000 lawful money of\nthe United States, by the second party to the first party in hand paid, the receipt whereof is hereby\nconfessed and acknowledged, has granted and by these presents does grant unto the party of the\nsecond part, its successors and assigns, a right-of-way in perpetuity for the purpose of constructing,\nreconstructing, operating and maintaining a Consolidated Space Operations Center and for other\ngovernmental purposes, upon, over, under and across the surface of those certain portions of school\nlands described as follows. All of Section 26, Township 14 South, Range 64 West of the Sixth\nPrincipal M endian, El Paso County, Colorado. Containing 640.00 acres, more or less.\n2 See 5 Stat 468 (1841). See also 39 Op. A tt\xe2\x80\x99y Gen. 73 (1937); 39 Op. A tt\'y Gen 56 (1937); 35 Op. A tt\'y Gen.\n183 (1927), 28 Op A tt\xe2\x80\x99y Gen. 463 (1910), 28 Op. Att\xe2\x80\x99yG en. 413 (1910); 10 Op. Att\xe2\x80\x99yG en. 353 (1862); 10 Op\nA tt\xe2\x80\x99y Gen. 34 (1861); 9 Op. A tt\xe2\x80\x99y Gen 100 (1857). The provision also appears at 33 U S.C. \xc2\xa7 733 and 50 U .S.C\n\xc2\xa7 175.\n3 Attorney General Cushing outlined the policy reasons for requiring such title approval at some length:\nI have acted, in all these references, under the conviction that the tenor of the law requires that ail\ntitles which the United States may take by purchase shall be perfect ones. The Government needs the\nland for the purpose of the public buildings to be erected on it, and needs, therefore, to hold it against\nall suit. Damages on a warranty will not suffice to indemnify the Government for the inconveniences\nfollowing ejectment, even if, which would rarely happen, such damages could be recovered. . .\nA nd, in all these respects, the Government buys in order to own for the public service, not to hold\ntemporarily as a proprietor buying and selling for the chances of gam . and so taking the risk of any\ndefects o f title A private person may buy a piece of land of dubious title, and consider that in the\nprice Not so in the case of the U nited States.\nIn addition to all these considerations, leading to the same conclusion, is another one of\nimportance If there be a flaw in the title of a private person, he can defend it on equal terms with any\nadverse claimant, and in due time obtain adjudication o f the matter in the courts of justice, with\nC ontinued\n\n432\n\n\x0cAtt\xe2\x80\x99y Gen. 432 (1854), provides a decisionmaker who, applying uniform rules,\nis responsible for ensuring that the United States\xe2\x80\x99 interests are protected.\nIn 1970, the Department of Justice proposed that the authority to approve land\ntitles be given to the heads of all departments and agencies. 116 Cong. Rec.\n10602 (1970). After study, the House rejected this approach and adopted a\nrevised version that retained primary responsibility in the Attorney General.4S ee\nH.R. Rep. No. 970, 91st Cong., 2d Sess. (1970); S. Rep. No. 1111, 91st Cong.,\n2d Sess. (1970). This version became the present law. 40 U.S.C. \xc2\xa7 255. The\nAttorney General was given the discretion to delegate the authority, and the\nAttorney General has in fact delegated it to several agencies, including the Corps\nof Engineers.5 The delegation is, however, subject to the Attorney General\xe2\x80\x99s\ngeneral supervision and regulations, which are discussed infra.6\nThe Air Force has asked the Corps of Engineers to acquire the land in Colorado\nwithout obtaining the Attorney General\xe2\x80\x99s written approval based upon the belief\nthat the title need not be approved by anyone. The Air Force bases its argument\non language in the statute authorizing acquisition of the CSOC land.\nThe Secretary of each military department may proceed to estab\xc2\xad\nlish or develop installations and facilities under this Act. . . . The\nauthority to place permanent or temporary improvements on land\nincludes authority for surveys, administration, overhead, plan\xc2\xad\nning, and supervision incident to construction. That authority\nm ay b e exercised before title to the lan d is approved under section\n355 c f the R evised Statutes (40 U .S .C . 255), and even though the\nvindication of the title if it be a valid one, or compromise on fair conditions; and so the question ends.\nBut if there be any flaw in the title of property held by the Government, the most exaggerated\ndemands are made as the condition of release; the actual defects of title are magnified by ingenious\nself-interest; the pretensions of the adverse claimant are plausibly brought before Congress, the\nmembers o f which are surprised into erroneous views of the question by e xp a n e showings; favorable\nreports o f committees are obtained, by local interest or the partiality of friends, in one House or the\nother, and thus, even where the adverse claim is a bad one, enormous expense and trouble will come\nto be devolved on the Government.\n8 Op A tt\xe2\x80\x99y Gen. 405, 406-07 (1857).\n4\nThe committee concluded that the Attorney General as the chief law officer of the United States\nshould be charged with the primary responsibility for the approval of land titles. While it is clear\nfrom the executive communication and the testimony produced at the hearings on both bills that this\nauthority can be properly exercised by other departments and agencies in many instances, the\ncommittee felt that there should be a determination of whether an individual department or agency in\nfact had the capability of exercising this authority or, has an actual need for such authority in terms of\nits operation. Accordingly, instead of making the grant of this authority by legislative determination,\nit was felt that the Attorney General would be in a better position to determine whether a delegation of\nthe authonty should be made. It was also felt that the Department of Justice would be in a better\nposition to supervise the exercise of the authority if it was clear that the primary responsibility was\nlodged in the Attorney General.\n116 Cong. Rec. 10602 (1970).\n5 See Letter for Secretary of the Army Resor from Acting Assistant Attorney General Kiechel, Oct 14, 1970.\n6\nThe Attorney General may delegate his responsibility under this section to other departments and\nagencies, subject to his general supervision and in accordance with regulations promulgated by him.\nAny Federal department or agency which has been delegated the responsibility to approve land\ntitles under this section may request the Attorney General to render his opinion as to the validity\'of\nthe title to any real property or interest therein, or may request the advice or assistance of the\nAttorney General in connection with determinations as to the sufficiency of titles.\n40 U .S.C . \xc2\xa7 255. See 28 C F R \xc2\xa7 0 66 (1981) (Land and Natural Resources Division to pass on land titles and\nexercise delegation authonty)\n\n433\n\n\x0cland is held temporarily. The authority to acquire real estate or\nlands includes authority to make surveys and to acquire land and\ninterests in land (including temporary use), by gift, purchase,\nexchange of Government-owned land, or otherwise.\nMilitary Construction Authorization Act, \xc2\xa7 701, Pub. L. No. 97-99, 95 Stat.\n1359, 1375 (1981) (emphasis added). We concur with your judgment that this\nlanguage permits the Corps, on behalf of the Air Force, to begin work on the land\nbefore title has been approved under 40 U.S.C. \xc2\xa7 255. We also agree that \xc2\xa7 701\ndoes not remove the requirement that the Attorney General or his designee\napprove the sufficiency of the title.\nThe language italicized above is not a complete exemption from 40 U.S.C.\n\xc2\xa7 255\xe2\x80\x94 it is a descendant of statutes, dating back at least to World War II, that are\ndesigned to give the military the flexibility to start work on a needed project\nbefore every last step in the process of acquiring title has been formally approved.\nThere are only a few statutes that grant a complete exemption to 40 U.S.C.\n\xc2\xa7 255,7 and their existence and language make clear that Congress knows how to\ndraft a statute providing a complete exemption.8 The Air Force\xe2\x80\x99s statute is one of\na similarly small number of statutes, generally related to military operations,\nwhich, in the interests of efficiency grant a limited exception to the requirement\nthat the review be done before work can be started.9 \xe2\x80\x9c In the absence of emergen\xc2\xad\ncies, the Congress has shown extreme reluctance, in the matter of land acquisi\xc2\xad\ntions, to dispense with the opinion of the Attorney General upon the validity of\nthe title.\xe2\x80\x9d 39 Op. Att\xe2\x80\x99y Gen. 73, 79-80 (1937).\nBecause of the Air Force\xe2\x80\x99s concern with this issue, we have carefully reviewed\nthe material which it forwarded to you outlining the legislative history of similar\nprovisions found in earlier military construction statutes.10 The emphasis on\nensuring that urgent military projects can be started as soon as possible is a\nrepeated theme in that material, but there is nothing in it that casts doubt on the\ncontinued applicability of 40 U .S.C . \xc2\xa7 255.\nSection [701] . . . in connection with the construction for the\nspecial-weapons project, authorizes the commencement of con\xc2\xad\nstruction prior to approval of title to such lands by the Attorney\nGeneral as normally required by [40 U.S.C. \xc2\xa7 255], These ex\xc2\xad\nemptions . . . would where time factors dictated immediate ac\xc2\xad\ntion, expedite the acquisition of land and commencement of\nconstruction.\nS. Rep. No. 923, 81st Cong., 1st Sess. 21-22 (1949). The same concerns were\nechoed a few years later.\n7 See 48 U .S.C . \xc2\xa7 1409b, 42 U.S.C \xc2\xa7 1502(b); 36 U .S.C . \xc2\xa7 138b; 22 U .S.C \xc2\xa7 1471(3) (Supp III 1979); 16\nU .S .C \xc2\xa7 571c; 16 U .S .C \xc2\xa7 343b, 7 U S .C . \xc2\xa7 2250a.\n* S e e ,e .g , 48 U S.C . \xc2\xa7 1409b (\xe2\x80\x9cProjects authorized by this subchapter may be constructed without regard to the\nprovisions of Section 255 o f title 40\xe2\x80\x9d ).\n9 See 50 U .S .C . App \xc2\xa7 2281(h); 50 U S .C . App. \xc2\xa7 460(b)(9); 42 U.S C. \xc2\xa7 2224, 42 U .S.C . \xc2\xa7 1594a(d); 40\nU .S .C . \xc2\xa7 3 5 6 0 (1 ).\n10 Letter from Assistant General Counsel Reynolds, Department of the A ir Force to Deputy Assistant Attorney\nGeneral Liotta, Land and Natural Resources Division, Mar. 3, 1982\n\n434\n\n\x0cSection [701] also softens the effect c f [4 0 U .S .C . \xc2\xa7 2 5 5 ] when\nmilitary requirements call for immediate construction. It does not\navoid the requirement of the Revised Statutes that title to land be\napproved by the Attorney General, but it does avoid the necessity\nof condemning land and filing a declaration of taking, which of\nitself may be time-consuming, in every case in which con\xc2\xad\nstruction is required on an urgent basis.\nS. Rep. No. 1707, 83d Cong., 2d Sess. 13-14 (1954) (emphasis added)." Given\nthis legislative history, the traditional importance assigned to title approval under\n40 U.S.C. \xc2\xa7 255, and the fact that exceptions to the statute are clearly drafted,\nsee n.8, supra, we cannot agree with the Air Force that \xc2\xa7 701 completely\nexempts its projects from any review under 40 U.S.C. \xc2\xa7 255.12 Rather, we concur\nin your judgment that \xc2\xa7 701 permits the military to begin construction on the land\nprior to title approval\xe2\x80\x94 but still subjects it to the Attorney General\xe2\x80\x99s final\ndetermination as to the sufficiency of the title.13\n\nIII. The Effect of the Attorney General\xe2\x80\x99s Regulations\nThe Attorney General has delegated to the Corps of Engineers his authority to\napprove land titles.14This authority is \xe2\x80\x9c subject to his general supervision and in\naccordance with regulations promulgated by him.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 255. The\nAttorney General has promulgated such regulations, which state clearly which\nland titles may be approved. Regulations cfth e A ttorney G eneral P rom u lgated in\nAccordance With the Provisions o f Public L aw 9 1 -3 9 3 , Oct. 2, 1970 (Regula\xc2\xad\ntions). These Regulations state, in relevant part:\n5. C h a r a c te r o f T\n\nit l e\n\nW\n\nh ic h\n\nM ay B e A p p r o v e d\n\n(a) The agency must determine that the proposed interest in\nproperty is in accord with the authorizing legislation and that such\ninterest is sufficient for the purposes for which the property is\nbeing acquired\xe2\x80\x94 also that the purchase price is commensurate\nwith such interest.\n(b) Frequently vendors desire to convey lands to the Govern11 See also Military and Naval Construction. H earingsonH R. 7130andH R 8240 Before the House Com m, on\nArmed Services, 85th Cong., 1st Sess 2249 (1957) The Chairman of the Committee. Rep Vinson, questioning\nwhether a 99-year lease for a base had ever been approved, said, \xe2\x80\x9c Of course, the policy of the committee and the\npolicy of the Congress has been not to make any permanent installations on land unless the fee is in the\nGovernment \xe2\x80\x9d\n12 The GAO has also noted that the Attorney General\'s approval is necessary See GAO Final Report on CSOC\nAcquisition, Ch 3, at 12 (\xe2\x80\x9cthe Air Force must still obtain approval by the U S. Attorney General before funds can be\nspent to acquire the right-of-way to use Colorado lands\xe2\x80\x9d ) See also 47 Comp Gen 61, 64 (1967).\n13 If the Attorney General does find the title insufficient, and negotiations are inadequate tb acquire a better title,\nthe government\xe2\x80\x99s interests can still be protected by its ultimate authonty to have the property condemned and taken\nfor a governmental purpose. See, e.g ., UnitedStates v South Dakota, 212 F.2d l4 (8 th C ir 1954) (Rapid C ity Air\nForce Base) Of course, the government must have sufficient money appropriated to cover the cost of just\ncompensation\n14 See n.5, supra\n\n435\n\n\x0cment by deeds which contain provisions for the reversion of the\ntitle when the property ceases to be used for a specified purpose.\nAlso there may be restrictive covenants or agreements in con\xc2\xad\nveyances to prior owners under which the title might revert to the\ngrantors in such deeds upon the use of the property for an\nunauthorized purpose or for other reasons. When perm anent type\nim provem ents o r im provem ents c f substantial value are to be\nerec ted on lan ds, a defeasible title to such lands is not acceptable\na n d m u st n ot b e approved, unless the esta te is clea rly authorized\nby the C on gress.\n\n(c) Other covenants and conditions in the deeds to the United\nStates or in prior deeds may limit the use of the property in a\nmanner which may prevent the sale and disposition of the proper\xc2\xad\nty under laws relating to the disposition of surplus property so as\nto prevent the recovery o f a substantial portion of the Govern\xc2\xad\nment\xe2\x80\x99s investment in the property. Titles are not acceptable which\nare subject to such covenants and conditions in the absence of\nclear authorizing legislation.\n:j:\n\n;fe\n\nifc\n\n\xe2\x99\xa6\n\n%\n\n(f) A defeasible fee title to land may be acquired by purchase or\ndonation when no permanent improvements are to be created\nthereon, provided that the statute authorizing the acquisition in\nquestion does not preclude acquisition of title to the interest which\nthe agency intends to acquire, the interest intended to be acquired\nis sufficient to permit the use of the land contemplated, and the\nconsideration for the land has been determined with reference to\nthe value of the limited interest that is acquired. In the event it is\nd e c id e d a t som e future tim e to erect perm an en t im provem ents on\nsuch land, the provision f o r defeasance m ust be elim inated.\nE xceptions to the foregoin g restrictions an d requirem ents m ay be\nm ade on ly by the Attorney G eneral, in in dividual instances when\nw arran ted in the interests c f the U nited S ta tes .15\n\nRegulations, 5(a)-(c), (f) (emphasis added).\nThus, unless the estate is \xe2\x80\x9c clearly authorized by the Congress,\xe2\x80\x9d less than fee\nsimple titles for lands on which the United States is placing permanent improve\xc2\xad\nments may not be approved by the Corps of Engineers.\nThe Air Force argues that the estate\xe2\x80\x94 a right-of-way subject to a reversion\ninterest\xe2\x80\x94 has been \xe2\x80\x9c clearly authorized\xe2\x80\x9d by \xc2\xa7 701 of the Military Construction\nAuthorization Act, su pra. Section 701 permits the authority to place permanent\nimprovements on land to \xe2\x80\x9cbe exercised before title to the land is approved under\n[40 U .S.C . \xc2\xa7 255], and even though the land is held temporarily.\xe2\x80\x9d\n15 This last sentence was added in J974\n\n436\n\n\x0cThe Air Force states that it forwarded \xe2\x80\x9c DD Forms 1391\xe2\x80\x9d to its oversight\ncommittees from 1969 to 1977, and that these forms contained lines indicating\nthat some of the land being used for air bases was under long lease. Letter from\nAssistant General Counsel Reynolds, Department of the Air Force, to Deputy\nAssistant Attorney General Liotta, Land and Natural Resources Division, March\n3, 1982. The Air Force therefore concludes that, since the forms were printed in\nthe Committee hearings, this is \xe2\x80\x9c powerful proof that the practice of construction\non land held in other than fee under appropriate circumstances is an approved\none.\xe2\x80\x9d Id. at 2. But see TVA v. H ill, 437 U.S. 153, 191-93 (1978); supra n. 11.\nWe disagree with the Air Force\xe2\x80\x99s analysis. We believe that the phrase \xe2\x80\x9c even\nthough the land is held temporarily,\xe2\x80\x9d read in context, permits the Secretary to\nbuild on land held temporarily\xe2\x80\x94 e .g ., through a lease\xe2\x80\x94 while the Attorney\nGeneral scrutinizes the title. We have previously stated our belief that statutes\ngranting general authority to purchase lands and interests in lands are not enough\nto constitute the clear authorization needed to overcome the Regulations.\n\xe2\x80\x9c [N]othing short of a direct and specific approval by Congress of a particular\nacquisition will suffice whenever substantial improvements are to be made and\nthe acquisition of less than fee title is contemplated.\xe2\x80\x9d Memorandum for General\nCounsel Coleman, Department of Energy, from Deputy Assistant Attorney\nGeneral Hammond, Office of Legal Counsel, August 28, 1979 at 8 (Energy\nMemorandum) (rejecting servitude interest).16 Section 701 was not meant to\noverrule the Attorney General\xe2\x80\x99s outstanding regulations, regulations that reflect\nan administrative practice dating back to the nineteenth century that insists that\nthe government obtain a fee title when making permanent improvements. There\nis nothing in the legislative history of \xc2\xa7 701 or its predecessors that indicates\nCongress meant to reject this rule in favor of letting valuable military establish\xc2\xad\nments be placed on any kind of estate that the military happens to obtain. Rather,\nthe emphasis is on the need for speed and efficiency in beginning work on\nmilitary projects. The Air Force\xe2\x80\x99s interpretation would encourage the military to\nobtain the cheapest\xe2\x80\x94 and hence, often the weakest\xe2\x80\x94 land interests available, a\ngoal at odds with the Attorney General\xe2\x80\x99s oversight role and Congress\xe2\x80\x99 own\ninterest in ensuring that valuable improvements are not placed at risk.17 If a\ntemporary interest were sufficient for permanent improvements, there would\nnever be a need for the Attorney General to pass on the sufficiency of the title.\nThe issue need not be resolved, however, because the central issue in this\ndispute is whether the Attorney General is willing to approve the title to this\nland.18 Even if we found that \xc2\xa7 701 \xe2\x80\x9c clearly\xe2\x80\x9d authorized acquisition of less than\n16 The statute in that case authonzed purchase of any possessory right, including easements, leaseholds, and\nmineral rights. Id. at 2\n17 We would note that this policy is already reflected in 10 U.S C \xc2\xa7 9773(d) which deals with Air Force\nacquisition of land for regular \xe2\x80\x9c air bases and depots.\xe2\x80\x9d 10 U .S.C \xc2\xa7 9773(a) When the Secretary of the Air Force\nneeds land, he may acquire \xe2\x80\x9c title, in fee simple and free of encumbrance.\xe2\x80\x9d Id \xc2\xa7 9773(d)\n18 The Regulations mandate that the Attorney General\xe2\x80\x99s opinion be requested by the agency lo which a delegation\nhas been made both when an exception is sought to the fee simple requirement, see Regulations, 5(0, and when the\nland is subject to a reversionary interest Id. 5(g). \xe2\x80\x9c When it is desired to accept the title to lands, subject to any rights\nof reversion, the opinion o f the Attorney General must be requested and full supporting facts containing a reference\nto any authorizing authonty must be submitted for consideration \xe2\x80\x9c (Emphasis added ) See also Regulations, 5(h)\n("Federal departments and agencies must exercise sound legal judgment in determining the validity of titles to lands\nand, in case of doubt of such validity, the Attorney General must be requested to render his title opinion pursuant to\nthe above-mentioned Act prior to the payment of the purchase pnce \xe2\x80\x9d )\n\n437\n\n\x0cfee interests, which we do not, the next step would still be an examination of\nwhether the Attorney General should approve the title. The next section sets forth\nvarious reasons why we believe the Land and Natural Resources Division, acting\non behalf of the Attorney General, may wish to disapprove the title proffered for\nthe CSOC land.\nIV. Tlhe Attorney General\xe2\x80\x99s Broad Duty Under 40 U.S.C. \xc2\xa7 255\n\xe2\x80\x9c These regulations recognize that Congress may authorize the acquisition of\na n y interest in real property . . . no matter how risky, but they also recognize that\n\n\xe2\x80\x98it is very seldom that a particular interest is authorized by legislation.\xe2\x80\x99 Regula\xc2\xad\ntion 4(a).\xe2\x80\x9d Energy Memorandum, at 4. There is nothing in the language of 40\nU .S.C . \xc2\xa7 255 which requires that the Attorney General only approve fee simple\ntitles when permanent improvements are planned. Nevertheless, the Attorney\nGeneral has chosen to narrow his own discretion by issuing the Regulations\nprescribing limits on the kind of title that may be approved when the government\nwishes to erect permanent improvements. The Regulations bind both the Land\nand Natural Resources Division, which is acting for the Attorney General, and\nthe agencies to whom approval authority has been delegated.\nWhen Congress revised 40 U .S.C . \xc2\xa7 255 in 1970, it discussed the factors to be\nconsidered in evaluating whether a title is sufficient for the purpose for which the\nproperty is being acquired. That evaluation involves more than determining that\nthere is no cloud on the title. As the House Report stated,\n[Agencies already make] determinations [that] relate to the pro\xc2\xad\npriety, timing and scope of acquisition, as well as the develop\xc2\xad\nment, use and disposition of such properties. W hether the interest\nin lan d, that is the title being acquired, is sufficientf o r the pu rpose\nc f a p ro g ra m o r presents unw arranted risks f o r the U nited States\n\ninvolves a similar sort o f determination under current practices.\nH.R. Rep. No. 970, supra, at 5 (emphasis added). S ee Regulations, 5(a), supra.\nIn order to provide you with some observations concerning the exercise of your\ndiscretion regarding whether the proposed title is sufficient for government\npurposes, we have done a brief review of applicable Colorado law. While we are\nby no means experts on Colorado law, our review has raised issues for you to\nconsider. We concur with your tentative view that the right-of-way offered by\nColorado is not sufficient for the Air Force\xe2\x80\x99s purposes for a variety of reasons.\nThere are persuasive arguments that a right-of-way subject to a reversion is not\nadequate to protect the interests of the federal government. Moreover, there is a\nrisk that the Colorado State Board of Land Commissioners\xe2\x80\x99 transfer of the land\nvia a deed to a right-of-way rather than by sale of the fee interest would be beyond\nthe scope of its powers under the Colorado Constitution and implementing\nstatutes.\nThe Board has limited authority, deriving its powers from the Colorado\nConstitution, Colo. Const, art. IX, \xc2\xa7\xc2\xa7 9, 10,19 and implementing statutes.\n19 \xe2\x80\x9c It shall be the duty o f the State board of land commissioners to provide for th e . . sale or other disposition of\nall the lands\nin such manner as will secure the maximum possible amount therefor\xe2\x80\x9d Colo. C onst, art. IX, \xc2\xa7 10.\n\n438\n\n\x0cColorado jurisprudence has long held that, as a creature of limited authority, the\nBoard may not act beyond its authority, and that when it does, its actions are null\nand void. For example, the Colorado Supreme Court, nullifying a land sale\nbecause the Board had not properly advertised the land, has said:\nWhatever power the board possesses to sell state lands o r any p a rt\nthereof is derived from the Constitution, and the manner or\nmethod to be pursued by it in selling or conveying the same is to\nbe in accordance with some legislative act prescribing or regulat\xc2\xad\ning the steps to be taken. Hence, when the board attempts to\ndispose of the state lands under its lawful powers, a failu re on its\np a rt to substantially com ply with the requirem ents c f the leg is\xc2\xad\nlative a ct concerning such disposition leaves the title unaffected,\n\nand conveys no title in the land to the purchaser. Under such\ncircumstances the acts of the board, in executing or delivering any\ndeed or other muniment of title to the land, are ultra vires.\nB riggs v. People,\nSee also D risco ll\ncert, denied, 277\n1976) (en banc);\n\n121 P. 127, 128-129(Colo. 1912) (e n b a n c ) (emphasisadded).\nv. State B d. c fL a n d C om m \xe2\x80\x99rs, 23 F.2d 63, 64 (8th Cir. 1927),\nU.S. 586 (1928); Evans v. Sim pson, 547 P.2d 931, 934 (Colo.\nW alpole v. State B d. c fL a n d C om m \xe2\x80\x99rs, 163 P. 848, 850, 851\n\n(Colo. 1917).\nThe Board\xe2\x80\x99s action may be open to challenge on the grounds that the transac\xc2\xad\ntion is a \xe2\x80\x9c sale,\xe2\x80\x9d governed by Colo. Rev. Stat. \xc2\xa7 36-1-124, rather than the grant\nof a right-of-way, id ., \xc2\xa7 36-1-136 (1980 Cum. Supp.).20 A right-of-way may be\ngranted to the United States \xe2\x80\x9c on any tracts of state land,\xe2\x80\x9d id ., while the Draft\nAgreement would grant it \xe2\x80\x9c upon, over, under and across the surface\xe2\x80\x9d of the land.\nDraft Agreement, 11 4 .21 The Colorado Constitution requires that the \xe2\x80\x9c sale or\nother disposition\xe2\x80\x9d of state lands must \xe2\x80\x9c secure the maximum possible amount\ntherefor.\xe2\x80\x9d Colo. Const, art. IX, \xc2\xa7 10. Sales and leases are, therefore, publicly\nadvertised and auctioned, unlike this transaction. A disappointed land seeker\n20 \xe2\x80\x9c The state board of land com m issioners. . may grant rights-of-way on any tracts of state land to any public\nagency or instrumentality of the United States . . for any public use or purpose.\xe2\x80\x9d (Emphasis added )\n21 We are also concerned that the Board does not have the authonty to grant a nght-of-way that conveys such an\nextensive interest. Even the Board\xe2\x80\x99s more general authority is only to grant nghts-of-way \xe2\x80\x9c across or upon\xe2\x80\x9d certain\ntracts Colo. Rev Stat. \xc2\xa7 3 6-1-136 (1980 Cum. S u p p ) The GAO\xe2\x80\x99s analysis of this transaction expresses some\ndoubts as to its legality but concludes that there is no reaJ problem since the United States can always condemn the\nproperty\nThe Air Force and State are evidently treating this transaction as a grant of right-of-way falling under\nthe statute rather than as a sale or other disposition falling under the constitutional provision\nWhether this is correct is a question o f State law Generally, GAO will not question a State\xe2\x80\x99s\ninterpretation of its own law. The Board\xe2\x80\x99s counsel advised us that the Board does not believe the\nconstitutional provision applies and therefore that the Board is not required to secure the maximum\npossible amount.\nThe possibility exists that the legality of the conveyance could be challenged in a lawsuit While\nthe possibility of litigation cannot be foreclosed, it is in our judgment not likely. Moreover, as\nmentioned earlier, the United States may condemn without delay whatever interest in land it needs,\nshould any doubt later anse as to the legality of the conveyance by the State. With that option\navailable, and given the Board\'s view that it has legal authonty to convey the nght-of-way, we find no\nlegal reason for the Air Force not to go ahead with the acquisition as planned\nGAO Op No B -205335, at 3, reprinted as Appendix IV to GAO Final Report on CSOC Acquisition Con\xc2\xad\ndemnation may provide a remedy when the title proves insufficient, but it does not answer the question of w hether a\ntitle is in fact sufficient under 40 U S C \xc2\xa7 255\n\n439\n\n\x0cmight argue that, no matter how the Board denominates the transaction, it is\nactually a sale, which must be advertised to produce the maximum return, Colo.\nRev. Stat. \xc2\xa7 3 6 -1-124, oralease, id. \xc2\xa7 3 6 -1 -1 18(l)(a), which can be for a term\nof no more than ten years.22The land is presently being leased to a private user for\ngrazing purposes,23 and the lessee\xe2\x80\x99s interests are being conveyed to the United\nStates for $1,950.24\nOur second concern is that a right-of-way would appear to be insufficient for\nthe Air Force\xe2\x80\x99s purpose. The section authorizing the Board to grant rights-of-way\n\xe2\x80\x9c shall not be construed to grant authority to said board to convey title to any such\nland by a grant of right-of-way.\xe2\x80\x9d Id. \xc2\xa7 36-1-136 (1980 Cum. Supp.). Under Colorado law, therefore, there is no \xe2\x80\x9c title\xe2\x80\x9d conveyed to the United States that the\nAttorney General can examine for sufficiency.\nEven if we assume, however, that the meaning of \xe2\x80\x9c title\xe2\x80\x9d in40U .S.C . \xc2\xa7 255 is\nbroader than the \xe2\x80\x9c title\xe2\x80\x9d under Colorado law, so that there is a \xe2\x80\x9c title\xe2\x80\x9d to the rightof-way that the Attorney General can examine, that \xe2\x80\x9c title\xe2\x80\x9d would seem to be\nentirely too precarious for the A ir Force\xe2\x80\x99s purposes. First, rights-of-way and\neasements belonging to the United States may be condemned in state court upon\nthe application of any corporation authorized under Colorado law to condemn\npublic lands. Colo. Rev. Stat. \xc2\xa7 38-3-101.25 This would expose the United\nStates to the constant threat of new rights-of-way circumscribing the Air Force\xe2\x80\x99s\nuse of parts of the tract as corporate pipelines, telephone wires and access roads\nare erected, and to the need either to pay the corporations to choose some other\nroute, engage in litigation to forestall the condemnations, or, eventually, to\ncondemn the tract itself and pay the state for the taking.26\nSecond, all C olorado state institutions, departm ents, and agencies, id.\n\xc2\xa7 24\xe2\x80\x9482-201, as well as the Board, can grant easements or rights-of-way over\n22 The Board hears claims on lands, Colo R ev Stat. \xc2\xa7 36-1-131 (Cum. Supp. 1980), but its decisions may be\nchallenged by any interested party. See, e g.. Wilson v Collins, 165 P 2d 663 (Colo. 1946) (en banc) (taxpayers\ncould maintain mandamus action to force Board to collect rents owed on State land); People ex rel Stonebraker v.\nWood, 10 P 2 d 331 (Colo 1932) The uncertainty inherent in state land law decisions is another reason that the\nAttorney General has always insisted on an irreproachable title to land\nBut, if the question presented have not been so adjudged in the Slate, if it be a new point of\nconstruction presented by the statutes o f a State,\xe2\x80\x94 the Attorney General would take upon himself\nburdens of responsibility, not justified by any emergency in the mere matter of expediency of\nselection between this or that site of a co u rt house or posl office, or of paying more or less money for a\nsite, if he should presume to warrant to the Government what will be the decision of the courts of the\nparticular Slate on the construction o f their own statutes, especially where the United States are\nconcerned.\n8 Op. A tt\xe2\x80\x99y Gen. 405, 408 (1857).\n23 See Quitclaim Deed attached to Draft A greement\n24 O ne o f the potential issues for litigation is the extent of the present lessee\xe2\x80\x99s nghts, specifically reserved to him,\nunder the Uniform Relocation Assistance and R eal Property Acquisition Policies Act of 1970,42 U.S.C \xc2\xa7 4601 et\nseq. Quitclaim D eed, at 1.\n\xe2\x80\x9c The list o f corporations possessing the pow er of condem nation is fairly broad. See Colo Rev. Stat.\n\xc2\xa7\xc2\xa7 3 8 -2 -1 0 1 -1 0 5 .\n26 In a recent decision, the Colorado Court o f Appeals upheld the Board\xe2\x80\x99s grant of a nght-of-way for a railroad\nover mining lands leased from the State, despite the lessee\xe2\x80\x99s objections. Utah Int\'l, Inc. v B d c f Land Comm\'rs,\n579 P.2d 96 (Colo 1978). The C ourt held that the lessee was not adversely affected because it had no immediate\nplans to mine the coal under the proposed nght-of-way. If the railroad, once built, did interfere with the m ining, the\nC ourt indicated that the remedy was a damage action, 579 P.2d at 97, not removal of the railroad Unless the Air\nForce plans to build on all 640 acres immediately, pnvate parties could similarly narrow the government\xe2\x80\x99s ability to\nuse the entire tract. See also B d c f Land C om m \'rs v. D istrict Court, 551 P 2d 700 (Colo. 1976) {en banc)\n\n440\n\n\x0cland owned by the state. We are not aware of anything in the Draft Agreement that\nwould preclude a state agency or the Board from granting another right-of-way\nover part of the CSOC tract\xe2\x80\x94 which would still be owned by the state.\nThird, the Attorney General has traditionally not approved titles to property\nwhere there is a reversionary right.\nAcceptance of such a title could result in the loss of extensive\ninvestments made by the United States in improvements on the\nproperty. There is no assurance that the Congress will continue to\nappropriate funds for an intended use, thereby causing the title to\nthe lands and the improvements to revert to the [State]. Further\xc2\xad\nmore, provisions allowing the Government to remove the im\xc2\xad\nprovements in the event of such reversion are usually meaningless\nsince the cost of removing permanent expensive buildings is\ngenerally greatly in excess of any sale of the salvage from the\nbuilding.\nMemorandum for Director Zwick, Bureau of the Budget, from Deputy Attorney\nGeneral Christopher, Sept. 10, 1968, at 1. The Draft Agreement provides for\nreversion whenever the land is not being used for a governmental purpose and\ndoes not even include a right to salvage the permanent improvements. Rather, the\nUnited States could either sell the improvements or abandon them\xe2\x80\x94in which\ncase they revert to the state. Draft Agreement, 11 13.27\nThe lack of any \xe2\x80\x9c title\xe2\x80\x9d under state law and the precarious nature of rights-ofway under Colorado law are the very kinds of flaws that an Attorney General\xe2\x80\x99s\nreview are meant to detect. 8 Op. Att\xe2\x80\x99y Gen. 405, 407 (1857).28 The Attorney\nGeneral\xe2\x80\x99s duty is to protect the federal government from the harassment and\npossible financial loss that could result from a less than sufficient title. The\nproffered \xe2\x80\x9c title\xe2\x80\x9d to the right-of-way seems to be seriously insufficient for the site\nof a multimillion dollar military complex. We are aware of nothing which would\nprevent the Air Force from buying the land,29 and we recommend that course of\naction.\nV. Conclusion\nWe believe that the Land and Natural Resources Division has correctly\ndetermined that the Attorney General must examine the title for the right-of-way\n27 The right-of-way is also made subject to outstanding rights-of-way and easements Id. 1i 6. The Board has\nassured the Air Force that none exists, but if any should come to light, their continued existence would raise the same\nproblems outlined above\n28 A policy implication that may need further consideration is that the Draft Agreement reserves both m ineral and\nwater rights. Id. H1i 5. 9 The United States cannot even explore for water without the state\xe2\x80\x99s permission Id H 9\nWater nghts which may be sufficient now for the Air Force\xe2\x80\x99s purposes may well be insufficient in a decade or so\nwhen the CSOC is a center of activity with personnel and their families living on the tract Colorado is not a waternch state, and development of the CSOC may be severely curtailed if Colorado refuses to permit exploration, while\nany water flowing through the tract may be appropriated by others in the interim In the same way, it would seem\nwiser to acquire now the title to subsurface mineral interests, such as geothermal resources and oil, rather than wait\nand pay an almost assuredly higher price to the state in a few years Moreover, their purchase would place control of\nexploration and exploitation in the federal government, which could ensure that they did not conflict with the\nCSOC\xe2\x80\x99s mission.\n29 See Colo Rev. Stat \xc2\xa7 3 -1 -1 0 1 .\n\n441\n\n\x0cand that, acting on behalf of the Attorney General, it should advise the Corps of\nEngineers that the interest conveyed by the Draft Agreement to a right-of-way in\nthe tract is not sufficient for the purpose for which the property is being acquired.\nRobert B . S hanks\n\nD eputy A ssista n t A ttorn ey G eneral\nOffice c f L eg a l Counsel\n\n442\n\n\x0c'


b"The President\xe2\x80\x99s Power to Remove the Board of Directors of\nthe Pennsylvania Avenue Development Corporation\nIn the absence o f a clear legislative intent to the contrary, the President may remove his\nappointees at will. The Pennsylvania Avenue Developm ent Corporation Act o f 1972, 40\nU.S.C. \xc2\xa7\xc2\xa7 871 et seq., provides for appointm ent o f a board o f directors by the President, but is\nsilent on rem oval.\nA lthough the A ct provides for a six-year term o f office, a provision for a term , by itself, is not a\nrestriction on the President\xe2\x80\x99s rem oval authority, but rather, is a limitation on the period for\nwhich an appointee may serve w ithout reappointm ent.\nN othing in the statutory scheme, legislative history, or in the nature of the Board\xe2\x80\x99s functions,\nindicates an intent to restrict the P resident\xe2\x80\x99s removal power. Therefore, the board o f directors\nmay be rem oved by the President at will.\n\nMay 18, 1983\nM\n\nem o ran d um\n\nO p in io n\n\nfo r th e\n\nC oun sel\n\nto the\n\nP r e s id e n t\n\nThis memorandum responds to your request for our opinion whether the\nPresident has the power to remove the directors of the Pennsylvania Avenue\nDevelopment Corporation (PADC). We assume that your inquiry is directed to\nthose directors who are appointed by the President pursuant to 40 U.S.C.\n\xc2\xa7 872(c)(8), as opposed to those who serve ex officio. We conclude that the\nPresident does have the power to remove the directors of the PADC appointed\nby him under \xc2\xa7 872(c)(8).\nI. The Board\n\xe2\x80\xa2 The Board was established pursuant to the provisions of the Pennsylvania\nAvenue Development Corporation Act of 1972, Pub. L. No. 92-578, 86 Stat.\n1266 (codified at 40 U.S.C. \xc2\xa7\xc2\xa7 871 et seq. (1976)) (Act). Section 872 creates\nthe Corporation as a wholly owned government corporation, and vests its\npowers and management in a Board of Directors consisting of the Secretaries\nof the Interior, Treasury, Housing and Urban Development, and Transporta\xc2\xad\ntion, the Administrator of General Services, the Mayor of the District of\nColumbia, the Chairman of the Council of the District of Columbia, and \xe2\x80\x9ceight\n[additional members], at least four of whom shall be residents and who are\nregistered voters of the District of Columbia, appointed by the President from\nprivate life, who shall have knowledge and experience in one or more fields of\n116\n\n\x0chistory, architecture, city planning, retailing, real estate, construction, or gov\xc2\xad\nernment.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 872(c)(8).\nSection 872(e) provides in part that each member appointed pursuant to\n\xc2\xa7 872(c)(8) \xe2\x80\x9cshall serve for a term of six years from the expiration of his\npredecessor's term.\xe2\x80\x9d Subsection (e) also provides for staggered terms, and for\nthe appointment of directors to serve out the remainder of terms. Directors may\ncontinue to serve until their successors are qualified. Subsection (f) provides\nthat the President is to designate a Chairman and Vice Chairman from among\nthe private members. Subsection (g) provides for eight ex officio non-voting\nmembers. The Act contains no provision concerning the removal of directors.1\nII. Statutory Interpretation\nThe determination whether the President has the power to remove a Presi\xc2\xad\ndential appointee presents initially a question of statutory interpretation. If the\nstatute is interpreted to reflect an intention to restrict the President\xe2\x80\x99s removal\npower, it is then necessary to reach the constitutional question whether the\nCongress had the power to do so. Here, we find it unnecessary to reach the\nconstitutional question because we conclude that there is no persuasive evi\xc2\xad\ndence of a congressional intent to restrict the President\xe2\x80\x99s power to remove the\ndirectors of the PADC.\nA. Governing Law\n\nIn the absence of a provision to the contrary, the power to appoint carries\nwith it the power to remove.2 Accordingly, if a statute provides for appoint\xc2\xad\nment by the President, but is silent on the subject of removal, the President may\nremove an appointee unless the statutory scheme and legislative history dem\xc2\xad\nonstrate that Congress intended implicitly to limit the President\xe2\x80\x99s removal\npower. A statute is silent on the subject of removal if it contains neither an\nexpress provision restricting removal nor other provisions relating to the\nappointee\xe2\x80\x99s tenure in office or terms of removal which must be interpreted as\nintended to restrict the removal power. Provisions for a term, such as the\nprovision for a six-year term in the PADC Act, by themselves, have not been\ninterpreted as intended to restrict the removal power, but rather as limitations\non the period for which an appointee can serve without reappointment.3 A\nprovision for a term, coupled with a provision setting forth the bases for\n1 The bylaw s o f the Corporation, which appear at 36 C.F.R. \xc2\xa7\xc2\xa7 901.1-901.7 (1982), also contain no\nprovision concerning the rem oval o f directors.\n2 Jam es M adis6n announced this rule during the first session o f the First C ongress. 1 A nnals o f Cong. 479\n(J. G ales ed. 1789). The courts have consistently upheld the applicability o f the rule. M atter o f Hennen, 38\nU.S. (13 Pet.) 230, 2 5 9 -6 0 (1839); Blake v. U nited States, 103 U.S. 227, 231 (1880); Myers v. United States,\n272 U.S. 52, 119 (1926); Cafeteria Workers v. McElroy, 367 U.S. 886, 896-97 (1961); Sam pson v. M urray,\n415 U.S. 61, 70 n.17 (1974); N ational Treasury Em ployees Union v. Reagan, 663 F.2d 239, 246-48 (D .C .\nCir. 1981); Kalaris v. Donovan, 697 F.2d 376 (D.C. Cir.), cert, denied, 462 U.S. 1119 (1983).\n>See e.g., Parsons v. U nited States, 167 U.S. 324, 338 (1897); M artin v Tobin, 451 F.2d 1335, 1336 (9th\nCir. 1971).\n\n117\n\n\x0cremoval for cause, may be interpreted as a restriction on the President\xe2\x80\x99s\nremoval power.4\n1. Quasi-judicial or Quasi-legislative Functions\nIf it is concluded that a statute providing for Presidential appointment is\nsilent on the subject of removal, it is necessary next to determine whether\nCongress intended implicitly to restrict the President\xe2\x80\x99s removal power. The\nstarting point in making this determination is an examination of the functions\nof the appointee\xe2\x80\x99s office. For example, the performance primarily of quasi\xc2\xad\njudicial functions will support the inference that Congress intended to restrict\nthe President\xe2\x80\x99s removal power. See W iener v. United States, 357 U.S. 349\n(1958); cf. H um phrey\xe2\x80\x99s Executor v. U nited States, 295 U.S. 602 (1935).5 The\nW iener case involved a challenge to the removal of a member of the War\nClaims Commission. The statute which created the Commission provided for\nappointment by the President with the advice and consent of the Senate, but\nwas silent on the subject of removal. The Court said that \xe2\x80\x9cthe most reliable\nfactor for drawing an inference regarding the President\xe2\x80\x99s power of removal in\nour case is the nature of the function that the Congress vested in the War\nClaims Commission.\xe2\x80\x9d 357 U.S. at 353. The Court referred to \xe2\x80\x9cthe sharp line of\ncleavage\xe2\x80\x9d it had drawn in H um phrey\xe2\x80\x99s Executor \xe2\x80\x9cbetween officials who were\npart of the Executive establishment. . . and those who are members of a body\n\xe2\x80\x98to exercise its judgment without the leave or hindrance of any other official or\nany department of the government\xe2\x80\x99 . . . . \xe2\x80\x9d Id. at 353. In Wiener, the Court relied\non the War Claims Commission\xe2\x80\x99s performance of adjudicative functions to\ninfer that Congress intended to restrict the President\xe2\x80\x99s power to remove its\nmembers. 357 U.S. at 356. Because the Commission was established to adjudi\xc2\xad\n4 In H u m p h rey's E xecu to r v. United States, 295 U.S. 602 (1935), the provision for a term was coupled with\na provision for rem oval fo r cause; the C ourt also em phasized legislative history indicating that Congress\nintended the Federal Trade Commission to be independent o f executive control\n5 T he Suprem e C ourt cases addressing the President\xe2\x80\x99s pow er to rem ove persons appointed by him consists\no f the trilogy o f M yers v. United States, 272 U.S. 52 (1926); H um phrey's Executor, 295 U.S. 602 (1935); and\nW iener v. U nited States, 357 U.S. 349 (1958). M yers held th at C ongress cannot lim it the President\xe2\x80\x99s pow er to\nrem ove the persons appointed by him by and w ith the advice and consent o f the Senate. H um phrey's Executor\nheld that C ongress can lim it the P resid en t's pow er to rem ove quasi-judicial and quasi-legislative officers,\nrestricted th e scope o f M yers to purely executive officers, and left open the question w hether and to what\nextent C ongress can lim it the President\xe2\x80\x99s pow er to rem ove those o f his appointees who perform neither quasiju d icial, quasi-leg islativ e, nor purely executive functions: \xe2\x80\x98T o the extent that, betw een the decision in the\nM yers case, w hich sustains the unrestrictable pow er o f the President to rem ove purely executive officers, and\nour present decision that such power d o es not extend to an office such as that here involved, there shall\nrem ain a field o f doubt, w e leave such cases as may fall w ithin it for future consideration and determ ination as\nthey m ay arise.\xe2\x80\x9d 295 U .S. at 632. Finally, Wiener sustained the restriction on the President\xe2\x80\x99s removal power\nw hich it held could be inferred from the W ar C laim s C om m issioner\xe2\x80\x99s perform ance o f adjudicative functions\nT he M yers case is lim ited to officers appointed by the President by and with the advice and consent of the\nSenate. U nited States v. Perkins, 116 U .S . 483 (1886) held that where Congress vests the appointm ent power\nin a D epartm ent head under Article II, \xc2\xa7 2 o f the C onstitution, it may lim it the removal power. M yers did not\ndecide w h eth er Perkins applies where th e pow er o f appointm ent is vested in the President alone, because the\nissue w as not before it. It strongly suggested, however, that the question was to be answ ered in the negative.\n272 U .S. at 161-62. In M artin v. Reagan, 525 F. Supp. 110 (D. Mass. 1981), the C ourt held that an officer\nappointed by the P resident alone may b e rem oved by the President at w ill.\n\n118\n\n\x0ccate according to law, and \xe2\x80\x9cone must take for granted\xe2\x80\x9d that the statute \xe2\x80\x9cpre\xc2\xad\ncluded the President from influencing the Commission in passing on a particu\xc2\xad\nlar claim, a fo rtio ri must it be inferred that Congress did not wish to have hang\nover the Commission the Damocles\xe2\x80\x99 sword of removal by the President.\xe2\x80\x9d Id. In\nHumphrey\xe2\x80\x99s Executor, the Court stated that \xe2\x80\x9cthe very nature of the Federal\nTrade Commission duties\xe2\x80\x9d require it to \xe2\x80\x9cact with entire impartiality . . . . Its\nduties are neither political nor executive, but predominantly quasi-judicial and\nquasi-legislative.\xe2\x80\x9d 295 U.S. at 624. H umphrey\xe2\x80\x99s Executor rested its conclusion\nthat Congress intended to restrict the President\xe2\x80\x99s power to remove the Commis\xc2\xad\nsioners only in part on the Commission\xe2\x80\x99s performance of those functions.\nThe opinions in Wiener and H um phrey\xe2\x80\x99s Executor do not attempt to define\nthe terms \xe2\x80\x9cadjudicatory\xe2\x80\x9d or \xe2\x80\x9cquasi-judicial and quasi-legislative\xe2\x80\x9d with any\nprecision. However, some functions are clearly within the scope of those terms.\nIn Wiener, the Court characterized the War Claims Commission\xe2\x80\x99s function as\n\xe2\x80\x9cadjudication] according to law,\xe2\x80\x9d \xe2\x80\x9cthat is, on the merits of each claim, sup\xc2\xad\nported by evidence and governing legal considerations.\xe2\x80\x9d 357 U.S. at 355. In\nHumphrey's Executor, the Court pointed to the FTC\xe2\x80\x99s function to \xe2\x80\x9cexercise the\ntrained judgment of a body of experts \xe2\x80\x98appointed by law and informed by\nexperience,\xe2\x80\x9d \xe2\x80\x99 its \xe2\x80\x9cduties as a legislative or as a judicial aid,\xe2\x80\x9d and its responsi\xc2\xad\nbilities for \xe2\x80\x9cinvestigations and reports thereon\xe2\x80\x9d to Congress. 295 U.S. at 624,\n628. The Court also discusses the FTC\xe2\x80\x99s adjudicative functions. Id. at 628.\nThus, the assignment to an official of the performance of quasi-judicial and\nquasi-legislative functions, at least including \xe2\x80\x9cadjudication] according to law,\xe2\x80\x9d\nsupports an inference that Congress intended to restrict the President\xe2\x80\x99s removal\npower. Performance of quasi-legislative functions, including substantive\nrulemaking, cf. id. at 624, may not by itself support such an inference, but is\nsome evidence of intent to restrict.\n2. Presumption that Officer is Removable\nIf the statute is silent on removal and the officer performs neither quasi\xc2\xad\njudicial nor quasi-legislative functions as those terms are used in Wiener and\nHumphrey's Executor, the presumption that the President may remove him at\nwill controls. Only strong and unambiguous evidence of congressional intent is\nan adequate basis for concluding that Congress intended implicitly to restrict\nthe President\xe2\x80\x99s removal power. As the Court said in S h u rtleff\\. United States,\n189 U.S. 311 (1903):\nIt cannot now be doubted that in the absence of constitutional\nor statutory provision the President can by virtue of his general\npower of appointment remove an officer, even though appointed\nby and with the advice and consent of the Senate. . . . To take\naway this power of removal in relation to an inferior office\ncreated by statute, although that statute provided for an appoint\xc2\xad\nment thereto by the President and confirmation by the Senate,\n119\n\n\x0cwould require very clear and explicit language. It should not be\nheld to be taken away by mere inference or implication.\nId. at 314-15.6\n\nLegislative history suggesting that Congress looked favorably on the con\xc2\xad\ncept that a particular official would be \xe2\x80\x9cindependent\xe2\x80\x9d of executive control\nordinarily will not be enough. The concept of \xe2\x80\x9cindependence,\xe2\x80\x9d in the abstract,\nhas connotations that are appealing, and the term is often used in floor debates\nand legislative history without any specificity as to what precisely is intended.\nHowever, \xe2\x80\x9cindependence\xe2\x80\x9d is less attractive if it comes at the cost of account\xc2\xad\nability. Congress presumably recognizes that an official who is not removable\nmay act beyond the control of elected officials. Perhaps for this reason, the\ndiscussion of \xe2\x80\x9cindependence\xe2\x80\x9d during legislative debates often goes no further\nthan the abstract concept and seldom ripens into a clear specification of a\nlegislative intent to make an appointed official non-removable.\nBecause Congress knows how to provide expressly for restrictions on re\xc2\xad\nmoval if it chooses,7 the serious constitutional questions raised by congres\xc2\xad\nsional attempts to restrict Presidential removal of such appointees should be\navoided unless it is clear that Congress intended squarely to face the constitu\xc2\xad\ntional issue and affirmatively desires that an official be independent of and not\naccountable to the President. The burden of demonstrating intent to restrict the\nPresident\xe2\x80\x99s removal power is heaviest when the officer performs \xe2\x80\x9cpurely\nexecutive\xe2\x80\x9d functions, and an attempt to restrict the power to remove such an\nofficer would be unconstitutional under M yers. The burden is also heavy when\nan officer performs a mixture of executive and other functions, and his func\xc2\xad\ntions cannot be described as \xe2\x80\x9cpredominantly quasi-judicial and quasi-legisla\xc2\xad\ntive,\xe2\x80\x9d or where his functions fall in the \xe2\x80\x9cfield of doubt\xe2\x80\x9d between purely\nexecutive and quasi-judicial and quasi-legislative functions. A restriction on\nthe President\xe2\x80\x99s power to remove such an officer would raise serious and\nunsettled questions of constitutional law under Myers, Humphrey\xe2\x80\x99s Executor\nand Wiener. See supra note 5.\nB. A pplication o f the Governing Law\n\nThe application of these principles to the PADC Board is straightforward.\nThe Act provides for appointment by the President, but is silent on the subject\nof removal: there is no express restriction on removal nor is there any legisla\xc2\xad\ntive history on the subject of removal, and the only provision relating to tenure\nin office is the provision for a six-year term.8 As noted, a provision for a term,\n6 In S h u r tle ff the C ourt concluded that a provision for rem oval fo r cause did not constitute such language. In\nH u m p h re y 's Executor, the C ourt distinguished S h u rtle ff on the ground that the statute there contained no\nprovisio n fo r a term . 295 U .S. a t 621-23.\n7 See, e.g., 42 U .S.C . \xc2\xa7 2996c(e) (Board o f th e Legal Services C orporation).\n8 T he H ouse R eport, the only Committee R ep o rt subm itted w ith the 1972 legislation, makes no mention of\nrem oval o f m em bers o f the Board. See H.R. R ep. No. 1445, 92d C ong., 2d Sess. (1972).\n\n120\n\n\x0cby itself, is not a restriction on removal. Thus, nothing in the Act or its\nlegislative history suggests an intent to restrict the removal power.\nHaving concluded that the statute is silent on removal, we turn next to an\nexamination of the functions of the PADC Board to determine whether it\nperforms quasi-judicial or quasi-legislative functions. It does neither. In estab\xc2\xad\nlishing the PADC, Congress found \xe2\x80\x9cthat it is in the national interest that the\narea adjacent to Pennsylvania Avenue between the Capitol and the White\nHouse,\xe2\x80\x9d which has been designated a national historic site, \xe2\x80\x9cbe developed,\nmaintained, and used in a manner suitable to its ceremonial, physical, and\nhistoric relationship to the legislative and executive branches of the Federal\nGovernment and to the governmental buildings, monuments, memorials, and\nparks in or adjacent to the area.\xe2\x80\x9d 40 U.S.C. \xc2\xa7 871(a). Congress further found\n\xe2\x80\x9cthat to insure suitable development, maintenance, and use of the area and the\nelimination of blight, it is essential that there be developed and carried out as an\nentirety plans for this area which will specify the uses, both public and private,\nto which property is to be put, the programming and financing of necessary\nacquisitions, construction, reconstruction, and other activities.\xe2\x80\x9d Id. \xc2\xa7 871(c).\nThe two chief functions of the PADC under the statute are to develop such a\nplan and to carry it out. Section 874 governs the content of the redevelopment\nplan and the procedures for its preparation, approval and revision.9 Section 875\nsets forth the powers conferred on the corporation to carry out the development\nplan, including the powers to acquire land by, inter alia, condemnation pro\xc2\xad\nceedings, id. \xc2\xa7 875(6); to establish by covenants, regulation and otherwise\n\xe2\x80\x9csuch restrictions . . . as are necessary to assure development, maintenance, and\nprotection of the development area in accordance with the development plan,\xe2\x80\x9d\nid. \xc2\xa7 875(8); to \xe2\x80\x9cborrow money from the Treasury of the United States\xe2\x80\x9d as\nauthorized in appropriations acts, id. \xc2\xa7 875(10); to \xe2\x80\x9ccontract for and accept\ngifts or grants or property or other financial aid . . . from any source,\xe2\x80\x9d\ngovernmental or other, id. \xc2\xa7 875(13); and \xe2\x80\x9cutilize or employ the services of\npersonnel of any agency . . . of the Federal Government.\xe2\x80\x9d Id. \xc2\xa7 875(21).\nAs the foregoing review demonstrates, the functions of the Board are neither\nquasi-judicial nor quasi-legislative within the meaning of H um phrey\xe2\x80\x99s Execu\xc2\xad\ntor and Wiener. Because there is nothing in the statutory scheme or legislative\nhistory to overcome the presumption that the President has authority over such\nofficials whom he appoints, and that the directors are therefore removable at\nwill, we conclude that the President may remove the directors of the PADC.\nHI. Conclusion\nThe Act provides for appointment of the directors of the PADC Board by the\nPresident, but is silent on the subject of removal: no provision in the Act\n9 The plan must include, inter alia, the types o f uses perm itted, criteria for design o f buildings and open\nspaces, an estim ate o f the re-use values o f the properties to be acquired, a determ ination o f the m arketability\no f the developm ent, and the procedures for insuring continuing conform ance to the developm ent plan. Id. at\n\xc2\xa7 874(a).\n\n121\n\n\x0cexpressly restricts the President\xe2\x80\x99s removal power, nor is there any provision\nbearing on the directors\xe2\x80\x99 tenure in office or terms of removal which must be\ninterpreted as intended to restrict the President\xe2\x80\x99s removal power. Moreover,\nbecause the PADC Board\xe2\x80\x99s functions are neither quasi-judicial nor quasi\xc2\xad\nlegislative as those terms are used in the Supreme Court cases addressing the\nPresident\xe2\x80\x99s removal power, no inference can be drawn from the functions\nassigned to the Board that Congress intended implicitly to restrict the removal\npower. In these circumstances, a presumption arises that the President may\nremove his appointees at will. As our discussion of the PADC Act and its\nlegislative history have demonstrated, there is nothing in either that history or\nthe statutory scheme to overcome this presumption. We therefore conclude that\nthe directors of the PADC may be removed by the President at will.\nTheodore B. O\n\nlson\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n122\n\n\x0c"


b'April 19, 1978\n\n78-21\n\nMEMORANDUM OPINION FOR THE\nGENERAL COUNSEL, DEPARTMENT OF\nHOUSING AND URBAN DEVELOPMENT\nDepartment of Housing and Urban\nDevelopment\xe2\x80\x94 Delegations of Authority\xe2\x80\x94\n42 U.S.C. \xc2\xa7\xc2\xa7 3533, 3535\n\nThis responds to your request for our opinion concerning concurrent\ndelegations in the Department of Housing and Urban Development (HUD).\nGenerally, they consist of the delegation of authority by the Secretary of HUD\nto an officer required to be appointed by the President by and with the advice\nand consent of the Senate1 and to that officer\xe2\x80\x99s deputy appointed by the\nSecretary2 in such fashion that the deputy may exercise the authority when both\nare on duty.\nThe Secretary\xe2\x80\x99s delegations to his or her principal officers3 are authorized,\nand indeed required, because the Department of Housing and Urban Develop\xc2\xad\nment Act and other statutes administered by the Secretary vest most, if not all,\nof the functions of the Department in the Secretary.4 But the Act also provides\nthat the principal officers o f the Department are to:\nperform such functions, powers and duties as the Secretary shall\nprescribe from time to tim e.5\nThe delegations to the deputies are based on \xc2\xa7 7(d), 42 U .S.C . \xc2\xa7 3535(d),\npursuant to which:\nThe Secretary may delegate any o f his functions, powers, and duties\nto such officers and employees o f the Department as he may\n\n\'D e p a rtm e n t o f H o u sin g an d U rb an D e v elo p m en t A ct (A c t), \xc2\xa7 4 (a ), 79 S tat. 6 6 8 , as a m e n d ed ,\n42 U .S .C . \xc2\xa7 3 5 3 3 (a); see also 4 2 U .S .C . \xc2\xa7 3 5 3 3 a.\n2S ectio n 7 (c) o f the A c t, 4 2 U .S .C . 3 5 3 5 (c).\n\xe2\x80\x99T h e term \xe2\x80\x9c p rin cip al o ffic e r\xe2\x80\x9d in clu d es th e U n d e r S e c re ta ry , the A ssista n t S e c re ta rie s, the\nO eneral C o u n se l, an d the F e d e ra l In su ra n c e A d m in istra to r. A c t, \xc2\xa7 4 (a ). W e re fe r to th e m as\nA ssistant S ec re ta rie s.\n4S ection 4 o f th e A c t, 4 2 U .S .C . \xc2\xa7 3 5 3 4 ; see also, e.g., th e N atio n al F lood In su ra n c e A ct o f\n1968, P u b . L . N o . 9 0 -4 4 8 , T itle X III, 82 S ta t. 57 2 .\n\xe2\x80\x99 S ectio n 4 (a ), 4 2 U .S .C . \xc2\xa7 3 5 3 3 (a ).\n\n87\n\n\x0cdesignate, may authorize such successive redelegations of such\nfunctions, powers, and duties as he may deem desirable, and may\nmake such rules and regulations as may be necessary to carry out his\nfunctions, powers, and duties.\nWe have been advised by your Department that the Assistant Secretaries and\ntheir deputies do not, as the result of the concurrent delegations, hold their\noffices jointly; the deputy does not become the coequal of the Assistant\nSecretary. The latter retains the responsibility for the subdivision he heads. He\nhas the power to direct his deputy, and prevails in case o f disagreement. While\nboth parties may have the same apparent powers with respect to outsiders, there\nis no doubt that in the internal relations between the Assistant Secretary and his\ndeputy the form er is the superior.\nThe status o f Assistant Secretary as the officer responsible for his subdivision\nis made manifest in a HUD handbook entitled \xe2\x80\x9c Organization o f the Department\nof Housing and Urban D evelopm ent.\xe2\x80\x9d It places the duties and responsibilities\nfor the several departmental subdivisions in the Assistant Secretary who heads\nit, and not jointly in the Assistant Secretary and his deputy who hold a\nconcurrent delegation.6 Thus, the purpose o f the concurrent delegations is not\nto modify the hierarchical organization o f the Department, but rather is a matter\nof form and administrative convenience. It is designed above all to enable the\ndeputy to sign documents without having to establish, possibly years later, that\nthe Presidential appointee was absent or disabled at that time, and, second, to\nlessen the principal\xe2\x80\x99s workload, without detracting from his authority or\nresponsibility, by authorizing the deputy to take action even if the principal is\nphysically available.7\nSenator Eagleton has recently challenged the legality o f a concurrent\ndelegation to the Federal Insurance Adm inistrator and to his deputy, see 124\nCong. Rec. S 2521 (Daily E d ., February 28, 1978),8 and has introduced a bill,\nS. 2602 (95th C ong., 2d sess.), that would in effect prohibit the practice of\nconcurrent delegations to an officer, whether or not he had been appointed by\nand with the advice and consent of the Senate.\nSenator Eagleton\xe2\x80\x99s objection to concurrent delegations is based on the\nproposition that the confirmation process would be \xe2\x80\x9c a m ockery\xe2\x80\x9d if, after the\nSenate\xe2\x80\x99s careful inquiry into the background and qualifications of the person\nnominated by the President, the same functions can be exercised by someone\n\n\xe2\x80\x98 H o w ev e r, w e h a v e b e en a d v ise d th at th e s u b se q u e n t c o n c u rre n t d e le g atio n s d id not affe c t the\nallo c atio n o f re sp o n sib ility set fo rth in th e h a n d b o o k .\n7It sh o u ld be n o te d th at th e se re su lts c o u ld a lso h av e b een a c h ie v e d by a re d e le g atio n by the\nP resid en tial a p p o in te e s p ec ifica lly a u th o riz e d by \xc2\xa7 7(d ) o f the A ct; 42 U .S .C . \xc2\xa7 3535(d).\n\xe2\x80\x9cT h is p a rtic u la r c o n c u rre n t d e le g a tio n w a s re v o k e d o n F e b ru a ry 24 , 1978; 43 F .R . 77 1 9 . T h is\nre v o c atio n , h o w e v e r, d o e s n o t re so lv e th e p ro b le m sin ce , a cc o rd in g to a c o m p ila tio n p rep ared by\nthe A m e ric a n L aw D iv isio n o f th e L ib ra ry o f C o n g re ss , c o n c u rre n t d e le g a tio n s h av e b een g iv en to\nthe G e n eral C o u n se l; th e A ssista n t S e c re ta ry fo r H o u sin g \xe2\x80\x94 F e d e ra l H o u sin g C o m m issio n e r; and\nthe A ssista n t S e c re ta rie s fo r A d m in is tra tio n , fo r N e ig h b o rh o o d s , V o lu n ta ry A ss o c ia tio n s, and\nC o n su m e r P ro te c tio n , an d fo r F a ir H o u sin g an d E q u al O p p o rtu n ity .\n\n88\n\n\x0cabout whom the Senate knows nothing.9 In support of his position Senator\nEagleton submitted a memorandum from the American Law Division of the\nLibrary o f Congress which, relying on Buckley v. Valeo, 424 U.S. 1 (1976),\nand Williams v. Phillips, 360 F. Supp. 1363 (D .D .C . 1973), stay denied, 482\nF. (2d) 669 (D .C. Cir. 1973), states:\n. . . that, although the matter is not free from doubt, the courts are\nlikely to hold that HUD may not administratively create an office\nwhich would concurrently exercise functions with a statutorily\ncreated office which must be filed by a presidential nominee with the\nadvice and consent of the Senate. [124 Cong. Rec. S. 2523 (Daily,\nEd., February 28, 1978)]\nIn our opinion, the two cases cited by the Library of Congress memorandum\nare inapplicable to the system of concurrent delegations prevailing in your\nDepartment. The portion o f the opinion in Buckley v. Valeo pertinent to the\nproblem at hand (pp. 124-141), holds that \xe2\x80\x9c any appointee exercising signifi\xc2\xad\ncant authority pursuant to the laws of the United States is an \xe2\x80\x98Officer of the\nUnited States,\xe2\x80\x99 and must, therefore, be appointed in the manner prescribed by\n\xc2\xa7 2, cl. 2 o f that Article [i.e., Article II of the Constitution]\xe2\x80\x9d (at p. 126). Under\nthe concurrent delegations here involved a deputy holding a concurrent\ndelegation unquestionably exercises significant authority pursuant to the laws\nof the United States; hence he has to be appointed pursuant to one o f the\nprocedures established by Article II, \xc2\xa7 2, cl. 2.\nThe constitutional provision states that officers of the United States must be\nappointed by the President by and with the advice and consent of the Senate,\nunless in the case o f inferior officers, Congress by law vests the appointment in\nthe President alone, the courts of law, or the heads o f departments. Congress has\nexercised its power here by vesting the appointment o f inferior officers in your\nDepartment in the Secretary. Section 7(c), supra, authorizes the Secretary to\nappoint \xe2\x80\x9c such officers and employees . . . as shall be necessary to carry out the\nprovisions of this Act and to prescribe their authority and duties.\xe2\x80\x9d [Emphasis\nadded.] Deputy Assistant Secretaries unquestionably are inferior officers who\ncan be appointed by a Department h e a d .10 The Deputy Assistant Secretaries of\nHUD, accordingly, have been appointed by the Secretary pursuant to a statute\nwhich authorizes him to do so. The constitutional requirement set forth in\nBuckley v. Valeo therefore has been met.\nThere is also the implication that a person to whom an authority equal to that\nof an Assistant Secretary has been delegated cannot be appointed pursuant to\n\xc2\xa7 7(c), because Congress has required that the latter must be appointed by the\n\xe2\x80\x98\'T h is a rg u m e n t fails to re a liz e , as w ill be sh o w n in fu rth e r d etail b e lo w , that in c o n firm in g a\nD ep artm en t h ead an d e v en an A ssista n t S e c re ta ry , the S e n a te d o es not e x p ec t him to m a k e all the\nd e cisio n s o f th e o ffic e o v e r w h ich he h a s ju risd ic tio n , but ra th e r th at he is e x p ec te d to be\nresp o n sib le fo r its g e n eral g u id a n c e an d su p erv isio n .\nI0ln som e A g e n cie s e v en so m e o ffic e rs h o ld in g th e ran k o f A ssista n t S e c re ta ry are a p p o in te d by\nthe D ep artm en t h e ad . See, e.g., the A ssista n t A tto rn e y G e n eral fo r A d m in istra tio n (2 8 U .S .C .\n\xc2\xa7 507); and th e A ssista n t S e c re ta ry o f A g ric u ltu re fo r A d m in istra tio n . R eo rg an iza tio n P lan N o. 2,\no f 1953, \xc2\xa7 3 , 7 U .S .C . \xc2\xa7 2201 n o te , an d see 7 U .S .C . \xc2\xa7 2213.\n\n89\n\n\x0cPresident by and with the advice and consent o f the Senate. In that connection\nreliance is placed on Williams v. Phillips, supra. That case involved a vacancy\nin the office of the Director o f the Office of Economic Opportunity, an\nadvice-and-consent position (42 U .S .C . \xc2\xa7 2941(a)), which the President had\nfilled on an acting basis for a considerable period of time with a person who had\nnot been confirmed. The district court held that where a statute specifically\nprovides that a position must be filled with a person appointed by the President\nby and with the advice and consent of the Senate, the President cannot avoid the\nstatutory requirement by filling it, even on an acting basis, with a person who\nhas not been confirm ed by the Senate in the absence of a statutory authoriza\xc2\xad\ntio n .1\'\nThe statutory structure in your Department is quite different from the one\ninvolved in Phillips. The only advice-and-consent position in your Department,\nthe powers and responsibilities o f which are defined by statute, is that of the\nSecretary. The Department o f Housing and Urban Development Act, \xc2\xa7 3(a), 42\nU .S.C . \xc2\xa7 3532(a). The other departmental positions requiring Senate confirma\xc2\xad\ntion are set forth in \xc2\xa7 4(a), but the Act does not prescribe their functions and\nresponsibilities; to the contrary, \xc2\xa7 4(a) provides that they shall have such\npowers and duties as may be prescribed by the Secretary.12 On the other hand,\n\xc2\xa7 7(d) provides for a general delegation of authority vested in the Secretary.\nThe statute thus\xe2\x80\x94 with the exceptions noted\xe2\x80\x94 does not direct what functions\nmust be vested in officers who have been confirmed by the Senate; to the\ncontrary, on its face it permits the Secretary to delegate any of his functions to\nany officer in the Department.\nWe are not confronted with the situation presented in Phillips, where a\nstatute provided specifically that a certain position had to be filled by an officer\nconfirmed by the Senate. Here the Act, with a few exceptions, gives the\nSecretary discretion as to the functions he wishes to vest in an Assistant\nSecretary, and those functions he wishes to retain or delegate to an officer not\nsubject to Senate confirm ation.\nWe are, however, willing to believe arguendo that where a statute requires\nthe confirmation o f an officer, it implicitly provides that a provision such as\n\xc2\xa7 7(d), which authorizes the Secretary to delegate any o f his functions to any\nofficer he may designate, cannot be used to give an unconfirmed officer the\nsame organizational position as an officer who must be confirmed. The\nrequirement o f confirm ation connotes that the officer shall be the head of the\ndepartmental subdivision placed in his charge, that he shall be responsible for\n" T h e o p in io n o f th e C o u rt o f A p p e a ls w h ile d e n y in g a stay o f the lo w e r c o u rt\'s d e cisio n\nsu g g este d th at the P resid e n t h as th e p o w e r to a p p o in t an o fficial w h o had not b een c o n firm ed by the\nS en ate o n an actin g b a sis fo r a lim ited p e rio d o f tim e.\nl2T h e o n ly e x c e p tio n is th e A ssista n t S e c re ta ry d e sig n a te d to be the F ederal H ou sin g\nC o m m is sio n e r. H e \xe2\x80\x9c sh all a d m in is te r, u n d e r th e su p e rv isio n and d ire c tio n o f the S e c re ta ry ,\nd e p artm e n tal p ro g ram s re la tin g to th e p riv a te m o rtg ag e m a rk e t.\xe2\x80\x9d B ut e v en th is p ro v isio n d o e s not\np re c lu d e th e d e le g a tio n o f o th e r fu n c tio n s to h im . A g a in it c o u ld be im p lie d from 42 U .S .C .\n\xc2\xa7 3 5 3 3 a , w h ic h e sta b lis h e s th e O ffice o f th e F e d e ra l In su ra n c e A d m in istra to r, that C o n g re ss\ne x p ec te d th at th e S e c re ta ry w o u ld d e le g a te to him th e re sp o n sib ility fo r the in su ran ce p ro g ram s\nad m in iste re d by H U D .\n\n90\n\n\x0cit, and that he alone shall have the overall power and authority, under the\nsupervision of the Secretary, to direct and control the manner in which all other\nofficers assigned to his subdivision perform their duties. On the other hand, he\nis not and cannot be expected to perform or even to supervise personally all the\nactivities assigned to his subdivision as long as he retains the overall\ndirection.13\nA concurrent delegation that would remove a Deputy Assistant Secretary\nfrom the general supervision and control of the Assistant Secretary and give\nhim equal powers of performance and equal control over a departmental\nsubdivision might well be inconsistent with the confirmation requirement for\nthe position of Assistant Secretary. However, as we have been advised by your\nDepartment, the concurrent delegations are not designed to impair the Assistant\nSecretary\xe2\x80\x99s responsibility for and control over the subdivision that is in his\ncharge. The concurrent delegations generally refer to the Assistant Secretary\xe2\x80\x99s\n\xe2\x80\x9c power and authority,\xe2\x80\x9d i.e., the day-to-day execution o f the statutes in his\ncharge, whose performance must by necessity be delegated and perhaps\nsubdelegated. The delegations do not, however, erode the Assistant Secretary\xe2\x80\x99s\nlegal accountability. That responsibility is not included in the concurrent\ndelegation to the deputy and remains vested in the Assistant Secretary.14 A\ncomparison o f the Handbook with the concurrent delegations reproduced at 124\nCong. Rec. S. 2523-2525 (Daily E d., February 28, 1978) demonstrates the\ndifference between the powers and authorities covered by the delegations and\nthe hierarchical responsibilities that are not affected.\nWe conclude that because the Assistant Secretaries retain both responsibility\nfor and control over the action of the Deputy Assistant Secretaries, the\nconcurrent delegations do not conflict with the confirmation process and,\ntherefore, constitute a valid exercise of the Secretary\xe2\x80\x99s authority.\nJoh n M . H arm o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\nl3In Barr v. Matteo, 3 6 0 U .S . 5 6 4 , 5 7 3 (1 9 5 9 ), the C o u rt stated th at \xe2\x80\x9c the c o m p le x itie s and\nm a g nitude o f g o v e rn m e n ta l a c tiv ity h av e b e c o m e so g re a t th at th e re m u st o f n e ce ssity b e a\nde le g atio n an d re d e le g atio n as to m an y fu n c tio n s. . . . \xe2\x80\x9d See also. Cooper v. O\'Connor, 9 9 F . (2d)\n135, 142 (D C . C ir. 19 3 8 ), c e rt, d e n ie d , 3 0 5 U .S . 6 4 3 (1 9 3 8 ).\nl4See in th is c o n te x t th e v a rio u s d e le g a tio n s in 24 C F R P art 3 w h e re it is sp elled o u t th a t the\nseveral co n cu rre n t d e le g a tio n s to d e p u tie s c o n ta in ed in th a t P art are su b je c t to the general\nsupervision o f th e p rin c ip a l. In o rd e r to av o id fu tu re m isu n d e rsta n d in g s, it m a y be d e sirab le to\ninclude sim ila r c la u se s in all c o n c u rre n t d e le g atio n s.\n\n91\n\n\x0c'