b"Payment of Travel Costs to Witnesses\nDuring a Period of Lapsed Appropriations\nW here witnesses have been ordered to appear in court during a lapse in the Department\no f Justice's appropriation, and lack the financial resources necessary to return home,\nthere exists a sufficient likelihood that the witnesses\xe2\x80\x99 safety would be compromised by\nnot providing them the means to return home to w arrant a cash disbursement for that\npurpose under the Antideficiency Act, 31 U.S.C. \xc2\xa7 665(b).\nUnder the interpretation of the Antideficiency A ct in the Attorney General's opinion of\nJanuary 16, 1981, emergency expenditures may be made during a lapse in appropria\xc2\xad\ntions if they are necessary to secure the safety of human life o r the protection of\nproperty. T he totality of circumstances must be examined and evaluated in each case to\ndetermine w hether such emergency expenditures are permitted.\n\nDecember 23, 1981\nMEMORANDUM OPINION FOR THE ASSISTANT ATTORNEY\nGENERAL, JUSTICE MANAGEMENT DIVISION\nThe Justice Management Division (JMD) asked this Office to advise\nwhether disbursement of travel costs incurred by witnesses in a given\nset of circumstances during a lapse in appropriations would be pre\xc2\xad\ncluded by the Antideficiency Act, 31 U.S.C. \xc2\xa7 665.1 Specifically, JMD\nasked whether disbursement of costs incurred by a witness traveling to\nand from the courthouse, pursuant to 28 U.S.C. \xc2\xa7 1821(c)(Supp. II\n1978),2 would violate the Act when the witness\xe2\x80\x99 appearance was di\xc2\xad\nrected by a court order issued prior to the lapse in appropriations.\n1 The Antideficiency Act, 31 U.S.C \xc2\xa7 665, provides in pertinent part:\n(a) Expenditures or contract obligations in excess of funds prohibited\nNo officer or employee of the United States shall make or authorize an expenditure\nfrom or create o r authorize an obligation under any appropriation or fund in excess of\nthe amount available therein; nor shall any such officer or employee involve the\nGovernm ent in any contract or other obligation, for the payment o f money for any\npurpose, in advance of appropriations made for such purpose, unless such contract or\nobligation is authorized by law.\n(b) Voluntary service forbidden\nNo officer or employee of the United States shall accept voluntary service for the\nUnited States or employ personal service in excess of that authorized by law, except in\ncases o f emergency involving the safety of human life or the protection of property.\n* 28 U.S.C. \xc2\xa7 1821(c) provides in pertinent part:\n(1) A witness who travels by common carrier shall be paid for the actual expenses of\ntravel on the basis o f the means of transportation reasonably utilized and the distance\nnecessarily traveled to and from such witness's residence by the shortest practical route\nin going to and returning from the place o f attendance.\n(2) A travel allowance equal to the mileage allowance which the Administrator of\nGeneral Services has prescribed, pursuant to section 5704 of title 5, for official travel\nof employees of the Federal Government shall be paid to each witness who travels by\nprivately owned vehicle.\n\n429\n\n\x0cThe Antideficiency Act prohibits the United States from making\nexpenditures or incurring contract obligations in excess of the amount\nof funds appropriated, \xe2\x80\x9cunless such contract or obligation is authorized\nby law.\xe2\x80\x9d Attorney General Civiletti rendered an opinion on January 16,\n1981, strictly construing the spending prohibitions contained in the Act\nunless such expenditures were authorized by law. See Opinion of the\nAttorney General, January 16, 1 9 8 1 See also Opinion of the Attorney\nGeneral, April 25, 1980, 43 Op. A tt\xe2\x80\x99y Gen._[4 Op. O.L.C. 16 (1980)].\nIncluded within the expenditures permitted under the Act during a\nlapse in appropriations pursuant to these two opinions are those which\ninvolve the orderly termination of agency operations, and emergency\nexpenditures which are necessary to secure the safety of human life or\nthe protection of property. The Attorney General did not list specifi\xc2\xad\ncally the obligations for which expenditures could be made after a lapse\nin appropriations; rather, he set forth \xe2\x80\x9cgeneral principles\xe2\x80\x9d in his opinion\nletter, \xe2\x80\x9c[t]he precise application [of which] must, in each case, be\ndetermined in light of all circumstances surrounding a particular lapse\nin appropriations.\xe2\x80\x9d Letter, January 16, 1981, supra at 3.\nThe Attorney General construed the \xe2\x80\x9csafety of human life [and]\nprotection of property\xe2\x80\x9d clause of \xc2\xa7 665(b) to require:\n[first,] some reasonable and articulable connection be\xc2\xad\ntween the function to be performed and the safety of\nhuman life or the protection of property [and second]\nsome reasonable likelihood that the safety of human life\nor the protection o f property would be compromised, in\nsome degree, by delay in the performance of the function\nin question.\nId. at 11. Application of these principles to the situation described in\n\nJM D \xe2\x80\x99s request3 leads to the conclusion that a cash disbursement in an\namount sufficient to permit the witnesses to return home, or, if travel is\nimpracticable at that time, to secure overnight accommodations and\nmeals, would be permitted under the Act.\nExpenditures authorized as necessary to the \xe2\x80\x9corderly termination of\nagency operations\xe2\x80\x9d may, in circumstances of extraordinary hardship,\ninclude the payment of obligations which arose prior to the lapse in\nappropriations. In the circumstances described by JMD, it seems clear\nthat the obligation to reimburse the witnesses for round trip costs arose\nat the time of their departure from home, and that, having induced\n\xc2\xb0 N o t e : T he January 16, 1981, Opinion of the A ttorney General, Authority for the Continuance o f\nGovernment Functioning During a Temporary Lapse in Appropriations, appears in this volume at p. 1\nsupra. Ed.\n3T he particular situation described by JM D involved several witnesses who were ordered to appear\nin court on the morning of Monday, Novem ber 23, 1981. Appropriations authority lapsed at midnight,\nF nday, Novem ber 20, 1981, and continued through the late afternoon of November 23. T he witnesses\nhad not been notified prior to their arrival at the courthouse that the court would not be convened on\nM onday morning, had traveled a distance of some length, and had no money to return home.\n\n430\n\n\x0ctheir travel by court order, part of the orderly termination of the\ncourt\xe2\x80\x99s business involved making funds available for their return home\nor lodging in safe accommodations, if return that day is impractical. We\ndo not mean to suggest that the \xe2\x80\x9corderly termination of agency oper\xc2\xad\nations\xe2\x80\x9d exception may be applied to authorize payment of all witness\nfees or other obligations which arose prior to the appropriations\nhiatus\xe2\x80\x94rather the totality of circumstances must be examined and eval\xc2\xad\nuated in each case.\nWhile it is clear that witnesses who are directed by court OTder to\nappear in federal courts during a lapse in appropriations have a valid\nclaim against the United States for travel costs incurred in complying\nwith the court\xe2\x80\x99s order, ordinarily, such disbursements may not be made\nuntil the Department\xe2\x80\x99s funding has resumed. See New York Airways, Inc.\nv. United States, 369 F.2d 743 (Ct. Cl. 1966). However, the particular\nwitnesses described in JM D \xe2\x80\x99s request present a \xe2\x80\x9chardship\xe2\x80\x9d case that, in\nour judgment, meets the requisite standard for emergency expenditures\nunder \xc2\xa7 665(b) set forth in Attorney General Civiletti\xe2\x80\x99s January 16,\n1981, opinion. Where witnesses have been ordered to appear in court\nduring a lapse in the Department of Justice\xe2\x80\x99s appropriation, and lack\nfinancial resources necessary to return home, we believe that there\nexists a sufficiently reasonable likelihood that the witnesses\xe2\x80\x99 safety\nwould be compromised by not providing them the means to return\nhome to warrant a cash disbursement for that purpose.\nBecause expenditures authorized under the Antideficiency Act are to\nbe narrowly construed, our opinion is confined to the particular facts\nset forth in this case.\nT h e o d o r e B. O l s o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n431\n\n\x0c"


b'Legal Effectiveness of a Presidential Directive, as Compared to\nan Executive Order\nA presidential d irective has the sam e substantive legal effect as an executive order. It is the substance\no f the presidential action that is determ inative, not the form o f the docum ent conveying that action.\nBoth an executive order and a presidential directive rem ain effective upon a change in adm inistration,\nunless o therw ise specified in the docum ent, and both continue to be effective until subsequent\npresidential action is taken.\nJa n u a ry 2 9, 2 0 0 0\n\nM\n\nem orandum\n\nO p in io n\n\nfo r t h e\n\nC ou n sel\n\nt o th e\n\nP r e s id e n t\n\nYou have asked our opinion whether there is any substantive legal difference\nbetween an executive order and a presidential directive. As this Office has consist\xc2\xad\nently advised, it is our opinion that there is no substantive difference in the legal\neffectiveness of an executive order and a presidential directive that is styled other\nthan as an executive order. We are further of the opinion that a presidential direc\xc2\xad\ntive would not automatically lapse upon a change o f administration; as with an\nexecutive order, unless otherwise specified, a presidential directive would remain\neffective until subsequent presidential action is taken.\nWe are aware of no basis for drawing a distinction as to the legal effectiveness\nof a presidential action based on the form or caption of the written document\nthrough which that action is conveyed. Cf. Memorandum for Harold Judson,\nAssistant Solicitor General, from William H. Rose, Re: Statement o f Policy\nRegarding Certain Strategic M aterials (Aug. 28, 1945) (concluding that a letter\nfrom. President Roosevelt stating the government\xe2\x80\x99s policy \xe2\x80\x9c constitute[d] a Presi\xc2\xad\ndential directive having the force and effect of law,\xe2\x80\x9d notwithstanding its infor\xc2\xad\nmality of form). It has been our consistent view that it is the substance of a presi\xc2\xad\ndential determination or directive that is controlling and not whether the document\nis styled in a particular manner. This principle plainly extends to the legal\neffectiveness of a document styled as a \xe2\x80\x9c presidential directive.\xe2\x80\x9d\nMoreover, as with an executive order, a presidential directive would not lose\nits legal effectiveness upon a change of administration. Rather, in our view,\nbecause a presidential directive issues from the Office of the Chief Executive,\nit would remain in force, unless otherwise specified, pending any future presi\xc2\xad\ndential action. Cf. Memorandum for Michael J. Egan, Associate Attorney General,\nfrom John M. Harmon, Acting Assistant Attorney General, Office of Legal\nCounsel, Re: P roposed Amendments to 28 CFR 16, Subpart B (Apr. 21, 1977)\n(raising possible concerns about a proposal to delegate to the Deputy Attorney\nGeneral certain authorities to invoke executive privilege because such a delegation\ncould potentially be inconsistent with a 1969 Memorandum from President Nixon\non executive privilege). Indeed, Presidents have frequently used written forms\n29\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 24\n\nother than executive orders to take actions that were intended to have effect during\na subsequent administration. For example, delegations of presidential authority\nunder 3 U.S.C. \xc2\xa7301 have been made pursuant to presidential memoranda.1 See\nalso, e.g., Memorandum Establishing a Federal Energy Management Program, 3\nPub. Papers of Gerald R. Ford 1015 (1976) (including a directive to be carried\nout for FY 1977).\nYou have also inquired whether a presidential directive could be published in\nthe Federal Register. It is our understanding that any presidential determination\nor directive can be published in the Federal Register, regardless of how it is styled.\nAt present, a range of presidential determinations and directives styled other than\nas executive orders are routinely published in the Federal Register. See, e.g., Presi\xc2\xad\ndential Determination Pursuant to Section 2(c)(1) of the Migration and Refugee\nAssistance Act of 1962, as amended, 64 Fed. Reg. 65,653 (1999); Report to the\nCongress Regarding Conditions in Burma and U.S. Policy Toward Burma, 64 Fed.\nReg. 60,647 (1999) (memorandum directing the Secretary of State to transmit\nreport to Congress). We see no reason to believe that the Federal Register would\ndecline to publish the contemplated directive.2\nRANDOLPH D. MOSS\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n1At various points over time, Presidents have delegated presidential functions both by executive order and by\npresidential memorandum Compare Delegation o f A uthonty Under Section 1401(b) of the National Defense\nA uthonzation Act for Fiscal Year 2000 (Public Law 106-^5), 65 Fed. Reg. 3119 (2000), with Exec Order No\n10250 (1951), reprinted as am ended in 3 U S C. \xc2\xa7301 app (1994) (delegation o f functions to the Secretary of\nthe Intenor).\n2 Because the decision w hether an item can be published is made by the Office o f the Federal Register, we would\nsuggest confirm ing this with that office\n\n30\n\n\x0c'


b'Use of Federal Employees for Olympic Security\nW here the team s and delegations visiting the United States for the Olympic Games in Atlanta have\nbeen designated \xe2\x80\x9c official guests\xe2\x80\x9d o f the United States by the Secretary of State pursuant to \xc2\xa7\xc2\xa7112,\n1116 and 1201 o f the Criminal Code, those provisions authorize federal agencies to provide their\nem ployees to assist in security operations at the Atlanta Olympics upon request of the Attorney\nGeneral.\n\nMay 17, 1996\nM e m o r a n d u m O p in io n\n\nfo r t h e\n\nD epu ty A tto rn ey G eneral\n\nThis responds to your request for our opinion whether the provisions of\n\xc2\xa7\xc2\xa7 112(f), 1116(d), and 1201(f) of the Criminal Code, 18 U.S.C. \xc2\xa7\xc2\xa7 112(f),\n1116(d), and 1201(f), authorize federal agencies, upon request of the Attorney\nGeneral, to provide their employees to assist in security operations at the Atlanta\nOlympics. Under the circumstances presented, we conclude that they do.\nI.\n\nThe City of Atlanta, Georgia, will host the 1996 Summer Olympics. The orga\xc2\xad\nnizing entity for the Atlanta Games is the Atlanta Committee for the Olympic\nGames (\xe2\x80\x9c ACOG\xe2\x80\x9d ), which will be working in close concert with the City of At\xc2\xad\nlanta in managing and facilitating the Summer Games. In light of the international\nattention focused on the games, the large number of athletes, spectators, and others\nwho will be present at the games, and the tragic events of the Munich Olympics,\nfederal and state authorities have focused on the importance and challenge of\nmaintaining appropriate security.\nAmong other significant measures, we understand that, at ACOG\xe2\x80\x99s request, the\nAdministration plans to provide approximately 1,000 federal employees to assist\nwith security, principally the operation of metal and weapons detectors at various\nOlympic security checkpoints. To the extent permissible, eligible employees will\nbe drawn from department and agency offices in the Atlanta area, including the\nDepartments of Agriculture, Commerce, Education, Energy, Health and Human\nServices, Labor, Transportation, and Treasury; the General Services Administra\xc2\xad\ntion; the Small Business Adminstration; the Social Security Administration; and\nthe Office of Personnel Management.\nFor purposes of this memorandum, we assume that the Secretary of State will,\nin keeping with past practice, designate the Olympic delegations from the partici\xc2\xad\npating nations as \xe2\x80\x9c official guests\xe2\x80\x9d of the United States pursuant to \xc2\xa7\xc2\xa7112, 1116,\nand 1201 of the Criminal Code. See 18 U.S.C. \xc2\xa7\xc2\xa7112, 1116, and 1201; 22 C.F.R.\n\xc2\xa7\xc2\xa72.2-2.5 (1996). Such designations would place these delegations under the cov\xc2\xad\nerage of special federal laws protecting foreign officials and \xe2\x80\x9c official guests\xe2\x80\x9d\nof the United States from murder, kidnapping, and assault. \xe2\x80\x9c In the course of en\xc2\xad\n200\n\n\x0cUse o f Federal Employees fo r Olympic Security\n\nforcement\xe2\x80\x9d of these provisions, moreover, the Attorney General is authorized to\n\xe2\x80\x9c request assistance from any Federal, State, or local agency.\xe2\x80\x9d E.g., 18 U.S.C.\n\xc2\xa7 1116(d).\nWe consider below whether, under these provisions, the Attorney General may\nseek, and whether federal agencies may provide, the 1,000 employees needed to\nassist with security at the Atlanta Olympics. For reasons discussed below, we\nconclude that they may do so. For purposes of this memorandum, we assume\nthat federal agencies providing such requested assistance to the Attorney General\nwould do so on a non-reimbursable basis. We suggest, however, that the Attorney\nGeneral enter into a Memorandum of Understanding with each federal agency\nproviding such assistance, recording the authority, scope, funding, and supervisory\narrangements for the activities to be undertaken by such agency.\nII.\nIn 1972, Congress enacted the Act for the Protection of Foreign Officials and\nOfficial Guests of the United States, Pub. L. No. 92-539, 86 Stat. 1070 (1972)\n(\xe2\x80\x9c Official Guests Act\xe2\x80\x9d or \xe2\x80\x9c OGA\xe2\x80\x9d ), which established three federal crimes of\nviolence against official guests of the United States: 18 U.S.C. \xc2\xa7 1116 covers mur\xc2\xad\nder, manslaughter, and attempted murder; 18 U.S.C. \xc2\xa71201 covers kidnapping,\nabduction, and similar offenses; and 18 U.S.C. \xc2\xa7 112 covers various forms of as\xc2\xad\nsault and the offering of violence. An \xe2\x80\x9c official guest\xe2\x80\x9d is defined as \xe2\x80\x9c a citizen\nor national of a foreign country present in the United States as an official guest\nof the Government of the United States pursuant to designation as such by the\nSecretary of State.\xe2\x80\x9d Id. \xc2\xa7 1116(b)(6).\nFour years later, Congress enacted the Act for the Prevention and Punishment\nof Crimes Against Internationally Protected Persons, Pub. L. No. 94\xe2\x80\x94467, 90 Stat.\n1997 (1976) (\xe2\x80\x9c IPPA\xe2\x80\x9d or \xe2\x80\x9c 1976 Act\xe2\x80\x9d ), which amended the above-described pro\xc2\xad\nvisions. The IPPA was enacted, in turn, to implement two international conven\xc2\xad\ntions to which the United States was a signatory: the Convention to Prevent and\nPunish the Acts of Terrorism Taking the Form of Crimes Against Persons and\nRelated Extortion That Are of International Significance, Feb. 2, 1971, 27 U.S.T.\n3949, T.I.A.S. No. 8413 (\xe2\x80\x9c OAS Convention\xe2\x80\x9d ); and the Convention on the Preven\xc2\xad\ntion and Punishment of Crimes Against Internationally Protected Persons, Includ\xc2\xad\ning Diplomatic Agents, Dec. 28, 1973, 28 U.S.T. 1975, T.I.A.S. No. 8532 (\xe2\x80\x9c UN\nConvention\xe2\x80\x9d ). In addition, the IPPA amended \xc2\xa7\xc2\xa7 112, 1116, and 1201 to authorize\nthe Attorney General to obtain the assistance of federal agencies and state and\nlocal governments in the enforcement of these criminal statutes.\nSection 2 of the IPPA, now codified at 18 U.S.C. \xc2\xa7\xc2\xa7 112(f), 1116(d), and\n1201(f), provides (emphasis added):\n201\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nIn the course of enforcement of [sections 112, 1116, and 1201 of\nthe Criminal Code] and any other sections prohibiting a conspiracy\nor attempt to violate [those sections], the Attorney General m ay\nrequest assistance from a n y Federal, State or local agency, includ\xc2\xad\ning the Army, N avy, and A ir Force, any statute, rule, or regulation\nto the contrary notwithstanding.\n\nIn our view, this provision authorizes federal agencies to assist the Attorney Gen\xc2\xad\neral in responding to criminal offenses covered by the referenced statutes. Indeed,\nthis Office has previously opined that the provision authorizes federal agencies\n(including the Armed Services) to respond to \xe2\x80\x9c terrorist activity, including hostagetaking, directed at . . . visiting Olympic athletes while they are in the United\nStates.\xe2\x80\x9d Memorandum for Paul R. Michel, Acting Deputy Attorney General, from\nLarry L. Simms, Deputy Assistant Attorney General, Office of Legal Counsel,\nRe: P ossible Use o f A rm ed Forces in the Event o f Terrorist Activity a t the Lake\nP lacid O lym pics at 1 (Feb. 5,1980).1\n\nThe further question presented here is whether the IPPA authorizes the Attorney\nGeneral to request assistance from federal agencies where no violation of the gov\xc2\xad\nerning criminal statutes has yet occurred, but under circumstances in which there\nexists cause to believe that, without appropriate security, \xe2\x80\x9c official guests\xe2\x80\x9d of the\nUnited States might be at risk. That question primarily turns on the meaning of\nthe phrase, \xe2\x80\x9c [i]n the course of enforcement\xe2\x80\x9d of \xc2\xa7\xc2\xa7112, 1116, and 1201 of the\nCriminal Code.\nThe starting point in interpreting this provision is, of course, the plain language\nof the statute. See Ardestani v. INS, 502 U.S. 129, 135 (1991). As this Office\nhas previously noted, \xe2\x80\x9c [t]he concept of \xe2\x80\x98enforcement\xe2\x80\x99 is a broad one, and a given\nstatute may be \xe2\x80\x98enforced\xe2\x80\x99 by means other than criminal prosecutions brought di\xc2\xad\nrectly under it.\xe2\x80\x9d See Adm issibility o f Alien Amnesty Application Information in\nProsecutions o f Third Parties, 17 Op. O.L.C. 172, 177 (1993). There, we further\nnoted that, in the context of the statute at issue, the statutory authority to enforce\na criminal provision included both \xe2\x80\x9c the prevention and punishment\xe2\x80\x9d of the under\xc2\xad\nlying criminal conduct.2 Id. We have also opined that a statute declaring it \xe2\x80\x9c un\xc2\xad\nlawful . . . for any alien to depart from the United States except under\xe2\x80\x9d rules\nprescribed by the President provides the Attorney General with authority to \xe2\x80\x9c pre\xc2\xad\nvent\xe2\x80\x9d such departures by, for example, keeping individuals under surveillance\nand screening their contacts with others who might seek to coerce them to depart\n1 As noted in the 1980 opinion, the Secretary o f State had designated the visiting Olympic athletes as \xe2\x80\x9c official\nguests o f the U nited States\xe2\x80\x9d pursuant to the O G A . This opinion is based upon an assumption that the 1996 Olympic\ndelegations will also be so designated.\n2This broad understanding o f the word \xe2\x80\x9c en fo rce\xe2\x80\x9d is reflected in dictionary definitions o f the term as well. See,\ne.g.. The American Heritage Dictionary o f the English Language 433 (1st ed. 1976) (defining \xe2\x80\x9c enforce\xe2\x80\x9d to mean\n\xe2\x80\x9c 1. To compel observance o f o r obedience to: enforce a regulation.\xe2\x80\x9d ); Black\'s Law Dictionary 528 (6th ed. 1991)\n(defining \xe2\x80\x9c enforcem ent\xe2\x80\x9d to mean \xe2\x80\x9c The act o f putting something such as a law into effect; the execution o f a\nlaw; the carrying out o f a mandate o r command.\xe2\x80\x9d ).\n\n202\n\n\x0cUse o f Federal Employees fo r Olympic Security\n\nin violation of the law. See Department o f Justice Authority to Provide \xe2\x80\x98 \xe2\x80\x98Protective\nCustody\xe2\x80\x9d fo r Defectors, 4B Op. O.L.C. 348, 353 (1980). In reaching this conclu\xc2\xad\nsion, moreover, we stressed that \xe2\x80\x9c law enforcement authorities customarily have\ngreat discretion to decide how to enforce the law.\xe2\x80\x9d 3 Id.\nA construction of the word \xe2\x80\x98\xe2\x80\x98enforcement\xe2\x80\x99\xe2\x80\x99 that is broad enough to include pre\xc2\xad\nventive measures is also consistent with a variety of other federal statutes that\ndefine the phrase \xe2\x80\x9c law enforcement officer\xe2\x80\x9d to include those engaged in not only\nthe apprehension and prosecution of those who have violated the law, but also\n\xe2\x80\x9c the prevention\xe2\x80\x9d of criminal violations.4 Similarly, another federal statute defines\n\xe2\x80\x9c enforcement of the criminal laws\xe2\x80\x9d to include, among other things, \xe2\x80\x9c efforts to\nprevent, control, or reduce crim e.\xe2\x80\x9d 5 U.S.C. \xc2\xa7552a(j)(2) (emphasis added).\nWhen the phrase \xe2\x80\x9c in the course of enforcement\xe2\x80\x9d is placed in its statutory con\xc2\xad\ntext, we are left with little doubt that it is properly read to include preventive,\nas well as responsive, crime control efforts. Significantly, the two acts at issue\nhere are entitled the \xe2\x80\x9c Act for the Protection of Foreign Officials and Official\nGuests of the United States,\xe2\x80\x9d 86 Stat. at 1070 (emphasis added), and the \xe2\x80\x9c Act\nfor the Prevention and Punishment of Crimes Against Internationally Protected\nPersons,\xe2\x80\x9d 90 Stat. at 1997, Preamble (emphasis added). In explicitly declaring\ntheir protective and preventive purposes, the titles of these statutes provide addi\xc2\xad\ntional support for a broad interpretation of the term \xe2\x80\x9c enforcement\xe2\x80\x9d as used in\nIPPA\xe2\x80\x99s assistance provisions.5 The 1976 Act, moreover, was expressly enacted\n\xe2\x80\x9c to implement the \xe2\x80\x98Convention to Prevent and Punish the Acts of Terrorism Tak\xc2\xad\ning the Form of Crimes against Persons and Related Extortion That Are of Inter\xc2\xad\nnational Significance\xe2\x80\x99 and the \xe2\x80\x98Convention on the Prevention and Punishment of\nCrimes Against Internationally Protected Persons, Including Diplomatic Agents.\xe2\x80\x99 \xe2\x80\x9d\nId. (emphasis added). See also CISPES v. FBI, 770 F.2d 468, 472 (5th Cir. 1985).\n3 See also Memorandum for W ayne B. Colburn, Director, United States Marshals Service, from Leon Ulman,\nDeputy Assistant A ttorney General, Office o f Legal Counsel, Re: Law Enforcement Authority o f Special Deputies\nAssigned to DOT to Guard Against Air Piracy (Sept. 30, 1970). Relying on the Supreme C ourt\xe2\x80\x99s opinions in In\nRe Neagle , 135 U.S. 1 (1890) and In Re Debs, 158 U.S. 564 (1895), we there concluded: \xe2\x80\x9c It is our view that\nsince the United States has jurisdiction to punish air piracy and related offenses, it likewise has inherent authority\nto take reasonable and necessary steps to prevent these offenses." Id. at 2.\n4See, e.g. (emphasis added throughout), 18 U.S.C. \xc2\xa7 115(c)(1) (\xe2\x80\x98\xe2\x80\x9c Federal law enforcement officer* means any\nofficer, agent, or employee o f the United States authorized by law or by a Government agency to engage in or\nsupervise the prevention , detection, investigation, o r prosecution o f any violation o f Federal criminal law "); 18 U.S.C.\n\xc2\xa73592(c)(14) (\xe2\x80\x9c For purposes o f this subparagraph, a Maw enforcement officer\xe2\x80\x99 is a public servant authorized by\nlaw or by a G overnment agency o r Congress to conduct o r engage in the prevention , investigation, or prosecution\nor adjudication o f an offense\xe2\x80\x9d ); 18 U.S.C. \xc2\xa73673 ( \xe2\x80\x9c the tenn \xe2\x80\x98law enforcement officer\xe2\x80\x99 means a public servant\nauthorized by law or by a government agency to engage in or supervise the prevention, detection, investigation,\nor prosecution o f an offense\xe2\x80\x9d ); 42 U.S.C. \xc2\xa73796dd\xe2\x80\x948 ( \xe2\x80\x98\xe2\x80\x9c career law enforcement officer\' means a person hired\non a permanent basis who is authorized by law o r by a State o r local public agency to engage in or supervise\nthe prevention, detection, or investigation o f violations o f the criminal law s\xe2\x80\x9d ).\n3 It is well-recognized that the title o f a statute can provide useful evidence o f legislative intent in interpreting\nthe statute. See INS v. National Ctr. for Immigration Rights, Inc., 502 U.S. 183, 189 (1991); 2A Norman J. Singer,\nSutherland Statutory Construction \xc2\xa747.03 (5th ed. 1992) (\xe2\x80\x9c Since the title o f an act is essentially a part o f the\nact and is itself a legislative expression o f the general scope o f the bill, it is proper to consider it in arriving at\nthe intent o f the legislature.\xe2\x80\x9d ).\n\n203\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nThose international conventions, moreover, clearly impose an obligation on sig\xc2\xad\nnatory states not simply to punish those who commit acts of violence against\nprotected persons, but also to prevent such violence from occurring in the first\nplace. Article 4 of the UN Convention, for example, provides in relevant part:\nStates Parties shall co-operate in the prevention of the crimes\nset forth in article 2 [i.e., those crimes covered by the statutes in\nissue here], particularly by:\n(a) taking a ll practicable measures to prevent preparations in\ntheir respective territories f o r the commission o f those crimes with\xc2\xad\nin o r outside their territories\',\n(b) exchanging information and co-ordinating the taking of ad\xc2\xad\nministrative and other measures as appropriate to prevent the com\xc2\xad\nmission of those crimes.\n28 U.S.T. at 1979 (emphasis added). The OAS Convention makes similar provi\xc2\xad\nsion.6\nThe language and statutory context of the IPPA thus provide persuasive support\nfor the view that its provisions should be understood to authorize the Attorney\nGeneral to take \xe2\x80\x9c practicable measures\xe2\x80\x9d to prevent the commission of violent\ncrimes against \xe2\x80\x9c official guests\xe2\x80\x9d of the United States.7\nIII.\nA.\nThe legislative history of the OGA and IPPA further confirms our view that\nthe Attorney General may request assistance from any federal agency in both pre\xc2\xad\nventing and punishing acts of violence against Olympic delegations visiting the\nUnited States. As originally drafted, the OGA covered only \xe2\x80\x9c foreign officials.\xe2\x80\x9d\n6 A rticle 1 o f the OAS Convention provides:\nThe contracting states undertake to cooperate among themselves by taking all measures that they may\nconsider effective, under their own laws, and especially those established in this convention, to prevent\nand punish acts o f terrorism, especially kidnapping, murder, and other assaults against the life or physical\nintegrity o f those persons to whom the state has the duty according to international law to give special\nprotection, as well as extortion in connection with those crimes.\n27 U .S.T. at 3958 (emphasis added).\n7 It m ight be argued that the broad preventive obligations o f the two conventions do not necessarily apply to\nthe \xe2\x80\x9c official guests\xe2\x80\x9d covered by the implementing criminal statutes because official guests are protected under those\nstatutes but not under the conventions themselves. Such an argum ent fails because Congress explicitly intended\nfor designated \xe2\x80\x9c official guests\xe2\x80\x9d to receive the same protections extended to persons protected under the conventions.\nSee S. Rep. No. 92 -1 1 0 5 , at 7, 9, 15 (1972), reprinted in 1972 U.S.C.C.A.N. 4316, 4318, 4324-25 ( \xe2\x80\x9c 1972 Senate\nR eport\xe2\x80\x9d ); H.R. Rep. No. 94-1614, at 5 -6 (1976), reprinted in 1976 U.S.C.C.A.N 4480, 4483-84 (\xe2\x80\x9c 1976 House\nR eport\xe2\x80\x9d ).\n\n204\n\n\x0cUse o f Federal Employees fo r Olympic Security\n\nA series of amendments introduced in the Senate Judiciary Committee, however,\nexpanded the Act to encompass crimes against \xe2\x80\x9c official guests\xe2\x80\x9d of the United\nStates. The legislative history of these amendments makes clear that they were\nintended to help \xe2\x80\x9c protect\xe2\x80\x9d members of an \xe2\x80\x9c Olympic contingent\xe2\x80\x9d visiting the\nUnited States.8 The Senate Report on the 1972 legislation, for example, contained\nthe following description of the Judiciary Committee amendments that extended\nthe Act\xe2\x80\x99s protection to \xe2\x80\x9c official guests\xe2\x80\x9d :\nThe first series of committee amendments extend this umbrella of\nFederal protection to other \xe2\x80\x9c official guests\xe2\x80\x9d of the United States\nas designated by the Secretary of State so as to authorize expanded\nprotective, investigative and other law enforcement services for the\nbenefit of private citizens visiting our country pursuant to official\nrecognition by the United States.\n1972 Senate Report at 7, reprinted in 1972 U.S.C.C.A.N. at 4316 (emphasis\nadded).\nThe Report went on to detail the remarks of Senator McClellan in introducing\nthe amendment that extended the Act\xe2\x80\x99s coverage of official guests. Id. at 9, re\xc2\xad\nprinted in 1972 U.S.C.C.A.N. at 4318-19. As Senator McClellan explained:\nThe bill under consideration recognizes that the United States as\na host country has particular responsibility to protect the person\nand p roperty o f \xe2\x80\x9cforeign officials\xe2\x80\x9d , including ambassadors, agents,\nemployees and their fam ilies while such persons are present within\nour territorial confines. However, the measure would not offer any\nexpanded protection for foreign citizens, who might visit our shores\nas official guests of our country as members of an Olympic contin\xc2\xad\ngent.\n\nThe amendment I propose will extend the umbrella o f Federal p ro \xc2\xad\ntection to cover \xe2\x80\x9c official guests\xe2\x80\x9d o f the United States as designated\nby the Secretary o f State so as to include visiting athletes in inter\xc2\xad\nnational competition.\nId. (emphasis added).\n8 The Act was amended to include \xe2\x80\x9c official guests\xe2\x80\x9d in response to the kidnapping and murder o f Israeli athletes\nat the Munich Olympic games. 1972 Senate Report at 9, reprinted in 1972 U.S.C.C.A.N. at 4318-19. In light o f\nthe protective purpose repeatedly stressed in the legislative history, it is unlikely that Congress intended only to\nprovide federal law enforcement with authority to respond to such an attack after the fact, but not to take steps,\nsuch as screening for weapons, to prevent an attack in the first place.\n\n205\n\n\x0cOpinions o f the O ffice o f Legal Counsel in Volume 20\n\nB.\nSection 2 of the IPPA added the provision authorizing the Attorney General\nto request the assistance of federal agencies and state governments \xe2\x80\x9c in the course\nof enforcement\xe2\x80\x9d of the substantive provisions of the act. The House and Senate\nReports provide only terse explanation of this provision, stating that \xe2\x80\x9c [t]he legisla\xc2\xad\ntion amends section 1116 [the murder and manslaughter provision] of title 18,\nUnited States Code, to authorize the Attorney General to request assistance from\nany federal, state or local agency in the course of enforcing the provisions of\nsection 1116.\xe2\x80\x9d 1976 House Report at 5, reprinted in 1976 U.S.C.C.A.N. at 4483\n(footnote omitted). A footnote appended to the foregoing sentence, however, ex\xc2\xad\nplains: \xe2\x80\x9c There may be circumstances \xe2\x80\x94 such as the takeover of an embassy\xe2\x80\x94\nwhen the Justice Department will need assistance from other federal, State or\nlocal agencies.\xe2\x80\x9d Id. at n.7, reprinted in 1976 U.S.C.C.A.N. at 4483. This sentence\nprovides further evidence that Congress intended the Attorney General to obtain\nassistance for preventive, as well as prosecutorial, enforcement of the covered\nstatutes. Significantly, it cites the takeover of an embassy as a situation in which\nassistance may be provided in the enforcement of \xc2\xa7 1116\xe2\x80\x94 which prohibits mur\xc2\xad\nd e r and m anslaughter of the protected persons. The takeover of an embassy, how\xc2\xad\never, does not necessarily involve the commission of murder or manslaugter of\na protected person; rather, it presents a situation where enhanced resources are\nnecessary to p reven t the commission of such crimes.\nIn addition to the foregoing, President Ford\xe2\x80\x99s statement on signing the IPPA\nstressed that \xe2\x80\x9c [preven tin g or punishing\xe2\x80\x9d acts of international terrorism \xe2\x80\x9c is a\nprime concern of this Government.\xe2\x80\x9d 3 Pub. Papers of Gerald Ford 2479 (1976).\nThe President further stated:\nThe Act for the Prevention and Punishment of Crimes Against\nInternationally Protected Persons (H.R. 15552) will serve as a sig\xc2\xad\nnificant law enforcement tool for us to deal more effectively with\nthe menace of terrorism, and it will assist us in discharging our\nimportant responsibilities under the two international conventions\nwhich I am today authorizing for ratification.\nId. at 2480. As shown above, the prevention of crimes against protected persons\n\nis among the United States\xe2\x80\x99 \xe2\x80\x9c responsibilities\xe2\x80\x9d under the conventions, and there\xc2\xad\nfore under the Act as well.\nIV.\nIn a 1980 Opinion, this Office concluded that the IPPA does not authorize the\nAttorney General to obtain the assistance of the Armed Forces \xe2\x80\x9c to protect foreign\n206\n\n\x0cUse o f Federal Employees fo r Olympic Security\n\ndignitaries . . . present in New York for [an] opening session of the United Na\xc2\xad\ntions.\xe2\x80\x9d See Memorandum for Paul R. Michel, Associate Deputy Attorney General,\nfrom Larry L. Simms, Deputy Assistant Attorney General, Re: Request fo r A ssist\xc2\xad\nance to Protect Foreign D ignitaries (Sept. 11, 1980). The 1980 opinion expressed\nthe view that the Act was adopted to discharge our obligation under the two inter\xc2\xad\nnational conventions discussed above, but read those conventions to require only\nthat signatories either extradite or prosecute those found within their territory who\nhave committed an offense against an internationally protected person. The opin\xc2\xad\nion, accordingly, concluded that the IPPA does not authorize the Attorney General\nto request assistance from the Armed Forces or any other agency \xe2\x80\x9c to provide\nprotective custody or other routine assistance to foreign officials in the absence\nof an imminent or actual criminal offense.\xe2\x80\x9d Id. at 2. Finally, the opinion conceded\nthat \xe2\x80\x9c enforcement and protection responsibilities\xe2\x80\x9d will at times overlap, but con\xc2\xad\ncluded that, absent an \xe2\x80\x9c actual threat or imminent harm,\xe2\x80\x9d these responsibilities\nare distinguishable and that it is not appropriate to use the Act to provide purely\n\xe2\x80\x9c protective service.\xe2\x80\x9d Id. at 3.\nFor the reasons discussed above, we do not read the IPPA or the international\nconventions that it implemented as narrowly as did the 1980 opinion. To the con\xc2\xad\ntrary, it appears that the conventions and the IPPA were intended not simply to\nprovide the Attorney General with the power to prosecute crimes of violence com\xc2\xad\nmitted against \xe2\x80\x9c official guests\xe2\x80\x9d of the United States, but also to take \xe2\x80\x9c practicable\nmeasures to prevent preparation! ]\xe2\x80\x9d for such violent acts. See, e.g., Article 4, Con\xc2\xad\nvention on the Prevention and Punishment of Crimes Against Internationally Pro\xc2\xad\ntected Persons, 28 U.S.T. at 1979. In our view, the operation of metal and weapons\ndetectors at the Olympic games constitutes a good example of the type of reason\xc2\xad\nable steps that might be taken to prevent the ultimate preparation for the commis\xc2\xad\nsion of a violation of \xc2\xa7\xc2\xa7 112, 1116, and 1201 of the Criminal Code. To the extent\nthe 1980 opinion is inconsistent with this view, that opinion is hereby superseded.\nFinally, we note that even the 1980 opinion seems to recognize that the Attorney\nGeneral may request the assistance of federal agencies under the IPPA in respond\xc2\xad\ning to an actual threat. We understand that some generalized threats of violence\nhave been directed at the Atlanta Olympics. The Attorney General has \xe2\x80\x9c great\ndiscretion to decide how to enforce the law,\xe2\x80\x9d 4B Op. O.L.C. at 353, and is, in\nour view, best suited to determine the appropriate response to these threats. Indeed,\neven without an express and tangible threat, the Attorney General might reason\xc2\xad\nably conclude that history (e.g., the tragic precedent of Olympic terrorism created\nat the Munich Olympic Games of 1972), world events, and other pertinent back\xc2\xad\nground information give rise to a \xe2\x80\x9c threat\xe2\x80\x9d of violence at the Olympic Games.\nThus, even under the more restrictive view of the IPPA articulated in the 1980\n\n207\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 20\n\nopinion, we believe that the Attorney General has authority to request the assist\xc2\xad\nance of other federal agencies under the circumstances described above.\nWALTER DELLINGER\nA ssistant Attorney General\nOffice o f Legal Counsel\n\n208\n\n\x0c'


b'Bonneville Power Administration\xe2\x80\x99s Claim for Reimbursement\nin Connection with Land Transfer\nU nder the Federal P roperty and A dm inistrative Services Act of 1949, the Bonneville Power Adm in\xc2\xad\nistration is entitled to be reim bursed the fair value o f certain property that it transferred to the\nSecretary o f the Interior for the use and benefit o f the Puyallup Indian Tribe, without regard to\nw hether said property is located w ithin the Puyallup Indian Reservation.\nU nder the Federal P roperty and Adm inistrative Services A ct of 1949, fair value reim bursem ent to the\ntransferor agency by the acquiring agency is m andatory in all cases where the property was\nacquired w ith funds from a revolving fund, 40 U .S .C . \xc2\xa7\xc2\xa7 483(a)(1), 485(c). The General Services\nA dm inistration has no discretion to w aive such a repaym ent obligation by the acquinng agency,\neven w here, as is arguably the case h ere, the acquiring agency is under an independent statutory\nobligation to acquire the land.\n\nMarch 2, 1982\nMEMORANDUM OPINION FOR THE ASSISTANT GENERAL\nCOUNSEL, DEPARTMENT OF ENERGY\nThis responds to your request for our opinion on a matter in dispute between\nthe Bonneville Power Administration (Bonneville) and the General Services\nAdministration (GSA) relating to Bonneville\xe2\x80\x99s claim for reimbursement in con\xc2\xad\nnection with its transfer to the Secretary of the Interior of certain real property\nunder the Federal Property and Administrative Services Act of 1949, 40 U.S.C.\n\xc2\xa7 471\xe2\x80\x9475 (1976 & Supp. IV 1980) (the Act).1 At issue is whether Bonneville is\nentitled to be reimbursed the fair value of the property which the Secretary of the\nInterior has taken in trust for the Puyallup Tribe of Indians. We conclude that it is\nso entitled.\nAccording to the information you provided us, the property in question\nconsists of 1.34 acres of land in Pierce County, Washington, purchased some\nyears ago for the United States by Bonneville from private parties with funds\nappropriated from the Treasury. The Treasury has since been reimbursed the\npurchase price from revenues generated by Bonneville\xe2\x80\x99s sale of electric power. As\na practical matter, then, the land has been paid for by Bonneville\xe2\x80\x99s customers.\nRecently, Bonneville determined that it no longer had any need for the property,\n] A s you know , we solicited th e views of b o th the D epartm ent o f th e Interior and the D epartm ent of Energy on the\nq uestions p resen ted by B onneville. The form er agency was in substantial ag reem en t w ith G S A \'s interpretation o f\nthe A ct. We also received an unsolicited subm ission from the attorney for the Puyallup N ation o f Indians discussing\na second issue raised by B onneville\xe2\x80\x94 the contin u in g existence o f the P uyallup Indian R eservation w ithin w hose\nb oundaries the p ro p erty in question is purported to be located. See note 4 , infra.\n\n172\n\n\x0cand so reported to GSA.2 GSA then sought to ascertain, as required under\n\xc2\xa7 483(a)(1) of the Act,3 whether any other federal entity was interested in\nacquiring the property. Subsequently, at the request of the Puyallup Indian Tribe,\nthe Bureau of Indian Affairs of the Department of the Interior certified to GSA\nthat the property was located within the reservation boundaries of the Puyallup\nTribe, and requested that the land be transferred to the Secretary of the Interior to\nbe held in trust by him for the benefit and use of the tribe, as required by\n\xc2\xa7 483(a)(2) of the Act.\nBonneville takes the position that under \xc2\xa7\xc2\xa7 483(a)( 1) and 485(c) of the Act it is\nentitled to be reimbursed the fair value of the property. GSA does not dispute that\nBonneville would ordinarily be entitled to fair value reimbursement by an agency\nacquiring the property under the above-mentioned provisions of the Act. Rather,\nGSA contends that no reimbursement is required because the land is located\nwithin an Indian reservation, is therefore subject to the terms of \xc2\xa7 483(a)(2), and\nconsequently its transfer generates no proceeds from which reimbursement\nwould be possible. The Department of the Interior appears to be in essential\nagreement with GSA on this point of statutory construction.4\nI.\nSection 483(a)(1) of the Act provides for the transfer among federal agencies\nof \xe2\x80\x9c excess\xe2\x80\x9d property,5 and reads in pertinent part as follows:\nSubject to the provisions of paragraph (2) of this subsection, in\norder to minimize expenditures for property, the Administrator\n2 U nder 16 U .S C \xc2\xa7 832a(e) (1976) B onneville w ould appear to have its ow n authority, in dependent of G S A , to\nsell o r otherw ise dispose of real p roperty ow ned by it, provided that it obtains the p n o r approval o f the President for\nthe particular transaction It is not clear to us w hy Bonneville chose in this case to dispose o f the property th ro u g h\nG S A , an d thereby necessarily in accordance w ith the procedures m andated by the A ct, rather than sim ply sell it on\nthe op en m arket. We note, however, that the decision to dispose o f the property through G SA facilitates its tra n sfer\ninto tru st for the P uyallup Tribe.\n3 R elevant sections o f the A ct w ill be identified in this opinion by citation to Title 4 0 o f the U n ited States C o d e.\nT hus \xc2\xa7 202(a)(1) o f the Act w ill be cited as \xc2\xa7 483(a)(1), \xc2\xa7 204(c) as \xc2\xa7 485(c), etc\n4 B onneville argues in the alternative that the parcel of excess land in question is not currently located \xe2\x80\x9c w ith in \xe2\x80\x9d an\nIndian reservation, and that its transfer is therefore not governed by \xc2\xa7 483(a)(2) In support o f this p o sitio n ,\nB onneville cites several recent S uprem e C ourt cases w hich, in its view, cast do u b t upon the co n tin u ed existence o f\nthe Puyallup R eservation G SA d efers to the determ ination of the Interior D epartm ent on the q u estio n o f the location\no f th e property w ithin an Lndian reservation, and its concom itant eligibility for tran sfer pursuant to \xc2\xa7 483(a)(2) T h e\nD epartm ent of the Interior urges that the holding o f the Court of A ppeals in United States v State c f Washington, 4 9 6\nF 2 d 6 2 0 (9th Cir. 1974), cert, denied, 419 U S 1032 (1975) be considered conclusive o f the issue of the co n tin u ed\nexistence of the P uyallup Reservation.\nWe ag ree with the D epartm ent o f the Interior that it w ould be inappropriate, in light o f the U nited States\xe2\x80\x99 fiduciary\nobligations as trustee for the Indians, to reopen th e question o f the reservation\xe2\x80\x99s status in this context We are\nm indful, in this reg ard , o f the governm ent\xe2\x80\x99s longstanding litigating position on the issue See . e.g , City c f Tacoma\nv Andrus, 457 F Supp. 342 (D D .C . 1978) (S ecretary of Interior acted w ithin his pow er under 25 U .S .C . \xc2\xa7 4 6 5\n(1976) in acquiring trust lands w ithin historic b oundanes of Puyallup R eservation) In any ev en t, because o u r\nconclusion with respect to B onneville\xe2\x80\x99s entitlem ent to reim bursem ent under th e A ct does not depend upon the\nlocation o f the property, we need not address the considerations raised by B onneville with respect to the co n tin u ed\nexistence o f the reservation\n5 \xe2\x80\x9c Excess p ro p erty \xe2\x80\x9d is defined in \xc2\xa7 472(e) o f the A ct of \xe2\x80\x9c any property under the control o f any Federal ag en cy\nwhich is not required for its needs and the discharge o f its responsibilities, as determ in ed by the head thereof.\xe2\x80\x9d It is\ndistinguished from " su rp lu s p ro p erty ,\xe2\x80\x9d w hich is defined in \xc2\xa7 472(g) as "an y excess property not required for the\nneeds an d the discharge of the responsibilities o f all Federal agencies, as d eterm ined by the A dm inistrator [of\nG S A l\xe2\x80\x9d\n\n173\n\n\x0cshall prescribe policies and methods to promote the maximum\nutilization of excess property by executive agencies, and he shall\nprovide for the transfer of excess property among Federal agen\xc2\xad\ncies and to the organizations specified in section 756(f) of this\ntitle. The Administrator, with the approval of the Director of the\nOffice of Management and Budget, shall prescribe the extent of\nreimbursement for such transfers of excess property: Provided,\n\nThat reimbursement shall be required cf the fair value, as deter\xc2\xad\nmined by the Administrator, cf any excess property transferred\nwhenever net proceeds are requested pursuant to section 485(c) cf\nthis title or whenever either the transferor or the transferee agency\n(or the organizational unit affected) is subject to the Government\nCorporation Control Act (59 Stat. 597; 31 U.S.C. 841) or is an\norganization specified in section 756(f) of this title . . . .\n(Emphasis added.) By the terms of this section, the Administrator of General\nServices has some discretion in determining the extent to which an agency\naccepting transfer of excess property must \xe2\x80\x9c reimburse\xe2\x80\x9d the Treasury for its\nacquisition. However, \xe2\x80\x9c fair value\xe2\x80\x9d reimbursement \xe2\x80\x9c shall be required\xe2\x80\x9d from an\nacquiring agency \xe2\x80\x9c whenever net proceeds are requested pursuant to section\n485(c) of this title.\xe2\x80\x9d This latter section deals with the situation in which excess\nproperty was originally acquired by the transferor agency \xe2\x80\x9c by the use of funds\neither not appropriated from the general fund of the Treasury or appropriated\ntherefrom but by law reimbursable from assessment, tax, or other revenue or\nreceipts. . . .\xe2\x80\x99\xe2\x80\x99 In such a case, and upon the request of the transferor agency, the\nproceeds of the transfer \xe2\x80\x9c shall be credited to the reimbursable fund or appropria\xc2\xad\ntion or paid to the Federal agency which determined such property to be\nexcess. . ;\nIn other words, \xe2\x80\x9c fair value\xe2\x80\x9d reimbursement to the transferor\nagency by the acquiring agency is mandatory under \xc2\xa7 483(a)(1) whenever the\nproperty was acquired by the transferor agency with funds from a so-called\n\xe2\x80\x9c revolving fund.\xe2\x80\x9d 6\n6 A s o rig in ally en a cted , \xc2\xa7 483 of the A ct req u ired fair value reim b u rsem en t b y the acquiring agency in all excess\np ro p e rty tra n sfers See \xc2\xa7 202(e) o f the A ct o f June 30, 1949, ch 28 8 , 63 Stat. 385 A m endm ents to the A ct in 1952\ngave th e A dm inistrator o f G eneral Services discretion to w aive this reim bursem ent requirem ent in all but a few\ns itu a tio n s. See A c t o f July 12, 1952, ch 70 3 , 66 Stat. 593 T he S enate R eport explained the need fo r the\nam en d m en ts as follow s\nThe pu rp o se of this provision o f th e bill . . is to p erm it better u tilizatio n o f excess property by\no th e r F ederal agencies which have n ee d for such property. Experience h as clearly dem onstrated that\na co n sid e rab le am ount o f excess p ro p erty w hich has b een reported to the G SA for red istribution to\no th e r F ederal agencies cannot under existing authority b e transferred to the needing ag en cies, since\nreim b u rsem en t is req u ired under the \xe2\x80\x9c fair value\xe2\x80\x9d provision o f section 202 o f the Federal Property\nand A dm inistrative S ervices Act of 1949, as am ended. T h e needing agencies contend that they have\n\nno fu n d s available fo r reimbursing the owning agency, and GSA does not have authority to transfer\nwithout reimbursement, and as a re su lt the best utilization o f excess p roperty is not attained. This\nam en d m en t to th e act w ould liberalize the effect of the statute and at th e sam e tim e provide a more\nflexible m ethod for tra n sfer so that g reater utilization o f excess p roperty could be attained, w hile at\nthe sam e tim e retaining existing ex c ep tio n s specifically authorized by law.\nS .R e p N o 2 0 7 5 ,82d C o n g ., 2d Sess 3 ( 1 9 5 2 )( e m p h a s is s u p p lie d ).O n e o f th e \xe2\x80\x9c existin g ex cep tio n s\xe2\x80\x9d re fe rre d to in\nth e above passage is the situation in w hich " n e t proceeds are requested p u rsu an t to \xc2\xa7 485[c] \xe2\x80\x9d\n\n174\n\n\x0cThe regulations implementing GSA\xe2\x80\x99s responsibilities under \xc2\xa7 483(a)(1) are\nfound in Subpart 101-47.2 of Title 41 of the Code of Federal Regulations.\nReimbursement for transfers of excess real property is prescribed in 41 C.F.R.\n101-47.203-7(f). Subsection (f)( 1) mandates fair value reimbursement where the\ntransferor agency requests the \xe2\x80\x9c net proceeds\xe2\x80\x9d of a transfer under \xc2\xa7 485(c) of the\nAct; subsection (f)(2) prescribes in some detail procedures governing reimburse\xc2\xad\nment \xe2\x80\x9c in all other transfers of excess real property.\xe2\x80\x9d Briefly, GSA may or may not\nrequire reimbursement from an acquiring agency under (f)(2), depending upon\nwhether the agency has available appropriated funds to spend on the acquisition,\nor whether Congress has specifically authorized the transfer without reimburse\xc2\xad\nment.7 In accordance with the mandate of the statute, the regulations embody no\nanalogous waiver authority where \xc2\xa7 485(c) property is involved.\nII.\nBonneville contends, and GSA does not dispute, that the property in question\nhere falls within the scope of \xc2\xa7 485(c). Although initially the funds used to\npurchase the property were appropriated from the Treasury, the Treasury is being\nreimbursed through revenues generated from the sale and transmission of electric\nenergy generated at the Bonneville project. See 16 U.S.C. \xc2\xa7 832j. Bonneville\nwould therefore appear to be entitled to fair value reimbursement from the\nagency to which its excess property is transferred, both under \xc2\xa7 483(a)(1) of the\nAct and under GSA\xe2\x80\x99s implementing regulations.\nIn this case, however, GSA argues that under 1975 amendments to the Act\ndealing with excess property located within Indian reservations, Bonneville is\nnot entitled to reimbursement. These amendments make \xc2\xa7 483(a)(1) expressly\n\xe2\x80\x9c subject to\xe2\x80\x9d a new \xc2\xa7 483(a)(2), which requires GSA to transfer any excess\nproperty located within an Indian reservation to the Secretary of the Interior to be\nheld in trust for the tribe. See Act of Jan. 2, 1975, Pub. L. No. 93-599, 88 Stat.\n1954. The subsection reads in pertinent part as follows:\nThe Administrator shall prescribe such procedures as may be\nnecessary in order to transfer without compensation to the Secre\xc2\xad\ntary of the Interior excess real property located within the reserva\xc2\xad\ntion of any group, band, or tribe of Indians which is recognized as\neligible for services by the Bureau of Indian Affairs. Such excess\nreal property shall be held in trust by the Secretary for the benefit\nand use of the group, band, or tribe of Indians, within whose\nreservation such excess real property is located. . . . (Emphasis\nadded.)\n7 Exam ples o f situations m w hich Congress has specifically authorized the transfer o f property w ith o u t reim b u rse\xc2\xad\nm ent are found in 1 6 U .S C \xc2\xa7 667b (transfer o f real p roperty for w ildlife conservation purposes to state agencies or\nD epartm ent of the Interior), 50 U S .C A pp. \xc2\xa7 1622(g) (conveyance of real property to state or local governm ent for\npublic airports); 4 0 U S .C . \xc2\xa7 484(k)(3) (conveyance of real property to state o r local governm ents for use as historic\nm onum ent). However, as we read G S A \xe2\x80\x99s regulations, the reim bursem ent obligation may be excused only in\nsituations w here \xc2\xa7 4 8 5 (c) does not apply T hus the general obligation to reim burse a revolving fund un d er (f)( I ) will\nalways prevail over any defense to a reim bursem ent obligation set o u t in (0 (2 ).\n\n175\n\n\x0cGSA\xe2\x80\x99s position, with which Interior is in essential agreement, is based on a\nreading of the above provision in which the phrase \xe2\x80\x9c without compensation\xe2\x80\x9d\nmodifies the word \xe2\x80\x9c transfer.\xe2\x80\x9d The transaction contemplated by (a)(2) is thus\ncharacterized as a \xe2\x80\x9c transfer without compensation.\xe2\x80\x9d From this characterization\nGSA argues that a \xc2\xa7 483(a)(2) transfer generates no proceeds which could be\ncredited to Bonneville\xe2\x80\x99s revolving fund.\nIf GSA\xe2\x80\x99s reading of the language of subsection (a)(2) is correct, the fair value\nreimbursement requirement contained in subsection (a)( 1) will never be realized\nin a transfer of land located within an Indian reservation. Thus, subsection (a)(2)\nwould qualify subsection (a)(1) in not one but two respects: it would limit the\nGSA Administrator\xe2\x80\x99s discretion under (a)(1) with respect to which agency is\nentitled to the excess property, and also impliedly repeal that section\xe2\x80\x99s fair value\nreimbursement requirement for self-financing agencies like Bonneville. We\nhesitate to give the provision such a broad effect without the clearest expression\nof congressional intent, particularly since in certain circumstances it could raise\nconstitutional issues. See note 10, infra. We look, therefore, to a possible\nalternative reading of the language of subsection (a)(2): a transfer governed by\nthis section is to be effected \xe2\x80\x9c without compensation to the Secretary of the\nInterior.\xe2\x80\x9d Certainly, this is a reasonable alternative reading of somewhat ambigu\xc2\xad\nous phraseology\xe2\x80\x94 phraseology whose ambiguity is compounded by the use of\nthe word \xe2\x80\x9c compensation\xe2\x80\x9d instead of the term generally used in this statute,\n\xe2\x80\x9c reimbursement.\xe2\x80\x9d 8\nBecause the language which Congress chose admits of more than one reason\xc2\xad\nable construction, we turn to the legislative history to ascertain what relationship\nCongress intended the new section to have to other parts of the Act, and in\nparticular to \xc2\xa7 483(a)(1) itself.9 There we find strong support for the alternative\nreading we have suggested, and none for GSA\xe2\x80\x99s.\nIII.\nPublic Law No. 93-599 was enacted in 1975 principally to curtail the discre\xc2\xad\ntion which both the Administrator of General Services and the Secretary of the\nInterior then enjoyed under the Act in connection with the disposition of excess\nproperty located within an Indian reservation. Under the law as it then existed, a\ntribe\xe2\x80\x99s ability to benefit from the use of excess federal property on its reservation\nwas entirely dependent upon the willingness of the Secretary of the Interior to\n8 H ad C o n g ress intended to preclude an o w n in g agency\xe2\x80\x99s being reim bursed in any circum stances by the S ecretary\no f the Interior u n d er \xc2\xa7 4 83(a)(2), it m ight have stated clearly that excess property located w ithin an Indian\nreservation should be \xe2\x80\x9c tra n sferre d to the S ecretary of the Interior w ithout com pensation to the owning agency\nA lternatively, the statute could have referred to \xe2\x80\x9c transfer w ithout reim bursem ent to the tra n sfero r\xe2\x80\x99\xe2\x80\x99 w h ich w ould\nhave been consistent w ith th e language and s tru ctu re of (a)(2). W hile speculation regarding w hat C ongress m ight\nhave said is not p articu larly u sefu l, its d ep a rtu re from the m ore obvious ch o ices leads o ne to an inquiry into the\nlegislative history to see if there is any exp lan atio n for the w ords it d id select.\ng R eferences to the legislative history may b e appropriate even w here a statu te\'s meaning appears plain on its face,\np articularly w here ap p a re n tly contradictory d ire ctiv es are given by m ore than o n e applicable provision o f law. See\nWatt v. Alaska, 451 U .S . 2 5 9 (1981). See also Train v. Colorado Public Interest Research Group, Inc., 4 2 6 U S 1,\n10 (1976)\n\n176\n\n\x0capply to GSA for its transfer, and GSA\xe2\x80\x99s willingness to choose Interior over some\nother agency interested in acquiring the land. The 1975 amendments to the Act\nwere intended to make mandatory GSA\xe2\x80\x99s transfer of excess property located\nwithin a reservation to the Secretary of the Interior, to be held in trust \xe2\x80\x9c for such\nuse as the Indian tribe located on the reservation believes best.\xe2\x80\x9d See H.R. Rep.\nNo. 1339,93d Cong., 2d Sess. 4 (1974) (House Report). Neither the terms of the\nstatute nor its legislative history suggest that Congress intended there to be any\nexceptions to this requirement, or that any discretion was to remain in either GSA\nor the Secretary once the land was determined to be located \xe2\x80\x9c within [a]\nreservation.\xe2\x80\x9d\nAs originally introduced in the House, and reported out of Committee in the\nSenate, the legislation authorized the Secretary of the Interior under certain\nlimited circumstances to require reimbursement from an Indian tribe when\nexcess property located within a reservation was transferred to Interior in trust for\nthe tribe. See House Report at 2; Disposal of Excess Property Located within\n\nIndian Reservations: Hearing on H.R. 8958 Before a Subcomm. of the House\nComm, on Government Operations, 93d Cong., 2d Sess. 3 (1974). Specifically,\n\nH.R. 8958, 93d Cong., 1st Sess. (1973) authorized the Secretary to require\nreimbursement \xe2\x80\x9c in the event that the group, band, or tribe of Indians receiving\nexcess property under this section was compensated for such real property when\ntitle was acquired by the United States.\xe2\x80\x9d This limited authority was stricken by\nthe House Committee, however, with the following comments:\nAmendment two provides that excess property shall be trans\xc2\xad\nferred to the Interior Department for the use [sic] by Indian tribes\n"without compensation.\xe2\x80\x9d Since the land in question will remain\nin Federal hands, it does not seem appropriate to exact a charge\nfor its use from the tribes. The fact that many tribes have only\nlimited financial resources also contributed to the committee\xe2\x80\x99s\nbelief that they should not be charged for land located within their\nown reservations. In some instances, at least, the exactment of a\ncharge would prevent a tribe without adequate resources from\nobtaining needed property. This would clearly defeat efforts to\ninstitute self-sufficiency in Indian tribes.\nHouse Report at 2 (emphasis added).\nAs this passage makes clear, the addition of the phrase \xe2\x80\x9c without compensa\xc2\xad\ntion\xe2\x80\x9d in the first sentence of (a)(2) was intended to do no more than ensure that\nIndian tribes were not \xe2\x80\x9c charged for land, located within their own reservation,\xe2\x80\x9d\nand preclude the Secretary\xe2\x80\x99s exacting a charge from the tribes in connection with\nhis acquisition of the land for their benefit. There is no suggestion that the phrase\nin (a)(2) was intended to change existing law on reimbursement in connection\nwith interagency transfers under (a)(1), or that the terms of a transfer transaction\nunder (a)(2) were not intended to be governed, at least as between the owning and\nacquiring federal agencies, by the preceding section. And, as we have noted, the\n177\n\n\x0cexisting law would have required an agency acquiring excess \xc2\xa7 485(c) property\nto reimburse the owning agency its fair value.\nMoreover, the very use of the term \xe2\x80\x9c reimbursement\xe2\x80\x9d to describe the Secre\xc2\xad\ntary\xe2\x80\x99s proposed authority to levy on the Indians in the original version of the bill\nsuggests that its drafters anticipated that the Secretary would at least in some\ncases have to pay something to acquire the property. This may indicate that\nCongress contemplated that the Secretary might have to expend funds in connec\xc2\xad\ntion with accepting transfers under \xc2\xa7 483(a)(2).10\nWe conclude, therefore, that Bonneville\xe2\x80\x99s entitlement to reimbursement under\n\xc2\xa7\xc2\xa7 483(a)( 1) and 485(c) of the Act is not affected by the passage of the 1975 law.\nIn reaching this conclusion we are mindful of the basic canon of statutory\ninterpretation that a statute \xe2\x80\x9c ought to be so construed as to make it a consistent\nw hole,\xe2\x80\x9d and that \xe2\x80\x9c the construction that produces the greatest harmony and the\nleast inconsistency is that which ought to prevail.\xe2\x80\x9d 2A C. Sands, Sutherland\xe2\x80\x99s\nStatutory Construction \xc2\xa7 46.05 at 57 (4th ed. 1973), citing Attorney General v.\nSillem, 159 Eng. Rep. 178(1863). Seealso Watt\\. Alaska, 451 U.S. at2 6 7 (\xe2\x80\x9c We\nmust read the statutes to give effect to each if we can do so while preserving their\nsense and purpose.\xe2\x80\x9d ).\nThe question of the Interior Department\xe2\x80\x99s authority to expend appropriated\nfunds on the acquisition of the excess property in question for the use and benefit\nof the Puyallup Tribe is not before us, although we note as possibly relevant in this\nregard the general authority to expend funds for the benefit of the Indians set forth\nin 25 U.S.C. \xc2\xa7 13 and, more particularly, the authority to purchase land for the\nuse and benefit of the Indians contained in 25 U.S.C. \xc2\xa7 465. In addition, because\nwe believe that \xc2\xa7 483(a)(2) of the Act must be construed to leave Interior no\ndiscretion to refuse to accept transfer of excess property located within a\nreservation simply because the transferring agency must under \xc2\xa7 483(a)(1) be\nreimbursed for it, \xc2\xa7 483(a)(2) itself may constitute an additional source of\nauthority to expend funds otherwise available for that purpose.\'1 Cf. New York\nAirways, Inc. v. United States, 369 F.2d 743, 748 (Ct. Cl. 1966) (Congress\xe2\x80\x99\nfailure to appropriate funds to meet an agency\xe2\x80\x99s statutory obligation does not\ndefeat that obligation). It may be, of course, that Interior simply does not have\nsufficient funds to spare from its general appropriation, consistent with fulfilling\nthe other obligations which must be funded from this source. In this event, either\n10 T h e re is no indication in the legislative h isto ry o f the 1975 am endm ents that C ongress co nsidered the situation\nin volving lands paid for not w ith public funds b u t w ith funds g enerated from assessm ents o f a particu lar g roup of\ncitiz en s. S tatem en ts in the legislative history suggest that it d id not. See, e.g , House R eport at 2 ( \xe2\x80\x9c the land m\nq u estio n w ill rem ain in F ederal han d s\'1). T h is does n ot, howeveT, ca st doubt on o u r conclusion w ith respect to the\np urpose o f the " w ith o u t com pensation" la nguage in (a)(2). In d eed , it reinforces it O ne m ay well ask w hether\nC o n g ress, if a sk ed , w ould have thought it fair o r appropriate that land in effect paid for by one gro u p o f citizen s, here\nB o n n ev ille \'s cu sto m ers, could be transferred to a federal agency w ithout com pensation\n11 It is a w ell settled p rinciple o f law that a lu m p sum appropriated fo r an ag en cy \'s genera] pro g ram s and activities\nm ay be used by th e agency for any otherwise authorized purpose. See, e.g , In re Newport News Shipbuilding and\nD rydockC o., 55 C o m p G en . 81 2 , 819-21 (1 976). See also City o f Los Angeles v. Adams, 556 F.2d 4 0 ,4 9 - 5 0 (D C\nCir. 1977) (an agency head\'s discretion to rep ro g ram funds am on g authorized program s u n d er a lum p sum\nap p ro p riatio n is lim ited o n ly if a specific statu to ry directive requires the expenditure o r distrib u tio n o f funds in a\np articu lar m anner). T h u s In te n o r is not legally o b lig ed to seek a new appropriation to reim burse B onneville for the\nland, as long as there are funds available from its unrestricted general appropriation w hich co u ld be allocated o r\nrep ro g ram m ed fo r this purpose.\n\n178\n\n\x0cInterior or Bonneville could seek an additional supplemental appropriation for\nthat specific purpose.\nT heodore B. O\n\nlson\n\nAssistant Attorney General\nOffice cf Legal Counsel\n\n179\n\n\x0c'


b"Commencement of the United States Commission\non Civil Rights\nThe United States Civil Rights Commission may commence its duties as soon as the statutory\nquorum of five members has been appointed.\nThe President may appoint the Chairman, Vice Chairman, and Staff Director prior to the\nappointm ent o f all eight members o f the Commission. Such appointments will be effective\nwhen a majority o f the Commissioners then in office concurs,' provided that at least five\nmembers have been appointed.\n\nDecember 7, 1983\nM\n\nem orandum\n\nO p in io n\n\nfor th e\n\nC o un sel\n\nto the\n\nP r e s id e n t\n\nThis responds to the request for the advice of this Office concerning several\nissues relating to the commencement of the new duties of the United States\nCommission on Civil Rights. Specifically, you have asked whether the Com\xc2\xad\nmission may begin to exercise its statutory responsibilities prior to the time that\nall eight members have been appointed. In addition, you have asked whether\nthe President may designate a Chairman, Vice Chairman, and Staff Director for\nthe Commission (which appointments require the concurrence of a majority of\nthe Commission\xe2\x80\x99s members) prior to the time that all eight members are\nappointed. In brief, our conclusions are as follows: (1) the Commission may\nbegin to take action in accordance with its statutory mandate as soon as the\nstatutorily prescribed quorum of five members has been appointed; and (2)\nalthough the issue with respect to appointment of the Chairman, Vice Chair\xc2\xad\nman, and Staff Director is less clear, we believe that the President may make\nthese designations as soon as he pleases and that the appointment will be\neffective as soon as he has the concurrence of a majority of the Commissioners\nthen in office, as long as at least five members have been appointed.\nCongress recently adopted H.R. 2230, the United States Commission on\nCivil Rights Act of 1983. Pub. L. No. 98-183, 97 Stat. 1301 (1983). This bill\ncreates a new Commission on Civil Rights with an expanded membership of\neight Commissioners. The new Commission will exercise the same investiga\xc2\xad\ntive and informative powers that were exercised by the previous Commission\non Civil Rights. The appointment procedure for the new Commission has been\nchanged, however, so that four members will be appointed by the President,\ntwo by the President p ro tempore of the Senate, and two by the Speaker of the\n177\n\n\x0cHouse of Representatives. Because the Commission is a new creation, with a\nnew procedure for appointment of its members, new appointments must be\nmade in order for the new Commission to begin functioning.\n1. The first question you have asked is whether the initial meeting of the\nCommission may be convened and operation of the Commission may com\xc2\xad\nmence prior to the time that all members of the Commission have been\nappointed. Section 2(f) of the bill specifically states that \xe2\x80\x9cfive members of the\nCommission shall constitute a quorum.\xe2\x80\x9d The Supreme Court has held that a\nmajority of a quorum may act for a collective body in the absence of a statutory\nprovision to the contrary. F C C v. Flotill Products, 389 U.S. 179, 183 (1967).\nUnder this rule, federal agencies have frequently operated with vacancies in\ntheir membership as long as the statutory quorum is observed. In addition, this\nOffice has consistently concluded that a federal agency or commission may act\nas long as the prescribed quorum is present. See, e.g., \xe2\x80\x9cFederally Chartered\nCorporations \xe2\x80\x94 National Consumer Cooperative Bank,\xe2\x80\x9d 3 Op. O.L.C. 311\n(1979). In the case of the new Commission on Civil Rights, the statutorily\nprescribed quorum is five. Therefore, the Commission may begin to undertake\nits responsibilities as soon as five members have been appointed and have\ntaken office.\n2. The second question raised with respect to the new Commission is\nwhether the President may designate the Chairman and Vice Chairman and\nappoint the Staff Director prior to the appointment of all eight members of the\nCommission. Section 2(c) o f the bill states:\nThe President shall designate a Chairman and a Vice Chairman\nfrom among the Commission\xe2\x80\x99s members with the concurrence\nof a majority of the Commission\xe2\x80\x99s members.\n97 Stat. 1301. Section 6(a)(1) states:\nThere shall be a full-time staff director for the Commission who\nshall be appointed by the President with the concurrence of a\nmajority of the Commission.\n97 Stat. 1305. These provisions raise the issue whether a majority of the\nCommission\xe2\x80\x99s members means a majority of the statutorily prescribed mem\xc2\xad\nbers (i.e., five) or simply a majority of the members holding office at that time,\nas long as at least five have been appointed.1\n1 T he tw o provisions differ slightly in their descriptions o f the concurrence required. Section 2(c) requires\nconcurrence by a \xe2\x80\x9cm ajority o f the C om m ission\xe2\x80\x99s m em bers,\xe2\x80\x9d w hile \xc2\xa7 6(a)(1) uses the term a \xe2\x80\x9cmajority o f the\nC om m ission.\xe2\x80\x9d T here is no indication in the text o r purpose o f the statute or in the legislative history that\nC ongress intended the tw o provisions to have different m eanings. Therefore, we do not ascribe any legal\nsignificance to this m in o r difference, an d we believe that the tw o phrases should be interpreted in the same\nm anner. W e also note that \xc2\xa7 2(c) uses th e term \xe2\x80\x9cdesignate,\xe2\x80\x9d while \xc2\xa7 6(a)(1) uses the term \xe2\x80\x9cappointed.\xe2\x80\x9d We\nbelieve that this difference in term inology is due to the fact that the Chairm an is selected from among\nm em bers already appointed to the C om m ission, w hile the S taff D irector is appointed to the position from a\ndifferen t jo b . T herefore, this difference in term inology also has no legal significance with respect to the\nissues co n sid ered herein.\n\n178\n\n\x0cAlthough a good argument could be made that Congress intended the Presi\xc2\xad\ndent to obtain concurrence of a majority of the statutorily prescribed members,\nwe believe that on balance, the correct reading of the statute is that concurrence\nmay be obtained from a majority of the Commissioners holding office at the\ntime of the designation or appointment.2 The language of the concurrence\nprovisions gives no indication that Congress intended to depart from the\notherwise clear quorum requirement of \xc2\xa7 2(0, which permits the Commission\nto act when at least five members are present. In addition, \xc2\xa7 2(e) states in part\nthat \xe2\x80\x9cany vacancy in the Commission shall not affect its powers.\xe2\x80\x9d 97 Stat. 1302.\nThis provision suggests that a quorum is all that is required in order to exercise\nthe concurrence necessary to appoint the Chairman, Vice Chairman, and Staff\nDirector. Finally, when Congress intended a majority of the statutorily pre\xc2\xad\nscribed Commissioners to take an action, as in the quorum requirement, it\nspecifically used the number five to indicate that point. If Congress had\nintended to require concurrence by five Commissioners, it could easily have so\nstated. All of these factors lead us to the conclusion that a majority of the\ncurrent members is sufficient to provide the necessary concurrence, provided a\nquorum is present.\nThis conclusion is supported by several court of appeals cases concerning a\nsimilarly worded provision in the Interstate Commerce Act. See Michigan\nD e p \xe2\x80\x99t o f Transportation v. ICC, 698 F.2d 277 (6th Cir. 1983); American\nTrucking A s s \xe2\x80\x99n, Inc. \\ . United States, 642 F.2d 916 (5th Cir. 1981); Union\nPacific R.R. Co. v. United States, 637 F.2d 764 (10th Cir. 1981); Assure\nCompetitive Transp., Inc. v. United States, 629 F.2d 467 (7th Cir. 1980), cert,\ndenied, 449 U.S. 1124 (1981). In these cases the courts concluded that a\nstatutory provision that \xe2\x80\x9ca majority of the Interstate Commerce Commission . .\n. constitutes a quorum\xe2\x80\x9d meant that a quorum required merely \xe2\x80\x9ca majority of the\nCommissioners actually in office,\xe2\x80\x9d and not a majority of the statutorily pre\xc2\xad\nscribed Commissioners. Assure Com petitive , 629 F.2d at 473. In so ruling, the\ncourts relied on a vacancy clause similar to \xc2\xa7 2(e) quoted above. Given the\nsimilarity of the vacancy clauses and the additional similarity between the\nlanguage of the ICC\xe2\x80\x99s quorum clause and the language of the concurrence\nrequirements in the Civil Rights Commission statute, these cases provide\nstrong support for the conclusion that the required concurrence may be ob\xc2\xad\ntained from a majority of the members currently appointed, as long as at least\nfive members have been appointed.\nR o bert B. Shanks\n\nDeputy A ssistant Attorney General\nOffice o f Legal Counsel\n\n2 N eedless to say, the safest course would be to obtain concurrence from a majority o f the statutorily\nprescribed members. If five m embers o f the new C om m ission concurred in the appointm ents at issue, there\nwould be no question about their validity.\n\n179\n\n\x0c"


b'(Slip Opinion)\n\nExclusion of Religiously Affiliated Schools from\nCharter-School Grant Program\nA provision of the Elementary and Secondary Education Act of 1965 that excludes\nreligiously affiliated charter schools from participating in the Expanding Opportunity Through Quality Charter Schools Program discriminates on the basis of\nreligious status in violation of the Free Exercise Clause.\nFebruary 18, 2020\n\nMEMORANDUM OPINION FOR THE\nPRINCIPAL DEPUTY GENERAL COUNSEL\nDEPARTMENT OF EDUCATION\nYou have asked about the constitutionality of a statute that excludes\nreligiously affiliated charter schools from participating in the Expanding\nOpportunity Through Quality Charter Schools Program. We conclude\nthat the restriction unconstitutionally discriminates on the basis of religious status under Trinity Lutheran Church of Columbia, Inc. v. Comer,\n137 S. Ct. 2012 (2017).\nThe charter-school program was added to the Elementary and Secondary Education Act of 1965 (\xe2\x80\x9cESEA\xe2\x80\x9d), Pub. L. No. 89-10, 79 Stat. 27, by\nthe No Child Left Behind Act of 2001, Pub. L. No. 107-110, sec. 501,\n\xc2\xa7\xc2\xa7 5201\xe2\x80\x935211, 115 Stat. 1425, 1788 \xe2\x80\x931800 (2002). After further amendment, the program statute now appears at ESEA \xc2\xa7\xc2\xa7 4301\xe2\x80\x93 4311, and is\ncodified at 20 U.S.C. \xc2\xa7\xc2\xa7 7221\xe2\x80\x937221j. The statute defines a \xe2\x80\x9ccharter\nschool\xe2\x80\x9d as a \xe2\x80\x9cpublic school\xe2\x80\x9d that is \xe2\x80\x9cexempt from significant State or\nlocal rules that inhibit the flexible operation and management of public\nschools,\xe2\x80\x9d but that is nonetheless \xe2\x80\x9coperated under public supervision and\ndirection.\xe2\x80\x9d 20 U.S.C. \xc2\xa7 7221i(2)(A)\xe2\x80\x93(B). A charter school must be both\n\xe2\x80\x9cnonsectarian in its programs, admissions policies, employment practices,\nand all other operations\xe2\x80\x9d and \xe2\x80\x9cnot affiliated with a sectarian school or\nreligious institution.\xe2\x80\x9d Id. \xc2\xa7 7221i(2)(E). Under the program, the Department of Education provides grants to entities such as state educational\nagencies or charter-school support organizations. Id. \xc2\xa7 7221b(a)\xe2\x80\x93(b).\nThese entities in turn make subgrants to \xe2\x80\x9celigible applicants\xe2\x80\x9d so that they\ncan create or operate charter schools. Id. \xc2\xa7 7221b(b)(1). An \xe2\x80\x9celigible\napplicant,\xe2\x80\x9d or \xe2\x80\x9cdeveloper,\xe2\x80\x9d can be \xe2\x80\x9can individual or group of individuals\n(including a public or private nonprofit organization).\xe2\x80\x9d Id. \xc2\xa7 7221i(5)\xe2\x80\x93(6).\n1\n\n\x0c44 Op. O.L.C. __ (Feb. 18, 2020)\n\nThus, while a \xe2\x80\x9ccharter school\xe2\x80\x9d is a \xe2\x80\x9cpublic school\xe2\x80\x9d operated under \xe2\x80\x9cpublic\nsupervision and direction,\xe2\x80\x9d id. \xc2\xa7 7221i(2)(B), it may be created or operated by an individual or private nonprofit organization.\nYou have asked whether the provision of the ESEA limiting eligibility\nfor this program to schools \xe2\x80\x9cnot affiliated with a sectarian school or\nreligious institution,\xe2\x80\x9d id. \xc2\xa7 7221i(2)(E), violates the Free Exercise Clause\nof the First Amendment. Under Supreme Court precedent, the framework\nfor analyzing that question depends on \xe2\x80\x9cwhether the restriction is based\nupon an institution\xe2\x80\x99s religious status or whether it is based upon how\nthe federal support would be used.\xe2\x80\x9d Religious Restrictions on Capital\nFinancing for Historically Black Colleges and Universities, 43 Op.\nO.L.C. __, at *6 (2019) (\xe2\x80\x9cReligious Restrictions\xe2\x80\x9d). That distinction derives from the Supreme Court\xe2\x80\x99s decisions in Trinity Lutheran, which\nstruck down a Missouri policy \xe2\x80\x9cof denying grants to any applicant owned\nor controlled by a church, sect, or other religious entity,\xe2\x80\x9d 137 S. Ct. at\n2017, and Locke v. Davey, 540 U.S. 712 (2004), which upheld a Washington statute denying certain scholarship funds to \xe2\x80\x9c\xe2\x80\x98any student who is\npursuing a degree in theology,\xe2\x80\x99\xe2\x80\x9d id. at 716 (quoting statute). The Court\ndeemed the former restriction to be impermissible discrimination on the\nbasis of religious status, but the latter to be a permissible limit on the use\nof public funds for explicitly devotional religious activity. See Religious\nRestrictions, 43 Op. O.L.C. __, at *5\xe2\x80\x936, *16\xe2\x80\x9319.\nAs we have explained, the difference between status-based religious\ndiscrimination (which is presumptively unconstitutional) and use-based\nlimits on allocating government benefits (which may be permissible under\nLocke) is informed by the distinction the Supreme Court has drawn between funding restrictions that permissibly define the scope of a government program and unconstitutional conditions on the use of federal funds.\nId. at *6. While the government may \xe2\x80\x9cretain a legitimate interest in defining the program to exclude certain religious uses\xe2\x80\x9d of funds, it may not, as\na general matter, create a religious-funding restriction so broad that \xe2\x80\x9cit\nsweeps beyond \xe2\x80\x98defining the limits of the federally funded program to\ndefining the recipient.\xe2\x80\x99\xe2\x80\x9d Id. at *7 (quoting U.S. Agency for Int\xe2\x80\x99l Dev. v.\nAlliance for Open Soc\xe2\x80\x99y Int\xe2\x80\x99l, Inc. (\xe2\x80\x9cAOSI \xe2\x80\x9d), 570 U.S. 205, 218 (2013)).\nIn our Religious Restrictions opinion, we applied this framework to a\nstatutory funding condition that denied federal loan support to capitalimprovement projects at a university \xe2\x80\x9c\xe2\x80\x98in which a substantial portion of\n2\n\n\x0cExclusion of Religiously Affiliated Schools from Charter-School Grant Program\n\nits functions is subsumed in a religious mission.\xe2\x80\x99\xe2\x80\x9d Id. at *16\xe2\x80\x9317 (quoting\n20 U.S.C. \xc2\xa7 1066c(c)). We concluded that the restriction was status-based\nreligious discrimination. We reasoned that the condition denied federal\nsupport to \xe2\x80\x9cprojects that have no direct connection to the religious activities of \xe2\x80\x9d a university \xe2\x80\x9csimply because of the religious mission of the\ninstitution\xe2\x80\x9d\xe2\x80\x94even to projects that had no \xe2\x80\x9cinherent religious character.\xe2\x80\x9d\nId. at *17. This reasoning turned on the breadth of the restriction in question and its tenuous connection to the purpose of limiting funding to\nsecular activities.\nThe religious-affiliation restriction in the ESEA broadly prohibits\ncharter schools in the program from associating with religious organizations. No charter school may be \xe2\x80\x9caffiliated\xe2\x80\x9d with any \xe2\x80\x9csectarian school\nor religious institution.\xe2\x80\x9d 20 U.S.C. \xc2\xa7 7221i(2)(E). Generally speaking,\none entity is \xe2\x80\x9caffiliated\xe2\x80\x9d with another if the two have a close association,\nsuch as when they have formally distinct business operations but are\nunder common ownership or control. See Black\xe2\x80\x99s Law Dictionary 67 (9th\ned. 2009) (defining \xe2\x80\x9caffiliated,\xe2\x80\x9d with reference to a corporation, to mean\n\xe2\x80\x9crelated to another corporation by shareholdings or other means of control\xe2\x80\x9d); 1 Oxford English Dictionary 216 (2d ed. 1989) (\xe2\x80\x9c[t]o attach a\nsmaller institution to, or connect it with, a larger one as a branch thereof \xe2\x80\x9d); Webster\xe2\x80\x99s Third New International Dictionary 35 (2002) (defining\n\xe2\x80\x9caffiliate\xe2\x80\x9d as \xe2\x80\x9ca company effectively controlled by another or associated\nwith others under common ownership or control\xe2\x80\x9d); accord Satterfield v.\nSimon & Schuster, Inc., 569 F.3d 946, 955 (9th Cir. 2009). The restriction\ntherefore would not only prohibit a religious institution from owning\nor operating a charter school but also preclude the owners or operators\nof a charter school that otherwise satisfies federal requirements from\nclosely associating with a religious institution.\nThat is discrimination on the basis of religious status. Like the provision discussed in our Religious Restrictions opinion, the categorical\nprohibition on religious affiliation in the charter-school program sweeps\nwell beyond ensuring that the activities of the program in question remain\nnonsectarian. A religious institution would have to divest itself of its\nreligious character before it could own or operate a charter school in\nthe program. The restriction would also preclude the owners or operators\nof a secular charter school from expressing their religious beliefs through\nclosely associating with a distinct religious organization. All that would\n3\n\n\x0c44 Op. O.L.C. __ (Feb. 18, 2020)\n\nbe true even if the religious institution and the charter school maintained\nseparate operations, took care to preserve the nonsectarian character of\nthe charter school\xe2\x80\x99s curriculum and operations, and submitted to public\nsupervision and direction in operating the school. See 20 U.S.C.\n\xc2\xa7 7221i(2)(E). The restriction therefore goes beyond assuring the nonsectarian character of the charter-school program itself. Instead, it is\naimed at the religious character of individuals and organizations that seek\nto create, own, or operate nonsectarian charter schools run under public\nsupervision.\nThe conclusion that this statute discriminates on the basis of religious\nstatus is underscored by unconstitutional-conditions cases involving the\nright to free speech. The Supreme Court has observed that the possibility\nof affiliating with other organizations sometimes permits \xe2\x80\x9can organization\nbound by a funding condition to exercise its First Amendment rights\noutside the scope of the federal program.\xe2\x80\x9d AOSI, 570 U.S. at 219. But\nhere that is impossible, because the charter-school statute proscribes\nthe act of affiliation itself. The prohibition on affiliation burdens the\nexercise of religion: it prohibits a related, but distinct, religious organization from participating in the program, and it prohibits those who own\nor operate charter schools from achieving a close association with such\na religious organization. Compare FCC v. League of Women Voters of\nCal., 468 U.S. 364, 399\xe2\x80\x93401 (1984) (striking down a provision of the\nPublic Broadcasting Act of 1967 that prohibited television and radio\nstations from receiving certain grants from the Corporation for Public\nBroadcasting if they engaged in editorializing, because the statute did not\npermit a television or radio station to receive federal funds even if the\nstation set up \xe2\x80\x9ca separate affiliate\xe2\x80\x9d to pursue its editorializing activities\nwith non-federal funds), with Regan v. Taxation With Representation of\nWash., 461 U.S. 540, 544 & n.6 (1983) (rejecting a constitutional challenge to a provision of the Internal Revenue Code that denied tax-exempt\nstatus to a nonprofit organization that engaged in lobbying because the\nnonprofit organization could separately incorporate an affiliate to lobby\nand still be eligible for a tax exemption). It is one thing for the program\nto require the curriculum of a charter school to be nonsectarian. Because\na charter school is under \xe2\x80\x9cpublic supervision and direction,\xe2\x80\x9d 20 U.S.C.\n\xc2\xa7 7221i(2)(B), this requirement directly concerns how public moneys are\nused. It is something else entirely to forbid a religious institution from\n4\n\n\x0cExclusion of Religiously Affiliated Schools from Charter-School Grant Program\n\nsetting up or operating a charter school that otherwise meets federal\nrequirements, or to prohibit the developer or operator of such a charter\nschool from having an affiliation with a religious institution, which places\na burden on those of faith based on religious identity outside the charterschool program itself. \xe2\x80\x9c[T]he Free Exercise Clause protects against indirect coercion or penalties on the free exercise of religion, not just outright\nprohibitions.\xe2\x80\x9d Trinity Lutheran, 137 S. Ct. at 2022 (internal quotation\nmarks and citation omitted).\nGovernment-funding \xe2\x80\x9c[r]estrictions based on religious status are presumptively unconstitutional.\xe2\x80\x9d Religious Restrictions, 43 Op. O.L.C. __,\nat *6; see Trinity Lutheran, 137 S. Ct. at 2024 (applying the \xe2\x80\x9c\xe2\x80\x98most rigorous\xe2\x80\x99\xe2\x80\x9d scrutiny to a funding restriction based on religious status (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.\n520, 546 (1993)). It is true that \xe2\x80\x9cthe need to comply with the Establishment Clause may justify restrictions that would otherwise amount to\nimpermissible religious discrimination.\xe2\x80\x9d Religious Restrictions, 43 Op.\nO.L.C. __, at *7. But the \xe2\x80\x9cEstablishment Clause permits the government\nto include religious institutions, along with secular ones, in a generally\navailable aid program that is secular in content,\xe2\x80\x9d id. at *9, as the charterschool program is here, see 20 U.S.C. \xc2\xa7 7221i(2)(E) (requiring charter\nschool to be \xe2\x80\x9cnonsectarian in its programs, admissions policies, employment practices, and all other operations\xe2\x80\x9d). As we recognized in Religious\nRestrictions, the Supreme Court has sometimes suggested that even a\nreligiously neutral government-aid program involving direct government\nsubsidies must have protections that \xe2\x80\x9censure that funds are not diverted\nto a religious use,\xe2\x80\x9d id. at *11, in order to comply with the Establishment\nClause. But even if that principle retains vitality today\xe2\x80\x94and we have\nour doubts, see id. at *9\xe2\x80\x9311\xe2\x80\x94the statute here has such a safeguard, because it mandates that a charter school\xe2\x80\x99s programs and practices be nonsectarian and be under public supervision.\nThe status-based religious discrimination here cannot be justified by\nthe Establishment Clause concerns that sometimes arise when a government singles out a religious entity to carry out a governmental function\xe2\x80\x94\nhere, the operation of what the statute defines as a \xe2\x80\x9cpublic school.\xe2\x80\x9d See\nBd. of Educ. of Kiryas Joel Vill. Sch. Dist. v. Grumet, 512 U.S. 687\n(1994); Larkin v. Grendel\xe2\x80\x99s Den, Inc., 459 U.S. 116 (1982). In Kiryas\nJoel, the Supreme Court invalidated a state statute that had drawn a school\n5\n\n\x0c44 Op. O.L.C. __ (Feb. 18, 2020)\n\ndistrict around a village occupied almost exclusively by practitioners of\nSatmar Hasidism, a strict form of Judaism, based on the Court\xe2\x80\x99s perception that the statute in question was a \xe2\x80\x9cspecial and unusual\xe2\x80\x9d legislative\nact intended to confer particular benefits on the Satmar community.\n512 U.S. at 702; see also id. at 716 (O\xe2\x80\x99Connor, J., concurring in part\nand concurring in the judgment) (viewing the law as \xe2\x80\x9csingl[ing] out\na particular religious group for favorable treatment\xe2\x80\x9d); Grendel\xe2\x80\x99s Den,\n459 U.S. at 117, 127 (invalidating a state statute that allowed a church\nto veto the zoning license of a liquor store within 500 feet of the church).\nThe program here, if it did not exclude religiously affiliated charter\nschools, would raise no such concerns because it is otherwise neutral\ntoward religion. Religiously affiliated charter schools would receive\nno special benefit or authority and would have to meet the same standards\nas other charter schools to participate in the program. See, e.g., 20 U.S.C.\n\xc2\xa7 7221b(f )(1)(A)(vi), (x), (2)(F), (G).\nESEA\xe2\x80\x99s charter-school program is not unusual in that regard. Many\nfederal statutes, including ones administered by the Department of Education, allow a religious organization to partner with the federal government on the same basis as a secular organization in carrying out a particular social service program. See, e.g., Exec. Order No. 13,279, \xc2\xa7 2(g)\n(Dec. 12, 2002), 67 Fed. Reg. 77,141 (Dec. 16, 2002), as amended by\nExec. Order No. 13,559, \xc2\xa7 1(b) (Nov. 17, 2010), 75 Fed. Reg. 71,319,\n71,320 (Nov. 22, 2010) (\xe2\x80\x9cFaith-based organizations should be eligible to\ncompete for Federal financial assistance used to support social service\nprograms and to participate fully in the social service programs supported\nwith Federal financial assistance without impairing their independence,\nautonomy, expression outside the programs in question, or religious\ncharacter.\xe2\x80\x9d); 2 C.F.R. \xc2\xa7 3474.15(b)(1) (\xe2\x80\x9cA faith-based organization is\neligible to contract with grantees and subgrantees, including States, on\nthe same basis as any other private organization, with respect to contracts\nfor which such other organizations are eligible.\xe2\x80\x9d). These kinds of arrangements do not violate the Establishment Clause. See generally, e.g.,\nDirect Aid to Faith-Based Organizations Under the Charitable Choice\nProvisions of the Community Solutions Act of 2001, 25 Op. O.L.C. 129\n(2001).\nForbidding charter schools under the program from affiliating with\nreligious organizations discriminates on the basis of religious status.\n6\n\n\x0cExclusion of Religiously Affiliated Schools from Charter-School Grant Program\n\nThe mere \xe2\x80\x9cinterest in \xe2\x80\x98skating as far as possible from religious establishment concerns,\xe2\x80\x99\xe2\x80\x9d Religious Restrictions, 43 Op. O.L.C. __, at *17 (quoting Trinity Lutheran, 137 S. Ct. at 2024), cannot suffice to support such\ndiscrimination. Accordingly, the religious non-affiliation requirement\nin 20 U.S.C. \xc2\xa7 7221i(2)(E) violates the Free Exercise Clause of the First\nAmendment. Should the Department of Education establish a policy not\nto enforce this provision, it should report that decision to Congress within\nthirty days of establishing the policy. See 28 U.S.C. \xc2\xa7 530D(a)(1)(A)(i),\n(b)(1), (e).\nHENRY C. WHITAKER\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n7\n\n\x0c'