b'December 21, 1979\n\n79-87\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nFederal Aviation Act\xe2\x80\x94Foreign Air Transportation\xe2\x80\x94\nScope of Presidential Authority on Review of Civil\nAeronautic Board\xe2\x80\x99s Approval of Airline Mergers\n(49 U.S.C. \xc2\xa7 1461)\n\nThis is in response to a request for an opinion on the President\xe2\x80\x99s\nauthority under \xc2\xa7 801 of the Federal Aviation Act, as amended by the\nAirline Deregulation Act, 49 U.S.C. \xc2\xa7 1461, to review the order of the\nCivil Aeronautics Board (the Board) in the Pan American-Acquisition o f\nControl of, and Merger with, National Case (Docket 33283). The Board\napproved a merger between Pan American World Airways (\xe2\x80\x9c Pan Am\xe2\x80\x9d )\nand National Airlines (\xe2\x80\x9c National\xe2\x80\x9d ), as well as the transfer to Pan Am of\nNational\xe2\x80\x99s certificates, including National\xe2\x80\x99s certificates to engage in\nforeign air transportation. The only foreign route excepted from the ap\xc2\xad\nproval was National\xe2\x80\x99s Miami-to-London route. You have asked us what\nthe President\xe2\x80\x99s legal options are in reviewing the Board\xe2\x80\x99s order and more\nspecifically whether the President has the authority to award the Miamito-London route to Pan Am.\nSeveral conclusions emerge from our consideration of this matter. First,\nthe President does not have the authority under the statute to order the\nBoard affirmatively to award the Miami-to-London route to Pan Am.\nSecond, because the Board\xe2\x80\x99s deletion of the Miami-to-London route ap\xc2\xad\npears to be inextricably related to its approval of the merger and of the\ntransfer o f National\xe2\x80\x99s certificates, the President cannot reinstate the route\nby disapproving only the deletion of the route. Moreover, even if the\nPresident could reinstate the Miami-to-London route in the certificates\ntransferred to Pan Am by disapproving the deletion, it is possible that the\nBoard may have the authority thereafter to reconsider its order and deny\nPan Am\xe2\x80\x99s merger application as well as the transfer of National\xe2\x80\x99s certifi\xc2\xad\ncates to Pan Am. Third, we have also concluded that the Department of\nState has articulated a foreign relations concern on which the President\n470\n\n\x0cmay rely to justify a disapproval of the deletion of the Miami-to-London\nroute under \xc2\xa7 801, should he decide to rely upon it. We have pointed out,\nhowever, that the President can satisfy the Department of State\xe2\x80\x99s articu\xc2\xad\nlated foreign relations concern if he takes no action on the Board\xe2\x80\x99s merger\norder and reviews instead the Board\xe2\x80\x99s forthcoming selection of a carrier to\nservice that route in the Miami-London Case, which is now pending before\nthe Board.\nI.\nUnder \xc2\xa7 801 of the Federal Aviation Act, as amended by the Airline\nDeregulation Act of 1978, 49 U.S.C. \xc2\xa7 1461,\' the Board\xe2\x80\x99s issuance, denial,\ntransfer, amendment, cancellation, suspension, or revocation of a cer\xc2\xad\ntificate to engage in foreign air transportation and the terms, conditions\nand limitations contained in such certificates must be presented to the\nPresident for review. The President has the right to disapprove any such\nBoard action \xe2\x80\x9c solely upon the basis of foreign relations or national\ndefense considerations which are within the President\xe2\x80\x99s jurisdiction, but\nnot upon the basis of economic or carrier selection considerations,\xe2\x80\x9d 49\nU.S.C. \xc2\xa7 1461(a).2 The President\xe2\x80\x99s disapproval renders the Board\xe2\x80\x99s action\nnull and void.\nAt the outset, it is necessary to identify the Board\xe2\x80\x99s actions in this case\nwhich are subject to Presidential review under \xc2\xa7 801. In its order, the\nBoard approved3 the application of Pan American World Airways, Inc.,\nfor acquisition of control of and merger with National Airlines, Inc., and\nthe transfer to Pan American of the certificate of public convenience and\nnecessity issued to National for its international routes with the exception\n\n\'The provision o f \xc2\xa7 801, as codified, reads as follows:\n(a) The issuance, denial, transfer, am endm ent, cancellation, suspension, or revoca\xc2\xad\ntion of, and the terms, conditions, and limitations contained in any certificate authoriz\xc2\xad\ning an air carrier to engage in foreign air transportation, or any permit issuable to any\nforeign air carrier under 1372 o f this title, shall be presented to the President for review.\nT he President shall have the right to disapprove any such Board action concerning such\ncertificates or permits solely upon the basis o f foreign relations or national defense con\xc2\xad\nsiderations which are within the President\xe2\x80\x99s jurisdiction, but not upon the basis of\neconomic or carrier selection considerations. Any such disapproval shall be issued in a\npublic docum ent, setting forth the reasons for the disapproval to the extent national\nsecurity permits, within sixty days after submission o f the B oard\xe2\x80\x99s action to the Presi\xc2\xad\ndent. Any such Board action so disapproved shall be null and void. Any such Board ac\xc2\xad\ntion not disapproved within the foregoing time limits shall take effect as action o f the\nBoard, not the President, and as such shall be subject to judicial review as provided in\nsection 1486 o f this title.\n2The question whether the President has grounds to disapprove the B oard\xe2\x80\x99s order is dis\xc2\xad\ncussed in the next section o f this opinion.\n\xe2\x80\x99The Board approved the merger and transfer subject to the conditions that Pan Am accept\ncertain labor-protective conditions and agree to operate the M iam i-to-London route until\nanother carrier is selected by the Board. O n O ctober 1, 1979, the Board instituted pro\xc2\xad\nceedings to hear applications for the M iam i-to-London route. Miami-London Case\n(Docket 36764).\n\n471\n\n\x0cof National\xe2\x80\x99s Miami-to-London authority. Because National\xe2\x80\x99s certificates\nauthorize it to engage in foreign air transportation, the transfer of those\ncertificates is clearly subject to Presidential review. Under the case law, the\nmerger approval, because it is inextricably linked to the transfer of cer\xc2\xad\ntificates, has also been viewed as subject to Presidential review under\n\xc2\xa7 801(a). Trans World Airlines v. Civil Aeronautics Board, 184 F. (2d) 66,\n71 (2d Cir. 1950). It could also be reasonably argued that the deletion of\nthe Miami-to-London route from the certificate for Route 168 may be\nviewed as an \xe2\x80\x9c amendment\xe2\x80\x9d to the transferred certificate and, as such,\nalso subject to Presidential review as a separate Board action.4 However,\nthe Board\xe2\x80\x99s deletion of the route appears to be inextricably related to its\napproval of the merger and of the transfer of the certificates.5 For that\nreason, we believe that the Board\xe2\x80\x99s actions should be viewed as a single\nBoard action under \xc2\xa7 801, which the President may either disapprove or\napprove by expressing no disapproval.\nIf the President were to adopt the view that the Board\xe2\x80\x99s actions are\nreviewable separately under \xc2\xa7 801, it is unlikely that the President could\neffectively reinstate the deleted route by disapproving the \xe2\x80\x9c amendment\xe2\x80\x9d\nand expressing no disapproval of the transfer and the merger. From the\norder, it is apparent that the Board regarded its approval of the merger\nand transfer as conditioned on the deletion of the Miami-to-London\nroute.6 The Board may argue that without the fulfillment of that conditon\nthere is no Board approval of the transfer and merger and therefore no\nreviewable Board actions concerning the transfer and merger.\nAlternatively, the Board could maintain that under \xc2\xa7 801(a) the transfer\nand merger not disapproved by the President are not actions of the Presi\xc2\xad\ndent but rather Board actions and as such may be reconsidered by the\nBoard either sua sponte1 or upon petition for reconsideration by a party to\n\n\xe2\x80\x98The Board states in its opinion that it is deleting the M iam i-to-London route. As a fo o t\xc2\xad\nnote to that statem ent, it m entions that the certificate for Route 168 had been amended\nseveral times before. M ajority O pinion at 52, n. 135.\n\xe2\x80\x99The Board also apparently viewed its deletion o f the M iam i-to-London route from Na\xc2\xad\ntional\xe2\x80\x99s certificates and its approval o f the merger and o f the transfer of N ational\xe2\x80\x99s cer\xc2\xad\ntificates as inextricably related. In its order in the Miami-London Case (Docket 36764), the\nBoard states:\nAbsent the condition that M iam i-London authority not be transferred, we would not ap\xc2\xad\nprove the Pan Am erican-N ational merger. [Order at 1.]\nO ur conclusion that the B oard\xe2\x80\x99s order constitutes a single inseverable Board action for the\npurpose o f Presidential review under \xc2\xa7 801 is based on the interrelationship among the\nmerger, transfer, and am endm ent decisions and not on the basis that all three decisions were\nincluded in one order. W e do not foreclose the possibility that there may be instances in\nwhich the Board may include in one order actions that could be considered severable and thus\nseparately subject to Presidential disapproval.\n\xe2\x80\x98The Board m entions twice in its opinion that its approval o f the transfer is conditioned on\nthe deletion o f the M iam i-to-London route. M ajority Opinion 7, 64. See also its order in the\nMiami-London Case at 1. (Docket 36764.)\n\xe2\x80\x99Except as otherwise provided in this chapter the Secretary o f T ransportation or the Board\nis empowered to suspect or modify their orders upon such notice and in such m anner as they\nshall deem proper. [49 U .S.C . \xc2\xa7 1485(d).]\n\n472\n\n\x0cthe proceeding.\' As support for such an argument, the Board could point\nto \xc2\xa7 801(a)\xe2\x80\x99s provision that \xe2\x80\x9c [a]ny such Board action not disapproved\nwithin the foregoing time limits shall take effect as action of the Board,\nnot the President, and as such shall be subject to judicial review as pro\xc2\xad\nvided in section 1006 of this A ct.\xe2\x80\x9d If \xc2\xa7 801(a) was intended to treat Board\nactions not disapproved by the President as actions of the Board for all\npurposes, an argument that the transfer and merger actions may be recon\xc2\xad\nsidered would have some merit. From the face of the statute,\xe2\x80\x99 however, it\nis apparent that the purpose of treating actions not disapproved by the\nPresident as Board actions was to overcome the reluctance of the courts to\nreview Presidential decisions under the former \xc2\xa7 801(a).10 Thus, it could\nbe argued that Board actions reviewed and not disapproved by the Presi\xc2\xad\ndent are treated as Board actions under \xc2\xa7 801(a) only for the purpose of\nensuring judicial review and that \xc2\xa7 801(a) does not permit the Board under\nthe guise of reconsideration to review Presidential decisions." Given these\nuncertainties and the Board\xe2\x80\x99s threat to disapprove the merger if the Presi\xc2\xad\ndent attempts to reinstate the Miami-to-London route, we doubt that,\neven if the Board\xe2\x80\x99s actions were viewed separately, the President would\nsucceed in reinstating the Miami-to-London route.\nNor do we believe that the President could reinstate the route by order\xc2\xad\ning the Board to do so. The argument suggesting this course of action\nrelies upon case law construing \xc2\xa7 801(a) prior to its amendment by the\nAirline Deregulation Act. For this reason, the argument has no merit. Sec\xc2\xad\ntion 801(a) prior to amendment12 required that the transfer of certificates\n\n\xe2\x80\x98Any party t o a proceeding, unless an order o r rule of the Board specifically provides\notherwise, may file a petition for reconsideration, rehearing or reargument o f (1) final orders\nissued by the Board. [14 CFR \xc2\xa7 302.37.]\n\xe2\x80\x99The legislative history o f the Airline Deregulation Act does not discuss the purpose o f\ntreating action not disapproved by the President as Board action.\n10Chicago & Southern A ir Lines, Inc. v. Waterman Steamship Corp., 333 U.S. 103 (1948)\n(absent clear congressional intention, judicial review should be unavailable).\n" I f the Board were perm itted to reconsider the decision to transfer and it disapproved the\ntransfer, its disapproval would have to be subm itted to the President under \xc2\xa7 801(a) for\nreview. Trans World Airlines v. Civil Aeronautics Board, 184 F. (2d) 666, 70-71 (2d Cir.\n1930). The President could then disapprove the B oard\xe2\x80\x99s disapproval, and the B oard\xe2\x80\x99s disap\xc2\xad\nproval would under \xc2\xa7 801(a) become null and void. It is not clear what would be the status at\nthat point o f Pan A m \xe2\x80\x99s application for merger and transfer, but, since the Board\xe2\x80\x99s action\nwould be a nullity, Pan A m \xe2\x80\x99s application would probably be considered as pending before\nthe Board and the whole process would begin again.\n\xe2\x80\x99\xe2\x80\x99Section 801(a), prior to am endm ent by the Airline Deregulation Act, provided:\nThe issuance, denial, transfer, am endm ent, cancellation, suspension, revocation of,\nand the terms, conditions, and limitations contained in, any certificate authorizing an\nair carrier to engage in overseas or foreign air transportation, or air transportation be\xc2\xad\ntween places in the same Territory or possession, or any permit issuable to any foreign\nair carrier under section 1372 o f this title, shall be subject to the approval o f the Presi\xc2\xad\ndent. Copies o f all applications in respect o f such certificates and permits shall be\ntransm itted to the President by the Board before hearing thereon, and all decisions\nthereon by the Board shall be subm itted to the President before application thereof. (72\nStat. 782 (1958).)\n\n473\n\n\x0cto engage in foreign air transportation be subject to the approval of the\nPresident. In Chicago & Southern A ir Lines, Inc. v. Waterman Steamship\nCorp., 333 U.S. 103 (1948), the Supreme Court interpreted this power of\nreview very broadly:\nNor is the President\xe2\x80\x99s control o f the ultimate decision a mere\nright o f veto. It is not alone issuance of such authorizations that\n\nare subject to his approval, but denial, transfer, amendment,\ncancellation, or suspension as well. And likewise subject to his\napproval are the terms, conditions and limitations of the order.\n49 U.S.C. \xc2\xa7 601. Thus, Presidential control is not limited to a\nnegative but is a positive detailed control over the B oard\xe2\x80\x99s deci\xc2\xad\nsions unparalleled in the history o f American administrative\nbodies. [Id. at 109. (Emphasis added.)]\n\nRelying on this interpretation of former \xc2\xa7 801, Presidents have ordered\nthe Board to rewrite its orders to select carriers and otherwise to revise its\norders to make them acceptable to the President.\xe2\x80\x9d\nSection 801(a), as amended by the Airline Deregulation Act, still re\xc2\xad\nquires that the issuance, denial, transfer, amendment, cancellation or\nsuspension be presented to the President for his review. That review, how\xc2\xad\never, has now been circumscribed. The statute makes clear that the Presi\xc2\xad\ndent is limited to disapproving Board actions and, therefore, unlike the\nformer \xc2\xa7 801(a), he is given a \xe2\x80\x9c mere right of veto.\xe2\x80\x9d Id. at 109. This limita\xc2\xad\ntion does not preclude the President from exercising his veto in such a way\nthat he indirectly retains some control over the Board\xe2\x80\x99s decision. For in\xc2\xad\nstance, the President may disapprove the Board\xe2\x80\x99s entire action in this case\nand make it clear that he will continue to disapprove a merger between\nPan Am and National unless the Miami-to-London route is transferred to\nPan Am. C f , Trans Alaska Pipeline Rate Cases, 436 U.S. 631, 652-54\n(1978).14 Of course, the Board then has the option of disapproving the\nmerger and transfer entirely, but it should be remembered that the Board\xe2\x80\x99s\ndisapproval is subject to Presidential review, and may be disapproved. To\nbreak the stalemate, the Board may choose to submit an order acceptable\nto the President, rather than submit another disapproval of the merger to\nthe President for his review.\nII.\n\nAs mentioned above, the President may disapprove a Board action\nunder \xc2\xa7 801(a) \xe2\x80\x9c solely upon the basis of foreign relations or national\ndefense considerations which are within the President\xe2\x80\x99s jurisdiction, but\nnot upon the basis of economic or carrier selection grounds.\xe2\x80\x9d 49 U.S.C.\n\n"See, e.g.. President C arter\xe2\x80\x99s action in the Transatlantic Route Proceeding (Docket\n25908).\nMIn Trans Alaska, the Supreme C ourt held that the Interstate Commerce Commission,\nalthough it had no express power to prescribe interim rates, could, in suspending a rate, in\xc2\xad\ndicate the maximum interim tariff which it would not suspend.\n\n474\n\n\x0c\xc2\xa7 1461(a). If read narrowly, \xc2\xa7 801(a) would permit the President to disap\xc2\xad\nprove on foreign relations or national defense grounds only when those\ngrounds did not include economic or carrier selection considerations.\nUnder this interpretation, the President would be precluded from disap\xc2\xad\nproving the Board\xe2\x80\x99s selection o f a particular carrier even if such selection\nwould have a significant adverse effect on foreign relations. We believe\nthat such an interpretation is not consistent with the purpose o f the\nstatute. In explaining the purpose o f the amendments to \xc2\xa7 801, the House\nReport states:\nSection 801 o f the Federal Aviation Act does not impose any\nspecific standards for the President to follow in reviewing deci\xc2\xad\nsions o f the CAB on international air routes. From time to time\nquestions have arisen as to whether this section permits the Presi\xc2\xad\ndent to substitute his judgm ent fo r that o f the CAB as to which\nroutes will best serve the interests o f the traveling public. The\ncommittee believes that this type o f judgm ent should be made by\nthe CAB which is an arm o f Congress and that the President\nshould only disapprove CAB decisions when the decision would\ncreate difficulties in our foreign relations or national security.\nAccordingly, H .R . 12611 provides that the President may disap\xc2\xad\nprove CAB international route decisions only on the basis o f\nforeign relations or national defense considerations and that the\nPresident may not disapprove CAB decisions on economic\ngrounds or carrier selection grounds. [H. Rept. 95-1211, 95th\nCong., 2d sess. at 19 (1978). (Emphasis added.)]\nFrom the foregoing passage, it is apparent that Congress limited the\ngrounds upon which the President could disapprove Board actions in\norder to preclude the President from second-guessing the B oard\xe2\x80\x99s decision\nas to what action would best serve the interests o f the traveling public. The\nlegislative history reveals no intention to confine the scope o f the Presi\xc2\xad\ndent\xe2\x80\x99s authority to disapprove Board action on foreign relation or na\xc2\xad\ntional security grounds to situations in which these considerations did not\nencompass economic or carrier selection issues. To infer such an intention\nwould run counter to the established principle that when the President acts\nunder a legislative grant in the area o f foreign relations or national secu\xc2\xad\nrity, his powers should be construed broadly. United States v. CurtissWright Corp., 299 U.S. 304, 318-22 (1936). It is apparent that a require\xc2\xad\nment that the President\xe2\x80\x99s power to act arise only where his foreign affairs\nconcerns have no economic or carrier selection aspects would significantly\nrestrict the President\xe2\x80\x99s prerogative to act. Those knowledgeable about the\nissues that ordinarily arise in the review o f these types o f CAB decisions\nwould agree that most sensitive international air transportation decisions\nhave aspects both o f foreign relations and economic or carrier selection\nconsiderations. In the absence o f a clear expression from Congress that it\nintended to restrict the President in this way, we see no basis for so\nlimiting his authority.\n475\n\n\x0cThe Departm ent o f State, although noting it had no objection to the\nBoard\xe2\x80\x99s order, has indicated in its letter to the Office o f Management and\nBudget that withholding the M iami-to-London route from Pan Am may\ncreate difficulties with Great Britian. According to the Departm ent o f\nState, Great Britain has indicated that it will not permit any American car\xc2\xad\nriers not presently serving Heathrow Airport to start service at Heathrow\nand that such carriers must fly into Gatwick A irport. The Department of\nState believes that because Pan Am presently serves Heathrow, Great\nBritain would permit Pan Am to fly from Miami into Heathrow Airport.\nIf a replacement carrier is selected, the British may deny such carrier the\nfacilities at Heathrow and insist that it fly into Gatwick instead. A dispute\nmay then arise between the United States and Great Britain as to the rights\no f American carriers under Bermuda II. The Department o f State believes\nthat \xe2\x80\x9c the issue could become extremely abrasive, with possible adverse\nconsequences for our efforts to gain broad liberalization o f the present\nU.S.-UK Civil Aviation agreem ent.\xe2\x80\x9d Letter dated November 19, 1979,\nfrom Julian L. Katz, Assistant Secretary for Economic and Business A f\xc2\xad\nfairs, Departm ent o f State, to James T. McIntyre, Jr., Director, Office o f\nManagement and Budget.\nThe concern that a dispute may arise between Great Britain and the\nUnited States if a replacement carrier for the M iam i-to-London route can\xc2\xad\nnot fly into Heathrow A irport appears on its face to provide a basis for an\nassertion by the President that withholding that route from Pan Am will\ncreate difficulties in foreign relations. Because o f the deference the courts\nhave traditionally accorded to the President when he acts as the N ation\xe2\x80\x99s\norgan o f foreign policy, his determ ination would most likely be accepted\non its face by the courts. United States v. Curtiss- Wright Corp., 299 U.S.\nat 319-21; Chicago & Southern A ir Lines, Inc. v. Waterman Steamship\nCorp., 333 U.S. at 111.\nNevertheless, we believe that, in the light o f \xc2\xa7 801(a)\xe2\x80\x99s requirement that\nthe President state in a public docum ent the reasons for disapproving a\nBoard action, the President should be aware o f a weakness we perceive in\nthis foreign relations argument. To our knowledge Pan Am is not the only\nAmerican carrier that presently serves Heathrow. Even if the British insist\nthat no new carriers may serve Heathrow, a dispute may not arise if the\nreplacement carrier selected by the Board also presently serves Heathrow.\nThus, whether a foreign relation problem may arise will be known only\nafter the Board has selected a carrier for that ro u te.15 If the Board selects a\ncarrier that does not presently serve Heathrow, the President may disap\xc2\xad\nprove that Board action on the ground that he does not want to create a\n\n\' \xe2\x80\x99The Board has commenced proceedings to select a replacement carrier for the Miami-toL ondon route. Miami-London Case (Docket 36764). The B oard\xe2\x80\x99s order approving the\nmerger between Pan Am and National requires Pan Am to operate the route until a carrier is\nfinally selected.\n\n476\n\n\x0cconflict with the British by demanding that the replacement carrier be per\xc2\xad\nmitted to fly into Heathrow. His reasons would give a signal to the Board\nto select a carrier that presently serves Heathrow and the President\xe2\x80\x99s artic\xc2\xad\nulated foreign relations concerns could, presumably, ultimately be\nsatisfied.\nConclusion\nIn our view, the President does not have the power under \xc2\xa7 801(a) to\nreinstate the M iami-to-London route or to order the Board to do so.\nBecause the Board\xe2\x80\x99s merger, transfer, and amendment decisions are inex\xc2\xad\ntricably related, the President may not disapprove only the amendm ent.\nThe President does have the power to disapprove the entire Board action\nand may justify disapproval on the ground that withholding the Miami-toLondon route from Pan Am will create difficulties in our relations with\nGreat B ritain.16\nLarry A . H a m m o n d\n\nDeputy Assistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c Your Office asked us also to comm ent briefly on some other proposed reasons for disap\xc2\xad\nproving the Board\xe2\x80\x99s action. The first suggestion is that the Board\xe2\x80\x99s concern that Pan A m \xe2\x80\x99s\noperation o f the M iam i-to-London route would be anticompetitive will be groundless when\nBermuda II is liberalized to permit more American carriers to fly into Great Britain. In our\nopinion, this reason merely criticizes the Board\xe2\x80\x99s economic analysis and does not provide a\nground for asserting that the deletion o f the route will create difficulties in foreign relations\nor national security. A nother suggested ground for disapproval is that the President has a\nforeign policy o f maintaining a strong national carrier and that awarding the Miami-toLondon route to Pan Am will accomplish that policy. Again we do not perceive the nexus\nbetween maintaining Pan Am as a strong carrier and \xc2\xa7 801\xe2\x80\x99s standard for disapproval\xe2\x80\x94\nwhether the B oard\xe2\x80\x99s action will create difficulties in foreign relations o r national security.\nFinally, it has been suggested as a national defense consideration that Pan Am must be m ain\xc2\xad\ntained as a financially viable carrier so that it is available to airlift American citizens out of\ntroubled areas. We are not sufficiently knowledgeable about the state o f the international air\ntravel industry, or about the practical need to preserve Pan Am as a \xe2\x80\x9c viable\xe2\x80\x9d entity, to com \xc2\xad\nment on this argument.\n\n477\n\n\x0c'


b"Jurisdiction of the Office of Special Counsel, Merit Systems\nProtection Board, Under 5 U.S.C. \xc2\xa7\xc2\xa7 1206(b)(2) and (7)\nT h e Office o f Special Counsel, M erit System s Protection Board, has no authority under 5\nU.S.C. \xc2\xa7\xc2\xa7 1206(b)(2) and (7), to require another agency to subm it a report concerning\nallegations o f m isconduct not m ade by a federal em ployee o r an applicant for federal\nem ploym ent.\n\nMarch 13, 1981\nM EM ORANDUM OPIN IO N FO R T H E G E N E R A L COUNSEL,\nN U C LEA R R EG U LA TO RY COMMISSION\nThis responds to your request for an opinion concerning the author\xc2\xad\nity of the Office of Special Counsel (OSC), M erit Systems Protection\nBoard, under 5 U.S.C. \xc2\xa7\xc2\xa7 1206(b)(2) and (7). In particular, you ask\nwhether the Office of Special Counsel is empowered under those provi\xc2\xad\nsions to require the Nuclear Regulatory Commission (NRC) to submit a\nreport to it on a joint complaint by a private organization and a private\nindividual alleging NRC mismanagement and gross waste at a nuclear\npower facility in Ohio.\nIt will be helpful to mention, as background, certain statutory respon\xc2\xad\nsibilities of OSC before we turn to 5 U.S.C. \xc2\xa7\xc2\xa7 1206(b)(2) and (7).\nSection 1206(a)(1) authorizes it to receive and investigate allegations of\nthe occurrence of any of the prohibited personnel practices listed\nin 5 U.S.C. \xc2\xa7 2302(b), one of which is a superior\xe2\x80\x99s taking or failing to\ntake a personnel action against a subordinate employee or an applicant\nfor employment as a reprisal for \xe2\x80\x9cwhistleblowing.\xe2\x80\x9d See 5 U.S.C.\n\xc2\xa7 2302(b)(8).\nSection 1206(b)(1) places a restraint on OSC for the benefit of\nwhistleblowers. It provides as follows in pertinent part:\n(b)(1) In any case involving\xe2\x80\x94\n*\n\n*\n\n*\n\n*\n\n*\n\n(B) a disclosure by an employee or applicant for em\xc2\xad\nployment to the Special Counsel of the Merit Systems\nProtection Board . . . of information which the employee\nor applicant reasonably believes evidences\xe2\x80\x94\n(i) a violation of any law, rule, or regulation; or\n77\n\n\x0c(ii)\nmismanagement, a gross waste of funds, an abuse\nof authority, o r a substantial and specific danger to\npublic health or safety;\nthe identity of the employee or applicant may not be disclosed\nw ithout the consent of the employee or applicant during\n[certain investigations] unless the Special Counsel determines\nthat the disclosure . . . is necessary . . .\nSection 1206(b)(2) and the pertinent part of \xc2\xa7 1206(b)(7) read as\nfollows:\n(2) W henever the Special Counsel receives information of\nthe type described in paragraph (1) of this subsection, the\nSpecial Counsel shall promptly transmit such information\nto the appropriate agency head.\n(7) W henever the Special Counsel transmits any informa\xc2\xad\ntion to the head o f the agency under paragraph (2) of this\nsubsection . . . the head of the agency shall, within a\nreasonable time after the information was transmitted,\ninform the Special Counsel, in writing, of what action has\nbeen or is to be taken and when such action will be\ncompleted . . . .\nIt appears that the occurrence which gave rise to your request for an\nopinion was O SC\xe2\x80\x99s transmittal to NRC \xe2\x80\x9cpursuant to the provi\xc2\xad\nsions o f 5 U.S.C. \xc2\xa7 1206(b)(2)\xe2\x80\x9d o f a letter stating that a private citizen\nand a private organization had charged certain NRC employees with\nm isconduct of a kind specified in \xc2\xa7 1206(b)(l)(B)(ii) at a certain nuclear\npow er facility. The letter requested NRC to submit a report \xe2\x80\x9cpur\xc2\xad\nsuant to 5 U.S.C. \xc2\xa7 1206(b)(7).\xe2\x80\x9d OSC made the request in accordance\nw ith its understanding th at the words of \xc2\xa7 1206(b)(2), \xe2\x80\x9cinformation of\nthe type described in paragraph (1) o f this subsection\xe2\x80\x9d (emphasis added),\nrequire only its antecedent receipt o f evidence of an offense listed in\n\xc2\xa7 1206(b)(1) and do not require also that the evidence come from a\nfederal source. In your letter to this Office, you take the position that\nO SC does not have authority to obtain the report from N RC because\nthe antecedent allegations of misconduct were not made by a federal\nemployee o r applicant for federal employment. For the following rea\xc2\xad\nsons, w e concur in your position.\nA n examination of the legislative history o f the Civil Service Reform\nA ct o f 1978, which created OSC, has revealed nothing to suggest that\nCongress had in mind the construction of \xc2\xa7 1206(b)(2) that OSC fol\xc2\xad\nlows. T o the contrary, Senator Patrick J. Leahy, the sponsor of an\namendm ent on the floor o f the Senate that, among other things, intro\xc2\xad\nduced the provisions of what are now \xc2\xa7\xc2\xa7 1206(b)(2) and (7) into the\nA ct, placed a contrary intent on record. Upon introducing the amend\xc2\xad\nment, which the Senate approved without objection, he submitted a\n78\n\n\x0csupporting statement signed by him and 16 colleagues that contained\nthe following:\nWhen the Senate considers S. 2640, the Civil Service\nReform Act, we intend to offer an amendment to\nstrengthen the whistleblower protections. This proposal\nwill assure that the charges raised by whistleblowers\xe2\x80\x94\nthose federal employees who disclose illegality, waste,\nabuse, or dangers to public health or safety\xe2\x80\x94are fully\ninvestigated. We ask you to join with us in establishing a\nmechanism for the handling of whistleblower complaints\nwhich will result in the systematic weeding out of\nwronged [sic] from the federal service.\n*\n*\n*\n*\n*\nAlthough employees are free, under the committee\xe2\x80\x99s bill,\nto publicly disclose impropriety, no dissent channel is\nestablished so that employees can seek internal resolution\nof allegations. O ur amendment seeks to assure that em \xc2\xad\nployees have a safe place to go outside their agency where\ntheir allegations will be taken seriously. We hope to en\xc2\xad\ncourage employees to give the government the first crack\nat cleaning its own house before igniting the glare of\npublicity to force correction. We do not want to limit the\nemployees' rights to speak out when they see wrongdoing;\nwe do want to assure them that the government has a\ncommitment to eliminating the wrongdoing.\n124 Cong. Rec. 27,570-71 (1978) (emphasis added).\nIt is fair to say that these passages, which were not challenged at the\ntime or later, manifested a clear understanding on the part o f Congress\nthat it was legislating only in relation to employees o f the government.\nThe passages therefore effectively dispose of OSC\xe2\x80\x99s claim o f jurisdic\xc2\xad\ntion under \xc2\xa7\xc2\xa7 1206(b)(2) and (7) in its letter to your agency.\nA close reading of \xc2\xa7 1206(b)(2) also militates against OSC\xe2\x80\x99s asserted\nauthority. That paragraph must by its terms be read together with the\nlanguage of \xc2\xa7 1206(b)(1)(B) that describes a type of \xe2\x80\x9cinformation.\xe2\x80\x9d T he\nlanguage is as follows: \xe2\x80\x9cinformation which the employee or applicant\nresonably believes evidences [a specified offense].\xe2\x80\x9d (emphasis added)\nThus there is actually no give in \xc2\xa7 1206(b)(2) to accommodate the\ninterpretation that it permits OSC to transmit information to an agency\nhead that has not been assessed by a federal whistleblower.\nIn sum, we are of the opinion that N R C is not required to furnish\nOSC the report it seeks.\nL\n\narry\n\nL . S im m s\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n79\n\n\x0c"


b'Authority of the Customs Service to Offer Rewards\nfor Information Concerning the Whereabouts of\nIndicted Drug Traffickers\nThe Customs Service is not authorized to offer financial rewards for original information on\nthe whereabouts in the United States of high-level, international drug traffickers who are\nunder indictment.\n\nJune 15, 1989\nM em orandum O pin io n\n\nfor th e\n\nA tto r n ey G en er a l\n\nThis responds to your request of June 12, 1989, for our analysis of\nwhether there exists authority for the Customs Service to create a pro\xc2\xad\ngram in which financial rewards of up to five million dollars will be\noffered for original information on the whereabouts in the United States\nof high-level, international drug traffickers who are under indictment.\nOur review indicates that, although several statutes expressly authorize\nthe payment of a reward to informants,1 they do not authorize the\nCustoms Service to offer the kind of reward proposed here. We also\nbelieve that the Customs Service may not use its general appropriations\nto make such payments.\nI. Background\nThe Customs Service proposes to initiate a program, code named\nOperation PALADIN. The purpose of the program would be to make\navailable sums of money to individuals who provide the Customs Service\noriginal information on the whereabouts in the United States of certain\nhigh level, international narcotic traffickers and money launderers who\nhave been indicted and are wanted for violation of laws enforced by the\nCustoms Service. The amount of the award would be determined by the\nimportance of the violator, with awards of up to five million dollars to be\n1 Several other statutes authorize various department heads to pay rewards in connection with offens\xc2\xad\nes under laws peculiarly identified with their departments E g , 18 U S.C \xc2\xa7 3056(c)(1)(D) (matters with\xc2\xad\nin the jurisdiction of the Secretary of the Treasury relating to the Secret Service), 14 U.S.C \xc2\xa7 644 (mat\xc2\xad\nters within the jurisdiction of the Coast Guard), 50 U S.C. \xc2\xa7\xc2\xa7 47a-47f (offenses involving nuclear materials\nand atomic weapons) A reward of up to $100,000 may be paid for information concerning presidential\nassassination, kidnapping or assault 18 U S C \xc2\xa7 1751(g)(Supp.).\n\n147\n\n\x0cavailable for information leading to the arrest of very high level fugitives\nin the United States.\nOperation PALADIN would be aimed also at heightening public aware\xc2\xad\nness of the identities of international drug kingpins. This would be\naccomplished by maximizing media exposure, including newspapers,\ntelevision, magazines and posters.\nII. Statutes Expressly Authorizing Rewards\n\nSeveral statutes authorize the payment of rewards for information\nleading to the arrest or capture of various law violators. None of these\nstatutes, however, authorizes the Customs Service to offer such pay\xc2\xad\nments. The only statutory authority relating to reward offers that\nexpressly includes the Customs Service is 19 U.S.C. \xc2\xa7 1619. That provi\xc2\xad\nsion, however, only authorizes payments to persons who seize items sub\xc2\xad\nject to seizure and forfeiture or who furnish information \xe2\x80\x9cconcerning ...\nany fraud upon the customs revenue, or ... [a] violation of the customs\nlaws or the navigation laws ... [which] leads to a recovery of ... any\nduties withheld, or ... [of] any fine, penalty, or forfeiture incurred.\xe2\x80\x9d2 19\nU.S.C. \xc2\xa7 1619. It is plain that this provision cannot be relied upon as\nauthority for Operation PALADIN.\nSimilarly, it is clear that the other statutes that authorize various gov\xc2\xad\nernment officials to offer rewards cannot be the basis for Operation PAL\xc2\xad\nADIN. For example, 18 U.S.C. \xc2\xa7 3059, which authorizes the payment of\nrewards for information leading to the capture of anyone charged with\nviolating a federal criminal law, is administered by the Attorney General,\nnot the Customs Service.3 The same is true of 28 U.S.C. \xc2\xa7 524(c), which\nestablishes the Department of Justice Assets Forfeiture Fund, which is\navailable to the Attorney General for payments for information relating to\n2 The reward \xe2\x80\x9cmay not exceed $250,000 for any case * 19 U S.C. \xc2\xa7 1619(c)\n3 18 U S.C \xc2\xa7 3059 provides:\n(a)(1) There is authorized to be appropriated, out of any money in the Treasury not other\xc2\xad\nwise appropriated, the sum of $25,000 as a reward or rewards for the capture of anyone who\nis charged with violation of criminal laws of the United States . . and an equal amount as a\nreward or rewards for information leading to the arrest of any such person, to be apportioned\nand expended in the discretion of, and upon such conditions as may be imposed by, the\nAttorney General of the United States. Not more than $25,000 shall be expended for infor\xc2\xad\nmation or capture of any one person.\n(b) The Attorney General each year may spend not more than $10,000 for services or informa\xc2\xad\ntion looking toward the apprehension of narcotic law violators who are fugitives from justice\n4 The Department of Justice Asset Forfeiture Fund is available to the Attorney General for the purpose\nof the \xe2\x80\x9cpayment of awards Tor information or assistance directly relating to violations of the criminal\ndrug laws of the United States,\xe2\x80\x9d 28 U S C. \xc2\xa7 524(c)(1)(B), and the \xe2\x80\x9cpayment of awards for information or\nassistance leading to a civil or criminal forfeiture under the Comprehensive Drug Abuse Prevention and\nControl Act of 1970 (21 U S.C. 800 el seq.\') or a criminal forfeiture under the Racketeer Influenced and\nCorrupt Organizations statute (18 U.S.C. 1961 el seq ), at the discretion of the Attorney General.\xe2\x80\x9d 28\nU.S.C. \xc2\xa7 524(c)(1)(C).\n\n148\n\n\x0cviolations of the drug laws.4 A third statute that authorizes the offer of\nrewards for information is chapter 204 of title 18, United States Code. The\nrewards provided for in this chapter, which concern only terrorist acts,5\nare also administered by the Attorney General.6 A fourth statute autho\xc2\xad\nrizing the offer of a reward for information is 22 U.S.C. \xc2\xa7 2708. This sec\xc2\xad\ntion, which is the only provision that is expressly international in scope,\nallows the Secretary of State, with the concurrence of the Attorney\nGeneral, to pay a reward to any individual who furnishes certain helpful\ninformation.7 Finally, 21 U.S.C. \xc2\xa7 886(a) requires that the reward offers it\nauthorizes regarding drug violations be administered by or receive the\napproval of the Attorney General.8\nIn short, we believe it is undisputable that none of the statutes express\xc2\xad\nly authorizing the payment of reward offers authorizes the Customs\nService to create a program such as Operation PALADIN.\n5 As used in chapter 204, the term \xe2\x80\x9cact of terrorism\xe2\x80\x9d is defined to mean any activity that*\n(A) involves a violent act or an act dangerous to human life that is a violation of the criminal\nlaws of the United States or of any State, or that would be a criminal violation if com\xc2\xad\nmitted within the jurisdiction of the United States or of any State; and\n(B) appears to be intended\xe2\x80\x94\n(i) to intimidate or coerce a civilian population,\n(ii) to influence the policy of a government by intimidation or coercion; or\n(in) to affect the conduct of a government by assassination or kidnaping.\n18 U.S C. \xc2\xa73077(1).\nG Pursuant to 18 U.S C \xc2\xa7 3071, the Attorney General may reward any individual who furnishes\ninformation\xe2\x80\x94\n(1) leading to the arrest or conviction, in any country, of any individual or individuals for\nthe commission of any act of terrorism against a United States person or United\nStates property, or\n(2) leading to the arrest or conviction, in any country, of any individual or individuals for\nconspiring or attempting to commit any act of terrorism against a United States per\xc2\xad\nson or United States property.\nIt should also be noted that rewards under this section may not exceed $500,000 and if greater than\n$100,000, must be made with the personal approval of the President or Attorney General. 18 U.S.C \xc2\xa7\n3072\n7 22 U.S.C. \xc2\xa7 2708(b)(1) provides that the Secretary of State, with the concurrence of the Attorney\nGeneral, may offer money for any information leading to\xe2\x80\x94\n(A) the arrest or conviction in any country of any individual for committing, primarily out\xc2\xad\nside the territorial jurisdiction of the United States, any narcotics-related offense if that\noffense involves or is a significant part of conduct that involves\xe2\x80\x94\n(i) a violation of United States drug laws which occurs primarily outside the territorial\njurisdiction of the United States and which is such that the individual would be a\nmajor violator of such laws; or\n(ii) the killing or kidnapping outside the territorial jurisdiction of the United States of\n(certain officers]; or\n(in) an attempt or conspiracy to do any of the acts described in clause (i) or (ii)t\nRewards made pursuant to section 2708 are not to exceed $500,000, with those over $100,000 requiring\nthe personal approval of the Secretary of State or the President. 22 U.S.C. \xc2\xa7 2708(c). Any award made\nmust be reported to Congress within 30 days. 22 U.S.C. \xc2\xa7 2708(h)\n8 21 U.S C \xc2\xa7 886(a) authorizes the Attorney General to pay any person \xe2\x80\x9cfrom funds appropnated for\nthe Drug Enforcement Administration, for information concerning a violation of this subchapter, such\nsum or sums of money as he may deem appropriate \xe2\x80\x9d The subchapter referenced in this section is sub\xc2\xad\nchapter I, \xe2\x80\x9cControl and Enforcement,\xe2\x80\x9d chapter 13 (\xe2\x80\x9cDrug Abuse Prevention and Control\xe2\x80\x9d) of title 21,\nUnited States Code.\n\n149\n\n\x0cIII. Inherent Authority to Use General Appropriations\n\nWe also conclude that the Customs Service is not authorized to fund\nfrom its general appropriations a program that would publicly and rou\xc2\xad\ntinely offer large awards for the provision of original information on the\nlocation in the United States of indicted drug traffickers. Customs may\nuse its general appropriation only for activities that it is authorized by\nstatute to undertake. Customs, however, does not have as part of its\nstatutory mission the general responsibility to investigate the location of\nindicted drug dealers; it is authorized under Reorganization Plan No. 2 of\n1973, 87 Stat. 1091 (1973), only to undertake activities related to the\nsearch and seizure of drugs at the borders of the United States.\nAccordingly, we do not believe there is a nexus between Customs\xe2\x80\x99 limit\xc2\xad\ned enforcement authority and PALADIN\xe2\x80\x99s general reward program suffi\xc2\xad\ncient to justify the use of Customs\xe2\x80\x99 appropriations for such a program.\nThis Office has long been of the view that Reorganization Plan No. 2\nseverely restricts the jurisdiction of the Customs Service in drug enforce\xc2\xad\nment matters. See Authority of the Customs Service to Seize or Forfeit\nProperty Pursuant to 21 U.S.C. \xc2\xa7 881, 12 Op. O.L.C. 267 (1988) (Customs\nService does not have independent forfeiture authority in light of the\nReorganization Plan\xe2\x80\x99s transfer of drug enforcement authority to the\nDepartment of Justice); see also Memorandum for the Deputy Attorney\nGeneral, from Douglas W. Kmiec, Deputy Assistant Attorney General,\nOffice of Legal Counsel (June 3, 1986) (19 U.S.C. \xc2\xa7\xc2\xa7 1589 and 1589(a) do\nnot provide the Customs Service with general narcotics law enforcement\nauthority); Memorandum for the Attorney General, from Theodore B.\nOlson, Assistant Attorney General, Office of Legal Counsel, Re: United\nStates Customs Service Jurisdiction (Dec. 23, 1983) (the Customs\nService does not have independent enforcement authority over title 21\ndrug offenses).\nOur conclusions with respect to the Customs Service\xe2\x80\x99s enforcement\nauthority have been grounded in the clear language of the Reorganization\nPlan, which transferred \xe2\x80\x9call intelligence, investigative, and law enforce\xc2\xad\nment functions\xe2\x80\x9d pertaining to \xe2\x80\x9cthe suppression of illicit traffic in nar\xc2\xad\ncotics, dangerous drugs, or marihuana\xe2\x80\x9d from the Department of Treasury\nto the Department of Justice. Reorg. Plan No. 2 of 1973, supra. The Plan\nalso contained a clause (the \xe2\x80\x9cretention clause\xe2\x80\x9d), which provided in part\nthat \xe2\x80\x9c[t]he Secretary of Treasury shall retain, and continue to perform,\ndrug intelligence, investigative and enforcement functions, to the extent\nthat they relate to searches and seizures of illicit narcotics, dangerous\ndrugs, or marihuana or to the apprehension or detention of persons in\nconnection therewith, at regular inspection locations at ports of entry\nor anywhere along the land or water borders of the United States." Id.\n(emphasis added). The proviso immediately following the retention\nclause states, moreover, that any drugs or drug-related evidence seized by\n150\n\n\x0cthe Customs Service at those points \xe2\x80\x9cshall be turned over forthwith to the\njurisdiction of the Attorney General.\xe2\x80\x9d Read in tandem, the retention\nclause and the proviso indicate that the Customs Service\xe2\x80\x99s narcotics law\nenforcement authority is limited to enforcing customs laws at the bor\xc2\xad\nders. See 12 Op. O.L.C. at 274 n.24.\nIt is a cardinal principle of appropriation law that an agency may use its\ngeneral appropriation to fund activities only if those activities are under\xc2\xad\ntaken pursuant to its statutory mission. As we discussed above, the\nCustoms Service\xe2\x80\x99s mission encompasses only the investigation, search for\nand seizure of drugs at the borders of the United States, and arrests and\ndetentions related to such law enforcement efforts. Consequently, any\ngeneral program of public rewards funded from the Customs Service\xe2\x80\x99s\nappropriations must be limited to activities relating to this mission.\nOperation PALADIN relates to the general enforcement of the nar\xc2\xad\ncotics laws, not to the Customs Services\xe2\x80\x99 more circumscribed mission.\nPALADIN contemplates that any drug trafficker who has been indicted\nmay be the subject of a reward for information. There is no requirement\nthat the reward directly facilitate the seizure of drugs located at the bor\xc2\xad\nder or the arrest of a drug offender in possession of drugs at the border.\nConsequently, we believe that there is no nexus between Operation\nPALADIN\xe2\x80\x99s broad and general program of rewards and the limited law\nenforcement mission of Customs.\nWe have considered and rejected the argument that Operation PAL\xc2\xad\nADIN is incidental to the Customs Service\xe2\x80\x99s authority under 19 U.S.C. \xc2\xa7\n1589(a) to\nmake an arrest without a warrant for any offense against\nthe United States committed in the officer\xe2\x80\x99s presence or for\na felony, cognizable under the laws of the United States\ncommitted outside the officer\xe2\x80\x99s presence if the officer has\nreasonable grounds to believe that the person to be arrest\xc2\xad\ned has committed or is committing a felony.\nThis Office has previously determined that the purpose of this provision\nwas merely to clarify that the Customs Service has arrest authority to the\nfull extent of its jurisdiction. OLC Memorandum of June 3, 1986, supra ,\nat ll.9 It is plain that this provision did not redefine the jurisdictions of\nthe Customs Service and the DEA that had been carefully defined in the\nReorganization Plan of 1973.\nIn conclusion, we believe that the Customs Service does not possess\nthe legal authority to establish Operation PALADIN. No statute expressly\n9 At least one court had held that warrants pursued and drug arrests made by Customs officers acting\nunder the direction of DEA were not authorized. United States v Harrington, 520 F. Supp. 93, 95 (E.D.\nCal 1981), rev\xe2\x80\x99d on other grounds, United States v. Harrington, 681 F.2d 612 (9th Cir 1982)\n\n151\n\n\x0cauthorizes Customs to offer rewards for information leading to the arrest\nof fugitives. Nor is the offering of such rewards either necessary or inci\xc2\xad\ndental to its duties as defined by the Reorganization Plan of 1973.\nWILLIAM P. BARR\nAssistant Attorney General\nOffice of Legal Counsel\n\n152\n\n\x0c'


b'December 18, 1978\n\n78-68 MEMORANDUM OPINION FOR THE ACTING\nDEPUTY ASSISTANT ATTORNEY GENERAL,\nLAND AND NATURAL RESOURCES DIVISION\nDepartment of Justice\xe2\x80\x94Transfer of Funds From\nAnother Agency\xe2\x80\x94Payment for Attorney Services\xe2\x80\x94\nEconomy Act (31 U.S.C. \xc2\xa7 686)\nThis reponds to your request for our opinion concerning the legality of the\nDepartment of Justice accepting funds from other agencies in order to employ\nattorneys to assist in the handling of land acquisition cases. Because there are a\nnumber of relevant considerations and several significant variables that would\naffect our ultimate views, we limit ourselves here to outlining the questions we\nregard as relevant and to reviewing the alternatives that we have identified.\nI. Background and Summary\nThe Land and Natural Resources Division has a large backlog of land\nacquisition cases, many of which emanate from the Department of Energy\n(relating to the strategic petroleum reserve) or from the Department of Interior\xe2\x80\x99s\nNational Park Service.1\nIn the past, this Department has accepted funds from other agencies,\nincluding the Departments of Energy and the Interior, for such litigation and\nhas used those funds to employ additional attorneys. Your Division\xe2\x80\x99s recent\npractice has been to hire such persons on a temporary, 1-year basis. For the\nmost part, they have engaged in preparing supporting material or other \xe2\x80\x9c agency\nwork,\xe2\x80\x9d rather than in actually conducting the litigation.\nYou are considering making a new request to the Department of Energy for\nsuch funds.\nYou ask us to determine whether it is legally appropriate for this Department\nto accept funds from another agency for the purposes described above and, jf\nthe practice is proper, to indicate what kinds of work the attorneys in question\nmay perform. You also request our opinion on other means of obtaining agency\nassistance in regard to these land acquisition cases.\n\'The material supplied by these agencies is often incomplete or out-of-date.\n\n302\n\n\x0cOur conclusions are as follows: In some circumstances, it is proper for this\nDepartment to accept funds from another agency, pursuant to \xc2\xa7 601 of the\nEconomy Act (31 U.S.C. \xc2\xa7 686(a)), for attorney services and to use such funds\nto employ additional attorneys. The propriety of any such transfer depends,\nhowever, upon the particular facts or justification.\nAssuming that we can establish a proper basis for accepting agency funds,\nthe type of work that can be done by an attorney paid with such funds depends\nin part upon the authority of the transferor agency. Because the National Park\nService is not authorized to conduct litigation, a Department of Justice attorney\nemployed on the basis of National Park Service funds should ordinarily be\nlimited to supporting\xe2\x80\x94as opposed to conducting\xe2\x80\x94litigation. Where the funding\nis derived from the Department of Energy, the attorney would have more\nleeway, because that Department has contingent authority to conduct civil\nlitigation.\'\nApart from legal issues, practical obstacles may result from the current\nfreeze on Federal employment and the ceilings imposed by the Office of\nManagement and Budget (OMB) and Congress.\nThere are alternative means of obtaining assistance from the agencies.\nAgency attorneys might be detailed to this Department under the authority\nprovided by 31 U.S.C. 686 to assist in preparing the cases. And such an\nemployee might be appointed by the Attorney General as a special attorney to\nconduct the litigation.\nII. Discussion\nA primary purpose for creating the Department of Justice was to centralize\ncontrol of litigation involving the United States or a Federal agency. This is\nreflected in 28 U.S.C. 516, which reads as follows:\nExcept as otherwise authorized by law, the conduct of litigation in\nwhich the United States, an agency, or officer thereof is a party . . . and\nsecuring evidence therefor, is reserved to officers of the Department\nof Justice, under the direction of the Attorney General.\nA parallel section, 5 U.S.C. \xc2\xa7 3106, provides that, except as otherwise\nauthorized by law, an executive department \xe2\x80\x9c may not employ an attorney . . . for\nthe conduct of [such] litigation . . . or for the securing of evidence therefor, but\nshall refer the matter to the Department of Justice.\xe2\x80\x9d\nThere are various ways in which this Department exercises its authority over\ncivil litigation. Often, substantial assistance is obtained from attorneys of the\nagency involved in a suit. Depending upon the nature of a case, this\nDepartment may call upon agency attorneys not only to provide factual material\nbut also to draft pleadings, briefs, and other papers. At times, in conjunction\nwith attorneys of this Department, agency attorneys take part in judicial\nproceedings.2\n2Such participation by an agency attom eyw ho has not been appointed a special attorney under 28\nU.S.C. \xc2\xa7 543 or \xc2\xa7 515(a) raises a legal issue, one outside the scope of this opinion.\n\n303\n\n\x0cAs a practical matter, cooperation between attorneys of this Department and\nagency attorneys is necessary. As long as this Department retains control over\nthe conduct of the litigation, such cooperation seems consistent with the\npurposes of 28 U.S.C. \xc2\xa7 516 and 5 U.S.C. \xc2\xa7 3106.3\nA related question is allocation of the expense in litigation between this\nDepartment and an agency involved in a civil suit. Clearly, when one\nDepartment is given sole responsibility for a type of activity, the appropriation\nof another Department may not properly be used to cover the cost of that\nactivity. See 31 U.S.C. 628. With respect to litigation, as the longstanding\nexistence of these cooperative relationships demonstrates, the authority of this\nDepartment does not mean that the attorneys of other agencies have no role. It\nmay be assumed that, when Congress appropriates funds for an agency\xe2\x80\x99s legal\noffice, Congress intends a portion of such funds to be used to carry out the\nagency\xe2\x80\x99s functions concerning litigation. This may be illustrated by the House\nhearings on the fiscal year 1979 appropriation for the office of the Solicitor of\nthe Interior Department, in which that office\xe2\x80\x99s activities in regard to litigation\nwere discussed.4\nWe are not suggesting that this Department can adopt a practice of charging\nother agencies for the cost of bringing or defending lawsuits. Our point is that,\nin general, the other agencies and their attorneys have the responsibility to\nassist this Department and that agency appropriations may properly be used for\nthat purpose. Cf. 39 Comp. Gen. 643, 646-47 (1960) (sustaining payment by\nthe Corps of Engineers of the cost of preparing reports and engineering studies\nused in defending a suit involving the Corps of Engineers).\nA different issue is whether an agency involved in a matter may transfer\nfunds to this Department to defray costs connected with the litigation. A\npossible basis for such a transfer is \xc2\xa7 601 of the Economy Act, 31 U.S.C.\n686(a), which reads in part as follows:\nAny executive department . . . if funds are available therefor and if\nit is determined by the head of such executive department . . . to be in\nthe interest of the Government so to do, may place orders with any\nother such department . . . for materials, supplies, equipment, work,\nor services, of any kind that such requisitioned Federal agency may\nbe in a position to supply or equipped to render, and shall pay\npromptly by check to such Federal agency as may be requisi\xc2\xad\ntioned . . . [the] cost thereof . . . .\nOne requisite for the use of \xc2\xa7 601 is that the agency seeking goods or services\nhave \xe2\x80\x9c funds . . . available therefor.\xe2\x80\x9d Here, the question is whether the Depart\xc2\xad\nments of Energy and Interior have funds for legal work in these cases. It is\nproper to conclude that such activity is at least to some extent covered by the\n\'Some of these cooperative arrangements are set forth in letters or memoranda of understanding\nand a compilation of those documents can be found in the Civil Division\'s Practice Manual.\n4Hearings on the Department of the Interior and Related Agencies Appropriations for 1979\nbefore a Subcommittee of the House Appropriations Committee, 95th Cong., 2d sess. (1978), Pt.\n1, p. 1554 (land acquisition): Pt. 6. p. 667 (environmental suits).\n\n304\n\n\x0cappropriation for the legal staff of the respective departments, but a close\nreview of each Department\xe2\x80\x99s appropriation should be undertaken to assess the\nprecise limits on that source of funds.\nA further consideration is whether, in the present circumstances, the purchase\nof legal services from this Department is in accord with the purpose of \xc2\xa7 601.5\nThat is, would it be more economical or efficient for this Department, rather\nthan the other agency, to provide the services? Although we are not able to\nprovide definitive answers, we can indicate pertinent factors and possible\njustifications.\nAn effort should be made to show why the agency\xe2\x80\x99s responsibilities could\nnot be satisfactorily performed by the agency\xe2\x80\x99s own staff or by using the funds\nto increase the agency\xe2\x80\x99s staff. One possible rationale would be that, even\nthough \xe2\x80\x9c agency work,\xe2\x80\x9d such as fact-gathering, is involved, it can be\nperformed more efficiently within the Department of Justice, because this\nDepartment has a better understanding of the legal issues and the type of record\nrequired for a lawsuit. Thus, even though the funds will be used to hire an\nadditional attorney, it is more effective to have the Department of Justice do so.\nThe attorney will be responsible to, and will have the benefit of supervision by,\nyour Division or a United States Attorney. If the additional attorney is to be\nassigned to a United States Attorney\xe2\x80\x99s Office in a city where the other agency\nhas no office, that geographic advantage might be a partial justification for the\ntransfer of funds to this Department.\nBefore any such transfer is made, however, the justification for it should be\nspelled out and should be determined to be adequate by the respective\ndepartments.6\nNext question is the restrictions upon the type of work that the attorneys\nhired with agency funds may do. As a general matter, the agency funds must be\nused for functions that could properly be performed by an agency attorney. The\nGeneral Accounting Office (GAO) insists on this limitation, and we concur.7 It\nis, however, difficult to determine precisely how much authority Energy and\nInterior have. The only clear conclusion is that each agency does have some\nproper role. The meaning of \xe2\x80\x9c agency work\xe2\x80\x9d concerning litigation varies,\ndepending upon the nature of the lawsuit, the needs of this Department, and the\nauthority of the other agency. Ordinarily, Department of the Interior attorneys\ncannot make court appearances and, therefore, Interior funds should not be\nused for that purpose. A Department of Justice attorney whose salary is based\n\'For a discussion of the history of \xc2\xa7 601. see 52 Comp. Gen. 128. 131-33 (1972) (contracts\nfunded by EPA and another agency).\n\'T he General Accounting Office has taken the position that requisites for use of the Economy Act\nare ( I) that the transferor agency possesses the legal authority to perform the funded undertakings\nitself, and (2) that, in at least certain circumstances, the transferor agency has independent statutory\nauthority to make fund transfers. The first requirement is a sensible one, and we will address it in\nmore detail in the following section. The second requirement seems to us, however, to be\nunnecessary. The Economy Act itself is one that should provide sufficient authority for fund\ntransfers, but we have as yet not resolved this interpretative difference with GAO. If you ultimately\ndetermine to rely on this Act, this subsidiary issue should be discussed with GAO.\n7See footnote 5 above.\n\n305\n\n\x0cupon Department of the Interior funds could, however, assist in the drafting of\npapers and in preparing a case for trial.\nBecause of the potential litigation authority of the Department of Energy,8 it\nmight be proper for a Department of Justice attorney whose salary is derived\nfrom the Department of Energy to have basic responsibility for the conduct of\nlitigation. The theory would be that the Department of Energy has funds for\nconducting litigation itself and, in appropriate circumstances, may elect to\ntransfer such funds to the Department of Justice.\nApart from the legal issues outlined above, there may be practical obstacles\nto your Division\xe2\x80\x99s using agency funds to hire attorneys on a temporary basis.9\nPresident Carter recently imposed a freeze upon Federal hiring. It is\nimplemented by OMB Bulletin 79-2 and limits the ability of Federal agencies to\nfill future vacancies. The freeze applies to full-time permanent employment,\nbut the OMB bulletin states (par. 3) that there is to be no use of temporary\nhiring to circumvent the freeze.\nIn addition, each year through the budget process, OMB establishes employ\xc2\xad\nment ceilings for each agency.10 There are two ceilings\xe2\x80\x94one for full-time\npermanent employment and one for total employment. The latter ceiling\nencompasses temporary employees. Section 311 of the Civil Service Reform\nAct of 1978, Pub. L. No. 95-454, 92 Stat. 1111, provides that the total number\nof Federal civilian employees on September 30, 1979, may not exceed the\nnumber on September 30, 1977.\nThese limits may mean that it will be difficult for your Division to obtain\napproval for the temporary positions.\nThe hiring freeze and the employment ceilings are govemmentwide and may\nalso make it unlikely that the problem of backlog can be dealt with by increasing\nthe permanent staff of your Division or the other agencies. There are other\nalternatives, however, which do not involve additional hiring.\nThe Department of Energy or Department of the Interior might detail one or\nmore of its attorneys to your Division to assist regarding the land acquisition\ncases. In the past, in somewhat similar circumstances, agency employees have\nbeen detailed to this Department, e.g., to the Civil or Civil Rights Division.\nThe salaries of the detailed persons would be paid by the other agency.\nUnder 28 U.S.C. 543, the Attorney General has authority to name special\nattorneys to assist United States Attorneys. Under 28 U.S.C. \xc2\xa7 515, the\nAttorney General may appoint any attorney, as a special assistant or special\n\xe2\x80\x9cSection 502(c) of the Department of Energy Organization Act, 42 U.S.C. 7192(c), provides\nthat, except for Federal Energy Regulatory Commission litigation, litigation of the Department of\nEnergy is subject to the supervision of the Attorney General. The Attorney General may authorize a\nDepartment of Energy attorney to conduct civil litigation in any court except the Supreme Court.\nEarlier this year, the two Departments entered into a memorandum of understanding regarding\ncivil litigation.\n*We have not attempted to determine whether employing such persons on a 1-year basis is\nconsistent with Civil Service Commission or other applicable standards.\nl0Sfe OMB Circular A-64.\n\n306\n\n\x0cattorney, to conduct any kind of legal proceeding.11 This authority might be\nused with respect to a Department of Energy or Department of the Interior\nattorney, who would then be able to take full responsibility for a suit or class of\nsuits.\nRegarding the Department of Energy, another possibility, in light of 42\nU.S.C. \xc2\xa7 7192(c), would be for the Attorney General to assign basic responsi\xc2\xad\nbility for one or more cases to Department of Energy attorneys.\nLarry A. H am m ond\n\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n"28 U.S.C. \xc2\xa7 515(b) provides that the salary of such an attorney may not exceed $12,000 per\nyear. The Executive Office for United States Attorneys takes the position that this limit does not\napply to persons appointed under 28 U.S.C. \xc2\xa7 543.\n\n\x0c'


b"November 8, 1979\n\n79-81\n\nMEMORANDUM OPINION FOR THE\nASSISTANT DIRECTOR, DOMESTIC POLICY\nSTAFF\nPresident\xe2\x80\x94Consultation\xe2\x80\x94Form\xe2\x80\x94Public Utility\nRegulatory Policies Act of 1978 (\xc2\xa7 507(a)(1),\n43 U.S.C. \xc2\xa7 2007(a)(1))\n\nTitle V of the Public Utility Regulatory Policies Act of 1978, 43 U.S.C.\n\xc2\xa7\xc2\xa7 2001-2012, is designed to expedite Federal action on proposed means of\ntransporting oil from the West Coast to other parts of the United States.\nThe Secretary of the Interior, with advice from other Federal agencies,\nreviews proposals and makes recommendations to the President. Id. \xc2\xa7 505,\n43 U.S.C. \xc2\xa7 2005. Then the President, \xe2\x80\x9c after consulting with the\nSecretaries of Energy, the Interior, and Transportation,\xe2\x80\x9d decides whether\nto approve a proposal and require expedited treatment. Id., \xc2\xa7 507; 43\nU.S.C. \xc2\xa7 2007. You have asked us for advice about the form of consulta\xc2\xad\ntion required.\nConsultation, of course, is an exchange of views. We believe that the\nstatute permits the President to choose the form of exchanging views that\nhe considers appropriate. Nothing in the words or the structure of the\nstatute suggests that Congress intended to require a particular form of\nconsultation. Nor does the legislative history; neither the conference com\xc2\xad\nmittee, which added \xc2\xa7 507, nor the Senate, which added most of what\nbecame Title V as a floor amendment, see 123 CO N G R E SSIO N A L R e c o r d\nS. 16491-96, S. 16498-502 (daily ed., Oct. 6, 1977), mentioned the Presi\xc2\xad\ndent\xe2\x80\x99s duty to consult.1 Several other statutes require the President to con\xc2\xad\nsult with the executive branch officials before making a decision. See, e.g.,\n\n'U nder the am endm ent added on the Senate floor, the Secretary o f the Interior was to\nmake the final decision. The conference comm ittee did not say why it assigned that function\nto the President, but it did emphasize that the President should take certain environmental\nfactors into account. S. Rept. 1292, 95th C ong., 2d sess. 108 (1978). O ne might infer that\nCongress wanted the President to decide so that a wider range o f policies could be\nconsidered.\n\n438\n\n\x0c12 U.S.C. \xc2\xa7 36 note; 42 U.S.C. \xc2\xa7\xc2\xa7 6272(c)(l)(A)(iii), 6272(e); 49 U.S.C.\n\xc2\xa7 1531 note; 42 U.S.C. \xc2\xa7 5155(a); see also 50 U.S.C. App. \xc2\xa7 468(a)\n(eliminated by Reorganization Plan No. 3 of 1953, \xc2\xa7 5(a)). None of these\nprescribes a form of consultation in either its text or its legislative history.\nSee, e.g., S. Rept. 1073, 95th Cong., 2d sess. 19 (1978).2 If some habitual\nform of consultation had developed under these other provisions, and\nCongress, in enacting \xc2\xa7 507, mandated that form, there would be less flex\xc2\xad\nibility than we believe inheres in \xc2\xa7 507.\nIndeed, certain features of \xc2\xa7 507 affirmatively suggest that Congress in\xc2\xad\ntended not to prescribe any particular form of consultation. For example,\nwhen read in conjunction with the Administrative Procedures Act, \xc2\xa7 507\nplainly permits either an oral or a written exchange of views. Compare\n\xc2\xa7 507(a)(1), 43 U.S.C. \xc2\xa7 2007(a)(1), with 5 U.S.C. \xc2\xa7 554(a). Similarly, by\nrequiring the President to make certain findings and explanations, see\n\xc2\xa7 507(c), 43 U.S.C. \xc2\xa7 2007(c), Title V suggests that no other for\xc2\xad\nmalities\xe2\x80\x94such as a written record of the consultation\xe2\x80\x94are necessary. See,\nCamp v. Pitts, 411 U.S. 138, 143 (1973); see also, United States v. Nixon,\n418 U.S. 683, 705-13 (1974). And the Supreme Court has recently em\xc2\xad\nphasized that agencies have considerable discretion to decide which pro\xc2\xad\ncedures to follow in making the decisions with which they are charged.\nSee, Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense\nCouncil, Inc., 435 U.S. 519, 524-25 (1978). For these reasons, we believe\nthat Title V permits the President to choose whatever form of consultation\nhe considers appropriate.\nJo h n M . H\n\narmon\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n'O ther statutes require the President to consult with Congress or with Members o f C on\xc2\xad\ngress before making certain decisions. See, e.g., 50 U .S.C . \xc2\xa7 1542 (W ar Powers Resolution).\nBut since the President\xe2\x80\x99s relationship to executive branch officials differs from his relation\xc2\xad\nship to Congress, any established practices under these statutes do not control the interpreta\xc2\xad\ntion o f provisions like \xc2\xa7 507.\n\n439\n\n\x0c"


b'Presidential Power to Regulate Domestic Litigation\nInvolving Iranian Assets\nBy its terms the International Em ergency Economic Pow ers A ct (IE E PA ) gives the\nPresident broad authority to regulate the exercise of all rights and privileges \xe2\x80\x9cwith\nrespect to\xe2\x80\x9d foreign property, including their exercise in a judicial context. T he legisla\xc2\xad\ntive history of the IE E PA confirms that Congress intended the President to have\ndiscretionary pow er to regulate court proceedings involving claims to foreign property,\nas well as the transfer of or creation of interests in such property in a nonjudicial\ncontext.\nT he authority delegated by Congress to the President in the IE E PA to deal with an\ninternational em ergency should be read as broadly as the statutory text and the\nConstitution will permit, and no limitations on it should be implied.\nT he President\xe2\x80\x99s pow er under the IE E PA to prevent the prosecution or adjudication of\nclaims against Iran in the federal courts extends to any claim asserting an interest in\nproperty in which Iran has an interest, though it is unclear w hether this would include\na naked tort claim against Iran which did not otherw ise involve the assertion o f an\ninterest in property.\n\nJune 25, 1980\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis memorandun responds to two questions you have asked con\xc2\xad\ncerning the President\xe2\x80\x99s power under the International Emergency Eco\xc2\xad\nnomic Powers Act (IEEPA), 50 U.S.C. \xc2\xa7 1701 et seq. (Supp. I 1977), to\ntake action affecting pending litigation in the federal courts between\nU.S. nationals and the Republic of Iran. The two questions are the\nfollowing: (1) Does IEEPA empower the President to order the federal\ncourts to stay these pending cases? (2) Short of taking direct action\nwith respect to the courts, may the President direct the litigants them\xc2\xad\nselves to take no further action with respect to these cases?\nAs you know, under the authority conferred by IEEPA, the Presi\xc2\xad\ndent has already prohibited the unauthorized transfer of Iranian govern\xc2\xad\nment property subject to U.S. jurisdiction. Moreover, the regulations\nimplementing the President\xe2\x80\x99s order provide expressly that the general\nprohibition against transfer of Iranian property will extend to legal\nproceedings. The regulations prevent the transfer of Iranian property or\nthe creation of interests in Iranian property through the operation of\ncivil process. They do this in two ways. First, as a matter of substantive\nproperty law, they provide that during the life of the blocking order no\ninterest can be created in Iranian property through the operation of\n236\n\n\x0ccivil process (through the entry of judgment, for example). See 31\nC.F.R. \xc2\xa7\xc2\xa7 535.203, 535.310. Second, as a matter of procedure, they\nprohibit the filing, issuance, or entry of judicial process in some cases,1\nand they invoke the civil and criminal penalties prescribed in IEEPA\nfor any violation of this apparent proscription. See \xc2\xa7 535.701.\nSignificantly, these regulations contain a special authorization that\nexempts the prejudgment elements of most domestic civil litigation\nfrom the procedural prohibition to which we have just referred. See\n\xc2\xa7 535.304. For purposes of the regulations, the effect of this authoriza\xc2\xad\ntion is to permit litigation to go forward even where it might otherwise\ninvolve acts prohibited by the regulations\xe2\x80\x94i.e., acts undertaken with\nthe purpose or intent of creating interests in Iranian property. See\n\xc2\xa7 535.310.2 The exemption does not, however, authorize final judicial\naction or process of the kind that ordinarily creates interests in prop\xc2\xad\nerty (entry of judgment, etc.); nor does it authorize any judicial pro\xc2\xad\nceeding or any part of any judicial proceeding that is \xe2\x80\x9cbased on\xe2\x80\x9d an\neconomic or financial transaction that was in violation of the blocking\norder. See \xc2\xa7 535.504(b).\nYour inquiry, in essence, is (1) whether the existing regulations are\nlawful to the extent that they already prohibit litigation involving\nIranian property and (2) whether they can be amended to create a legal\nbar to further litigation during the life of the blocking order, to the\nextent that they presently permit litigation to go forward under the\ngeneral authorization we have just described. Our conclusions are\n(1) that the regulations are lawful to the extent that they now prohibit\nlitigation involving Iranian property, (2) that they could be amended to\nprohibit what they now permit, and (3) that the amendment could take\neither of two forms: it could set forth a rule to be applied by the\nfederal courts restricting their jurisdiction to proceed with the adjudica\xc2\xad\ntion of claims with respect to Iranian property during the life of the\nblocking order, or it could impose a rule prohibiting claimants from\nproceeding further with the prosecution of these claims. The reasons\nfor our conclusions are set forth below.\n\xe2\x80\x99Si? \xc2\xa7\xc2\xa7 535.201, 535.310. T he procedural prohibition is cast in term s of a prohibition against the\n\ntransfer o f Iranian governm ent property, see \xc2\xa7 535.201; but the term \xe2\x80\x9ctransfer\xe2\x80\x9d is defined so broadly\n\nthat it covers any \xe2\x80\x9cact\xe2\x80\x9d the \xe2\x80\x9cpurpose, intent, or effect of w hich\xe2\x80\x9d is to create any \xe2\x80\x9c interest\xe2\x80\x9d in Iranian\nproperty, directly o r indirectly. T he regulations catalogue the kinds of acts that may fall w ithin the\nprohibition, and in that connection they refer expressly -to the filing, issuance, o r entry o f judgm ents or\nother judicial process. See \xc2\xa7 535.310. A ccordingly, w e interpret the general prohibition against \xe2\x80\x9ctrans\xc2\xad\nfer\xe2\x80\x9d o f Iranian property as a prohibition against filing, issuance, or entry of any judicial process w here\nthe purpose, intent, or effect o f the act is to create an interest in Iranian property. W hether the general\nprohibition could be interpreted in its present form to prohibit litigants from filing or prosecuting\nclaims against Iranian property, w e cannot say.\n*This \xe2\x80\x9cauthorization\xe2\x80\x9d does not purport to authorize litigation, process, or acts w ith respect to\nIranian property that are prohibited by other statutes or laws. See, e.g., 28 U.S.C. \xc2\xa7\xc2\xa7 1609, 1611. These\nprovisions of the Foreign Sovereign Immunities A ct (FSIA ) preclude prejudgm ent attachm ent o f the\nproperty of a foreign sovereign unless the purpose of the attachm ent is nor to obtain jurisdiction and\nthe foreign sovereign has explicitly waived immunity from attachm ent prior to judgm ent. T he IE E P A\nregulations have not been interpreted as overriding FSIA .\n\n237\n\n\x0cI.\nThe relevant statutory language is found in \xc2\xa7 203(a)(1)(B) of IEEPA.\nSee 50 U.S.C. \xc2\xa7 1702(a)(1)(B). Under that subsection the President may,\nupon a declaration of national emergency, \xe2\x80\x9cinvestigate, regulate, direct\nand compel, nullify, void, prevent or prohibit, any acquisition, holding,\nwithholding, use, transfer, withdrawal, transportation, importation or\nexportation of, or dealing in, or exercising any right, power, or privilege\nwith respect to, or transactions involving, any property in which any\nforeign country or a national thereof has any interest; by any person, or\nwith respect to any property, subject to the jurisdiction of the United\nStates.\xe2\x80\x9d This language was lifted without alteration from \xc2\xa7 5(b) of the\nTrading with the Enemy Act. See 50 U.S.C. App. \xc2\xa7 5(b)(1)(B). It has a\nlong statutory history.\nIt is evident that the core of the President\xe2\x80\x99s power under IEEPA is\nhis power to block or regulate commercial transactions in which for\xc2\xad\neign nationals have an interest. But the words themselves indicate\nrather clearly that Congress intended to confer on the President the\npower to regulate things other than the mere transfer of foreign prop\xc2\xad\nerty or the creation of interests in foreign property. He may, for\nexample, prohibit or regulate the \xe2\x80\x9cexercise of any right, power or\nprivilege\xe2\x80\x9d with respect to foreign property; and because the language\nof the subsection is disjunctive in character, this power is one that he\nmay exercise in addition to his power to regulate, for example, the\ncreation of interests in foreign property, or the use of foreign property,\nor the transfer of title or possession. Congress has determined that in\ntime of emergency the exercise of rights or privileges with respect to\nforeign property may create dangers or difficulties that cannot be met\nby a simple prohibition against transfer or use, and Congress has given\nthe President power to deal with those dangers.3\nDoes IEEPA give the President power to regulate judicial proceed\xc2\xad\nings? IEEPA does not refer expressly to judicial proceedings, but its\nlanguage is very broad. Of the \xe2\x80\x9crights\xe2\x80\x9d and \xe2\x80\x9cprivileges\xe2\x80\x9d that can be\nexercised \xe2\x80\x9cwith respect to\xe2\x80\x9d foreign property, none is more important\nthan the privilege of asserting a legal claim with respect to foreign\nproperty in court\xe2\x80\x94the privilege of demanding and receiving an adjudi\xc2\xad\ncation of property rights that carries the force of law. If, during an\nemergency, the President concludes that such a demand or such an\n3T he language o f IE E P A indicates that the President\'s pow er under the statute is not plenary.\nIE E P A expressly denies him pow er to regulate mere \xe2\x80\x9cpersonal com m unications\xe2\x80\x99* not involving a\ntransfer o f \xe2\x80\x9canything o f value.\xe2\x80\x9d 50 U.S.C. \xc2\xa7 1702(b)( I). W e know of no judicial decision that construes\nthis language, but on its face it imposes a limitation on the President\'s authority to regulate transac\xc2\xad\ntions that do not involve an actual transfer of property having value. T he relevant legislative history is\nnot illuminating. See, e.g., S. Rep. No. 466, 95th Cong., 1st Sess. 5 (1977). W e do not construe this\nlanguage as affecting any pow er that the President m ight otherw ise have under IEE PA to regulate or\nprohibit the exercise o f rights and privileges w ith respect to property through the assertion o f formal\nclaims in court. In our view , the prosecution of a civil claim is not a m ere \xe2\x80\x9cpersonal com m unication"\nin the sense intended by the statute.\n\n238\n\n\x0cadjudication may create a danger related to the emergency that cannot\nadequately be met by a simple prohibition against the transfer of the\nproperty in question, we think that IEEPA gives him power to deal\nwith that danger. If the words mean what they say, the power to\nregulate or prohibit the prosecution or adjudication of court claims\nwith respect to foreign property is surely within the ambit of the\nPresident\xe2\x80\x99s larger power to regulate the exercise of rights and privileges\n\xe2\x80\x9cwith respect to\xe2\x80\x9d foreign property in the first instance.4 Moreover, in\nthe context of the present Iranian crisis, this argument carries force.\nThe President may well conclude that ongoing litigation involving\nclaims to Iranian property will weaken his hand in dealing with the\ncrisis and that the litigation may create difficulties that cannot be\nprevented through the simple expedient of prohibiting new entries on\nthe judgment docket. As the litigation progresses, as motions and de\xc2\xad\nfenses are allowed or dismissed, as evidence is developed and heard, the\npresent uncertainty regarding rights and liabilities with respect to Ira\xc2\xad\nnian property subject to U.S. jurisdiction will diminish. Yet uncertainty\ncan be valuable in international negotiation. If the President decides\nthat uncertainty should be preserved, he may decide that the litigation\nshould come to a halt.\nOur task is to determine whether the textual argument is decisive. It\nis a difficult task. To accept the argument\xe2\x80\x94to read the language as\nbroadly as it might be read\xe2\x80\x94is to accept the proposition that Congress\nhas delegated to the President extraordinary authority to suspend for\nthe time being the operation of a co-equal branch of government in a\ncertain class of cases. We do not doubt that Congress itself has power\nto do this either by barring the prosecution of these claims during the\nperiod of emergency or by restricting temporarily the power of the\ncourts to decide them. But it is another matter entirely to contend and\nconclude that this slender statutory text confers such power upon the\nPresident. Putting IEEPA to one side, we can think of no instance in\nwhich Congress has delegated to the President or any other executive\ndfficer authority to make discretionary judgments that can affect the\njurisdiction of the courts or the rights of litigants in precisely this way.\nOur caution notwithstanding, two considerations lead us to conclude\nthat the President\xe2\x80\x99s express authority under IEEPA to regulate or\nprohibit the exercise of rights or privileges with respect to foreign\nproperty should not be subjected as a matter of interpretation to an\nimplied limitation that would prevent the President from regulating the\n4T he textual argum ent is strengthened by the fact that IE E P A expressly preserves to some extent\nthe pow er that the President enjoyed under \xc2\xa7 5(b) o f the T rading with the Enemy A ct to create\n\xe2\x80\x9cdefinitions, not inconsistent w ith the purposes\'* o f the statute, for \xe2\x80\x9cany and all terms used** in the\nstatute. Under IEE PA the President is expressly given pow er to issue regulations, \xe2\x80\x9c including regula\xc2\xad\ntions prescribing definitions," necessary for the exercise o f the \xe2\x80\x9cauthorities" granted by the statute. See\n50 U.S.C. \xc2\xa7 1704. T he predecessor language was construed by the Supreme C ourt as requiring that the\nPresident\'s em ergency pow er \xe2\x80\x9cbe given generous scope to accomplish its purpose.\xe2\x80\x9d Propper v. Clark,\n337 U.S. 472, 481 (1949); see 42 Op. A tt\xe2\x80\x99y Gen. 363,366 (1968).\n\n239\n\n\x0cexercise of rights and privileges with respect to foreign property in\ncourt. Those considerations are the following:\nFirst, when Congress enacted IEEPA, it was well aware of the long\nand creative history of the predecessor statute, the Trading with the\nEnemy Act. That statute had been used repeatedly for new and impor\xc2\xad\ntant purposes, wherever and whenever its broad and unqualified lan\xc2\xad\nguage would permit new action to be taken.5 Moreover, when Con\xc2\xad\ngress reexamined that history and fashioned IEEPA, it had before it an\nadministrative interpretation that bore upon the very issue that con\xc2\xad\ncerns us here\xe2\x80\x94the President\xe2\x80\x99s power to regulate judicial proceedings.\nThe Cuban Assets Control Regulations, for example, which had been in\nplace since the early 1960\xe2\x80\x99s, contained provisions that purported to\nprohibit some kinds of judicial proceedings. See 31 C.F.R.\n\xc2\xa7\xc2\xa7 515.201(b)(1), 515.310, 515.504(c), 515.504(d). Congress chose to pre\xc2\xad\nserve without alteration the statutory language upon which those regu\xc2\xad\nlations had been based. Although the relevant legislative history dis\xc2\xad\ncloses no active consideration of the question of judicial proceedings\nper se, Congress was well aware of the precedents.6 In the legislative\nactions surrounding the enactment of IEEPA, we find no evidence of\nan intention to reverse this administrative interpretation or to restrict\nthe President\xe2\x80\x99s authority on this point.\nThe second consideration is jurisprudential in nature. The Supreme\nCourt has consistently recognized that in the field of foreign affairs\nthere are compelling reasons for vesting generous discretionary power\nin the President. He is the \xe2\x80\x9csole organ of the federal government in the\nfield of international relations;\xe2\x80\x9d and, with respect to the question of\ndelegated power, \xe2\x80\x9c[it] is quite apparent that if, in the maintenance of\nour international relations, embarrassment\xe2\x80\x94perhaps serious embarrass\xc2\xad\nment\xe2\x80\x94is to be avoided and success of our aims achieved, congressional\nlegislation which is to be made effective through negotiation and in\xc2\xad\nquiry within the international field must often accord the President a\ndegree of discretion and freedom from statutory restriction which\nwould not be admissible were domestic affairs alone involved.\xe2\x80\x9d United\nStates v. Curtiss-Wright Export Corp., 299 U.S. 304, 320 (1936).\nThis oft-quoted language was adopted by the Court in a case very\nmuch like the present one. The question was whether the President\ncould lawfully take action under a broad delegation from Congress to\nimpose and preserve a rule of law (a prohibition against the sale of\narms) upon which a pending judicial proceeding (the proceeding\nbelow) had been founded. The question was treated as one of constitu\xc2\xad\n*See Emergency Powers Statutes, S. Rep. No. 549, 93d Cong., 1st Sess. 184-91 (1973).\n\n6T he House com m ittee that considered IE E P A com piled an extensive docum entary history for use\nin connection w ith its hearings w hich included /these regulations. See Trading with the Enemy;\n\nLegislative and Executive Documents Concerning Regulation o f International Transactions in Time o f\nDeclared National Emergency, Subcomm. on International T rade and Com m erce of the House Comm,\n\non International Relations, 94th Cong., 2d Sess. (Comm. Print 1976).\n\n240\n\n\x0ctional dimension under the delegation doctrine, but we think that the\nCourt\xe2\x80\x99s observations about the necessary relation between legislative\nand executive power in the field of foreign affairs are directly relevant\nto the question of statutory interpretation in the first instance. If Con\xc2\xad\ngress delegates power broadly to the President to deal with an interna\xc2\xad\ntional emergency, there is no prudential reason to read the delegation\nmore narrowly than the words and the Constitution will permit. On the\ncontrary, there are reasons to read the delegation broadly. Congres\xc2\xad\nsional legislation must often accord the President \xe2\x80\x9cdiscretion and free\xc2\xad\ndom from statutory restriction\xe2\x80\x9d to deal with foreign affairs\xe2\x80\x94a \xe2\x80\x9cdiscre\xc2\xad\ntion and freedom\xe2\x80\x9d that would be inadmissible were domestic affairs\nalone involved.\nWe think that this principle should be followed in the interpretation\nof IEEPA. In point of fact, under the predecessor statute the courts\nconsistently recognized the unusual breadth of the power that these\nfew, plain words delegated to the President. The courts refused to\nrecognize implied limitations. See, e.g., Smith v. Witherow, 102 F.2d 638\n(3d Cir. 1939); Ruffino v. United States, 114 F.2d 696 (9th Cir. 1940);\nPike v. United States, 340 F.2d 487 (9th Cir. 1965); Sordino v. Federal\nReserve Bank of New York, 361 F.2d 106 (2d Cir. 1966). Accordingly,\nalthough we have not found a case on point either under the old statute\nor the new, we are not inclined to recognize implied limitations here.\nWe are of opinion that the President\xe2\x80\x99s power to regulate or prohibit the\nexercise of rights, powers, or privileges with respect to foreign prop\xc2\xad\nerty, must be read to include a power to regulate or prohibit the\nexercise of rights, powers, or privileges through the prosecution or\nadjudication of claims with respect to foreign property in court\xe2\x80\x94a\npower that he may exercise in addition to his power to prevent the\ntransfer of, or the creation of interests in, foreign property.\nII.\nPrecisely what kinds of claims are a proper subject for presidential\nregulation under IEEPA? Under the statute, they must be claims exer\xc2\xad\ncising a right, power, or privilege \xe2\x80\x9cwith respect to . . . property\xe2\x80\x9d in\nwhich Iran or an Iranian national has an \xe2\x80\x9cinterest.\xe2\x80\x9d The key words are\n\xe2\x80\x9cproperty\xe2\x80\x9d and \xe2\x80\x9cinterest.\xe2\x80\x9d The presence of \xe2\x80\x9cproperty\xe2\x80\x9d or an \xe2\x80\x9cinterest\xe2\x80\x9d\nin property triggers the power to act. In the absence of \xe2\x80\x9cproperty\xe2\x80\x9d or\nan \xe2\x80\x9cinterest\xe2\x80\x9d in property, the statute confers no power. We are pre\xc2\xad\npared to read this language broadly, but in the end the International\nEmergency Economic Powers Act does not confer plenary power\nupon the President to regulate all things foreign.\nIn accordance with that principle, we think that the President\xe2\x80\x99s\npower to prevent the prosecution or adjudication of claims against Iran\nin the federal courts extends to any claim asserting an interest in or\nunder an account or other specific property in which Iran has an\n241\n\n\x0cinterest. Moreover, it seems to us that the assertion of a claim against\nIran, whatever its legal basis, will be tantamount to the assertion of a\nclaim \xe2\x80\x9cwith respect to\xe2\x80\x9d Iranian property whenever (1) the underlying\nobligation is secured by Iranian property under contract or by law, or\n(2) the viability of the claim in court depends upon the assertion of an\ninterest in Iranian property (as in the case of a claim asserted pursuant\nto a jurisdictional attachment).7 It might even be possible to read the\nstatute broadly to permit the regulation of claims of debt asserted\nwithout reference to any extraneous property interest. Instruments of\ndebt (bonds, notes, etc.) are the \xe2\x80\x9cproperty\xe2\x80\x9d of the claimant, and they\nare also property in which the obligor (Iran) has an \xe2\x80\x9cinterest\xe2\x80\x9d in a\ngeneral sense. Finally, if the language of the statute can be given a\nbroad construction, nonetheless we think it cannot be read as a general\ngrant of authority to control every conceivable instance of domestic\nlitigation with Iran. For example, we think it unclear that the assertion\nor adjudication of a naked tort claim against Iran could itself be consid\xc2\xad\nered an exercise of a right, power, or privilege with respect to \xe2\x80\x9cprop\xc2\xad\nerty\xe2\x80\x9d in which Iran has an \xe2\x80\x9cinterest;\xe2\x80\x9d and we doubt that the proceeding\nin which the claim is asserted could itself be regarded, without more, as\na transaction \xe2\x80\x9cinvolving\xe2\x80\x9d property within the meaning of the statute.\nThe President would of course have power to prevent foreign property\nfrom being transferred to satisfy the underlying claim, to satisfy any\njudgment that might be rendered in the case, and to prevent the entry\nof any judgment from creating an interest in property as a matter of\nlaw. But if the President exercised that power and the claim itself\ninvolved no actual assertion of rights or privileges with respect to\nproperty, in our view it would be difficult to find in the statute a basis\nfor further presidential action.\nIII.\nWe wish to emphasize, again, that our interpretation of the statute is\nbased not upon any judicial decision discussing or deciding the question\nat issue, but upon what we believe to be a reasonable reading of the\nstatutory language in light of the relevant historical and jurisprudential\nconsiderations. The decisive consideration, in our view, is the one that\nwe have already mentioned: Congress has given the President power to\ndo more than prevent the use or transfer of foreign property during the\npendency of a national emergency. Congress has contemplated that the\nmere exercise of rights, powers, or privileges with respect to foreign\nproperty may create dangers that cannot be met by a prohibition\n7See note 2 supra.\n\n242\n\n\x0cagainst transfer or use; and Congress has given the President power to\ndeal with those dangers.\nL arry A. H am m ond\n\nActing Assistant Attorney General\nOffice of Legal Counsel\n\n243\n\n\x0c'