b"Constitutionality of Legislation Extending the Terms of Office of\nUnited States Parole Commissioners\n\nB e c a u se U n ite d S ta te s P a ro le C o m m is sio n e rs m a y be re m o v e d b y the P resid e n t at w ill, le g islatio n\ne x te n d in g th e te rm s o f o ffic e o f certain P a ro le C o m m is sio n e rs , d oes no t v io la te the A p p o in tm e n ts\nC la u se .\n\nJuly 15, 1994\n\nM e m o r a n d u m O p in io n f o r t h e D e p u t y A t t o r n e y G e n e r a l\n\nYou have asked for our opinion as to whether Pub. L. No. 101-650, \xc2\xa7 316, 104\nStat. 5089, 5115 (1990), which extends the terms o f United States Parole Com m is\xc2\xad\nsioners to N ovem ber 1, 1997, violates the Appointments Clause of the Constitu\xc2\xad\ntion. U.S. Const, art. II, \xc2\xa7 2, cl. 2. W e conclude that it does not.\nI.\nThe United States Parole Com m ission (\xe2\x80\x9cParole Commission\xe2\x80\x9d) is an\n\xe2\x80\x9cindependent agency in the Department of Justice,\xe2\x80\x9d 18 U.S.C. \xc2\xa74202, and is\nvested with authority to establish the organizational structure for receiving, hear\xc2\xad\ning, and deciding requests for parole; to grant or deny an application for parole; to\nimpose reasonable conditions on an order granting parole; to modify or revoke an\norder paroling any prisoner; to request probation officers and any other appropriate\nindividuals or entities to assist or supervise parolees; and to issue rules and regula\xc2\xad\ntions for effectuating these powers. Id. \xc2\xa7 4203. In addition, the Chairman of the\nParole Com m ission has the authority to appoint and fix the compensation o f the\nParole C om m ission\xe2\x80\x99s employees, including hearing officers, to assign duties\namong officers and employees of the Parole Com mission, and to otherwise admin\xc2\xad\nister the Parole Com m ission. Id. \xc2\xa7 4204. The Parole Commission comprises nine\nCom m issioners appointed for six y ear terms. Id. \xc2\xa7 4202. The statute also includes\na holdover provision under which C om m issioners continue to serve until a succes\xc2\xad\nsor is appointed, \xe2\x80\x9cexcept that no C om m issioner may serve in excess of twelve\nyears.\xe2\x80\x9d Id.\nThe Sentencing Reform Act o f 1984 (\xe2\x80\x9cSR A \xe2\x80\x9d), Pub. L. No. 98-473, 98 Stat.\n1837, 1987 (1984), abolished parole for all federal offenders sentenced under its\nprovisions. To accom plish this, the SRA repealed the parole provisions, including\nthe provision establishing the Parole Com m ission, of title 18 of the United States\nCode, effective N ovem ber 1, 1987. In order to accommodate those prisoners sen\xc2\xad\ntenced under the sentencing system in place before enactment of the SRA \xe2\x80\x94 and\ntherefore still eligible for parole \xe2\x80\x94 the SRA specifically provided that the parole\n166\n\n\x0cC onstitutionality o f Legislation E xtending the Term s o f O ffice o f U nited States P arole C om m issioners\n\nprovisions would remain in effect for five years after the SRA \xe2\x80\x99s effective date. It\nadded that, \xc2\xa7 4202 notwithstanding, \xe2\x80\x9cthe term of office of a Commissioner who is\nin office on the effective date is extended to the end of the five year period after the\neffective date of this Act.\xe2\x80\x9d Pub. L. No. 98-473, \xc2\xa7 235(b)(2), 98 Stat. at 2032. In\n1990, Congress realized that there would be a need for the Parole Commission\nbeyond the five year extension period and amended \xc2\xa7 235(b) to provide a ten year\nperiod, Pub. L. No. 101-650, 104 Stat. at 5115, which apparently will carry the\nParole Commission through to November 1, 1997. See M emorandum for W alter\nDellinger, Assistant Attorney General, Office of Legal Counsel, from M ichael A.\nStover, General Counsel, United States Parole Commission (June 2, 1994).\nIn 1987, this office issued an opinion concluding that the five year extension in\nSRA \xc2\xa7 235(b)(2) was unconstitutional, apparently on the grounds that any legisla\xc2\xad\ntion purporting to extend the term of an incumbent officeholder violates the A p\xc2\xad\npointments Clause. See R eappointm ent o f U nited States P arole C om m issioners,\n11 Op. O.L.C. 135 (1987). The opinion concluded, however, that since the pre\xc2\xad\nexisting holdover provision at 18 U.S.C. \xc2\xa7 4202 is valid, incumbents whose terms\nexpired could remain in place for up to a total o f twelve years, unless a successor\nwas sooner appointed. W e are informed that this twelve year period will elapse in\nearly 1995 for at least three Commissioners who were in office on the effective\ndate of the SRA. See M emorandum for W alter Dellinger, Assistant Attorney G en\xc2\xad\neral, Office of Legal Counsel, from Jamie S. Gorelick, Deputy Attorney General,\nRe: R equest f o r Opinion on Term Lengths o f U nited States P arole C om m issioners\n\nat 2 (June 1, 1994). Because we conclude that the term extension at SRA\n\xc2\xa7 235(b)(2) is in fact valid, any Commissioners who were validly in office on the\neffective date of the SRA may continue in office until November 1, 1997.'\nII.\nA.\nThe Constitution prohibits Congress from exercising the power to appoint offi\xc2\xad\ncers o f the United States. U.S. Const, art. II, \xc2\xa7 2, cl. 2; Buckley v. Valeo, 424 U.S.\n1, 124-41 (1976). On the other hand, the Constitution endows Congress with\nauthority to create and structure offices. U.S. Const, art. I, \xc2\xa7 8, cl. 18. This power\nhas been taken to encompass the authority to add germane duties to an office, see\nShoem aker v. U nited States, 147 U.S. 282 (1893), and to set and amend the term of\nan office. See In re Investm ent Bankers Inc., 4 F.3d 1556 (10th Cir. 1993), cert,\ndenied, 510 U.S. 1114 (1994); In re Benny, 812 F.2d 1133 (9th Cir. 1987), cert.\n1\nThe question we have been asked to address is the general one o f w hether the A ppointm ents C lause\nstands as a bar to the operation o f $ 235(b)(2) A nsw ering this question does not depend upon the sp ecific\ncircum stances o f any particular C om m issioner M oreover, we have not been provided any such inform ation,\nand thus do not draw any conclusions as to how o r w hether \xc2\xa7 235(b)(2) applies to any specific C o m m is\xc2\xad\nsioner\n\n167\n\n\x0cO pinions o f th e Office o f L egal C ounsel\n\nden ied, 510 U.S. 1029 (1993); In re Koerner, 800 F.2d 1358 (5th Cir. 1986); Civil\nS ervice R etirem en t A ct \xe2\x80\x94 P ostm asters \xe2\x80\x94 A u tom atic Separation fro m the Service,\n\n35 Op. A tt\xe2\x80\x99y Gen. 309, 314 (1927).\nT hese provisions are placed in potential tension when Congress extends the\nterm o f an office and seeks to apply the extension to the incumbent officeholder.\nW hether any tension actually results depends on how the extension functions. If\napplying an extension to an incumbent officer would function as a congressional\nappointm ent o f the incumbent to a new term, then it violates the Appointments\nClause. The classic exam ple of legislation that raises this tension is an extension of\nthe tenure o f an officer whom the President may remove only \xe2\x80\x9cfor cause.\xe2\x80\x9d2\nA t the other end o f the continuum is legislation that extends the term of an of\xc2\xad\nfice, including its incumbent, the holder of which is removable at will. In this in\xc2\xad\nstance, it has long been the position of the Office o f Legal Counsel and the\nD epartm ent o f Justice that there is no violation of the Appointments Clause, for\nhere the President remains free to rem ove the officer and embark on the process of\nappointing a successor \xe2\x80\x94 the only impediment being the constitutionally sanc\xc2\xad\ntioned one o f Senate confirmation. In short, such legislation leaves the appointing\nauthority \xe2\x80\x94 and incidental removal power \xe2\x80\x94 on precisely the same footing as it\nwas prior to the enactm ent of the legislation. S ee Sentencing Commission Opinion\nat 7-9 (\xe2\x80\x9cIn sum , the extension of tenure of officers serving at will raises no A p\xc2\xad\npointm ents Clause problem \xe2\x80\x9d); D isp la c ed P erson s Com m ission \xe2\x80\x94 Terms o f M em \xc2\xad\nbers, 41 Op. A tt\xe2\x80\x99y Gen. 88, 89-90 (1951).3 This office has opined that Parole\nC om m issioners are removable at will. See M em orandum for Rudolph W. Giuliani,\nA ssociate Attorney General from Theodore B. Olson, Assistant Attorney General,\nOffice of Legal Counsel, Re: The P re sid e n t\xe2\x80\x99s P ow er to Remove P a ro le C om m is\xc2\xad\nsio n ers (Aug. 11, 1981) (\xe2\x80\x9cParole C om m isioner Removal M emorandum\xe2\x80\x9d). If we\nadhere to this view, the extension o f the Parole Com m issioners\xe2\x80\x99 terms does not\nviolate the A ppointm ents Clause.\n\n2 W h ile such a statute \xe2\x80\x9cis constitutionally q u e stio n ab le ,\xe2\x80\x9d it w ould not represent a p e r se violation o f the\nA pp o in tm en ts C lau se S ee M em orandum for th e A ttorney G eneral from W alter D ellinger, A ssistant A ttor\xc2\xad\nney G en eral, O ffice o f Legal Counsel, Re: W h eth er M e m b e rs o f the Sentencing C om m ission W ho Were\nA p p o in te d P rio r to the E na ctm en t o f a H o ld o v er S ta tu te M a x E xercise H oldover R ights P ursuant to the\nSta tu te at 9 (A p r 5, 1994) (\xe2\x80\x9c Sentencing C om m ission M em o ran d u m \xe2\x80\x9d ); s e e also Benny, 812 F 2d at 1141\n3 O u r 1987 o p in io n asserts that an extension o f the term o f an officer violates the A ppointm ents Clause.\nIt d oes not d iscu ss any d istin ctio n between o ffice s held at w ill and those that include rem oval protection.\nS ince the o n ly tw o O ffice o f Legal Counsel o p in io n s cited in the 1987 opinion both held that Parole C om \xc2\xad\nm ission ers are rem o v ab le at w ill by the President, see R e a p p o in tm ent o f U nited S tates P arole C om m ission\xc2\xad\ners, 11 O p. O .L .C . 135, 136 n I (1987), the b e s t reading o f the opinion is that it m eant that every legislative\nex ten sio n o f the term o f an incum bent officer violates the A p pointm ents C lause. T his assertion w as, at the\ntim e it w as m ade, co n trary to this D epartm ent\xe2\x80\x99s long-standing position, see, e.g., 41 O p. A tt'y G en. at 89-90,\n35 O p A tt\xe2\x80\x99y G en at 314, and has not been fo llo w e d since th at tim e, s e e Sentencing C om m ission O pinion\nM oreover, an d m o st im portantly, the 1987 o p in io n is irredeem ably unpersuasive It m akes no effort to ex\xc2\xad\nplain ho w leg islatio n ex ten d in g the term o f an o fficer w ho serv es at w ill im pinges on the pow er o f appoint\xc2\xad\nm ent, an d w e can co n ceiv e o f no credible arg u m en t lhat an in frin g em ent rising to the level o f a constitutional\nv io latio n m ay resu lt from such legislation. C o n seq u en tly , w e w ithdraw the holding in the 1987 opinion that\nany leg islatio n ex ten d in g the term o f an o fficer w ho is rem o v ab le at will violates the A ppointm ents C lause.\n\n168\n\n\x0cC onstitutionality o f Legislation Extending ihe Term s o f O ffice o f U nited Slates P arole C om m issioners\n\nB.\nThe statute establishing the Parole Commission provides that it is an independ\xc2\xad\nent agency within the Department of Justice and that the Commissioners are to\nserve six-year terms. 18 U.S.C. \xc2\xa7 4 2 0 2 . The statute, however, is silent as to\nwhether the President may remove the Commissioners at will or only \xe2\x80\x9cfor cause.\xe2\x80\x9d\nAs indicated, we have opined that Parole Commissioners are removable by the\nPresident at will. Our conclusion had two bases \xe2\x80\x94 first, that there was no indica\xc2\xad\ntion that Congress intended to limit the President\xe2\x80\x99s removal authority and, second,\nthat any attempt to limit the President\xe2\x80\x99s removal authority would be unconstitu\xc2\xad\ntional since the Commissioners are \xe2\x80\x9cpurely executive\xe2\x80\x9d officers. See Parole C om \xc2\xad\nmissioner Removal M emorandum. The second basis o f our conclusion followed\nthen-applicable Supreme Court precedent on the constitutionality o f restrictions on\nthe President\xe2\x80\x99s authority to remove officers.\nThe Supreme Court first addressed the question of such removal restrictions in\nM yers v. U nited States, 272 U.S. 52 (1926),1which involved a statute that required\nthe President to obtain the Senate\xe2\x80\x99s advice and consent before removing a Post\xc2\xad\nmaster of the first, second, or third class. The M yers Court held that Congress may\nnot limit the President\xe2\x80\x99s authority to remove any officer who is appointed by the\nPresident by and with the advice and consent o f the Senate. Id. at 159. Several\nyears later, the Court narrowed this holding significantly, ruling that the C onstitu\xc2\xad\ntion only prohibits removal restrictions with respect to \xe2\x80\x9cpurely executive\xe2\x80\x9d officers.\nSee H um phrey's E xecutor v. U nited States, 295 U.S. 602, 627-28 (1935). The\nCourt held that, as to offices that are essentially quasi-legislative or quasi-judicial\nin nature, Congress may limit the President\xe2\x80\x99s removal authority. Some years later,\nthe Court addressed the related question of whether, in the absence o f an express\nstatutory provision, a removal restriction could be inferred. The Court ruled that\nsuch restrictions could be inferred with respect to quasi-legislative or quasi-judicial\noffices \xe2\x80\x9cwhose tasks require absolute freedom from Executive interference.\xe2\x80\x9d W ie\xc2\xad\nn er v. U nited States, 357 U.S. 349, 353 (1958). Following this framework, we\nopined that Parole Commissioners \xe2\x80\x94 whose term is fixed by a statute that is silent\non the topic of removal \xe2\x80\x94 are purely executive officers; therefore, inferring a limit\non the President\xe2\x80\x99s authority to remove them would violate the Constitution. As\nsuch, we concluded that Parole Commissioners must be removable at will.\nIn the interim, the Supreme Court has abandoned this mode o f analysis. Spe\xc2\xad\ncifically, M orrison v. Olson, 487 U.S. 654 (1988), determined that Congress could\nplace an express \xe2\x80\x9cfor cause\xe2\x80\x9d limitation on the President\xe2\x80\x99s removal authority even\nwith respect to \xe2\x80\x9cpurely executive\xe2\x80\x9d officers. See id. at 689-93. The Court refused\nsimply to apply the category-driven approach that H u m ph rey\xe2\x80\x99s E xecutor had been\ntaken to institute. Instead, the Court recast its prior references to the category o f an\noffice\xe2\x80\x99s functions as merely a shorthand for the animating concern in such cases \xe2\x80\x94\nwhether a given removal restriction violates separation of powers principles. Spe\xc2\xad\n169\n\n\x0cOpinions o f th e Office o f L egal C ounsel\n\ncifically, under the C ourt\xe2\x80\x99s current form ulation, \xe2\x80\x9cthe real question is whether the\nremoval restrictions are o f such a nature that they impede the President\xe2\x80\x99s ability to\nperform his constitutional duty, and the functions o f the officials in question must\nbe analyzed in that light.\xe2\x80\x9d M orrison, 487 U.S. at 691.\nIn devising this formulation, the Court recharacterized the references to func\xc2\xad\ntional categories in its earlier opinions as simply a means o f examining whether the\noffice and its functions were of such a nature as to require that they be vested in an\nofficer who is subject to a high degree of presidential control; that is, one who may\nbe rem oved at will. Id. at 687-91. It is important to note that, under the M orrison\nform ulation, the nature o f an office and its functions remain essential factors in\ndeterm ining w hether a removal restriction violates separation of powers; however,\nthe category with which those functions might be labeled does not end the inquiry.\nThe statute establishing the Parole Commission is silent regarding removal, see\n18 U.S.C. \xc2\xa7 4 2 0 2 , and therefore w e must determ ine whether it is appropriate to\ninfer such a restriction. M orrison, however, spoke directly only to the constitu\xc2\xad\ntionality o f an explicit removal restriction. It therefore only expressly rejected the\nlabel-driven approach in that context. Nevertheless, the W iener Court stated that\nits holding followed logically from H u m ph rey\xe2\x80\x99s E xecutor. See 357 U.S. at 356.\nWe view M orrison, then, as doing aw ay with the label-driven analysis in the con\xc2\xad\ntext o f inferred removal restrictions as well.\nIn M orrison , the Court looked to what the earlier decisions were trying to ac\xc2\xad\ncomplish by inquiring into the nature of the office and functions at issue to resolve\nwhether, and when, Congress may expressly limit the President\xe2\x80\x99s removal author\xc2\xad\nity. Taking a sim ilar approach in the context of implied removal restrictions, we\nare persuaded that W iener turned on the C ourt\xe2\x80\x99s determination that the Com m is\xc2\xad\nsion could not have effectively carried out its functions unless the Commission was\n\xe2\x80\x98\xe2\x80\x9c entirely free from the control or coercive influence, direct or indirect,\xe2\x80\x99 o f either\nthe Executive or the Congress.\xe2\x80\x9d W iener, 357 U.S. at 355-56 (quoting H u m ph rey\xe2\x80\x99s\nE xecutor, 295 U.S. at 629).\nTherefore, our inquiry regarding inferred removal restrictions will focus on\nwhether it is necessary in order for the entity in question to be able to perform its\nstatutory mission that it be \xe2\x80\x9cfree from the control or coercive influence, direct or\nindirect, o f either the Executive or C ongress.\xe2\x80\x9d Only where this level o f independ\xc2\xad\nence is necessary will we infer that Congress intended the President\xe2\x80\x99s removal\nauthority to be lim ited.4 Here again, the type o f function being performed is a\nrelevant consideration, but it is not dispositive.5\n4 W e h ave no d o u b i that, ev en after M o rriso n , courts w ill continue to infer rem oval restrictions with\nrespect to o ffices c h arg ed p rim arily with the a d ju d icatio n o f d isputes b etw een private individuals. H ow ever,\nit is less c le a r w h at o th e r circum stances, if a n y , w ould ju stify inferring a lim itation on the P resid en t's re\xc2\xad\nm oval au th o rity\n5 If it is d ete rm in e d that an im plied rem oval lim itation is necessary, we m ust then exam ine w hether such a\nlim itatio n w o u ld v io late the d o c tn n e of sep aratio n o f pow ers by \xe2\x80\x9c im p e d in g ] the P resident\xe2\x80\x99s ability to p e r\xc2\xad\nform his co n stitu tio n al d u ty .\xe2\x80\x9d M orrison, 487 U .S . at 691.\n\n170\n\n\x0cC onstitutionality o f Legislation E xtending the Term s o f O ffice o f U nited States P arole C om m issioners\n\nUnder this standard, we have no trouble adhering to our 1981 opinion that the\nPresident may remove Parole Commissioners at will. Because the power to re\xc2\xad\nmove is incident to the power to appoint, we begin with the presumption that the\nPresident has authority to remove Parole Commissioners at will. See, e.g., R e\xc2\xad\nm oval o f M em bers o f the A dvisory Council on H istoric P reservation , 6 Op. O.L.C.\n180, 188 (1982); 1 Annals of Cong. 496 (Joseph Gales ed., 1789) (statement of\nJames Madison) (\xe2\x80\x9cthe power of removal result[s] by a natural implication from the\npower of appointing\xe2\x80\x9d). Our 1981 opinion analyzed the Parole C om m ission\xe2\x80\x99s func\xc2\xad\ntions and concluded that the Commission is purely executive in nature. This is an\nimportant indication, though not determinative, that it is not necessary to the\nComm ission\xe2\x80\x99s function that it have the level of independence that \xe2\x80\x9cfor cause\xe2\x80\x9d re\xc2\xad\nmoval protection entails. Our earlier opinion also searched the legislative history\nand examined the statutory language and concluded that \xe2\x80\x9c[n ]e ith e r. . . disclose[d]\na Congressional intent to limit the President\xe2\x80\x99s implied power to remove the C om \xc2\xad\nmissioners.\xe2\x80\x9d Parole Commissioner Removal M emorandum at 2.6 We see no rea\xc2\xad\nson to revisit any of these conclusions.\nW e find com pelling the history of the discharge of the parole function.\n\xe2\x80\x9c[P]arole originated as a form of clemency; to mitigate unusually harsh sentences,\nor to reward prison inmates for their exemplary behavior while incarcerated.\xe2\x80\x9d S.\nRep. No. 94-369, at 15 (1975), reprin ted in 1976 U.S.C.C.A.N. 335, 336. C lem \xc2\xad\nency, like the correctional functions it at least partially supports, has long been and\ntypically remains a power exercised by or under the direction of a politically ac\xc2\xad\ncountable executive official. Cf. U.S. Const, art. II, \xc2\xa7 2, cl. 1 (vesting the pardon\npower in the President).\nUntil the relatively recent establishment of the Parole Commission, the function\nof administering the federal parole system was discharged by the Board o f Parole.\nThis board was a component of the Department of Justice, and its members were\nclearly removable at will. See Act of Sept. 30, 1950, ch. 1115, 64 Stat. 1085, 1085\n(\xe2\x80\x9cThere is hereby created in the Department of Justice a Board of Parole . . . .\xe2\x80\x9d);\nAct of June 25, 1948, ch. 645, 62 Stat. 683, 854 (containing no provision of a fixed\nor abbreviated term). The legislative history contains no indication that the threat\nof removal at will or other political pressures played any role in the operations o f\nthe Board o f Parole or motivated the establishm ent of the Parole Commission. See\nS. Rep. No. 94-369, at 15, reprin ted in 1976 U.S.C.C.A.N. at 336. In the face o f\nthis long-standing practice o f entrusting the adm inistration of the federal parole\nsystem to officers who are removable at will, we cannot say that a limitation on the\nPresident\xe2\x80\x99s authority to remove Parole Commissioners is necessary to allow the\nCommission effectively to carry out its statutorily prescribed functions.\n\n6\nThe opinion ex p ressly considered and persuasively rejected argum ents that either the provision creating\nthe C om m ission as an independent agency in the D epartm ent o f Justice or establishing fixed term s fo r the\nC om m issioners could sup p o rt an inference o f a restriction on the P resid en t's rem oval authority Id at 1-4.\n\n171\n\n\x0cO pinions o f th e O ffice o f L egal C ounsel\n\nIII. Conclusion\nLegislation extending the term o f an officer who serves at will does not violate\nthe A ppointm ents Clause. As stated, we adhere to our opinion that the President\nmay rem ove Parole Commissioners at will. Consequently, Pub. L. No. 101-650,\n\xc2\xa7 316, 104 Stat. at 5115, which extends the terms o f office of certain United States\nParole C om m issioners, does not violate the Appointments Clause, and we recede\nfrom our earlier opinion (Reappointm ent o f U nited S tates P arole C om m issioners ,\n11 Op. O.L.C. 135 (1987)) to the extent that it contradicts this conclusion.\n\nW ALTER DELLINGER\nA ssistan t A ttorney G eneral\nOffice o f L egal Counsel\n\n172\n\n\x0c"


b'Constitutionality of Nuclear Regulatory Commission\xe2\x80\x99s\nImposition of Civil Penalties on the Air Force\nIn the absence of Presidential intervention to review its decision, the Nuclear Regulatory\nCommission may constitutionally issue an order imposing civil penalties on the\nDepartment of the Air Force under the Atomic Energy Act of 1954.\nAlthough Congress may not deprive the President of an opportunity to review a decision\nmade by an agency subject to his supervisory authority, the President is not constitu\xc2\xad\ntionally required to review all such decisions before they may be lawfully implemented.\nBecause the Atomic Energy Act gives the Attorney General exclusive authonty and discre\xc2\xad\ntion to enforce civil penalties imposed under the Act, an interagency dispute regarding\nthe collection of such penalties would properly be resolved within the executive branch\nrather than through interagency litigation.\n\nJune 8, 1989\nM em orandum O pinio n fo r t h e G en er a l C o un sel\nD epa r tm en t o f th e A ir F o rce\n\nThis memorandum responds to your request for an opinion of this\nOffice on the constitutionality of the United States Nuclear Regulatory\nCommission\xe2\x80\x99s (\xe2\x80\x9cNRC\xe2\x80\x9d) imposition of civil penalties on the Department of\nthe Air Force under the Atomic Energy Act of 1954, as amended (\xe2\x80\x9cAct\xe2\x80\x9d),\n42 U.S.C. \xc2\xa7\xc2\xa7 2011-2296. In particular, you have asked whether the\nConstitution permits the NRC: 1) to issue an order imposing civil penal\xc2\xad\nties against the Air Force without a prior opportunity for the Air Force to\ncontest the fine within the executive branch; or 2) to collect civil penal\xc2\xad\nties against the Air Force by litigation in court.\nWe believe, as a general matter, that the President has authority to\nreview and revise decisions of his subordinates in the executive branch.\nAlthough the President cannot be deprived of the opportunity to review\na decision subject to his supervisory authority, this does not mean that\nthe President is constitutionally compelled to review every decision\nbefore it is implemented. After reviewing the questions you have posed,\nwe conclude that, because the President has expressed no interest in\nreviewing either personally or through a delegate the NRC\xe2\x80\x99s issuance of\norders, we need not reach whether, and to what extent, the President\xe2\x80\x99s\nsupervisory authority extends to orders issued by the NRC.1On the other\nhand, we agree with you that there would be significant constitutional\n131\n\n\x0cproblems had Congress directed the NRC to collect the penalties it orders\nby suing the Air Force in federal court. The Act, however, permits the\nAttorney General to determine whether, and to what extent, civil penal\xc2\xad\nties should be collected. Thus, any issue regarding your liability for civil\npenalties may be resolved by an executive branch agency and without\nresort to interagency litigation.\nI. Background\n\nThe Atomic Energy Act of 1954, 42 U.S.C. \xc2\xa7\xc2\xa7 2011-2296, as amended by\nthe Energy Reorganization Act of 1974, 42 U.S.C. \xc2\xa7\xc2\xa7 5801-5851, estab\xc2\xad\nlished the Nuclear Regulatory Commission (\xe2\x80\x9cNRC\xe2\x80\x9d). The agency is\ncharged with broad licensing and regulatory authority over the develop\xc2\xad\nment and utilization of atomic energy, the construction and maintenance\nof facilities, and the uses and storage of nuclear material. 42 U.S.C. \xc2\xa7\xc2\xa7\n2061-2064 (ownership and acquisition of production facilities); 42 U.S.C.\n\xc2\xa7\xc2\xa7 2071-2078, 2091-2099, and 2111-2114 (regulation of nuclear materials\nand byproducts); 42 U.S.C. \xc2\xa7\xc2\xa7 2131-2140 Oicensing); 42 U.S.C. \xc2\xa7\xc2\xa7 22012213 (general powers and duties). The Act provides that Commissioners\nare appointed by the President, with the advice and consent of the\nSenate, and \xe2\x80\x9cmay be removed by the President for inefficiency, neglect of\nduty, or malfeasance in office.\xe2\x80\x9d 42 U.S.C. \xc2\xa7 5841(a), (e).\nThe Act invests the NRC with broad authority to regulate uses of\nnuclear power, with certain exceptions for military purposes expressly\nprovided for in the Act.2Specifically, the NRC has the authority to license\nnuclear facilities and material, id. \xc2\xa7\xc2\xa7 2133, 2073, including those of gov\xc2\xad\nernment agencies, id. \xc2\xa7 2014(s); to issue rules and regulations, id. \xc2\xa7 2201;\nand to inspect and investigate alleged violations of its rules, id.\nIn 1969, Congress passed amendments to the Atomic Energy Act autho\xc2\xad\nrizing the NRC to levy civil monetary penalties for violations of its regu\xc2\xad\nlations. The addition of monetary penalties was intended to give the NRC\nadditional flexibility to deal with infractions of regulations that did not\nrequire the harsher sanctions of revocation or suspension of a license or\n1The Air Force does not argue that all actions by the NRC are unconstitutional because of the NRC\xe2\x80\x99s\nstatus as an agency with some statutory independence We thus do not address the constitutional status\nof the NRC or the constitutionality of its actions generally.\n2 The President is authorized by the Act to require the Commission to deliver nuclear material and to\nauthorize its use for military purposes:\nThe President from time to time may direct the Commission (1) to deliver such quantities\nof special nuclear material or atomic weapons to the Department of Defense for such use as\nhe deems necessary in the interest o f national defense, or (2) to authorize the Department of\nDefense to manufacture, produce, or acquire any atomic weapon or utilization facility for\nmilitary purposes: Provided, however, That such authorization shall not extend to the pro\xc2\xad\nduction of special nuclear material other than that incidental to the operation of such uti\xc2\xad\nlization facilities\n42 U S C. \xc2\xa7 2121(b). A license is not required for any actions authorized under section 2121. See 42 U.S C.\n\xc2\xa7 2140(b).\n\n132\n\n\x0ca cease and desist order. See S. Rep. No. 553, 91st Cong., 1st Sess. 9-12\n(1969), reprinted in 1969 U.S.C.C.A.N. 1607, 1615-19.3\nSection 2282(a) provides:\nAny person who (1) violates any licensing provision ... or\nany rule, regulation, or order issued thereunder, or any\nterm, condition, or limitation of any license issued thereun\xc2\xad\nder, or (2) commits any violation for which a license may be\nrevoked under section 2236 of this title, shall be subject to\na civil penalty, to be imposed by the Commission, of not to\nexceed $100,000 for each such violation. If any violation is\na continuing one, each day of such violation shall constitute\na separate violation for the purpose of computing the\napplicable civil penalty. The Commission shall have the\npower to compromise, mitigate or remit such penalties.\n42 U.S.C. \xc2\xa7 2282(a). The term \xe2\x80\x9cperson\xe2\x80\x9d is defined specifically to include\ngovernment agencies:\nThe term \xe2\x80\x9cperson\xe2\x80\x9d means (1) any individual, corporation,\npartnership, firm, association, trust, estate, public or pri\xc2\xad\nvate institution, group, Government agency other than the\nCommission ....\n42 U.S.C. \xc2\xa7 2014(s). \xe2\x80\x9cGovernment Agency\xe2\x80\x9d includes any executive depart\xc2\xad\nment of the United States. 42 U.S.C. \xc2\xa7 2014(1).\nWhenever the Commission has reason to believe that a violation sub\xc2\xad\nject to a civil penalty has occurred, the Commission is required to notify\nthe person, identify the alleged violation, advise the person of the pro\xc2\xad\nposed penalty, and provide an opportunity to demonstrate why the penal\xc2\xad\nty should not be imposed. 42 U.S.C. \xc2\xa7 2282(b). The Commission has for\xc2\xad\nmally adopted procedures for the imposition of civil penalties. See 10\nC.F.R. \xc2\xa7 2.205; 10 C.F.R. pt. 2, app. C. (1988). Under these provisions, the\nperson charged with a civil penalty will receive a written notice of viola\xc2\xad\ntion specifying the date and nature of the alleged violation, the particular\nprovision, rule, or regulation allegedly violated, and the amount of the\nproposed penalty. 10 C.F.R. \xc2\xa7 2.2.01(a). Payment of the penalty or a writ\xc2\xad\nten answer either denying the violation or showing extenuating circum\xc2\xad\nstances is required within twenty days. Id. \xc2\xa7 2.201(a), (b). The NRC may,\nat this time, issue an order dismissing, mitigating or imposing a civil\npenalty. The person charged may then request a hearing at which the\n3 In 1980, the maximum penalty for each violation was raised from $5000 to $100,000 to provide the\nNRC with escalated enforcement sanctions and a greater prospect of deterrence Pub L No. 96-295, 94\nStat. 780, 787 (1980).\n\n133\n\n\x0cmerits of the alleged violation and the applicability of the rules and regu\xc2\xad\nlations can be contested. Id. \xc2\xa7 2.205(c), (d). After the hearing, the Com\xc2\xad\nmission will issue an order dismissing, mitigating, or imposing the civil\npenalty. Id. \xc2\xa7 2.205(f).4\nThe Commission, however, does not itself have authority directly to\ncollect the amount of the penalty assessed if the violator fails to pay the\nfine upon issuance of a final order. Instead, the Act permits the NRC to\nrefer the matter to the Attorney General for collection. Section 2282(c)\nprovides:\nOn the request of the Commission, the Attorney General is\nauthorized to institute a civil action to collect a penalty\nimposed pursuant to this section. The Attorney General shall\nhave the exclusive power to compromise, mitigate, or remit\nsuch civil penalties as are referred to him for collection.\n42 U.S.C. \xc2\xa7 2282(c). The Senate Report accompanying the civil penalty\nprovisions makes clear that the Attorney General is authorized, but not\nrequired, to institute a civil action to collect the penalty:\nWhile the bill would confer on the Commission the power\nof compromise, mitigation, and remission of penalties, such\npower would reside exclusively with the Attorney General\nunder the bill with respect to such civil penalties as are\nreferred by the AEC to him for collection.\nS. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969\nU.S.C.C.A.N. 1607, 1618. In 1980, the NRC requested authority to collect\ncivil penalties directly, but Congress refused to change the law.5\n4 The NRC assesses civil penalties based in part on the seventy of the violation. See 10 C.FR \xc2\xa7 2 205\nand 10 C.F.R pt. 2, app C (1988). Violations for which civil penalties can be imposed are broken down\ninto five seventy levels, and in determining the amount of the violation, the Commission will take into\naccount such factors as whether the violation was identified by the licensee, whether it was reported by\nthe licensee, the corrective action taken, and whether the violation or similar violations have been recurnng. See 10 C.F.R. pt. 2, app C.\n6See S Rep. No. 176, 96th Cong , 1st Sess. 24 (1980), reprinted in 1980 U.S.C C.A N. 2216, 2239\nThe Commission also requested that it be given the authority to administratively impose\nand collect penalties without the opportunity for de novo trial before a Federal Distnct\nCourt. According to the Comnussion, the present system of imposing and collecting a civil\npenalty through action of the Attorney General in Federal district court denies the\nCommission full control of its enforcement action, and raises the possibility that the\nAttorney General will settle the action for a lower penalty than that sought by NRC. The\nCommission recognizes, however, that the present enforcement approach, including the\nopportunity for de novo trial, is typical for Federal agencies Further, the Commission has\nfailed to identify any instances in which the present approach has resulted in a significant\nweakening of the enforcement action proposed by NRC\nThe committee believes that there is considerable value in retaining the existing approach ....\nAccordingly, the committee recommends that the present statutory mechanism for imposing\nand correcting civil penalties be retamed\n\n134\n\n\x0cUnder its section 2282 authority to impose civil penalties, the NRC sent\nthe Air Force a Notice of Violation and Proposed Imposition of Civil\nPenalties of $102,500 on June 17, 1988. The alleged violation arose from\nthe accidental spill in 1986 of radioactive materials from a barrel stored\non Wright-Patterson Air Force Base, Ohio. The penalty was proposed\nbecause of the alleged failure of the Air Force personnel to adequately\nreport the spill to the NRC.\nThe Air Force replied to the alleged violation with a written response\non July 15, 1988. Air Force officials had an extended meeting with the\nNRC at which they contested the underlying factual basis for the charges.\nThe principal factual disagreement is whether and to what extent certain\nAir Force personnel were involved in a deliberate or willful failure to\nreport the spill. The Air Force has not participated in internal adminis\xc2\xad\ntrative hearings before the NRC, but has instead raised constitutional\ndefenses, asserting both that the NRC cannot constitutionally issue a\nfinal order assessing a penalty without prior review by the President and\nthat in any event the penalty cannot be enforced by the Attorney General\nthrough litigation. The NRC has agreed to hold its final order in abeyance\npending our resolution of these issues.\nII. Imposition of Civil Penalties Against Federal Agencies\n\nThe Air Force contends that the Constitution does not permit the NRC\nunilaterally to impose civil penalties against a member of the executive\nbranch because both the NRC and the Air Force are \xe2\x80\x9cpart of one of the\nthree fundamental Branches of the Government under our Constitution.\xe2\x80\x9d\nLetter for Douglas W. Kmiec, Assistant Attorney General, Office of Legal\nCounsel, from Ann N. Foreman, General Counsel, Department of the Air\nForce at 3 (Mar. 17, 1989) (\xe2\x80\x9cForeman Letter\xe2\x80\x9d). Underlying this contention\nis the Air Force\xe2\x80\x99s view that \xe2\x80\x9c[t]he President is the final arbiter of a singu\xc2\xad\nlar executive branch policy and of how any dispute between agencies will\nbe resolved.\xe2\x80\x9d Id. The Air Force concludes from this premise that the NRC\ncannot constitutionally issue a final order against the Air Force until the\nPresident resolves any differences between the two agencies.\nAlthough we agree as a general matter with the premise underlying the\nAir Force\xe2\x80\x99s argument \xe2\x80\x94 namely that the President must have an oppor\xc2\xad\ntunity to review disputes between members of the executive branch \xe2\x80\x94\nwe disagree with its conclusion that the President is affirmatively com\xc2\xad\npelled to resolve this dispute between the NRC and itself. In our view, the\nPresident may permit the NRC to carry out a decision taken pursuant to\nits statutory duties despite the objection of another agency.\nThe President\xe2\x80\x99s authority to review and revise the decisions of his\nsubordinates derives from his authority under Article II of the\nConstitution, which states that \xe2\x80\x9c[t]he executive Power shall be vested in\na President of the United States of America.\xe2\x80\x9d U.S. Const, art. II, \xc2\xa7 1, cl.\n135\n\n\x0c1. Moreover, the President has the constitutional responsibility to \xe2\x80\x9ctake\nCare that the Laws be faithfully executed.\xe2\x80\x9d Id. \xc2\xa7 3. It is well-established\nthat these provisions generally authorize the President to supervise and\nguide executive officers in the administration of their statutory duties.\nSee Myers v. United States, 272 U.S. 52, 135 (1926) (The President has\nthe authority to \xe2\x80\x9csupervise and guide\xe2\x80\x9d executive officers in \xe2\x80\x9ctheir con\xc2\xad\nstruction of the statutes under which they act in order to secure that\nunitary and uniform execution of the laws which Article II of the\nConstitution evidently contemplated in vesting general executive power\nin the President alone.\xe2\x80\x9d).\nAlthough the President m ay take the opportunity to review decisions\npursuant to his Article II authority, Article II does not mandate that he\nundertake such review. Thus, the President\xe2\x80\x99s subordinates may make\ndecisions pursuant to the statutory duties that Congress has entrusted to\ntheir respective offices even in the absence of the President\xe2\x80\x99s actual\nreview of those decisions so long as the President is not precluded from\nthe opportunity to review these decisions. This understanding of the\nPresident\xe2\x80\x99s supervisory authority comports with the practical reality of\ndecisionmaking within the executive branch: day-to-day decisions are\noften made by the President\xe2\x80\x99s subordinates although the President does\nnot review these decisions.\nThe President\xe2\x80\x99s authority to review disputes between his subordinates\nis simply an aspect of his general supervisory authority over the execu\xc2\xad\ntive branch. For instance, when two of his subordinates dispute the\nmeaning of a statute, the President may decide to review the matter. The\nConstitution, however, does not mandate that he resolve disputes either\npersonally or through his subordinates.6 If it is the President\xe2\x80\x99s choice not\nto review the dispute, then the agencies may act in accordance with their\nrespective statutory authorities. Thus, it is not inconsistent with the\nConstitution for an executive agency to impose a penalty on another\n6 The Air Force quotes testimony from former Assistant Attorney General for Land and Natural\nResources F. Henry Habicht II that \xe2\x80\x9cExecutive Branch agencies may not sue one another, nor may one\nagency be ordered by another to comply with an administrative order without the prior opportunity to\ncontest the order within the Executive BranchEnvironm ental Compliance by Federal Agencies\nHearings Before the Subcomm on Oversight and Investigations o f the House Comm, on Energy and\nCommerce, 100th Cong., 1st Sess. 210 (1987) (statement of F Henry Habicht). We believe, however, that\n\nMr Habicht\xe2\x80\x99s testimony is consistent with our view that, while the President must have the opportuni\xc2\xad\nty to review decisions subject to his supervisory authonty, the Constitution does not compel him to\nreview such decisions. The Air Force cannot contend that it has had no opportunity to contest the\nNRC\xe2\x80\x99s order within the executive branch It could have brought this dispute to the attention of the\nPresident at any time after it received notice from the NRC on June 17, 1988. Moreover, Mr. Habicht\xe2\x80\x99s\ntestimony occurred in the context of an oversight hearing relating to the Resource Conservation and\nRecovery Act (\xe2\x80\x9cRCRA\xe2\x80\x9d), a statute that perm its the EPA directly to impose civil penalties on other agen\xc2\xad\ncies. 42 U.S.C. \xc2\xa7\xc2\xa7 6927(c), 6928(c). The President has specified an internal dispute resolution mecha\xc2\xad\nnism for agency disagreements with the EPA See Exec Order No. 12088, 3 C FR. 243 (1978) (authonzing the Director of the Office of Management and Budget to consider unresolved conflicts between\nagencies at the request of the EPA Administrator).\n\n136\n\n\x0cexecutive agency pursuant to its statutory authority so long as the\nPresident is not deprived of his opportunity to review the matter.7\nA number of Executive Orders illustrate that the President does estab\xc2\xad\nlish formal dispute resolution mechanisms for executive branch dis\xc2\xad\nagreements when he deems them necessary. For certain executive\nbranch disputes, for example, the President has directly asserted his\nauthority by ordering such agencies to submit the dispute to the Attorney\nGeneral.8 The President has also directed that agencies in conflict with\nthe Equal Employment Opportunity Commission on a question of em\xc2\xad\nployment standards refer their dispute to the Executive Office of the\nPresident.9 Finally, in a context similar to this one, the President has\nissued an Executive Order requiring that certain disputes relating to pol\xc2\xad\nlution controls enforceable by the EPA shall be resolved by the Director\nof OMB.10 This last order requires the Administrator of EPA to \xe2\x80\x9cmake\nevery effort to resolve conflicts regarding\xe2\x80\x9d agency violations, and pro\xc2\xad\nvides that the Director of OMB shall adjudicate if the Administrator is\nunsuccessful. Exec. Order No. 12088, \xc2\xa7 1-602, 3 C.F.R. 244 (1978). The\nOrder is significant both in its anticipation that the EPA may enforce envi\xc2\xad\nronmental laws against other federal agencies and in its prescribing a\nmethod of resolving interagency disputes should they arise.\nThe President, however, has issued no such order concerning the\nNRC\xe2\x80\x99s issuance of civil penalties against other agencies. Nor has the\n7 The Air Force also contends that the Office of Management and Budget \xe2\x80\x9cexpressed the\nAdministration\xe2\x80\x99s view\xe2\x80\x9d that several proposed bills \xe2\x80\x9craise[dj senous constitutional problems\xe2\x80\x9d because\nthey provided \xe2\x80\x9cfor one agency or office of the federal government to issue administrative orders and take\njudicial enforcement action against another." Foreman Letter at 3. We would first note that the\nAdministration positions on which the Air Force relies were merely drafts that are necessarily summary\nand tentative in nature Moreover, two of the draft statements are wholly unrelated to the issue of\nenforcement orders by one agency against another. See draft Floor Statement on H.R. 3781 (objecting to\nthe requirement that the Department of Energy provide certain documents to Congress prior to any\nclearance by the President or Secretary of Energy); draft Floor Statement on H R. 3782 (objecting to the\nproposed creation of a Special Environmental Counsel independent of the President and the Department\nof Justice). The draft Floor Statement on H R 3785 did relate to the President\xe2\x80\x99s authonty to resolve dis\xc2\xad\nputes within the executive branch, but that bill contained objectionable provisions that would have\nappeared to restnct the President\xe2\x80\x99s authority to establish a dispute resolution mechanism between EPA\nand other agencies This draft floor statement may thus be understood as seeking to preserve the\nPresident\xe2\x80\x99s opportunity to review Finally, the Air Force cites a letter by Assistant Attorney General John\nR Bolton, Office of Legislative and Intergovernmental Affairs, to Chairman John D Dingell of the House\nSubcommittee on Oversight and Investigations, December 20,1985 (\xe2\x80\x9cBolton Letter\xe2\x80\x9d), for the proposition\nthat administrative orders to other executive agencies raise senous constitutional objections. We read\nthe Bolton letter, however, simply as a discussion of the justiciability of suits between executive agen\xc2\xad\ncies, a subject we discuss below\n8 Exec Order No 12146, \xc2\xa7 1-402, 3 C.F.R. 409 (1979). The mandatory provision of this Executive Order,\nby its terms, applies only to \xe2\x80\x9cExecutive agencies whose heads serve at the pleasure of the President.\xe2\x80\x9d Cf\nid \xc2\xa7 1401 (stating that \xe2\x80\x9ceach agency is encouraged\xe2\x80\x9d to submit a dispute to the Attorney General when\nthere is an interagency dispute over junsdiction or a particular activity).\n9See Exec Order No 12067, \xc2\xa7 1-307 (1978)\n10See Exec Order No. 12088, \xc2\xa7 1-603, 3 C.F.R 244 (1978) (requmng the Director of OMB to \xe2\x80\x9cconsider\nunresolved conflicts at the request of the Administrator\xe2\x80\x9d). This Order further provides that \xe2\x80\x9c[tjhese con\xc2\xad\nflict resolution procedures are in addition to, not in lieu of, other procedures, including sanctions, for the\nenforcement of applicable pollution control standards.\xe2\x80\x9d Id \xc2\xa7 1-604\n\n137\n\n\x0cPresident been deprived of an opportunity to review the dispute. The\nstatute expressly provides that the regulated agency be given a reason\xc2\xad\nable opportunity to respond to the Commission whenever the latter\nintends to impose a civil penalty. 42 U.S.C. \xc2\xa7 2282(b). The NRC sent\nnotice to the Air Force of its intent to impose a civil penalty on June 17,\n1988. Thus, the statutory scheme provides, and the Air Force has\nreceived, sufficient opportunity to raise this dispute with the President.\nMoreover, before this penalty is collected from an unwilling agency, the\nNRC must refer the civil penalty order to the Attorney General for col\xc2\xad\nlection.11 As we discuss below, this procedure may itself serve as a dis\xc2\xad\npute resolution mechanism under the control of one of the President\xe2\x80\x99s\nsubordinates.\nAccordingly, we conclude that because the President has neither\nexpressed any interest in, nor been precluded from, reviewing the NRC\xe2\x80\x99s\norders imposing civil liability on executive branch agencies, there is no\nconstitutional requirement that the NRC submit its decision to issue an\norder imposing civil fines on the Air Force to prior Presidential review.12\nIII. Lawsuits Between Federal Agencies\n\nThe Air Force also contends that a lawsuit between the NRC and the\nAir Force would not be justiciable. It argues that because the lawsuit\nwould be between two members of the executive branch, there would be\nno Article III \xe2\x80\x9ccase or controversy,\xe2\x80\x9d and therefore the federal courts could\nnot adjudicate the dispute. We agree that substantial constitutional diffi\xc2\xad\nculties are raised by interagency lawsuits, but we believe that the Act per\xc2\xad\nmits resolution of your dispute with the NRC over any civil penalty with\xc2\xad\nout resort to such litigation.\nThe Office of Legal Counsel has long held the view that lawsuits\nbetween two federal agencies are not generally justiciable. Proposed Tax\nAssessment Against the United States Postal Service, 1 Op. O.L.C. 79\n(1977). In this opinion, we stated that a dispute between the Postal\nService and the IRS over the service\xe2\x80\x99s tax liability could not be enter\xc2\xad\ntained in court. We relied on the principle that the federal courts may only\nadjudicate actual cases and controversies. Muskrat v. United States, 219\nU.S. 346 (1911). A lawsuit involving the same person as plaintiff and\ndefendant does not constitute an actual controversy. Lord v. Veazie, 49\nU.S. (8 How.) 251 (1850); Cleveland v. Chamberlain, 66 U.S. (1 Black) 419\n(1862). This principle applies to lawsuits between members of the exec\xc2\xad\nutive branch. United States v. Shell Oil Co., 605 F. Supp. 1064, 1082 (D.\n11See 10 C FR. \xc2\xa7 2 205(h).\n12The Air Force, of course, may urge the President to take the opportunity to review any issue relating\nto the proposed civil penalty. Assuming the President expressed an interest in such review, the question\nas to the extent of the President\xe2\x80\x99s authority to review and supervise the NRC would then be raised\n\n138\n\n\x0cColo. 1985); United States v. Easement and Right of Way over Certain\nLand in Bedford County, Tenn., 204 F. Supp. 837, 839 (E.D. Tenn. 1962);\nDefense Supplies Corp. v. United States Lines Co., 148 F.2d 311, 312-13\n(2d. Cir.), cert, denied, 326 U.S. 746 (1945).\nThe reasoning of our 1977 opinion applied to so-called \xe2\x80\x9cindependent\nagencies.\xe2\x80\x9d The opinion described the Postal Service as having \xe2\x80\x9ca degree\nof independence from the executive branch\xe2\x80\x9d and as \xe2\x80\x9cremoved from direct\npolitical control.\xe2\x80\x9d 1 Op. O.L.C. at 83. Our position is also consistent with\nthe Supreme Court\xe2\x80\x99s most recent analysis concerning officials who do not\nserve at the pleasure of the President. Morrison v. Olson, 487 U.S. 654\n(1988), indicates that despite the removal restrictions, such agencies\nexercise executive power and are members of the executive branch. Id.\nat 690 n.28, 691 (\xe2\x80\x9c[T]he real question is whether the removal restrictions\n[including those at issue in Humphrey\xe2\x80\x99s Executor v. United States, 295\nU.S. 602 (1935) and Wiener v. United States, 357 U.S. 349 (1958)] are of\nsuch a nature that they impede the President\xe2\x80\x99s ability to perform his con\xc2\xad\nstitutional duty.\xe2\x80\x9d).\nWe have recognized that the Supreme Court has decided several cases\nthat appeared to be between two members of the executive branch. 1 Op.\nO.L.C. at 80. On further examination, however, we have concluded that\nsuch suits are only nominally between two agencies: one of the executive\nagencies is not the \xe2\x80\x9creal part[y] in interest\xe2\x80\x9d but simply a stand-in for pri\xc2\xad\nvate interests. Id. at 81. The Supreme Court first made the \xe2\x80\x9creal party in\ninterest\xe2\x80\x9d distinction in United States v. ICC , 337 U.S. 426 (1949), where\nthe United States, in its role as a shipper, contended that charges imposed\non it by railroads violated a statute. The United States unsuccessfully\nfiled a complaint against the railroads before the Interstate Commerce\nCommission (\xe2\x80\x9cICC\xe2\x80\x9d), and then brought an action in court to set aside the\nCommission\xe2\x80\x99s order. Pursuant to statute, the United States was made a\ndefendant in its action to set aside the ICC order. Responding to the argu\xc2\xad\nment that the suit was nor\\justiciable because the United States was suing\nitself, the Court stated:\nThere is much argument with citation of many cases to\nestablish the long-recognized general principle that no per\xc2\xad\nson may sue himself. Properly understood the general prin\xc2\xad\nciple is sound, for courts only adjudicate justiciable con\xc2\xad\ntroversies.... Thus a suit filed by John Smith against John\nSmith might present no case or controversy which courts\ncould determine. But one person named John Smith might\nhave a justiciable controversy with another John Smith.\nThis illustrates that courts must look behind names that\nsymbolize the parties to determine whether a justiciable\ncase or controversy is presented.\n139\n\n\x0c337 U.S. at 430. The Court then applied this standard to the dispute\nbetween the United States and the railroads:\nWhile this case is United States v. United States, et at., it\ninvolves controversies of a type which are traditionally jus\xc2\xad\nticiable. The basic question is whether railroads have ille\xc2\xad\ngally exacted sums of money from the United States.... To\ncollect the alleged illegal exactions from the railroads the\nUnited States instituted proceedings before the Interstate\nCommerce Commission.... This suit therefore is a step in\nproceedings to settle who is legally entitled to sums of\nmoney, the Government or the railroads.... Consequently,\nthe established principle that a person cannot create a justi\xc2\xad\nciable controversy against himself has no application here.\nId. at 430-31. Thus, the Court concluded that the lawsuit could be brought\nbecause the railroads, and not the United States, were in essence the real\nparties in interest as defendants. Id. at 432.\nWe believe that this reasoning explains other cases in which the\nSupreme Court has appeared to decide a case between two members of\nthe executive branch. In these cases, one of the members of the executive\nbranch was not the real party in interest, and therefore, the suit was, for\npurposes of justiciability analysis, actually between a private party and a\ngovernment agency. In Secretary of Agriculture v. United States, 347 U.S.\n645, 647 (1954), the Court was at pains to point out that the Secretary of\nAgriculture was appearing in the litigation in opposition to the ICC \xe2\x80\x9con\nbehalf of the affected agricultural interests,\xe2\x80\x9d pursuant to specific statuto\xc2\xad\nry authorization. Bureau of Alcohol, Tobacco and Firearms v. Federal\nLabor Relations Auth., 464 U.S. 89 (1983), involved a dispute between the\nNational Treasury Employees Union and the Bureau over reimbursement\nof a union representative for travel expenses. In United States ex rel.\nChapman v. Federal Power Comm\xe2\x80\x99n, 345 U.S. 153 (1953), the dispute was\nactually between the Secretary of Interior and a private power company.\nSee Ishverlal Madanlal & Co. v. SS Vishva Mangal, 358 E Supp. 386\n(S.D.N.Y. 1973).13 Other cases where a private party was the real party in\ninterest include Udall v. Federal Power Comm\xe2\x80\x99n , 387 U.S. 428 (1967) (dis\xc2\xad\npute between nonfederal power companies and Secretary of Interior over\nthe award of construction licenses); Federal Maritime Bd. v. Isbrandtsen,\nl3ln UnitedSlates v. Marine Bancorp , Inc., 418 U.S. 602 (1974) and United States v. Connecticut Nat\xe2\x80\x99l\n418 U.S. 656 (1974), the United States had brought civil antitrust actions under section 7 of the\nClayton Act challenging the proposed merger of banks in each of the respective cases The Comptroller\nof the Currency intervened in both actions as a party defendant pursuant to 12 U.S.C. \xc2\xa7 1828(c)(7)(D).\nSee Marine, 418 U.S. at 614 The Supreme Court did not address whether the intervention of the\nComptroller General denied the Court federal jurisdiction The presence of private parties as the real\nparties-in-interest, however, distinguishes those cases from mere interagency litigation.\n\nBank,\n\n140\n\n\x0c356 U.S. 481,483 n.2 (1958) (dispute between shipper, joined by the United\nStates, against Federal Maritime Board over shipping rates approved by\nthe Maritime Board); Interstate Commerce Comm\xe2\x80\x99n v. Jersey City, 322\nU.S. 503 (1944) (dispute\' between municipality and Interstate Commerce\nCommission, with U.S. Price Administrator intervening on behalf of\nmunicipality); Mitchell v. United States, 313 U.S. 80 (1941) (dispute\nbetween private citizen, supported by a brief from the United States, and\nthe ICC concerning dismissal of a discrimination complaint).\nFinally, in United States v. Nixon, 418 U.S. 683 (1974), the Court found\njusticiable a lawsuit between the special prosecutor and President Nixon\nover the validity of a subpoena issued to acquire evidence in a pending\ncriminal case. The Court concluded that \xe2\x80\x9c[i]n light of the uniqueness of\nthe setting in which the conflict arises, the fact that both parties are offi\xc2\xad\ncers of the executive branch cannot be viewed as a barrier to justiciabil\xc2\xad\nity.\xe2\x80\x9d Id. at 697. The Court noted that the President had been named as an\nunindicted coconspirator by the grand jury, id. at 687, and that the ques\xc2\xad\ntion of the validity of a subpoena to acquire evidence from a person in a\npending criminal case was \xe2\x80\x9ctraditionally justiciable.\xe2\x80\x9d Id. at 697. In view of\nthese special circumstances, we have understood the decision as based\non the Court\xe2\x80\x99s view that the real party in interest was President Nixon in\nhis private capacity.\nApplication of these principles strongly suggests that the dispute\nbetween the NRC and the Air Force is not justiciable. Both the NRC and\nthe Air Force would be the real parties in interest in the lawsuit. The NRC\nseeks enforcement of its civil penalties against violators of its regula\xc2\xad\ntions. See 10 C.F.R. \xc2\xa7 2.205; 10 C.F.R. pt. 2, app. C. The civil penalty would\nbe imposed directly on the Air Force, which would be required to make\nthe payment out of its appropriated funds. No private party has a direct\ninterest in the lawsuit.\nWe believe, however, that this constitutional issue need not arise,\nbecause the framework of the Act clearly permits this dispute over civil\npenalties to be resolved within the executive branch, and without\nrecourse to the judiciary. The Attorney General has the exclusive author\xc2\xad\nity to collect civil penalties for the NRC, 42 U.S.C. \xc2\xa7 2282(c), and there\xc2\xad\nfore may exercise his discretion to resolve the dispute without resort to\nlitigation.\nUnder 42 U.S.C. \xc2\xa7 2282(a), the NRC is given the authority to impose civil\npenalties, and to \xe2\x80\x9ccompromise, mitigate, or remit such penalties.\xe2\x80\x9d The\nNRC, however, cannot enforce its decision to impose civil penalties, nor is\nthere a procedure for judicial review of the decision. Rather, if the defen\xc2\xad\ndant disagrees with the NRC\xe2\x80\x99s decision, the civil penalties may be\nenforced or collected only by the Attorney General. Section 2282(c) pro\xc2\xad\nvides that \xe2\x80\x9cthe Attorney General is authorized to institute a civil action to\ncollect\xe2\x80\x9d the civil penalty, thus indicating that he is not required to do so.\n42 U.S.C. \xc2\xa7 2282(c) (emphasis added). The section also expressly provides\n141\n\n\x0cthat \xe2\x80\x9c[t]he Attorney General shall have the exclusive power to compro\xc2\xad\nmise, mitigate, or remit such civil penalties as are referred to him for col\xc2\xad\nlection.\xe2\x80\x9d Id. (emphasis added). Thus, it is clear that the Attorney General\nhas complete control concerning enforcement of the civil penalty.\nThe committee report accompanying the bill that was adopted by\nCongress as the Atomic Energy Act Amendments confirms the breadth of\nthe Attorney General\xe2\x80\x99s discretion with respect to enforcement:\nThe Attorney General would be authorized, but not\nrequired, to institute a civil action in a court of competent\njurisdiction to collect the penalty. While the bill would con\xc2\xad\nfer on the Commission the power of compromise, mitiga\xc2\xad\ntion, and remission of penalties, such power would reside\nexclusively with the Attorney General under the bill with\nrespect to such civil penalties as are referred by the\n[Commission] to him for collection.\nThe committee also has accepted the recommendation ...\nthat the legislation provide discretion to the Department,\nafter the matter has been referred to it by the Commission,\nto determine whether a civil action should be instituted,\nsince that Department would have basic responsibility for\nthat action.\nS. Rep. No. 553, 91st Cong., 1st Sess. 11 (1969), reprinted in 1969\nU.S.C.C.A.N. 1607, 1618-19.\nFinally, it is also evident that the Attorney General\xe2\x80\x99s discretion extends\nto the underlying merits of the lawsuit. Because there is no judicial\nreview of the NRC\xe2\x80\x99s initial decision to order payment of civil penalties,\nthe collection suit itself is the vehicle for judicial review. Moreover, both\nthe legislative history of the Act14 and case law15indicate that the judicial\n14In 1969 when the civil penalty provisions were enacted, the General Counsel for the Atomic Energy\nCommission testified before the Joint Committee on Atomic Energy that violations of the provisions\nwere to receive de novo review. See AEC Omnibus Legislation 1969: Hearings Before the Joint Comm\non Atomic Energy , 91st C ong, 1st Sess. 29-30 (1969) (statement of Joseph F Hennessey, General Counsel\nfor AEC) That testimony provided as follows\nSection c. [42 U SC . 2282(c)] deals with the responsibility of the Attorney General. If after\nthe Commission determines that a penalty should be imposed, the licensee fails to pay, the\nm atter is referred to the Attorney General. He will determine whether a civil action for col\xc2\xad\nlection in Federal district court should be instituted. He is given exclusive authority to com\xc2\xad\npromise, mitigate, or remit the civil penalty after the matter has been referred by the AEC.\nUnder these provisions, an alleged violator is guaranteed an opportunity for a full hearing\non the merits in Federal district court before any civil penalty may be collected from him.\nId Mr Hennessey further noted that, \xe2\x80\x9c[a]s we understand it, no agency has been given this type of\nContinued\n\n142\n\n\x0creview takes the form of a trial de novo. Because the trial is not limited\nin scope, the Attorney General\xe2\x80\x99s prosecutorial discretion should be simi\xc2\xad\nlarly plenary.\nIt is therefore clear that the Attorney General may exercise his discre\xc2\xad\ntion to ensure that no lawsuits are filed by the NRC against other agen\xc2\xad\ncies of the executive branch. If the Attorney General and the President\ndetermine that no civil penalties should be collected, the Attorney\nGeneral may simply refrain from bringing a lawsuit. If the Attorney\nGeneral determines that certain civil penalties are appropriate, however,\nthe Attorney General would still not bring a lawsuit because of the con\xc2\xad\nstitutional problems noted above. Rather, procedures internal to the\nexecutive branch are adequate to resolve the dispute through the deter\xc2\xad\nmination that the Air Force is liable.16\nWe thus conclude that a lawsuit between two agencies of the executive\nbranch would involve substantial constitutional problems, but that the\nstatutory scheme permits resolution of the interagency dispute within the\nexecutive branch.\nIV. Conclusion\nWe conclude that, unless the President seeks to review the NRC\xe2\x80\x99s deci\xc2\xad\nsion, the NRC may issue an order imposing civil fines on the Air Force.\nWe further conclude that any issue regarding the Air Force\xe2\x80\x99s liability for\nsuch fines may be resolved within the executive branch and without\nresort to litigation.\nWILLIAM P. BARR\nAssistant Attorney GeneralOffice of Legal Counsel\n\n14(. .continued)\nauthonty [to collect its own fines] because this would tend to cut off a judicial trial de novo of a \xe2\x80\x98penal\xc2\xad\nty\xe2\x80\x99 action.\xe2\x80\x9d Id. at 38\n16See United States Nuclear Regulator Comm\xe2\x80\x99n v Radiation Technology, Inc , 519 F. Supp. 1266\n(D.N.J. 1981). To determine the proper scope of judicial review, the district court examined the legisla\xc2\xad\ntive history of NRC\xe2\x80\x99s penalty provisions and analogous civil penalty provisions of other regulatory agen\xc2\xad\ncies to conclude that Congress intended NRC\xe2\x80\x99s collection actions to receive de novo review. Id at 127586. Radiation Technology is the only reported case interpreting the NRC\xe2\x80\x99s civil penalty provisions.\n10 The Attorney General has authonty to resolve conclusively any legal question on which he and the\nAir Force disagree See Exec. Order No. 12146, 3 C.F R 409 (1979) (mandating that the Attorney General\nresolve legal disputes between agencies whose heads serve at the pleasure of the President) Any remain\xc2\xad\ning disagreement between the Attorney General and the Air Force could be submitted to the President\nfor his resolution.\n\n143\n\n\x0c'


b'Applicability of the Davis-Bacon Act to the Veterans\nAdministration\xe2\x80\x99s Lease of Medical Facilities\nT he A ttorney General has authority to review legal determ inations m ade by the Secretary of L abor\nunder the D avis-B acon Act.\nA lease o f a privately ow ned facility is not a \xe2\x80\x9ccontract for construction o f a public building\xe2\x80\x9d w ithin\nthe m eaning o f the D avis-B acon Act. The m ere fact that a lessor undertakes construction in o rder\nto fulfill its obligations is insufficient to convert a lease into such a contract.\n\nJune 6,1988\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nV e t e r a n s A d m in is t r a t io n\n\nThis memorandum responds to the Veterans Administration\xe2\x80\x99s December 16,\n1987, request for an opinion on the applicability of the Davis-Bacon Act (\xe2\x80\x9cthe\nAct\xe2\x80\x9d) to the lease of a privately owned facility by the Veterans Administration.\nI. Background\nThe Veterans Administration (\xe2\x80\x9cVA\xe2\x80\x9d) is authorized to lease space that the Ad\xc2\xad\nministrator of Veterans Affairs considers necessary for use as a medical facility.\n38 U.S.C. \xc2\xa7 5003. Pursuant to that authority, the VA entered into a lease to ob\xc2\xad\ntain space for an outpatient clinic in Crown Point, Indiana. On June 10, 1986, and\nagain on July 25, 1986, the President of the Building and Construction Trades\nDepartment, AFL-CIO, requested a ruling from the Department of Labor\xe2\x80\x99s Wage\nand Hour Administrator that the Davis-Bacon Act\xe2\x80\x94which applies to certain\n\xe2\x80\x9ccontract[s] . . . for construction . . . of public buildings\xe2\x80\x9d\xe2\x80\x94 be applied retroac\xc2\xad\ntively to the Crown Point lease.\nIn a decision dated August 15, 1986, the Administrator advised the VA that\nthe Davis-Bacon Act was applicable to the Crown Point lease, because in this in\xc2\xad\nstance the lessor had chosen to construct a new facility to lease to the VA, and\n1\nIn soliciting offers for the lease, the VA did not specify that it was seeking either a new or a preexisting facil\xc2\xad\nity, and indeed the VA\xe2\x80\x99s Solicitation for Offers contemplated that an offeror with a suitable existing building could\nbe awarded the lease E g \xc2\xa7 16 (\xe2\x80\x9cPreference will be given to offerors o f space in buildings on, or formally listed as\neligible for inclusion in, the National Register of Historic Places and to histoncaJly significant buildings in historic\ndistricts listed in the National Register.\xe2\x80\x9d); \xc2\xa7 33 (\xe2\x80\x9cBuildings which have incurable functional obsolescence . may\nbe rejected by the Contracting Officer.\xe2\x80\x9d), \xc2\xa7 97 (dealing with asbestos in \xe2\x80\x9cexisting buildings\xe2\x80\x9d offered for lease) As\nstated by the Veterans Administration\nThe V A \xe2\x80\x99s decision to lease space for the Crown Point clinic was based on an economic cost analysis\nperformed pnor to the issuance o f the [solicitation for offers]. This analysis is used to determine the\nleast costly method o f providing the necessary space to accommodate veterans\xe2\x80\x99 medical care needs\nHere, leasing proved to be the least costly alternative .. When this [solicitation] is prepared, the type\n\n89\n\n\x0ctherefore \xe2\x80\x9cthe nature of the agreement [is] a contract for construction.\xe2\x80\x9d Id. at 1.1\nThe Administrator reaffirmed that ruling on November 13, 1986. The Depart\xc2\xad\nment of Labor\xe2\x80\x99s Wage Appeals Board upheld the Administrator on June 26,1987,\nstating that even though \xe2\x80\x9cthe principal purpose of the VA contract is to lease a\nfacility,\xe2\x80\x9d \xe2\x80\x9c [t]he lease aspect o f the negotiations between the VA and the devel\xc2\xad\noper does not in any way change the construction nature of the contract.\xe2\x80\x9d In re\nApplicability o f Davis-Bacon A ct to Lease o f Space For Outpatient Clinic, Crown\nPoint, Indiana, WAB Case No. 86-33, at 6 ,4 (June 26, 1987).\nThe VA thereafter expressed its disagreement with that interpretation of the\nDavis-Bacon Act, and announced its intention to seek the opinion of the Attor\xc2\xad\nney General as to the applicability of the Davis-Bacon Act to a lease by the VA,\npursuant to 38 U.S.C. \xc2\xa7 5003, o f privately owned and privately constructed fa\xc2\xad\ncilities.2\n\n1 ( .. . continued)\no f space that will be offered, i.e , space already in existence, presently under construction, or in a fa\xc2\xad\ncility that will be constructed, cannot be anticipated.\nLetter for Charles J. Cooper, Assistant A ttorney General, Office o f Legal Counsel, from Donald L lvers, General\nCounsel, V eterans Administration at 7 (Dec. 16,1987) (\xe2\x80\x9clvers Letter\xe2\x80\x9d). Although the lessor o f the Crown Point fa\xc2\xad\ncility chose to construct a new facility, the lessor was clearly not required to do so Legal and equitable title will\nremain in the lessor throughout the term o f th e lease, and the lessor is free to sell the building or to lease it to some\xc2\xad\none else at the conclusion o f the lease. Lease payments began \xe2\x80\x9cafter the VA [took] occupancy o f the leased premises,\xe2\x80\x9d\nand will continue \xe2\x80\x9c on a monthly basis in arrears \xe2\x80\x9d Id at 6.\nThe Department o f Labor suggests that there was \xe2\x80\x9c a lump sum payment by the VA to the contractor of\n$440,128.16 for . . construction\xe2\x80\x9d of certain \xe2\x80\x9c Schedule B\xe2\x80\x9d items. Letter for Charles J Cooper, Assistant Attorney\nG eneral, Office o f Legal Counsel, from G eorge R. Salem, Solicitor of Labor at 8 (Apr. 22, 1988) (\xe2\x80\x9cSalem Letter\xe2\x80\x9d).\nThis assertion would appear to conflict w ith the VA\xe2\x80\x99s statement that \xe2\x80\x9cFederal funds [were] not provided for the\npurposes o f construction\xe2\x80\x9d at Crown Point. Ivers Letter at 6.\nW hether any or all o f these \xe2\x80\x9cSchedule B\xe2\x80\x9d items constitute construction is a factual issue which was neither\nrelied upon by the Department o f Labor\xe2\x80\x99s W age Appeals Board in its Crown Point decision, nor directly presented\nto us for resolution There is nothing precluding lease payments, or portions o f lease payments, from being paid as\na lump sum, rather than over time. Indeed, under the VA\xe2\x80\x99s solicitation for offers, offerors were required to provide\nalternate proposals, calculating the \xe2\x80\x9cSchedule B\xe2\x80\x9d items both as \xe2\x80\x9c lump sum payment not to be included in the rental\nrate,\xe2\x80\x9d and as a rental rate \xe2\x80\x9cwhich included th e cost o f these items.\xe2\x80\x9d The VA reserved to itself the right to select the\n\xe2\x80\x9c most favorable\xe2\x80\x9d option. Solicitation for O ffers, \xc2\xa7 10. Moreover, we note that even under the regulations purport\xc2\xad\ning to cover \xe2\x80\x9c nonconstruction contracts\xe2\x80\x9d\xe2\x80\x94 and even assuming that those regulations apply to leases\xe2\x80\x94 there is an\nexception to coverage for construction work that \xe2\x80\x9cis incidental to the furnishing of supplies, equipment, or services\xe2\x80\x9d\no r that is \xe2\x80\x9cso merged with nonconstruction work\xe2\x80\x9d as to be incapable o f being \xe2\x80\x9csegregated\xe2\x80\x9d as a separate contrac\xc2\xad\ntual requirement. 48 C.F.R \xc2\xa7 22.402(b). S e e also infra note 12.\nThus, while we do not here attempt to resolve this factual issue, considerable evidence exists to support the\nV A \xe2\x80\x99s position that the payments contemplated for \xe2\x80\x9cSchedule B \xe2\x80\x9d items were not for construction. In any event, it is\nclear that even if the Department of Labor\xe2\x80\x99s factual contention regarding the nature o f the \xe2\x80\x9cSchedule B\xe2\x80\x9d items is\ncorrect, application o f Davis-Bacon requirements would be limited under the statute to the payments (or some part\nthereof) attributable to the \xe2\x80\x9cSchedule B\xe2\x80\x9d items.\n2 Both the General Services Administration and the Department of Defense have submitted written statements\nsupporting the V A \xe2\x80\x99s interpretation of the Davis-Bacon Act. Letter for Charles J. Cooper, Assistant Attorney Gen\xc2\xad\neral, Office o f Legal Counsel, from Clyde C . Pearce, Jr , General Counsel, General Services Administration (Dec\n31, 1987); Letter for Charles J. Cooper, Assistant Attorney General, Office of Legal Counsel, from Kathleen A.\nBuck, General Counsel, Department of D efense (May 5, 1988) (\xe2\x80\x9cAny expansion of the Davis-Bacon Act beyond\nits express language should be done by C ongress, not by agency interpretation.\xe2\x80\x9d)\n\n90\n\n\x0cII. Discussion\nA. Jurisdiction\nBefore turning to the substantive issues presented by the VA\xe2\x80\x99s request, we ad\xc2\xad\ndress a threshold jurisdictional matter: whether the Attorney General, and hence\nthis Office, has authority to render an opinion on the proper interpretation of the\nDavis-Bacon Act at the request of the VA. The Department of Labor, by letter\ndated April 22, 1988, has suggested that Executive Order No. 12146, 3 C.F.R.\n409 (1979), governs the issue of the Attorney General\xe2\x80\x99s authority to give an opin\xc2\xad\nion in this matter, and that that Executive Order, by its terms, prohibits the At\xc2\xad\ntorney General from responding to the VA\xe2\x80\x99s request.3\nAs an initial matter, the Executive Order is not the sole basis for the Attorney\nGeneral\xe2\x80\x99s jurisdiction over this matter. Congress has authorized the Veterans Ad\xc2\xad\nministration to \xe2\x80\x9crequire the opinion of the Attorney General on any question of\nlaw arising in the administration of the Veterans Administration.\xe2\x80\x9d 38 U.S.C.\n\xc2\xa7 2 1 1(b). The applicability vel non of the Davis-Bacon Act to leases entered into\nby the VA is clearly a \xe2\x80\x9cquestion of law arising in the administration of the Vet\xc2\xad\nerans Administration\xe2\x80\x9d; among other things, the interpretation given to the DavisBacon Act may determine the required terms of certain contracts entered into by\nthe Administrator.4 Accordingly, the VA has statutory authority under section\n211 to request an opinion from the Attorney General, and the Attorney General\nhas statutory authority to respond to that request.5\nMoreover, contrary to the Department of Labor\xe2\x80\x99s suggestion, Executive Or\xc2\xad\nder No. 12146 also authorizes the Attorney General to issue an opinion in this\nmatter. The Executive Order provides in part:\nSection 1-401. Whenever two or more Executive agencies are un\xc2\xad\nable to resolve a legal dispute between them, including the ques\xc2\xad\ntion of which has jurisdiction to administer a particular program\nor to regulate a particular activity, each agency is encouraged to\nsubmit the dispute to the Attorney General.\n\n3 Salem Letter at 1-6.\n4 See Application o f the Davis-Bacon Act to Urban Development Projects that Receive Partial Federal Fund\xc2\xad\ning, 11 Op. O.L.C. 92, 95 (1987) (interpretation of statute that will affect contracts entered into by department is a\nlegal question \xe2\x80\x9carising in the administration o f [the] department\'\xe2\x80\x99 within meaning of identical language contained\nin 28 U S C . \xc2\xa7512).\n5 Accord, id. at 94-95 (construing identical statutory language contained in 28 U S.C \xc2\xa7 512 to mean that the re\xc2\xad\nquesting agency \xe2\x80\x9c is entitled by law to the opinion o f the Attorney General\xe2\x80\x9d)\nThe Department of Labor seeks to distinguish the Cooper Opinion, by noting that the Attorney General ex\xc2\xad\nercised jurisdiction therein pursuant to 28 U.S.C. \xc2\xa7 512, whereas in the present instance 28 U S.C \xc2\xa7 512 has no ap\xc2\xad\nplication\xe2\x80\x94 implying that if 28 U.S.C \xc2\xa7 512 did apply, the Department would not contest the jurisdtctional issue.\nSalem Letter at 1 n. 1. The pertinent language o f 28 U S C. \xc2\xa7 512, however, is identical to the language o f 38 U.S.C.\n\xc2\xa7211, which is applicable here. The Department o f Labor does not address 38 U.S.C. \xc2\xa7 211 in the Salem Letter.\n\n91\n\n\x0cThe Department of Labor interprets section 1-401 to mean that the Attorney Gen\xc2\xad\neral may exercise jurisdiction only when the dispute is \xe2\x80\x9cvoluntarily submitted by\nthe disagreeing agencies,\xe2\x80\x9d i.e., only when both (or all) agencies involved agree\nto submit the dispute to the Attorney General. Because in this case the Secretary\nof Labor \xe2\x80\x9cdoes not submit this matter for resolution by the Attorney General,\xe2\x80\x9d\nthe Department urges that section 1-401 may not serve as a basis for the Attor\xc2\xad\nney General\xe2\x80\x99s jurisdiction.6\nWe believe that the Department\xe2\x80\x99s interpretation is incorrect. Section 1-401\nspecifically states that each agency is encouraged to submit any such dispute to\nthe Attorney General: there is no requirement that every agency involved in a dis\xc2\xad\npute request an opinion from the Attorney General. Thus, section 1-401 entitles\nany agency, by itself, to request the Attorney General to resolve a legal dispute\nwith another agency\xe2\x80\x94 as the VA has done here. The interpretation offered by the\nDepartment of Labor is contradicted by the plain language of the Order itself.\nFurther, that interpretation would defeat the purposes of the Order by granting\nany agency a \xe2\x80\x9cveto\xe2\x80\x9d over the Attorney General\xe2\x80\x99s section 1-401 jurisdiction,\nthereby insuring that some disputes could never be resolved within the terms of\nthe Executive Order. Nothing in the Executive Order supports such an anomalous\nresult.7\nThe Attorney General\xe2\x80\x99s statutory authority over all litigation in which a United\nStates agency is a party provides an additional basis for the exercise of jurisdic\xc2\xad\ntion here.8 As we noted in a prior opinion, in response to a similar challenge to\nthe Attorney General\xe2\x80\x99s jurisdiction:\n[Tjhe Attorney General\xe2\x80\x99s authority to give his opinion . . . is also\nconfirmed by 28 U.S.C. 516 and 5 U.S.C. 3106. The former re\xc2\xad\nserves generally to the Attorney General the conduct of all litiga\xc2\xad\ntion in which the United States, an agency, or officer thereof is a\nparty. The latter generally prohibits the head of an Executive de\xc2\xad\npartment from employing an attorney for the conduct of litigation\nin which the United States, an agency, or an employee thereof is\na party, requiring instead that the matter be referred to the De\xc2\xad\npartment of Justice. Both provisions admit of exceptions only\nwhen \xe2\x80\x9cotherwise authorized by law.\xe2\x80\x9d Although Congress has es\xc2\xad\ntablished \xe2\x80\x9ca solicitor for the Department of Labor,\xe2\x80\x9d 29 U.S.C. 555,\nthe solicitor has no general litigating authority; his authority is\nnarrowly drawn, see 29 U.S.C. 663 (representation of the Secre\xc2\xad\n6 Salem Letter at 2\n7 See also 11 Op. O L.C. at 97 (reaffirming the authonty o f the head of any executive department, acting alone\nand without obtaining the consent of any other agency that may be a party to a dispute, to request an opinion from\nthe Attorney General under 28 U S C \xc2\xa7 512). Executive O rder No 12146 \xe2\x80\x9cexpands the authority of the Attorney\nGeneral to render legal opinions beyond his statutory obligation,\xe2\x80\x9d id , further suggesting that no \xe2\x80\x9cone agency veto\xe2\x80\x9d\nprovision should be read into section 1-401.\n8 G iven the clear jurisdictional bases fo r the Attorney G eneral\xe2\x80\x99s opinion in this matter, we need not consider\nw hether section 1\xe2\x80\x94401 o f Executive Order No. 12146 provides further authority for the Attorney General to re\xc2\xad\nspond to the V A \xe2\x80\x99s request. See also 11 Op. O.L.C at 97-98\n\n92\n\n\x0ctary of Labor in occupational safety and health litigation); 29\nU.S.C. 1852(b) (litigation for the protection of migrant and sea\xc2\xad\nsonal workers); 30 U.S.C. 822 (representation of the Secretary of\nLabor in mine safety and health litigation), and nevertheless \xe2\x80\x9csub\xc2\xad\nject to the direction and control of the Attorney General.\xe2\x80\x9d Id. The\nAttorney General\xe2\x80\x99s authority to conduct litigation on behalf of the\nUnited States necessarily includes the exclusive and ultimate au\xc2\xad\nthority to determine the position of the United States on the proper\ninterpretation of statutes before the courts.9\nThus, we conclude that the Attorney General has the authority to decide the le\xc2\xad\ngal question presented by the VA.10\nB. Substantive Issues\nThe Davis-Bacon Act, at 40 U.S.C. \xc2\xa7 276a(a), provides in part:\nThe advertised specifications for every contract in excess of\n$2000, to which the United States . . . is a party, for construction,\nalteration, and/or repair. . . of public buildings or public works of\nthe United States . . . and which requires or involves the employ\xc2\xad\nment of mechanics and/or laborers shall contain a provision stat\xc2\xad\ning the minimum wages to be paid various classes of laborers and\nmechanics which shall be based upon the wages that will be de\xc2\xad\ntermined by the Secretary of Labor to be prevailing for the corre\xc2\xad\nsponding classes of laborers and mechanics employed on projects\nof a character similar to the contract work in the city, town, vil\xc2\xad\nlage . . . in which the work is to be performed . . . .\nThe language of the statute is both plain and precise. Section 276a(a) applies only\nto certain contracts to which the United States \xe2\x80\x9cis a party,\xe2\x80\x9d and that are \xe2\x80\x9cfor con\xc2\xad\n\n9 Id. at 98.\nWe note that on October 20, 1987, the AFL-CIO\xe2\x80\x99s Building and Construction Trades Department filed suit\nto compel the VA to comply with the Department of Labor\xe2\x80\x99s W age Appeals Board\xe2\x80\x99s June 26, 1987 decision B uild\xc2\xad\ning and Construction Trades Department v. Turnage, 705 F. Supp. 5 (D.D.C. 1988).\nThe Department o f Labor implicitly challenges the Attorney G eneral\xe2\x80\x99s litigating authority as a basis for ju \xc2\xad\nrisdiction here, by suggesting that the interpretation of the Davis-Bacon Act is not an issue in the pending litiga\xc2\xad\ntion. Salem Letter at 6. That suggestion is incorrect* resolution o f the conflicting interpretations o f the Davis-Ba\xc2\xad\ncon Act will clearly affect the conduct o f the litigation. For example, should we conclude that the V A \xe2\x80\x99s interpretation\nof the Davis-Bacon Act is incorrect, that decision would be binding upon the VA and the litigation would be mooted.\nSee, e g , Executive Order No 2877 (May 31, 1918).\n10 As set out above, the Attorney General is authorized to provide opinions on \xe2\x80\x9cquestions o f law\xe2\x80\x9d and to resolve\n\xe2\x80\x9clegal disputes\xe2\x80\x9d within the executive branch E.g , 38 U.S C \xc2\xa7 211, Executive Order No. 12146. How far that au\xc2\xad\nthority permits the Attorney General to resolve factual questions necessarily incident to a properly presented legal\ndispute need not be addressed here As we conceive the question posed by the VA, our analysis does not turn upon\nthe particular facts surrounding the Crown Point lease; rather, our opinion is addressed to the question of DavisBacon coverage o f leases, as a matter o f statutory construction.\n\n93\n\n\x0cstruction, alteration, and/or repair . . . of public buildings.\xe2\x80\x9d The question pre\xc2\xad\nsented here is whether the lease o f a privately owned facility is a \xe2\x80\x9ccontract. . .\nfor construction . . . of [a] public building\xe2\x80\x9d within the meaning of the Act. We\nthink the plain language of section 276a(a) demonstrates that it is not.\nWe start with the well-established principle that \xe2\x80\x9c[statutory construction must\nbegin with the language employed by Congress and the assumption that the or\xc2\xad\ndinary meaning of that language accurately expresses the legislative purpose.\xe2\x80\x9d\nPark \xe2\x80\x98N Fly, Inc. v. Dollar Park and Fly, Inc., 469 U.S. 189, 194 (1985); see\nAmerican Tobacco Co. v. Patterson, 456 U.S. 63,68 (1982). Although the DavisBacon Act is a remedial statute, to be construed liberally, the carefully drawn lan\xc2\xad\nguage of section 276a(a) limits its application to \xe2\x80\x9ccontracts] . . . for construc\xc2\xad\ntion\xe2\x80\x9d; there is nothing in the language of the statute to suggest that it was meant\nto extend beyond construction contracts to leases, or to construction undertaken\nby private entities in order to enter into or fulfill a lease agreement with the gov\xc2\xad\nernm ent.11\nThat the words \xe2\x80\x9ccontract. . . for construction\xe2\x80\x9d in the Act were meant to have\ntheir plain meaning was confirmed by Attorney General Cummings, who re\xc2\xad\nviewed the legislative history o f the Davis-Bacon Act, noted that the Act was \xe2\x80\x9cre\xc2\xad\nstricted by its terms to \xe2\x80\x98construction, alteration, and/or repair\xe2\x80\x99\xe2\x80\x9d and concluded\nthat the Act applied to \xe2\x80\x9cbuildings erected with funds supplied by the Congress.\xe2\x80\x9d\n38 Op. A tt\xe2\x80\x99y Gen. 229, 233 (1935) (emphasis added). Similarly, Attorney Gen\xc2\xad\neral Rogers noted that the House Committee on Public Works characterized the\nDavis-Bacon Act as \xe2\x80\x9capplfying] to all direct Federal construction.\xe2\x80\x9d 41 Op. Att\xe2\x80\x99y\nGen. 488,495(1960).\nA contract to lease a privately owned facility, however, is not a contract to\nerect buildings \xe2\x80\x9cwith funds supplied by the Congress,\xe2\x80\x9d nor does such a lease in\xc2\xad\nvolve \xe2\x80\x9cdirect Federal construction.\xe2\x80\x9d See 38 Op. Att\xe2\x80\x99y Gen. at 233; 41 Op. Att\xe2\x80\x99y\nGen. at 495. Similarly, the fact that a private entity might undertake construction\nwith private funds in order to offer the government a lease, or to fulfill lease oblig\xc2\xad\nations, does not make the United States a party to a contract for construction, nor\ndoes that fact convert a lease into a contract for \xe2\x80\x9cdirect Federal construction.\xe2\x80\x9d 41\nOp. A tt\xe2\x80\x99y Gen. at 495. More specifically, construction undertaken by a private\nparty, with private funds, in order to satisfy government specifications and thus\nto enable the private party to fulfill its obligations as a lessor to the government,\nor to enter into a lessor relationship with the government, is not construction pur\xc2\xad\nsuant to a \xe2\x80\x9cco n tract. . . for construction\xe2\x80\x9d to which \xe2\x80\x9cthe United States . . . is a\n\n11\nCongress has not only crafted 40 U.S.C. \xc2\xa7 276a(a) to exclude leases, but has also distinguished between con\xc2\xad\nstruction contracts and leases in the statute authorizing the VA to enter into leases. Thus, 38 U.S C. \xc2\xa7 5003(a)(1)\nauthorizes the VA to \xe2\x80\x9cconstruct or alter\xe2\x80\x9d any medical facility; 38 U.S.C. \xc2\xa7 5003(a)(2) separately authorizes the VA\nto acquire such facilities \xe2\x80\x9c by lease.\xe2\x80\x9d The statute was comprehensively amended in 1979 in part \xe2\x80\x9c[t]o help assure\nthe tim ely completion o f leasing arrangements.\xe2\x80\x9d S. Rep. No. 100,96th Cong., IstSess. 58(1979),reprintedin 1979\nU.S.C.C.A.N. 169.212.\n\n94\n\n\x0cparty\xe2\x80\x9d as required by the language of the Act. Accordingly, such privately fi\xc2\xad\nnanced construction is not covered by the Act.12\nThe Comptroller General has reached the same conclusion, holding that the\nDavis-Bacon Act does not apply to the construction of buildings in accordance\nwith government specifications, for lease by the government. The Comptroller\nGeneral acknowledged the \xe2\x80\x9cbasic distinction which exists between the procure\xc2\xad\nment of a right to use improvements, even though constructed for that particular\nusage, and the actual procurement of such improvements.\xe2\x80\x9d In light o f that dis\xc2\xad\ntinction, the Comptroller General held that \xe2\x80\x9cthe mere fact that construction work\nis prerequisite to supplying a public need or use does not give such work a DavisBacon status.\xe2\x80\x9d 42 Comp. Gen. 47,49 (1962).13\nThe language of section 276a(a) also contrasts sharply with the language of\nseveral similar statutes under which leases are explicitly subject to the prevail\xc2\xad\ning wage requirements of the Davis-Bacon Act. For example, 39 U.S.C.\n\xc2\xa7 410(d)(1) states explicitly that certain \xe2\x80\x9clease agreement[s]\xe2\x80\x9d entered into by the\nPostal Service shall be covered by prevailing wages established under section\n276a.14 Similarly, 40 U.S.C. \xc2\xa7\xc2\xa7 801-851, authorizing the lease of the Union Sta\xc2\xad\ntion Building by the Federal Government, specifically provide that alterations to\nthe leased facility shall be subject to the prevailing wage requirements of the\nDavis-Bacon Act. 40 U.S.C. \xc2\xa7 808. Additionally, 42 U.S.C. \xc2\xa7 1437j also specif\xc2\xad\nically lists \xe2\x80\x9ccontract[s] f or . . . lease\xe2\x80\x9d as being subject to those requirements. That\nCongress in these statutes felt called upon to specify that leases were to be cov\xc2\xad\nered by the Davis-Bacon Act indicates not only that Congress knows how to in\xc2\xad\nsure that leases are covered by the Davis-Bacon Act in those few situations where\nit so chooses, but also that section 276a(a) by itself does not include leases.15\n\n12 We note that the various regulations cited in the Salem letter are not inconsistent with this conclusion. R eg\xc2\xad\nulations promulgated under the Davis-Bacon Act that purport to apply the Act to \xe2\x80\x9cnonconstruction contracts," 48\nC.F.R. \xc2\xa7 22.402(b), do not embrace lease agreements. Similarly, 29 C.F.R. \xc2\xa7 4.116(c)(2), promulgated under the\nService Contract Act and dealing with application of the Davis-Bacon Act to contracts for services, does not apply\nhere. 29 C F.R. \xc2\xa7 5 2(k) is merely an interpretation o f \xe2\x80\x9cpublic building\xe2\x80\x9d and \xe2\x80\x9cpublic work\xe2\x80\x9d as those phrases appear\nin the Act, and makes no reference\'to leases. Moreover, the regulation itself provides that those terms include only\nconstruction work \xe2\x80\x9cearned on directly by authonty o f or with funds o f a Federal agency.\xe2\x80\x9d It seems plain that even\nif the regulation applied to leases, the lease by the government of a privately constructed and owned facility does\nnot constitute construction work earned on directly by authonty o f a Federal agency, or with the funds of a Fed\xc2\xad\neral agency.\nIn any event, any interpretation o f these regulations as extending to leases would result in an impermissible\nconflict between the regulations and the plain language and intent o f the statute itself, for the reasons discussed\nabove. See also Chevron U S A v Natural Resources Defense Council. Inc., 467 U.S. 837, 842-43 (1984)\n13 The Department o f Labor states with respect to this decision that \xe2\x80\x9c[i]t is the position of the Department that\nthe Comptroller General lacks the authority to issue opinions regarding the proper application o f the Davis-Bacon\nAct.\xe2\x80\x9d Salem Letter at 9 n.7. The Comptroller General\xe2\x80\x99s decision, however, was issued in response to a request from\nthe Department o f Labor. Moreover, whatever the merits o f the Department\xe2\x80\x99s challenge to the Comptroller G en\xc2\xad\neral\xe2\x80\x99s authority, we refer to the Comptroller General\xe2\x80\x99s opinion not as binding precedent but rather as additional\nconfirmation for our own conclusions.\n14 When Congress amended 39 U.S.C. \xc2\xa7 410(d) to make the Davis-Bacon Act applicable to certain Postal Ser\xc2\xad\nvice leases. Congress acknowledged that that application was an extension of Davis-Bacon coverage. H.R. Rep.\nNo. 1104, 91st Cong., 2d Sess. 27 (1970), reprinted in 1970 U.S.C.C.A.N. 3649, 3675\n\n95\n\n\x0cConclusion\nIn light of the language and legislative history of the Davis-Bacon Act, the dis\xc2\xad\ntinction that Congress has drawn between leases and contracts for construction\nin numerous statutes, including the statute governing the VA\xe2\x80\x99s leasing authority,\nand several opinions o f the Attorney General and Comptroller General, we con\xc2\xad\nclude that the coverage of the Davis-Bacon Act does not extend to leases. The\nmere fact that a lessor undertakes construction in order to fulfill its lease obliga\xc2\xad\ntions is insufficient to convert a lease into a \xe2\x80\x9ccontract. . . for construction\xe2\x80\x9d within\nthe meaning of the Act.\nC h a r l e s J. C o o p e r\nAssistant Attorney General\nOffice of Legal Counsel\n\n15\nPending legislation in Congress also provides some minor support to the conclusion that the Davis-Bacon Act\ndoes not apply to leases. The \xe2\x80\x9c Davis-Bacon Amendments o f 1987\xe2\x80\x9d would amend current 40 U.S.C \xc2\xa7 276a to provide\nthat \xe2\x80\x9ca contract for construction . . . includes a contract for the lease o f a facility which is to be constructed. . . if con\xc2\xad\nstruction . .. is required for fulfillment of the contract.\xe2\x80\x9d Although it is quite true that \xe2\x80\x9c[t]he views of members of a later\nC ongress . .are entitled to little if any weight\xe2\x80\x9d in interpreting a statute, Teamsters v United States, 431 U.S. 324,354\nn.39 (1977), it is nonetheless the case that in enacting a statute. Congress is presumed to intend to change existing law,\nrather than to com m it a m eaningless act.\nThe Department o f Labor suggests that \xe2\x80\x9cthere is no indication that Congress has ever dealt with this issue\n[of coverage o f leases by the Davis-Bacon A ct],\xe2\x80\x9d because Congress has not, for example, \xe2\x80\x9cpass[ed] an amendment\nproviding that leases are not subject to the A ct.\xe2\x80\x9d Salem Letter at 10. Congress, however, need not pass such nega\xc2\xad\ntive am endm ents to make its intent clear: the very words o f the statute that Congress did choose to pass are suffi\xc2\xad\ncient to make it clear that the Act does not co v er leases\n\n96\n\n\x0c'