b'Eligibility of Involuntary Wartime Relocatees to Japan for\nRedress Under the Civil Liberties Act of 1988\n\nT h e p ro p o s e d D e p a rtm e n t o f J u s tic e change in its in te rp re ta tio n o f the C iv il L ib e rtie s A c t o f 1988 to\ne x te n d re d re s s u n d e r th e A c t to m inors w h o a c c o m p a n ie d th e ir p aren ts to Jap a n d u rin g W o rld W a r\nII a n d to a d u lts w h o a re a b le to show th a t th e ir re lo c a tio n to J a p a n d u rin g th at p e rio d w as in v o lu n \xc2\xad\ntary is a re a so n a b le a n d p e rm is sib le in te rp re ta tio n o f th e s ta tu te\n\nA lth o u g h an a g e n c y in te rp re ta tio n th a t has b e e n m o d ifie d o r re v e rs e d is lik e ly to re c eiv e le ss d e fe re n c e\nb y a re v ie w in g c o u rt th a n a c o n siste n t an d c o n te m p o ra n e o u s in te rp re ta tio n , the fact o f m o d ific a tio n\nd o e s n o t p re c lu d e th e c o u rt fro m g ran tin g d e fe re n c e to th e n e w in te rp reta tio n\n\nM ay 10, 1994\n\nM e m o r a n d u m O p in io n f o r t h e A s s i s t a n t A t t o r n e y G e n e r a l\nC i v il R i g h t s D i v i s i o n\n\nThis memorandum is in response to your request for this Office\xe2\x80\x99s review of the\nproposed change in eligibility determinations under the Civil Liberties Act of\n1988, Pub. L. No. 100-383, 102 Stat. 903 (codified at 50 U.S.C. app. \xc2\xa7 1989\n(1988)) (\xe2\x80\x9cthe Act\xe2\x80\x9d). The proposed change would extend redress under the Act to\nminors who accompanied their parents to Japan during World War II and to adults\nwho are able to show that their relocation to Japan during that period was involun\xc2\xad\ntary. We conclude that the proposed change is a reasonable and permissible inter\xc2\xad\npretation of the statute.\nWe also have analyzed the implications of this,change as to the deference the\nDepartment can expect from a reviewing court in the event of a challenge. An\nagency interpretation that has been modified or reversed is likely to receive less\ndeference than a consistent and contemporaneous interpretation, but the fact of\nmodification does not preclude a court from granting deference to the new inter\xc2\xad\npretation.\n1.\nThe Civil Liberties Act of 1988 enacts into law the recommendations of the\nCommission on Wartime Relocation and Internment of Civilians established by\nCongress in 1980. H.R. Conf. Rep. No. 100-785, at 1 (1988). The Commission\nsubmitted a unanimous report to Congress in 1983, entitled Personal Justice D e\xc2\xad\nnied , \xe2\x80\x9cwhich extensively reviewed the history and circumstances of the decision to\nexclude, remove,\xe2\x80\x9d and ultimately to intern \xe2\x80\x9cJapanese Americans and Japanese resi\xc2\xad\ndent aliens from the West Coast, as well as the treatment of the Aleuts during\nWorld War II.\xe2\x80\x9d Redress Provisions for Persons of Japanese Ancestry, 54 Fed.\nReg. 34,157 (1989). The final part of the Commission\xe2\x80\x99s report, Personal Justice\nDenied 2: Recommendations, concluded that these events were influenced by ra\xc2\xad\n94\n\n\x0cE lig ib ility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the\nC ivil Liberies A ct o f 1988\n\ncial prejudice, war hysteria, and a failure of political leadership and recommended\nthat Congress and the President take remedial action. Id.\nThe Civil Liberties Act of 1988 was signed into law by President Reagan on\nAugust 10, 1988. The purposes of the Act are to acknowledge and apologize for\nthe fundamental injustice of the evacuation, relocation, and internment of Japanese\nAmericans and permanent resident aliens of Japanese ancestry; to make restitution\nto the individuals who were interned; and to fund a public education program to\nprevent the occurrence of any similar event in the future. 50 U.S.C. app. \xc2\xa7\xc2\xa7 19891989a. Any \xe2\x80\x9celigible individual\xe2\x80\x9d living on the date of enactment is entitled to a\nrestitution payment of $20,000. 50 U.S.C. app. \xc2\xa7 1989b-4(a)(l).\nThe Attorney General is responsible for identifying, locating, and authorizing\npayment to all eligible individuals. 50 U.S.C. app. \xc2\xa7 1989b-4. The Attorney Gen\xc2\xad\neral delegated the responsibilities and duties assigned by the Act to the Assistant\nAttorney General for Civil Rights, who created the Office of Redress Administra\xc2\xad\ntion in the Civil Rights Division (the \xe2\x80\x9cDivision\xe2\x80\x9d) to execute the duties of the De\xc2\xad\npartment under the Act. The regulations governing eligibility and restitution were\ndrafted in the Office of Redress Administration and published under the authority\nof the Department in 1989. 54 Fed. Reg. 34,157 (1989) (final rule) (codified at ,28\nC.F.R. \xc2\xa7 74).\nSection 108(2) of the Act defines the individuals eligible for redress payments\nas any United States citizen or permanent resident alien of Japanese ancestry who\nwas evacuated, relocated, or interned during World War II.1 This provision spe\xc2\xad\ncifically excludes from eligibility \xe2\x80\x9cany individual who, during the period beginning\non December 7, 1941, and ending on September 2, 1945, relocated to another\ncountry while the United States was at war with that country.\xe2\x80\x9d 50 U.S.C. app. \xc2\xa7\n1989b-7(2) (\xe2\x80\x9cthe relocation exclusion\xe2\x80\x9d). The relocation exclusion in the regula\xc2\xad\ntions governing eligibility determinations under the Act uses precisely the same\nlanguage. 28 C.F.R. \xc2\xa7 74.4.\nThe regulations do not specifically address the eligibility of minors who accom\xc2\xad\npanied their parents to Japan during this period or of adults who claim that their\nrelocation was involuntary. However, the notice accompanying the publication of\nthe final regulations noted that the Department had received sixty-one comments\nsupporting eligibility for the minors. After considering these comments, the De\xc2\xad\npartment determined that \xe2\x80\x9cthe exclusionary language of the Act would preclude\nfrom eligibility the minors, as well as [the] adults, who were relocated to Japan\nduring that particular time period.\xe2\x80\x9d 54 Fed. Reg. at 34,160.\nIn a 1989 memorandum outlining the eligibility determinations, the Civil Rights\nDivision considered the claims of the minor evacuees. The Division noted that\n1\nAs enacted in 1988. the A ct lim ited eligibility to those o f Japanese descent T he 1992 am endm ents\nadded language ex ten d in g eligibility to any spouse o r parent o f an individual o f Japanese descent w ho ac\xc2\xad\ncom panied her sp o u se o r child through the evacuation, internm ent, or relocation\nC ivil L iberties Act\nA m endm ents o f 1992, Pub L N o 102-371, 106 Stat. 1 i67 The question o f the eligibility of the m inor and\ninvoluntary adult relocatees was not considered o r discussed in the debates on the 1992 am endm ents.\n\n95\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\nminor children were not in a position to make their own choice regarding emigra\xc2\xad\ntion. However, in light of the language excluding any individual who relocated to\nJapan during the period and the lack of any expression of legislative intent to dis\xc2\xad\ntinguish the minor relocatees from adults, the Division took the position that these\nminors were ineligible. Memorandum for Douglas W. Kmiec, Assistant Attorney\nGeneral, Office of Legal Counsel, from James P. Turner, Acting Assistant Attorney\nGeneral, Civil Rights Division at 11-12 (Feb. 27, 1989). OLC concurred in this\ndetermination without exposition. Memorandum for James P. Turner, Acting As\xc2\xad\nsistant Attorney General, Civil Rights Division, from Douglas W. Kmiec, Assistant\nAttorney General, Office of Legal Counsel (Apr. 17, 1989).\nIn litigation challenging the Division\xe2\x80\x99s current eligibility standards, counsel for\nthe plaintiffs have advanced an analysis that was not considered by the Department\nin 1989. In that analysis, claimants\xe2\x80\x99 counsel contend that the use of the active\nvoice in the language of the relocation exclusion provision renders the statute am\xc2\xad\nbiguous as to the eligibility of relocatees who were involuntarily returned to Japan.\nGiven this ambiguity, counsel argue, an interpretation which allows involuntary\nrelocatees to recover under the Act is reasonable. The Division is persuaded by\nthis analysis and takes the position that while its original interpretation of the stat\xc2\xad\nute deeming involuntary relocatees ineligible was reasonable, the proposed new\ninterpretation is equally reasonable. The proposed change in eligibility determina\xc2\xad\ntions is thus a change in the Department\xe2\x80\x99s interpretation of its own regulation.\nSince the language of the regulation is identical to the language of the statute, the\nDepartment would effectively be changing its interpretation of the statute as well.\n2.\nIn reviewing the Division\xe2\x80\x99s proposed modification to the interpretation of the\nregulation, this Office\xe2\x80\x99s task is to determine whether the construction adopted by\nthe Civil Rights Division is a permissible one. As the Supreme Court stated in\nChevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837\n(1984):\nIf the intent of Congress is clear, that is the end of the matter; for\nthe court, as well as the agency, must give effect to the unambigu\xc2\xad\nously expressed intent of Congress. If, however, the court deter\xc2\xad\nmines Congress has not directly addressed the precise question at\nissue, . . . the question for the court is whether the agency\xe2\x80\x99s answer\nis based on a permissible construction of the statute.\nId. at 842-43 (footnotes omitted). The Department cannot revise its interpretation\nof the Act\xe2\x80\x99s eligibility exclusion if the original interpretation is mandated by the\nplain language of the statute. If, however, the statutory language is ambiguous and\nthe proposed modification is reasonable, the Division\xe2\x80\x99s proposed interpretation is\npermissible.\n\n96\n\n\x0cE ligibility o f Involuntary W artime R elocatees to Japan f o r Redress U nder the\nC ivil Liberies A ct o f 1988\n\n3.\nAs enacted, section 108(2)(B)(ii) of the Act expressly excludes from eligi\xc2\xad\nbility \xe2\x80\x9cany individual who, during the period beginning on December 7, 1941, and\nending on September 2, 1945, relocated to [another] country while the United\nStates was at war with that country\xe2\x80\x9d (emphasis added). This language does not\nspecifically address the eligibility of minor relocatees who accompanied their par\xc2\xad\nents, or the voluntariness of these repatriations.\nWhile the statute uses the active voice in this exclusion clause, the eligibility\nclauses of the statute use the passive voice. For example, section 108 begins by\ndefining an \xe2\x80\x9celigible individual\xe2\x80\x9d as a person of Japanese ancestry \xe2\x80\x9cwho, during the\nevacuation, relocation and internment period \xe2\x80\x94 . . . was confined, held in custody,\nrelocated, or otherwise deprived of liberty or property as a result of . . . [various\nExecutive Orders and Acts].\xe2\x80\x9d 50 U.S.C. app. \xc2\xa7 1989b-7(2) (emphasis added).\nTitle II of the Act, which provides reparations to Aleuts evacuated from their home\nislands during World War II, similarly defines an eligible Aleut as a person \xe2\x80\x9cwho,\nas a civilian, was relocated by authority of the United States from his or her home\nvillage . . . to an internment camp.\xe2\x80\x9d 50 U.S.C. app. \xc2\xa7 1989c-1(5) (emphasis\nadded). The use of the active voice in the exclusion clause suggests the possibility\nthat Congress intended to exclude only those individuals who voluntarily relocated\nto an enemy country during the war.\nWe agree that this language creates an ambiguity which provides a reasonable\nbasis for distinguishing between voluntary relocatees, who are ineligible under the\nstatute, and involuntary relocatees. The U.S. Courts of Appeals for the District of\nColumbia and the Ninth Circuits have deemed the use of the active as opposed to\nthe passive voice relevant for purposes of statutory interpretation. Dickson v. Of\xc2\xad\nfice o f Personnel Management, 828 F.2d 32, 37 (D.C. Cir. 1987) (isolated use of\npassive voice in phrase defining liability is significant and allows suit against OPM\nwhenever an adverse determination \xe2\x80\x9cis made,\xe2\x80\x9d even if by another agency); United\nStates v. Arrellano, 812 F.2d 1209, 1212 (9th Cir.) (clause of statute defining\ncriminal intent phrased in active voice applies to conduct of the accused, while\nsecond clause phrased in passive voice applies only to the conduct of others), as\namended, 835 F.2d 235 (9th Cir. 1987).\nThe legislative history of the Act does not provide any insight into congres\xc2\xad\nsional intent regarding the eligibility of involuntary relocatees. As originally intro\xc2\xad\nduced, neither the House or the Senate bill included a relocation exclusion\nprovision in the section defining eligible individuals. Entering conference, the\nHouse version of the Act contained the exclusion, while the Senate version had no\nsuch provision. The conferees agreed to adopt the House provision, which ex\xc2\xad\ncluded \xe2\x80\x9cthose individuals who, during the period from December 7, 1941, through\nSeptember 2, 1945, relocated to a country at war with the United States.\xe2\x80\x9d H.R.\nConf. Rep. No. 100-785, at 22. There is no additional discussion of the relocation\n\n97\n\n\x0cO pinions o f llie O ffice o f Legal C ounsel\n\nexclusion or of the circumstances surrounding the relocation of internees to Japan\nin the conference report.2\nWhile the Civil Rights Division\xe2\x80\x99s proposed interpretation is not the only possi\xc2\xad\nble interpretation of the statute, it is neither precluded by the plain language of the\nstatute nor unreasonable. Since minor relocatees below a certain age lacked the\nlegal capacity to consent to relocation, their relocation was involuntary per se.3\nThe statute does not bar the Civil Rights Division from declaring these minors eli\xc2\xad\ngible for relief. Similarly, it is reasonable to conclude that the statute does not bar\nfrom relief claimants who can provide evidence that their relocation was in fact\ninvoluntary.\nArguably, the Civil Rights Division\xe2\x80\x99s proposed narrowing of the breadth of the\nrelocation exclusion is more reasonable than its earlier interpretation. Generally,\nremedial statutes should be interpreted broadly to effectuate their remedial pur\xc2\xad\npose. Any exceptions should be interpreted narrowly. Norman J. Singer, Suther\xc2\xad\nland Statutory Construction \xc2\xa760.01 (5th ed. 1992). While courts have generally\nheld that waivers of sovereign immunity granting rights of action against the\nUnited States must be strictly construed, they \xe2\x80\x9chave on occasion narrowly con\xc2\xad\nstrued exceptions to waivers of sovereign immunity where that was consistent with\nCongress\xe2\x80\x99 clear intent.\xe2\x80\x9d See United States v. Nordic Village, Inc., 503 U.S. 30, 34\n(1992) (citing, e.g., Franchise Tax Bd. o f Calif, v. United States Postal Serv., 467\nU.S. 512, 517-19 (1984) (statute authorizing Postal Service to \xe2\x80\x9csue and be sued\xe2\x80\x9d\nwaives immunity from orders to garnish wages issued by state administrative\nboards); Block v. Neal, 460 U.S. 289, 298 (1983) (plaintiff\xe2\x80\x99s claim under Federal\n2 T h e sole discu ssio n o f w h eth er individuals w ho w ere returned to Japan should be included in the d e fin i\xc2\xad\ntion o f \xe2\x80\x98\xe2\x80\x98e lig ib le in d iv id u als\xe2\x80\x9d is contained in tw o w itness statem ents subm itted to the H ouse and S enate\nsu b co m m itte es co n sid erin g the legislation In testim ony o p p o sin g the enactm ent o f the bill, the A ssistant\nA ttorney G en eral for the C iv il D ivision, R ichard K W illard, no ted lhat as then w ritten (w ithout the re lo c a \xc2\xad\ntion exclu sio n ), the bread th o f the definition w o u ld cover any individual w ho had been su b ject to exclusion,\nrelocatio n , o r in tern m en t in clu d in g persons liv in g outside the U nited States In the D epartm ent s view , this\no v erlo o k ed the fact that at least several hundred o f the d etainees w ere "fanatical pro-Japanese, . . and [had]\nvo luntarily sought rep atriatio n to Japan after the end o f the w a r.\xe2\x80\x9d T he D epartm ent believed that allow ing\nthese dislo y al individuals to receive the benefit o f the legislation would be unfair to the U nited Slates and to\nloyal perso n s o f Jap an ese d escen t To A ccept th e Findings a n d to Im plem ent the R ecom m endations oj the\nC om m issio n on W artim e R elo ca tio n and In tern m en t o f C ivilians. H earing on S 1009 B efore the Suhcom m .\non F e d e ra l Services, P ost O ffice, a n d Civil S e rv ic e o f the S e n a te Com m, on G overnm ental A ffa irs, 100th\nC o n g , 1st Sess 281, 2 9 6 (1 9 8 7 ) (\xe2\x80\x9c H earings\xe2\x80\x9d).\nR e sp o n d in g to the D e p artm e n t\'s objections, an o th er w itness argued that many o f these repatriates acted\nas they did for reasons un related to disloyalty to the U nited States, nam ely, their sheer frustration at being\nin c a rc erate d in prison cam p s like com m on c rim in a ls and su m m arily deprived o f their personal and c o n stitu \xc2\xad\ntional rig h ts H earings at 145, 196-97 (statem en t o f M ike M asaoka, representing the G o For B roke Nisei\nV eteran s A ssn ) N eith er o f th ese statem ents reveals, o r ev en suggests, an intention to exclude persons who\nin v o lu n ta rily relocated lo an enem y country.\n3 Y o ung ch ild ren are not cap ab le of ex ercisin g the ju d g m e n t required to m anifest legal consent F urther\xc2\xad\nm ore, a m in o r g enerally has no right to leave th e custody and control of his parents until he reaches m ajority\nor is gran ted em an cip atio n C f Pierce v S o c ie t\\\xe2\x80\x99 o f Sisters, 268 U S 510, 518 (1925) (p a re n ts \'c o n s titu tio n \xc2\xad\nally p ro te c te d liberty in clu d es the right to d ire c t the upbringing o f their children), G im lett v G im lett, 629\nP 2d 4 5 0 , 4 5 2 (W ash 1981) (upon em ancipation o r m ajority a person is released from parental authority and\nbeco m es sui ju ris); In re L u s c ie r \'s Welfare, 5 2 4 P 2d 906, 9 0 8 (W ash. 1974) (the interest o f a parent in the\ncusto d y and control o f his m in o r child is reco g n ized as a sacred right).\n\n98\n\n\x0cE ligib ility o f Involuntary W artime R elocatees to Japan fo r R edress U nder the\nC ivil Liberies Act o f 1988\n\nTort Claims Act for negligent inspection not barred by exception disallowing\nclaims for negligent misrepresentation); United States v. Yellow Cab Co., 340 U.S.\n543, 554-55 (1951) (FTCA waives immunity where U.S. impleaded as third-party\ndefendant)). The compensatory character of the Act\xe2\x80\x99s grant of reparations to spe\xc2\xad\ncific individuals of Japanese descent interned by the government is of a different\nnature than a general waiver of immunity in actions that will be brought by un\xc2\xad\nknown plaintiffs. It is appropriate to narrowly construe an exception to this Act.\n4.\nThere are potentially two groups of plaintiffs who would have standing to\nchallenge the proposed modified interpretation in court. Because section 104 of\nthe Act provides for payments to be made in order of date of birth, with no more\nthan $500 million to be paid in any year, the newly eligible claimants could\n\xe2\x80\x9cbump\xe2\x80\x9d other eligible claimants, delaying or jeopardizing their payments. The age\nand relatively low number of minor relocatees (as estimated by the Department)\nmake it unlikely that the minor relocatees would significantly affect the payment\nschedule, but the number and age of involuntary adult relocatees is harder to as\xc2\xad\ncertain.4 The second group of potential plaintiffs consists of relocatees who are\nunable to prove that their relocations were involuntary. This second type of chal\xc2\xad\nlenge is more likely to focus upon the burden of proof and the definition of\n\xe2\x80\x9cvoluntary\xe2\x80\x9d than upon the reasonableness of the Department\xe2\x80\x99s interpretation of the\nregulation.5\nIt is true that a contemporaneous, consistent interpretation of a regulation or\nstatute by the agency charged with its enforcement will be accorded the greatest\ndeference by the courts, while \xe2\x80\x9c[a]n agency interpretation of a relevant provision\nwhich conflicts with the agency\xe2\x80\x99s earlier interpretation is \xe2\x80\x98entitled to considerably\n4\nUnder ihe Act, the o rd er o f paym ent is determ ined by date o f birth, w ith the oldest eligible individuals\nreceiving paym ent first 50 U S C app \xc2\xa7 I989b-4(b) Paym ent from the trust established by the A ct is\nauthorized until A ugust 1998 o r until the funds appropriated are depleted. 50 U.S C. app ^ I989b-3(d) The\n1992 am endm ents placed an additional $400 m illion in the trust because the D epartm ent had already located\nmore eligible individuals than originally estim ated\nEstim ates o f the num ber o f m inors w ho w ere relocated to Japan vary w idely P laintiffs counsel in a suit\nseeking restitution paym ents for fourteen m inor relocatees cite a D epartm ent estim ate \xe2\x80\x99\xe2\x80\x98that as m any as 135\nm inor children w ere relocated to Japan" w ith their parents during the w ar M em orandum for Jam es P\nTurner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision from G en Fujioka, A sian Law C aucus, Jim\nM cCabe & O w en C lem ents, M orrison & Foerster at 3-4 (Sept 22, 1993). In contrast, a w itness before the\nSenate relying on figures published in a m onograph by the form er director o f the W ar R elocation A uthority\ntestified that betw een 1942 and 1946 a total o f 4724 repatriates and expatriates sailed for Japan O f this\ntotal, 1659 were alien repatriates, 1949 w ere A m erican citizens, virtually all children under 20 years o f age\naccom panying their alien parents, and 11 16 w ere form er A m erican citizens w ho had renounced th eir citiz en \xc2\xad\nship. H earings at 197 (statem ent o f M ike M asaoka, representing the G o For Broke N isei V eterans A s s n )\n(citing D illon S. M eyer, U prooted A m ericans The Japanese A m ericans and the W ar R elocation A uthority\nD unng W orld W ar II)\nA pproxim ately 75 adult relocatees have filed claim s with the O ffice o f Redress A dm inistration alleging\nthat their relocations w ere not voluntary M em orandum for W alter D ellinger, A ssistant A ttorney G eneral,\nO ffice o f Legal C ounsel, from Jam es P T urner, A cting A ssistant A ttorney G eneral, C ivil Rights D ivision at\n4 (M ar 16, 1994)\n3 T he 1992 am endm ents require that individual claim ants receive the benefit o f the doubt w here \xe2\x80\x99\xe2\x80\x98there is\nan approxim ate balance o f positive and negative evidence regarding the m erits of an issue m aterial to (a]\ndeterm ination o f eligibility \' 50 U S C app & I989b-4(a)(3)\n\n99\n\n\x0cOpinions o f the O ffice o f L egal C ounsel\n\nless deference\xe2\x80\x99 than a consistently held agency view.\xe2\x80\x9d INS v. Cardoza-Fonseca,\n480 U.S. 421, 446 n.30 (1987) (citation omitted); see also General Elec. Co. v.\nGilbert, 429 U.S. 125, 143 (1976). However, in both Cardoza and General Elec\xc2\xad\ntric, the Court concluded that the agency\xe2\x80\x99s revised interpretation was in conflict\nwith the plain language of the statute in question. The underlying rationale for\njudicial deference to agency interpretations is as applicable to a modified interpre\xc2\xad\ntation of a statute as to the agency\xe2\x80\x99s initial construction. See Chevron, 467 U.S. at\n865 (\xe2\x80\x9cit is entirely appropriate\xe2\x80\x9d for the agency \xe2\x80\x9cto make . . . policy choices\xe2\x80\x9d).\nAccordingly, the Court of Appeals for the D.C. Circuit has held that the principle\nof deferring to an agency\xe2\x80\x99s reasonable construction of an open-ended statutory\nprovision \xe2\x80\x9cappliefs] equally where . . . we review modification of a previous pol\xc2\xad\nicy.\xe2\x80\x9d Office o f Communication of the United Church o f Christ v. FCC, 590 F.2d\n1062, 1068-69 (D.C. Cir. 1978). Cf. Phoenix Hydro Corp. v. FERC, 775 F.2d\n1187, 1191 (D.C. Cir. 1985) (an administrative agency is entitled to change its\nprior erroneous interpretation of a statute).\nConclusion\nThe Civil Rights Division\xe2\x80\x99s proposed interpretation of the regulation governing\neligibility for redress payments is a reasonable interpretation of the regulation and\nof the Act. The language of the exclusion provision is ambiguous as to whether\nCongress intended to prevent involuntary relocatees from receiving restitution.\nThe proposed interpretation does not contradict the language of the statute or the\nstatute\xe2\x80\x99s legislative history and is consistent with the strong remedial purpose un\xc2\xad\nderlying the Act. Although there is a litigation risk associated with this modifica\xc2\xad\ntion, it is unlikely that a court would overturn the proposed interpretation. While\nthis modification does not require formal rulemaking procedures, it would be ad\xc2\xad\nvisable for the Department to publish a notice of the change and the underlying\nreasons in the Federal Register.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n100\n\n\x0c'


b"Application of Consumer Credit Reporting Reform Act of 1996\nto Presidential Nomination and Appointment Process\nSection 2403(b)(3) o f the C onsum er Credit R eporting R eform Act o f 1996, w hich requires persons\n\xe2\x80\x9c u sing a co n su m er report for em ploym ent purposes\xe2\x80\x9d to notify the consum er prior to taking any\n\xe2\x80\x9c ad v erse a c tio n \xe2\x80\x9d based on the report, does not apply to the process used by the P resident in\nco n sid erin g individuals for nomination a n d appointm ent\n\nDecember 11, 1997\nM e m o r a n d u m O p in io n f o r t h e C o u n s e l t o t h e P r e s i d e n t\n\nThe Consumer Credit Reporting Reform Act of 1996 ( \xe2\x80\x9c CCRRA\xe2\x80\x9d ), 15 U.S.C.A.\n\xc2\xa7 1681s-2 (West Supp. 1997), offers heightened protections to individuals whose\ncredit histories are being examined by prospective employers. Section 2403(b)(3)\nof the CCRRA amends section 604 of the Fair Credit Reporting Act (\xe2\x80\x9c FCRA\xe2\x80\x9d )\nto require any person \xe2\x80\x9c using a consumer report for employment purposes\xe2\x80\x9d to\nnotify the consumer prior to taking \xe2\x80\x9c any adverse action based in whole or in\npart on the report.\xe2\x80\x9d Id. \xc2\xa7 1681b(b)(3). You have requested our advice whether\n\xc2\xa7 2403(b)(3) would apply to the process used by the President in considering\nindividuals for nomination and appointment with the advice and consent of the\nSenate or appointment to his personal staff. As explained briefly below, we con\xc2\xad\nclude that this provision o f the CCRRA does not apply to the President\xe2\x80\x99s decisions\naffecting such positions.\nIt is a well settled principle of law, applied frequently by both the Supreme\nCourt and the executive branch, that statutes that do not expressly apply to the\nPresident must be construed as not applying to him if such application would\ninvolve a possible conflict with his constitutional prerogatives. See, e.g., Franklin\nv. M assachusetts, 505 U.S. 788, 800-01 (1992). This Office has described that\nprinciple as a \xe2\x80\x9c clear statement rule.\xe2\x80\x9d See Application o f 28 U.S.C. \xc2\xa7458 to Presi\xc2\xad\ndential Appointm ents o f Federal Judges, 19 Op. O.L.C. 350, 351 (1995) ( \xe2\x80\x9c \xc2\xa7458\nopinion\xe2\x80\x9d ); see also Armstrong v. Bush, 924 F.2d 282, 289 (D.C. Cir. 1991). As\nthe \xc2\xa7458 opinion explains in greater detail, the clear statement rule has two\nsources. First, a fundamental canon of statutory interpretation requires that statutes\nbe construed to avoid raising serious constitutional questions. 19 Op. O.L.C. at\n352. Second, the constitutional principle of separation of powers assures a division\nof power among the federal government\xe2\x80\x99s three coordinate branches. The clear\nstatement rule \xe2\x80\x9c exists in order to protect *th[is] usual constitutional balance\xe2\x80\x99 of\npower.\xe2\x80\x9d Id. (citing G regory v. Ashcroft, 501 U.S. 452, 460-61 (1991)).\nThus, where a statute does not by its express terms apply to the President, it\nmay not be applied to him if doing so would raise a serious separation of powers\nconcern. We first consider the possible application of the CCRRA to the process\nby which the President nominates non-inferior officers, subject to advice and con214\n\n\x0cApplication o f Consumer Credit Reporting Reform Act o f 1996 to Presidential Nomination and\nAppointment Process\n\nsent of the Senate. Application of the CCRRA in this context would raise a serious\nseparation o f powers concern, for it could interfere with a power committed to\nthe President by the Constitution.\nThe Appointments Clause provides that the President\nshall nominate, and by and with the consent of the Senate, shall\nappoint Ambassadors, other Public Ministers and Consuls, Judges\nof the supreme Court, and all other Officers of the United States\n. . . but the Congress may by Law vest the Appointment of such\ninferior Officers, as they think proper, in the President alone, in\nthe Courts of Law, or in the Heads of Departments.\nU.S. Const, art. II, \xc2\xa72, cl. 2. The Constitution \xe2\x80\xa2thus vests in the President alone\nthe power to nominate non-inferior officers of the United States. Although Con\xc2\xad\ngress has an important role in the appointment of such officers by virtue of the\nSenate\xe2\x80\x99s assigned responsibility to advise and consent with regard to such appoint\xc2\xad\nments, any attempt by Congress to exercise power over the process of nominating\na particular individual to a non-inferior office would raise a serious constitutional\nquestion. See 19 Op. O.L.C. at 358; Federal Election Comm'n v. NRA Political\nVictory Fund, 6 F.3d 821, 824 (D.C. Cir. 1993), cert, dismissed, 513 U.S. 88\n(1994).\nAs noted above, section 2403(b)(3) of the CCRRA requires any person who\nuses a credit report for employment purposes to notify the subject of any adverse\naction based in whole or in part on the report.1 To the extent this requirement\nwere applied to the process under which potential nominees are considered by\nthe President, it could impose a burden upon the unfettered nomination power\naccorded the President under the Constitution. The Constitution does not compel\nthe President to disclose to a nominee the reasons for his decision not to nominate\nthat person; indeed, it does not require that the President have articulable reasons\nfor not nominating someone. To the extent section 2403(b)(3) would require an\nassessment whether information contained in a credit report contributed to an\nadverse decision, and then would further require communication of that fact to\na potential nominee, section 2403(b)(3) effectively places limitations on the Presi\xc2\xad\ndent\xe2\x80\x99s constitutional prerogative to nominate non-inferior officers of the United\nStates. We need not here decide whether Congress may, consistent with the Con\xc2\xad\nstitution, impose such limitations; it is enough for purposes of this analysis to\nconclude that such a restriction potentially conflicts with the President\xe2\x80\x99s constitu1Section 2403(b)(2) also requires any person procuring a consumer report for employment purposes to inform\nthe consumer and to receive the consumer\xe2\x80\x99s authorization in writing for the procurement of such a report Because\nwe understand that you intend to comply with this separate statutory requirement (and indeed may already be doing\nso by virtue of the authorization signed by those undergoing background investigations), we need not resolve here\nthe question whether the requirement o f section 2403(b)(2), if applied to the President, might interfere with the\nPresident\xe2\x80\x99s power under the Appointments Clause and thus need to be interpreted in light of a clear statement rule.\nWe therefore focus our attention on the requirement imposed by section 2403(b)(3)\n\n215\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 21\n\ntional responsibilities. Where, as here, a potential conflict exists, the clear state\xc2\xad\nment rule requires that the statutory requirement be explicitly applied to the Presi\xc2\xad\ndent.\nNeither the language nor the legislative history of the CCRRA, however, con\xc2\xad\ntains any such express statement. The definitions of \xe2\x80\x9c person\xe2\x80\x9d and \xe2\x80\x9c employment\npurposes\xe2\x80\x9d in section 603 of the FCRA do not explicitly refer to the President\nor to presidential nominations. Nor does any other provision of the FCRA or the\nCCRRA state specifically that the requirements of these statutes apply equally\nwith respect to the President as to other potential employers. Respect for the sepa\xc2\xad\nration of powers and the \xe2\x80\x9c unique constitutional position of the President\xe2\x80\x9d require\nsuch an explicit textual reference. Franklin v. M assachusetts, 505 U.S. at 80001. The legislative history of the CCRRA similarly is silent with respect to its\nspecific application to presidential nominees. What is clear from that history is\nthat the primary focus o f the CCRRA was to grant the ordinary consumer greater\ncontrol over the use of his or her consumer credit report by consumer reporting\nagencies. See 142 Cong. Rec. 26,666, 26,667 (1996) (statement of Sen. Bryan,\noriginal sponsor of CCRRA). The absence of any clear statement including the\nPresident within the scope of the CCRRA, together with the serious constitutional\nquestions that such an interpretation would raise, compels us to conclude that\nthe CCRRA does not apply to the President\xe2\x80\x99s use of credit information with\nrespect to potential presidential nominees for non-inferior offices.\nW e turn now to two other categories of appointees \xe2\x80\x94 inferior officers appointed\nby the President with the Senate\xe2\x80\x99s advice and consent and appointees to positions\n(other than those requiring advice and consent) on the President\xe2\x80\x99s personal staff.\nApplication of the CCRRA to these categories of appointees, at least in some\ncircumstances, might well raise separation of powers concern. However, we need\nnot reach this issue. We have already concluded that section 2403(b) would not\napply to the President, because it could do so only if there were a clear statement\nto that effect. Given that conclusion, we would be rewriting the statute if we\nwere to conclude that the President had to follow the statute with regard to par\xc2\xad\nticular classes of potential appointees. Therefore, our conclusion that the clear\nstatement rule prohibits application of section 2403(b)(3) to presidential nomina\xc2\xad\ntions for non-inferior offices applies equally to all categories of individuals under\nconsideration by the President for nomination or appointment.\nDAWN E. JOHNSEN\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n216\n\n\x0c"


b'Presidential Authority to Make Recess Appointments\nWhile Incumbents Hold Over\nThe President may make recess appointments to the Interstate Commerce Commission and to the\nBoard of Directors of the Reconstruction Finance Corporation while members of those entities\ncontinue to serve in office under holdover statutes.\n\nOctober 2, 1950\n\nMEMORANDUM FOR THE DIRECTOR OF PERSONNEL\nRECONSTRUCTION FINANCE CORPORATION*\nYou request information as to whether the President may make recess appointments to the Interstate Commerce Commission and the Board of Directors of the\nReconstruction Finance Corporation in cases in which incumbents are still serving\nunder provisions of law which permit them to continue to serve until their\nsuccessors are appointed and qualified.\nThe appointment, term, and qualifications of a member of the Interstate Commerce Commission are governed by the provisions of section 11 of title 49 of the\nUnited States Code (1946). That section provides for terms of office of seven\nyears and that \xe2\x80\x9c[u]pon the expiration of his term of office a Commissioner shall\ncontinue to serve until his successor is appointed and shall have qualified.\xe2\x80\x9d\nThe appointment, qualifications, and tenure of directors of the Reconstruction\nFinance Corporation, appointed on and after July 1, 1950, are controlled by 15\nU.S.C. \xc2\xa7 602 (1946 Supp. II) (codifying Act of May 25, 1948, Pub. L. No. 80-548,\n\xc2\xa7 2, 62 Stat. 261, 262), which provides that the terms of the directors in office\nwhen the Act of May 25, 1948 was enacted shall be extended until June 30, 1950,\nand also provides, after initial staggered appointments, for terms of three years,\n\xe2\x80\x9cbut they may continue in office until their successors are appointed and qualified.\xe2\x80\x9d Present incumbents now holding over, however, were appointed under a\nprevious statute (15 U.S.C. \xc2\xa7 603 (1946) (codifying Pub. L. No. 72-2, \xc2\xa7 3, 47 Stat.\n5, 5\xe2\x80\x936 (Jan. 22, 1932)), which provided that \xe2\x80\x9c[t]he terms of the directors appointed\nby the President of the United States shall be two years and run from January 22,\n1932, and until their successors are appointed and qualified.\xe2\x80\x9d\nThe authority of the President to make recess appointments is found in Article II, Section 2, Clause 3 of the Constitution, which provides that \xe2\x80\x9c[t]he President\n*\nEditor\xe2\x80\x99s Note: This memorandum was addressed to \xe2\x80\x9cthe Honorable Donald S. Dawson,\xe2\x80\x9d without\nindication of his office or title. At the time of this opinion, it appears that Mr. Dawson was serving as\nDirector of Personnel for the Reconstruction Finance Corporation\xe2\x80\x94an inference supported by the fact\nthat the opinion addresses recess appointments to the Board of Directors of the Reconstruction Finance\nCorporation. See Wolfgang Saxon, Donald Dawson, 97, Dies; Master of Truman Whistle-Stop, N.Y.\nTimes, Dec. 29, 2005, at A25, available at http://www.nytimes.com/2005/12/29/politics/29DAWSON.\nhtml (last visited Aug. 24, 2012).\n\n464\n\n\x0cPresidential Authority to Make Recess Appointments While Incumbents Hold Over\n\nshall have Power to fill up all Vacancies that may happen during the Recess of the\nSenate, by granting Commissions which shall expire at the End of their next\nSession.\xe2\x80\x9d\nA number of decisions in the state courts have dealt with the question whether\nexpiration of the prescribed term, in the case of an officer authorized to hold over\nuntil his successor is appointed and qualified, creates a vacancy. The decisions\nhave not been uniform as there are holdings both ways.\nNo decision under the applicable provision of the federal Constitution has been\nfound. In a number of instances involving United States Marshals and United\nStates Attorneys affected by \xe2\x80\x9chold over\xe2\x80\x9d provisions, recess appointments have\nbeen given upon expiration of the prescribed term without, apparently, any formal\nremoval or resignation of the incumbent. See Memorandum for the Attorney\nGeneral, from George C. Todd, Assistant to the Attorney General, D.J. File\nNo. 175,594 (Dec. 21, 1914). These officers, by express provision of the law, hold\nover until their successors are appointed and qualified. The question does not\nappear to have been raised, however, as to whether a formal removal was necessary.\nThe President has removal authority with respect to a Director of the Reconstruction Finance Corporation, who appears to be clearly an administrative officer\nin the Executive Branch. Myers v. United States, 272 U.S. 52 (1926). Members of\nthe Interstate Commerce Commission, however, can probably be removed only\n\xe2\x80\x9cfor inefficiency, neglect of duty, or malfeasance in office.\xe2\x80\x9d 49 U.S.C. \xc2\xa7 11; see\nalso Humphrey\xe2\x80\x99s Ex\xe2\x80\x99r v. United States, 295 U.S. 602 (1935); Power of the President to Remove Members of the Tennessee Valley Authority from Office, 39 Op.\nAtt\xe2\x80\x99y Gen. 145 (1938) (Jackson, A.G.). Thus, at least insofar as the Reconstruction\nFinance Corporation is concerned, there is an analogy with the case of United\nStates Marshals.\nThe Attorney General in District Attorney\xe2\x80\x94Temporary Appointment, 16 Op.\nAtt\xe2\x80\x99y Gen. 538 (1880) (Devens, A.G.), held that the President might make a recess\nappointment to the office of United States Attorney even though the appointee of\nthe court as United States Attorney held the office. He stated that\nThe authority given to fill the office to the circuit justice is an\nauthority only to fill it until action is taken by the President. The\noffice in no respect ceases to be vacant in the sense of the Constitution because of this appointment, for the reason that the appointment\nitself contemplates only a temporary mode of having the duties of\nthe office performed . . . .\nId. at 539\xe2\x80\x9340. Likewise it may be said with respect to the commissioners of the\nInterstate Commerce Commission that where they hold over under the statute after\ntheir regular term, it is contemplated that such a holdover is only a temporary\nmode of having the duties of the position performed and a vacancy does exist in\n\n465\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nthe sense of the Constitution. Indeed, the statutory authorization for an incumbent\nto remain in office after the expiration of his term undoubtedly was provided for\nthe purpose of insuring that the duties of such important offices would not go\nunattended, and obviously was not designed to nullify the provisions of law with\nrespect to the terms of such offices. If the expiration of the term of the individual\nholding the office does not create a vacancy in the office, it would seem that the\nPresident could not, without first removing the incumbent, send to the Senate a\nnomination for the office.* Such, of course, is not the case and the President\nfrequently sends to the Senate a nomination for an office occupied by an incumbent whose term has expired. To hold that there is no vacancy, merely because the\nincumbent, whose term has expired, is continuing to serve under statutory\nauthority, would lead to the result that no nomination or appointment could be\nmade until the incumbent resigned or died. Such a conclusion would render\nentirely meaningless the express statutory provisions which limit the terms of the\noffices in question to a specified number of years, and obviously is unsound.\nIn a memorandum for the Attorney General by the Assistant to the Attorney\nGeneral George C. Todd of December 21, 1914, the question here under consideration was discussed and the conclusion reached that there is a vacancy in office for\nthe purpose of a recess appointment under the circumstances indicated, as set forth\nin the memorandum:\nJohn Lord O\xe2\x80\x99Brian was appointed on March 4, 1909 for four years\nand until his successor should qualify. On December 1, 1914, the\nSenate being then in recess, the President appointed Mr. Lynn by a\ncommission expiring at the end of the present session of the Senate.\nMr. Lynn qualified on December 2, 1914. On December 7, 1914, the\nSenate convened, and on December 9, 1914, Mr. Lynn was nominated for a full term. On December 14, 1914, the Senate rejected the\nnomination.\nThe questions are:\n1. In view of the fact that Mr. Lynn\xe2\x80\x99s predecessor did not resign\nand was not removed, but ceased to be District Attorney only be\nreason of the appointment and qualification of his successor, was\nthere any \xe2\x80\x9cvacancy\xe2\x80\x9d within the meaning of the provision of the\nConstitution authorizing the President to \xe2\x80\x9cfill up all vacancies that\nmay happen during the recess of the Senate?\xe2\x80\x9d\n\n*\nEditor\xe2\x80\x99s Note: In Nominations for Prospective Vacancies on the Supreme Court, 10 Op. O.L.C.\n108, 109 (1986), the Office reached a different conclusion, stating that \xe2\x80\x9cas a constitutional matter, nothing precludes the nomination and confirmation of a successor while the incumbent still holds office.\xe2\x80\x9d\n\n466\n\n\x0cPresidential Authority to Make Recess Appointments While Incumbents Hold Over\n\nThis objection to Mr. Lynn\xe2\x80\x99s appointment would seem to be overrefined. Mr. O\xe2\x80\x99Brian held office subject to the absolute power of the\nremoval of the President. [In re Hennen, 38 U.S. (13 Pet.) 230, 259\n(1839); Blake v. United States, 103 U.S. (13 Otto) 227 (1880); Parsons v. United States, 167 U.S. 324 (1897); Shurtleff v. United\nStates, 189 U.S. 311 (1903).] The reasonable view would be that the\naction of the President in appointing a successor ipso facto created a\nvacancy in the office. It was equivalent to a removal.\nMr. Todd in this memorandum refers in supporting his conclusion to In re\nMarshalship, 20 F. 379 (M.D. Ala. 1884), and to an opinion of the Comptroller of\nthe Treasury, 5 Comp. Gen. 594 (1926).\nIn conclusion, it would appear that the President\xe2\x80\x99s power to make recess appointments exists with respect to the positions here under consideration.*\nPEYTON FORD\nDeputy Attorney General\n\n*\nEditor\xe2\x80\x99s Note: Apart from the sentence identified in the previous Editor\xe2\x80\x99s Note, the Office continues to take the position articulated in this opinion. See Memorandum for Robert G. Damus, General\nCounsel, Office of Management and Budget, from Beth Nolan, Deputy Assistant Attorney General,\nOffice of Legal Counsel, Re: Reporting Obligation under the Federal Vacancies Reform Act for PAS\nOfficers Serving Under Statutory Holdover Provisions (July 30, 1999) (\xe2\x80\x9cAs a matter of constitutional\nlaw, the executive branch consistently has taken the position that there is a vacancy for purposes of the\nRecess Appointments Clause when an appointment for a term of years expires and the officer continues\nserving under a holdover provision\xe2\x80\x9d).\nFederal courts, however, have taken conflicting positions on the issue. Compare Staebler v. Carter,\n464 F. Supp. 585, 589 (D.D.C. 1979) (upholding recess appointment to position on Federal Election\nCommission still occupied by incumbent, on ground that expiration of incumbent\xe2\x80\x99s formal statutory\nterm created immediate vacancy), with Wilkinson v. Legal Servs. Corp., 865 F. Supp. 891, 900 (D.D.C.\n1994) (invalidating termination of inspector general by recess appointees on Board of Directors of\nLegal Services Corporation, on grounds that holdover provision in Legal Services Corporation Act was\nmandatory and that Board positions were therefore not vacant at time of recess appointments), rev\xe2\x80\x99d on\nother grounds, 80 F.3d 535 (D.C. Cir. 1996); Mackie v. Clinton, 827 F. Supp. 56, 58 (D.D.C. 1993),\nvacated as moot, Nos. 93-5287, 93-5289, 1994 WL 163761 (D.C. Cir.) (per curiam) (invalidating\nrecess appointment to position on Postal Service Board of Governors still occupied by incumbent, on\nground that statute entitled incumbent to hold position for one year after expiration of formal term). In\nSwan v. Clinton, 100 F.3d 973, 986 (1996), the D.C. Circuit refused to infer tenure protection for\nholdover members of the National Credit Union Administration \xe2\x80\x9cabsent clear evidence that this was\nCongress\xe2\x80\x99 intent,\xe2\x80\x9d because doing so would \xe2\x80\x9cpreclude[] the President from exercising [the] constitutionally granted power\xe2\x80\x9d of recess appointment.\n\n467\n\n\x0c'


b'Extension of District Court Jurisdiction Under \xc2\xa7 1110 of the\nFederal Aviation Act\nSection 1110 of the Federal Aviation A ct authorizes the President to extend that A ct to\nareas outside the United States, but does not authorize an analogous extension o f the\ngeographic jurisdiction of a district court for purposes o f enforcing certain o f the A ct\xe2\x80\x99s\nprovisions. An executive o rd er extending the Act to the Trust Territory o f the Pacific\nIslands (T T PI) would make its provisions part of the law of the T TPI, and enforceable\nthrough the T T P I judicial system.\n\nAugust 27, 1981\nMEMORANDUM OPINION FOR TH E ASSISTANT CHIEF\nCOUNSEL, FEDERAL AVIATION ADMINISTRATION\nThis responds to your request for the guidance of this Office on the\nquestion whether the President has authority under \xc2\xa7 1110 of the Fed\xc2\xad\neral Aviation Act of 1958, as amended (49 U.S.C. \xc2\xa7 1510) (Act), to\nextend by executive order a judicial district of the United States in\nsupport of a geographical extension of the Act by executive order. You\nunderstand that our response to your inquiry was delayed in view of\nthe difficulties you had in ascertaining the manner under which similar\nproblems were solved under Executive Order No. 11,326, 3 C.F.R. 617\n(1966-1970 Comp.), which extended parts of the Federal Aviation Act\nto the Ryukyu Islands. We have been advised now that the issue did\nnot arise at that time because the provisions of the Federal Aviation\nAct under which this problem becomes critical were not extended to\nthe Ryukyu Islands.\nSection 1110 of the Federal Aviation Act, 49 U.S.C. \xc2\xa7 1510, provides:\nWhenever the President determines that such action\nwould be in the national interest, he may, to the extent, in\nthe manner, and for such periods of time as he may\nconsider necessary, extend the application of this Act to\nany areas of land or water outside of the United States\nand the overlying airspace thereof in which the Federal\nGovernment of the United States, under international\ntreaty, agreement or other lawful arrangement has the\nnecessary legal authority to take such action.\nUnder the authority of this section, Titles III and XII of the Act\nalready have been extended by Executive Order No. 10,854, 3 C.F.R.\n276\n\n\x0c389 (1959-1963 Comp.), \xe2\x80\x9cto those areas of land or water outside the\nUnited States and the overlying airspace thereof over or in which the\nFederal Government of the United States . . . has appropriate jurisdic\xc2\xad\ntion and control.\xe2\x80\x9d This definition, as pointed out in your memorandum,\nincludes the Trust Territory of the Pacific Islands (TTPI). It is now\ncontemplated to extend most of the titles of the Act to the TTPI in\norder to enable aircraft owned by citizens of the Micronesian entities to\nbe registered in the United States. Your agency feels that such exten\xc2\xad\nsion of the Act to the TTPI is feasible only if the Act and the\nregulations of the Federal Aviation Administration can be fully en\xc2\xad\nforced with respect to persons located in the violations occurring in the\nTTPI.\nThe Act provides for its enforcement largely through civil and crimi\xc2\xad\nnal proceedings in the district courts in which the offense or violations\nare committed, or where the person committing a violation of the Act\ncarries on his business. \xc2\xa7\xc2\xa7 903, 904, 1007 (49 U.S.C. \xc2\xa7\xc2\xa7 1473, 1474,\n1487). Because the TTPI is not within any federal judicial district, the\nquestion arises how the Act can be effectively enforced in the T T P I.1\nThis gives rise to the question whether the President\xe2\x80\x99s authority under\n\xc2\xa7 1110 of the Act includes the power both to extend the Act to areas\noutside the United States and the power to extend the geographic\njurisdiction of a district court to an area outside the United States to\nwhich the Act has been made applicable.\nIn our view this question must be answered in the negative. The\njurisdiction of the federal district courts is purely statutory. Section\n1110 does not expressly confer on the President the power to extend\nthe geographical jurisdiction of the district courts, and such power is\nnot easily implied from the language of that section. Moreover, it\ncannot be said that this power follows by necessary implication because\n\xc2\xa71110 would be nugatory in the absence of a judicial forum in which\nthe extension of the Act could be enforced. The experience of Execu\xc2\xad\ntive Order Nos. 10,854 and 11,326 shows that some titles of the Act can\nbe extended without a concomitant extension of the jurisdiction of a\nfederal court. In addition, \xc2\xa7 903(a) provides for a forum for some\nviolations of the Act outside the United States. See supra note 1.\nOur conclusion that \xc2\xa7 1110 of the Act does not confer on the Presi\xc2\xad\ndent the power to enlarge the geographic jurisdiction of a federal\ndistrict court, however, does not mean that there is no available means\nof enforcing the provisions of the Act in the event it is extended to the\n1Section 903 provides that where an \xe2\x80\x9coffense is committed out o f the jurisdiction of any particular\nState o r district, the trial shall be in the district where the offender. . . is arrested or is first brought \xe2\x80\x9d\nThis provision does not appear to be sufficiently effective in the case o f non-resident aliens.\n\n277\n\n\x0cTTPI. According to \xc2\xa7 101(2) of Title I of the Trust Territory Code\n(1970):\n(2) such laws of the United States, as shall, by their own\nforce, be in effect in the Trust Territory, including the\nExecutive Orders o f the President and orders of the Sec\xc2\xad\nretary of the Interior\nhave the effect of law in the TTPI. An executive order extending the\nAct to the TT PI therefore would be a part of the law of the TTPI and\njudicially enforceable there. However, since the judicial system of the\nTT PI is controlled by orders of the Secretary of the Interior, we would\nsuggest that you consult with the Office of the Solicitor of the Interior\non the best method of conferring enforcement jurisdiction on the TTPI\nHigh Court.\nL a r r y L . S im m s\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n278\n\n\x0c'


b'Authority of Senate Committee Staff to Depose\nExecutive Branch Officers\nThere is no authority in the rules o f the Senate, o r in relevant statutes, for the Senate C om m ittee on\nLabor and Hum an Resources to direct its sta ff to depose certain Executive Branch officials. R ecent\npractice establishes that such depositions m ay be taken by Senate com m ittee staff only w hen\nsp ecifically auth o rized by a resolution o f the full Senate in connection w ith a p a rtic u la r\ninvestigation.\n\nAugust 4, 1982\nMEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL\nThis responds to your request for our opinion whether the Senate Committee\non Labor and Human Resources may, without specific authority conferred by a\nresolution adopted by the Senate, authorize its staff to take depositions of\nExecutive Branch officials in the course of that Committee\xe2\x80\x99s inquiry into the\nconfirmation of Secretary [of Labor Raymond J.] Donovan.\nOn July 22, 1982, the Senate Committee on Labor and Human Resources\nadopted a resolution authorizing an investigation into whether \xe2\x80\x9c the Committee\nreceived full, complete and timely disclosure of all information in the [Donovan]\nconfirmation [proceedings].\xe2\x80\x9d On the afternoon of July 29,1982, Messrs. Francis\nM. Mullen, formerly Executive Assistant Director of the FBI, FBI Special Agent\nAnthony Adamski, Jr., and Fred F. Fielding, Counsel to the President, received\nNotices of Deposition purporting to require them to appear for depositions at 7:30\na.m. on August 3, 6, and 9, 1982, respectively. Each Notice of Deposition states\nthat it is authorized \xe2\x80\x9c pursuant to Committee resolution and the Committee\nrules. . . .\xe2\x80\x9d We have examined the Committee resolution and rules, and, in\naddition, the Standing Rules of the Senate, the Standing Orders and Resolutions\nAffecting the Business of the Senate, and relevant statutes and have found no\nauthority, express or implied, for the depositions which are demanded of Messrs.\nMullen, Adamski, and Fielding.\n\nI. The Committee\xe2\x80\x99s Rules of Procedure\nThe Rules of Procedure of the Committee, which are attached to each of the\nNotices of Deposition, do not authorize the taking of depositions. In fact, the\nword \xe2\x80\x9c deposition\xe2\x80\x9d nowhere appears in the rules of the Committee, and no\n503\n\n\x0clanguage appears in the rules from which power in the staff to take depositions\ncould reasonably be inferred.1\n\nII. The Committee\xe2\x80\x99s Resolution\nThe Committee\xe2\x80\x99s resolution o f July 22, 1982, purports to authorize swom\ndepositions \xe2\x80\x9c anywhere in the continental United States\xe2\x80\x9d to be taken by Commit\xc2\xad\ntee staff members, provided only that a Senator be present when the deposition\ncommences. The resolution states that \xe2\x80\x9c under Senate rule XXVI and section\n1364(a) of title 28, United States Code, a committee may authorize the issuance\nof subpoenas and the taking of depositions. . . .\xe2\x80\x9d No other authority for taking\ndepositions is cited in the resolution.\nRule XXVI governs Senate com m ittee and subcommittee procedure. It\nprovides broad authority to conduct hearings, to take testimony, to require \xe2\x80\x9c by\nsubpena or otherwise\xe2\x80\x9d the attendance of witnesses, and to conduct investiga\xc2\xad\ntions. Yet nowhere in the rule is there language expressly or implicitly authoriz\xc2\xad\ning the taking of depositions by committee staff. As with the rules of the\nCommittee itself, the word \xe2\x80\x9cdeposition\xe2\x80\x9d nowhere appears in Senate Rule XXVI.\nIndeed, none of the Standing Rules of the Senate contain so much as a single\nreference to depositions.\nThe statutory provision cited by the resolution, 28 U.S.C. \xc2\xa7 1364(a) (Supp. V\n1981) added by Pub. L. No. 95-521,92 Stat. 1879, establishes jurisdiction in the\nUnited States District Court for the District of Columbia to hear certain civil\nactions brought by the Senate Legal Counsel, including actions to require\ncompliance with an order of a committee seeking answers to \xe2\x80\x9c any deposition or\ninterrogatory.\xe2\x80\x9d This provision, however, is by its express language inapplicable\nto the taking of depositions of Executive Branch officials:\nThis section shall not apply to an action to enforce, to secure a\ndeclaratory judgment concerning the validity of, or to prevent a\nthreatened refusal to comply with, any subpena or order issued to\nan officer or employee of the Federal Government acting within\nhis official capacity.\n28 U .S.C . \xc2\xa7 1364(a); see S. Rep. No. 170, 95th Cong., 2d Sess. 89 (1977) (this\nsection does not apply to Executive Branch officers). We are unaware of any other\nstatutory provision authorizing the taking of depositions by Senate committee\nstaff.\nWe have examined the Standing Orders and Resolutions of the Senate set out in\nthe Senate Manual, S. Doc. No. 1, 96th Cong., IstSess., and have discovered no\ngeneral standing authority for the taking of depositions by the staff of a Senate\ncommittee. It thus appears that the Committee\xe2\x80\x99s resolution purporting to autho\xc2\xad\nrize the taking of depositions by its staff was entirely without legal basis in statute\nor Senate rule.\n1 We note that if the C om m ittee\xe2\x80\x99s rules provided for the taking of depositions of Executive Branch officials by\nC ommittee staff, such a provision might well establish customary practice of the Committee, it would not, however,\nestablish a source of power for the adoption of the provision itself.\n\n504\n\n\x0cIII. The Flannery Memorandum\nOn July 12, 1982, John P. Flannery II, Special Counsel to the Labor Commit\xc2\xad\ntee, and George Pritts, the Committee\xe2\x80\x99s Chief Counsel, addressed to the mem\xc2\xad\nbers of the Committee a memorandum concerning the resolution which was\neventually adopted on July 22. The bulk of that memorandum discusses the\nnature and advantages of deposing witnesses prior to holding any public hear\xc2\xad\nings. The memorandum informed the members as follows regarding the au\xc2\xad\nthority for the staff\xe2\x80\x99s taking depositions:\nAs you may not be familiar with Senate staff depositions, a few\nexplanatory remarks about their history and use follow. Senate\nstaff depositions, first authorized in 1928,* and expressly\nprovided for by statute,* * have been used in recent Congressional\ninvestigations.*** They are similar to the depositions of a nonparty witness in a civil case.****\n* S. Res. 118, 70th Congress, 1st Session.\n** Title 28, United States Code, Section 1364(a).\n*** See H. Res. 803, 93rd Congress (House Judiciary Commit\xc2\xad\ntee, during impeachment investigation for Richard Nixon); H.\nRes. 222, 95th Congress (House Select Committee on Assassina\xc2\xad\ntions); S. Res. 495, 96th Congress, 2nd Session (Senate Billy\nC arter inquiry); S. Res. 4, 95th C ongress, 1st Session\n\xc2\xa7\xc2\xa7 104(c)(1)(G) (Aging Committee), 105(c)(1)(G) (Indian Af\xc2\xad\nfairs), 106(b)(7) (Nutrition); S. Res. 400, 94th Congress, 2nd\nSession, \xc2\xa7 5(a)(7) (Intelligence).\n**** See Rule 30 of the Federal Rules of Civil Procedure.\nThis statement of authority is without any foundation in the law for the\nfollowing reasons:\n(A) S. Res. 118 was passed in 1928 and provides:\nResolved, That the President of the Senate be, and he hereby is,\nauthorized, on the request of the chairman of any of the commit\xc2\xad\ntees of the Senate, to issue commissions to take testimony within\nthe United States or elsewhere.\n69 Cong. Rec. 1926 (1928). This resolution provides authorization only for the\nPresident of the Senate (i.e., the Vice President of the United States) to commis\xc2\xad\nsion the taking of testimony; it provides no authority for the staff of committees to\ntake testimony simply on the strength of a committee resolution. Further, it\nprovides no basis for committee staff to take depositions of Executive Branch\nofficials.2\n2 We note that S Res 118 may not represent a current source of authonty for committees of the Senate to take\n\xe2\x80\x9c testimony\xe2\x80\x9d outside Washington The Resolution does not appear in the Senate Manual, and there is nothing in the\nFlannery memorandum suggesting that that Resolution is not in a state of desuetude. In addition, assuming\narguendo that the Resolution could be read to authorize the taking of testimony from Executive Branch officials, it\nimplicitly recognizes the sensitivity of Senate committee requests for testimony of Executive Branch officials by\nproviding that the Vice President, a member of the Executive Branch, must authorize all such requests\n\n505\n\n\x0c(B ) Section 1364(a) of Title 28, U.S. Code, simply does not stand from the\nproposition cited. As stated above, \xc2\xa7 1364 on its face does not apply to commit\xc2\xad\ntee subpoenas or orders directed to Executive Branch officers.\n(C) The five prior House and Senate resolutions authorizing the taking of\ndepositions by the staff of various committees in no way provides authority for\nthe taking of depositions by the staff of the Senate Committee on Labor and\nHuman Resources because\xe2\x80\x94among other reasons\xe2\x80\x94 none of the cited resolutions\nauthorized action by this Committee or its staff, nor are they phrased in language\nthat is even arguably applicable to Senate committees generally. On the contrary,\nthe recent historical practice established by these five resolutions is that deposi\xc2\xad\ntions may be taken by the staff of Senate committees only when expressly\nauthorized by a resolution of the full Senate in connection with a particular\ninvestigation, not by a simple resolution adopted by a Senate committee sua\nsponte.\n(D ) Finally, Rule 30 of the Federal Rules of Civil Procedure lends no support to\n\nthe committee resolution at issue here, since that rule applies only \xe2\x80\x9c after\ncommencement of [a civil] action\xe2\x80\x9d in the courts of the United States. Needless to\nsay, it provides no authority, express or implied, for depositions to be taken by\nSenate committee staff.\n\nIV. Conclusion\nOn the basis of the references relied upon in the Committee material available\nto us, we find no authority for the compelled deposition of Messrs. Mullen,\nAdamski, and Fielding. In addition, our research into the Standing Rules of the\nSenate has uncovered no authority that would support the deposition power\nasserted in the Committee Resolution. Finally, the more recent precedents relied\nupon in the Committee material suggest quite strongly that older precedents\nwhich may be supportive of such standing committee power, even if they exist,\nhave been abandoned in favor of passage of Senate resolutions authorizing the\ntaking of depositions by committee staff in specific circumstances. At least until\nsome more persuasive precedents are proffered, however, we are firmly con\xc2\xad\nvinced that there is no support in law or Senate rules for the staff of the Senate\nCommittee on Labor and Human Resources to take the depositions of Executive\nBranch officials.3\nT\n\nheodore\n\nB. O\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n3 Although this opinion is confined to the facts presented, we would emphasize that we have found no plenary\nauthority for the taking o f depositions of even private persons by the staff of Senate committees absent a specific\nresolution passed by the Senate authonzing such action W hether an established practice as regards deposing of\nprivate persons would, w ithout more, legitimate the deposing of Executive Branch officials is doubtful, given the\nco-equal status o f the Legislative and Executive Branches under our Constitution.\n\n506\n\n\x0c'