b'Applicability of the Federal Vacancies Reform Act to Vacancies\nat the International Monetary Fund and the World Bank\nT he U n ited Slates E xecutive D irector and th e A lternate U nited States E xecutive D irector at the Inter\xc2\xad\nnational M onetary F und and the World B ank are not part o f an E xecutive agency, and therefore\nvacancies in those offices are not covered by the Federal V acancies Reform Act.\n\nMay 11, 2000\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\nD epa r tm en t o f th e T r ea su r y\n\nYou have requested our opinion whether the Federal Vacancies Reform Act\n(\xe2\x80\x9c Vacancies Reform Act\xe2\x80\x9d or \xe2\x80\x9c Act\xe2\x80\x9d ), 5 U.S.C. \xc2\xa7\xc2\xa73341-3349d (Supp. IV 1998),\napplies to vacancies in the offices of the United States Executive Director\n(\xe2\x80\x9c USED\xe2\x80\x9d ) and the Alternate United States Executive Director ( \xe2\x80\x9c Alternate\nUSED\xe2\x80\x9d ) at the International Monetary Fund (\xe2\x80\x9c IM F\xe2\x80\x9d ).1 This memorandum con\xc2\xad\nfirms our oral advice that the Act does not apply to these offices. By its terms,\nthe Act applies only to a Senate-confirmed office \xe2\x80\x9c of an Executive agency.\xe2\x80\x9d We\nbelieve that the better view, based on the information provided by the Treasury\nDepartment, is that the U.S. representatives are not part of an \xe2\x80\x9c Executive agency\xe2\x80\x9d\nand are therefore not covered by the Act.\nAfter our oral advice about the U.S. representatives to the IMF, you asked for\nour opinion whether the Vacancies Reform Act applies to vacancies in the offices\nof the United States Executive Director and the Alternate United States Executive\nDirector at the International Bank for Reconstruction and Development ( \xe2\x80\x9c World\nBank\xe2\x80\x9d ). The Treasury Department has informed us that the USEDs and Alternate\nUSEDs at the IMF and the World Bank are similar with regard to the relevant\nfacts discussed in this opinion. On that basis, we conclude that the USED and\nAlternate USED at the World Bank are similarly outside the scope of the Vacan\xc2\xad\ncies Reform Act because they are not part of an \xe2\x80\x9c Executive agency.\xe2\x80\x9d\n\nI. The United States Representatives to the IMF\nA. The United States Executive D irector and Alternate United States Executive\nD irector\nThe IMF was established under an agreement negotiated at the 1944 Bretton\nWoods Conference. See IMF, What is the International Monetary Fund?, available\nat http://www.imf.org/extemal/pubs/ft/exrp/what.htm (visited Mar. 29, 2000)\n(\xe2\x80\x9c IM F Website Summary\xe2\x80\x9d ). The United States agreed to join the IMF in 1945\n1 In this memorandum, the USED and the Alternate USED at the IMF are referred to jointly as the \xe2\x80\x9c U.S. represent\xc2\xad\natives to the IM F\xe2\x80\x9d or, simply, the \xe2\x80\x9c U.S representatives.\xe2\x80\x9d\n\n58\n\n\x0cApplicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund\nand the World Bank\n\nunder the authority of the Bretton Woods Agreements Act. See 22 U.S.C. \xc2\xa7286\n(1994). An international organization currently made up of 182 member countries,\nthe IMF promotes international monetary cooperation, facilitates the expansion\nand balanced growth of international trade, and promotes exchange stability. See\nIMF Website Summary; Articles of Agreement of the International Monetary\nFund, art. I, available at http://www.imf.org/extemal/pubs/ft/aa (visited Mar. 29,\n2000) (\xe2\x80\x9c Articles of Agreement\xe2\x80\x9d ).\nThe authority of the IMF is vested in a Board of Governors, consisting of a\nGovernor and an alternate Governor from each member country. See Articles of\nAgreement, art. XII, \xc2\xa72; IMF Website Summary. The Board of Governors has\ndelegated substantial authority to the IMF\xe2\x80\x99s Executive Board, and it is the Execu\xc2\xad\ntive Board that carries out the IMF\xe2\x80\x99s day-to-day operations and makes most of\nits decisions. See Articles of Agreement, art. XII, \xc2\xa7\xc2\xa72 & 3; By-Laws, Rules, and\nRegulations of the International Monetary Fund, \xc2\xa7 15, available at http://\nwww.imf.org/extemal/pubs/ft/bl (visited Mar. 29, 2000); William N. Gianaris,\nWeighted Voting in the International Monetary Fund and the World Bank, 14\nFordham Int\xe2\x80\x99l L.J. 910, 913-14 (1990/1991). The Executive Board is made up\nof 24 Executive Directors, with a Managing Director serving as chairperson. Arti\xc2\xad\ncles of Agreement, art. XII, \xc2\xa7 3(b). Eight of these Executive Directors represent\nindividual member countries, including the United States, and each of these eight\nExecutive Directors is appointed by the country that he or she represents. The\nremaining sixteen are elected by the Governors and represent groupings of the\nremaining member countries. See id. Sched. E; IMF Website Summary.\nThe Executive Director and the Alternate Executive Director for the United\nStates are appointed by the President, by and with the advice and consent of the\nSenate, to two-year terms, with the right to hold over in office until a successor\nhas been appointed. 22 U.S.C. \xc2\xa7286a(a), (b) (1994). The USED and Alternate\nUSED serve as representatives of the United States and present this Government\xe2\x80\x99s\nviews at the IMF. See IMF Website Summary; Letter for David R. Brennan,\nDeputy General Counsel, Department of the Treasury, from Margery Waxman,\nGeneral Counsel, Office of Personnel Management, Re: Whether the U.S. A lter\xc2\xad\nnate Executive D irector o f IMF is Within the Executive Branch fo r the Purpose\no f Qualifying fo r SES Benefits under 5 U.S.C. \xc2\xa7 3392(c), at 4 (Nov. 4, 1980)\n\n( \xe2\x80\x9c OPM Opinion\xe2\x80\x9d ) (\xe2\x80\x9c [T]hese positions are designed to serve the President in the\nexercise of his Executive branch functions concerning the implementation of for\xc2\xad\neign policy.\xe2\x80\x9d ). The Secretary of the Treasury (\xe2\x80\x9c Secretary\xe2\x80\x9d ) has principal respon\xc2\xad\nsibility for instructing the U.S. representatives to the IMF on the positions and\nvotes of the United States. See, e.g., Exec. Order No. 11269, at \xc2\xa73(a), reprinted\nas amended in 22 U.S.C. \xc2\xa7286b note (1994); 22 U.S.C. \xc2\xa7\xc2\xa7262h, 262k(b), 262m 2(b), 286a(d)(3); 286e-8; 286e-13 (1994).\n59\n\n\x0cOpinions o f the Office o f Legal Counsel m Volume 24\n\nB. The Federal Vacancies Reform A ct\nExcept for those offices expressly exempted by 5 U.S.C. \xc2\xa7 3349c, the Vacancies\nReform Act applies to any vacancy in an office of an \xe2\x80\x9c Executive agency\xe2\x80\x9d to\nwhich appointment is required to be made by the President, with the advice and\nconsent of the Senate.2 The USED and the Alternate USED are both appointed\nby the President, with the Senate\xe2\x80\x99s advice and consent, 22 U.S.C. \xc2\xa7286a(a), (b),\nand neither office is expressly excluded from coverage by 5 U.S.C. \xc2\xa7 3349c.\nAccordingly, the critical issue in determining whether the Vacancies Reform Act\napplies to the USED and the Alternate USED is whether they are officers \xe2\x80\x9c of\nan Executive agency\xe2\x80\x99 \xe2\x80\x99 within the Act.\nThe use of the phrase \xe2\x80\x9c of an Executive agency\xe2\x80\x9d imposes a meaningful limita\xc2\xad\ntion on the scope of the Act. \xe2\x80\x9c Executive agency\xe2\x80\x9d is a specific, defined term\nin title 5, and is narrower than the executive branch as a whole. See Haddon\nv. W alters, 43 F.3d 1488 (D.C. Cir. 1995). The Vacancies Reform Act incorporates\nthe title 5 definition of an \xe2\x80\x9c Executive agency,\xe2\x80\x9d except that the Act adds the\nExecutive Office of the President to the definition and excludes the General\nAccounting Office. See 5 U.S.C. \xc2\xa7 3345(a); see also S. Rep. No. 105-250, at 12\n(1998) (\xe2\x80\x9c \xe2\x80\x98Executive agency\xe2\x80\x99 is defined at 5 U.S.C. \xc2\xa7 105.\xe2\x80\x9d ); Guidance on\nApplication o f Federal Vacancies Reform A ct o f 1998, 23 Op. O.L.C. 60, 6162 (1999). By its plain language, therefore, the Act does not necessarily reach\nall Senate-confirmed offices, but only those in \xe2\x80\x9c an Executive agency.\xe2\x80\x9d\nTo be sure, at least one statement in the legislative history of the Act could\nsupport the proposition that Congress intended to cover all Senate-confirmed\noffices in the executive branch, except for those offices expressly excluded by\n\xc2\xa7 3349c:\nSection 3345 states that the provisions of the Act will apply to any\nofficer in any executive agency, other than the General Accounting\nOffice, if that officer\xe2\x80\x99s appointment is made by the President, sub\xc2\xad\nject to the advice and consent of the Senate. Unlike current law,\nthis change w ill make clea r that the Vacancies Act, as amended\nby this legislation, applies to all executive branch officers whose\nappointm ent requires Senate confirmation, except fo r those officers\ndescribed in Section 3349c.\n\n144 Cong. Rec. S12,824 (daily ed. Oct. 21, 1998) (statement of Sen. Byrd)\n(emphasis added). Nevertheless, this remark in a floor statement, which does not\neven specifically address the possibility that a Senate-confirmed office in the\n2 The Vacancies Reform A ct is not necessarily the only method, however, of filling such offices on a temporary\nbasis. The Act also expressly preserves o th er statutory authorities that designate a specific officer to serve as the\nacting officer for a vacant office or that authorize the President, a court, or the head of an Executive department\nto designate an acting officer 5 U.S.C \xc2\xa7 3347(a)(1).\n\n60\n\n\x0cApplicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund\nand the World Bank\n\nExecutive branch might be outside any \xe2\x80\x9c Executive agency,\xe2\x80\x9d cannot overcome\nthe plain language defining the reach of the Act.\nSection 105 defines an \xe2\x80\x9c Executive agency\xe2\x80\x9d as \xe2\x80\x9c an Executive department, a\nGovernment corporation, and an independent establishment.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 105\n(1994). These three terms are defined in \xc2\xa7\xc2\xa7 101, 103, and 104 of title 5. Neither\nthe IMF nor the office of the U.S. representatives to the IMF is a \xe2\x80\x9c Government\ncorporation.\xe2\x80\x9d Accordingly, whether the USED and the Alternate USED are offi\xc2\xad\ncers of an Executive agency turns on whether they are in either (i) an Executive\ndepartment or (ii) an independent establishment.\nC. Are the United States Executive D irector and Alternate United States Executive\nD irector Part o f the Department o f the Treasury?\nBecause the Department of the Treasury is an Executive department, see 5\nU.S.C. \xc2\xa7 101, an officer in the Department of the Treasury is an officer of an\nExecutive agency within the Act. Cf. Memorandum for Files, from Daniel L.\nKoffsky, Acting Deputy Assistant Attorney General, Office of Legal Counsel, Re:\nPermanent Representative to the United Nations (July 14, 1998) (\xe2\x80\x9c 1998 UN\nMemo\xe2\x80\x9d ) (concluding that the United States Permanent Representative to the\nUnited Nations is in the State Department and therefore an officer of an Executive\nagency). The information provided to us by the Treasury Department indicates\nthat the Treasury Department has a more direct and substantial relationship with\nthe U.S. representatives to the IMF than does any other Executive department.\nIf the U.S. representatives are within any Executive department, that department\nwould be the Treasury Department.\nAlthough the issue is not entirely free from doubt, we conclude that, on balance,\nthe better view is that the USED and the Alternate USED are not in the Depart\xc2\xad\nment of the Treasury. In an Appendix, we set out the factors relevant to the anal\xc2\xad\nysis. Some of these factors strongly indicate that the U.S. representatives are not\npart of the Treasury Department. Although others might suggest that the U.S.\nrepresentatives are in the Treasury Department, a closer examination reveals that\nthe relationship of the U.S. representatives to the Treasury Department is quite\nlimited in scope and frequently ambiguous even within that limited area.\nFor some of the most central elements of personnel administration, the U.S.\nrepresentatives are unconnected to the Department o f the Treasury. The Treasury\nDepartment is not responsible for setting or paying the salaries of the U.S. rep\xc2\xad\nresentatives. See 22 U.S.C. \xc2\xa7286a(d). Nor does the Treasury Department carry\nthe U.S. representatives on its employment rolls. Furthermore, the staff for the\nU.S. representatives are not Treasury Department employees, but instead are\nemployees of the IMF; and if they come to the IMF from the Treasury Depart\xc2\xad\nment, they are officially separated from the Treasury Department, removed from\n61\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nthe Treasury Department\xe2\x80\x99s employment rolls, and transferred to the employment\nof the IM F.3\nThe Vacancies Reform Act appears in Title 5 and uses Title 5\xe2\x80\x99s definition of\n\xe2\x80\x9c Executive agency.\xe2\x80\x9d Title 5 largely deals with personnel matters. If, for these\nessential aspects of personnel administration, the U.S. representatives have no\nconnection to the Treasury Department, the compelling implication is that the U.S.\nrepresentatives are not located in the Treasury Department.\nThe strongest factor potentially arguing in favor of the view that the U.S. rep\xc2\xad\nresentatives to the IMF are part o f the Treasury Department is that they receive\ntheir instructions through the Secretary of the Treasury. See, e.g., Exec. Order\nNo. 11269, at \xc2\xa73(a), reprinted in 22 U.S.C. \xc2\xa7286b note (delegating to the Sec\xc2\xad\nretary the President\xe2\x80\x99s authority to instruct United States representatives to the\ninternational financial organizations). This factor alone, however, does not mean\nthat the U.S. representatives to the IMF are part of the Treasury Department. By\nstatute, the power to instruct is vested in the President, not the Secretary of\nTreasury. As a practical matter, the President cannot personally perform all of\nthe duties for which he is ultimately responsible, and here he has chosen to dele\xc2\xad\ngate the task of conveying the Government\xe2\x80\x99s instructions. That the President has\ndetermined that the Secretary of Treasury is best suited to be principally respon\xc2\xad\nsible for providing the instructions to the U.S. representatives cannot, as a legal\nmatter, make the U.S. representatives part of the Treasury Department.\nMoreover, the history by which the Secretary became responsible for instructing\nthe U.S. representatives to the IM F is consistent with the view that they are not\npart of the Treasury Department. Originally, in the Bretton Woods Agreements\nAct of 1945, Congress made the National Advisory Council on International\nMonetary and Financial Problems responsible for instructing the U.S. representa\xc2\xad\ntives, under the general direction of the President. 22 U.S.C. \xc2\xa7 286b(b)(4). In 1965,\nPresident Johnson abolished the Council and transferred to himself all of its func\xc2\xad\ntions, including the responsibility for instructing the U.S. representatives to the\nIMF. Reorg. Plan No. 4 of 1965, at \xc2\xa7\xc2\xa7 1(b) & 3(a), reprinted in 5 U.S.C. app.\nat 1519 (1994). In a 1966 Executive Order, the President delegated to the Sec\xc2\xad\nretary of Treasury the authority to instruct the representatives. Exec. Order No.\n11269, at \xc2\xa73(a), reprinted in 22 U.S.C. \xc2\xa7286b note. It thus seems quite unlikely\nthat the U.S. representatives would originally have been considered within the\nDepartment of the Treasury; and nothing in the later history of the President\xe2\x80\x99s\ndelegation to the Secretary o f his authority to instruct the U.S. representatives\nindicates that, in addition to delegating the authority to instruct, the President\n3 On rare occasions, additional Treasury employees, beyond the usual staff of the U.S. representatives, may be\ndetailed to the IMF. U nder such details, the individual would remain a Treasury employee Such details may be,\nand are, also made to a range of international organizations under the same authonty and conditions as they are\nm ade to the IMF. As details o f Treasury employees to the UN Secretariat would not suggest that the UN Secretariat\nis part o f the Treasury Department, details to the IMF also do not suggest that the U.S. representatives are part\no f the Treasury Department\n\n62\n\n\x0cApplicability o f the Federal Vacancies Reform Act to Vacancies at the International M onetary Fund\nand the World Bank\n\nintended to transfer the legal, administrative location of the U.S. representatives\nto the Treasury Department. Nor does Congress\xe2\x80\x99s passage, after the Executive\nOrder, of statutes directing or authorizing the Secretary to instruct the U.S. rep\xc2\xad\nresentatives as to certain specific issues, see, e.g., 22 U.S.C. \xc2\xa7\xc2\xa7262h, 262k(b),\n262m-2(b), 286a(d)(3), 286e-8, 286e-13, show any intent to alter the administra\xc2\xad\ntive location of the U.S. representatives. These statutes appear to reflect the reality\nof the delegation made by the Executive Order, rather than any unstated intent\nto move the U.S. representatives into the Treasury Department.\nThe Treasury Department has some responsibility for the bookkeeping and\nagency contributions associated with the U.S. representatives\xe2\x80\x99s receipt of certain\nemployment benefits, see 22 U.S.C. \xc2\xa7276c-2 (Supp. IV 1998), but the provision\nassigning this task ultimately serves to demonstrate that the U.S. representatives\nare not otherwise part of the Treasury Department. Under \xc2\xa7276c-2, \xe2\x80\x9c [t]he\nTreasury Department shall serve as the employing office\xe2\x80\x9d in administering the\nemployment benefits. If the U.S. representatives were already part of the Treasury\nDepartment, there would be no need for the statute to specifically denominate\nTreasury as the employing office, because it would already be the employing\noffice as a result of the administrative location of the U.S. representatives.4\nFinally, although the Treasury Department gives ethics advice to the U.S. rep\xc2\xad\nresentatives, we have been informed that it does not do so as a result of any\ndetermination that it is legally required to take this role. Furthermore, the Secretary\nof Treasury, we understand, probably has never been asked to grant the U.S. rep\xc2\xad\nresentatives a waiver under the authority of 18 U.S.C. \xc2\xa7 208 (1994), as delegated\nby the President to agency heads with respect to Presidential appointees in their\nagencies, see Exec. Order No. 12731, \xc2\xa7401, 3 C.F.R. 306 (1991).\nAs these factors show, the determination whether the U.S. representatives are\npart of the Treasury Department requires fact-specific analysis, and the limited\nsituations in which this Office has previously addressed whether an officer or\nentity is part of an Executive department do not present perfect analogies. Never\xc2\xad\ntheless, we believe that our prior advice in those cases is consistent with the\nconclusion here that the U.S. representatives are not part of the Treasury Depart\xc2\xad\nment.\nWe have twice before considered the somewhat analogous question of whether\nthe United States Mission to the United Nations ( \xe2\x80\x9c Mission\xe2\x80\x9d ) is in the Department\n4 It could also be argued, more generally, that no separate provision would be needed to provide these benefits,\nwhich are available generally to members of the civil service within the Treasury Department, if the U.S. representa\xc2\xad\ntives were already employed there. Further, \xc2\xa727 6 c-2 places \xe2\x80\x9c in the discretion of the Secretary of the Treasury\xe2\x80\x9d\nthe decision whether to provide these benefits to the U.S. representatives It would arguably be anomalous for Con\xc2\xad\ngress to vest the Secretary with such discretion regarding the benefits of U.S. representatives if they were part\nof Treasury, since that discretion does not exist as to other employees and officers of the Treasury Department\nWhile we tend to think that this is further evidence that the U.S representatives are not within the Treasury Depart\xc2\xad\nment, we also recognize that there is a counter argument to this line o f reasoning \xe2\x80\x94 namely, that an express grant\nof benefits was necessary to overcome the prohibition in 22 U S C \xc2\xa7286a(d)(l) on any person\xe2\x80\x99s receiving \xe2\x80\x9c any\nsalary or other compensation from the United States\xe2\x80\x9d for serving as an Executive Director or Alternate at the IMF\nor World Bank. As a result, we do not place any reliance on this argument in concluding that the U.S representatives\nare not part o f the Treasury Department.\n\n63\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nof State. In the first of these matters, the status o f the Mission determined both\nwhether a vacancy in a Senate-confirmed position in the Mission could be filled\nunder the old Vacancies Act and whether a Senate-confirmed officer, also in the\nMission, could be the officer designated by the President to fill that vacancy.\nSee Memorandum for Files, from Daniel L. Koffsky, Special Counsel, Office of\nLegal Counsel, Re: Vacancy at United States M ission to the United Nations at\n1 (Apr. 8, 1996) ( \xe2\x80\x9c 1996 UN Memo\xe2\x80\x9d ). In the second of these matters, we re\xc2\xad\naffirmed our conclusion that the Mission was in the State Department and con\xc2\xad\ncluded that therefore the United States Permanent Representative to the United\nNations could be detailed under the unamended Vacancies Act to fill a vacancy\nin the Department of Energy. See 1998 UN Memo at 1. Although a significant\nfactor in the Office\xe2\x80\x99s conclusion that the Mission is in the State Department was\nthat instructions for the Permanent Representative were sent through the Secretary\nof State, there the Secretary\xe2\x80\x99s power to give instructions was statutory, and in\nany event that power was not the sole or determinative factor. See 1996 UN Memo\nat 1-2; 1998 UN Memo at 2. To the contrary, the conclusion was premised on\na significant number of additional factors demonstrating the Mission\xe2\x80\x99s administra\xc2\xad\ntive location within the State Department. We noted, among other factors, that\nthe State Department exercises fiscal control over the Mission through control\nof the M ission\xe2\x80\x99s appropriations; the Permanent Representative is carried on the\nState Department\xe2\x80\x99s employment rolls; there is a \xe2\x80\x9c home desk\xe2\x80\x9d for the Mission\nwithin the State Department; the administrative officers within the State Depart\xc2\xad\nment treat the Permanent Representative as an official of the Department; the State\nDepartment handles the FOIA, whistleblower, and ethics work for the Mission;\nand the Inspector General for the State Department exercises jurisdiction over the\nMission. See 1996 UN Memo at 2; 1998 UN Memo at 2. As demonstrated above\nand in the information in the Appendix, these factors are generally not present\nwith regard to the U.S. representatives. Moreover, unlike the situation with the\nU.S. representatives and Treasury, there were no significant factors indicating that\nthe Mission was not part of the State Department.5 See also, e.g., Memorandum\nfor Ginger Lew, General Counsel, Department of Commerce, from Dawn Johnsen,\nDeputy Assistant Attorney General, Office of Legal Counsel, Re: ADEA and\nRegional Fishery Management Councils at 4 & n.l (Mar. 14, 1995) (\xe2\x80\x9c Regional\nFishery Management Councils O pin.\xe2\x80\x9d ); Memorandum for Frank K. Richardson,\nSolicitor, Department of the Interior, et al., from Larry L. Simms, Deputy Assist\xc2\xad\nant Attorney General, Office of Legal Counsel, Re: Status o f the Navajo and Hopi\n5 The only potentially contrary factor identified was an inconsistency among State Department wire diagrams;\nsom e clearly identified the Permanent Representative as part o f the State Department, whereas other wire diagrams\nappeared to suggest that the Mission had a relationship to State more akin to an independent agency. 1998 UN\nM em o at 2 n 1. The Treasury organizational charts and wire diagrams, in contrast, are consistent in not including\nthe U.S representatives as part o f the Treasury Department\n\n64\n\n\x0cApplicability o f the Federal Vacancies Reform Act to Vacancies at the International M onetary Fund\nand the World Bank\n\nIndian Relocation Commission and Removability o f its Commissioners at 10-11\n\n(Jan. 17, 1985).6\nD. Do the United States Representatives to the IMF Constitute an Independent\nEstablishment?\n\nBecause the U.S. representatives to the IMF are neither in a Government cor\xc2\xad\nporation nor part of an executive department, they are part of an Executive agency\nonly if they are an independent establishment. Section 104 defines an independent\nestablishment as follows: \xe2\x80\x9c For the purpose of this title, \xe2\x80\x98independent establish\xc2\xad\nment\xe2\x80\x99 means \xe2\x80\x94 (1) an establishment in the executive branch (other than the United\nStates Postal Service or the Postal Rate Commission) which is not an Executive\ndepartment, military department, Government corporation, or part thereof, or part\nof an independent establishment; and (2) the General Accounting Office.\xe2\x80\x9d 5\nU.S.C. \xc2\xa7 104. While this definition is quite broad, its plain language requires that\na collection of offices meet three requirements in order to constitute an inde\xc2\xad\npendent establishment: (1) it must be an \xe2\x80\x9c establishment\xe2\x80\x9d ; (2) it must be \xe2\x80\x9c in the\nexecutive branch\xe2\x80\x9d ; and (3) it must not be a part of an Executive department,\nmilitary department, Government corporation, or another independent establish\xc2\xad\nment. The U.S. representatives to the IMF can satisfy the third requirement, but\nnot the first two. Accordingly, we conclude that they are not an independent\nestablishment within the meaning of \xc2\xa7 104.\nTo the extent that the U.S. representatives are an indivisible part of the IMF,\nthey would only be part of an independent establishment if the IMF is itself an\nindependent establishment. The IMF, however, is not within the executive branch.\nIt is instead an international institution made up of representatives from over 180\nmember countries. See OPM Opin. at 3 (\xe2\x80\x9c IMF clearly is not within the Executive\nBranch\xe2\x80\x9d ). As a result, IMF as a whole cannot constitute an independent establish\xc2\xad\nment.\nFurther, while the U.S. representatives may be officers in the executive branch,\nsee OPM Opin., their \xe2\x80\x9c office\xe2\x80\x9d at IMF does not constitute an \xe2\x80\x9c establishment.\xe2\x80\x9d\nThe term \xe2\x80\x9c establishment\xe2\x80\x9d embodies the idea of a free-standing entity with its\nown structure and unity. For example, one dictionary defines \xe2\x80\x9c establishment,\xe2\x80\x9d\nin relevant part, as follows:\nc: a permanent civil or military force or organization; d: a more\nor less fixed and usu. sizable place of business or residence together\nwith all the things that are an essential part of it (as grounds, fur\xc2\xad\n6 Nor is our conclusion here inconsistent with O PM \xe2\x80\x99s conclusion that the Alternate USED is within the executive\nbranch for the purpose of qualifying for SES benefits OPM Opin at 3-5. The question whether a position is within\nthe executive branch is different from whether it is within the Treasury Department or whether the U.S representa\xc2\xad\ntives constitute an independent establishment. Moreover, OPM, in discussing persons who went from Treasury to\nbe the Alternate USEDs, states that, although they never left the executive branch, they left the Treasury Department.\nId. at 4-5.\n\n65\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nniture, fixtures, retinue, employees); e: a public or private institution\n(as a school or hospital)\nW ebster\xe2\x80\x99s Third New International Dictionary of the English Language,\nUnabridged 778 (1993). The office of the U.S. representatives is not of this char\xc2\xad\nacter. It is not in any sense an independent, free-standing establishment. It is\ninstead a component part of the IMF. The office is fully funded by the IMF,\nwith the IMF setting and paying the compensation of the U.S. representatives\nand their staff, as well as the office\xe2\x80\x99s operating expenses. The office, moreover,\nwith the exception of the U.S. representatives, is staffed by employees of the\nIMF who owe their principal obligations to the IMF, rather than the federal\ngovernment. See By Laws of the IMF, Rule N -3 (employees of the IMF, in con\xc2\xad\ntrast to representatives of the member nations, owe their exclusive loyalty to the\nIMF); OPM Opin. at 4 ( \xe2\x80\x9c [W]e would make the distinction between [U.S. rep\xc2\xad\nresentatives] and United States employees who transfer to international organiza\xc2\xad\ntions to serve the organizations in their area of expertise without any direct\naccountability to the United States.\xe2\x80\x9d ).\nBeyond the language of the statute, there is little relevant guidance in OLC\nopinions, case law, or the legislative history o f \xc2\xa7 104. On a few occasions, we\nhave considered whether an entity is an independent establishment. These matters,\nhowever, generally involved situations in which it was clear that the entity was\nan establishment and was in the executive branch; the only question was whether\nit was independent or a part of an Executive department. For example, we con\xc2\xad\ncluded that the Commission on Fine Arts is an independent establishment because\nit is a congressionally created, free-standing entity entirely financed by the federal\ngovernment. Memorandum for Charles H. Atherton, Secretary, Commission of\nFine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: A pplication of Executive O rder 11988, entitled \xe2\x80\x9c Floodplain\nManagement, \xe2\x80\x9d to the Commission o f Fine A rts at 2-3 (Nov. 14, 1980); see also,\ne.g., Memorandum for Edward A. Frankie, General Counsel, NASA, from J.\nM ichael Luttig, Assistant Attorney General, Office of Legal Counsel, Re: D epart\xc2\xad\nment o f Transportation Licensing Under the Commercial Space Launch A ct at\n16 (Nov. 15, 1990) (concluding NASA is an independent establishment because\nit has a presidentially appointed head who is responsible for exercise of all powers\no f NASA under only the supervision and direction of the President); Regional\nFishery Management Councils Opin. at 4 & n .l (the Councils are part of Com\xc2\xad\nmerce because their primary purpose is to advise the Secretary, the majority of\nvoting members are appointed by the Secretary, the Secretary controls what\nadministrative staff Councils may have and the procedures the Councils follow,\nand Commerce pays the compensation and expenses of the Councils and their\nstaffs).\n66\n\n\x0cApplicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund\nand the World Bank\n\nWith regard to the definition of \xe2\x80\x9c executive agency\xe2\x80\x9d set out in 40 U.S.C.\n\xc2\xa7 472(a) (1994), which we compared to the \xe2\x80\x9c nearly identical language in the defi\xc2\xad\nnition of \xe2\x80\x98executive agency\xe2\x80\x99 in title 5 \xe2\x80\x99s general provision (5 U.S.C. \xc2\xa7 105),\xe2\x80\x9d we\nnoted that certain less substantial and well delineated entities within the Executive\nOffice of the President might not constitute independent establishments. Memo\xc2\xad\nrandum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky,\nActing Assistant Attorney General, Re: Use o f GSA Authority to Accept Gift o f\nEquipment at 5 -6 (Aug. 3, 1993). In particular, we concluded that while the\nExecutive Office of the President and some of its principal components, such as\nthe Office of Management and Budget, appear to fall within the ordinary meaning\nof an independent establishment, \xe2\x80\x9c [i]t is much less certain whether more ad hoc\nand less formal entities under the [Executive Office of the President] would meet\nthis definition.\xe2\x80\x9d Id. at 5; see also H adden , 43 F.3d at 1489-90 (staff of the Execu\xc2\xad\ntive Residence are not employees within an Executive agency).7\nE. Conclusion\nWe recognize that Congress may not have had any specific intent to exclude\nthese offices from the scope of the Vacancies Reform Act. By its terms, however,\nthe Vacancies Reform Act applies only to vacancies in Senate confirmed offices\nthat are part of an \xe2\x80\x9c Executive agency.\xe2\x80\x9d While this defined term is quite broad\nand includes almost all Senate confirmed, executive branch offices, its use in the\nAct has the consequence that, to be covered by the Act, an office must be not\njust an office in the executive branch, but an office in an Executive department,\nGovernment corporation, or independent establishment. Because the U.S. rep\xc2\xad\nresentatives to the IMF are not part of an Executive department, Government cor\xc2\xad\nporation, or independent establishment, vacancies in those offices are not covered\nby the Vacancies Reform Act. We stress, however, that the category of executive\nbranch offices that are not part of an Executive agency is extremely narrow. In\nfact, that category may well be limited to a set of offices within international\nfinancial institutions that are similarly situated to the United States Executive\nDirector and Alternate United States Executive Director at the IMF.\n\nII. The United States Representatives to the World Bank\nThe Department o f the Treasury has informed us that the United States Execu\xc2\xad\ntive Director and the Alternate United States Executive Director at the World Bank\nare similarly situated to the USED and Alternate USED at the IMF with regard\nto the factors relevant to our determination that the USED and Alternate USED\n7 Section 104 of title 5 was added as a new provision to the United States Code as part of the codification of\ntitle 5. See Pub L. No 89-554, 80 Stat. 378, 379 (1966). The revision notes on \xc2\xa7 104 contained in the House\nand Senate reports are brief and do not shed light on the issue considered in this memorandum See H.R. Rep.\nNo. 89-901, at 6 (1965), S Rep No 89-1380, at 22-23 (1966).\n\n67\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 24\n\nat the IMF are not covered by the Vacancies Reform Act. Accordingly, for the\nreasons discussed in part I of this memorandum, vacancies in the offices of the\nUnited States Executive Director and the Alternate United States Executive\nDirector at the World Bank also are outside the coverage of the Vacancies Reform\nAct.\nConclusion\nBecause the United States Executive Directors and the Alternate United States\nExecutive Directors at the IMF and the World Bank are not part of an \xe2\x80\x98\xe2\x80\x98Executive\nagency,\xe2\x80\x9d vacancies in those offices are not covered by the Vacancies Reform\nAct.\nDANIEL L. KOFFSKY\nActing Deputy Assistant Attorney General\nOffice o f Legal Counsel\n\n68\n\n\x0cApplicability o f the Federal Vacancies Reform Act to Vacancies at the International Monetary Fund\nand the World Bank\n\nAPPENDIX\nOur conclusion is based on the following information about the U.S. representa\xc2\xad\ntives to the IMF and their relationship with the Treasury Department:8\n* The U.S. representatives receive instructions on voting and\npolicy matters from the Secretary of the Treasury. See, e.g., Exec.\nOrder No. 11269, at \xc2\xa73(a), reprinted as amended in 22 U.S.C.\n\xc2\xa7 286b note; 22 U.S.C. \xc2\xa7\xc2\xa7262h, 262k(b), 286a(d)(3).\n* The U.S. representatives are eligible, in the discretion of the\nSecretary of the Treasury, to receive employee benefits: \xe2\x80\x9c Notwith\xc2\xad\nstanding the provisions of any other law, [U.S. representatives at\ninternational financial organizations] shall, if they are citizens of\nthe United States, in the discretion of the Secretary of the Treasury,\neach be eligible on the basis of such service and the total compensa\xc2\xad\ntion received therefor, for all employee benefits afforded employees\nin the civil service of the United States.\xe2\x80\x9d 22 U.S.C. \xc2\xa7276c-2; see\nalso OPM Opinion, at 3 n.2 (Alternate USED eligible, in the discre\xc2\xad\ntion of the Secretary, for SES retirement benefits and health, life,\nand disability coverage).\n* Section 276c-2 further provides: \xe2\x80\x9c The Treasury Department\nshall serve as the employing office fo r collecting, accounting for,\nand depositing in the Civil Service Retirement and Disability Fund,\nEmployees Life Insurance Fund, and Employees Health Benefits\nFund, all retirement and health insurance benefits payments made\nby these employees, and shall make any necessary agency contribu\xc2\xad\ntions from funds appropriated to the Department of the Treasury.\xe2\x80\x9d\n22 U.S.C. \xc2\xa7 276c-2 (emphasis added).\n* Treasury provides ethics advice to the U.S. representatives,\nsince the U.S. representatives do not have an internal source for\nsuch advice, and the U.S. representatives are directed to file disclo\xc2\xad\nsure forms and generally to comport themselves as if covered by\nthe ethics rules. Nevertheless, the Treasury Department does not\nperform these functions as a result of any determination that it is\nlegally required to take this role, and Treasury seriously doubts that\nit has ever been asked to provide a \xc2\xa7 208(b) waiver to any USED\nor Alternate USED.\n8 Except for various of the statutory references, this information was provided to us by the Department of the\nTreasury\n\n69\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\n* The salaries of the U.S. representatives are set and paid by the\nIMF. See 22 U.S.C. \xc2\xa7286a(d)(l) ( \xe2\x80\x9c No person shall be entitled to\nreceive any salary or other compensation from the United States\nfor services as a Governor, executive director, councillor, alternate,\nor associate.\xe2\x80\x9d ). Federal law limits the salaries that IMF may pay\nthe U.S. representatives, capping them at the rate of a level IV of\nthe Executive Schedule for the USED and a level V for the Alter\xc2\xad\nnate USED. Id. \xc2\xa7 286a(d)(2). See also Foreign Operations, Export\nFinancing, and Related Agencies Appropriations Act, 1999, Pub.\nL. No. 105-277, \xc2\xa7534, 112 Stat. 2681, 2681-181 (1998) (annual\nappropriations rider prohibiting payment of appropriate funds to an\ninternational financial institution if statutory pay prohibitions are\nviolated).\n* IMF is similarly responsible for the salaries of the staff and\nother expenses of the office of the U.S. representatives.\n* The office of the U.S. representatives is typically staffed by four\nto six additional people. The secretaries who work in the office\nare employed by the IMF. The office also typically includes an\nadvisor and two or three assistants who are usually from Treasury.\nThese individuals are transferred to the IMF under 5 U.S.C. \xc2\xa7 3582\n(1994 & Supp. IV 1998). Upon being transferred to the IMF, these\nindividuals are separated from Treasury and are no longer Treasury\nemployees. They are not carried on Treasury\xe2\x80\x99s books and are not\ncovered by the conflict-of-interest rules or standards of conduct\napplicable to Treasury employees. The only elements of employ\xc2\xad\nment that they retain are re-employment rights and the right to\ncount their years of service at the IMF toward retirement eligi\xc2\xad\nbility.9\n* In a few instances, Treasury employees have also been detailed\nto the office of the U.S. representatives under 5 U.S.C. \xc2\xa73343\n(1994) when there was a pressing need for additional assistance.\nThese details are rare and have generally only been for short\nperiods of time.\n* The IMF receives an annual lump-sum contribution from the\nUnited States. These contributions flow through Treasury, but\n9 See also OPM Opin. at 4 (distinguishing staff transferred from Treasury to assist the U S representatives from\nthe representatives because the staff are \xe2\x80\x9c without any direct accountability to the United States\xe2\x80\x9d and \xe2\x80\x9c are separated\nfrom their United States employment for the penod o f their international service, and by statute, under prescnbed\nconditions, are given reemployment rights to their former positions\xe2\x80\x9d ).\n\n70\n\n\x0cApplicability o f the Federal Vacancies Reform A ct to Vacancies at the International M onetary Fund\nand the World Bank\n\nTreasury does not exercise any discretion over the payment or how\nthe funds will be used by the IMF.\n* Treasury does not consider the U.S. representatives to the IMF\nto be part of Treasury for purposes of FOIA. More specifically,\nTreasury indicated that it does not ask the U.S. representatives for\ndocuments in responding to FOIA requests addressed to Treasury\nif, e.g., the request concerns questions about the international finan\xc2\xad\ncial organizations. As a matter of interbranch cooperation, Treasury\ndoes provide information about the IMF in response to inquiries\nfrom Congress and the General Accounting Office.\n* The U.S. representatives are not treated as part of the Treasury\nDepartment in the Department\xe2\x80\x99s organizational charts and wire dia\xc2\xad\ngrams.\n\n71\n\n\x0c'


b'Exchange Authority for Kaloko Honokohau\nNational Historical Park\nT he Departm ent o f the Interior is authorized to acquire privately held land for the K aloko Honokohau\nNational H istorical f t r k by exchanging it for surplus federal land of equivalent value w ithin the\nState of Hawaii. Its exchange authority does not, however, extend to excess as well as surplus\nfederal land, nor to land outside the State of Hawaii.\nT he power to d ispose o f property of the United States is com m itted under the C onstitution to\nC ongress, and the E x ecutive\xe2\x80\x99s disposition of federal land in any particular case m ust be undertaken\nin accordance w ith w hatever rules C ongress has established for this purpose. In this ca se , the\nD epartm ent o f the Interior\xe2\x80\x99s specific exchange authority in connection with the Park is pre\xc2\xad\nsum ptively lim ited by the otherwise applicable general legal restrictions on federal land exchange\ntransactions.\n\nMay 20, 1982\nMEMORANDUM OPINION FOR THE\nUNDERSECRETARY OF THE INTERIOR\nThis responds to your request for the Department\xe2\x80\x99s legal opinion on two issues\nrelating to your authority to acquire land for the Kaloko Honokohau National\nHistorical Park in Hawaii. Both issues involve Interior\xe2\x80\x99s authority under the 1980\nprovision in its appropriations act to acquire what is now privately owned land by\nexchanging it for federal land of equivalent value. The first question is whether\nboth \xe2\x80\x9c surplus\xe2\x80\x9d and \xe2\x80\x9c excess\xe2\x80\x9d federal real properties are available for such an\nexchange under the 1980 law. The second question is whether federal land in\nother states may be exchanged for the privately held Hawaiian land in question.\nThe General Services Administration (GSA), in an opinion of its General\nCounsel dated August 25, 1981, takes the position that only intrastate exchanges\nof surplus real property are authorized. The Assistant Solicitor of the Interior and\ncounsel for the private property owners disagree, taking the position that the\n1980 law authorizes interstate exchanges of both surplus and excess property.1\nFor reasons stated below, we believe that the result reached by the GSA is correct,\n\n1 See A ug. 14, 1981, M em orandum to the A ssistant S ecretary for Fish and W ildlife and f c r k s , and the letter of\nS ept. 14, 1981, from C arla A H ills to Stephen Thayer, A ssistant to the A dm inistrator o f G SA T h e legal opin io n s\ncited are confined to the issue raised by the proposed exchange of land in differen t states, and d o not d iscu ss the\nquestion w hether both \xe2\x80\x9c surplus\xe2\x80\x9d and \xe2\x80\x9c excess\xe2\x80\x9d property m ay be exchanged. We gather that d isag reem en t with\nrespect to the latter question arose som etim e after these opinions were w ritten, and we have not been made aw are of\nthe argum ents advanced in support of either position\n\n251\n\n\x0cand that the only land authorized for exchange by the 1980 law is federal surplus\nland within the State of Hawaii.\nI. Legislative Background\nThe Kaloko Honokohau National Historical Park was established by the\nNational Kirks and Recreation Act of 1978 (1978 Act), Pub. L. No. 95-625, 92\nStat. 3499, \xe2\x80\x9c to provide a center for the preservation, interpretation, and per\xc2\xad\npetuation of traditional native Hawaiian activities and culture . . . .\xe2\x80\x9d See\n\xc2\xa7 505(a) of the 1978 Act, 16 U .S.C . \xc2\xa7 396d(a) (Supp. II 1978). Authority to\nacquire land for the Park was given to the Secretary of the Interior in \xc2\xa7 505(b) of\nthe 1978 Act:\nExcept for any lands owned by the State of Hawaii or its\nsubdivisions, which may be acquired only by donation, the Secre\xc2\xad\ntary is authorized to acquire the lands described above by dona\xc2\xad\ntion, exchange, or purchase through the use of donated or appro\xc2\xad\npriated funds, notwithstanding any prior restriction of law.\n16 U.S.C. \xc2\xa7 396d(b) (Supp. II 1978).\nSince the Park\xe2\x80\x99s establishment, Congress has failed to appropriate any funds to\nacquire privately held land for the Park. Nor, apparently, has it been possible\notherwise to acquire the particular property in question.\nIn 1980, additional legislation was passed to augment the Secretary\xe2\x80\x99s authority\nto acquire land under the 1978 Act. This legislation, enacted as a floor amend\xc2\xad\nment to your Department\xe2\x80\x99s appropriation act for fiscal 1981, Pub. L. No.\n96-514, 94 Stat. 2960, reads in its entirety as follows:\nNotwithstanding any other provision of law, the Secretary is\nauthorized and shall seek to acquire the lands described in Section\n505(a) of the Act of November 10, 1978 (92 Stat. 3467) by first\nacquiring Federal surplus lands of equivalent value from the\nGeneral Services Administration and then exchanging such sur\xc2\xad\nplus lands for the lands described in Section 505(a) of that Act\nwith the land owners. Exchanges shall be on the basis of equal\nvalue, and any party to the exchange may pay or accept cash in\norder to equalize the value of the property exchanged.\nII. Whether Excess Property as Well as Surplus\nProperty Is Available for Exchange\nWith respect to your first question, we find no support in the terms of the 1980\nappropriation act or its legislative history for an argument that \xe2\x80\x9c excess\xe2\x80\x9d as well\nas \xe2\x80\x9c surplus\xe2\x80\x9d real property should be available for an exchange transaction. By its\nterms, the 1980 provision refers only to \xe2\x80\x9c federal surplus lands\xe2\x80\x9d held by the\nGeneral Services Administration. Under the Federal Property and Administrative\nServices Act of 1949, 40 U .S.C . \xc2\xa7\xc2\xa7 471-514, the law pursuant to which the\n252\n\n\x0cGSA holds and administers federal property, the terms \xe2\x80\x9c surplus\xe2\x80\x9d and \xe2\x80\x9c excess\xe2\x80\x9d\ndenote two quite distinct categories of property.2 Property determined by one\nagency to be in \xe2\x80\x9c excess\xe2\x80\x9d of its needs can be sold or otherwise disposed of outside\nthe federal government as \xe2\x80\x9c surplus\xe2\x80\x9d only when and if the Administrator of\nGeneral Services determines that no other executive agency needs it. See 40\nU.S.C. \xc2\xa7 483(a)(1) and 41 C.F.R. \xc2\xa7 101^7.201-1.\nWhen the 1980 legislation speaks of the acquisition of \xe2\x80\x9c surplus\xe2\x80\x9d property\nfrom the GSA, we believe it reasonable to assume that Congress intended that\nterm to have its ordinary meaning under the Property Act. See 2A Sutherland\nStatutes and Statutory Construction \xc2\xa7 47.27 (4th ed. 1973). See also Watt v.\nAlaska, 451 U.S. 259, 267 (1981) (two statutes dealing with the same subject\nmust be read to give effect to each other if possible \xe2\x80\x9c while preserving their sense\nand purpose\xe2\x80\x9d ). This assumption is confirmed by the legislative history of the\n1980 provision. In explaining the legislation he had introduced, Senator Hatfield\nstated that \xe2\x80\x9c [a]ll this does is to give, in effect, authorization to the GSA and the\nForest Service [sic] under existing rules, regulations, and laws\xe2\x80\x9d to attempt to\nacquire the private property through an exchange transaction. 126 Cong. Rec.\n29665 (1980).3\nIII. Whether Interstate Land Exchanges Are Authorized\nby the 1980 Provision\nAs a general matter, the power to dispose of property of the United States is\ncommitted to Congress by Article IV, section 3, clause 2 of the Constitution. This\npower of Congress is \xe2\x80\x9c exclusive,\xe2\x80\x9d and \xe2\x80\x9c only through its exercise in some form\ncan rights in lands belonging to the United States be acquired.\xe2\x80\x9d Utah Power and\nLight Co. v. United States, 243 U.S. 389, 404\xe2\x80\x9405 (1917). It follows that\nCongress may \xe2\x80\x9c prescribe the conditions upon which others may obtain rights in\nthem.\xe2\x80\x9d Id. at 505. Accordingly, the Secretary\xe2\x80\x99s authority under both the 1978 and\n1980 statutes to dispose of federal lands by exchanging them for privately owned\nlands for the Park must be exercised in accordance with whatever particular rules\nCongress has established. One set of rules applicable generally to land exchange\ntransactions in the National Park System is set forth in 16 U.S.C. \xc2\xa7 460/-22(b):\nThe Secretary of the Interior is authorized to accept title to any\nnon-Federal property or interest therein within a unit of the\nNational Park System or miscellaneous area under his administra\xc2\xad\ntion, and in exchange therefor he may convey to the grantor of\n2 \xe2\x80\x9c Excess p ro p erty \xe2\x80\x9d is defined in \xc2\xa7 3(e) of the P roperty Act as \xe2\x80\x9c any property un d er the control o f any F ederal\nagency w hich is not required for its needs and th e discharge o f its responsibilities, as d eterm ined by the head\nth e re o f\xe2\x80\x9d 40 U S C . \xc2\xa7 47 2 (e) \xe2\x80\x9c S urplus p ro p erty \xe2\x80\x9d is defined in \xc2\xa7 3(g) as \xe2\x80\x9c any excess property not required fo r the\nneeds and the discharge o f the responsibilities of all Federal agencies, as d eterm ined by the A dm inistrator [of\nG eneral S ervices]." 40 U S C \xc2\xa7 472(g) (em phasis added).\n3 W hen C ongress has m ade an exception to general practice under the P roperty A ct w ith respect to the\nadm inistration and disp o sitio n of excess property, it has been explicit See, e g , 4Q\\J S .C . \xc2\xa7 48 3 (a)(2 ) (GSA m u st\ntransfer to the S ecretary o f the Interior any excess real property located w ithin an Indian reservation, to be h eld in\ntrust for the use and benefit o f the tribe, w ithout regard to w hether any other Federal agency needs o r w ants to acq u ire\nit for its ow n use).\n\n253\n\n\x0csuch property or interest any Federally owned property or interest\ntherein under his jurisdiction which he determines is suitable for\nexchange or other disposal and which is located in the same State\nas the non-Federal property to be acquired . . . . The values of\nthe properties so exchanged either shall be approximately equal,\nor if they are not approximately equal, the values shall be equal\xc2\xad\nized by the payment of cash to the grantor from funds appropri\xc2\xad\nated for the acquisition o f land for the area, or to the Secretary as\nthe circumstances require. (Emphasis supplied.)\nSection 460/-22(b) was enacted as \xc2\xa7 5(b) of the Land and Water Conservation\nFund Amendments of 1968, Pub. L. No. 90-401, 82 Stat. 356. By its terms, it\napplies to all land exchange transactions in \xe2\x80\x9c the National Park System or\nmiscellaneous area[s] under [the Secretary\xe2\x80\x99s] jurisdiction.\xe2\x80\x9d Its legislative history\nindicates that Congress intended to impose \xe2\x80\x9c consistent\xe2\x80\x9d limiting conditions on\nthe Secretary\xe2\x80\x99s authority to acquire private land for national parks by exchange,\nconfining the land available for such exchanges to \xe2\x80\x9c federally owned tracts under\nthe jurisdiction of the Department of the Interior in the same State, or States, as\nthe national park unit.\xe2\x80\x9d S. Rep. No. 1071, 90th Cong., 2d Sess. 8-9 (1968). In\n1970 the general applicability of \xc2\xa7 460/-22(b) to all land exchange transactions\nin the National Park System (unless \xe2\x80\x9c in conflict with any . . . specific provi\xc2\xad\nsion\xe2\x80\x9d ) was affirmed by \xc2\xa7 2(b) of Pub. L. No. 91-383,84 Stat. 826, codified at 16\nU .S.C . \xc2\xa7 lc(b). See H.R. Rep. No. 1265, 91st Cong., 2d Sess. 8 (1970) (letter\nfrom Secretary of the Interior Hickel).4\nYour Department does not contend, nor do we think it reasonably could, that\nthe general limitations on the Secretary\xe2\x80\x99s land exchange authority contained in\n\xc2\xa7 460/-22(b) are not applicable to exchanges under \xc2\xa7 505(b) of the 1978 Act. We\nagree, then, that under the 1978 Act standing alone the Secretary would have\nbeen authorized to acquire privately owned land for the Park by exchange only\nwhen the federal property to be exchanged is (1) \xe2\x80\x9c under his jurisdiction\xe2\x80\x9d and (2)\n\xe2\x80\x9c located in the same State as the non-Federal property to be acquired.\xe2\x80\x9d The\nquestion thus arises whether the 1980 enactment modified the Secretary\xe2\x80\x99s ex\xc2\xad\nchange authority under the 1978 Act.\nYour Department interprets the 1980 enactment to authorize the Secretary to\nacquire from GSA federally owned land in other states in order to exchange it for\nthe privately owned land in Hawaii. That is, you believe the 1980 provision\ncarves out an exception to the intrastate restriction which otherwise governs all\nland exchanges transactions in the national park system. Your position in this\nregard appears to be based on a broad reading of the 1980 provision\xe2\x80\x99s\n4 W hen C o n g ress has m ade an exception to th e intrastate restrictio n of \xc2\xa7 4 6 0 /-2 2 (b ), it has been quite specific\nSee. e .g ., 16 U S .C \xc2\xa7 4 5 9 c -2 (c ) (S ecretary m ay acquire land for Point R eyes National S eashore by exchanging\np ro p erty u n d er his ju risd ic tio n \xe2\x80\x9c within C a lifo rn ia and adjacent States\xe2\x80\x9d ); 16 U .S C . \xc2\xa7 4 5 9 /- l( b ) (A ssateague\nN ational S eashore; land in M aryland or V irginia m ay be exchanged); 16 U .S C . \xc2\xa7 4 6 0 o - l( a ) (D elaw are Water G ap\nN ational R ecreation A rea; o n ly land in P ennsylvania, New Jersey or New York may be exchanged), 16 U .S .C .\n\xc2\xa7 4 6 0 /- l ( a ) (B ig h o m C anyon National R ecreation Area; land in M ontana o r W yom ing m ay be exchanged); 16\nU .S .C \xc2\xa7 4 6 0 w -l(a ) (In d ian a Dunes N ational Seashore, land in Indiana o r Illinois may be exchanged)\n\n254\n\n\x0cintroductory phrase, \xe2\x80\x9c [notwithstanding any other provision of law.\xe2\x80\x9d See Assist\xc2\xad\nant Solicitor Watts\xe2\x80\x99 memorandum of Aug. 14, 1981. We cannot agree that the\nphrase accomplishes so much.\nAt the outset, it is not clear from the text of the 1980 provision whether the\nintroductory \xe2\x80\x9c notwithstanding\xe2\x80\x9d phrase modifies the specific directive in this\nprovision to acquire surplus land from GSA for the purpose of exchange, or\nwhether it modifies the Secretary\xe2\x80\x99s statutory exchange authority itself. If the\nformer reading were correct, the phrase would not supersede more generally\napplicable legal conditions governing an exchange transaction, such as\n\xc2\xa7 460/-22(b). If the latter reading were correct, then the introductory phrase\nwould have to be read to repeal every statutory restriction on or regulation of the\nSecretary\xe2\x80\x99s power to acquire the land in question. See, e .g ., 40 U.S.C. \xc2\xa7 255 or\n42 U.S.C. \xc2\xa7 4651. This latter reading would, in rendering all such restrictions\nand regulations legally ineffective, repeal by implication all such restrictions and\nregulations.\nRepeals by implication are not favored, see Watt v. Alaska, supra, 451 U.S. at\n267. We would be, therefore, reluctant to give such a broad reach to this\nambiguous provision in the 1980 enactment without clearer textual expression of\nlegislative intent. See also TVA v. Hill, 437 U.S. 153,189-90 (1978) (exceptions\nto a generally applicable statute will not be implied from subsequent legislation,\nparticularly where the subsequent legislation is an appropriations act). In addi\xc2\xad\ntion, as pointed out in notes 3 and 4 supra, this particular problem of statutory\nconstruction arises in a context in which Congress has historically legislated with\ncare and specificity when authorizing exceptions to the general congressionally\nestablished rules governing acquisition and disposal of property by the Ex\xc2\xad\necutive. Accordingly, we would normally give the \xe2\x80\x9c notwithstanding\xe2\x80\x9d phrase the\nnarrower of the two readings absent other persuasive evidence of congressional\nintent to the contrary.\nThe brief legislative history of the 1980 law, found at 126 Cong. Rec. 29665\n(1980), confirms, rather than contradicts, our reading of the 1980 enactment.\nSenator Hatfield described the difficulty created by Congress\xe2\x80\x99 failure to appropri\xc2\xad\nate funds to purchase the privately held Hawaiian land for the Park, and explained\nhis proposed legislative solution in the following terms:\nMr. President, this is one of those very interesting situations\nwhere we are trying to correct an inequity that exists at this time.\nThe Congress of the United States authorized the establishment of\na park in Hawaii and this park was to be developed out of a large\nparcel of private ownership. The only problem is that the Govern\xc2\xad\nment has not had the appropriations to make this purchase, and it\nhas now been appraised at about $60 million.\nThe owners of this property are people of modest income, of\nincreasing age. In fact, I believe the owner is now near 70.\nThey realize that, for the first time, if they should die their heirs\nwould be thrust into a very untenable position of having to pay\n255\n\n\x0cinheritance tax on estate ownership, including this $60 million\nappraised value land.\nThey have asked for relief in this situation. The GSA and the\nForest Service [sic] have agreed that there is land in Hawaii that\nthey could easily exchange and thereby create a fluid landholding\nas against this one buyer market situation they face.\nAll this does is to give, in effect, authorization to the GSA and\nthe Forest Service [sic] under existing rules, regulations, and laws\nto proceed to redress this particular hardship that has been placed\nupon these innocent people.\nThis passage reveals no intention to remove the otherwise applicable intrastate\nrestriction of 16 U .S.C . \xc2\xa7 460/\xe2\x80\x9422(b). Indeed, Senator Hatfield seems to have\nassumed that the transaction to be facilitated by his legislation would involve only\nfederal surplus land located in Hawaii (\xe2\x80\x9cThe GSA and the Forest Service [sic]\nhave agreed that there is land in Hawaii that they could easily exchange. . . .\xe2\x80\x9d).\nThis, coupled with his final reference to \xe2\x80\x9c existing rules, regulations, and laws\xe2\x80\x9d\nwhich we have already quoted above, convinces us that the 1980 legislation was\nnot intended to carve out an exception to \xc2\xa7 460/-22(b) so as to permit intrastate\nland exchanges.\nThe most plausible explanation for the introductory \xe2\x80\x9c notwithstanding\xe2\x80\x9d phrase\nis found in what has been described to us by the Assistant Solicitor as the GSA\xe2\x80\x99s\npre-1980 reluctance to make available surplus property for the purposes of\nexchange except in accordance with the strict conditions imposed by its own\nregulations.5 The 1980 legislation was, we conclude, intended to encourage the\nGSA to make available surplus property for the exchange by providing the\nspecific legal authority which the GSA apparently felt was insufficient under the\n1978 law. It was not, however, intended to remove legal restrictions which would\notherwise be applicable to the exchange itself.\nT h eo d o r e B . O lso n\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n5 See 41 C .F R . \xc2\xa7 101\xe2\x80\x9447 301\xe2\x80\x941(c) (\xe2\x80\x9csurplus real property shall be disp o sed o f by exchange for privately ow ned\np ro p erty o n ly fo r p roperty m anagem ent co n sid eratio n s such as boundary realignm ent o r provision of access o r in\nth o se situ atio n s in w hich the acquisition is a u th o rized by law, the requesting Federal agency has received approval\nfro m the O ffice o f M an ag em en t an d Budget a n d clearance from its congressio n al oversight com m ittees to acquire by\ne x c h an g e, an d th e transaction offers substantial econom ic o r unique program advantages n ot otherw ise obtainable\nby any o th e r m ethod o f acquisition.\xe2\x80\x99\').\n\n256\n\n\x0c'


b"July 7, 1977\n\n77-41\n\nMEMORANDUM OPINION FOR THE\nCHAIRMAN, CIVIL SERVICE COMMISSION\nRetirement Benefits of Tax Court Judges\n\nThis is in response to your request to the Attorney General of May\n13, 1977, for an opinion concerning the proper construction of 26\nU.S.C. \xc2\xa7 7447, which governs retirement benefits for Tax Court judges.\nThe question posed is whether such a judge is entitled to receive an\nannuity under the Civil Service Retirement (CSR) System for covered\nservices rendered as a Government official before becoming a Tax\nCourt judge or after leaving the Tax Court where, while a judge, he\nelected to receive retired pay under the separate retirement system\nprovided for Tax Court judges but thereafter failed to qualify to re\xc2\xad\nceive such benefits.\nThe task is one of statutory construction. Section 74471 provides for\nthe payment o f an annuity upon the retirement of a Tax Court judge\nunder certain conditions. Those conditions concern principally the\njudge\xe2\x80\x99s age and length of service, provided the judge has elected to\nreceive such retired pay during his tenure as a judge. The election,\nonce made, is irrevocable, and his right to retired pay is forfeited if he\nthereafter accepts Federal office or employment.\nThe critical language of \xc2\xa7 7447 provides that with respect to a judge\nwho has made the election, \xe2\x80\x9cno annunity or other payment shall be\npayable . . . under the civil service retirement laws with respect to any\nservice performed . . . (whether performed before or after such election\nis filed and w hether performed as judge or otherwise).\xe2\x80\x9d \xc2\xa7 7447(g)(2)(A).\nYou inquire whether an election is effective on the day it was filed or\nw hether it only becomes effective at the time the judge becomes enti\xc2\xad\ntled to receive retirement benefits under the Tax Court system. It is\nargued that if the election is effective on the date of filing, the judge\nwould be precluded from receiving an annuity under both the Civil\nService Retirement System and the Tax Court system, a result Con\xc2\xad\ngress did not intend. The argument refers to a statement appearing in\n1 T h e section is part o f the In ternal R evenue C ode o f 1954, 26 U.S.C. \xc2\xa7 1 et seq.\n\n164\n\n\x0cthe Senate report on the subsequent Tax Reform Act of 1969, which\nstated that \xe2\x80\x9cthe bill retains the provisions of present law that a Tax\nCourt judge may not receive both civil service retirement and Tax\nCourt pensions . .\nS. Rep. 91-552, 91st Cong., 1st Sess., at 305. The\npost-legislative statements by the Chairman of the Senate Finance Com\xc2\xad\nmittee and the Chairman of the House Committee on Ways and Means\nare to the same effect. The implication apparently is that it was not the\nintention of Congress to preclude the receipt o f an annuity under the\nCivil Service Retirement System if the judge could not receive an\nannuity under the Tax Court system.\nWe have considered both sides of the matter carefully, and it is our\nconclusion that a Tax Court judge who has made an election to particpate in the court\xe2\x80\x99s retirement system, and thereafter fails to serve the\nminimum number of qualifying years, is nevertheless barred from re\xc2\xad\nceiving an annuity under the Civil Service Retirement System for prior\nor subsequent Federal service. The plain language of \xc2\xa7 7447(g)(2)(A) so\nprovides, and our examination of \xc2\xa7 7447 as a whole indicates that this\nresult is consistent with its purpose.\nSection 7447 plainly restricts the freedom of choice of a'T ax Court\njudge who has elected the court\xe2\x80\x99s retirement system. He is eligible for\nbenefits only at age 70, after 15 years of service at age 65, or after 15\nyears of service when he requests but does not obtain reappointment.2\nA retired judge forfeits retirement pay for one year if he does not\nreturn to service when recalled.3'In addition, a retired judge completely\nforfeits any benefits under the. system if he accepts any other civil office\nunder the United States or privately practices law or accountancy\nrelated to the court\xe2\x80\x99s subject matter jurisdiction.4\nIn return for accepting these restrictions, a judge who elects the\nsystem receives a financial benefit. If he has served 10 years, he may\nreceive his full salary.5 Under the Civil Service Retirement System, in\ncontrast, he could receive no more than 80 percent of his average\nsalary for his highest consecutive 3 years of service.\xc2\xae\nThus, the statute provides that to be eligible for the higher retirement\nbenefits provided by the Tax Court system, the judge must serve until\nthe end of a full term of office or until he reaches the mandatory\nretirement age. To remain eligible, he must return to the court as\nrequested and must forgo employment that might be inconsistent with\nhis past or future judicial duties. In particular, he must forgo any\nsubsequent civilian employment with the United States other than as a\nTax Court judge. It is apparent that one purpose of the statute as a\n1 26 U.S.C. \xc2\xa7 7447(b), (d). Judges are appointed for 15-year terms. 26 U.S.C. \xc2\xa7 7443(e).\nT h e m andatory retirem ent age for Tax C ourt judges is 70, and no' person over 65 may be\nappointed.\n3 26 U.S.C. \xc2\xa7 7447(0* 26 U.S.C. \xc2\xa7 7447(0\xc2\xbb 26 U.S.C. \xc2\xa7 7447(d)(1).\n\xe2\x80\xa2See 5 U.S.C. \xc2\xa7\xc2\xa7 8331(4), 8339(a), (e).\n\n165\n\n\x0cwhole is to provide a financial incentive for persons appointed to the\nTax Court to remain in its service instead o f leaving to accept other\npositions in the Federal Government. We believe it consistent with this\npurpose to regard an irrevocable election to receive benefits under the\nTax Court retirement plan as effective when made. Ineligibility to\nreceive a civil service retirement annuity for prior or subsequent Feder\xc2\xad\nal services reinforces the financial incentive to remain on the court.\nW e do not believe that the statement in the explanation of \xc2\xa7 7447 in\nthe 1969 Senate report is evidence o f a contrary legislative intent. The\nbasic structure of the section, including the loss of any civil service\nannuity by an electing judge, was enacted in 1953.7 The House Ways\nand Means Committee report on the section states that an election to\nreceive retirement pay under the Tax Court plan is \xe2\x80\x9cirrevocable,\xe2\x80\x9d and\nthat a judge who has elected the plan \xe2\x80\x9cis not to be entitled to any\nannuity\xe2\x80\x9d under the Civil Service Retirement System.8 The section was\nreenacted without change in the Internal Revenue Code of 1954. In\n1969, subsection (g) was amended to allow an electing judge a refund\no f previous contributions to the civil service system, but the basic\nstructure of \xc2\xa7 7447 was unchanged.\xc2\xae There is no indication that Con\xc2\xad\ngress considered the problem whether a judge who leaves the Tax\nCourt before he is eligible under its retirement system loses the right to\nfuture civil service retirement benefits. Because the issue was not raised\nin 1969, the statement concerning \xc2\xa7 7447 in the Senate report offers no\nguidance to the intention o f the Congress that originally enacted it in\n1953. See, United States v. Price, 361 U.S. 304, 313 (1960); Rainwater v.\nUnited States, 356 U.S 590, 593 (1958). The legislative history, there\xc2\xad\nfore, provides no basis for concluding that \xc2\xa7 7447 does not operate\naccording to its plain meaning.\nN or should weight be given to the postenactment explanations of\ncongressional intent by the Chairman of the Senate Finance Committee\nand the Chairman of the House Committee on Ways and Means. It is\nsettled that postenactment explanations of legislative intent by subse\xc2\xad\nquent statements of individual Members, however deeply involved in\nthe passage of a statute, are not evidence of the intent of Congress as a\nw hole at the time of enactment. See, United States v. Philadelphia\nN ational Bank, 374 U.S. 321, 348-49 (1963); United States v. United\nM ine Workers, 330 U.S. 258, 282 (1947); Selman v. United States, 498 F.\n2d 1354, 1359 n. 6 (Ct. Cl. 1974); Epstein v. Resor, 296 F. Supp. 214,\n216 (D. Cal. 1969). See, generally, 2A Sutherland, Statutory Construc\xc2\xad\ntion \xc2\xa7 48.16.\nFinally, we do not believe it unduly harsh to regard a judge\xe2\x80\x99s elec\xc2\xad\ntion of the Tax Court system as being final when made. A judge is free\nto elect to participate or to decline to do so. He may defer his decision\n\xe2\x80\x99 A c t o f A ugust 7, 1953, 67 S tat. 482; Internal R evenue C ode o f 1939, \xc2\xa7 1106.\n8 H .R . Rep. 846, 83rd Cong., 1st Sess. (1953) pp. 6, 8.\n0 See T ax R eform A c t of 1969, \xc2\xa7 954(c), Pub. L. No. 91-172, 83 Stat. 731; S. Rep. 91552, 91st C ong., 1st Sess., at pp. 304-05.\n\n166\n\n\x0cuntil the last day o f his tenure without any financial loss. Once he has\nelected, he is entitled to a refund of his previous payments to the Civil\nService Retirement System.10 Moreover, the language of \xc2\xa7 7447(g)(2) is\nnot misleading, for it clearly states that after election, no civil service\nannuity shall be paid for any Federal service. Under our interpretation\nof the statute, a judge may decide whether or not to elect the Tax\nCourt retirement plan on a rational basis with minimal risk.\nJo h n M. H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98\xe2\x80\x9c See 5 U.S.C. \xc2\xa7 8331(8); 26 U.S.C. \xc2\xa7 7447(g)(2)(C).\n\n167\n\n\x0c"