b'(Slip Opinion)\n\nApplication of the Anti-Nepotism Statute to a\nPresidential Appointment in the White House Office\nSection 105(a) of title 3, U.S. Code, which authorizes the President to appoint employees\nin the White House Office \xe2\x80\x9cwithout regard to any other provision of law regulating the\nemployment or compensation of persons in the Government service,\xe2\x80\x9d exempts positions in the White House Office from the prohibition on nepotism in 5 U.S.C. \xc2\xa7 3110.\nJanuary 20, 2017\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked whether section 3110 of title 5, U.S. Code, which forbids a public official from appointing a relative \xe2\x80\x9cto a civilian position in\nthe agency . . . over which [the official] exercises jurisdiction or control,\xe2\x80\x9d\nbars the President from appointing his son-in-law to a position in the\nWhite House Office, where the President\xe2\x80\x99s immediate personal staff of\nadvisors serve. We conclude that section 3110 does not bar this appointment because the President\xe2\x80\x99s special hiring authority in 3 U.S.C. \xc2\xa7 105(a)\nexempts positions in the White House Office from section 3110.\nA decision of the D.C. Circuit, Haddon v. Walters, 43 F.3d 1488 (D.C.\nCir. 1995) (per curiam), lays out a different, but overlapping, route to the\nsame result. According to the reasoning of Haddon, section 3110 does not\nreach an appointment in the White House Office because section 3110\ncovers only appointments in an \xe2\x80\x9cagency,\xe2\x80\x9d which the statute defines to\ninclude \xe2\x80\x9cExecutive agenc[ies],\xe2\x80\x9d and the White House Office is not an\n\xe2\x80\x9cExecutive agency\xe2\x80\x9d within the definition generally applicable to title 5.\nAlthough our analysis does not track every element of the D.C. Circuit\xe2\x80\x99s\nreasoning about the meaning of \xe2\x80\x9cExecutive agency,\xe2\x80\x9d we believe that\nHaddon arrived at the correct outcome and that our conclusion here\xe2\x80\x94that,\nbecause of the President\xe2\x80\x99s special hiring authority for the White House\nOffice, section 3110 does not forbid the proposed appointment\xe2\x80\x94squares\nwith both the holding and a central part of the analysis in that case.\nI.\nSection 105(a) of title 3 authorizes the President \xe2\x80\x9cto appoint and fix the\npay of employees in the White House Office without regard to any other\nprovision of law regulating the employment or compensation of persons\nin the Government service,\xe2\x80\x9d as long as the employees\xe2\x80\x99 pay is within listed\n1\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nsalary caps. 3 U.S.C. \xc2\xa7 105(a)(1). These employees are to \xe2\x80\x9cperform such\nofficial duties as the President may prescribe.\xe2\x80\x9d Id. \xc2\xa7 105(b)(1). We understand that most White House Office employees are appointed under section 105 or a similar hiring authority, such as 3 U.S.C. \xc2\xa7 107 (the authorization for domestic policy staff ). See Authority to Employ White House\nOffice Personnel Exempt from the Annual and Sick Leave Act Under 5\nU.S.C. \xc2\xa7 6301(2)(x) and (xi) During an Appropriations Lapse, 36 Op.\nO.L.C. __, at *5 (Apr. 8, 2011); Authority to Employ the Services of White\nHouse Office Employees During an Appropriations Lapse, 19 Op. O.L.C.\n235, 236 (1995). Such employees are the President\xe2\x80\x99s \xe2\x80\x9cimmediate personal\nstaff \xe2\x80\x9d and work in close proximity to him. Meyer v. Bush, 981 F.2d 1288,\n1293 & n.3 (D.C. Cir. 1993). The appointment at issue here, we understand, would be under 3 U.S.C. \xc2\xa7 105(a).\nSection 3110 of title 5, also known as the anti-nepotism statute, states\nthat \xe2\x80\x9c[a] public official may not appoint, employ, promote, advance, or\nadvocate for appointment, employment, promotion, or advancement, in or\nto a civilian position in the agency in which he is serving or over which he\nexercises jurisdiction or control any individual who is a relative of the\npublic official.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3110(b). The statute expressly identifies the\nPresident as one of the \xe2\x80\x9cpublic official[s]\xe2\x80\x9d subject to the prohibition, and\na son-in-law is a covered \xe2\x80\x9crelative.\xe2\x80\x9d Id. \xc2\xa7 3110(a)(2), (a)(3). Moreover,\nunder Article II of the Constitution, the President exercises \xe2\x80\x9cjurisdiction\nor control\xe2\x80\x9d over the White House Office as well as over the rest of the\nExecutive Branch. See Myers v. United States, 272 U.S. 52, 163\xe2\x80\x9364\n(1926); Inspector General Legislation, 1 Op. O.L.C. 16, 17 (1977). Less\ncertain is whether the White House Office is an \xe2\x80\x9cagency\xe2\x80\x9d\xe2\x80\x94a term that\nsection 3110 defines to include an \xe2\x80\x9cExecutive agency,\xe2\x80\x9d thereby calling up\nthe definition of \xe2\x80\x9cExecutive agency\xe2\x80\x9d generally applicable to title 5, see\n5 U.S.C. \xc2\xa7 3110(a)(1)(A); id. \xc2\xa7 105. But whether or not the White House\nOffice meets this definition (a subject to which we will return in Part II,\ninfra), we believe that the President\xe2\x80\x99s special hiring authority in 3 U.S.C.\n\xc2\xa7 105(a) permits him to make appointments to the White House Office\nthat the anti-nepotism statute might otherwise forbid.\nSection 3110 prohibits the appointment of certain persons to positions\nof employment in the federal government. It is therefore a \xe2\x80\x9cprovision of\nlaw regulating the employment . . . of persons in the Government ser-\n\n2\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nvice.\xe2\x80\x9d 1 Under section 105(a), the President can exercise his authority to\nappoint and fix the pay of employees in the White House Office \xe2\x80\x9cwithout\nregard to\xe2\x80\x9d such a law. 3 U.S.C. \xc2\xa7 105(a)(1). This authority is \xe2\x80\x9c[s]ubject\xe2\x80\x9d\nonly to the provisions of subsection (a)(2), which limit the number of\nWhite House employees the President may appoint at certain pay levels.\nSee id. \xc2\xa7 105(a)(2). Thus, according to the most natural and straightforward reading of section 105(a), the President may appoint relatives as\nemployees in the White House Office \xe2\x80\x9cwithout regard to\xe2\x80\x9d the antinepotism statute.\nThis reading of the two statutes gives section 105(a) a meaning no more\nsweeping than its words dictate. The ordinary effect of \xe2\x80\x9cwithout regard\xe2\x80\x9d\nlanguage is to negate the application of a specified class of provisions. In\nAmerican Hospital Association v. Bowen, 834 F.2d 1037 (D.C. Cir. 1987),\nfor example, the D.C. Circuit declared that the \xe2\x80\x9cplain meaning\xe2\x80\x9d of a\n\xe2\x80\x9cwithout regard\xe2\x80\x9d exemption, which there enabled the Secretary of Health\nand Human Services (\xe2\x80\x9cHHS\xe2\x80\x9d) to carry out his contracting authority\n\xe2\x80\x9cwithout regard to any provision of law relating to the making, performance, amendment or modification of contracts of the United States,\xe2\x80\x9d was\n\xe2\x80\x9cto exempt HHS from . . . the vast corpus of laws establishing rules regarding the procurement of contracts from the government,\xe2\x80\x9d although not\nfrom the requirements of the Administrative Procedure Act. Id. at 1054;\nsee also Friends of Animals v. Jewell, 824 F.3d 1033, 1045 (D.C. Cir.\n2016) (holding that a statutory direction to issue a rule \xe2\x80\x9cwithout regard to\nany other provision of statute or regulation that applies to issuance of such\nrule\xe2\x80\x9d effectively changed the Endangered Species Act); Alliance for the\nWild Rockies v. Salazar, 672 F.3d 1170, 1174\xe2\x80\x9375 (9th Cir. 2012) (reaching the same conclusion about a direction to issue a rule \xe2\x80\x9cwithout regard\nto any other provision of statute or regulation\xe2\x80\x9d); cf. Crowley Caribbean\nTransport, Inc. v. United States, 865 F.2d 1281, 1282\xe2\x80\x9383 (D.C. Cir. 1989)\n(noting, in interpreting an authorization to the President to take certain\naction \xe2\x80\x9cnotwithstanding any other provision of this chapter or any other\nAct,\xe2\x80\x9d that a \xe2\x80\x9cclearer statement is difficult to imagine,\xe2\x80\x9d and declining to\n\xe2\x80\x9cedit\xe2\x80\x9d the language to add an implied exemption).\n1\n\nSubsection (c) of section 3110, which states that an individual appointed, employed,\npromoted, or advanced in violation of the statute\xe2\x80\x99s prohibition is \xe2\x80\x9cnot entitled to pay,\xe2\x80\x9d\n5 U.S.C. \xc2\xa7 3110(c), may also make section 3110 a \xe2\x80\x9cprovision of law regulating the . . .\ncompensation of persons in the Government service\xe2\x80\x9d rendered inapplicable by section\n105(a).\n\n3\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nApplying the \xe2\x80\x9cwithout regard\xe2\x80\x9d language, our Office has interpreted section 105(a) as a grant of \xe2\x80\x9cbroad discretion\xe2\x80\x9d to the President \xe2\x80\x9cin hiring the\nemployees of [the White House Office]\xe2\x80\x9d; the provision, we have said,\n\xe2\x80\x9creflect[s] Congress\xe2\x80\x99s judgment that the President should have complete\ndiscretion in hiring staff with whom he interacts on a continuing basis.\xe2\x80\x9d\nApplicability of the Presidential Records Act to the White House Usher\xe2\x80\x99s\nOffice, 31 Op. O.L.C. 194, 197 (2007); see also Memorandum for Bernard\nNussbaum, Counsel to the President, from Daniel L. Koffsky, Acting\nAssistant Attorney General, Office of Legal Counsel, Re: Presidential\nAuthority under 3 U.S.C. \xc2\xa7 105(a) to Grant Retroactive Pay Increases to\nStaff Members of the White House Office at 2\xe2\x80\x933 (July 30, 1993) (section\n105(a)\xe2\x80\x99s \xe2\x80\x9csweeping language\xe2\x80\x9d gives the President \xe2\x80\x9ccomplete discretion\xe2\x80\x9d\nin adjusting pay of White House Office employees \xe2\x80\x9cin any manner he\nchooses\xe2\x80\x9d). That congressional intent is manifest in the House and Senate\ncommittee reports accompanying the 1978 legislation by which Congress\nenacted section 105(a). See Pub. L. No. 95-570, 92 Stat. 2445 (1978).\nBoth reports state that the language \xe2\x80\x9cexpresses the committee\xe2\x80\x99s intent to\npermit the President total discretion in the employment, removal, and\ncompensation (within the limits established by this bill) of all employees\nin the White House Office.\xe2\x80\x9d H.R. Rep. No. 95-979, at 6 (1978) (emphasis\nadded); S. Rep. No. 95-868, at 7 (1978) (same). Aside from the reference\nto the compensation limits in subsection (a)(2), that statement is qualified\nonly by the committees\xe2\x80\x99 explanation that section 105(a) \xe2\x80\x9cwould not excuse any employee so appointed from full compliance with all laws,\nexecutive orders, and regulations governing such employee\xe2\x80\x99s conduct\nwhile serving under the appointment.\xe2\x80\x9d H.R. Rep. No. 95-979, at 6; S. Rep.\nNo. 95-868, at 7 (same).\nOne piece of section 105(a)\xe2\x80\x99s legislative history does point the other\nway. During the House subcommittee hearing, the General Counsel to the\nPresident\xe2\x80\x99s Reorganization Project at the Office of Management and\nBudget (\xe2\x80\x9cOMB\xe2\x80\x9d) testified that the language exempting the White House\nOffice (along with other entities in the Executive Office of the President)\nfrom the usual rules on hiring and compensation \xe2\x80\x9cwould not exempt\n[these entities] from the restrictions under the nepotism statute because of\nthe specific provisions of that act which apply to the President.\xe2\x80\x9d Authorization for the White House Staff: Hearings Before the Subcomm. on\nEmployee Ethics and Utilization of the H. Comm. on Post Office and\nCivil Service, 95th Cong. 20 (1978) (\xe2\x80\x9cAuthorization for the White House\n4\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nStaff \xe2\x80\x9d) (testimony of F.T. Davis, Jr.). Even if we were prepared to reach\na different understanding of section 105(a)\xe2\x80\x99s text based on a single witness statement, but see S&E Contractors, Inc. v. United States, 406 U.S.\n1, 13 n.9 (1972) (\xe2\x80\x9cIn construing laws we have been extremely wary of\ntestimony before committee hearings[.]\xe2\x80\x9d), this particular statement does\nnot offer a persuasive basis on which to do so. Although no member of\nthe subcommittee disputed the OMB official\xe2\x80\x99s interpretation, it is far from\nclear whether the members (and later, the authors of the House and Senate\nreports) ultimately endorsed his view about the language. The OMB\nofficial offered his interpretation after the subcommittee chair asked about\nthe language\xe2\x80\x99s effect on a number of federal laws and authorities, including \xe2\x80\x9cthe Hatch Act, nepotism law, criminal conflict of interest laws, [and]\nExecutive Order 11222 regulating employee conduct\xe2\x80\x9d; the chair explained that she was asking in order to draft the committee report. Authorization for the White House Staff at 20 (question of Rep. Schroeder).\nBut while another of the witness\xe2\x80\x99s assertions ultimately made it into the\ncommittee reports\xe2\x80\x94his statement that the language would not affect any\nlaws \xe2\x80\x9cdealing with conduct by public officials once they are appointed,\xe2\x80\x9d\nid. (testimony of Mr. Davis), see also H.R. Rep. No. 95-979, at 6; S. Rep.\nNo. 95-868, at 7\xe2\x80\x94his comment about the anti-nepotism statute did not.\nCf. Gustafson v. Alloyd Co., 513 U.S. 561, 580 (1995) (\xe2\x80\x9cIf legislative\nhistory is to be considered, it is preferable to consult the documents\nprepared by Congress when deliberating.\xe2\x80\x9d). Moreover, the rationale the\nOMB official offered for his interpretation\xe2\x80\x94that \xe2\x80\x9cspecific provisions\xe2\x80\x9d of\nsection 3110 \xe2\x80\x9capply to the President\xe2\x80\x9d\xe2\x80\x94is not particularly convincing.\nBecause the President exercises \xe2\x80\x9cjurisdiction or control\xe2\x80\x9d over the entire\nExecutive Branch, section 3110, by its express terms, would seemingly\napply to the President\xe2\x80\x99s filling of numerous positions in federal agencies,\neven if the \xe2\x80\x9cwithout regard to any other provision of law\xe2\x80\x9d language carved\nout a handful of entities in the Executive Office of the President, such as the\nWhite House Office. Cf. Ass\xe2\x80\x99n of Am. Physicians & Surgeons, Inc. v.\nClinton, 997 F.2d 898, 905 (D.C. Cir. 1993) (\xe2\x80\x9cAAPS \xe2\x80\x9d) (suggesting a\nreading of section 3110 under which \xe2\x80\x9ca President would be barred from\nappointing his brother as Attorney General, but perhaps not as a White\nHouse special assistant\xe2\x80\x9d).\nIn our view, therefore, section 105(a) exempts presidential appointments to the White House Office from the scope of the anti-nepotism\nstatute.\n5\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nII.\nHaddon v. Walters, 43 F.3d 1488 (D.C. Cir. 1995) (per curiam), also\nbears on the question here and might appear to resolve it, albeit through a\ndifferent route. Relying on arguments that would apply equally to the\nWhite House Office, Haddon held that the Executive Residence at the\nWhite House is not an \xe2\x80\x9cExecutive agency\xe2\x80\x9d within the title 5 definition. Id.\nat 1490. Because the prohibition in section 3110 applies, as relevant here,\nonly to appointments in \xe2\x80\x9cExecutive agenc[ies],\xe2\x80\x9d Haddon seems to compel\nthe conclusion that the bar against nepotism would not extend to appointments in the White House Office. Reinforcing this conclusion, though\nresting on other grounds, an earlier opinion of the D.C. Circuit had expressed \xe2\x80\x9cdoubt that Congress intended to include the White House\xe2\x80\x9d as an\n\xe2\x80\x9cagency\xe2\x80\x9d under section 3110. AAPS, 997 F.2d at 905; but see id. at 920\xe2\x80\x93\n21 (Buckley, J., concurring in the judgment) (disputing that interpretation\nof \xe2\x80\x9cagency\xe2\x80\x9d).\nThe matter, however, is somewhat more complicated. Not every part of\nthe reasoning in Haddon is entirely persuasive, and the court\xe2\x80\x99s rationale\nextends more broadly than necessary, in our view, to address the question\nnow at hand. Nonetheless, we believe that Haddon lends support to our\nconclusion that the President may appoint relatives to positions in the\nWhite House Office.\nHaddon held that the Executive Residence, which like the White House\nOffice has a staff appointed under title 3, see 3 U.S.C. \xc2\xa7 105(b), is not an\n\xe2\x80\x9cExecutive agency\xe2\x80\x9d within the title 5 definition. Haddon was considering\n42 U.S.C. \xc2\xa7 2000e\xe2\x80\x9316, which extends the antidiscrimination provisions of\nTitle VII of the Civil Rights Act of 1964 to employees or applicants for\nemployment \xe2\x80\x9cin executive agencies as defined in [5 U.S.C. \xc2\xa7 105].\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 2000e\xe2\x80\x9316(a). Under that definition (the same one that governs\nsection 3110), an \xe2\x80\x9cExecutive agency\xe2\x80\x9d means \xe2\x80\x9can Executive department,\na Government corporation, and an independent establishment.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 105. Because the Executive Residence, like the White House Office,\nis plainly not an \xe2\x80\x9cExecutive department\xe2\x80\x9d or a \xe2\x80\x9cGovernment corporation,\xe2\x80\x9d\nsee id. \xc2\xa7\xc2\xa7 101, 103, the issue in Haddon came down to whether the Executive Residence is an \xe2\x80\x9cindependent establishment,\xe2\x80\x9d see id. \xc2\xa7 104.\nThe D.C. Circuit had two reasons for concluding that the Executive\nResidence is not an independent establishment and therefore not an Executive agency under 5 U.S.C. \xc2\xa7 105. First, the court observed that another\n6\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nstatute, 3 U.S.C. \xc2\xa7 112, authorizes \xe2\x80\x9c[t]he head of any department, agency,\nor independent establishment of the executive branch of the Government\n[to] detail, from time to time, employees of such department, agency, or\nestablishment to the White House Office, the Executive Residence at the\nWhite House, the Office of the Vice President, the Domestic Policy Staff,\nand the Office of Administration.\xe2\x80\x9d In the court\xe2\x80\x99s view, this phrasing\nsuggested that the listed entities in the Executive Office of the President\nare not themselves \xe2\x80\x9cdepartment[s], agenc[ies], or independent establishment[s].\xe2\x80\x9d Haddon, 43 F.3d at 1490 (\xe2\x80\x9cThat Congress distinguished the\nExecutive Residence from the independent establishments, whatever they\nmay be, suggests that Congress does not regard the Executive Residence\nto be an independent establishment, as it uses that term.\xe2\x80\x9d). Second, the\ncourt said that title 5 of the U.S. Code \xe2\x80\x9crelates to government organization\nand employees and prescribes pay and working conditions for agency\nemployees,\xe2\x80\x9d while title 3 of the Code \xe2\x80\x9caddresses similar concerns with\nrespect to the President\xe2\x80\x99s advisors and the staff of the Executive Residence.\xe2\x80\x9d Id. The incorporation of the title 5 definition in section 2000e\xe2\x80\x9316,\nthe court explained, suggests that Congress intended the statute to cover\nonly \xe2\x80\x9ctitle 5\xe2\x80\x9d positions\xe2\x80\x94not positions provided for in 3 U.S.C. \xc2\xa7 105 and\nother title 3 authorities. Id. 2\nThe D.C. Circuit\xe2\x80\x99s first reason may be the less convincing of the two.\nThe wording of the detail statute, 3 U.S.C. \xc2\xa7 112, \xe2\x80\x9cdistinguish[es]\xe2\x80\x9d between the sending and receiving entities only insofar as the sending entities are identified generically, while the small group of entities that may\nreceive details, including the Executive Residence and the White House\nOffice, are specifically named. This wording might well be an apt way to\nauthorize a detail without implying anything about the status of the receiving entities. Indeed, Congress elsewhere used similar constructions\nto provide for transfers between executive departments. Section 2256 of\ntitle 7, U.S. Code, declares that the \xe2\x80\x9chead of any department\xe2\x80\x9d may \xe2\x80\x9ctransfer to the Department [of Agriculture]\xe2\x80\x9d funds to perform certain inspections, analyses, or tests. Similarly, under 22 U.S.C. \xc2\xa7 2675, the Secretary\nof State may \xe2\x80\x9ctransfer to any department\xe2\x80\x9d certain \xe2\x80\x9cfunds appropriated to\n2\n\nShortly after Haddon, Congress passed the Presidential and Executive Office Accountability Act, Pub. L. No. 104-331, 110 Stat. 4053 (1996), which expressly applies\nTitle VII and other federal civil rights and workplace laws to entities in the Executive\nOffice of the President, including the White House Office and the Executive Residence.\nSee id. \xc2\xa7 2(a) (relevant provisions codified at 3 U.S.C. \xc2\xa7\xc2\xa7 401, 402, 411).\n\n7\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nthe Department of State.\xe2\x80\x9d The generic references to \xe2\x80\x9cdepartments\xe2\x80\x9d on one\nside of these transactions could not be read to imply that the entities on\nthe other side, the Departments of Agriculture and State, are not \xe2\x80\x9cdepartments.\xe2\x80\x9d\nThe court\xe2\x80\x99s second argument seems stronger, although the court stated\nit more broadly than the facts of Haddon required. The court apparently\nviewed the provisions in title 3 as creating a complete substitute for title 5:\n\xe2\x80\x9cwhile Title 5 relates to government organization and employees and\nprescribes pay and working conditions for agency employees, Title 3\naddresses similar concerns with respect to the President\xe2\x80\x99s advisors and the\nstaff of the Executive Residence.\xe2\x80\x9d Haddon, 43 F.3d at 1490 (citation\nomitted). The court then quoted, in a parenthetical, the \xe2\x80\x9cwithout regard\xe2\x80\x9d\nprovision for hiring in the Executive Residence that exactly parallels\nthe one for the White House Office. Id. (quoting 3 U.S.C. \xc2\xa7 105(b)(1)).\nInasmuch as the plaintiff in Haddon claimed that he had been unlawfully\npassed over for promotion\xe2\x80\x94that he had not been appointed to a higher\nposition with higher pay\xe2\x80\x94his claim had to do with exactly the subjects\nidentified in 3 U.S.C. \xc2\xa7 105(b)(1), \xe2\x80\x9cemployment or compensation of\npersons in the Government service.\xe2\x80\x9d Section 105(b)(1) could therefore be\nunderstood to displace the restrictions in Title VII, even if title 3 did not\ncompletely displace all of title 5. Thus, the court\xe2\x80\x99s broader statements\nabout the relationship of title 3 and title 5, though not dicta, went further\nthan necessary to decide the case and further than we need to go here.\nIn any event, our conclusion above\xe2\x80\x94that the President\xe2\x80\x99s special hiring\nauthority in 3 U.S.C. \xc2\xa7 105(a) allows him to appoint relatives to the White\nHouse Office without regard to section 3110\xe2\x80\x99s bar against nepotism\xe2\x80\x94is\nconsistent with the holding in Haddon and with the court\xe2\x80\x99s reliance on the\nparallel language in 3 U.S.C. \xc2\xa7 105(b)(1). In accordance with Haddon,\nwe believe that the White House Office is not an \xe2\x80\x9cExecutive agency\xe2\x80\x9d\ninsofar as the laws on employment and compensation are concerned. Both\nthe \xe2\x80\x9cwithout regard\xe2\x80\x9d language of section 105(a) and the general treatment\nof the White House Office under title 3 instead of title 5 undergird this\nconclusion. 3 Having conformed our analysis, to this extent, with the only\nauthoritative judicial guidance bearing on this question, we have no need\nto delve into the issue whether the White House Office should be consid-\n\n3 We do not address the application of section 3110 to any other component of the\ngovernment.\n\n8\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nered outside of title 5 for all purposes whenever the application of that\ntitle is confined to \xe2\x80\x9cExecutive agenc[ies].\xe2\x80\x9d 4\n4\n\nWe have observed before that the D.C. Circuit\xe2\x80\x99s reasoning in Haddon would seemingly extend to other entities listed in section 112 with special hiring authorities under\ntitle 3, including the White House Office. See Memorandum for Gregory B. Craig,\nCounsel to the President, from David J. Barron, Acting Assistant Attorney General,\nOffice of Legal Counsel, Re: Application of 5 U.S.C. \xc2\xa7 3110 to Two Proposed Appointments by the President to Advisory Committees at 18 (Sept. 17, 2009); Application of 18\nU.S.C. \xc2\xa7 603 to Contributions to the President\xe2\x80\x99s Re-Election Committee, 27 Op. O.L.C.\n118, 118 (2003) (\xe2\x80\x9cSection 603 Opinion\xe2\x80\x9d). In one circumstance, however, because of\nfeatures \xe2\x80\x9cunique\xe2\x80\x9d to the statutory scheme at issue\xe2\x80\x94the Hatch Act Reform Amendments of\n1993 (\xe2\x80\x9cHARA\xe2\x80\x9d)\xe2\x80\x94we have found that the White House Office should be treated as an\n\xe2\x80\x9cExecutive agency\xe2\x80\x9d under title 5 notwithstanding Haddon. See Section 603 Opinion, 27\nOp. O.L.C. at 119 (White House Office employees may make contributions to a President\xe2\x80\x99s authorized re-election campaign by virtue of an exception available to employees\nin an \xe2\x80\x9cExecutive agency\xe2\x80\x9d).\nSection 603 of title 18 prohibits \xe2\x80\x9can officer or employee of the United States or any\ndepartment or agency thereof \xe2\x80\x9d from \xe2\x80\x9cmak[ing] any contribution . . . to any other such\nofficer, employee or person . . . if the person receiving such contribution is the employer\nor employing authority of the person making the contribution.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 603(a).\nBut section 603(c) exempts from liability \xe2\x80\x9cemployee[s] (as defined in section 7322(1) of\ntitle 5)\xe2\x80\x9d\xe2\x80\x94meaning, employees subject to HARA. Section 7322(1), in turn, defines\n\xe2\x80\x9cemployee\xe2\x80\x9d as \xe2\x80\x9cany individual, other than the President and the Vice President, employed\nor holding office in . . . an Executive agency.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 7322(1)(A). Several considerations led us in our Section 603 Opinion to confirm a prior opinion treating the White\nHouse Office as an \xe2\x80\x9cExecutive agency\xe2\x80\x9d for purposes of section 7322(1), see Whether 18\nU.S.C. \xc2\xa7 603 Bars Civilian Executive Branch Employees and Officers from Making\nContributions to a President\xe2\x80\x99s Authorized Re-Election Campaign Committee, 19 Op.\nO.L.C. 103 (1995). First, there would be \xe2\x80\x9cno purpose\xe2\x80\x9d for section 7322(1)\xe2\x80\x99s express\nexclusion of the President and the Vice President if they were not understood to be\n\xe2\x80\x9cholding office in . . . an Executive agency.\xe2\x80\x9d Section 603 Opinion, 27 Op. O.L.C. at 119.\nSecond, the exception to HARA\xe2\x80\x99s substantive prohibition on partisan political activity in\n5 U.S.C. \xc2\xa7 7324(b)(2)(B)(i) applies to \xe2\x80\x9cemployee[s] paid from an appropriation for the\nExecutive Office of the President,\xe2\x80\x9d further reflecting HARA\xe2\x80\x99s assumption that such\nemployees are otherwise covered. Section 603 Opinion, 27 Op. O.L.C. at 119. Third,\nreading section 7322(1) to exclude employees of the White House Office \xe2\x80\x9cmight be\nthought to produce highly anomalous results,\xe2\x80\x9d as it would follow that White House\nemployees \xe2\x80\x9cwould be entirely free from the restrictions of [HARA]\xe2\x80\x9d and \xe2\x80\x9cwould be able\nto engage in all sorts of partisan political activity,\xe2\x80\x9d including by \xe2\x80\x9cus[ing] [their] official\nauthority or influence for the purpose of interfering with or affecting the result of an\nelection,\xe2\x80\x9d see 5 U.S.C. \xc2\xa7 7323(a)(1). Section 603 Opinion, 27 Op. O.L.C. at 119. Thus,\nwe determined that there are \xe2\x80\x9cpowerful reasons to conclude that the term \xe2\x80\x98Executive\nagency\xe2\x80\x99 in section 7322(1) does not have the same meaning that section 105 of title 5\ngenerally assigns it (and that cases like Haddon recognize) for the purpose of title 5.\xe2\x80\x9d Id.\n\n9\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nIII.\nOur Office, on several occasions, has addressed the application of section 3110 to presidential appointments, including appointments to the\nWhite House Office and other entities within the Executive Office of the\nPresident. Although our conclusion today departs from some of that prior\nwork, we think that this departure is fully justified. Our initial opinions on\nthe subject drew unwarranted inferences about Congress\xe2\x80\x99s intent from a\nsingle witness statement in a congressional hearing. Moreover, the surrounding legal context has been transformed by the subsequent enactment\nof section 105(a), which expressly and specifically addresses employment\nwithin the White House Office, and also by the D.C. Circuit\xe2\x80\x99s decision in\nHaddon.\nA.\nSection 3110 was enacted in 1967. In a 1972 memorandum, our Office\nconcluded that the statute would bar the President from appointing a\nrelative \xe2\x80\x9cto permanent or temporary employment as a member of the\nWhite House staff.\xe2\x80\x9d Memorandum for John W. Dean, III, Counsel to the\nPresident, from Roger C. Cramton, Assistant Attorney General, Office of\nLegal Counsel, Re: Applicability to President of Restriction on Employment of Relatives at 1 (Nov. 14, 1972) (\xe2\x80\x9cCramton Memo\xe2\x80\x9d). The Cramton\nMemo is brief but unequivocal: section 3110, we said, \xe2\x80\x9cseems clearly\napplicable to . . . positions on the White House staff.\xe2\x80\x9d Id. at 2.\nIn 1977, we advised that section 3110 would preclude the President\nfrom appointing the First Lady to serve as chair of the President\xe2\x80\x99s Commission on Mental Health (\xe2\x80\x9cMental Health Commission\xe2\x80\x9d), whether with\nor without compensation. See Memorandum for Douglas B. Huron, Associate Counsel to the President, from John M. Harmon, Acting Assistant\nAttorney General, Office of Legal Counsel, Re: Possible Appointment of\nMrs. Carter as Chairman of the Commission on Mental Health (Feb. 18,\n1977) (\xe2\x80\x9cMental Health Commission Memo I\xe2\x80\x9d) (referencing attached\nMemorandum for John M. Harmon, Acting Assistant Attorney General,\nOffice of Legal Counsel, Re: Legality of the President\xe2\x80\x99s Appointing Mrs.\nCarter as Chairman of the Commission on Mental Health (Feb. 17, 1977)\n(\xe2\x80\x9cMental Health Commission Memo II\xe2\x80\x9d)). We determined that the Mental\nHealth Commission, which would be established by executive order and\nassigned specific authorities, would \xe2\x80\x9cclearly\xe2\x80\x9d qualify as an independent\n10\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nestablishment within the \xe2\x80\x9ccomprehensive\xe2\x80\x9d meaning of that term. Mental\nHealth Commission Memo I. Our analysis noted, however, that the funding for the Commission would come from an annual appropriation for the\nExecutive Office of the President covering \xe2\x80\x9cUnanticipated Needs,\xe2\x80\x9d and\nwe accordingly considered the effect of language in that appropriation\nthat, presaging section 105(a), authorized the President to hire personnel\n\xe2\x80\x9cwithout regard to any provision of law regulating employment and pay of\npersons in the Government service.\xe2\x80\x9d Mental Health Commission Memo\nII, at 5\xe2\x80\x936. We ultimately concluded that the appropriation language did\nnot override section 3110. Although we did not say that the Mental Health\nCommission would be located in the White House Office specifically, our\nanalysis suggested that our conclusion about the appointment would have\nbeen the same, whether or not the position was located there. See id.\nShortly afterward, the White House asked us to answer that very question: whether section 3110 applied to the contemplated appointment of the\nPresident\xe2\x80\x99s son to serve as an unpaid assistant to a member of the White\nHouse staff. See Memorandum for the Attorney General from John M.\nHarmon, Acting Assistant Attorney General, Office of Legal Counsel, Re:\nEmployment of Relatives Who Will Serve Without Compensation (Mar. 23,\n1977) (\xe2\x80\x9cWhite House Aide Memo I\xe2\x80\x9d) (referencing attached Memorandum\nfor John M. Harmon, Acting Assistant Attorney General, Office of Legal\nCounsel, Re: Appointment of President\xe2\x80\x99s Son to Position in the White\nHouse Office (Mar. 15, 1977) (\xe2\x80\x9cWhite House Aide Memo II\xe2\x80\x9d)). The Civil\nService Commission, the predecessor of the Office of Personnel Management, had advanced several arguments why section 3110 did not forbid\nthe President\xe2\x80\x99s appointment of relatives to his personal staff. See White\nHouse Aide Memo I, at 1. Reaffirming the points made in the Mental\nHealth Commission Memos, however, our Office concluded that the\nstatute also covered the proposed appointment. Once again, we rejected an\nargument that the language in the annual appropriation for the White\nHouse Office (i.e., the \xe2\x80\x9cwithout regard\xe2\x80\x9d language) exempted those appointments from section 3110. White House Aide Memo II, at 1\xe2\x80\x933.\nIn 1983, we were asked whether the President could appoint a relative\nto a Presidential Advisory Committee on Private Sector Initiatives\n(\xe2\x80\x9cCPSI\xe2\x80\x9d). See Memorandum for David B. Waller, Senior Associate Counsel to the President, from Robert B. Shanks, Deputy Assistant Attorney\nGeneral, Office of Legal Counsel, Re: Appointment of Member of President\xe2\x80\x99s Family to Presidential Advisory Committee on Private Sector\n11\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nInitiatives (Feb. 28, 1983). We answered that the President\xe2\x80\x99s proposed\nappointment of a relative to the CPSI raised \xe2\x80\x9cvirtually the same problems\nraised by Mrs. Carter\xe2\x80\x99s proposed service on the President\xe2\x80\x99s Commission\non Mental Health.\xe2\x80\x9d Id. at 2. Because we lacked \xe2\x80\x9csufficient time to reexamine the legal analysis contained in our earlier memoranda,\xe2\x80\x9d we stated\nthat we had no choice but to \xe2\x80\x9cadhere to the conclusion\xe2\x80\x9d that \xe2\x80\x9cthe President\ncannot, consistently with section 3110, appoint a relative as an active\nmember of such a Commission.\xe2\x80\x9d Id.\nMost recently, we advised whether the President could appoint his\nbrother-in-law and his half-sister to two advisory committees. Once again,\nwe found that section 3110 precluded the appointments. See Memorandum for Gregory B. Craig, Counsel to the President, from David J. Barron, Acting Assistant Attorney General, Office of Legal Counsel, Re:\nApplication of 5 U.S.C. \xc2\xa7 3110 to Two Proposed Appointments by the\nPresident to Advisory Committees (Sept. 17, 2009) (\xe2\x80\x9cBarron Opinion\xe2\x80\x9d). In\nthe course of that analysis, we considered whether one of the committees,\nthe President\xe2\x80\x99s Commission on White House Fellowships (\xe2\x80\x9cFellowships\nCommission\xe2\x80\x9d), was located within the Executive Office of the President\nor was instead a free-standing establishment within the Executive Branch.\nId. at 14\xe2\x80\x9315. 5 Concluding that, either way, the Fellowships Commission\nwas, or was within, an \xe2\x80\x9cindependent establishment\xe2\x80\x9d falling within the\ntitle 5 definition of Executive agency, we did not decide the question. Id.\nBut we explicitly rejected the possibility that the Fellowships Commission constituted a part of the White House Office. Id. at 14. As a result,\nthe Barron Opinion had no occasion to reapply or reconsider our precedents finding that section 3110 barred the President from appointing\nrelatives to White House Office positions. See id. at 18\xe2\x80\x9319 (distinguishing\nHaddon).\nB.\nAlthough none of our previous opinions analyzed the interaction between 3 U.S.C. \xc2\xa7 105(a) and the anti-nepotism statute, our 1977 memo-\n\n5\n\nWe concluded that the other advisory committee at issue, the President\xe2\x80\x99s Council on\nPhysical Fitness and Sports, constituted part of the Department of Health and Human\nServices. Barron Opinion at 9. Nothing in our present opinion should be understood to\nquestion our prior conclusions about filling positions not covered by the special hiring\nauthorities in title 3.\n\n12\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nranda did consider the effect of language in annual appropriations for the\nExecutive Office of the President that was nearly identical to section\n105(a). Prompted by the inconsistency between our earlier memoranda\nand the implications of Haddon, we now revisit the reasoning in those\nmemoranda in order to assess the issue presented under section 105(a).\nWhile acknowledging that the appropriation language was \xe2\x80\x9cbroad\xe2\x80\x9d and\nthe issue \xe2\x80\x9cnot wholly free of doubt,\xe2\x80\x9d our memorandum regarding the\nWhite House appointment reasoned that section 3110 should be understood as a \xe2\x80\x9cspecific prohibition\xe2\x80\x9d constituting an \xe2\x80\x9cexception to the general\nrule that limitations on employment do not apply to the White House\nOffice.\xe2\x80\x9d White House Aide Memo II, at 3. We therefore invoked the\n\xe2\x80\x9cbasic principle of statutory construction that a statute dealing with a\nnarrow, precise, and specific subject is not submerged by a later enacted\nstatute covering a more generalized spectrum.\xe2\x80\x9d Id. (quoting Radzanower\nv. Touche Ross & Co., 426 U.S. 148, 153 (1976)). But the canon about\ngeneral and specific statutes seems of limited help here, because neither\nof the two relevant statutes can readily be characterized as more or less\nspecific than the other. To be sure, section 3110 could be said to concern\nthe \xe2\x80\x9cspecific\xe2\x80\x9d subject of nepotism. But section 105(a) could reasonably be\ndescribed as a statute \xe2\x80\x9cdealing with [the] narrow, precise, and specific\xe2\x80\x9d\nsubject of hiring for the White House Office that ought to overcome the\ngenerally applicable anti-nepotism rule of section 3110.\nThe 1977 memoranda also put significant weight on the legislative history of section 3110, discerning a clear congressional intent that the\nExecutive Office of the President, including the White House Office, be\namong the entities subject to the anti-nepotism prohibition. See Mental\nHealth Commission Memo I; Mental Health Commission Memo II, at 5;\nWhite House Aide Memo I, at 2; White House Aide Memo II, at 2\xe2\x80\x933. We\nthink that this history is not so compelling, however, as to direct the\noutcome on the question here.\nSection 3110 was enacted as part of the Postal Revenue and Federal\nSalary Act of 1967. See Pub. L. No. 90-206, \xc2\xa7 221, 81 Stat. 613, 640.\nWhen Congress considered and passed the legislation, the annual appropriations for the Executive Office of the President then in effect included\nthe permissive language about the President\xe2\x80\x99s authority to hire personnel\nin the White House Office. See Pub. L. No. 90-47, tit. III, 81 Stat. 113,\n117 (1967). As our 1977 memoranda observed, there was no mention of\nthose appropriations or that language during Congress\xe2\x80\x99s consideration of\n13\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nthe anti-nepotism provision. But one witness, the Chairman of the Civil\nService Commission, testified before the Senate committee that, in his\nview, the language then under consideration would have prevented President Franklin Delano Roosevelt from appointing his son \xe2\x80\x9cat the White\nHouse as a civilian aide\xe2\x80\x9d (as President Roosevelt had done). Federal Pay\nLegislation: Hearings Before the S. Comm. on Post Office and Civil\nService, 90th Cong. 366 (1967) (\xe2\x80\x9cFederal Pay Legislation Hearings\xe2\x80\x9d)\n(testimony of Chairman Macy). Following the hearing, the Senate amended the provision in the bill and explicitly named the President as a \xe2\x80\x9cpublic\nofficial\xe2\x80\x9d to whom the bar applied. \xe2\x80\x9cBecause the Senate Hearings contain\nthe only extended discussion of the provision and the only discussion at\nall of its application to the President,\xe2\x80\x9d we explained in our memorandum\nconcerning the White House appointment, \xe2\x80\x9cit seems appropriate to attach\nparticular significance to the Civil Service Commission\xe2\x80\x99s interpretation of\nthe statute in the course of the hearings. It is reasonable to assume that the\nSenate Committee and eventually the Congress acted on the basis of\nChairman Macy\xe2\x80\x99s interpretation of the prohibition as drafted.\xe2\x80\x9d White\nHouse Aide Memo II, at 2.\nHaving reexamined the legislative materials, we no longer would make\nthat assumption. The Senate committee and Chairman Macy were reviewing a version of the bill that prohibited nepotistic appointments to \xe2\x80\x9cdepartment[s],\xe2\x80\x9d defined more broadly to include \xe2\x80\x9ceach department, agency,\nestablishment, or other organization unit in or under the . . . executive . . .\nbranch of the Government . . . including a Government-owned or controlled corporation.\xe2\x80\x9d H.R. 7977, 90th Cong. \xc2\xa7 222 (as referred to S. Comm.\non Post Office and Civil Service, Oct. 16, 1967) (emphasis added). It is\nunclear why the Senate amended the provision to apply instead to \xe2\x80\x9cExecutive agenc[ies]\xe2\x80\x9d and thus to call up the title 5 definition of that term. See\nH.R. 7977, 90th Cong. \xc2\xa7 221 (as reported out of S. Comm. on Post Office\nand Civil Service, Nov. 21, 1967). The Senate report does not explain the\nchange. See S. Rep. No. 90-801, at 28 (1967). Nevertheless, that the Civil\nService Commission Chairman was considering different statutory language when offering his view about the scope of the prohibition dilutes\nthe strength of his testimony\xe2\x80\x94which, as a witness statement, should\ntypically be afforded less weight to begin with. See S&E Contractors, 406\nU.S. at 13 n.9; Gustafson, 513 U.S. at 580.\nBecause the appropriation language was apparently never mentioned\nduring the House\xe2\x80\x99s or Senate\xe2\x80\x99s consideration of the bill, the debates and\n14\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nother materials include no clear statement that the anti-nepotism provision\nwas intended to prevail over the broad hiring authority previously granted\nin that year\xe2\x80\x99s appropriation for the Executive Office of the President. 6\nMoreover, aside from that single question about the service of President\nRoosevelt\xe2\x80\x99s son as a White House aide\xe2\x80\x94which was part of a series of\nquestions posed by the senators to Chairman Macy about the language\xe2\x80\x99s\napplication to the President generally, see Federal Pay Legislation Hearings at 360\xe2\x80\x9369\xe2\x80\x94neither the Senate nor the House appears to have focused\non the White House Office. We therefore are hesitant to infer that the 90th\nCongress envisioned that section 3110 would overcome the President\xe2\x80\x99s\nhiring authorities under the annual appropriation. We are even more\nreluctant to draw that inference with respect to the permanent special\nhiring authority for the White House Office that Congress enacted ten\nyears later.\nIV.\nFinally, we believe that this result\xe2\x80\x94that the President may appoint relatives to his immediate staff of advisors in the White House Office\xe2\x80\x94makes\nsense when considered in light of other applicable legal principles. Congress has not blocked, and most likely could not block, the President from\n6\n\nIndividual senators did stress the amended provision\xe2\x80\x99s breadth in floor statements.\nSee 113 Cong. Rec. 36103 (1967) (statement of Sen. Randolph) (indicating that the Senate\namended the provision \xe2\x80\x9cto plug any loopholes which might exist,\xe2\x80\x9d because \xe2\x80\x9c[i]t was\ncritical that the nepotism provisions be applied across the board\xe2\x80\x9d); id. (stating that \xe2\x80\x9c[w]e\ncould not stop at a certain point in formulating a policy on nepotism\xe2\x80\x9d and \xe2\x80\x9chad to apply\nthe policy across the board\xe2\x80\x9d); id. at 36103\xe2\x80\x9304 (suggesting that \xe2\x80\x9cthe White House believes,\nas does now the Congress, that a nonnepotism policy should apply equally to any branch\nof Government\xe2\x80\x9d); id. at 37316 (statement of Sen. Udall) (explaining that the provision\napplies \xe2\x80\x9cacross-the-board, from the highest office to the lowest paid job, with equal force\nand effect\xe2\x80\x9d and that \xe2\x80\x9c[n]o official in any of the three branches of the Government . . . may\nappoint or promote a relative to any position under his or her control or jurisdiction,\xe2\x80\x9d and\ncalling it \xe2\x80\x9cthe strongest possible guarantee against any abuse of Federal appointive\nauthority and any preference in Federal positions that is adverse to the public interest\xe2\x80\x9d).\nThese statements, whatever their worth in demonstrating congressional intent more\ngenerally, suggest that at least those senators meant for section 3110 to have broad effect\nacross the three branches of government. But because those statements do not speak to\nsection 3110\xe2\x80\x99s relationship to the President\xe2\x80\x99s hiring authority under the annual appropriations for the Executive Office of the President\xe2\x80\x94and, of course, could not speak to the\nrelationship between section 3110 and the later-enacted section 105(a)\xe2\x80\x94they do not\nilluminate the matter at hand.\n\n15\n\n\x0cOpinions of the Office of Legal Counsel in Volume 41\n\nseeking advice from family members in their personal capacities. Cf. In\nre Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005) (en banc) (referring to the\nPresident\xe2\x80\x99s need, \xe2\x80\x9c[i]n making decisions on personnel and policy, and\nin formulating legislative proposals, . . . to seek confidential information\nfrom many sources, both inside the government and outside\xe2\x80\x9d); Pub. Citizen v. Dep\xe2\x80\x99t of Justice, 491 U.S. 440, 466 (1989) (construing the Federal\nAdvisory Committee Act (\xe2\x80\x9cFACA\xe2\x80\x9d) not to apply to the judicial recommendation panels of the American Bar Association in order to avoid\n\xe2\x80\x9cformidable constitutional difficulties\xe2\x80\x9d). Consequently, even if the antinepotism statute prevented the President from employing relatives in the\nWhite House as advisors, he would remain free to consult those relatives\nas private citizens. See Barron Opinion at 8\xe2\x80\x939 (finding the application of\nsection 3110 to presidential advisory committees constitutional in part\nbecause \xe2\x80\x9c[t]he President remains free to consult his relatives in their\nprivate, individual capacities at the time and place of, and on the subjects\nof, his choosing\xe2\x80\x9d). And our Office has found that such an informal, \xe2\x80\x9cessentially personal\xe2\x80\x9d advisory relationship, even if the private person offers\nadvice to the President on a \xe2\x80\x9cwide variety of issues,\xe2\x80\x9d does not make that\nperson an employee of the federal government subject to the conflict of\ninterest laws in title 18. Status of an Informal Presidential Advisor as a\n\xe2\x80\x9cSpecial Government Employee\xe2\x80\x9d, 1 Op. O.L.C. 20, 20\xe2\x80\x9321 (1977) (\xe2\x80\x9cInformal Presidential Advisor\xe2\x80\x9d); see also id. at 22 (\xe2\x80\x9cMrs. Carter would not\nbe regarded as a special Government employee solely on the ground that\nshe may discuss governmental matters with the President on a daily basis.\xe2\x80\x9d). 7\nBut the conflict of interest laws do apply to employees of the White\nHouse Office. See 18 U.S.C. \xc2\xa7\xc2\xa7 203, 205, 207, 208, 209 (all applicable\nto, inter alia, officers and employees in the \xe2\x80\x9cexecutive branch\xe2\x80\x9d); id.\n\xc2\xa7 202(e)(1) (defining \xe2\x80\x9cexecutive branch\xe2\x80\x9d for purposes of those statutes to\ninclude \xe2\x80\x9ceach executive agency as defined in title 5, and any other entity\n\n7\n\nOur opinion explained, however, that while the informal presidential advisor\xe2\x80\x99s general practice (as we understood it) of discussing policy issues directly with the President\ndid not itself render him a government employee, his more extensive \xe2\x80\x9cwork\xe2\x80\x9d on a particular \xe2\x80\x9ccurrent social issue\xe2\x80\x9d\xe2\x80\x94in connection with which the advisor \xe2\x80\x9ccalled and chaired a\nnumber of meetings that were attended by employees of various agencies\xe2\x80\x9d and \xe2\x80\x9cassumed\nconsiderable responsibility for coordinating the Administration\xe2\x80\x99s activities in that particular area\xe2\x80\x9d\xe2\x80\x94did cross a line and made him a government employee for purposes of that\nwork. Informal Presidential Advisor, 1 Op. O.L.C. at 23.\n\n16\n\n\x0cApplication of Anti-Nepotism Statute to Presidential Appointment in White House\n\nor administrative unit in the executive branch\xe2\x80\x9d); id. \xc2\xa7 207(c)(2)(A)(iii),\n(d)(1)(C) (applying more stringent post-employment restrictions to\nemployees appointed to the White House Office pursuant to 3 U.S.C.\n\xc2\xa7 105(a)(2)); see also, e.g., Applicability of Post-Employment Restrictions\nin 18 U.S.C. \xc2\xa7 207 to a Former Government Official Representing a\nFormer President or Vice President in Connection with the Presidential\nRecords Act, 25 Op. O.L.C. 120 (2001) (considering section 207\xe2\x80\x99s application to former employees of the White House Office).\nA President wanting a relative\xe2\x80\x99s advice on governmental matters therefore has a choice: to seek that advice on an unofficial, ad hoc basis without conferring the status and imposing the responsibilities that accompany\nformal White House positions; or to appoint his relative to the White\nHouse under title 3 and subject him to substantial restrictions against\nconflicts of interest. Cf. AAPS, 997 F.2d at 911 n.10 (declining, after\nholding that the First Lady qualifies as a \xe2\x80\x9cfull-time officer or employee\xe2\x80\x9d\nof the government under FACA, to decide her status under the conflict of\ninterest statutes). In choosing his personal staff, the President enjoys an\nunusual degree of freedom, which Congress found suitable to the demands\nof his office. Any appointment to that staff, however, carries with it a set\nof legal restrictions, by which Congress has regulated and fenced in the\nconduct of federal officials.\n* * * * *\nIn our view, section 105(a) of title 3 exempts appointments to the\nWhite House Office from the bar in section 3110 of title 5. Section 3110\ntherefore would not prohibit the contemplated appointment.\nDANIEL L. KOFFSKY\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n17\n\n\x0c'


b'Administrative Assessment of Civil Penalties Against Federal\nAgencies Under the Clean Air Act\nT he C lean Air A ct authorizes the E nvironm ental Protection A gency adm inistratively to assess civil\npenalties against federal agencies for violations of the Act or its im plem enting regulations.\nSeparation of pow ers concerns do not bar E P A \xe2\x80\x99s exercise o f this authority, because it can be exercised\nconsistent with the C onstitution.\n\nJuly 16, 1997\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nE n v ir o n m e n t a l P r o t e c t io n A g e n c y\nand\nthe\n\nG eneral C ounsel\n\nD epa r tm en t o f D efen se\n\nY o u have asked for our opinion resolving a dispute between the Environmental\nProtection Agency (\xe2\x80\x9c EPA\xe2\x80\x9d ) and the Department of Defense ( \xe2\x80\x9c DOD\xe2\x80\x9d ) con\xc2\xad\ncerning whether the Clean Air Act (\xe2\x80\x9c the Act\xe2\x80\x9d ), 42 U.S.C. \xc2\xa7\xc2\xa7 7401-7671q (1994),\nauthorizes EPA administratively to assess civil penalties against federal agencies\nfor violations of the Act or its implementing regulations, and if so, whether this\nauthority can be exercised consistent with the Constitution.1 Applying the \xe2\x80\x9c clear\nstatement\xe2\x80\x9d rule of statutory construction, which is applicable where a particular\ninterpretation or application of an Act of Congress would raise separation of\npowers concerns, we conclude that the Act does provide EPA such authority. We\nalso conclude that these separation of powers concerns do not bar EPA\xe2\x80\x99s exercise\nof this authority because it can be exercised consistent with the Constitution.\n\nI.\nA.\nEPA\xe2\x80\x99s authority to initiate enforcement proceedings under the Clean Air Act\nis set forth in section 113 of the Act, entitled \xe2\x80\x9c Federal Enforcement,\xe2\x80\x9d 42 U.S.C.\n1 See Letter for Walter Dellinger, Assistant Attorney General, Office of Legal Counsel, from Jonathan Z. Cannon,\nAssistant Administrator (General Counsel), EPA (Oct 3, 1995), enclosing Memorandum on Assessment o f Adm inistra\xc2\xad\ntive Penalties Against Federal Facilities under the Clean A ir Act (Sept 11, 1995) ( \xe2\x80\x9c EPA M emorandum\xe2\x80\x9d ), Letter\nfor W alter Dellinger, from Judith A Miller, General Counsel, DOD (Dec 15, 1995), enclosing DOD Response\nMemorandum \xe2\x80\xa2 Assessment o f Administrative Penalties Against Executive Branch Agencies Under Section II3{d) o f\nthe Clean A ir Act (Dec 15, 1995) ( \xe2\x80\x98\xe2\x80\x98DOD Response\xe2\x80\x9d ), Letter for Christopher Schroeder, Acting Assistant Attorney\nGeneral, Office o f Legal Counsel, from Jonathan Z Cannon (Oct 18, 1996), enclosing EPA Memorandum in Reply\nto Department o f Defense Concerning Administrative Assessment o f Civil Penalties Against Federal Facilities Under\nthe Clean Air Act (Sept. 16, 1996) ( \xe2\x80\x9c EPA Reply\xe2\x80\x9d )\n109\n\n\x0cO pinions o f the O ffice o f L egal C ounsel in V olum e 21\n\n\xc2\xa77413 (1994). As summarized in section 113(a)(3),2 section 113 provides that\nwhen EPA finds that \xe2\x80\x9c any person has violated, or is in violation o f \xe2\x80\x99 the Act\nor its implementing regulations, EPA may issue an administrative penalty order\nor a compliance order, bring a civil action, or request the Attorney General to\ncommence a criminal action. The questions presented to us are whether the Act\nauthorizes EPA to issue an administrative penalty order to a federal agency under\nsection 113(d), and if so, whether that authority can be exercised consistent with\nthe Constitution.3\nThe Act authorizes EPA to issue two kinds of administrative penalty orders.\nSection 113(d)(1) authorizes EPA to \xe2\x80\x9c issue an administrative order against any\nperson assessing a civil administrative penalty of up to $25,000, per day of viola\xc2\xad\ntion\xe2\x80\x9d when EPA \xe2\x80\x9c finds that such person\xe2\x80\x9d has violated the Act or its imple\xc2\xad\nmenting regulations. 42 U.S.C. \xc2\xa7 7413(d)(1). Such a penalty may be assessed only\nafter opportunity for a hearing on the record in accordance with the Administrative\nProcedure Act (\xe2\x80\x9c APA\xe2\x80\x9d ), 5 U.S.C. \xc2\xa7\xc2\xa7554, 556 (1994). 42 U.S.C. \xc2\xa7 7413(d)(2).\nIn addition, section 113(d)(3) authorizes EPA to implement a field citation pro\xc2\xad\ngram under which \xe2\x80\x9c persons\xe2\x80\x9d who commit minor violations of the Act or the\nregulations may receive field citations assessing civil penalties not to exceed\n$5,000 per day. Id. \xc2\xa7 7413(d)(3). Field citations may be issued without a hearing,\nbut persons who have received citations may request a hearing. \xe2\x80\x9c Such hearing\nshall not be subject to [the APA], but shall provide a reasonable opportunity to\nbe heard and to present evidence.\xe2\x80\x9d Id. The Act provides for the two types of\nadministrative penalty orders to be litigated in the courts in a variety of ways.\nPersons against whom either kind o f penalty is imposed may seek judicial review\nin federal district court, and in any such proceeding the United States may seek\nan order requiring that the penalties be paid. Id. \xc2\xa7 7413(d)(4). In addition, if a\nperson fails to pay any penalty after receiving an order or assessment from EPA,\n\xe2\x80\x9c the Administrator shall request the Attorney General to bring a civil action in\nan appropriate district court to enforce the order or to recover the amount ordered\nor assessed.\xe2\x80\x9d Id. \xc2\xa7 7413(d)(5).\nB.\nEPA presents a straightforward position that section 113(d) authorizes EPA to\nassess administrative penalties against federal agencies. That subsection authorizes\nEPA to assess penalties against \xe2\x80\x9c persons.\xe2\x80\x9d Although the term \xe2\x80\x9c person\xe2\x80\x9d is not\n2 See 42 U.S.C \xc2\xa7 7 4 l3 (a )(3 ) (where it finds a violation, EPA may \xe2\x80\x9c (A) issue an administrative penalty order\nin accordance with subsection (d) o f this section, (B) issue an order requiring such person to comply with such\nrequirement o r prohibition, (C) bring a civil action in accordance with subsection (b) of this section or section\n7605 o f this title, or (D) request the Attorney G eneral to commence a criminal action m accordance with subsection\n(c) o f this section\xe2\x80\x9d )\n3 W e intend that o u r resolution o f the questions concerning section 113(d) will also apply to the comparable\nauthority provided to EPA with respect to mobile sources by sections 205(c) and 211(d)(1) o f the Act, 42 U.S.C.\n\xc2\xa7\xc2\xa7 7524(c), 7545(d)(1) (1994). See EPA Memorandum at 2-3.\n\n110\n\n\x0cAdm inistrative A ssessm ent o f C ivil P enalties A gainst F ederal A gencies Under the Clean A ir A ct\n\ndefined in section 113, which is the Act\xe2\x80\x99s federal enforcement section, the term\nis defined in the Act\xe2\x80\x99s general definitions section, section 302(e), which provides\nthat the term includes \xe2\x80\x9c any agency, department, or instrumentality of the United\nStates and any office, agent or employee thereof.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 7602(e) (1994).\nEPA concludes that \xe2\x80\x9c [s]ince federal facilities expressly fall within the Act\xe2\x80\x99s defi\xc2\xad\nnition of person, [section 113(d)] unambiguously demonstratefs] that EPA has\nauthority to issue administrative penalties against federal facilities.\xe2\x80\x9d EPA Memo\xc2\xad\nrandum at 3.\nDOD argues in response that EPA\xe2\x80\x99s interpretation would raise significant sepa\xc2\xad\nration of powers concerns, because it would authorize civil litigation proceedings\nbetween federal agencies, and therefore it can be adopted only if there is an\nexpress statement of congressional intent to provide such authority that is suffi\xc2\xad\ncient to meet the high standard applied by the courts and this Office with respect\nto statutory interpretation questions involving separation of powers concerns.4\nDOD argues that \xe2\x80\x9c [s]ection 113(d) fails to provide clear and express authority\nfor EPA to impose administrative penalties against Executive Branch agencies.\xe2\x80\x9d\nDOD Response at 4. DOD rejects EPA\xe2\x80\x99s argument that the inclusion of federal\nagencies in the Act\xe2\x80\x99s general definition of \xe2\x80\x9c person\xe2\x80\x9d constitutes \xe2\x80\x9c a sufficiently\nexpress statement to allow [EPA] to exercise enforcement authority against other\nExecutive Branch agencies.\xe2\x80\x9d Id. at 5.\nII.\nWe agree with DOD that the interpretation of the Clean Air Act advanced by\nEPA \xe2\x80\x94 that EPA is authorized to initiate enforcement proceedings under section\n113(d) against federal agencies \xe2\x80\x94 raises substantial separation of powers concerns,\nthus warranting application of the clear statement principle.\nin 1994, this Office was asked whether the Department of Housing and Urban\nDevelopment ( \xe2\x80\x9c HUD\xe2\x80\x9d ) has the authority under the Fair Housing Act to initiate\nenforcement proceedings against other federal agencies. We concluded that such\nan interpretation of the Fair Housing Act would raise substantial separation of\npowers concerns \xe2\x80\x9c relat[ing] to both the President\xe2\x80\x99s authority under Article II of\nthe Constitution to supervise and direct executive branch agencies and the Article\nIII limitation that the jurisdiction of the federal courts extends only to actual cases\nand controversies.\xe2\x80\x9d Fair Housing Act Opinion, 18 Op. O.L.C. at 105. We stated\nthat \xe2\x80\x9c [w]ith respect to the Article III issue, this Office has consistently said that\n\xe2\x80\x98lawsuits between two federal agencies are not generally justiciable,\xe2\x80\x99 \xe2\x80\x9d id. at 106\n4See DOD Response at 4 ( \xe2\x80\x9c The assessment o f administrative penalties against Executive Branch agencies by\nEPA is based on a statutory scheme that contemplates judicial intervention into what should be a purely Executive\nBranch function, thus raising significant constitutional separation o f powers concerns, warranting the high standard\no f review \xe2\x80\x9d ) (citing Authority o f Department o f Housing and Urban Development to Initiate Enforcement Actions\nUnder the Fair Housing Act Against Other Executive Branch Agencies, 18 Op O L C 101 (1994) (\xe2\x80\x9c Fair Housing\nAct Opinion\xe2\x80\x9d )\n\nin\n\n\x0cO pinions o f the O ffice o f L egal C ounsel m Volum e 21\n\n(quoting Constitutionality o f Nuclear Regulatory Commission\xe2\x80\x99s Imposition o f Civil\nPenalties on the Air Force, 13 Op. O.L.C. 131, 138 (1989) (\xe2\x80\x9c NRC Opinion\xe2\x80\x9d )),\nand that \xe2\x80\x9c [w]ith respect to Article II, we have indicated that construing a statute\nto authorize an executive branch agency to obtain judicial resolution of a dispute\nwith another executive branch agency implicates \xe2\x80\x98the President\xe2\x80\x99s authority under\nArticle II of the Constitution to supervise his subordinates and resolve disputes\namong them.\xe2\x80\x99 \xe2\x80\x9d Id. (quoting Review of Final Order in Alien Employer Sanctions\nCases, 13 Op. O.L.C. 370, 371 (1989)).\nWe observed in our Fair Housing Act opinion that these separation of powers\nconcerns\nare the essential backdrop for our analysis of whether the Fair\nHousing Act authorizes HUD to initiate enforcement proceedings\nagainst other executive branch agencies. Like the Supreme Court,\nwe are \xe2\x80\x9c loath to conclude that Congress intended to press ahead\ninto dangerous constitutional thickets in the absence of firm evi\xc2\xad\ndence that it courted those perils.\xe2\x80\x9d\nId. at 106-07 (quoting Public Citizen v. Department o f Justice, 491 U.S. 440,\n\n466 (1989)). Accordingly, we applied a clear statement rule and concluded that\nthe statute did not provide HUD this authority:\nApplying the standard the Supreme Court has used when a par\xc2\xad\nticular interpretation or application of an Act of Congress would\nraise separation of powers or federalism concerns, we believe that\nbecause substantial separation of powers concerns would be raised\nby construing the Act to authorize HUD to initiate enforcement pro\xc2\xad\nceedings against other executive branch agencies, we cannot so con\xc2\xad\nstrue the Act unless it contains an express statement that Congress\nintended HUD to have such authority. Because the Act does not\ncontain such an express statement, we conclude that it does not\ngrant HUD this authority.\nId. at 101.\n\nOur insistence in the Fair Housing Act Opinion that the statute must \xe2\x80\x98\xe2\x80\x98contain[ ]\nan express statement that Congress intended HUD to have such authority\xe2\x80\x9d was\nconsistent with a long line of opinions of the Supreme Court and this Office that\nrequire a clear statement of congressional intent when separation of powers or\nfederalism concerns would be raised. Many of these opinions are cited in an\nopinion that we issued subsequent to the Fair Housing Act Opinion. See Applica\xc2\xad\ntion o f 28 U.S.C. \xc2\xa7458 to Presidential Appointments o f Federal Judges, 19 Op.\nO.L.C. 350 (1995) (concluding that 28 U.S.C. \xc2\xa7458 (1994), which prohibits\nappointment or employment of relatives of judges in same court, does not apply\n112\n\n\x0cA d m inistrative A ssessm ent o f C ivil P enalties\'A gainst F ederal A g en cies Under the Clean A ir A ct\n\nto presidential appointments of judges). We stated in that opinion that \xe2\x80\x9c [g]iven\nthe central position that the doctrines of federalism and separation of powers\noccupy in the Constitution\xe2\x80\x99s design, [the clear statement rule] serves to \xe2\x80\x98assure[]\nthat the legislature has in fact faced, and intended to bring into issue, the critical\nmatters\xe2\x80\x99 of the balance of power among the three branches of the federal govern\xc2\xad\nment, in the context of separation of powers, and between the federal and state\ngovernments, in the context of federalism.\xe2\x80\x9d Id. at 352 (quoting Gregory v.\nAshcroft, 501 U.S. 452, 461 (1991)). See also Will v. Michigan Dep\'t o f State\nPolice, 491 U.S. 58, 65 (1989); United States v. Bass, 404 U.S. 336, 349 (1971).\nIII.\nBased on the foregoing discussion, we must find a clear statement of congres\xc2\xad\nsional intent before we can conclude that the Clean Air Act authorizes EPA to\ninitiate enforcement proceedings against other executive branch agencies. As dis\xc2\xad\ncussed below, we believe that the statutory text provides a very strong basis for\nfinding a clear statement of such intent and that this conclusion is fully supported\nby the legislative history of the Act, particularly the 1977 amendment of the defi\xc2\xad\nnition of \xe2\x80\x9c person\xe2\x80\x9d to include federal agencies.\nA straightforward review of the relevant provisions of the Clean Air Act\xe2\x80\x99s statu\xc2\xad\ntory text supports EPA\xe2\x80\x99s position that the statute gives EPA authority to assess\ncivil penalties against federal agencies administratively. EPA\xe2\x80\x99s authority under\nsection 113(d) is available with respect to \xe2\x80\x9c persons\xe2\x80\x9d who violate the Act.5 The\nterm \xe2\x80\x9c person\xe2\x80\x9d is defined in section 302(e): \xe2\x80\x9c When used in [the Clean Air Act]\n. . . [t]he term \xe2\x80\x98person\xe2\x80\x99 includes an individual, corporation, partnership, associa\xc2\xad\ntion, State, municipality, political subdivision of a State, and any agency, depart\xc2\xad\nment, or instrumentality o f the United States and any officer, agent, or employee\nthereof.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 7602(e) (emphasis added).\nEPA rests its argument on the plain meaning of these two provisions. EPA\ndoes so with good justification, because read together sections 113(d) and 302(e)\nexpressly provide that EPA may issue administrative penalty assessments against\nfederal agencies. We have also reviewed the evolution of the relevant provisions\nof the Clean Air Act as reflected by various amendments to the Act over the\nyears. As discussed below, that history fully supports the conclusion that Congress\ncontemplated EPA enforcement against other federal agencies.\n5 Section 113(d)(1) provides for assessment o f civil penalties against \xe2\x80\x9c persons\xe2\x80\x9d . \xe2\x80\x98\xe2\x80\x98The Administrator may issue\nan administrative order against any person\n\xe2\x80\x9d 42 U S C \xc2\xa7 7413(d)( 1) Section 113(d)(3) achieves the same\nresult, but uses indirect language \xe2\x80\x9c The Administrator may implement\na field citation program . . . [under]\nwhich field citations\nmay be issued by officers or employees designated by the Administrator Any person\nto whom a field citation is assessed may .\nelect to pay the penalty assessment or lo request a hearing on the\nfield citation \xe2\x80\x9d Id. \xc2\xa7 7413(d)(3). The plain language o f these provisions refutes DOD\xe2\x80\x99s position that this language\n\xe2\x80\x9c cannot fairly be read to constitute an affirmative grant of authority to issue a field citation against \xe2\x80\x98any person \xe2\x80\x99 \xe2\x80\x9d\nDOD Response at 5.\n\n113\n\n\x0cO pinions o f the O ffice o f L egal C ounsel in Volum e 21\n\nThe administrative enforcement provisions set forth in section 113(d) were\nenacted as part of the Clean Air Act Amendments of 1990 (\xe2\x80\x9c the 1990 Amend\xc2\xad\nments\xe2\x80\x9d ), Pub. L. No. 101-549, \xc2\xa7701, 104 Stat. 2399, 2677-79. We have reviewed\nthe legislative history of the 1990 Amendments and have found no discussion\nof the application of those provisions to federal agencies. We have not limited\nour legislative history review to the 1990 Amendments, however, because the\nadministrative enforcement authorities provided by those amendments merely\nsupplemented the enforcement authorities EPA already had with respect to \xe2\x80\x9c per\xc2\xad\nsons\xe2\x80\x9d under the other provisions of section 113. Thus, Congress\xe2\x80\x99s intent in pro\xc2\xad\nviding EPA those other authorities is controlling.\nEPA\xe2\x80\x99s other enforcement authorities under section 113 originated with the Clean\nAir Act Amendments of 1970 (\xe2\x80\x9c the 1970 Amendments\xe2\x80\x9d ), Pub. L. No. 91-604,\n\xc2\xa74(a), 84 Stat. 1676, 1686-87. As with the current version of section 113, the\n1970 version authorized federal enforcement against \xe2\x80\x9c persons.\xe2\x80\x9d However, at that\ntime the Act\xe2\x80\x99s definition of \xe2\x80\x9cperson\xe2\x80\x9d did not include agencies of the federal\ngovernment.6 The 1970 Amendments also revised section 118 of the Act to make\nfederal agencies subject to the substantive requirements of the Act: \xe2\x80\x9c [Federal\nagencies] shall comply with Federal, State, interstate, and local requirements\nrespecting control and abatement o f air pollution to the same extent that any per\xc2\xad\nson is subject to such requirements.\xe2\x80\x9d Id. \xc2\xa75, 84 Stat. at 1689.7 Thus, the 1970\nversion of section 118 referred only to federal agencies complying with sub\xc2\xad\nstantive requirements; it did not contain any language subjecting federal agencies\nto enforcement authority.\nIn 1977, the definition of \xe2\x80\x9cperson\xe2\x80\x9d was expanded to include \xe2\x80\x9c any agency,\ndepartment, or instrumentality of the United States.\xe2\x80\x9d Clean Air Act Amendments\nof 1977 (\xe2\x80\x9c the 1977 Amendments\xe2\x80\x9d ), Pub. L. No. 95-95, \xc2\xa7 301(b), 91 Stat. 685,\n770. This amendment was contained in the House-passed version of the 1977\nAmendments, which was accepted by the conference committee. See H.R. 6161,\n\xc2\xa7 113(d), 95th Cong., 1st Sess. (1977) (\xe2\x80\x9c House Bill\xe2\x80\x9d ); H.R. Conf. Rep. No. 95564, at 137, 172 (1977), reprinted in 1977 U.S.C.C.A.N. 1502, 1517-18, 155253. The committee report accompanying the House Bill expressly stated that the\nspecific purpose of the expansion of the definition of \xe2\x80\x9c person\xe2\x80\x9d was to make it\nclear that section 113 enforcement was available with respect to federal agencies:\n6 \xe2\x80\x9c Person\xe2\x80\x9d was lim ited to \xe2\x80\x9c an individual, corporation, partnership, association, State, municipality, and political\nsubdivision o f a State \xe2\x80\x9d Pub. L No 88-206, \xc2\xa79 (e), 77 Stat 392, 400 (1963)\n7The previous version o f section 118, enacted in 1959, merely requested federal agencies to \xe2\x80\x9c cooperate\xe2\x80\x9d with\nair pollution enforcement control agencies See A ct o f Sept. 22, 1959 ( \xe2\x80\x9c the 1959 Amendments\xe2\x80\x9d ), Pub. L No 86365, \xc2\xa72 , 73 Stat 646 ( \xe2\x80\x9c It is hereby declared to be the intent o f the Congress that any Federal department or agency\n. . shall, to the extent practicable and consistent with the interests of the United States and within any available\nappropriations, cooperate with the Department o f Health, Education, and W elfare, and with any interstate agency\nor any State or local government air pollution control agency in preventing or controlling the pollution o f the air\n. . . \xe2\x80\x9d).\n\n114\n\n\x0cA dm inistrative A ssessm ent o f Civil P enalties A gainst F ederal A gencies U nder th e Clean A ir A ct\n\nFinally, in defining the term \xe2\x80\x9c person\xe2\x80\x9d for the purpose of section\n113 of the act to include Federal agencies, departments, instrumen\xc2\xad\ntalities, officers, agents, or employees, the committee is expressing\nits unambiguous intent that the enforcement authorities of section\n113 may be used to insure compliance and/or to impose sanctions\nagainst any Federal violator of the act.\nH.R. Rep. No. 95-294, at 200 (1977), reprinted in 1977 U.S.C.C.A.N. 1077, 1279\n(\xe2\x80\x9c House Report\xe2\x80\x9d ).8\nIn sum, the expansion of the definition of \xe2\x80\x9c person\xe2\x80\x9d to include federal agencies,\ntogether with the statement in the House Report that the definitional change was\nfor the express purpose of subjecting federal agencies to EPA enforcement under\nsection 113, leave no room for doubt that Congress clearly indicated in 1977 its\nintent to authorize EPA to use its section 113 enforcement authorities against fed\xc2\xad\neral agencies.\nIV.\nEPA takes the position that its authority under the Clean Air Act to assess civil\npenalties against federal agencies administratively can be exercised consistent with\nArticles II and III of the Constitution. EPA bases its position on the view that\nthe Act\nprovides sufficient discretion to the affected parties so that complete\nresolution of the dispute may occur within the Executive Branch,\nup to and including referral to the President of any issues that are\nnot otherwise resolved, and the President is not deprived of his\nopportunity to review the matter in dispute.\nEPA Memorandum at 1. We agree with EPA\xe2\x80\x99s position. We will discuss the\nArticle II and Article III issues separately.\nA.\nEPA asserts that it can exercise its administrative enforcement authority under\nthe Act in a way that is consistent with the President\xe2\x80\x99s supervisory authority under\nArticle II. EPA emphasizes that the Act\nprovides a federal facility with the right to a hearing before final\nassessment of a penalty, and therefore . . . provides federal facili\xc2\xad\n8The quotation from the House Report indicates that the House Bill \xe2\x80\x9c defin[ed] the term \xe2\x80\x98person\xe2\x80\x99 for the purpose\nof section 113 \xe2\x80\x9d The House Bill accomplished that purpose by amending the A ct\xe2\x80\x99s general definition o f \xe2\x80\x9c person,\xe2\x80\x9d\nnot by creating a special definition applicable only to section 113. See H R 6161, supra, \xc2\xa7 113(d).\n\n115\n\n\x0cO pinions o f the O ffice o f Legal C ounsel in V olum e 21\n\nties with sufficient opportunity to raise any dispute to the President\nwhere considered appropriate. Nothing in the Act would prevent\na federal facility from exercising this opportunity to raise any dis\xc2\xad\npute to the President.\nId. at 5 (footnote omitted). Nor are federal agencies limited to using the hearing\n\nprocess to raise a dispute to the appropriate level within the executive branch:\nfederal agencies will have the opportunity to consult with the EPA Administrator\nbefore any assessment is final, see id., and the Attorney General could seek to\nresolve the matter if either EPA or the respondent federal agency sought to litigate\nthe matter, see id. at 6.\nThe critical point for constitutional purposes is that the Act does not preclude\nthe President from authorizing any process he chooses to resolve disputes between\nEPA and other federal agencies regarding the assessment of administrative pen\xc2\xad\nalties. \xe2\x80\x9c [I]t is not inconsistent with the Constitution for an executive agency to\nimpose a penalty on another executive agency pursuant to its statutory authority\nso long as the President is not deprived of his opportunity to review the matter.\xe2\x80\x9d\nNRC Opinion, 13 Op. O.L.C. at 136-37.\nDOD attempts to distinguish our NRC Opinion, which concluded that the\nadministrative enforcement authority of the Nuclear Regulatory Commission\n(\xe2\x80\x9c NRC\xe2\x80\x9d ) under the Atomic Energy Act, see 42 U.S.C. \xc2\xa72282 (1994), could be\nexercised against federal agencies consistent with Article II. DOD suggests that\nthe statutory regimes are different, arguing principally that they differ with respect\nto the Attorney General\xe2\x80\x99s authority to resolve a dispute. It notes that the Atomic\nEnergy Act contains an express authorization to the Attorney General, in cir\xc2\xad\ncumstances where the NRC has requested that the Attorney General institute a\ncivil action to collect a penalty, \xe2\x80\x9c to compromise, mitigate, or remit such civil\npenalties.\xe2\x80\x9d 42 U.S.C. \xc2\xa72282(c). See DOD Response at 10-11. DOD then asserts\nthat the Clean Air Act is different because it \xe2\x80\x98\xe2\x80\x98limits the discretion of the Attorney\nGeneral to compromise, mitigate or remit a penalty assessment.\xe2\x80\x9d Id. DOD appar\xc2\xad\nently bases that assertion on the language in section 113(d)(5) stating that in any\ncivil action \xe2\x80\x98\xe2\x80\x98the validity, amount, and appropriateness of such order or assessment\nshall not be subject to review.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 7413(d)(5).\nDOD\xe2\x80\x99s assertion that the Clean Air Act limits the Attorney General\xe2\x80\x99s discretion\nis incorrect. Section 113(d)(5) acts as a limitation only on the authority of the\ncourts in any action that is brought before the courts. It is not a limitation on\nthe Attorney General, acting under Executive Order No. 12146 or any litigation\nreview process, o r\xe2\x80\x94 more to the point \xe2\x80\x94 the President acting through whatever\nexecutive branch process he may authorize. The absence of any limitation on the\nPresident\xe2\x80\x99s discretion is the dispositive factor for constitutional purposes, and in\nthat respect the two statutory regimes are the same. Neither statute precludes reso\xc2\xad\n116\n\n\x0cA dm inistrative A ssessm ent o f Civil P enalties A gainst F ederal A gencies Under the Clean A ir A ct\n\nlution within the executive branch, including resolution by the President, of dis\xc2\xad\nputes between the enforcement agency and other federal agencies.9\nB.\nEPA acknowledges that the civil action provisions contained in sections\n113(d)(4) and 113(d)(5) of the Act, see 42 U.S.C. \xc2\xa7\xc2\xa7 7413(d)(4), 7413(d)(5),\n\xe2\x80\x9c raise the possibility of one executive branch agency suing another in federal\ncourt over the administrative penalty,\xe2\x80\x9d EPA Memorandum at 9, but it takes the\nposition that \xe2\x80\x9c [t]he constitutional concerns . . . could be avoided by an interpreta\xc2\xad\ntion that the general reference to review in federal district court reasonably means\nonly judicial review that was otherwise constitutional.\xe2\x80\x9d Id. In particular, EPA\nemphasizes that \xe2\x80\x9c nothing in the Clean Air Act mandates that two executive branch\nagencies end up in federal court. There is at most an opportunity for any agency\nto seek judicial review, and a requirement that EPA \xe2\x80\x98request\xe2\x80\x99 that the Attorney\nGeneral file a collection action.\xe2\x80\x9d Id. EPA concludes that \xe2\x80\x9c the mere possibility\nthat an interagency lawsuit might result does not invalidate an agency\xe2\x80\x99s ability\nto assess civil penalties against another executive branch agency, where the\nAttorney General has adequate discretion to control the filing of such a lawsuit.\xe2\x80\x9d\nId. at 10.\nAs stated in Section II of this opinion, \xe2\x80\x9c this Office has consistently said that\n\xe2\x80\x98lawsuits between two federal agencies are not generally justiciable.\xe2\x80\x99 \xe2\x80\x9d Fair\nHousing Act Opinion, 18 Op. O.L.C. at 106 (quoting NRC Opinion, 13 Op. O.L.C.\nat 138). \xe2\x80\x9c We have reasoned that federal courts may adjudicate only actual cases\nand controversies, that a lawsuit involving the same person as both plaintiff and\ndefendant does not constitute an actual controversy, and that this principle applies\nto suits between two agencies of the executive branch.\xe2\x80\x9d Id. We agree with EPA,\nhowever, that this Article III barrier to use of the civil action remedies of section\n113(d) is not a barrier to EPA\xe2\x80\x99s exercise of its administrative enforcement\nauthority under the Act. Put another way, we agree that the administrative\nauthority can be exercised consistent with Article HI. The Act does not require\nthat civil actions be brought in the event of a dispute of an assessment by EPA;\nit merely authorizes the bringing of such actions.\nThus, as is the case with the comparable provisions contained in the Atomic\nEnergy Act, which we concluded in our NRC opinion could be applied consistent\nwith Article III, \xe2\x80\x9c this constitutional issue need not arise, because the framework\n9 Nor does ihe Clean Air A ct\xe2\x80\x99s citizen suit provision operate to preclude resolution within the executive branch\nSection 304 provides thai \xe2\x80\x9c any person may commence a civil action on his own behalf . . against any person\n(including\nthe United States\n) who is alleged\nto be in violation of .\n(B) an order issued by [EPAJ\nwith respect to (an emission) standard or limitation\xe2\x80\x9d under the Act. 42 U S C. \xc2\xa7 "7604(a)(1) (1994) T he filing\nof a citizen suit during the pendency o f a dispute between EPA and a federal agency would not prevent the President\nfrom directing EPA to suspend, withdraw or modify the order it had issued to the agency. Such direction could\nbe provided specifically in individual cases or generally by operation o f a standing directive setting forth procedures\nfor resolution o f enforcement proceedings under section 113.\n\n117\n\n\x0cO pinions o f the O ffice o f Legal C ounsel in Volum e 21\n\nof the Act clearly permits [a] dispute over civil penalties to be resolved within\nthe executive branch, and without recourse to the judiciary.\xe2\x80\x9d NRC Opinion, 13\nOp. O.L.C. at 141.10 To the extent that the civil action provision of the two stat\xc2\xad\nutes are parallel, in that the Attorney General rather than the enforcement agency\nhas control over whether to bring the civil action, our analysis in the NRC Opinion\nis directly controlling here:\nIt is therefore clear that the Attorney General may exercise [her]\ndiscretion to ensure that no lawsuits are filed by [EPA] against\nother agencies of the executive branch. If the Attorney General and\nthe President determine that no civil penalties should be collected,\nthe Attorney General may simply refrain from bringing a lawsuit.\nIf the Attorney General determines that certain civil penalties are\nappropriate, however, the Attorney General would still not bring\na lawsuit because of the constitutional problems noted above.\nRather, procedures internal to the executive branch are adequate\nto resolve the dispute through the determination that [the federal\nagency responsible for the federal facility] is liable.\nId. at 143.\n\nThe only difference between the two statutes that is relevant to the Article III\nquestion is that section 113(d)(4) of the Clean Air Act would also authorize the\nagency responsible for the federal facility to initiate a civil action to contest an\nEPA administrative order. See 42 U.S.C. \xc2\xa7 7413(d)(4). The difference is not\nsignificant for constitutional purposes, however, because, as we have explained,\nthe Act is permissive only and does not require any federal agency to bring a\ncivil action. Moreover, the Attorney General and the President possess the\nauthority to forestall litigation between executive branch entities. The Attorney\nGeneral is responsible for conducting litigation on behalf of most federal agencies\nand therefore can ensure that no civil action is filed by those agencies against\nanother federal entity. We would expect that the relatively few federal agencies\nthat have relevant independent litigating authority similarly would decline to file\ncivil actions, consistent with the conclusions set forth in this memorandum. In\nany event, the President could direct the agency head not to bring an action or\nto withdraw any action that might be filed.\nDAWN E. JOHNSEN\nActing Assistant Attorney General\nOffice of Legal Counsel\nxoSee also id. at 143 (\xe2\x80\x9c We thus conclude that a lawsuit between two agencies of the executive branch would\ninvolve substantial constitutional problems, but that the statutory scheme permits resolution of the interagency dispute\nwithin the executive branch.\xe2\x80\x9d ).\n\n118\n\n\x0c'