b"August 12, 1977\n\n78-81\n\nMEMORANDUM OPINION FOR THE COUNSEL\nTO THE PRESIDENT\nExecutive Order No. 11222\xe2\x80\x94 Standards of Conduct\xe2\x80\x94\nGovernment Officials Writing Articles and Books\n\nYou have asked our advice regarding the legality and propriety of Presiden\xc2\xad\ntial appointees\xe2\x80\x99 writing articles and books for publication, either with or\nwithout compensation, including writing that is related to the official\xe2\x80\x99s area of\nresponsibility as well as writing that is not.\nFor the most part, these types of activities are governed by Executive Order\nNo. 11222 o f May 8, 1965 (30 F. R. 6469) and Civil Service Commission and\nagency regulations implementing the Executive order, rather than by the\nconflict o f interest laws with which the Office of Legal Counsel is concerned.\nBecause each appointee is subject to the standard of conduct regulations of his\nagency, it would be advisable for the appointee to consult those regulations and\nto contact the agency\xe2\x80\x99s ethics counselor1 if a question arises concerning the\npropriety o f writing or lecturing in a given instance. In fact, several agencies\nrequire their employees to obtain approval before engaging in outside activities\nconcerning their official work. See, e .g ., 22 CFR 10.735-204(c) (State); 29\nCFR 0.735-13 (Labor); 31 CFR 0.735-38 (Treasury); 45 CFR 73.735-403\n(O(HEW). However, we can offer the following general observations on the\nissues involved.\n\nI.\n\nCompensated Activities\n\nSection 202 o f Executive Order No. 11222 establishes the outlines of\nExecutive branch policy on outside activities, including writing:\nAn employee shall not engage in any outside employment,\n\n'U nder Civil Service Com m ission regulations, each agency head designates a top-ranking\nem ployee o f the agency to serve as ethics counselor whose responsibility is to give \xe2\x80\x9c authoritative\nadvice and guidance\xe2\x80\x9d on questions o f conflicts o f interest and related matters covered by Part 735\no f the C om m ission\xe2\x80\x99s regulations. 5 CFR 735.105. The Ethics Counsel o f the Civil Service\nCom m ission in turn advises agency ethics counselors on questions o f interpretation arising under\nExecutive O rder No. 11222 and im plem enting Civil Service Com m ission regulations; and the\nOffice o f Legal Counsel advises agencies on questions arising under conflict o f interest laws.\n\n361\n\n\x0cincluding teaching, lecturing, or writing, which might result in a\nconflict, or an apparent conflict, between the private interests of the\nemployee and his official government duties and responsibilities,\nalthough such teaching, lecturing, and writing by employees are\ngenerally to be encouraged so long as the laws, the provisions of this\norder, and Civil Service Commission and agency regulations cover\xc2\xad\ning conflict of interest and outside employment are observed.\nUnder applicable laws and regulations, a question would ordinarily be raised\nwhenever a Presidential appointee is to receive compensation for the publica\xc2\xad\ntion o f an article or book that deals with his official duties.\nIn the most extreme situation, where an article (or speech later reduced to\narticle form) was prepared or delivered as part o f the individual\xe2\x80\x99s official\nduties, receipt of nongovernmental compensation for the delivery or publica\xc2\xad\ntion would violate 18 U .S.C . \xc2\xa7 209(a), which (with exceptions not pertinent\nhere) prohibits the receipt o f any contribution to or supplementation of salary\nfrom outside sources as compensation for an individual\xe2\x80\x99s services to the\nGovernment.\nIn addition, Civil Service Commission regulations expressly prohibit the\nreceipt o f compensation by som e Presidential appointees for certain activities\nthat are not actually part o f the person\xe2\x80\x99s official duties:\n[A]n employee who is a Presidential appointee covered by section\n401(a) o f [Executive O rder 11222] shall not receive compensation or\nanything o f monetary value for any consultation, lecture, discussion,\nwriting, or appearance the subject m atter o f which is devoted\nsubstantially to the responsibilities, programs, or operations of his\nagency, or which draws substantially on official data or ideas which\nhave not become part o f the body o f public information. 5 CFR\n735.203(c).\nAs the regulation makes clear, it applies only to Presidential appointees covered\nby section 401(a) o f the Executive order, which covers only: (1) agency heads;\n(2) full-time members of com m ittees, boards, and commissions appointed by\nthe President; and (3) Presidential appointees in the Executive Office of the\nPresident who are not subordinate to the head o f an agency in that office. Thus,\nin an Executive departm ent, the Civil Service Commission regulation would\napply only to the head o f the departm ent. However, several departments, in\ntheir own regulations, have extended this prohibition to cover all agency\nem ployees.2\n\n2See, e.g., 15 CFR 0.735-12(c)(2) (Com m erce); 28 CFR 4 5.735-12(b) (Justice). See also 7 CFR\n0.735-13(a)(4) (A griculture). The regulations o f other Executive departm ents parallel the Civil\nService Com m ission regulation by applying this lim itation only to Presidential appointees covered\nby section 401(a) of the E xecutive order. See 32 CFR 40.12(e), as am ended, 42 F .R . 3649\n(D efense); 45 CFR 73.735-401(e) (H EW ); 24 CFR 0.735.204(e)(1) (HU D ); 43 CFR 20.735-33(d)\n(Interior); 29 CFR 0.735 11(a) (Labor); 22 CFR 10.735-204(c) (State); 49 CFR 9 9 .7 3 5 -1 1(d) as\nam ended, 42 Fed. Reg. 3120 (Transportation); 31 CFR 0.735-39(b) (Treasury).\n\n362\n\n\x0cWhere an article or book does not contain a significant amount of nonpublic\ngovernmental information, the scope of the prohibition in the Civil Service\nCommission regulation and identical agency regulations in particular situations\ndepends on the meaning of the phrase \xe2\x80\x9c devoted substantially to the responsibil\xc2\xad\nities, programs, or operations of his agency.\xe2\x80\x9d The phrase can be given a\nnarrow interpretation barring the receipt of compensation only where the article\nor book relates to existing statutory responsibilities and programs o f the\nagency. Alternatively, the phrase \xe2\x80\x9c responsibilities . . . o f his agency\xe2\x80\x9d can be\nread to encompass the general subject matter or sector of the economy or\nsociety with which the individual\xe2\x80\x99s agency is concerned, even though the\nwriting does not specifically relate to the functions of the agency. A search of\nour conflict of interest files reveals that we have given the quoted phrase in the\ncomparable Department of Justice regulation the broader of the two readings\nmentioned above as it applies to top-level Department officials.\nIn the only memorandum we have been able to locate involving a Presiden\xc2\xad\ntial appointee, this office advised a former Attorney General that he could\naccept compensation for the publication o f a collection of his essays so long as\nthe subject matter was not substantially related to areas of Department of\nJustice activity. We took the position that the purpose of the regulation was to\npreclude an employee o f the Department from profiting from publication where\nit was likely to be attractive to the public because it represented views o f a\nDepartment official on subject matter within the responsibilities of the\nDepartment. Thus, the form er Attorney General was advised that he could\nreceive compensation for publication of general jurisprudential essays concern\xc2\xad\ning legal education or ethics, but not those relating to antitrust or civil rights\nlaws. The same interpretation o f the regulation underlay this office\xe2\x80\x99s conclu\xc2\xad\nsion in 1972 that a member of the Board o f Parole could not accept\ncompensation for speeches related to the general subjects o f correction trends\nand reform s.3\nThis broader reading of the Civil Service Commission regulation finds\nadditional support in the more general prohibition in section 201(c)(1) of\nExecutive Order No. 11222 against engaging in any activity \xe2\x80\x9c which might\nresult in, or create the appearance of . . . using public office for private g ain .\xe2\x80\x9d\nThis restriction also appears in Civil Service Commission and agency regula\xc2\xad\ntions implementing the Executive order. See, e .g ., 5 CFR 735.201a(a). In fact,\nwhere a high-level official receives compensation for speaking or writing\nrelated to his official responsibilities, a significant question of \xe2\x80\x9c appearances\xe2\x80\x9d\nmay be raised under the general prohibition just quoted, even if the official is not\ncovered by a regulation expressly barring the receipt o f compensation for\n\n3On the other hand, we have advised low er-level em ployees o f the Department that they may\nreceive com pensation for teaching and writing in the area o f law for which they have responsibility.\nWe believe this more liberal policy for lower-level personnel is warranted because their ser\xc2\xad\nvices are not usually sought in order to ascertain the position o f the Departm ent on key policy\nissues; they are not authorized to state that position, and their activities are therefore not likely to be\nattractive to the anticipated audience because o f their affiliation with the Departm ent.\n\n363\n\n\x0cspeaking or writing \xe2\x80\x9c devoted substantially to the responsibilities, programs, or\noperations of his agency.\xe2\x80\x9d\nAs a convenient rule o f thum b for determ ining when an outside activity such\nas writing is sufficiently related to official duties so as to suggest that the receipt\no f compensation may be improper, reference may be made to a Department of\nCommerce regulation prohibiting the receipt o f compensation for an activity\nwhere there is reason to believe that the invitation to do so was extended partly\nbecause of the official position of the employee concerned. 15 CFR 0.735-12(b)(3).\nWe em phasize, however, that the application of pertinent regulations in a\nspecific instance is initially a m atter for the ethics counselor of the agency\ninvolved, with the advice o f the Civil Service Commission, which has\nresponsibility for implementing Executive Order No. 11222.\nThe legality and propriety o f a Presidential appointee receiving compensation\nfor a book or article is governed by somewhat different considerations when the\nsubject matter has no relation to the individual\xe2\x80\x99s official duties and responsibili\xc2\xad\nties. It is possible that in a given case the author might be relying on his\nvisibility in office to generate interest in a book or article about his prior\nexperiences or other matters\xe2\x80\x94 or seem to be doing so\xe2\x80\x94 and thereby create the\nappearance o f using public office for private gain. This would depend, of\ncourse, on the particular facts in the specific case.\nW here acceptance is proper, the amount o f compensation received is limited\nby the honorarium statute, 2 U .S .C . \xc2\xa7 441i, to $2,000 per article or appearance,\nand a total of $25,000 in a calendar year.4 It should be noted, however, that this\n$2,000 ceiling does not include reim bursem ent for expenses in connection with\nthe writing or appearance, and the overall ceiling has not been construed to\napply to the writing o f books, as opposed to newspaper or magazine articles.\nSee Election Law Guidebook, Sen. Doc. No. 216, 94th C ong., 2d sess. 6\n(1976). Also, in preparing a book or article, the official would be required to\nabide by pertinent regulations and other restrictions limiting the use of\nGovernment property, personnel, appropriated funds, and nonpublic informa\xc2\xad\ntion for officially approved purposes, and not for private purposes. See, e .g .,\nExecutive Order No. 11222, \xc2\xa7\xc2\xa7 202, 204, and 205; 5 CFR 735.203, 205, and\n206.\n\n4It m ight be suggested that the $2,000 ceiling im posed by 2 U .S .C . \xc2\xa7 441i on the amount of\nhonoraria a G overnm ent official m ay receive indicates that honoraria o f less than $2,000 are not\nunlawful under any circum stances as long as the overall ceiling o f $25,000 is not exceeded. We\nare not aware o f any suggestion in the legislative history that Congress intended to preempt all other\nrestrictions on the receipt o f com pensation, and we would be most reluctant to construe it to do so\nin view o f Congress\xe2\x80\x99 heightened concern in other contexts regarding the receipt o f gifts and outside\nincom e by officials o f the executive and legislative branches. The provision instead appears to\nimpose an additional restriction on the am ount o f honoraria an official may receive, perhaps\nbecause the am ount o f an honorarium often has little relation to the personal effort o f the\nGovernm ent official and therefore represents easy m eans by which a top-level Governm ent official\nmay supplem ent his income.\n\n364\n\n\x0cII.\n\nUncompensated Activities\n\nOutside activities for which an individual will not be compensated create\nless of a conflict of interest problem. O f course, the individual would have to\nabide by restrictions just mentioned prohibiting the use of agency property,\npersonnel, and appropriated funds for personal or other nongovernmental\npurposes. Regulations also prohibit a Government official, \xe2\x80\x9c for the purpose of\nfurthering a private interest,\xe2\x80\x9d from using or allowing the use o f official\ninformation obtained through or in connection with his Government em ploy\xc2\xad\nment which has not been made available to the general public. 5 CFR 735.206.\nThus, while a Presidential appointee could appropriately release theretofore\nnonpublic information in an official speech or paper, it would appear that he\ncould not do so in a private publication where the primary purpose was to\nbenefit a private interest rather than to release agency views in an acceptable\nforum.\nFinally, we have interpreted the Justice Department regulation prohibiting\nactivities that create the appearance o f using public office for private gain to\napply even where the private gain will be realized by a person or organization\nother than the Government official. This suggests that Department of Justice\nemployees, including Presidential appointees, should avoid lending their\nofficial position to support the financial causes o f private organizations\xe2\x80\x94\nthrough speeches, the writing of articles, or in some other fashion. It may be\nthat comparable regulations o f other agencies would be construed in the same\nfashion.\nOur observations on this subject have necessarily been general. These\nactivities are generally governed by Executive Order No. 11222 and implementing\nCivil Service Commission and agency regulations, as to which we are not in a\nposition to give an authoritative construction. In a given case, it would be\nadvisable for the Presidential appointee to review the regulations o f the\nparticular agency involved and to consult the ethics counselor o f this agency,\nespecially where prior approval may be required.\n\nL eo n U lm a n\n\nD eputy A ssistant A ttorney G eneral\nOffice o f L egal Counsel\n\n365\n\n\x0c"


b'November 24, 1978\n\n78-61 MEMORANDUM FOR THE GENERAL COUNSEL,\nFEDERAL MEDIATION AND CONCILIATION\nSERVICE\nDepartment of Labor\xe2\x80\x94Boards of Inquiry\xe2\x80\x94Payments\nto Federal Employees From Non-Government Sources\n(18 U.S.C. \xc2\xa7 209)\xe2\x80\x94Proposed Supplementation of\nCompensation\nThis responds to your request for our opinion whether a proposal to\nsupplement the salary paid to arbitrators who are members of Boards of Inquiry\nappointed under 29 U.S.C. \xc2\xa7 183 would be permissible under the Federal\nconflict-of-interest laws. You inquire further whether a particular system of\nsupplementation involving unequal contributions by the various parties to a\ndispute would raise additional legal problems. We have concluded that a\nsupplementation arrangement would not result in violation of the applicable\nconflict provision, 18 U.S.C. \xc2\xa7 209. We believe, however, that your decision\nregarding the handling of unequal contributions may be influenced by the\nrequirement that distribution of additional funds be accomplished by the parties\nthemselves or some entity other than the Federal Mediation and Conciliation\nService (FMCS). We also recommend that you consider revising pertinent\nFMCS regulations before any such supplementation proposal is implemented.\nPursuant to 29 U.S.C. \xc2\xa7 183, Boards of Inquiry are appointed by the FMCS\nto conciliate certain disputes in the health care industry. Members of these\nboards are selected from a roster of private arbitrators maintained by the FMCS\nand the boards are required by law to issue their reports within 15 days of\ntheir establishment. In unusual cases an individual arbitrator may serve on more\nthan one board in a given year. You indicate that in many instances service for a\nfull 15 days in connection with a single inquiry is not required. However, in\nno event has an arbitrator served on as many as eight Boards of Inquiry in a\nsingle year.\nCompensation of members of Boards of Inquiry is set by statute at the GS-18\nrate. The proposal in question is that this compensation, which amounts to $183\nper day, be supplemented by voluntary contributions of the parties to the\n264\n\n\x0cdispute to approximate more closely the prevailing rate for arbitral services\xe2\x80\x94$200 to\n$400 per day.\nSection 209(a) prohibits the receipt of salary or contribution to or supplemen\xc2\xad\ntation of salary as compensation for services rendered as an officer or employee\nof the executive branch of the United States or of any independent agency.\nHowever, 18 U.S.C. \xc2\xa7 209(c) specifically exempts \xe2\x80\x9c special government\nemployees\xe2\x80\x9d from the prohibition. Section 202(a) of title 18 defines \xe2\x80\x9c special\ngovernment employees\xe2\x80\x9d as those who are appointed to perform temporary\nduties either on a full-time or intermittent basis, for a period not to exceed 130\ndays during any period of 365 consecutive days. The period of 130 days is,\nmoreover, to be ascertained by reference to the anticipated period of employ\xc2\xad\nment, not the duration of actual service. So long as the existing practice is\ncontinued, whereby Board members are appointed for terms of not more than\n15 days and, whenever reappointed, would serve in total no more than 130\ndays in any period of 365 consecutive days, they would qualify as special\nGovernment employees, and supplementation of their compensation would not\nbe prohibited by \xc2\xa7 209.\nTwo additional questions are raised, however. First, we are uncertain\nwhether you plan to provide for distribution of the supplemental funds through\nthe FMCS itself, or directly through the parties. Absent statutory authorization\nto accept gifts, the Service could not itself participate in such an arrangement.\nWe are not aware of any such authority. This limitation may well bear on the\nprocedures to be adopted where only one party agrees to provide supplemental\nfunds or where the parties agree to pay varying amounts. Although you might\ndevise a pooling arrangement, the creation of such a mechanism may prove\nmore difficult in the circumstances of this case. Apart from this consideration,\nwe are aware of no other legal impediment to an arrangement involving unequal\ncontributions by the parties.\nFinally, consideration should be given to the more explicit requirements\nimposed by the FMCS\xe2\x80\x99s Standards of Conduct set out in 29 CFR Part 1400.\nSection 1400.735-30 applies certain of those rules to special Government\nemployees. One of the applicable rules, \xc2\xa7 1400.735-11, provides that except as\notherwise specifically permitted \xe2\x80\x9c an employee shall not . . . accept . . . any\ngift, . . . or any other thing of monetary value, from a person who . . . (2)\n[c]onducts operations or activities that are affected by Federal Mediation and\nConciliation Service functions.\xe2\x80\x9d The acceptance of a compensation supple\xc2\xad\nment is not in the nature of a gift, and may well fall within the intended\ncoverage of \xc2\xa7 1400.735-12, which governs employment and is specifically\nrendered inapplicable to special Government employees. We are, however,\nuncertain whether you have adopted such an interpretation of this provision\nrather than a more literal reading that might bar acceptance of any such\nconsideration. You may therefore wish to consider whether the list of\n\n265\n\n\x0cexceptions found in subsection (b) of \xc2\xa7 1400.735-11 should be expanded\nspecifically to include approval of the proposed compensation supplements.\nL e o n U lm a n\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n266\n\n\x0c'


b'(Slip Opinion)\n\nThe Department of Defense\xe2\x80\x99s Authority to Conduct\nBackground Investigations for Its Personnel\nSection 925 of the National Defense Authorization Act for Fiscal Year 2018 authorizes\nthe Department of Defense to conduct the background investigations for its personnel\ncurrently performed by the National Background Investigations Bureau of the Office\nof Personnel Management, including investigations to determine whether those personnel may be granted security clearances giving them access to classified information\nor whether they are eligible to hold sensitive positions.\nThis statutory reallocation of investigative authority from one part of the Executive\nBranch to another does not raise constitutional concerns. It does not infringe upon the\nPresident\xe2\x80\x99s constitutional role in protecting national security information.\nFebruary 7, 2018\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nOFFICE OF PERSONNEL MANAGEMENT\nYou have asked whether the Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d) has the\nauthority to conduct the background investigations for its personnel\ncurrently performed by the National Background Investigations Bureau\n(\xe2\x80\x9cNBIB\xe2\x80\x9d), an entity within the Office of Personnel Management\n(\xe2\x80\x9cOPM\xe2\x80\x9d). Those background investigations include investigations to\ndetermine whether DoD personnel may be granted a security clearance\ngiving them access to classified information or whether they are eligible\nto hold a sensitive position. 1 You indicated that, in your view, a statutory\namendment or new executive order would be necessary for DoD to assume these functions. See OPM Opinion Request at 9\xe2\x80\x9310. 2\n\n1 See Letter for Curtis E. Gannon, Acting Assistant Attorney General, Office of Legal\nCounsel, from Theodore M. Cooperstein, General Counsel, Office of Personnel Management at 1\xe2\x80\x932, 9\xe2\x80\x9310 (Oct. 4, 2017) (\xe2\x80\x9cOPM Opinion Request\xe2\x80\x9d); see also Letter for Curtis E.\nGannon, Acting Assistant Attorney General, Office of Legal Counsel, from Theodore M.\nCooperstein, General Counsel, Office of Personnel Management (Oct. 12, 2017) (\xe2\x80\x9cOPM\nOpinion Request Supplement\xe2\x80\x9d).\n2 We also received views from DoD and the Office of the Director of National Intelligence (\xe2\x80\x9cODNI\xe2\x80\x9d). See Letter for Curtis E. Gannon, Acting Assistant Attorney General,\nOffice of Legal Counsel, from William S. Castle, Acting General Counsel, Department\nof Defense (Nov. 9, 2017) (\xe2\x80\x9cDoD Views Letter\xe2\x80\x9d); E-mail for Henry C. Whitaker, Office\nof Legal Counsel, from Spencer R. Fisher, National Counterintelligence and Security\nCenter, ODNI, Re: OPM OLC opinion request (Nov. 3, 2017 1:28 PM) (\xe2\x80\x9cODNI Views E-\n\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nAfter you requested this opinion, the President signed into law the\nNational Defense Authorization Act for Fiscal Year 2018 (\xe2\x80\x9cFY 2018\nNDAA\xe2\x80\x9d), Pub. L. No. 115-91, 131 Stat. 1283 (2017). Section 925 of the\nNDAA provides that \xe2\x80\x9c[t]he Secretary of Defense has the authority to\nconduct security, suitability, and credentialing background investigations\nfor Department of Defense personnel,\xe2\x80\x9d id. \xc2\xa7 925(a)(1), 131 Stat. at 1526,\nand explains how DoD should exercise that authority, id. \xc2\xa7 925(a)(2),\n(b), 131 Stat at 1526\xe2\x80\x9327. We conclude that section 925 unambiguously\nauthorizes DoD to conduct the investigations at issue and that this authorization is constitutional. We thus need not consider whether DoD\npossessed this authority under previous statutes or executive orders.\nI.\nBefore 2003, DoD performed certain background investigations for its\nown personnel. See OPM Opinion Request Supplement at 1; OPM Opinion Request at 4 n.8. Pursuant to a delegation of authority from OPM,\nthose investigations included applicants for, and employees in, competitive service positions within DoD. Id. In 2003, the National Defense\nAuthorization Act for FY 2004 (\xe2\x80\x9cFY 2004 NDAA\xe2\x80\x9d) authorized DoD to\ntransfer those investigative functions to OPM so long as certain conditions were met, including that DoD and OPM agreed to the transfer. Pub.\nL. No. 108-136, \xc2\xa7 906(a), 117 Stat. 1392, 1561 (2003). In October 2004,\nOPM and DoD agreed to the transfer, and OPM assumed control over\nthese functions by February 2005. See DoD Views Letter at 3\xe2\x80\x934 & att. 2.\nIn December 2004, Congress passed the Intelligence Reform and Terrorism Prevention Act of 2004 (\xe2\x80\x9cIRTPA\xe2\x80\x9d), Pub. L. No. 108-458, 118 Stat.\n3638. Section 3001 of that law, which has been codified at 50 U.S.C.\n\xc2\xa7 3341 and is referred to subsequently as section 3341, instructed the\n\nmail\xe2\x80\x9d). In addition, we received further submissions from OPM, DoD, and ODNI regarding the effect of section 925 of the National Defense Authorization Act for Fiscal Year\n2018. See E-mail for Henry C. Whitaker, Office of Legal Counsel, from Robert J.\nGirouard, Office of Personnel Management, Re: OPM opinion request (Oct. 18, 2017 1:08\nPM) (\xe2\x80\x9cOPM Supplemental Views E-mail\xe2\x80\x9d); E-mail for Henry C. Whitaker, Office of\nLegal Counsel, from Spencer R. Fisher, National Counterintelligence and Security Center,\nODNI, Re: OPM OLC opinion request (Dec. 1, 2017 5:31 PM); Letter for Steven A.\nEngel, Assistant Attorney General, Office of Legal Counsel, from William S. Castle,\nActing General Counsel, Department of Defense (Dec. 7, 2017).\n\n2\n\n\x0cDepartment of Defense\xe2\x80\x99s Authority to Conduct Background Investigations\n\nPresident to select a single executive branch agency to oversee security\nclearance investigations and adjudications and to set uniform policies in\nthis area throughout the United States Government. See id. \xc2\xa7 3001(b)(1)\xe2\x80\x93\n(2), (4), 118 Stat. at 3705\xe2\x80\x9310 (codified at 50 U.S.C. \xc2\xa7 3341(b)(1)\xe2\x80\x93(2),\n(4)). That section further required that, \xe2\x80\x9c[n]otwithstanding any other provision of law,\xe2\x80\x9d the President, in consultation with the designated oversight\nagency, would select \xe2\x80\x9ca single agency . . . to conduct, to the maximum\nextent practicable, security clearance investigations of employees and\ncontractor personnel of the United States Government who require access\nto classified information and to provide and maintain all security clearances of such employees and contractor personnel.\xe2\x80\x9d Id. \xc2\xa7 3001(c)(1), 118\nStat. at 3707 (codified at 50 U.S.C. \xc2\xa7 3341(c)(1)). Section 3341 also\nauthorized the oversight agency to designate \xe2\x80\x9cother agencies to conduct\nsuch investigations\xe2\x80\x9d if \xe2\x80\x9cappropriate for national security and efficiency\npurposes.\xe2\x80\x9d Id.\nAt present, those provisions of section 3341 have been implemented in\nExecutive Orders that charge the Director of National Intelligence with\noversight of security clearance investigations and adjudications. See Exec.\nOrder No. 13764, \xc2\xa7 3(s), 82 Fed. Reg. 8115, 8123 (Jan. 17, 2017) (amending Exec. Order No. 13467, \xc2\xa7 2.5(e), 3 C.F.R. 196 (2008)). In those\nOrders, the President has also charged OPM with overseeing suitability\ninvestigations and determinations. See id. \xc2\xa7\xc2\xa7 1(a)(iii), 3(s) (amending\nCivil Service Rule II, 5 C.F.R. \xc2\xa7\xc2\xa7 2.1(a), and Exec. Order No. 13467,\n\xc2\xa7 2.5(b)). He has further specified that the NBIB, an entity within OPM,\nshall \xe2\x80\x9cserve as the primary executive branch service provider for background investigations\xe2\x80\x9d for security clearances and related adjudications as\nwell as for suitability determinations. Id. \xc2\xa7 3(t) (amending Exec. Order\nNo. 13467, \xc2\xa7 2.6(a)(1)); see also id. \xc2\xa7 1(b)(i) (amending Civil Service\nRule V, 5 C.F.R. \xc2\xa7 5.2(a)). But the Director of National Intelligence retains the ultimate authority \xe2\x80\x9cto designate an agency or agencies, to the\nextent that it is not practicable to use the [NBIB], to conduct investigations of persons who are proposed for access to classified information or\nfor eligibility to hold a sensitive position.\xe2\x80\x9d Id. \xc2\xa7 3(s) (amending Exec.\nOrder No. 13467, \xc2\xa7 2.5(e)(vi)). 3 At the time of your opinion request, the\n\n3 The President originally designated the Office of Management and Budget as the\nagency responsible for overseeing security clearance investigations and adjudications. See\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nDirector of National Intelligence had not indicated that it would be impracticable for the NBIB to conduct security clearance investigations for\nDoD personnel, nor had the Director designated DoD to conduct those\ninvestigations. See ODNI Views E-mail.\nOn December 12, 2017, Congress enacted the FY 2018 NDAA, which\nincluded a new provision, section 925, concerning DoD personnel background and security investigations. Section 925(a) of that law provides in\nrelevant part:\n(a) TRANSITION TO DISCHARGE BY DEFENSE SECURITY SERVICE\n[(\xe2\x80\x9cDSS\xe2\x80\x9d)].\xe2\x80\x94\n(1) SECRETARIAL AUTHORITY.\xe2\x80\x94The Secretary of Defense has\nthe authority to conduct security, suitability, and credentialing\nbackground investigations for Department of Defense personnel.\nIn carrying out such authority, the Secretary may use such authority, or may delegate such authority to another entity.\n(2) PHASED TRANSITION.\xe2\x80\x94As part of providing for the conduct\nof background investigations initiated by the Department of Defense through the Defense Security Service by not later than the\ndeadline specified in subsection (b), the Secretary shall, in consultation with the Director of the Office of Personnel Management,\nprovide for a phased transition from the conduct of such investigations by the National Background Investigations Bureau of the Office of Personnel Management to the conduct of such investigations by the Defense Security Service by that deadline.\nId. \xc2\xa7 925(a), 131 Stat. at 1526.\nSection 925(b), in turn, provides:\n\nExec. Order No. 13381, \xc2\xa7 2, 3 C.F.R. 167, 167\xe2\x80\x9368 (2005). In 2008, however, the President transferred most of those oversight functions to the Director of National Intelligence.\nSee Exec. Order No. 13467, \xc2\xa7 2.3(c). Executive Order 13467 also specified that the\nDirector of OPM would oversee investigations and adjudications relating to determinations of suitability and eligibility for logical and physical access. Id. \xc2\xa7 2.3(b). As noted\nabove, the Director of OPM continues to serve in this role. And the President since 2005\nhas designated OPM as the lead entity responsible for conducting investigations for\nsecurity clearances and related determinations. See OPM Opinion Request at 6 & n.15;\nsee also Exec. Order No. 13467, \xc2\xa7 3(g). OPM has also been granted responsibility for\nperforming suitability investigations for decades. See OPM Opinion Request at 3, 8.\n\n4\n\n\x0cDepartment of Defense\xe2\x80\x99s Authority to Conduct Background Investigations\n\n(b) COMMENCEMENT OF IMPLEMENTATION PLAN FOR ONGOING\nDISCHARGE OF INVESTIGATIONS THROUGH DSS.\xe2\x80\x94Not later than\nOctober 1, 2020, the Secretary of Defense shall commence carrying\nout the implementation plan developed pursuant to section 951(a)(1)\nof the National Defense Authorization Act for Fiscal Year 2017[.]\nId. \xc2\xa7 925(b), 131 Stat. at 1527. 4\nSection 925(d) then states:\n(d) TRANSFER OF CERTAIN FUNCTIONS IN OPM TO DSS.\xe2\x80\x94\n(1) IN GENERAL.\xe2\x80\x94For purposes of meeting the requirements in\nsubsections (a) and (b), the Secretary of Defense shall provide for\nthe transfer of the functions described in paragraph (2), and any\nassociated personnel and resources, to the Department of Defense.\n(2) FUNCTIONS.\xe2\x80\x94The functions to be transferred pursuant to\nparagraph (1) are the following:\n(A) Any personnel security investigations functions transferred by the Secretary to the Director of the Office of Personnel Management pursuant to section 906 of the [FY 2004\nNDAA].\n(B) Any other functions of the Office of Personnel Management in connection with background investigations initiated by\nthe Department of Defense that the Secretary and the Director\njointly consider appropriate.\nId. \xc2\xa7 925(d), 131 Stat. at 1527.\n\n4\n\nIn the National Defense Authorization Act for Fiscal Year 2017 (\xe2\x80\x9cFY 2017 NDAA\xe2\x80\x9d),\nPub. L. No. 114-328, 130 Stat. 1999 (2016), Congress had directed DoD to develop and\nsubmit an implementation plan for DoD to conduct background investigations for specified DoD personnel. Id. \xc2\xa7 951(a)(1), 130 Stat. at 2371. The FY 2017 NDAA further\ndirected DoD and OPM jointly to develop a plan to transfer personnel and resources in\nproportion to the workload that DoD would assume were this plan implemented. Id.\n\xc2\xa7 951(a)(2), 130 Stat. at 2371. In August 2017, before section 925\xe2\x80\x99s enactment, DoD\nsubmitted to Congress a three-phase, three-year plan whereby DoD would ultimately\nassume responsibility for conducting all background investigations for DoD-affiliated\npersonnel. See Department of Defense Response to the National Defense Authorization\nAct for Fiscal Year 2017 Section 951: Implementation Plan for Potential Transfer of\nBackground Investigation Responsibility to the Department of Defense (\xe2\x80\x9cDoD Implementation Plan\xe2\x80\x9d).\n\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nII.\nThe enactment of section 925 of the FY 2018 NDAA resolves the question that you have asked. No matter whether DoD previously had authority to conduct background investigations for DoD personnel, DoD has that\nauthority now. By its terms, section 925 authorizes DoD to \xe2\x80\x9cconduct\nsecurity, suitability, and credentialing background investigations for Department of Defense personnel.\xe2\x80\x9d FY 2018 NDAA, \xc2\xa7 925(a)(1), 131 Stat.\nat 1526. Section 925 also states: \xe2\x80\x9cAny personnel security investigations\nfunctions transferred by the Secretary [of Defense] to the Director of the\nOffice of Personnel Management pursuant to section 906 of \xe2\x80\x9d the FY 2004\nNDAA shall \xe2\x80\x9cbe transferred\xe2\x80\x9d back to DoD. Id. \xc2\xa7 925(d)(2), 131 Stat. at\n1527. Indeed, section 925 not only authorizes, but requires DoD to conduct investigations for DoD personnel. DoD, in consultation with OPM,\n\xe2\x80\x9cshall provide for a phased transition from the conduct of such investigations by the [NBIB] to the conduct of such investigations by [DSS].\xe2\x80\x9d Id.\n\xc2\xa7 925(a)(2), 131 Stat. at 1526. And DoD must begin executing those\nfunctions by 2020 by following the implementation plan that DoD developed pursuant to the FY 2017 NDAA. Id. \xc2\xa7 925(b), 131 Stat. at 1527; see\nsupra note 4.\nOPM, however, contends that section 925 \xe2\x80\x9cposes significant interpretive difficulties\xe2\x80\x9d because it conflicts with, but does not expressly repeal,\nvarious statutory provisions that OPM reads as authorizing only OPM to\nconduct investigations. OPM Opinion Request at 9 n.22; see also OPM\nSupplemental Views E-mail. In particular, OPM sees a conflict between\nsection 925 and IRTPA, under which the President, \xe2\x80\x9c[n]otwithstanding\nany other provision of law,\xe2\x80\x9d must \xe2\x80\x9cselect a single agency of the executive\nbranch to conduct, to the maximum extent practicable, security clearance\ninvestigations of employees and contractor personnel\xe2\x80\x9d across the government. 50 U.S.C. \xc2\xa7 3341(c)(1). Because the President designated OPM as\nthis \xe2\x80\x9csingle agency,\xe2\x80\x9d OPM suggests, section 925\xe2\x80\x99s assignment to DoD of\nresponsibility for conducting security clearance investigations for DoD\nemployees cannot be reconciled with this provision. See OPM Opinion\nRequest at 9 n.22; see also ODNI Views E-mail (expressing a similar\nconcern).\nWe disagree. As its heading indicates, section 925(d) requires the\n\xe2\x80\x9ctransfer of certain functions in OPM to DSS,\xe2\x80\x9d namely those involving\n6\n\n\x0cDepartment of Defense\xe2\x80\x99s Authority to Conduct Background Investigations\n\npersonnel security investigations. FY 2018 NDAA, \xc2\xa7 925(d), 131 Stat.\nat 1527 (capitalization modified). Section 925(a) similarly provides for\nthe phased transition from the NBIB (within OPM) to DSS of functions\nthat include the conduct of security clearance investigations. See id.\n\xc2\xa7 925(a)(2), 131 Stat. at 1526. Although the statute does not expressly\nmodify the \xe2\x80\x9csingle agency\xe2\x80\x9d directive of section 3341, we could not give\neffect to section 925 without concluding that it creates an exception to\nthe prior rule. \xe2\x80\x9c[N]ormally the specific governs the general.\xe2\x80\x9d Long Island\nCare at Home, Ltd. v. Coke, 551 U.S. 158, 170 (2007). That \xe2\x80\x9ccanon is\nperhaps most frequently applied to statutes in which a general permission\nor prohibition is contradicted by a specific prohibition or permission,\xe2\x80\x9d so\nthat, \xe2\x80\x9c[t]o eliminate the contradiction, the specific provision is construed\nas an exception to the general one.\xe2\x80\x9d RadLAX Gateway Hotel, LLC v.\nAmalgamated Bank, 566 U.S. 639, 645 (2012); see also GAO Access to\nTrade Secret Information, 12 Op. O.L.C. 181, 182\xe2\x80\x9383 (1988) (\xe2\x80\x9cIt is a\ncardinal axiom of statutory construction that \xe2\x80\x98where there is no clear\ncongressional intention otherwise, a specific statute will not be controlled\nor nullified by a general one, regardless of priority of enactment.\xe2\x80\x99\xe2\x80\x9d\n(brackets omitted) (quoting Morton v. Mancari, 417 U.S. 535, 550\xe2\x80\x9351\n(1974))). That principle applies in determining in particular how a laterenacted statute should be harmonized with an earlier one. See, e.g., United\nStates v. Estate of Romani, 523 U.S. 517, 530\xe2\x80\x9331 (1998) (concluding that\nthe more specific provisions of the later-enacted Tax Lien Act should be\ngiven effect over the federal priority statute, even though the Tax Lien\nAct did not expressly amend the earlier statute). Here, section 925 is the\nmore specific provision: its sole concern is with allocating responsibility\nfor background investigations of DoD personnel. By contrast, section\n3341 describes how responsibility for security clearance investigations\nshould be allocated government-wide.\nNor do we see anything in the statutory text that would displace this\npresumption. While section 3341 applies \xe2\x80\x9c[n]otwithstanding any other\nprovision of law,\xe2\x80\x9d that phrase does not preclude a later Congress from\neffectively enacting a specific exception to the general rule of singleagency administration of security clearance investigations. See Dorsey v.\nUnited States, 567 U.S. 260, 274 (2012) (\xe2\x80\x9c[S]tatutes enacted by one\nCongress cannot bind a later Congress, which remains free to repeal the\nearlier statute, to exempt the current statute from the earlier statute, to\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nmodify the earlier statute, or to apply the earlier statute but as modified.\nAnd Congress remains free to express any such intention either expressly\nor by implication as it chooses.\xe2\x80\x9d (citations omitted)); see also Lockhart\nv. United States, 546 U.S. 142, 147\xe2\x80\x9348 (2005) (Scalia, J., concurring)\n(similar). Thus, \xe2\x80\x9cthe general language\xe2\x80\x9d of section 3341, \xe2\x80\x9calthough broad\nenough to include it, will not be held to apply to a matter specifically\ndealt with\xe2\x80\x9d in section 925. RadLAX, 566 U.S. at 646 (internal quotation\nmarks omitted).\nFor the same reasons, we disagree with the suggestion that our reading\nof section 925 would pose \xe2\x80\x9csignificant interpretive difficulties\xe2\x80\x9d with\nrespect to other statutory provisions. See OPM Opinion Request at 9 n.22.\nSection 925 can be read alongside 5 U.S.C. \xc2\xa7 3301, which grants the\nPresident broad authority to regulate the civil service, including the authority to select individuals to conduct investigations to determine the\nfitness of applicants. See id. \xc2\xa7 3301(3). We think that section 925\xe2\x80\x99s more\nspecific provision controls, and that DoD has the authority to conduct\nspecified investigations for its own personnel. We also see no conflict\nbetween section 925 and 5 U.S.C. \xc2\xa7 11001, which cross-references 50\nU.S.C. \xc2\xa7 3341 and simply confers authority on the Director of National\nIntelligence over certain security reinvestigations without independently\nspecifying which entity must perform those reinvestigations.\nOPM also has identified a \xe2\x80\x9cmarked contrast\xe2\x80\x9d between section 925 and\nsection 906 of the FY 2004 NDAA, which OPM interpreted as providing\nfor a transfer of investigative authority from DoD to OPM that, once\nmade, was irreversible except through subsequently enacted legislation.\nSee OPM Opinion Request at 9 & n.22. OPM subsequently clarified that\nit does not see a direct conflict between these provisions. We do not\nin any event think that section 906 creates any interpretive difficulties\nwith respect to section 925. Even if OPM\xe2\x80\x99s reading of section 906 were\ncorrect, section 925(d)(2) expressly reverses any transfer of investigative functions effected by the earlier provision. See FY 2018 NDAA,\n\xc2\xa7 925(d)(2), 131 Stat. at 1527 (providing that \xe2\x80\x9c[a]ny personnel security\ninvestigations functions transferred by the Secretary [of Defense] to the\nDirector of the Office of Personnel Management pursuant to section 906\nof \xe2\x80\x9d the FY 2004 NDAA must \xe2\x80\x9cbe transferred\xe2\x80\x9d back to DoD). Therefore,\nsection 925 \xe2\x80\x9cspecifically addresses language on the statute books that\n\n8\n\n\x0cDepartment of Defense\xe2\x80\x99s Authority to Conduct Background Investigations\n\n[Congress] wishes to change\xe2\x80\x9d and supersedes section 906. United States v.\nFausto, 484 U.S. 439, 453 (1988).\nFinally, we disagree with OPM\xe2\x80\x99s suggestion that this reading of section\n925 might raise constitutional concerns. OPM indicates that if Congress\nassigned to DoD the authority to conduct security clearance and related\nbackground investigations for specific personnel, that could interfere with\nthe President\xe2\x80\x99s constitutional authority to control the dissemination of\nnational security information, which OPM suggests includes control over\nwhich agency conducts background investigations. See OPM Opinion\nRequest at 9 n.22. We do not believe, however, that the statutory reallocation of the responsibility to conduct such background investigations\ninfringes upon the President\xe2\x80\x99s constitutional role in protecting national\nsecurity information.\nAs the Supreme Court has recognized, the President has significant independent constitutional authority in this area. The President\xe2\x80\x99s \xe2\x80\x9cauthority\nto classify and control access to information bearing on national security\nand to determine whether an individual is sufficiently trustworthy to\noccupy a position in the Executive Branch that will give that person\naccess to such information\xe2\x80\x9d derives from his constitutional authority as\n\xe2\x80\x9c\xe2\x80\x98Commander in Chief of the Army and Navy of the United States.\xe2\x80\x99\xe2\x80\x9d\nDep\xe2\x80\x99t of the Navy v. Egan, 484 U.S. 518, 527 (1988) (quoting U.S. Const.\nart. II, \xc2\xa7 2, cl. 1). That authority thus \xe2\x80\x9cexists quite apart from any explicit\ncongressional grant.\xe2\x80\x9d Id. Indeed, \xe2\x80\x9c[t]he President\xe2\x80\x99s roles as Commander in\nChief, head of the Executive Branch, and sole organ of the Nation in its\nexternal relations require that he have ultimate and unimpeded authority\nover the collection, retention and dissemination of intelligence and other\nnational security information in the Executive Branch.\xe2\x80\x9d Access to Classified Information, 20 Op. O.L.C. 402, 404 (1996) (quoting Brief for the\nAppellees at 42, Am. Foreign Serv. Ass\xe2\x80\x99n v. Garfinkel, 488 U.S. 923\n(1988) (No. 87-2127)). Thus, while Congress is not entirely disabled from\nparticipating in the system for protecting classified information, Congress\nmay not impair the President\xe2\x80\x99s control over national security information.\nSee, e.g., Applicability of the Foreign Intelligence Surveillance Act\xe2\x80\x99s\nNotification Provision to Security Clearance Adjudications by the Department of Justice Access Review Committee, 35 Op. O.L.C. __, at *8\n(June 3, 2011). \xe2\x80\x9cCongress may not, for example, provide Executive\nBranch employees with independent authority to countermand or evade\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 42\n\nthe President\xe2\x80\x99s determinations as to when it is lawful and appropriate to\ndisclose classified information.\xe2\x80\x9d Id.\nBut section 925 does not encroach upon presidential prerogatives with\nrespect to the protection of classified information. Section 925 does not\npurport to dictate who should be granted access to national security\ninformation. Nor does section 925 attempt to alter the substantive standards governing which individuals are entitled to be granted such access.\nRather, section 925 simply reallocates from OPM to DoD the authority\nto conduct the background investigations generating the information\nrequired to make such access determinations for a subset of federal personnel. Moreover, section 925 gives the Secretary of Defense the flexibility either to use this authority himself or to \xe2\x80\x9cdelegate such authority to\nanother entity,\xe2\x80\x9d suggesting that the Executive Branch will still have\nultimate control over which entity conducts these investigations. FY 2018\nNDAA, \xc2\xa7 925(a)(1), 131 Stat. at 1526. And in any event, DoD would\nremain subject to the framework for controlling how access determinations will be made that the President established in Executive Orders.\nWhen performing security clearance and related background investigations, DoD would, for example, remain subject to the oversight of the\nDirector of National Intelligence. See Exec. Order No. 13764, \xc2\xa7 3(s)\n(amending Exec. Order No. 13467, \xc2\xa7 2.5(e)(i)\xe2\x80\x93(vi), (vii)). 5 We conclude\nthat this statutory reallocation of investigative functions from one part of\nthe Executive Branch to another does not raise constitutional concerns.\nIII.\nFor the reasons set forth above, we conclude that, under section 925 of\nthe FY 2018 NDAA, DoD has the authority to conduct background investigations for its personnel that the NBIB currently performs, including\ninvestigations to determine whether those personnel may be granted a\nsecurity clearance giving them access to classified information or whether\nthey are eligible to hold a sensitive position. We do not understand this\n\n5\n\nIndeed, the implementation plan that DoD developed pursuant to the FY 2017\nNDAA, which section 925(b) directs DoD to follow, specifically includes as a criterion of\nthe plan\xe2\x80\x99s \xe2\x80\x9cend-state success\xe2\x80\x9d with respect to such investigations the achievement of\n\xe2\x80\x9c[c]ompliance with [ODNI] oversight, reporting and assessment requirements.\xe2\x80\x9d DoD\nImplementation Plan at 6\xe2\x80\x937.\n\n10\n\n\x0cDepartment of Defense\xe2\x80\x99s Authority to Conduct Background Investigations\n\nspecific grant of investigative authority to DoD otherwise to disrupt the\ngeneral oversight framework for background investigations established by\nExecutive Order 13764 and its predecessors.\nSARAH M. HARRIS\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n11\n\n\x0c'


b'June 16, 1978\n\n78-33\n\nMEMORANDUM OPINION FOR THE GENERAL\nCOUNSEL, INTERSTATE COMMERCE\nCOMMISSION\nInterstate Commerce Commission\xe2\x80\x94 Furnishing\nInformation to Congress (49 U.S.C. \xc2\xa7 322(d))\n\nThis is in response to your inquiry whether employees of the Interstate\nCommerce Commission (the Commission) may, under section 222(f) of the\nInterstate Commerce Act (the Act), 49 U.S.C. \xc2\xa7 322(f), furnish documents or\ninformation to a member of the staff of the Subcommittee on Antitrust and\nMonopoly of the Senate Committee on the Judiciary without fear of possible\ncriminal liability under \xc2\xa7 222(d) of the Act, 49 U.S.C. \xc2\xa7 322(d). We conclude\nthat, subject to the conditions set forth herein, employees of the Commission\nmay lawfully furnish to members of the Subcommittee staff information\nprotected by \xc2\xa7 222(d).\n1. The first question presented is whether the exception provided in \xc2\xa7 222(0\napplies to the prohibition against the release of \xe2\x80\x9c any fact or information\xe2\x80\x9d set\nforth in \xc2\xa7 222(d). We think that \xc2\xa7 222(0 clearly provides an exception to the\nprohibition established in \xc2\xa7 222(d). Section 222(0 provides in pertinent part:\nNothing in this part shall be construed to prevent the giving of such\ninformation . . . to any officer or agent of the Government of the\nUnited States or of any State, Territory, or District thereof, in the\nexercise of his power.\nThe phrase\xe2\x80\x9c nothing in this part\xe2\x80\x9d refers to the entire Motor Carrier Act of 1935,\nPub. L. No. 255, August 9, 1935 (49 Stat. 543), which was included at the\ntime of its enactment as \xe2\x80\x9c Part II\xe2\x80\x9d of the Interstate Commerce Act. Because\n\xc2\xa7 222(d) is a provision in \xe2\x80\x9c Part II,\xe2\x80\x9d it would seem that the exception in\n\xc2\xa7 222(0 applies to the latter provision as it does to all other provisions of \xe2\x80\x9c Part\nII.\xe2\x80\x9d In addition, we think the exception provided for \xe2\x80\x9c such information\xe2\x80\x9d in\n\xc2\xa7 222(0 is broad enough to reach the prohibition on the disclosure of \xe2\x80\x9c any fact\nor information\xe2\x80\x9d in \xc2\xa7 222(d). We thus believe \xc2\xa7 222(0 provides an exception to\nwhatever prohibition exists by reason of \xc2\xa7 222(d).\n2. You also ask whether a subcommittee investigator or attorney is an\n\xe2\x80\x9c officer or agent of the Government of the United States\xe2\x80\x9d within the meaning\n131\n\n\x0cof \xc2\xa7 222(0- We believe that such subcommittee officials come within the\nmeaning of this phrase.\nOur conclusion is based on both the language of \xc2\xa7 222(0 and its legislative\nhistory. Simply relying on the plain meaning of the above phrase leads us to the\nconclusion that Congress and those who work for the Congress (or its\ncommittees) are included. This reading of the statute is supported by the\nevident intent displayed by other parts of \xc2\xa7 222(0- That provision allows\ndisclosure\n. . . in response to any legal process issued under the authority of any\ncourt, or to any officer or agent of the Government of the United\nStates or of any State, Territory, or District thereof, in the exercise of\nhis power, or to any officer or other duly authorized person seeking\nsuch information for the prosecution of persons charged with or\nsuspected of crimes.\nThe Congress, by allowing disclosure in response to legal process issued by a\ncourt, or to any officer or agent of the United States Government or of any\nState, territory, or district, or to any officer or other duly authorized person\nseeking information for purposes of prosecution, evidently intended that the\nprohibitions against disclosure in \xe2\x80\x9c Part II\xe2\x80\x9d of the Act should not interfere with\nthe orderly processes of government. This underlying purpose clearly extends\nto the various activities conducted by the Congress and thus \xc2\xa7 222(0 allows\ndisclosure of the information subject to \xc2\xa7 222(d) in order to facilitate the\nCongress\xe2\x80\x99 legitimate activity.\nThe meager legislative history of \xc2\xa7 222(0 also supports this conclusion. As\nnoted above, \xc2\xa7 222(0 was enacted as part of the Motor Carrier Act of 1935, but\nno explanation was offered concerning Congress\xe2\x80\x99 intent underlying that\nprovision. However, its language closely tracks, and apparently was modeled\non, the language of \xc2\xa7 15(13) of the Interstate Commerce Act, 49 U.S.C.\n\xc2\xa7 15(13). See S.Rept. No. 433, 76th Cong., 1st sess. p. 15 (1939). This latter\nstatute was originally added by floor amendment to the Mann-Elkins Act, Pub.\nL. No. 309, June 18, 1910 (36 Stat. 553) in a context, like that of the present\nsituation, of providing an exception to a prohibition on the disclosure of\ninformation. Its intent, as set forth by Senator Burton, the sponsor of the\namendment, was as follows:\nMr. President, very briefly I will explain the evil or injustice which\nthis amendment is intended to prevent. It has developed in judicial\nproceedings in two instances that certain great industrial combina\xc2\xad\ntions maintain information bureaus. Those engaged in the work of\nthese bureaus, by divers methods, none of which, I think, can be\nrated as commendable, obtain from railway corporations, or through\ntheir agents, information relating to the business of their minor\ncompetitors. For example, a great establishment ascertains that a\ncompetitor intends to ship into the State of Ohio, Indiana, or Texas a\nconsignment of merchandise. The amount of that merchandise\nbecomes known to the information bureau, and the name of this\n132\n\n\x0cconsignee is also ascertained. Using this information, a strenuous\neffort is made to prevent the competitor from disposing of his\nmerchandise, from making any sales in the locality to which the\nshipment is made. An unfair advantage is thus given to the larger\nestablishment, which enables it, in a measure, to crush out competi\xc2\xad\ntion. I have a mass of information on this subject, if there is a desire\nthat I should read it. [45 Cong. Rec. 7207 (1910)]\nIt seems clear from this statement that Congress\xe2\x80\x99 concern in this area was the\nuse of information to secure unfair competitive advantages, see, United States\nv. Baltimore and Ohio Railroad C o., 319 F. Supp. 1103, 1105 (D. Md. 1970);\nCommonwealth v . White, 179 S.W. 469, 470 (Ct. App. Ky. 1915); Mandell v.\nLong Island Railroad Co., 227 I.C.C. 278 (1938); nothing was said to indicate\nthat the provisions were designed to impinge on the processes of Government.\nAs such, since \xc2\xa7\xc2\xa7 222(d) and (0 appear to be founded on this same concern, we\nbelieve that it would distort Congress\xe2\x80\x99 purposes underlying these provisions to\nconclude that they operate to preclude Congress from obtaining access to\ninformation held by the Commission. This suggests that the term \xe2\x80\x9c officer or\nagent of the Government of the United States\xe2\x80\x9d in \xc2\xa7 222(f) is meant to include\nofficials acting on behalf of Congress.\nFinally, the limited case law interpreting provisions comparable to \xc2\xa7 222(d)\nand (0 further supports this result. The courts generally have not interpreted\nthese comparable provisions to impose inflexible or rigid requirements on\naccess to information subject to a general prohibition on disclosure. Rather, the\ndecisions have allowed access to such information by Federal agencies. See,\nD .G . Bland Lumber Co. v. N .L.R .B.. 177 F. (2d) 555, 558 (5th Cir. 1949); by\nState agencies, State v. Atchison, T. and S. F. Ry. Co., 221 P. 259, adhered to\nby 225 P. 1026 (S. Ct. Kan. 1923-1924); by those seeking discovery in\nlitigation, Delta Steamship Lines, Inc. v. National Maritime Union, 265 F.\nSupp. 654 (E.D. La. 1967); and even by ordinary citizens acting pursuant to a\nState statute, State v. Seaboard Air Line Ry., 84 S.E. 283 (S. Ct. N. Car.\n1915), a ffd , 245 U.S. 298 (1917). In view of the rather large number of\nindividuals or entities to whom the courts have allowed access to information\nunder provisions comparable to \xc2\xa7 222(d) and (0, we think it unreasonable to\nconclude that these latter provisions should be applied restrictively. Again, this\nsuggests that Congress is not barred from access to the information protected by\n\xc2\xa7 222(d).\nWe thus conclude, for the foregoing reasons, that the term \xe2\x80\x9c officer or agent\nof the Government of the United States\xe2\x80\x9d includes officials acting on behalf of\nthe Congress.\n3.\nThe fact that information protected by \xc2\xa7 222(d) may be released to\nofficials acting on behalf of the Congress does not mean, however, that they\nhave unlimited access to such information. The statute grants access to the\ninformation to an officer or agent of the Government of the United States \xe2\x80\x9c in\nthe exercise of his power.\xe2\x80\x9d In our view, this condition necessarily calls for an\ninquiry whether the officials seeking access to information protected by\n\xc2\xa7 222(d) are acting within the proper limits of their authority.\n133\n\n\x0cWe have found no court decisions with respect to either \xc2\xa7 222(0 or\nanalogous provisions.that are helpful in determining when an official acting on\nbehalf of the Congress would satisfy the requirement \xe2\x80\x9c in the exercise of his\npower.\xe2\x80\x9d We believe, however, that decisions of the courts on the legitimate\nscope of congressional power to investigate are instructive on this question.\nThey set forth a number of factors bearing on Congress\xe2\x80\x99 power of investigation.\nSee generally, Wilkinson v. United States, 365 U.S. 399, 408-09 (1961);\nAshland Oil, Inc. v. F.T.C ., 409 F. Supp. 297, 305 (D.D.C. 1976), affd, 548 F.\n(2d) 977 (D.C. Cir. 1976). For example, the investigation must be pursuant to a\nvalid legislative purpose, e.g ., Quinn v. United States, 349 U.S. 155, 161\n(1955); Ashland Oil, Inc. v. F .T .C ., supra, at 305, n. 8; the congressional\nentity conducting the investigation must be authorized by Congress to do so,\ne.g., Gojack v. United States, 384 U.S. 702, 716 (1966), and must conduct the\ninvestigation in the manner prescribed by the Congress, e.g., Liveright v.\nUnited States, 347 F. (2d) 473 (D.C. Cir. 1965); Shelton v. United States, 327 F.\n(2d) 601 (D.C. Cir. 1963); and the specific inquiries must be pertinent to the\nsubject matter of the investigation. Wilkinson v. United States, supra; Ashland\nOil, Inc. v. F .T .C ., supra. Any determination whether these criteria are met\ndepends upon the facts and circumstances of each particular investigation, and\nwe thus are not in a position to address such questions here. Rather, since these\nquestions must be answered in a specific factual context, it is for the\nCommission to ascertain whether a subcommittee staff member seeking\ninformation is acting \xe2\x80\x9c in the exercise of his power\xe2\x80\x9d in a particular situation.\nL eon U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n134\n\n\x0c'


b'Litigation Authority of the Equal Employment Opportunity\nCommission in Title VII Suits Against\nState and Local Governmental Entities\nIn general, the Attorney General has plenary authority over the supervision and conduct o f\nlitigation to which the United States is a party. Courts have narrowly construed statutory\ngrants o f litigation authority to agencies to permit the exercise of such power only when the\nauthorizing statutes are sufficiently clear and specific to ensure that Congress intended an\nexception to the general rule.\nThe litigation authority o f the Equal Employment Opportunity Corporation (EEOC) is limited by\nstatute to suits brought on behalf o f private sector employees. 42 U.S.C. \xc2\xa7\xc2\xa7 2000e-4 to 2000e6. Furthermore, litigation authority for Title VII \xe2\x80\x9cpattern or practice\xe2\x80\x9d suits against State and\nlocal government entities is specifically vested in the Attorney General.\nTo permit the EEOC, an executive agency subject to the authority o f the President, to represent\non its own behalf a position in court independent o f or contrary to the position o f the United\nStates, would be inconsistent with the constitutional principle of the unitary executive.\n\nMarch 13, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nA s s is t a n t A t t o r n e y G e n e r a l ,\n\nC iv il R ig h t s D\n\niv is io n\n\nThis responds to your request for the opinion of this Office regarding the\nlitigation authority of the Equal Employment Opportunity Commission (EEOC)\nin suits brought against state or local governmental entities to enforce Title VII\nof the Civil Rights Act of 1964, 42 U.S.C. \xc2\xa7 2000e (1976), as amended. Your\nquestion arises in the context of litigation brought in the United States District\nCourt in Louisiana by a class of black applicants and members o f the New\nOrleans Police Department against the City of New Orleans, the New Orleans\nCivil Service Commission (CSC) and various municipal and CSC officials,\nseeking redress from injuries suffered due to alleged racially discriminatory\npolicies in the selection, training and promotion of city police officers.1 Fol\xc2\xad\nlowing pretrial settlement discussions, the parties moved jointly for the court\xe2\x80\x99s\napproval of a proposed consent decree in settlement of the plaintiffs\xe2\x80\x99 claims.\nThe district court denied approval of the decree on the ground that \xe2\x80\x9cthe\nproposed quota exceeds its remedial objectives while seriously jeopardizing\nthe career interests of nonblack officers,\xe2\x80\x9d and encouraged the parties to resub\xc2\xad\n1 See Williams v. C ity o /N e w O rleans, 543 F Supp 662 (E.D. La. 1982), re v \'d a nd remanded, 694 F.2d 987\n(5th Cir. 1982).\n\n57\n\n\x0cmit a decree \xe2\x80\x9cpropos[ing] further measures that the parties deem appropriate,\nso long as they are precise, remedial in nature, and attentive to the interests of\nthird parties.\xe2\x80\x9d 543 F. Supp. at 686.\nOn appeal, the U.S. Court o f Appeals for the Fifth Circuit reversed, holding\nthat the district court\xe2\x80\x99s rejection of the proposed consent decree on the stated\ngrounds constituted an abuse of the court\xe2\x80\x99s discretion, and remanded with\ninstructions to enter the decree. We understand that, pursuant to 42 U.S.C.\n\xc2\xa7\xc2\xa7 2000e-5(f)(l)2 and 2000h-2,3 the Attorney General has certified that this\ncase is \xe2\x80\x9co f general public importance\xe2\x80\x9d and has moved the Court of Appeals for\npermission to intervene, on behalf of the United States, as a party-appellee, for\nthe purpose o f filing a suggestion for rehearing en banc. We understand further\nthat the EEOC is prepared to petition the court for leave to present, in some\ncapacity,4 views o f the Commission which are independent of, and possibly\ncontrary to, those presented by the Attorney General. You now seek the advice of\nthis Office as to whether the EEOC has authority to make such an appearance.\nW e believe that, as the following discussion makes clear, the EEOC\xe2\x80\x99s\nlitigating authority under Title VII of the Civil Rights Act is limited to the\nenforcement o f claims against private sector employees. This conclusion is\nsupported by the very terms o f the enforcement provisions of Title VII, 42\nU.S.C. \xc2\xa7\xc2\xa7 2000e-5, 6, as well as the legislative history of those provisions. In\naddition, the more general constitutional and statutory considerations investing\nthe Attorney General with the responsibility for the conduct of all litigation on\nbehalf of the United States, would, in any event, counsel against a construction\no f the EEOC\xe2\x80\x99s litigating authority that would permit it, as an Executive Branch\nagency subject to the supervision and control o f the President, to appear\nindependently and on its own behalf, in opposition to positions advanced by the\nAttorney General, on behalf o f the United States.\n\nL General ComsMeratioims\nAll questions o f the litigating authority o f Executive Branch agencies and\ndepartm ents must begin with a recognition of the Attorney General\xe2\x80\x99s plenary\nauthority over the supervision and conduct o f litigation to which the United\n2 S ection 2 0 0 0 e -5 (f)(l) provides in p e rtin en t part:\nU pon tim ely application, the court m ay , in its discretion, permit the C om m ission, or the A ttorney\nG en era l in a case involving a governm ent, governm ental agency, or political subdivision, to\nintervene in such civil action upon certificatio n that th e case is o f general public importance.\n(E m phasis added.)\n3 S ection 2000H-2 provides:\nW h en ev er an action has been com m enced in any court o f the U nited States seeking relief from\nthe d enial o f eq u al protection o f th e law s under the fourteenth am endm ent to the C onstitution on\nacco u n t o f race, color, religion, sex o r national origin, the A ttorney G eneral for o r in the nam e of\nthe U nited States m ay intervene in su ch action upon tim ely application if the A ttorney G eneral\ncertifies that the case is o f general p u b lic im portance. In such action the U nited States shall be\nen titled to the sam e re lie f as if it h a d instituted the action.\n4 It is u n clear w hether the Commission seek s to present its views as an amicus curiae or as an intervening\np arty -ap p ellan t. B ecause w e conclude th at th e C om m ission lacks the authority to appear on its ow n behalf in\nany public secto r T itle VII litigation, the d istin ctio n betw een intervention and am icus appearances is without\nsig n ifican ce to the con sid eratio n and resolution o f this issue.\n\n58\n\n\x0cStates, its agencies and departments, or officers thereof, is party. This plenary\nauthority is rooted historically in our common law and tradition, see Confisca\xc2\xad\ntion Cases, 74 U.S. (7 Wall.) 454,458-59 (1868); The Gray Jacket, 72 U.S. (5\nWall.) 370 (1866); and, since 1870, has been given a statutory basis. See 28\nU.S.C. \xc2\xa7\xc2\xa7 516, 519.5 See generally United States v. San Jacinto Tin Co., 125\nU.S. 273 (1888). The rationales underlying this grant of plenary authority to the\nAttorney General are many, the most significant of which is the need to\ncentralize the federal litigation functions under one authority to ensure: (1)\ncoordination in the development of positions taken by the Government in\nlitigation, and consideration of the potential impact of litigation upon the\nGovernment as a whole; and (2) the ability of the President, as head o f the\nExecutive Branch, to supervise, through the Attorney General, the various\npolicies of Executive Branch agencies and departments as they are implicated\nin litigation. Because of his government-wide perspective on matters affecting\nthe conduct o f litigation in the Executive Branch, the Attorney General is\nuniquely suited to carry out these functions. See United States v. San Jacinto\nTin Co., 125 U.S. at 27880. See also Report o f the Attorney G eneral\xe2\x80\x99s Task\nForce on Litigating Authority (Oct. 28, 1982)); Memorandum fo r the Attorney\nGeneral re: The Attorney G eneral\xe2\x80\x99s role as C hief Litigator fo r the United\nStates, 6 Op. O.L.C. 47 (1982).\n\nNotwithstanding Congress\xe2\x80\x99 determination that the litigating functions o f the\nExecutive Branch be generally centralized in the Attorney General, the Attor\xc2\xad\nney General\xe2\x80\x99s \xe2\x80\x9cplenary\xe2\x80\x9d authority over litigation involving the United States is\nlimited to some extent by the \xe2\x80\x9cexcept as otherwise authorized by law\xe2\x80\x9d provi\xc2\xad\nsions contained in \xc2\xa7\xc2\xa7 516 and 519. Nevertheless, mindful of the considerations\nsupporting such centralization, the courts have narrowly construed statutory\ngrants of litigation authority to agencies in derogation of the responsibilities\nand functions vested in the Attorney General to permit the exercise of litigating\nauthority by agencies only when the authorizing statutes are sufficiently clear\nand specific to ensure that Congress indeed intended an exception to the\ngeneral rule. See, e.g., Case v. Bowles, 327 U.S. 92 (1946); ICC v. Southern Ry.\nCo., 543 F.2d 534 (5th Cir. 1976); Federal Trade Comm\xe2\x80\x99n v. Guignon, 390 F.2d\n323 (8th Cir. 1968). See generally Report o f the Attorney General\xe2\x80\x99s Task Force on\nLitigating Authority, supra \'. Memorandum fo r the Attorney General, supra.6\n5 28 U.S.C. \xc2\xa7 5 1 6 provides:\nExcept as otherw ise authorized by law, the conduct o f litigation in which the U nited States, an\nagency, o r officer thereof is a party, o r is interested,and securing evidence therefor, is reserved to\nofficers o f the Department o f Justice, under the direction o f the Attorney G eneral.\n28 U .S.C. \xc2\xa7 519 provides:\nExcept as otherw ise authorized by law, the Attorney General shall supervise all litigation to w hich the\nU nited States, an agency, o r officer thereof is a party, and shall direct all U nited States A ttorneys, A ssistant\nU nited States A ttorneys, and special attorneys appointed under section 543 o f this title in the discharge of\ntheir respective duties.\n6 The T ask Force Report and the 1982 O ffice o f Legal Counsel M emorandum together provide an extensive\nand thorough discussion o f the A ttorney G en eral\'s litigating authority for the Executive B ranch, including its\nhistorical origins and developm ent since 1789, the ju d icial construction o f various \xe2\x80\x9clitigating authority*\xe2\x80\x99\nstatutes, and the M emoranda o f U nderstanding entered into by the D epartm ent o f Justice to share litigating\nfunctions with \xe2\x80\x9cclien t\xe2\x80\x9d agencies.\n\n59\n\n\x0cA. The E E O C \xe2\x80\x99s Litigating Authority\n\nThe EEOC\xe2\x80\x99s general litigating authority is found in the Commission\'s\nauthorizing statute, 42 U.S.C. \xc2\xa7 2000e-4. Subsection (b) of that section, which\ngoverns the appointment and functions of the Commission\xe2\x80\x99s General Counsel,\nprovides in pertinent part:\n(b) (1) There shall be a General Counsel of the Commission\nappointed by the President, by and with the advice and\nconsent of the Senate, for a term of four years. The\nGeneral Counsel shall have responsibility for the con\xc2\xad\nduct o f litigation as p ro vid ed in sections 2000e-5 and\n2 0 0 0 e-6 of this title.\n\n(2) A ttorneys appointed under this section may, a t the direc\xc2\xad\ntion o f the Commission, appear fo r and represent the\nCommission in any case in court, provided that the A t\xc2\xad\ntorney General shall conduct a ll litigation to which the\nCommission is a p a rty in the Supreme Court pursuant to\nthis subchapter.\n\n(Emphasis added.) In addition, subsection (g)(6) of \xc2\xa7 2000e-4 authorizes the\nCommission\nto intervene in a civil action brought under section 2000e-5 of\nthis title by an aggrieved party against a respondent other than a\ngovernm ental agency o r political subdivision.\n\n(Emphasis added.)\nSections 2000e-5 and 2000e-6, which constitute the enforcement provisions\nfor Title VII o f the Act, set forth the functions and responsibilities of the EEOC\nand the Attorney General, respectively, for enforcement of the Act. Section\n2000e-5 outlines the various procedures for filing charges of alleged discrimi\xc2\xad\nnation with the Commission and the Commission\xe2\x80\x99s responsibilities for timely\ninvestigation and attempted conciliation of those charges. Subsection (f)(1)\nprovides that if, after a given period of time, the Commission is unable to\nsecure an acceptable conciliation agreement,\nthe Commission may bring a civil action against any respondent\nnot a government, governm ental agency, or political subdivi\xc2\xad\nsion nam ed in the charge. In the case o f a respondent which is a\ngovernment, governmental agency, o r political subdivision, if\n\nthe Commission has been unable to secure from the respondent\na conciliation agreement acceptable to the Commission, the\nComm ission shall take no further action and shall refer the case\nto the A ttorney General who m ay bring a civil action against the\n\nrespondent in the appropriate United States district court. The\nperson or persons aggrieved shall have the right to intervene in a\n\n60\n\n\x0ccivil action brought by the Commission or the Attorney General\nin a case involving a governmental agency, or political subdivision.\n(Emphasis added.) If, after investigation, the Commission dismisses the charge\nor fails to file a civil action after the statutory period of reference has expired,\nor \xe2\x80\x9cthe Attorney General has not filed a civil action in a case involving a\ngovernment, governmental agency, or political subdivision,\xe2\x80\x9d the complainant\nis entitled to bring suit in his or her individual capacity. In such cases, upon\ntimely application, the court may, in its discretion, permit the Commission, or\nthe Attorney General in a case involving a government, governmental agency,\nor political subdivision, to intervene . . . upon certification that the case is of\n\ngeneral public importance. 42 U.S.C. \xc2\xa7 2000e-5(f)(l) (emphasis added).\nThe enforcement provisions contained in \xc2\xa7 2000e-5 clearly limit the EEOC\xe2\x80\x99s\nauthority to bring civil actions on behalf of Title VII complainants, or to\nintervene in such proceedings, to cases involving nongovernmental defendants.\nThat is, by its very terms, the EEOC\xe2\x80\x99s litigation authority is limited to suits\nbrought on behalf of private sector employees. See General Telephone Co. o f\nthe Northwest v. EEOC, 446 U.S. 318, 324 & n.6 (1980) (in describing the\nstatutory scheme of Title VII, the Court stated that \xc2\xa7 2000e-5(f)(l) \xe2\x80\x9cspecifi\xc2\xad\ncally authorizes the EEOC to bring a civil action against any respondent not a\ngovernm ental entity upon failure to secure an acceptable conciliation agree\xc2\xad\nment,\xe2\x80\x9d and added that \xe2\x80\x9c[t]he Attorney General is authorized to bring suit\nagainst a governmental entity\xe2\x80\x9d), (emphasis added).7 See also United States v.\nFresno Unified School D ist., 592 F.2d 1088 (9th Cir.), cert, denied, 444 U.S.\n832(1979).\nThis limitation, and those contained in \xc2\xa7 2000e-6 discussed below, are\nincorporated into the general grant of litigating authority to the Commission in\n\xc2\xa7 2000e-4(b).8 Thus, to the extent that the Commission bases its claim of\nauthority to appear in Title VII litigation against public sector employees on\n\xc2\xa7 2000e-4(b)(2), it, in effect, claims that EEOC attorneys are not bound by the\nconstraints imposed on the litigating authority o f the General Counsel, under\nwhose supervision they work. Such a construction would be contrary to Con\xc2\xad\ngressional intent,9 the rule that exceptions to the Attorney General\xe2\x80\x99s plenary\n7 The C ourt further stated that the 1972 am endm ents to the Act expanded the C om m ission\'s enforcem ent\npow ers beyond the conciliation authority granted to it in 1964 by \xe2\x80\x9cauthorizing the EEOC to bring a civil\naction in federal district court against private em ployers reasonably suspected of violating Title V II.\xe2\x80\x9d 446\nU.S. at 325 (em phasis added).\n8 As indicated above, \xc2\xa7\xc2\xa7 2000e-4(b)( 1) and (2) grant the G eneral Counsel \xe2\x80\x9cresponsibility for the conduct o f\nlitigation as provided in sections 2000e-5 and 2000e-6," and attorneys \xe2\x80\x9cappointed under this section\'1 the\nauthority to, \xe2\x80\x9cat the direction o f the Com m ission, appear for and represent the Com m ission in any case in\ncourt," except the Suprem e Court. (E m phasis added.)\n9 The C onference R eport to the 1972 am endm ents to T itle VII o f the C ivil R ights Act indicates that:\nB oth the H ouse bill and the Senate am endm ent authorized the bringing o f civil actions in\nFederal district courts in cases involving unlaw ful em ploym ent practices.\nThe Senate am endm ent pro vid ed that the A ttorney G eneral bring actions against state and\nloca l governm ents. A s to other respondents, suits were to be brought by the Commission. The\nSenate am endm ent perm itted suits by the Com m ission o r the Attorney G eneral if the CommisContinued\n\n61\n\n\x0clitigating authority are to be narrowly construed, and the plain language of the\nstatute.\nThe second provision outlining the scope of the EEOC\xe2\x80\x99s authority to litigate\nTitle VII suits, \xc2\xa7 2000e-6, relates to the prosecution of \xe2\x80\x9cpattern or practice\xe2\x80\x9d\nsuits.10 That provision, as amended by \xc2\xa7 5 of the President\xe2\x80\x99s Reorganization\nPlan No. 1 of 1978,43 Fed. Reg. 19809,92 Stat. 3781 (Feb. 23,1978), vests the\nauthority for \xe2\x80\x9cinitiation of litigation with respect to State or local government,\nor political subdivisions under . . . [42 U.S.C. \xc2\xa7 2000e-6] and all necessary\nfunctions related thereto, including investigations, findings, notice and an\nopportunity to resolve the m atter without contested litigation\xe2\x80\x9d in the Attorney\nGeneral. See 42 U.S.C. \xc2\xa7 2000e-4 note (Supp. IV 1980).\n9 ( . . . continued)\nsion w as unable to secure from respondent \xe2\x80\x9ca conciliation agreem ent acceptable to the Com m is\xc2\xad\ns io n " w hile the H ouse bill permitted the C om m ission to sue if it is unable to obtain \xe2\x80\x9cvoluntary\nco m pliance." The Senate amendment perm itted aggrieved persons to intervene in suits and\nallow ed a private action if no case is brought by the Com m ission or Attorney General within 150\ndays. T he H ouse bill permitted a p riv ate action after 180 days. The Senate amendment allowed\nthe G eneral C ounsel o r Attorney G eneral to intervene in private actions; the H ouse bill permitted\nonly the A ttorney G eneral to intervene. The Senate am endm ent perm itted a private action in a\ncase w here the C om m ission entered into a conciliation agreem ent to which the aggrieved person\nw as not a party (i.e. a signatory).\nT he conferees adopted a provision allow ing the Com m ission o r the Attorney G eneral in a\nca se a gainst a state o r local governm ent agency, to b n n g an action in Federal district courts if the\nC om m ission is unable to secure from the respondent \xe2\x80\x9ca conciliation agreem ent acceptable to the\nC o m m issio n ." A ggrieved parties a re perm itted to intervene. They may bring a private action if\nthe C om m ission o r A ttorney General has not brought suit within 180 days or the Com m ission has\nentered into a conciliation agreem ent to which such aggrieved party is not signatory. The\nC om m ission, o r the Attorney G enera) m a case involving state and local governm ents, may\nintervene in such private action.\nH .R. C onf. R ep. No. 899, 92d Cong , 2d S e ss. 17-18 (1972) (em phasis added).\n10 42 U .S.C . \xc2\xa7 2000e-6, as originally en acted in 1964, Pub. L. No. 88352, 78 Stat. 261 (July 2, 1964),\nprovided that:\n(a) W henever the Attorney G eneral has reasonable cause to believe that any person or group\no f persons is engaged in a pattern o r practice o f resistance to the full enjoym ent of any o f the\nrig h ts secured by this title, and that th e pattern o r practice is of such a nature and is intended to\ndeny the full exercise o f the rights herein described, the A ttorney General may bring a civil\naction in the appropriate district c o u rt o f the U nited States by filing w ith it a com plaint (1) signed\nby him (o r in his absence the Acting A ttorney G eneral), (2) setting forth facts pertaining to such\npattern o r practice, and (3) requesting such relief, including an application for a perm anent or\ntem porary injunction, restraining o rd e r or other o rder against the person or persons responsible\nfo r such pattern o r practice, as he d eem s necessary to insure the full enjoym ent o f the rights\nherein described.\nIn 1972 the A ct was am ended. Pub. L. No. 9 2 -2 6 1 , 86 Stat. 107 (M ar 24, 1972), to provide that:\n(c) E ffective tw o years after [M arch 24, 1972], the functions o f the Attorney General under\nthis section shall be transferred to th e [Equal Em ploym ent O pportunity] Com m ission, together\nw ith such personnel, property, records, and unexpended balances o f appropriations, allocations,\nand o th e r funds em ployed, used, held, available, o r to be made available in connection with such\nfunctions unless the President subm its, and neither H ouse o f C ongress vetoes, a reorganization\nplan pursuant to chapter 9 of Title 5, inconsistent with the provisions of this subsection. The\nC om m ission shall carry out such functions in accordance with subsections (d) and (e) of this section.\n42 U .S.C . \xc2\xa7 2000e-6 (Supp. IV 1974).\nIn 1978, pursuant to the President\xe2\x80\x99s Reorganization Plan No. 1, 92 Stat. 3781 (1978), the authority for\nprosecuting \xe2\x80\x98\xe2\x80\x98pattern o r practice\xe2\x80\x9d suits against governmental defendants under Title VII o f the Civil Rights Act, 42\nU.S.C. \xc2\xa7 2000e-6, was transferred back to the Attorney General. Section 5 of the Reorganization Plan provides that:\nC ontinued\n\n62\n\n\x0cIn his Message to Congress conveying the Reorganization Plan, the Presi\xc2\xad\ndent stated that the Plan was designed to \xe2\x80\x9cconsolidate Federal equal employ\xc2\xad\nment opportunity activities\xe2\x80\x9d by reducing the number of federal agencies with\nenforcement responsibilities from fifteen to three,11 and to \xe2\x80\x9cbring coherence to\nthe equal employment enforcement effort.\xe2\x80\x9d Id. With respect to the Attorney\nGeneral\xe2\x80\x99s responsibility for public sector \xe2\x80\x9cpattern or practice\xe2\x80\x9d litigation, the\nPresident stated:\nThe Plan I am proposing will not affect the Attorney General\xe2\x80\x99s\nresponsibility to enforce Title VII against State or local govern\xc2\xad\nments or to represent the Federal government in suits against\nFederal contractors and grant recipients. In 1972, the Congress\ndeterm ined that the Attorney General should be involved in suits\nagainst State and local governments. This proposal reinforces\nthat judgm ent and clarifies the A ttorney G eneral\xe2\x80\x99s authority to\ninitiate litigation against State or local governments engaged in\na \xe2\x80\x9cpattern or p ra c tic e \xe2\x80\x9d o f discrimination. This in no way dimin\xc2\xad\n\nishes the EEOC\xe2\x80\x99s existing authority to investigate complaints\nfiled against State or local governments and, where appropriate,\nto refer them to the Attorney General. The Justice Department\nand the EEOC will cooperate so that the Department sues on\nvalid referrals, as well as on its own or \xe2\x80\x9cpattern or practice\xe2\x80\x9d\ncases.\nId. (emphasis added). On June 30, 1978, the President signed Executive Order\n\nNo. 12068,43 Fed. Reg. 28971 (1978), implementing \xc2\xa7 5 of the Plan to transfer\n10 (.\n\ncontinued)\nSection 5. Transfer o f Public Sector 707 Functions\nAny function o f the Equal Em ploym ent O pportunity Com m ission concerning initiation of\nlitigation w ith respect to State or local governm ent, o r political subdivisions under Section 707 of\nTitle VII o f the Civil R ights Act o f 1964, as am ended, (42 U S C. 2000e-6) and all necessary\nfunctions related thereto, including investigations, findings, notice and an opportunity to resolve\nthe m atter w ithout contested litigation, are hereby transferred to the Attorney G eneral, to be\nexercised by him in accordance with procedures consistent with said Title VII. The Attorney\nGeneral is authorized to delegate any function under Section 707 o f said Title VII to any officer\nor em ployee o f the D epartm ent o f Justice.\n\n42 U.S C. \xc2\xa7 2000e-4 note (Supp. IV 1980). There has been considerable disagreem ent in the courts as to\nw hether the 1972 am endm ents, which transferred the A ttorney G eneral\xe2\x80\x99s functions regarding \xe2\x80\x9cpattern or\npractice\xe2\x80\x9d litigation to the EEOC (effective 1974), stripped the A ttorney General o f his authority to file\n\xe2\x80\x9cpattern o r practice\xe2\x80\x9d suits against state and local governm ents until enactm ent of the 1978 R eorganization\nPlan. See, e.g.. U nited States v. City o f M iam i, 664 F 2d 435, 437 & n.l (5th Cir. 1981) (en banc); United\nStates v. Fresno U nified School D istrict, 592 F.2d at 1093. There is uniform agreem ent, how ever, on the\nproposition that the EEOC no longer has authority to file \xe2\x80\x9c pattern or practice\xe2\x80\x9d suits against state and local\ngovernments.\n11 The three agencies which retained Equal Em ploym ent O pportunity Enforcem ent responsibilities under\nthe R eorganization Plan are the EEOC, the L abor D epartm ent and the Department o f Justice. The respective\nenforcem ent functions o f the agencies are clearly delineated in the Plan to prevent needless duplication and\noverlap. See 42 U .S.C. \xc2\xa7 2000e-4 note (Supp. IV 1980).\n\n63\n\n\x0cto the Attorney General the authority, previously exercised by the EEOC, to\nprosecute \xe2\x80\x9cpattern or practice\xe2\x80\x9d suits against public sector defendants.12\nAs is evident from the foregoing analysis, a construction of \xc2\xa7 2000e-6 that\nwould grant the EEOC authority to litigate \xe2\x80\x9cpattern or practice\xe2\x80\x9d suits against\nState or local governments is contrary to the plain language of the 1978\namendments to the provision. That the EEOC\xe2\x80\x99s independent litigating author\xc2\xad\nity in Title VII suits brought under \xc2\xa7\xc2\xa7 2000e-5, 6 is limited to private sector\nsuits is a position that is supported by the Department of Justice as well as the\ncourts. See U nited States v. C ity o f M iami, 664 F.2d 435, 437 (5th Cir. 1981)\n(en banc) (\xe2\x80\x9c [Defendants] contend[] that, after 1974, only the EEOC could\ninstitute . . . [\xe2\x80\x9cpattern or practice\xe2\x80\x9d] actions against public employers; however,\nCongress has now explicitly authorized only the Attorney General to do so.\xe2\x80\x9d)\n(footnote omitted). See also U nited States v. Commonwealth o f Virginia, 620\nF.2d 1018, 1022 (4th Cir.), cert, denied, 449 U.S. 1021 (1980); United States v.\nFresno Unified School District, 592 F.2d at 109293; United States v. State o f\nNorth Carolina, 587 F.2d 625 (4th Cir. 1978), cert, denied, 442 U.S. 909\n(1979).13\n\nII. CoesttntatnomaJ Considerations\nApart from the foregoing statutory analysis, which we believe demonstrates\nconclusively that the EEOC lacks authority to prosecute, intervene in, or\notherwise appear in, public sector Title VII litigation on its own behalf, the\nconstitutional considerations which bear on the issues raised by your request\nrequire such a result. These considerations stem from the fundamental premise\nthat the whole o f the Executive power, created by Article II of the Constitution,\nis vested exclusively in the President. M yers v. United States, 272 U.S. 52,\n161-64 (1926). Included within the Executive power is the obligation to \xe2\x80\x9ctake\ncare that the laws be faithfully executed,\xe2\x80\x9d art. II, \xc2\xa7 3, which necessarily\nencompasses the authority to exert \xe2\x80\x9cgeneral administrative control of those\n12 E xecutive O rder No. 12068 provides:\nT ra n sfer o f C ertain F unctions to A ttorney General.\nB y virtue o f the authority vested in me as President o f the U nited States by the C onstitution and\nlaw s o f the U nited States, including Section 9 o f Reorganization Plan N um ber 1 o f 1978 (43 FR\n19807), in o rd er to clarify the A ttorney G en eral\'s authority to initiate public sector litigation\nun d er Section 707 o f T itle VII of th e C ivil R ights Act o f 1964, as am ended (42 U.S.C. 2000e-6),\nit is ordered as follow s:\n1.1. S ectio n 707 F unctions o f the A tto rn ey G eneral.\n1-101. Section 5 o f Reorganization Plan N um ber 1 o f 1978 (43 FR 19807) shall become\neffective on Ju ly 1, 1978.\n1-102. The functions transferred to the A ttorney G eneral by Section 5 of R eorganization Plan\nN um ber 1 o f 1978 shall, consistent w ith Section 707 o f T itle VII o f the C ivil Rights A ct o f 1964,\nas am ended, be perform ed in accordance w ith D epartm ent o f Justice procedures heretofore\nfollow ed under Section 707.\nSee 42 U .S.C . \xc2\xa7 2000e-6 note (Supp. IV 1980).\n13 A lthough these decisions d o not ex p licitly lim it the C om m ission\'s authority to private sector suits, they\nstand fo r the proposition that the 1978 R eorganization Plan transferred to the Attorney General the full and\ncom plete authority to initiate T itle VII litigation against state and local governm ents, leaving the EEOC with\nw hatever T itle V ll litigation authority rem ained after the transfer, i.e., suits against private employees.\n\n64\n\n\x0cexecuting the law,\xe2\x80\x9d i.e., the Executive officers. M yers , 272 U.S. at 164. There\nis no doubt that the EEOC, which performs functions that are \xe2\x80\x9cpredominandy\xe2\x80\x9d 14\nexecutive in nature \xe2\x80\x94 conciliation and the prosecution of civil law suits \xe2\x80\x94 is an\nExecutive Branch agency whose members serve at the pleasure of the President and\nare removable without cause.15 See \xe2\x80\x9cReorganization Plan No. 1 of 1978 \xe2\x80\x94 Equal\nEmployment Opportunity Comm\xe2\x80\x99n,\xe2\x80\x9d 2 Op. O.L.C. 69,69 n. 1 (1978).\nBecause it is an executive agency subject to the authority of the President, to\npermit the Commission to appear in a judicial proceeding in which the United\nStates has exercised its authority to appear as a party (or has otherwise pre\xc2\xad\nsented its views, e.g., as an amicus), and present views on its own behalf which\nare independent of or contrary to those presented by the United States, would\nbe inconsistent with the integrity of the Executive in the exercise o f his Article\nII powers and responsibilities. Such a circumstance would, literally, put the\nExecutive in the untenable position of speaking with two conflicting voices,\nabdicating his constitutional responsibility to \xe2\x80\x9ctake Care that the Laws [are]\nfaithfully executed.\xe2\x80\x9d\nIn 1979, President Carter signed Executive Order No. 12146, by which he\ndelegated to the Attorney General the Executive\xe2\x80\x99s authority for solving intra\xc2\xad\nbranch disputes regarding legal matters. That order provides:\n1\xe2\x80\x94401. Whenever two or more Executive agencies are unable to\nresolve a legal dispute between them, including the question of\nwhich has jurisdiction to administer a particular program or to\nregulate a particular activity, each agency is encouraged to\nsubmit the dispute to the Attorney General.\n1\xe2\x80\x94402. Whenever two or more Executive agencies whose heads\nserve a t the pleasure o f the President are unable to resolve such\na legal dispute, the agencies shall subm it the dispute to the\nA ttorney General p rio r to proceeding in any court, except where\nthere is specific statutory vesting of responsibility for a resolu\xc2\xad\ntion elsewhere.\nExecutive Order No. 12146 (July 18, 1979), reprinted in 28 U.S.C. \xc2\xa7 509 note\n(emphasis added). The EEOC, which is an agency \xe2\x80\x9cwhose headfs] serve at the\npleasure of the President,\xe2\x80\x9d is prohibited by \xc2\xa7 1\xe2\x80\x94402 from proceeding in any\naction, whether public sector or private sector litigation, in which the Attorney\nGeneral has, in the exercise of the dispute resolution function delegated to him\nby the Executive, determined that the position of the United States is contrary\nto that represented by the Commission.\n14 See H um phrey\'s E x e c u to ry . U nited States, 295 U.S. 602, 624 (1935) (proposing a \xe2\x80\x9cfunctional\xe2\x80\x9d test fo r\ndeterm ining w hether fo r purposes o f the President\xe2\x80\x99s pow er o f removal, an agency is independent, and\ntherefore the President\xe2\x80\x99s pow er o f rem oval o f its m em ber m ay be lim ited, or a part o f the Executive Branch,\nin which case the m em bers serve at the pleasure o f the President). See also W iener v. United S tates, 357 U.S.\n349(1958).\n13 M em bers o f the C om m ission are appointed by the President, by and with the advice and consent o f the\nSenate, for a term o f five years 42 U .S.C. \xc2\xa7 2000e-4(a) The G eneral Counsel is appointed by the President,\nby and w ith the advice and consent o f the Senate, fo r a term o f four years. 42 U .S.C . \xc2\xa7 2000e-4(b)(l).\n\n65\n\n\x0cIII. Conclusion\nThe EEO C\xe2\x80\x99s statutory litigating authority for the enforcement of Title VII of\nthe Civil Rights Act, 42 U.S.C. \xc2\xa7\xc2\xa7 2000e-5, 6, is, by its very terms, limited to\ncivil actions against private sector employers, the responsibility for enforce\xc2\xad\nment litigation against \xe2\x80\x9cgovernment^], governmental agenc[ies], or political\nsubdivision[s]\xe2\x80\x9d having been vested in the Attorney General. This being the\ncase, the Commission lacks litigation authority with respect to Williams v. City\no f N ew O rleans, which is a Title VII enforcement action against a governmen\xc2\xad\ntal entity. As envisioned by the statutory scheme, the Attorney General has\npetitioned the court to present the views of the United States in this litigation.\nApparently the EEOC seeks to present its views to the court in the Williams\ncase because it disagrees with the position taken by the Attorney General on\nbehalf o f the United States in the litigation; it is equally evident that as an\nexecutive agency subject to the supervision and control of the President, the\nCommission may not represent on its own behalf a position in court that is\ncontrary to that taken by the Executive, through his delegee, the Attorney\nGeneral. To perm it otherwise would raise serious constitutional issues con\xc2\xad\ncerning the unity and integrity o f the Executive. Accordingly, we conclude that\nthe EEOC lacks authority to petition the court o f appeals in Williams v. City o f\nWew O rleans for leave to file a brief or otherwise make an appearance.\nTh eo d o re B. O\n\nlso n\n\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n66\n\n\x0c'