b'Revocation of Citizenship\nThe Im m ig ratio n and N aturalization Service h as authority to institute either adm inistrative o r judicial\np ro ceed in g s to d en atu ralize citizens w hose crim inal convictions disqualified them from citizenship\nas a m atter o f law . W hether the proceedings are adm inistrative o r judicial, the INS m ust establish\nth e alleg atio n s in its com plaint by clear, unequivocal, and convincing evidence.\nT he IN S has no authority to seek denaturalization if th e INS exam iner had discretion to find that\nan ap p lican t w as o f good m oral character, and in fact did exercise that discretion so as to find\nthat the ap p lican t w as o f good moral character, unless the IN S establishes in its com plaint by\nclear, uneq u iv o cal, and convincing evidence either that the applicant gave false testim ony with\nthe inten tio n o f ob taining an im m igration benefit o r that the exam iner\xe2\x80\x99s decision resulted from\nthe a p p lic a n t\'s w illful m isrepresentation o r concealm ent o f a m aterial fact.\nThe IN S m ay seek d en aturalization if the applicant m ade a false oral statem ent under oath (regardless\no f w h eth er the testim ony is material) w ith the subjective intent o f obtaining im m igration benefits.\nA ltern ativ ely , th e IN S m ay seek denaturalization if the applicant procured naturalization by\ncon cealm en t o r w illful m isrepresentation o f a m aterial fact In either case, the INS m ust prove\nits co m p lain t by clear, unequivocal, and convincing evidence.\n\nMarch 3, 1997\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nIm m ig r a t io n a n d N a t u r a l iz a t io n S e r v ic e\n\nYou have asked for our opinion on certain questions that were originally raised\nby the House Subcommittee on National Security, International Affairs, and\nCriminal Justice o f the Committee on Government Reform and Oversight, in\nconnection with the Immigration and Naturalization Service\xe2\x80\x99s (\xe2\x80\x9c INS\xe2\x80\x9d ) naturaliza\xc2\xad\ntion program .\' We begin by outlining the legal principles governing proceedings\nfor denaturalization (or revocation o f citizenship). See Parts I\xe2\x80\x94III below. In light\nof those principles, we then answer the particular questions you have posed. See\nPart IV below.\nI.\nThe controlling statute, the Immigration and Nationality Act ( \xe2\x80\x9c INA\xe2\x80\x9d ) \xc2\xa7 340(a),\n8 U.S.C. \xc2\xa7 1451(a) (1994), reads in relevant part as follows:\nl See M emorandum for Dawn Johnsen, Acting Assistant Attorney General, Office of Legal Counsel, from the\nOffice o f the General Counsel, Immigration and Naturalization Service, Re Request fo r OLC Opinion, Revocation\no f Naturalization: \xe2\x80\x9cDiscretionary Approvals" and M isstatements (Feb. 21, 1997) (the \xe2\x80\x9c INS Request\xe2\x80\x9d ).\nFollowing the rule stated long ago by former Attorney General Murphy, this Office ordinarily declines to provide\nlegal opinions in response to requests from Congress, its committees, or its Members, or to other persons or entities\noutside the executive branch. See Request o f the Senate fo r an Opinion as to the Powers o f the President "In\nEmergency o r State o f W ar\xe2\x80\x9d, 39 Op. Att\xe2\x80\x99y Gen. 343, 347 (1939); see also Office o f Legal Counsel\xe2\x80\x94 Limitation\non Opinion Function, 3 O p O.L.C. 215 (1979). In this case, however, the request for an opinion has come to\nus from your agency, not from Congress\n\n44\n\n\x0cRevocation o f Citizenship\n\nIt shall be the duty of the United States attorneys for the respec\xc2\xad\ntive districts, upon affidavit showing good cause therefor, to\ninstitute proceedings in any district court of the United States in\nthe judicial district in which the naturalized citizen may reside at\nthe time of bringing suit, for the purpose of revoking and setting\naside the order admitting such person to citizenship and canceling\nthe certificate of naturalization on the ground that such order and\ncertificate of naturalization were illegally procured or were pro\xc2\xad\ncured by concealment of a material fact or by willful misrepresenta\xc2\xad\ntion . . . ,[2]\nSection 340(a) provides two distinct legal bases for denaturalization or revoca\xc2\xad\ntion of citizenship. The first permits the INS to seek revocation if the naturalized\nperson has procured citizenship illegally. \xe2\x80\x9c [T]here must be strict compliance with\nall the congressionally imposed prerequisites to the acquisition of citizenship.\nFailure to comply with any of these conditions renders the certificate of citizenship\n\xe2\x80\x98illegally procured;\xe2\x80\x99 and naturalization that is unlawfully procured can be set\naside.\xe2\x80\x9d Fedorenko v. United States, 449 U.S. 490, 506 (1981).\nSecond, revocation is available if the person procured naturalization \xe2\x80\x9c by\nconcealment of a material fact or by willful misrepresentation.\xe2\x80\x9d INA \xc2\xa7 340(a),\n8 U.S.C. \xc2\xa7 1451(a).3 Denaturalization on this basis \xe2\x80\x9c plainly contains four inde\xc2\xad\npendent requirements: the naturalized citizen must have misrepresented or con\xc2\xad\ncealed some fact, the misrepresentation or concealment must have been willful,\nthe fact must have been material, and the naturalized citizen must have procured\ncitizenship as a result of the misrepresentation or concealment.\xe2\x80\x9d Kungys v. United\nStates, 485 U.S. 759, 767 (1988).\nWhichever of these two theories the INS pursues in seeking denaturalization,\nit must prove the allegations in its complaint \xe2\x80\x9c by \xe2\x80\x98 \xe2\x80\x9c clear, unequivocal, and con\xc2\xad\nvincing\xe2\x80\x9d evidence which does not leave \xe2\x80\x9c the issue in doubt.\xe2\x80\x9d \xe2\x80\x99 \xe2\x80\x9d Id. at 781 (cita\xc2\xad\ntion omitted); see also id. at 772; Fedorenko, 449 U.S. at 505; Polites v. United\nStates, 364 U.S. 426, 435 (1960); Chaunt v. United States, 364 U.S. 350, 355\n(1960); Schneiderman v. United States, 320 U.S. 118, 123, 125 (1943).4\nOnce the United States has met its burden in a judicial denaturalization pro\xc2\xad\nceeding, the court must enter an order revoking the naturalization order and can\xc2\xad\n2The provision is undoubtedly constitutional. \xe2\x80\x9c The power of Congress to provide for denaturalization of natural\xc2\xad\nized citizens has long been viewed as an incident of its authonty \xe2\x80\x98[tjo establish a uniform Rule of Naturalization,\xe2\x80\x99\nU.S. Const art I, \xc2\xa78, cl 4, and necessary to protect the integrity o f the naturalization process . . Conceptually,\ndenaturalization does not fall within the general rule that citizenship can only be lost by voluntary action, because\ndenaturalization is intended to redress errors in the naturalization proccss that would disentitle the individual to\nUnited States citizenship ab in itio " Voluntariness o f Renunciations o f Citizenship Under 8 U S.C. \xc2\xa7 1481(a)(6),\n8 Op O L C 220, 226 n 14 (1984) (citations omitted)\n1See Costello v Untied States, 365 U S 265, 272 (1961), Knauer v. United States, 328 U S 654, 671-74 (1946),\nUnited States v Kowalchuk, 773 F 2d 488, 494 (3d Cir 1985) (en banc), cert denied, 475 U S. 1012 (1986).\n4 See 4 Charles Gordon et al , Immigration Law and Procedure \xc2\xa7 100 02f4][d][iv] at 100-38 (1996) (INS\xe2\x80\x99 burden\nis \xe2\x80\x9c conceptually not quite as exacting\xe2\x80\x9d as proof beyond a reasonable doubt)\n\n45\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nceling the certificate of naturalization. Fedorenko, 449 U.S. at 518. The court\n\xe2\x80\x9c lackfs] equitable discretion to refrain from entering a judgment of\ndenaturalization.\xe2\x80\x9d Id. at 517.\nAlthough proceedings for denaturalization have traditionally been judicial in\ncharacter, administrative denaturalization is also permissible in some cir\xc2\xad\ncumstances. We understand that, if the INS institutes denaturalization proceedings\nwith regard to any of the naturalization cases approved between September 1995\nand September 1996 that are currently the subject of a congressional investigation,\nthose proceedings will ordinarily be administrative.\nThe relevant INA regulation, which was promulgated under the authority of\nINA \xc2\xa7 340(h), see Revocation o f Naturalization, 61 Fed. Reg. 55,550 (1996) (to\nbe codified at 8 C.F.R. pt. 340),5 provides a procedure for the reopening of natu\xc2\xad\nralization proceedings by the district director under whose jurisdiction a natural\xc2\xad\nized citizen resides. The regulation authorizes the INS to \xe2\x80\x9c reopen a naturalization\nproceeding and revoke naturalization in accordance with this section, if the Service\nobtains credible and probative evidence which: (1) Shows that the Service granted\nthe application by mistake; or (2) Was not known to the Service Officer during\nthe original naturalization proceeding; and . . . (i) Would have had a material\neffect on the outcome of the original naturalization [proceeding]; and (ii) Would\nhave proven that: (A) The applicant\xe2\x80\x99s application was based on fraud or misrepre\xc2\xad\nsentation or concealment o f a material fact; or (B) The applicant was not, in fact,\neligible for naturalization.\xe2\x80\x9d Id. at 55,553-54 (to be codified at 8 C.F.R.\n\xc2\xa7 340.1(a)). Notice of intent to reopen naturalization proceedings \xe2\x80\x9c must be served\nno later than 2 years after the effective date of the order admitting a person to\ncitizenship,\xe2\x80\x9d id. at 55,553 (\xc2\xa7 340.1(b)(1)), i.e., two years after the naturalized cit\xc2\xad\nizen has taken the oath of allegiance to the United States. The naturalized person\nhas the opportunity to respond and may request a hearing, id. at 55,553\n(\xc2\xa7 3 4 0 .1(b)(3)), and has a right to counsel, id. at 55,554 (\xc2\xa7 340.1(b)(5)). The bur\xc2\xad\nden o f proof in such administrative proceedings \xe2\x80\x94 as in judicial denaturalization\ncases \xe2\x80\x94 is on the INS to prove its complaint by clear, unequivocal and convincing\nevidence.6 A decision adverse to the naturalized citizen may be appealed adminis\xc2\xad\ntratively, id. at 55,554 (\xc2\xa7 340.1(e)), and, if the administrative appeal is also adverse\n5 Statutory authority for administrative denaturalization proceedings was enacted in 1990, when Congress vested\nthe A ttorney General with the "so le authority to naturalize persons as citizens o f the United States." Immigration\nAct o f 1990, Pub. L. No. 101-649, \xc2\xa7401(a), 104 Stat. 4978, 5038, codified at INA \xc2\xa7310(a), 8 U.S.C. \xc2\xa7 1421(a)\n(1994). A t the same time. Congress extended to th e Attorney General the authority to \xe2\x80\x9c correct, reopen, alter, modify\nor vacate an order naturalizing [a] person*\' that had previously been vested in naturalization courts. Id.\n\xc2\xa7407(d)(18)(D ), 104 Stat. at 5046, codified at IN A \xc2\xa7340(h), 8 U S C . \xc2\xa7 1451(h) (1994). See Magnuson v. Baker,\n911 F.2d 330, 335 n . l l (9th Cir. 1990) (construing the predecessor to \xc2\xa7 340(h) to grant the naturalization courts\n\xe2\x80\x9c the inherent authority to set aside [naturalization] judgments for any reason cognizable under Federal Rule of Civil\nProcedure 6 0 .\xe2\x80\x9d ); see generally Sim ons v. United States, 452 F.2d 1110, 1112\xe2\x80\x9414 (2d Cir. 1971) (Friendly, J.) (out\xc2\xad\nlining legislative intent o f prior law).\n6The IN S\' field guidance explains the Government\xe2\x80\x99s burden. See Implementation Guidance: INA \xc2\xa7 340(h); 8 C F.R.\n\xc2\xa7 340: Standards fo r Issuance o f Notice o f Intent to Reopen Naturalization Proceedings and to Revoke Naturalization.\n\n46\n\n\x0cRevocation o f Citizenship\n\nto that individual, he or she may seek judicial review under INA \xc2\xa7 310, 8 U.S.C.\n\xc2\xa7 1421. Id. at 55,554 (\xc2\xa7 340.1(f)).\n\nII.\nIn this Part, we examine revocation of citizenship on the first of the two bases \xe2\x80\x94\nthat naturalization was illegally procured. In Part III below, we turn to the second\nbasis for denaturalization \xe2\x80\x94 that naturalization was procured by concealment of\na material fact or willful misrepresentation.\nAs we have noted above, an alien may be naturalized only upon \xe2\x80\x9c strict compli\xc2\xad\nance with the . . . \xe2\x80\x98terms and conditions specified by Congress.\xe2\x80\x99 \xe2\x80\x9d INS v.\nPangilinan , 486 U.S. 875, 884 (1988) (quoting United States v. Ginsberg, 243\nU.S. 472, 474 (1917)). See also INA \xc2\xa7 310(d), 8 U.S.C. \xc2\xa7 1421(d) ( \xe2\x80\x9c A person\nmay only be naturalized as a citizen of the United States in the manner and under\nthe conditions prescribed in this title and not otherwise\xe2\x80\x9d ) (emphasis added);\nManey v. United States , 278 U.S. 17, 22 (1928) (Holmes, J.); Tutun v. United\nStates, 270 U.S. 568, 578 (1926) (Brandeis, J.); Johannessen v. United States,\n225 U.S. 227, 240-42 (1912); Schneiderman , 320 U.S. at 161-62 (Douglas, J.,\nconcurring); United States v. Beda, 118 F.2d 458, 459 (2d Cir. 1941) (A. Hand,\nJ.). The ordinary prerequisites for naturalization are set forth in INA \xc2\xa7316, 8\nU.S.C. \xc2\xa7 1427 (1994), and include requirements as to lawful residence in the\nUnited States,7 good moral character, attachment to the principles of the United\nStates Constitution, and favorable disposition to the United States. At the time\nof applying for naturalization, the applicant bears the burden of establishing that\nhe or she possesses the qualifications for citizenship. INA \xc2\xa7 316(e), 8 U.S.C.\n\xc2\xa7 1427(e); INA \xc2\xa7318, 8 U.S.C. \xc2\xa7 1429 (1994). The standard of proof is whether\nthe applicant has established the necessary facts by a preponderance of the evi\xc2\xad\ndence. See 8 C.F.R. \xc2\xa7 316.2(b) (1997).\nThe requirement that the applicant be of good moral character is particularly\nrelevant to the questions you have posed. A finding of good moral character is\nprecluded as a matter of law if, within the statutory period required for establishing\ngood moral character, the applicant falls within any of several categories set forth\nin INA \xc2\xa7 101(f)(1)\xe2\x80\x94(8), 8 U.S.C. \xc2\xa7 1101(f)(l)-(8) (1994). These legally disquali\xc2\xad\nfying categories include, among others, being an habitual drunkard; deriving one\xe2\x80\x99s\nincome principally from illegal gambling; having two or more gambling convic\xc2\xad\ntions; and having been confined, as a result of a conviction, to a penal institution\nwithin the statutory period for 180 days or more. Of chief relevance here, the\ndisqualifications include being \xe2\x80\x9c one who at any time has been convicted of an\naggravated felony,\xe2\x80\x9d INA \xc2\xa7 101(f)(8), 8 U.S.C. \xc2\xa7 1101(f)(8), or having other\n7 Accordingly, naturalization may be revoked for failure to enter the United Slates lawfully by means of a valid\nimmigrant visa See. e.g.. Fedorenko, 449 U S at 514-15; United States v Schmidt, 923 F2d 1253, 1257 (7th\nC ir), cert denied, 502 U S 921 (1991); Kowulchuk, 773 F.2d at 492-93\n\n47\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 21\n\ncriminal convictions or offenses detailed by the statute, INA \xc2\xa7 101(f)(3), 8 U.S.C.\n\xc2\xa7 1101(f)(3), or \xe2\x80\x9c one who has given false testimony for the purpose of obtaining\nany benefits under this Act,\xe2\x80\x9d INA \xc2\xa7 101(f)(6), 8 U.S.C. \xc2\xa7 1101(f)(6). In Part 11(A)\nbelow, we consider disqualifications based on a criminal record; in Part 11(B),\nwe turn to disqualifications based on false testimony.\nA.\nAs we have noted, it is a requirement of being naturalized that the applicant\nbe \xe2\x80\x9c a person o f good moral character.\xe2\x80\x9d INA \xc2\xa7 316(a)(3), 8 U.S.C. \xc2\xa7 1427(a)(3).\nAs a matter of law, no applicant can be found to be \xe2\x80\x9c of good moral character\xe2\x80\x9d\nif he or she \xe2\x80\x9c at any time has been convicted of an aggravated felony.\xe2\x80\x9d INA\n\xc2\xa7 101(f)(8), 8 U.S.C. \xc2\xa7 1101(f)(8).8 Similarly, as a matter of law, no applicant\nis \xe2\x80\x9c of good moral character\xe2\x80\x9d if he or she has been convicted of, or has admitting\nto committing, certain other offenses within a specified period of time. INA\n\xc2\xa7 101(f)(3), 8 U.S.C. \xc2\xa7 1101(f)(3).9 Accordingly, should the INS discover that a\nnaturalized person, as a matter of law, had not satisfied the \xe2\x80\x9c good moral char\xc2\xad\nacter\xe2\x80\x9d requirement because of disqualifying criminal convictions or offenses that\nfell within INA \xc2\xa7 101(f)(3) or (f)(8), it could seek revocation on the grounds that\nthat person\xe2\x80\x99s citizenship was \xe2\x80\x9c illegally procured,\xe2\x80\x9d INA \xc2\xa7 340(a), 8 U.S.C.\n\xc2\xa7 1451(a). No statute o f limitations applies to a judicial denaturalization pro\xc2\xad\nceeding under section 340(a).10 N or would the INS be estopped from seeking\n8The definition of \xe2\x80\x9c aggravated felony\xe2\x80\x9d for this purpose is set forth in INA \xc2\xa7 101(a)(43), 8 U.S C \xc2\xa7 110I(a)(43).\n\xe2\x80\x9c The legality of the [individual\xe2\x80\x99s] naturalization must be determined under the applicable provisions of the statutes\nas they were at the time of his admission to citizenship \xe2\x80\x9d United States v Riela, 337 F 2d 986, 989 (3d Cir. 1964).\nThe INS has concluded that aggravated felonies other than murder bar a finding of good moral character as a\nmatter of law only if the conviction occurred on or after November 29, 1990, relying on section 509(b) of the\nImmigration Act of 1990, Pub. L. No. 101-649, 104 Stat 4978,5051 (1990) (\xe2\x80\x9c IMMACT\xe2\x80\x9d ), as amended by Miscella\xc2\xad\nneous and Technical Immigration and Naturalization Amendments of 1991, Pub L. No. 102-232, \xc2\xa7 306(a)(7), 105\nStat 1733, 1751 (1991) ("1991 Technical Amendments\xe2\x80\x9d ). IMMACT \xc2\xa7509(a) struck out the reference in prior INA\n\xc2\xa7 101(0(8), 8 U.S C. \xc2\xa7 1101(0(8), to the \xe2\x80\x9c crime o f murder\xe2\x80\x9d as p e r se disqualifying, and inserted instead the more\ngeneral term "aggravated felony \xe2\x80\x9d IMMACT \xc2\xa7 509(b), however, made the new disqualification for aggravated felo\xc2\xad\nnies applicable only prospectively, i.e., to convictions occurring on or after IMMACT\xe2\x80\x99s effective date (November\n29, 1990). The 1991 Technical Amendments \xc2\xa7 306(a)(7) reinstated a conviction for murder as per se disqualifying,\nregardless of the time of the conviction. Nonetheless, it is the INS\xe2\x80\x99 view that an aggravated felony conviction for\na crime other than murder, entered at any time before November 29, 1990, would be relevant in the broader deter\xc2\xad\nmination of whether a person is of good moral character See Legal Opinion, INS General Counsel, Amended defini\xc2\xad\ntion o f \xe2\x80\x9ca g g ra va te d fe lo n y " and the section 101(f)(8) bar to good m oral character at 2 (Dec. 3, 1996)\n9 Most convictions (other than aggravated felonies) bar a finding of good moral character only if the conviction,\nor the applicant\xe2\x80\x99s incarceration or probation, occurred during the statutory period for which the applicant must prove\ngood moral character (which, as a general rule, covers the period of five years preceding the application for naturaliza\xc2\xad\ntion and the interval between the application for naturalization and the naturalization ceremony itselO- Compare\nINA \xc2\xa7101(0(8), 8 U.SC. \xc2\xa71101(0(8), with introductory text and other paragraphs in INA \xc2\xa7101(0* 8 U S C.\n\xc2\xa7 1101(0. See also 8 C.F R \xc2\xa7 316.10(b)(1), (2) & (c)(1) (1997).\n105W Schneiderman, 320 U S at 174 (Stone, C.J., dissenting); 4 Gordon et. al, supra note 4, \xc2\xa7 I00.02[1][e] at\n100-9. Thus, the Government sought to denaturalize the petitioner in Costello in 1952, and again in 1958, although\nhe had been naturalized in 1925. See Costello, 365 U.S. at 266-68.\n\n48\n\n\x0cRevocation o f Citizenship\n\ndenaturalization if naturalization was illegally procured because INS agents failed\nto exercise due diligence in examining the application for naturalization.11\nOn the other hand, in reviewing an application for naturalization, the INS exam\xc2\xad\niner has a certain degree of discretion in determining whether the applicant has\nsatisfied the statutory requisites. For example, an examiner may take account of\nadverse conduct that is outside the statutory period for which good moral character\nis required to be established. See INA \xc2\xa7 101(f) (last sentence), 8 U.S.C. \xc2\xa7 1101(f),\nand INA \xc2\xa7 316(e), 8 U.S.C. \xc2\xa7 1427(e). Although the prior misconduct may justify\nthe examiner in denying naturalization, it does not require such a determination.\nThus, an examiner could conclude, based on the totality of the facts, that an\napplicant with such a record had demonstrated \xe2\x80\x9c good moral character\xe2\x80\x9d and was\neligible for naturalization. Assuming that that person had satisfied all the other\nstatutory prerequisites and was naturalized, there would be no basis for the INS\nto seek revocation of citizenship in such circumstances.\nSuppose, for example, that an applicant has been convicted of a theft. Assume\nthat the conviction occurred many years before the applicant sought naturalization,\nthat any incarceration was ended before the statutory period (normally 5 years\nbefore naturalization), and that the offense was not sufficiently serious to qualify\nas an aggravated felony. The applicant disclosed the conviction to the examiner.\nThe examiner considered the conviction, but concluded that the applicant had\nshown sufficient evidence of reformation that the conviction did not prove that\nthe applicant was not currently a person of good moral character. See 8 C.F.R.\n\xc2\xa7 316.10(a)(2). Because the conviction would not in this case preclude a finding\nof good moral character, granting naturalization would be within the discretion\nof the examiner: the applicant had disclosed the relevant information, and the\nexaminer was satisfied that the applicant was eligible. Although a different exam\xc2\xad\niner, on the same facts, might have found that the applicant did not meet the\ngood moral character requirement, id., there would be no basis for revocation:\nthe facts would show neither that the applicant misrepresented or concealed mate\xc2\xad\nrial facts, nor that the applicant was statutorily ineligible for naturalization.\nB.\nAs pointed out above, only persons of good moral character are legally eligible\nfor naturalization. INA \xc2\xa7 316(a)(3), 8 U.S.C. \xc2\xa7 1427(a)(3). An examiner cannot\nfind an applicant to be of good moral character if, during the period for which\ngood moral character is required, the applicant \xe2\x80\x9c has given false testimony for\nthe purpose of obtaining any benefits under [the INA].\xe2\x80\x9d Id. \xc2\xa7 101(f)(6), 8 U.S.C.\n11 See Fedorenko, 449 U S. at 517 (court lacks \xe2\x80\x9c equitable discretion\xe2\x80\x9d to decline to enter denaturalization judgment\nonce INS has proven failure to have met statutory requirements for naturalization); see also Reno v Catholic Social\nServs . Inc , 509 U S. 43, 75-76 (1993) (O\xe2\x80\x99Connor, J., concurring in judgment) Cf Office o f Personnel Management\nv Richmond, 496 U S 414, 419-24 (1990) (questioning but not deciding whether estoppel ever lies against the\nGovernment)\n\n49\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\n\xc2\xa7 1101(f)(6). In Kungys, 485 U.S. at 779-81, the Supreme Court set forth the\nelements of this provision.\nFirst, in contrast with the \xe2\x80\x9c misrepresentation\xe2\x80\x9d and \xe2\x80\x9c concealment\xe2\x80\x9d provisions\nof INA \xc2\xa7 340(a), 8 U.S.C. \xc2\xa7 1451(a), there is no requirement that \xe2\x80\x9c false testi\xc2\xad\nmony\xe2\x80\x9d within the meaning of INA \xc2\xa7 101(f)(6) be material.\nThe absence of a materiality requirement in [8 U.S.C.] \xc2\xa7 1101(f)(6)\ncan be explained by the fact that its primary purpose is not (like\n[8 U.S.C.] \xc2\xa7 1451(a)) to prevent false pertinent data from being\nintroduced into the naturalization process (and to correct the result\nof the proceedings where that has occurred), but to identify lack\nof good moral character. The latter appears to some degree when\xc2\xad\never there is a subjective intent to deceive, no matter how immate\xc2\xad\nrial the deception.\nKungys, 485 U.S. at 780.\n\nSecond, \xe2\x80\x9c testimony\xe2\x80\x9d in the sense in question \xe2\x80\x9c is limited to oral statements\nmade under oath . . . . [I]t does not include \xe2\x80\x98other types of misrepresentations\nor concealments, such as falsified documents or statements not made under\noath.\xe2\x80\x99 \xe2\x80\x9d Id. at 780 (citation omitted).\nThird, 8 U.S.C. \xc2\xa7 1101(f)(6) \xe2\x80\x9c applies to only those misrepresentations made\nwith the subjective intent of obtaining immigration benefits.\xe2\x80\x9d Id.\nFinally, \xe2\x80\x9c unlike the misrepresentation clause of [8 U.S.C.] \xc2\xa7 1451(a), the false\ntestimony provisions of \xc2\xa7 1101(f)(6) do not apply to \xe2\x80\x98concealments.\xe2\x80\x99 \xe2\x80\x9d Id. at 781.\nTo illustrate how this provision operates, suppose that an applicant gave an\nINS examiner false testimony under oath on a matter that had no bearing on the\napplicant\xe2\x80\x99s eligibility for naturalization. Even though the truth, itself, would not\nrequire denying naturalization, the false testimony might do so, by rendering the\napplicant disqualified for lack of good moral character. However, denaturalization\ncould not be based on the bare misrepresentation itself. Should the INS seek\ndenaturalization on the basis of \xe2\x80\x9c false testimony,\xe2\x80\x9d it would be required to show,\nby clear, unequivocal and convincing evidence, that the defendant had given the\n\xe2\x80\x9c false testimony\xe2\x80\x9d with the subjective intent of obtaining the benefits of the\nINA \xe2\x80\x94 for example, because the applicant mistakenly believed that the informa\xc2\xad\ntion would preclude naturalization. Making such a showing would often pose\nsubstantial proof problems for the INS. See Kungys, 485 U.S. at 780 (\xe2\x80\x9c [I]t will\nbe relatively rare that the Government will be able to prove that a misrepresenta\xc2\xad\ntion that does not have the natural tendency to influence the decision regarding\n. . . naturalization benefits was nonetheless made with the subjective intent of\nobtaining those benefits.\xe2\x80\x9d ).12 Moreover, in a decision that the Supreme Court\n12 But see id. at 807 n 3 (White, J , dissenting) ( \xe2\x80\x9c [I]t is quite clear that when misrepresentations of fact are made\nin the process of applying for immigration and naturalization benefits, in a very real and immediate sense those\nmisrepresentations are made \xe2\x80\x98for the purpose of obtaining\xe2\x80\x99 such benefits \xe2\x80\x9d ).\n\n50\n\n\x0cRevocation o f Citizenship\n\nreversed on other grounds, one court of appeals has further restricted the INS\xe2\x80\x99\nability to prevail on a \xe2\x80\x9c false testimony\xe2\x80\x9d claim by holding that the naturalized\nindividual must have given the challenged oral statements under oath before a\ncourt or tribunal. See Phinpathya v. INS, 673 F.2d 1013 (9th Cir. 1981), rev \xe2\x80\x99d\non other grounds, 464 U.S. 183 (1984).13\nIII.\nThe second principal basis on which the INS may seek denaturalization under\nINA \xc2\xa7 340(a), 8 U.S.C. \xc2\xa7 1451(a), is that naturalization was procured by \xe2\x80\x9c conceal\xc2\xad\nment of a material fact\xe2\x80\x9d or by \xe2\x80\x9c willful misrepresentation.\xe2\x80\x9d As explained above,\ndenaturalization on the basis of this theory would require the INS to show, under\n\xe2\x80\x9c the unusually high burden of proof in denaturalization cases,\xe2\x80\x9d Kungys, 485 U.S.\nat 776, that there existed a misrepresentation or concealment that was willful and\nof a material fact, and that \xe2\x80\x9c the naturalized citizen [had] procured citizenship\nas a result of the misrepresentation or concealment.\xe2\x80\x9d Id. at 767.\nNot every misrepresentation or concealment is of a \xe2\x80\x9c material\xe2\x80\x9d fact. To be\n\xe2\x80\x9c material,\xe2\x80\x9d the misrepresentation or concealment must be shown to be \xe2\x80\x9c predict\xc2\xad\nably capable of affecting, i.e., [having] a natural tendency to affect, the official\ndecision . . . whether the applicant [met] the requirements for citizenship\xe2\x80\x9d or,\nmore specifically, \xe2\x80\x9c whether the misrepresentation or concealment had a natural\ntendency to produce the conclusion that the applicant was qualified.\xe2\x80\x9d Id. at 77172 (Scalia, J., joined by Rehnquist, C.J.); see also id. at 783 (Brennan, J., concur\xc2\xad\nring) (joining lead opinion and agreeing with its construction of provision, but\nwriting separately to state view that \xe2\x80\x9c a presumption of ineligibility does not arise\nunless the Government produces evidence sufficient to raise a fair inference that\na statutory disqualifying fact actually existed\xe2\x80\x9d ); id. at 801 (O\xe2\x80\x99Connor, J., concur\xc2\xad\nring in part of lead opinion in which this test of materiality was set forth); id.\nat 803 (White, J., agreeing with part of lead opinion in which this test is set\nforth).14 Relying on this test, the Supreme Court has held that a misrepresentation\nof an applicant\xe2\x80\x99s date and place of birth in a naturalization proceeding was not\n13Apparently, whether the naturalization examiner is a \xe2\x80\x9c tribunal\xe2\x80\x9d is a question that the Ninth Circuit has not\nyet addressed C f Toquero v. INS, 83 F 3d 429 (9th Cir. 1996) (not designated as a published precedent).\n14Commentators have suggested that the various separate opinions in Kungys, particularly on the test of the materi\xc2\xad\nality of a misrepresentation or concealment, has produced \xe2\x80\x9c confusion and uncertainty \xe2\x80\x9d 4 Gordon et a l , supra note\n4, \xc2\xa7 100\xc2\xa32[3][b] at 100-15 One court of appeals has stated that \xe2\x80\x9c [ajfter Kungys, .\nit is no simple task to\ndefine the meaning of \'material* under the denaturalization statute The eight Justices who decided Kungys (Justice\nKennedy did not participate) wrote five separate opinions and offered three distinct tests for determining when a\nstatement is material.\xe2\x80\x9d United States v. Puerta, 982 F 2d 1297, 1302 (9th Cir. 1992). In this court\xe2\x80\x99s view, the\ncontrolling test is that set forth m Justice Brennan\xe2\x80\x99s concurring opinion in Kungys, id at 1303-04 It understood\nthat test to permit denaturalization only \xe2\x80\x98\xe2\x80\x98where false statements are coupled with evidence giving nse to a \xe2\x80\x98fair\ninference\xe2\x80\x99 of ineligibility \xe2\x80\x9d Id. at 1304 (quoting Kungys, 485 U.S at 783 (Brennan, J , concurring))\nWe note that the Supreme Court has recently framed the question whether materiality of falsehood is an element\nof a violation of 18 U.S.C \xc2\xa7 1014 in terms of the explanation of \xe2\x80\x98\xe2\x80\x98materiality\xe2\x80\x9d given in the lead opinion in Kungys\nSee United States v Wells, 519 U S 482, 489-90 (1997). It might therefore be argued that the Court has implicitly\nadopted the definition in the lead opinion\n\n51\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\n\xe2\x80\x9c material\xe2\x80\x9d as that term is used in INA \xc2\xa7 340(a). Id. at 774. \xe2\x80\x9c There has been\nno suggestion that those facts were themselves relevant to [the applicant\xe2\x80\x99s] quali\xc2\xad\nfications for citizenship. Even though they were not, the misrepresentation of them\nwould have a natural tendency to influence the citizenship determination, . . .\nif the true date and place of birth would predictably have disclosed other facts\nrelevant to his qualifications. But not even that has been found here.\xe2\x80\x9d Id.\nThus, not every willful misrepresentation or concealment of an applicant\xe2\x80\x99s\ncriminal record is a sufficient basis for denaturalization. In Chaunt, the Supreme\nCourt held that a naturalized citizen who had willfully and falsely stated during\nthe naturalization process, in writing and (apparently) orally under oath, that he\nhad never been arrested could not be denaturalized under INA \xc2\xa7 340(a). The Court\nindicated that it would not find the misrepresentation \xe2\x80\x9c material\xe2\x80\x9d merely because\nof \xe2\x80\x9c the tenuous line of investigation that might have led from the arrests to the\n[applicant\xe2\x80\x99s] alleged communistic affiliations.\xe2\x80\x9d 364 U.S. at 355. See also United\nStates v. Sheshtawy, 714 F.2d 1038 (10th Cir. 1983) (no basis for denaturalization\nwhen naturalized citizen had willfully and falsely answered question on INS form\nregarding prior arrests). But see C ostello v. United States, 365 U.S. 265 (1961)\n(naturalized citizen could be denaturalized when he had willfully and falsely stated\nduring naturalization process that his occupation was \xe2\x80\x9c real estate\xe2\x80\x9d although it\nwas, in fact, that of bootlegger); United States v. Oddo, 314 F.2d 115 (2d Cir.)\n(Thurgood Marshall, J.) (concealment of arrests in naturalization process justified\nrevocation, especially in view of seriousness of charges for which arrests were\nmade), cert, denied, 375 U.S. 833 (1963); United States v. Montalbano, 236 F.2d\n757 (3d Cir. 1956) (misrepresentation of criminal record during naturalization\nprocess held to be basis for revocation of citizenship); Corrado v. United States,\n227 F.2d 780, 783 (6th Cir. 1955) (same as to concealment), cert, denied, 351\nU.S. 925 (1956). We note also that if the applicant has personally corrected prior\nmisrepresentations or concealments by making a full and complete disclosure later\nin the naturalization process, that corrective action may remove any basis for rev\xc2\xad\nocation. Cf. United States v. Anastasio, 226 F.2d 912, 917 (3d Cir. 1955), cert,\ndenied, 351 U.S. 931 (1956) (because applicant in second naturalization pro\xc2\xad\nceeding disclosed criminal record he had concealed in first proceeding, there was\nno basis for revocation).\nIV.\nIn light o f these principles, we now turn to the particular questions you have\nposed.\nQuestion 1. What authority does the Department have to revoke the citizenship\nof individuals who were naturalized but had criminal convictions for offenses that\ndisqualified them from citizenship as a matter o f law?\n52\n\n\x0cRevocation o f Citizenship\n\nAnswer. The INS has authority to institute either administrative or judicial pro\xc2\xad\nceedings to denaturalize citizens whose criminal convictions, e.g., for aggravated\nfelonies, disqualified them from citizenship as a matter of law. (Administrative\nproceedings are subject to judicial review.) See Part 11(A) above. Whether the\nproceedings are administrative or judicial, the INS must establish the allegations\nin its complaint by clear, unequivocal and convincing evidence. See Part 1 above.\nQuestion 2. What authority does the Department have to revoke the citizenship\nof individuals who were naturalized but had criminal records for offenses that\ndid not disqualify them from citizenship as a matter of law, but which, in the\ndiscretion of the INS examiner, could have supported a conclusion that the indi\xc2\xad\nvidual was not of good moral character?\nAnswer. The INS has no authority to seek denaturalization if the INS examiner\nhad discretion to find that an applicant was of good moral character, and in fact\ndid exercise that discretion so as to find that the applicant was of good moral\ncharacter, unless the applicant gave false testimony with the intention of obtaining\nan immigration benefit, or unless the examiner\xe2\x80\x99s decision resulted from the\napplicant\xe2\x80\x99s willful misrepresentation or concealment of a material fact. See Parts\nII and III above.\nQuestion 3. If individuals with convictions described in question 2 could be\ndenaturalized, what legal requirements would have to be observed in the process?\nAnswer. The elements that the INS would be required to show to establish either\nfalse testimony or willful misrepresentation (or concealment) of a material fact\nare set forth in Parts 11(B) and III above. On either theory, the INS would be\nrequired to establish its complaint by clear, unequivocal and convincing evidence.\nQuestion 4. Is there any legal basis for revoking citizenship based upon the\nabsence of information in the government\xe2\x80\x99s records at the time of the naturaliza\xc2\xad\ntion about whether the individual had been convicted of a per se disqualifying\noffense or an offense which could have supported a finding of bad moral char\xc2\xad\nacter?\nAnswer. The absence of information in INS records at the time of the naturaliza\xc2\xad\ntion is not determinative in a denaturalization proceeding. A certificate of citizen\xc2\xad\nship is illegally procured if the applicant has not strictly complied with all the\ncongressionally imposed prerequisites to the acquisition of citizenship. Hence, if\nlater-discovered evidence establishes that a naturalized citizen failed to satisfy a\nlegally mandatory requirement of naturalization, the INS may institute\ndenaturalization proceedings in that case. Similarly, if the absence of information\nis attributable to the willful concealment or misrepresentation of a material fact\nby the applicant, and the applicant procured citizenship as a result of that misrepre\xc2\xad\nsentation or concealment, the INS may institute denaturalization proceedings. See\nParts II and III above.\nQuestion 5. What is the standard for revoking citizenship based on\nmisstatements? Does this standard differ from the standard for denying an applica\xc2\xad\ntion based on a misstatement?\n53\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\nAnswer. The INS may seek denaturalization based on a showing that the natural\xc2\xad\nized person has given false testimony for the purpose of obtaining a benefit under\nthe INA. The INS need not prove the materiality of such false testimony, but\nmust show that the misrepresentation was made with the subjective intent of\nobtaining immigration benefits. The testimony in question must have been an oral\nstatement made under oath. The INS must prove its complaint by clear,\nunequivocal and convincing evidence. See Part 11(B) above.\nAlternatively, the INS may seek denaturalization based upon a showing that\nthe naturalized person procured naturalization by concealment of a material fact\nor by willful misrepresentation. Proof of the materiality of the misrepresentation\nor concealment is required. Again, the INS must prove its complaint by clear,\nunequivocal and convincing evidence. See Part HI above.\nThe standard for denying an application differs from the standard for\ndenaturalization in two pertinent respects. First, an application for naturalization\nshould be denied if the INS examiner is not satisfied that the applicant has shown,\nby a preponderance o f the evidence, that he or she satisfies the statutory require\xc2\xad\nments for naturalization. In contrast, the INS bears the burden in a denaturalization\nproceeding of proving its case by clear, unequivocal and convincing evidence.\nSecond, while the INS examiner has discretion, in some circumstances, to deter\xc2\xad\nmine whether or not an applicant for naturalization is of good moral character,\nthat discretion does not extend to the denaturalization process. See Part 11(A)\nabove.\nDAWN E. JOHNSEN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n54\n\n\x0c'


b'Presidential Authority to Call a Special\nSession of Congress\nThe President has the power, under Article II, Section 3 of the Constitution, to call a special session of\nthe Congress during the current adjournment, in which the Congress now stands adjourned until\nJanuary 2, 1948, unless in the meantime the President pro tempore of the Senate, the Speaker, and\nthe majority leaders of both Houses jointly notify the members of both houses to reassemble.\n\nOctober 17, 1947\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL*\nThe question has been raised as to whether the President has authority to call a\nspecial session of the Congress in view of Senate Concurrent Resolution 33,\npursuant to which the Congress now stands adjourned. That resolution provides\nthat the Congress stands adjourned until January 2, 1948, unless in the meantime\nthe President pro tempore of the Senate, the Speaker, and the majority leaders of\nboth Houses jointly notify the members of both houses to reassemble.\nArticle II, Section 3 of the Constitution provides that the President\nmay, on extraordinary occasions, convene both Houses, or either of\nthem, and in case of disagreement between them, with respect to the\ntime of adjournment, he may adjourn them to such time as he shall\nthink proper.\nThe following provisions of the Constitution are also pertinent:\nNeither House, during the session of Congress, shall, without the\nconsent of the other, adjourn for more than three days . . . (art. I, \xc2\xa7 5,\ncl. 4).\n\n*\nEditor\xe2\x80\x99s Note: In the Unpublished Opinions of the Assistant Solicitor General, this memorandum\nis accompanied by another memorandum from Attorney General Tom Clark to Clark Clifford, dated\nOctober 20, 1947, stating as follows: \xe2\x80\x9cI attach a memorandum, with which I concur, regarding the\npresent authority of the President to call a special session of the Congress.\xe2\x80\x9d It appears that Mr. Clifford\nwas serving as Special Counsel to President Truman at the time, a position that later became known as\nWhite House Counsel. See Jeremy Rabkin, At the President\xe2\x80\x99s Side: The Role of the White House\nCounsel in Constitutional Policy, 56 Law & Contemp. Probs. 63, 66 (1993).\nThe OLC daybook additionally contains a cover memorandum from Assistant Solicitor General\nWashington to the Attorney General, dated October 17, 1947, stating as follows:\n\nClark Clifford called to say that Taft had been quoted as saying that the President had\nno power to call a special session but that under the resolution of adjournment that\npower was vested in the majority leaders.\nUnder the Constitution I think there is no doubt that the President has the power to\ncall a special session, and the attached memorandum states that conclusion.\nThe \xe2\x80\x9cTaft\xe2\x80\x9d to whom the memorandum refers is likely Senator Robert A. Taft of Ohio.\n\n140\n\n\x0cPresidential Authority to Call a Special Session of Congress\n\n[T]he Congress shall assemble at least once in every year, and such\nmeeting shall begin at noon on the 3d day of January, unless they\nshall be law appoint a different day (amend. XX, \xc2\xa7 2).\nThe foregoing provisions appear to contemplate the existence of situations,\ncomparable to the present, in which one or both houses of the Congress may stand\nadjourned or at recess until a future date other than that appointed by the Constitution or by a duly enacted statute. There is nothing in the Constitution to indicate,\nnor is there any other basis for believing, that the President\xe2\x80\x99s power to convene the\nCongress on extraordinary occasions depends upon the precise nature of the recess\nor the adjournment, that is, whether the adjournment is sine die, until a day certain,\nor until the majority leaders of the Congress find it in the public interest to\nreassemble the two houses.\nThe important factor would appear to be not the nature of the recess or adjournment but, rather, that the Congress is not in session and that an extraordinary\noccasion has arisen which requires that it be in session and that it convene,\ntherefore, at a date earlier than it otherwise would. It is beyond question that the\ntwo houses of the Congress do not have the power, even by statute, to defeat the\nconstitutional power of the President, under Article II, Section 3, to convene the\nCongress on such an occasion.\nWhile the motives of the Congress in passing Senate Concurrent Resolution 33\nmay not be entirely clear, I may say that neither the resolution on its face nor its\nlegislative history indicates a congressional intention to deny this power of the\nPresident.\nI conclude, therefore, that the President has the power, under Article II, Section 3 of the Constitution, to call a special session of the Congress during the\ncurrent adjournment.\nGEORGE T. WASHINGTON\nAssistant Solicitor General\n\n141\n\n\x0c'


b'Representation of White House Employees\n[T h e fo llo w in g m em o ran d u m op in io n discusses th e p ro p rie ty , u n d e r app licab le law s and\nreg u latio n s, o f p ro v id in g legal rep re sen tatio n at g o v e rn m e n t expense to W h ite H ouse\nem p lo y ees in c o n n e c tio n w ith p en d in g in v estig atio n s by th e Ju stic e D e p a rtm e n t\xe2\x80\x99s\nO ffice o f P ro fessio n al R esponsibility an d the S en ate Ju d ic ia ry C o m m ittee. Its c o n c lu \xc2\xad\nsions are su m m arized in its seco n d p arag rap h .]\n\nAugust 27, 1980\nMEMORANDUM OPINION FOR\nT H E COUNSEL TO TH E PR ESID EN T\nThis responds to the request from the Deputy Counsel to the Presi\xc2\xad\ndent for our views concerning the propriety of providing legal repre\xc2\xad\nsentation for White House employees who are questioned by either the\nJustice Department\xe2\x80\x99s Office of Professional Responsibility (OPR), or\nthe Senate Judiciary Committee in connection with the investigations\npresently underway into the relationship and activities of the Presi\xc2\xad\ndent\xe2\x80\x99s brother, Billy Carter, with respect to the government of Libya.\nWe recognize that timely advice on this question is of the essence, since\nthe OPR and Senate investigations are currently in progress. Accord\xc2\xad\ningly, we have briefly described our conclusions in this memorandum,\nand where available, we have attached supporting materials that were\nprepared in connection with other inquiries.\nOur conclusions can be summarized as follows:\n(1) White House employees should be discouraged from ac\xc2\xad\ncepting offers of free or discounted professional service\nfrom private lawyers because of the appearance that the\nservice has been offered because of their employment at the\nWhite House, and because of the limitations imposed by 3\nC.F.R. 100.735-14 (1980).\n(2) OPR Investigation: No government attorney, and no private\nattorney retained at government expense may represent\nWhite House employees in connection with the OPR inves\xc2\xad\ntigation. Employees may choose to retain counsel at their\nown expense to represent their individual interests before\nOPR.\n749\n\n\x0c(3) Senate Investigation: No government attorney, and no pri\xc2\xad\nvate attorney retained at government expense may represent\nthe personal interests of White House employees in connec\xc2\xad\ntion with the Senate investigation. Employees may choose\nto retain private counsel to represent their personal interest\nbefore the Senate Committee.\n(4) A government attorney may and should represent govern\xc2\xad\nmental interests in connection with the questioning of White\nHouse employees by the Senate Committee. A government\nattorney may be \xe2\x80\x9cdetailed\xe2\x80\x9d from an agency which other\xc2\xad\nwise has no involvement in the matter under investigation,\nor a private attorney may be retained by the White House\nas a special government employee to perform this function.\n(5) Private counsel retained by employees may not represent\ngovernmental interests before OPR or the Senate Com\xc2\xad\nmittee.\nA prefatory summary of the pertinent background facts is useful in\norder to place the representation issues raised by your opinion request\nin a proper context. Two investigations are pending at this time: (1) an\ninvestigation undertaken by this Department\xe2\x80\x99s Office of Professional\nResponsibility pursuant to a special direction from the Acting Attorney\nGeneral focused on whether any employee of this Department, the\nWhite House, or any other person is chargeable with criminal, civil, or\nadministrative wrongdoing growing out of the Administration\xe2\x80\x99s activi\xc2\xad\nties concerning Billy Carter\xe2\x80\x99s contacts with Libya, 45 Fed. Reg.\n52,946-47 (1980); and (2) an investigation conducted by a subcommittee\nof the Senate Judiciary Committee which presumably will focus on the\nlegislative consequences, if any, of the matter, rather than on govern\xc2\xad\nmental sanctions. See generally 126 Cong. Rec. 19,544-46 (1980). You\nhave advised us that both investigations are now consuming the time of\nWhite House employees, and that several have inquired whether they\nare entitled to legal representation by the government in responding to\neither investigation. You have also informed us that, pursuant to an\nagreement with the Senate committee, your Office has agreed not to\nrepresent any employee involved in the Senate\xe2\x80\x99s investigation, presum\xc2\xad\nably to avoid even the appearance of collusion or other wrongdoing.\nThere remain, then, several possible sources of representation, including\nJustice Department lawyers, detailees from other departments to the\nWhite House, special government employees, private counsel retained\nunder the Justice Department\xe2\x80\x99s Representation Guidelines, or donated\nlegal services. We will address first the acceptance of legal services\ndonated by private counsel.1\n1\nW e recognize that it will be necessary for some W hite H ouse em ployees to spend considerable\ntime gathering and assembling materials in response to the O P R and Senate inquiries. W e view this as\nC ontin ue d\n\n750\n\n\x0cDonation o f Legal Services. The acceptance of free or discounted legal\nservices is within the parameters of the White House Standards of\nConduct dealing with gifts, entertainment, and favors. 3 C.F.R.\n100.735-14 (1980). Subsection (a) of this regulation prohibits the accept\xc2\xad\nance of anything of monetary value from a person (defined to include a\nfirm) who:\n\n(1) Has, or is seeking to obtain, contractual or other\nbusiness or financial relations with his agency;\n(2) Conducts operations or activities which are regu\xc2\xad\nlated by his agency; or\n(3) Has interests which may be substantially affected by\nthe performance or nonperformance of his official duty.\nThe text of subsection (b) of the regulation would appear to permit the\nacceptance of gifts prohibited by the above criteria if the gift is given\nby a friend or close relative when the circumstances make it clear that\nthe personal relationship involved is the motivating factor. However, in\nlight of the more general requirement to avoid appearances of impropri\xc2\xad\nety (see 3 C.F.R. 100.735-4) (1980), we would caution against the\nacceptance of donated legal services from any law firm which has or is\nlikely to do business with the Government, or from any firm which\nmay appear to have offered the services because of the employee\xe2\x80\x99s\nWhite House employment.\nRepresentation before OPR. This Office has long held the view that\nthe Government may not participate on both sides of a federal criminal\ninvestigation. The attached memoranda explain in some detail the basis\nfor our conclusion that executive agencies lack the authority to provide\ncounsel for employees in federal criminal matters.\nThe opinions of the Comptroller General support our conclusion,\nalthough they do not address the precise question of representation in a\nfederal criminal matter. In determining whether particular expenses\nwere \xe2\x80\x9cnecessary\xe2\x80\x9d as that term is used in various appropriation acts, the\nComptroller General has consistently distinguished between govern\xc2\xad\nmental interests and personal interests, concluding that expenditures\nwere only authorized to the extent that they serve governmental inter\xc2\xad\nests. See, e.g., 54 Comp. Gen. 1075 (1975) (television set); 54 Comp.\nGen. 976 (1975) (gifts to seminar attendees); 47 Comp. Gen. 657 (1968)\n(coffee equipment). The Comptroller General reiterated the importance\nof this distinction between personal and governmental interests in an\nopinion dealing with the retention of private counsel to defend federal\njudicial officers in instances where Justice Department representation is\nunavailable. 53 Comp. Gen. 301 (1973). Although the opinion does not\na proper governm ental function w hich may be perform ed by governm ent em ployees, be they law yers\no r non-law yers. H ow ever, your inquiry seems to be directed at the m ore traditional role o f law yers as\npersonal representatives and advocates for a particular client. It is this latter role that w e will address\nin this mem orandum .\n\n751\n\n\x0caddress the question of representation in a federal criminal matter, it\ndoes find limited authority for the payment of counsel. However, one\nclear limitation stated in the opinion is that appropriated funds are to be\nused:\nonly to the extent necessary to protect the judiciary\xe2\x80\x99s\ninterest in the outcome of the subject litigation, rather\nthan the judicial officer\xe2\x80\x99s personal interest in having his\ndecision upheld, and that such funds are not used, in\neffect, merely to defend a private litigant\xe2\x80\x99s position where,\nas is the case in most appeals of judicial rulings, the\njudiciary and the United States have no real interest in the\noutcome of the appeal.\n53 Comp. Gen. at 306.2 The opinion also notes that Justice Department\nrepresentation should be sought as an initial matter and would be\navailable in many cases. However, the opinion recognizes that private\ncounsel may be necessary when there are conflicts presented by Justice\nDepartment representation, as in the case of a mandamus action\nbrought by the Attorney General.\nIn a more recent decision, 58 Comp. Gen. 613 (1979), the Comptrol\xc2\xad\nler General held that the SEC could not reimburse employees for legal\nfees incurred as a result of its own misconduct investigation, despite the\nfact that the initial charges were made by a private party and the\ninvestigation was ultimately resolved in favor of the employees. The\nComptroller General explained his reasoning as follows:\nUnder these circumstances, the cost of providing coun\xc2\xad\nsel may not be considered a proper expenditure of appro\xc2\xad\npriated funds. Upon SEC\xe2\x80\x99s determination that the matter\nshould be further investigated with respect to three of the\nSEC employees, the situation was no longer one in which\nthe Government\xe2\x80\x99s interest was aligned with the interests\nof the three employees against charges pressed by a third\nparty, and thus it was no longer in the Government\xe2\x80\x99s\ninterest to provide them with legal counsel. The SEC\nhearing was a formal agency fact-finding inquiry to deter\xc2\xad\nmine whether its employees were guilty of misconduct. In\nfact, at that point, the situation was indistinguishable from\nthat in which an agency itself initiates an investigation\ninto the conduct of its own employees. That the employ\xc2\xad\nees were ultimately vindicated does not change the char\xc2\xad\nacter of the proceeding.\n2\nA n o th e r explicit prerequisite set by the C o m p tro ller G eneral in this opinion w as that the A dm inis\xc2\xad\ntrative O ffice o f the U.S. C ourts "advise fully the app ro p riate legislative and appropriations com m it\xc2\xad\ntees o f the C ongress o f yo u r plans and th e estim ated cost th ereof." 53 Com p. Gen. at 306.\n\n752\n\n\x0c58 Comp. Gen. at 618. Read together, the Comptroller General\xe2\x80\x99s deci\xc2\xad\nsions regarding representation of judicial and SEC employees support a\nconclusion that, absent express congressional authorization, counsel\nmay not be provided to defend executive branch employees in an\ninvestigation or proceeding being pursued within the executive branch.\nSince the direction to the Counsel on Professional Responsibility\nleaves no room for doubt that the OPR inquiry has potential criminal\nramifications, that conclusion controls with respect to the OPR inquiry.\nMoreover, even absent the criminal ramifications, the same consider\xc2\xad\nations would preclude providing representation for employees in con\xc2\xad\nnection with an investigation of wrongdoing that may result only in\nsome form of administrative or civil sanction by the Government (such\nas a fine, reprimand, or discharge). Therefore, it is our conclusion that\nno representation at federal expense is permissible in responding to the\nOPR investigation. Of course, employees may retain counsel to repre\xc2\xad\nsent their personal interests at their own expense.3\nRepresentation in the Congressional Inquiry. Representation before the\nSenate committee is a more complicated problem. It is important first\nto distinguish between the representation of the personal interests of\nemployees, and the representation of official governmental interests,\nbecause we believe that in this case the Government may provide\ncounsel to represent governmental but not personal interests. The dis\xc2\xad\ntinction between official and individual interests is made frequently in\nconnection with the representation of employees in litigation, and the\nJustice Department\xe2\x80\x99s Representation Guidelines* anticipate that this\ndistinction will be made in connection with the representation of em\xc2\xad\nployees before Congress. As we noted earlier, this distinction is also\nmade by the Comptroller General in determining the availability of\nappropriated funds to cover a particular expense.\nAlthough we recognize that the official and personal interests of\nemployees may overlap to a large extent, there are also interests which\nare purely personal or entirely governmental. For example, the interests\nin avoiding federal criminal prosecution, civil liability to the United\nStates or adverse administrative action by a federal agency are clearly\npersonal rather than governmental interests. On the other hand, the\ninterests in asserting a governmental privilege or defending official\npolicies and procedures are governmental interests. The interests in\npresenting information correctly and clearly are both personal and\ngovernmental.\n3\nW e have not precluded the possibility o f counsel to represent direct governm ental interests w hich\nmay arise in connection w ith the O P R investigation. If such governm ental interests arise, they may be\nrepresented. W e have described this possibility and the m echanics o f such representation in connection\nw ith the congressional inquiry.\n\xe2\x80\xa2 N o t e : T h e Justice D epartm ent R epresentation G uidelines referred to in the text w ere published in\nthe C ode o f Federal R egulations in substantially unchanged form in 1982. 28 C .F .R . \xc2\xa750.15\n(1982). Ed.\n\n753\n\n\x0cThe personal interests of employees in regard to the congressional\ninvestigation tend to parallel the purposes of the OPR investigation.\nGenerally, it will serve the personal interests of employees to avoid\nmaking statements to the Senate that would result in adverse criminal,\ncivil, or administrative action by OPR. As discussed above, there is no\nexisting statutory authority for the executive branch to protect these\npersonal interests through the provision of counsel. To the extent that\nthese interests are implicated by the Senate investigation, we think that\nit would be inappropriate for the Government to provide counsel to\nrepresent them.4\nHowever, there are also legitimate governmental interests which arise\nwhenever executive branch employees are called to testify before the\nCongress. Ordinarily, these interests are monitored by agency counsel\nwho accompany executive branch employees called to testify before\ncongressional committees. We do not believe that your acquiescence in\nthe Senate committee\xe2\x80\x99s demand not to serve as counsel should preclude\nall representation of governmental interests in connection with the\nSenate investigation. We have previously concluded that it would be\nproper to \xe2\x80\x9cdetail\xe2\x80\x9d government attorneys to the White House to provide\nlegal services in connection with the Watergate investigation so long as\nthe lawyer\xe2\x80\x99s employing agency did not have conflicting responsibilities\nin the case. On this basis, an attorney from any agency which is not\ninvolved in the Billy Carter matter could be \xe2\x80\x9cdetailed\xe2\x80\x9d to the White\nHouse to represent governmental interests in connection with the\nSenate investigation. We also see no reason why the White House may\nnot retain a lawyer from a private firm as a special government em\xc2\xad\nployee to perform this function, since the 1980 White House appropria\xc2\xad\ntion leaves ample discretion to hire counsel for this purpose. Executive\nOffice Appropriations Act, Pub. L. No. 96-74, 93 Stat. 563 (1980).5\nThe alternatives of detailed or retained counsel should respond to the\nlegitimate concerns of the Senate investigators, without undermining\nyour responsibility to protect legitimate governmental interests in this\nmatter.\niii our view, any counsel directed to represent governmental interests\nmust be controlled by the Government, and private counsel retained by\nemployees to represent personal interests should not be permitted to\nassert governmental interests or privileges. Although it can become\n4\nT h e attached D epartm ent o f Justice R epresentation G uidelines d o appear to contem plate cases in\nw hich it w ould be p roper for this D epartm ent to provide representation to em ployees called before\ncongressional com m ittees \xe2\x80\x9c in their individual capacities.\xe2\x80\x9d See 28 C .F .R . \xc2\xa7 50.15(a) (1982). H eretofore,\nthis section has becom e operable w hen a present o r form er federal em ployee has been a defendant in a\nprivate civil suit and has sim ultaneously been called as a w itness before a congressional com m ittee. In\nsuch a case, the retention o f counsel m ay be necessary to p rotect the em ployee from providing\ntestim ony that w ould unnecessarily com prom ise the defense o f the civil case.\n*\nT echnically, representation o f this lim ited nature m ight be provided by this D epartm ent, but in\nlight o f the potential for conflicts\xe2\x80\x94o r at least the appearance thereof\xe2\x80\x94w e doubt that such representa\xc2\xad\ntion should be considered.\n\n754\n\n\x0cdifficult to distinguish between personal and governmental interests,\nthis point is one of considerable importance. Any employee detailed by\nthe Government to serve as counsel in this matter, first, must clearly\nunderstand that he is the Government\xe2\x80\x99s lawyer and not private counsel\nfor the represented employee, and, second, that he reports to and is\nresponsible to the Government. We cannot foresee all of the particular\nways in which this distinction will apply, but care must be taken\nthroughout the course of any representation to assure that the interests\nof the Government control the decisions that are made.\nJohn M. H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n755\n\n\x0c'


b"Proposed Change in EEOC Regulations Concerning Right-toSue Notices for Public Sector Employees\nThe Equal Employment Opportunity Commission proposal to amend its procedural regulations to allow\nthe Commission to issue a right-to-sue notice where it has failed to make a reasonable cause\ndetermination within 180 days after the filing of a charge against a state or local governmental\nentity is not permissible under Title VII of the Civil Rights Act o f 1964 or the Americans with\nDisabilities Act of 1990.\n\nOctober 7, 1999\nM e m o r a n d u m O p in io n\n\nfo r t h e\n\nA c t in g A 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 iv is io n\nY o u have asked for our opinion whether a change the Equal Employment\nOpportunity Commission (the \xe2\x80\x9c EEOC\xe2\x80\x9d or the \xe2\x80\x9c Commission\xe2\x80\x9d ) proposes to its\nprocedural regulations is consistent with Title VII of the Civil Rights Act of 1964,\nPub. L. No. 88-352, tit. VII, 78 Stat. 241, 259, as amended (\xe2\x80\x9c Title VII\xe2\x80\x9d ), and\nthe Americans with Disabilities Act of 1990, Pub. L. No. 101-336, 104 Stat. 327,\n328, as amended (the \xe2\x80\x9c ADA\xe2\x80\x9d ).1 The Attorney General has the federal govern\xc2\xad\nment\xe2\x80\x99s exclusive litigating authority in Title VII cases against state and local\ngovernmental employers. See 42 U.S.C. \xc2\xa72000e-5(f) (1994). It has also been the\nAttorney General\xe2\x80\x99s role to issue right-to-sue notices in such cases, with one excep\xc2\xad\ntion: under a current regulation, 29 C.F.R. \xc2\xa7 1601.28(d) (1998), the EEOC may\nissue right-to-sue notices in cases in which it dismisses claims against state and\nlocal governmental entities based on specified grounds, such as a Commission\nfinding that there is no reasonable cause to proceed. See 29 C.F.R. \xc2\xa71601.18\n(1998) (setting out grounds for dismissal). In letters to the Civil Rights Division\ndated May 12 and November 18, 1997, the Commission has proposed amending\n\xc2\xa7 1601.18 of the regulations to create an additional basis for dismissal where the\ncomplainant has requested a right-to-sue notice and the EEOC determines that\nthere is no law enforcement reason to continue processing the charge. By virtue\nof the current regulation permitting the EEOC to issue right-to-sue notices in\ngovemmental-entity cases resulting in dismissal, the proposed provision would\nallow the EEOC to issue a right-to-sue notice on request when it has failed to\nmake a reasonable cause determination within 180 days following the filing of\na charge against a state or local governmental employer.2 You have raised the\n\xe2\x96\xa0The procedures applicable under Title VII also apply under the ADA. See ADA, 42 U.S C \xc2\xa7 12117(a) (1994).\nAccordingly, the analysis herein focuses on T itle VII and does not separately discuss the ADA.\n2 The draft rule does not limit the EEOC\xe2\x80\x99s dismissal authority to cases in which 180 days have elapsed, but\ncounsel for the Commission told this office that the draft rule was intended to be so limited, and that the text\ncould be am ended accordingly In light of an existing regulation, the proposed regulation would in any event allow\nthe EEOC to issue a nght-to-sue letter pnor to the expiration o f the 180-day period whenever an appropriate EEOC\nofficial \xe2\x80\x9c has determined that it is probable that the Commission will be unable to complete its administrative proc\xc2\xad\nessing o f the charge within 180 days from the filing of the charge.\xe2\x80\x9d 29 C F.R. \xc2\xa7 1601 28(a)(2) (1998).\n\n224\n\n\x0cProposed Change in EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees\n\nconcern that such a procedure violates the plain language of section 706(f)(1)\nof Title VII, 42 U.S.C. \xc2\xa7 2000e-5(f)(l), which provides that notification of the\nright to sue \xe2\x80\x9c shall\xe2\x80\x9d be provided by \xe2\x80\x9c the Commission, or the Attorney General\nin a case involving a government, governmental agency or political subdivision.\xe2\x80\x9d\nFor the reasons set forth below, we conclude that, although the issue is a close\none, the EEOC\xe2\x80\x99s proposal to take over this function from the Attorney General\nis not permissible under Title VII or the ADA.\n\nA. Statutory Background\nWhen Congress enacted Title VII in 1964, the statute applied only to private,\nnon-governmental employers. Moreover, the EEOC had no authority to sue in\nits own name or to intervene in private suits; the sole governmental litigation\nauthority under Title VII rested with the Justice Department. 2 Barbara Lindemann\n& Paul Grossman, Employment Discrimination Law 1525 (3d ed. 1996)\n(\xe2\x80\x9c Lindemann\xe2\x80\x9d ). In 1972, Congress extended Title VII to prohibit employment\ndiscrimination by \xe2\x80\x9c governments, governmental agencies, [or] political subdivi\xc2\xad\nsions.\xe2\x80\x9d Equal Employment Opportunity Act of 1972, Pub. L. No. 92-261, 86\nStat. 103, 104 (the \xe2\x80\x9c 1972 amendments\xe2\x80\x9d ). At the same time, Congress assigned\nto the EEOC most of the Department\xe2\x80\x99s former responsibilities under the statute\nfor litigation against private sector employers. See 42 U.S.C. \xc2\xa72000e-6(c) (1994).\nWith respect to governmental entities, however, Congress limited litigation\nauthority to the Justice Department. See 42 U.S.C. \xc2\xa7 2000e-5(f); Lindemann, supra\nat 1525-26.\nIn furtherance of Congress\xe2\x80\x99s new allocation of responsibilities between the\nEEOC and the Justice Department, the 1972 amendments set up a detailed proce\xc2\xad\ndural scheme for the processing of Title VII complaints. Under this scheme, all\ncharges concerning either private or governmental employers must be filed with\nthe EEOC. The EEOC is required to investigate all such charges and to make\na determination in each case (within 120 days if \xe2\x80\x9c practicable\xe2\x80\x9d ) as to whether\nthere is reasonable cause to believe the charge is true. Where the EEOC finds\nno reasonable cause, Title VII directs it to \xe2\x80\x9c dismiss the charge and promptly\nnotify\xe2\x80\x9d the complainant and respondent of its action. 42 U.S.C. \xc2\xa72000e-5(b).\nWhere the EEOC determines that there is reasonable cause to believe that unlawful\ndiscrimination occurred, the statute requires the Commission to seek voluntary\ncompliance through conciliation. Id. The statute sets no time limit on conciliation\nefforts.\nUp to the conciliation stage, Title VII draws no distinction between complaints\nagainst private and governmental employers. Failure to reach a conciliation agree\xc2\xad\nment, however, leads to a diverging allocation of further enforcement responsibil\xc2\xad\nities. While the Commission may, upon the failure of conciliation, bring a civil\naction against \xe2\x80\x9c any respondent not a government, governmental agency, or polit\xc2\xad\n225\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nical subdivision,\xe2\x80\x9d it may \xe2\x80\x9c take no further action\xe2\x80\x9d with respect to a complaint\ninvolving a governmental entity, and must \xe2\x80\x98\xe2\x80\x98refer the case to the Attorney General\nwho may bring a civil action.\xe2\x80\x9d 3 42 U.S.C. \xc2\xa7 2000e-5(f)(l). In a case involving\na governmental entity, if the Justice Department has not filed a civil action within\n180 days of the filing o f the complaint with the EEOC,4 the complainant is entitled\nto a \xe2\x80\x9c right-to-sue\xe2\x80\x9d letter, upon receipt of which the complainant has 90 days\nto file his or her own suit in federal court. See 42 U.S.C. \xc2\xa7 2000e-5(f)(l); 29\nC.F.R. \xc2\xa7 1601.28. Specifically, the pertinent sentence o f section 706(f) of the\nstatute provides:\nIf a charge filed with the Commission pursuant to subsection (b)\nof this section is dismissed by the Commission, or if within one\nhundred and eighty days from the filing of such charge or the\nexpiration of any period o f reference under subsection (c) or (d)\nof this section, whichever is later, the Commission has not filed\na civil action under this section or the Attorney General has not\nfiled a civil action in a case involving a government, governmental\nagency, or political subdivision, or the Commission has not entered\ninto a conciliation agreement to which the person aggrieved is a\nparty, the Commission, or the Attorney General in a case involving\na government, governmental agency, o r political subdivision, shall\nso notify the person aggrieved and within ninety days after the\ngiving of such notice a civil action may be brought against the\nrespondent named in the charge (A) by the person claiming to be\naggrieved or (B) if such charge was filed by a member of the\nCommission, by any person whom the charge alleges was aggrieved\nby the alleged unlawful employment practice.\n42 U.S.C. \xc2\xa7 2000e-5(f)(l) (emphasis added). The question you have presented\nrequires us to determine whether the proposed regulation is consistent with this\nstatutory language.\nW hen it amended Title VII in 1972, Congress was well aware of the EEOC\xe2\x80\x99s\nlarge backlog o f cases and resulting delays in the processing of charges. See Occi\xc2\xad\ndental Life Ins. Co. v. EEOC, 432 U.S. 355, 369 & n.25 (1977). Tide VII nonethe\xc2\xad\nless does not specifically set forth the procedure to be followed when the EEOC\nhas failed to make a reasonable cause determination within 180 days regarding\na complaint against a governmental employer, and thus has yet either to dismiss\n3 Pursuant to the Reorganization Plan No 1 of 1978, the Attorney General has delegated this function to the\nCivil Rights Division o f the Justice Department 43 Fed. Reg. 19,807 (1978); 42 U.S.C. \xc2\xa72(X)0e\xe2\x80\x944 note (1994).\n4 Pursuant to subsections (c), (d) and (f)(1) o f 42 U.S.C. \xc2\xa72000e-5, the commencement of the 180-day period\nmay be delayed in some instances pending potential state or local enforcement proceedings in jurisdictions that\nhave comparable employment discrimination laws. These provisions do not affect our analysis here and we therefore\ndo not address them.\n\n226\n\n\x0cProposed Change in EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees\n\nthe charge for want of reasonable cause or refer it to the Justice Department.\nUnder current practice, if a charge against a governmental entity has been pending\nwith the EEOC for more than 180 days and the complainant requests a rightto-sue notice, the Commission refers the request to the Justice Department, which\nin turn issues the notice. The EEOC now seeks to amend its regulations to elimi\xc2\xad\nnate the referral requirement by giving itself the authority to dismiss charges in\nthese circumstances. We conclude that section 706(f) gives the Attorney General\nexclusive authority to issue right-to-sue notices in cases against governmental enti\xc2\xad\nties, and thus precludes the EEOC\xe2\x80\x99s proposed regulatory amendment.\n\nB. Discussion\nTitle VII does not expressly address the question of which agency should\nrespond to a complainant\xe2\x80\x99s request for a right-to-sue letter where the EEOC has\nnot made a reasonable cause determination. We believe that the better reading\nof section 706(f)(1) gives the Attorney General the exclusive authority to issue\nright-to-sue letters under such circumstances in cases involving state and local\ngovernmental employers. This interpretation comports with the language and\npunctuation of the relevant clause. Title VII\xe2\x80\x99s structure and purpose also support\nthis reading. Given Title VII\xe2\x80\x99s consistent assignment of sole litigation authority\nto the Attorney General in govemmental-entity cases, and the fact that only the\nAttorney General can make the decision whether to file a civil action against a\nstate or local governmental employer, it is logical to read the statute as conferring\non the Attorney General the exclusive authority to notify complainants of their\nright to sue when the federal government has not filed a civil action against a\ngovernmental employer within the prescribed time.\nThe question is admittedly a close one, but we conclude that the statutory\nauthorization of issuance of right-to-sue letters by \xe2\x80\x9c the Commission, or the\nAttorney General in a case involving a government, governmental agency, or polit\xc2\xad\nical subdivision\xe2\x80\x9d is most naturally read to give only the Attorney General the\nauthority to issue letters in govemmental-entity cases. While the phrase could\nconceivably be read to permit either the Commission or the Attorney General\nto issue a letter in such cases, that reading would require giving \xe2\x80\x9c or\xe2\x80\x9d a conjunc\xc2\xad\ntive meaning, as if the statute designated \xe2\x80\x9c the Commission, or [either the\nCommission or] the Attorney General in a case involving a government, govern\xc2\xad\nmental agency, or political subdivision.\xe2\x80\x9d Viewed in the context of the statute as\na whole, the more plausible reading is that the \xe2\x80\x9c or\xe2\x80\x9d is disjunctive, so that the\nstatute limits the authority to \xe2\x80\x9c the Commission, or [in a case involving a govern\xc2\xad\nment, governmental agency, or political subdivision,] the Attorney General.\xe2\x80\x9d\nThat reading is supported by other portions of section 706(f)(1) that refer in\nthe alternative to the Commission or the Attorney General, each of which clearly\ngives the Attorney General exclusive authority in govemmental-entity cases. For\n227\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nexample, the sixth sentence of section 706(f) provides: \xe2\x80\x98 \xe2\x80\x98Upon timely application,\nthe court may, in its discretion, permit the Commission, or the Attorney General\nin a case involving a government, governmental agency, or political subdivision,\n\nto intervene in such civil action upon certification that the case is of general public\nimportance\xe2\x80\x9d (emphasis added). Since Title VII gives the Attorney General sole\nlitigating authority in govemmental-entity cases, that provision cannot be read to\npermit intervention by the EEOC in such cases. Therefore, in the absence of any\nreason to believe that Congress intended the \xe2\x80\x98\xe2\x80\x98or\xe2\x80\x99\xe2\x80\x99 in the passage relating to rightto-sue notification to be interpreted differently, the same disjunctive interpretation\nshould be adopted here. See Sorenson v. Secretary o f Treasury, 475 U.S. 851,\n860 (1986) (noting that \xe2\x80\x9c normal rule of statutory construction assumes that \xe2\x80\x98iden\xc2\xad\ntical words used in different parts of the same act are intended to have the same\nmeaning\xe2\x80\x99 \xe2\x80\x9d ) (citations omitted).\nThe majority of courts that have considered this issue have interpreted the\nstatute as directing the Attorney General, rather than the EEOC, to notify\ncomplainants of their right to sue in all cases involving governmental entities.\nAt least four courts of appeals have reached this conclusion. See Moore v. City\no f Charlotte, 754 F.2d 1100, 1104 n.l (4th Cir.) (stating that the Attorney General\nis \xe2\x80\x9c the authority designated by Title VII [to issue the right-to-sue notice] for cases\nin which the defendant is a political subdivision of a state\xe2\x80\x9d ), cert, denied, A ll\nU.S. 1021 (1985)); Solomon v. Hardison, 746 F.2d 699, 701-02 (11th Cir. 1984)\n(noting \xe2\x80\x9c requirement that the Attorney General issue the right to sue letter\xe2\x80\x9d );\nFouche v. Jekyll Island-State Park Auth., 713 F.2d 1518, 1525\xe2\x80\x9426 (11th Cir. 1983)\n(same); Hendrix v. Memorial Hosp. o f Galveston County, 776 F.2d 1255, 125657 (5th Cir. 1985) (construing section 706(f)(1) as requiring complainant \xe2\x80\x9c to await\nthe action of the Justice Department before commencing her lawsuit\xe2\x80\x9d ); see also\nDougherty v. Barry, 869 F.2d 605, 611 (D.C. Cir. 1989) (observing that \xe2\x80\x9c [c]ourts\nhave tended to interpret Title VII as laying th[e] responsibility [for issuing rightto-sue notices in cases involving governmental entities] at the Attorney General\xe2\x80\x99s\ndoor\xe2\x80\x9d ); Thames v. Oklahoma H istorical S o c \xe2\x80\x99y, 646 F. Supp. 13, 16 (W.D. Okla.\n1985) (holding that issuance of right-to-sue notice by Attorney General in cases\ninvolving governmental entities \xe2\x80\x9c is expressly required by the statute and furthers\nthe goals of the Civil Rights Act as remedial legislation by bringing the reluctance\nof governmental agencies to comply with Title VII to the attention of the Attorney\nGeneral\xe2\x80\x9d ), a ff\xe2\x80\x99d, 809 F.2d 699 (10th Cir. 1987) (per curiam) (affirming district\ncourt judgm ent \xe2\x80\x9c for the reasons contained in its written Order\xe2\x80\x9d ).5 Cf. Shea v.\nCity o f St. Paul, 601 F.2d 345, 349-51 & n.6 (8th Cir. 1979) (holding that EEOC\xe2\x80\x99s\nnotice of dismissal for lack of probable cause constituted notice of right to sue\n5 Some o f those courts have waived the requirement o f a right-to-sue notice issued by the Attorney General,\nand have permitted particular cases to proceed on equitable or other grounds despite the issuance of notice by the\nEEOC. See M oore, 754 F.2d at 1104 n.l (declining to penalize complainant for \xe2\x80\x9c any EEOC assumption of Justice\nDepartment duties\xe2\x80\x9d ); Solomon, 746 F2d at 70 1 -0 2 (waiving requirement as nonjunsdictional), Fouche, 713 F.2d\nat 1525-26 (same).\n\n228\n\n\x0cProposed Change m EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees\n\nwhere no party claimed that defendant\xe2\x80\x99s status as a governmental entity was\nrelevant).\nThe overwhelming majority of district courts have also interpreted the statute\nas authorizing only the Attorney General, and not the EEOC, to issue right-tosue notices in govemmental-entity cases. See, e.g., Kane v. Iowa D e p \xe2\x80\x99t o f Human\nServs., 955 F. Supp. 1117, 1133 (N.D. Iowa 1997) (Justice Department must issue\nnotice in cases where EEOC has been unable to obtain conciliation agreement,\n\xe2\x80\x9c which this court reads to include situations . . . in which the EEOC simply\nhas not reached the case\xe2\x80\x9d ); Ying Shen v. Oklahoma State D e p \xe2\x80\x99t o f Health, 647\nF. Supp. 189, 189 (W.D. Okla. 1985) (dismissing complaint where plaintiff filed\nsuit after receiving right-to-sue notice from EEOC because \xe2\x80\x9c the Right to Sue\nnotice where a governmental agency is to be sued for discrimination must come\nfrom the office of the Attorney General\xe2\x80\x9d ); D illard v. Rumph, 584 F. Supp. 1266,\n1268 n.l (N.D. Ga. 1984) (\xe2\x80\x9c the statutory requirement of notice by the Attorney\nGeneral must be waived in this case\xe2\x80\x9d ); Woods v. M issouri D e p \xe2\x80\x99t o f Mental Health,\n581 F. Supp. 437, 442-44 (W.D. Mo. 1984) (concluding that \xe2\x80\x9c the Attorney Gen\xc2\xad\neral is required by statute to issue a notice o f right to sue letter when the charge\nis dismissed in a case\xe2\x80\x9d against a governmental entity, but waiving requirement\non equitable grounds, as \xe2\x80\x9c [p]laintiff should not be punished for the inability of\nthe EEOC and Attorney General to follow the terms of the statute\xe2\x80\x9d ); English\nv. Ware County D ep \xe2\x80\x99t o f Family & Children Servs., 546 F. Supp. 689, 690-91\n(S.D. Ga. 1982) (holding that \xe2\x80\x9c notification by the United States Attorney General\nis a statutory prerequisite to institution of a Title VII action against a state govern\xc2\xad\nmental body\xe2\x80\x9d ). Only one district court has held to the contrary, and that court\ndid not address the issue presented by the proposed regulation. See Flint v. Cali\xc2\xad\nfornia, 594 F. Supp. 443, 445, 448-49 (E.D. Cal. 1984) (finding statutory language\n\xe2\x80\x9c inherently ambiguous\xe2\x80\x9d but concluding that \xe2\x80\x9c better reading\xe2\x80\x9d is that notice may\nbe issued by the EEOC). Thus, our analysis of the statute\xe2\x80\x99s text is consistent\nwith that of virtually all of the courts that have considered this matter.\nOur interpretation is also consistent with the policy considerations that appear\nto underlie section 706(f)(1). Although there is no indication that Congress gave\nconsideration specifically to which agency should issue a right-to-sue notice\nagainst a governmental respondent when the EEOC has made no probable cause\ndetermination, the overall congressional intent with respect to cases involving\ngovernmental entities is clear. While carrying over to governmental cases the\nEEOC\xe2\x80\x99s administrative function in the initial processing of charges and its impor\xc2\xad\ntant role in seeking to obtain voluntary compliance through conciliation, Congress\nunequivocally conferred sole litigating authority in such cases on the Attorney\nGeneral. The legislative history suggests that Congress was motivated by a\n\xe2\x80\x9c strong feeling that cases of discrimination by State and local government agen\xc2\xad\ncies should be handled by the full force of the United States of America acting\ndirectly through the Attorney General.\xe2\x80\x9d 118 Cong. Rec. 1070 (1972) (statement\n229\n\n\x0cOpinions o f the Office o f Legal Counsel m Volume 23\n\nof Sen. Williams). See Osiecki v. Housing & Redevelopment Auth., 481 F. Supp.\n1229, 1232 (D. Minn.1979) (\xe2\x80\x9c The purpose of referring discrimination complaints\ninvolving governmental employees to the Attorney General was two fold: (1) to\nlimit the number of federal agencies authorized to sue state governments, and\n(2) to bring the prestige of the Attorney General to bear on the reluctance of\nlocal governmental entities to comply with Title VII. . . . The statutory scheme\nembodied in section 706(f) clearly limits the power of the EEOC with respect\nto governmental employers, and vests the power to bring and intervene in civil\nactions involving governmental respondents solely to the Attorney General.\xe2\x80\x9d )\n(citation omitted); Woods, 581 F. Supp. at 442 (same).\nGiven that only the Attorney General can make the decision to bring a civil\naction against a governmental employer under Title VII, it makes sense that the\nstatute also gives the Attorney General the responsibility, at least where the com\xc2\xad\nplaint has not been dismissed, to inform a complainant that no civil action has\nbeen filed and that the complainant may proceed with his or her own suit. See\nOsiecki, 481 F. Supp. at 1232-33 (\xe2\x80\x9c As the administrative process has not been\ncompleted in cases involving governmental employers until the Attorney General\nhas determined that it will not bring a civil action, it would be inconsistent with\nthe intent of section 706(f) to allow the 90 day period [within which the complain\xc2\xad\nant may sue] to commence prior to the Attorney General\xe2\x80\x99s involvement in the\nadministrative process.\xe2\x80\x9d ); English, 546 F. Supp. at 691 ( \xe2\x80\x9c This vesting of authority\nimplies that the Attorney General should have more than just the ministerial\nresponsibility for bringing suits against state employers, but also the discretion\nto decide whether and when to bring them.\xe2\x80\x9d ). Courts have further suggested that\none purpose of the referral requirement is to \xe2\x80\x98 \xe2\x80\x98insure[ ] that the Attorney General\nwould be able to review the file and make a determination whether [the United\nStates] should exercise its discretionary power to file suit on behalf of the charging\nparty.\xe2\x80\x9d W oods, 581 F. Supp. at 442; see also English, 546 F. Supp. at 692\n(requirement \xe2\x80\x9c insures at least a cursory review of the file, which is elemental\nin determining whether to intervene\xe2\x80\x9d ); Thames, 646 F. Supp. at 16 (requirement\n\xe2\x80\x9c furthers the goals of the Civil Rights Act as remedial legislation by bringing\nthe reluctance of governmental agencies to comply with Title VII to the attention\nof the Attorney General\xe2\x80\x9d ).\nIt could be argued that, under Title VII\xe2\x80\x99s overall procedural scheme, it would\nbe appropriate for the EEOC to refer complaints to the Attorney General only\nonce the Commission has found reasonable cause, failed at conciliation, and the\ncase is ready for litigation. The District of Columbia Circuit in Dougherty sug\xc2\xad\ngested in dictum that the EEOC should refer a case to the Attorney General\n\xe2\x80\x9c only\xe2\x80\x9d after finding probable cause and unsuccessfully seeking compliance\nthrough conciliation. 869 F.2d at 611. That dictum might be read to imply that,\nin those cases in which there has not yet been a probable cause finding and\nunsuccessful conciliation, the EEOC should retain the case and issue the right230\n\n\x0cProposed Change in EEOC Regulations Concerning Right-to-Sue Notices fo r Public Sector Employees\n\nto-sue notice. Dougherty cannot, however, support that implication. The Dough\xc2\xad\nerty court appears to have assumed that the Commission will have made a cause\ndetermination one way or the other within 180 days following the complainant\xe2\x80\x99s\nfiling; the opinion simply does not speak to the category o f cases at issue here,\nin which the Commission has failed to act by the time the complainant requests\nher right-to-sue letter. More importantly, the Dougherty dictum fails to account\nfor section 706(f)\xe2\x80\x99s unequivocal language giving the Attorney General the duty\nof notifying complainants of their right to sue in such cases. We decline to adopt\nan interpretation that would be in tension with the language of the statute.6\n\nCONCLUSION\nFor the reasons stated above, we conclude that the proposed regulation is not\npermissible under Title VII or the ADA.\nCORNELIA T.L. PILLARD\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n6The EEOC\xe2\x80\x99s authority to issue a right-to-sue notice in any case in which it has dismissed a charge against\na state or local governmental entity for lack of probable cause is not inconsistent with our conclusion here The\nEEOC amended its regulations in 1980 to provide that it would issue right-to-sue letters in those circumstances.\nSee 29 C.F.R \xc2\xa7 1601 28(d) (1998). That limited authonty does not depend on a conjunctive reading of the \xe2\x80\x9c or\xe2\x80\x9d\nin section 706(f)\xe2\x80\x99s reference to \xe2\x80\x9c the Commission, or the Attorney General.\xe2\x80\x9d that would generally authorize either\nto issue the notice. Rather, the Commission made the 1980 amendment in response to the Eighth C ircuit's decision\nin Shea v. City o f St. Paul, 601 F 2 d 345 (8th Cir. 1979), dismissing an action as untimely even though the plaintiff\nfiled suit within 90 days o f the Justice Department\xe2\x80\x99s nght-to-sue letter issued pursuant to section 706(0- The court\nheld that Shea\xe2\x80\x99s action was time-barred because she filed it more than 90 days after receipt of the EEOC\xe2\x80\x99s dismissal\nnotification pursuant to a different statutory provision from the one at issue here\xe2\x80\x94 section 706(b), which directs\nthe Commission, upon finding no probable cause, to \xe2\x80\x9c dismiss the charge and promptly notify the person claiming\nto be aggrieved and the respondent of its action.\xe2\x80\x9d 42 U.S.C. \xc2\xa72000e~5(b) (emphasis added). Shea's interpretation\nof the EEOC\xe2\x80\x99s section 706(b) dismissal notificauon as a right-to-sue letter triggering the 90-day limitations penod\nmeant that, if the Attorney General had continued the practice of issuing separate right-to-sue letters under section\n706(0, such letters would only create a trap for the unwary by erroneously suggesting that a complainant had 90\ndays from the Attorney General\xe2\x80\x99s notice within which to file her complaint This Office found the 1980 regulatory\namendment to be \xe2\x80\x9c not . . . inconsistent with the enforcement scheme that Congress contemplated in enacting\n\xc2\xa7 7 0 6 (0 (1 )\xe2\x80\x9d Memorandum for David L. Rose, Chief, Federal Enforcement Section, Civil Rights Division, from\nLeon Ulman, Deputy Assistant Attorney General, Office o f Legal Counsel, Re: Proposed Delegation o f Authority\no f Ministerial Function to EE O C \xe2\x80\x94 Right to Sue Letters Under Title VII at 2 (Feb. 6, 1980) But see Fouche, 713\nF.2d at 1524, Ying Shen, 647 F Supp. at 189 (suggesting that the 1980 regulation conflicts with the express language\nof Title VII)\n\n231\n\n\x0c"