b"March 16, 1978\n\n78-18\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nVacancy Act (5 U.S.C. \xc2\xa7\xc2\xa7 3345-3349)\xe2\x80\x94 Law\nEnforcement Assistance Administration\n\nWe are herewith responding to your request for our analysis and comment on\nthe opinion o f the Deputy Com ptroller General to Representative Holtzman of\nFebruary 27, 1978, concerning the service of Mr. James H. Gregg as Acting\nAdministrator of the Law Enforcement Assistance Administration (LEAA) for\na period in excess of 30 days following the resignation of its Administrator on\nFebruary 25, 1977. The opinion concludes, on the basis of the so-called\nVacancy Act, 5 U .S.C . \xc2\xa7\xc2\xa7 3345-3349, that the service of Mr. Gregg as Acting\nA dm inistrator could not extend beyond 30 days, and that after that date \xe2\x80\x9c there\nwas no legal authority for anyone to perform the duties of the Administrator\nexcept the Attorney General himself, in whom by statute, all the Administra\xc2\xad\nto r\xe2\x80\x99s functions are vested .\xe2\x80\x9d\nI.\nThe sole authority cited by the opinion is the earlier opinion of the\nCom ptroller General involving the service of L. Patrick Gray as Acting\nDirector o f the Federal Bureau o f Investigation in 1973, with which opinion\nthis Department disagreed.\nIn a letter to Senator Hruska, dated March 13, 1973, then Assistant Attorney\nGeneral Robert G. Dixon (OLC) responded to the Senator\xe2\x80\x99s request concerning\nthe Com ptroller G eneral\xe2\x80\x99s opinion. Mr. Dixon took the position that the\nVacancy Act, in particular the 30-day provision of 5 U .S.C . \xc2\xa7 3348, did not\napply to every vacancy in the executive branch, including some of the offices\nwhich textually might appear to be covered by the Act. To the contrary, Mr.\nDixon opined that specific or later statutes dealing with the manner in which an\nofficer may perform the duties of a vacant office prevailed over the Vacancy\nAct. As stated in our memorandum to you o f February 27, we adhere to that\nview and note that this interpretation of the Act has been upheld by the courts in\n72\n\n\x0cUnited States v. Lucido, 373 F. Supp. 1142, 1148 (E.D. Mich. 1974) and\nUnited States v. H alm o, 386 F. Supp. 593, 595 (E.D . Wis. 1974).'\nMr. Gregg does not exercise the powers of the Administrator, pursuant to 5\nU.S.C. \xc2\xa7\xc2\xa7 3345, 3346, or 3347; hence, the 30-day provision of 5 U .S.C . \xc2\xa7 3348\nis not directly applicable. The opinion of the Court of Appeals in Williams v.\nPhillips, 482 F. (2d) 669 (D.C. Cir. 1973) referred to in our original\nmemorandum of February 27, 1978, indicates that in this situation Mr. Gregg\ncould act pursuant to the delegation of authority only for a reasonable period of\ntime and suggests that 5 U .S.C . \xc2\xa7 3348 would constitute a guideline for what\nconstitutes a reasonable period in the absence of a nomination. It is clear that\nthe court intended to foreclose other tests o f reasonableness, or to indicate that\nit would not take into account the special problems created by an impending\nreorganization of the agency involved. Incidents of this type have occurred in\nthe past. Thus, the then-Secretary o f Commerce resigned on February 1, 1967.\nAt that time President Johnson planned to combine the Departments of\nCommerce and Labor, and did not fill the vacancy in the Department o f\nCommerce until June 1967, when it became apparent that Congress would not\naccede to the consolidation of the two Departments.\nII.\nThe consequences drawn by the Deputy Comptroller General from his\nconclusion that Mr. Gregg lacks authority to perform the duties o f the\nAdministrator are on even less solid ground. He takes the position that only the\nAttorney General can now act for LEAA and that he indeed should ratify past\nactions taken by Mr. Gregg since they are subject to challenge. Those\nconclusions ignore the statutory limitations on the power of the Attorney\nGeneral with respect to the LEAA and the de fa cto officer rule.\nFirst: The basic organic provision of LEAA is 42 U .S.C . \xc2\xa7 37 1 1(a),.as\namended by \xc2\xa7 102 of the Crime Control Act of 1976 (Pub. L. No. 94-503; 90\nStat. 2407); it provides:\n(a) There is hereby established within the Department o f Justice,\nunder the general authority, policy direction, and general control o f\nthe Attorney General, a Law Enforcement Assistance Administration\n(hereafter referred to in this chapter as \xe2\x80\x9c A dm inistration\xe2\x80\x9d ) composed\nof an Administrator o f Law Enforcement Assistance and two Deputy\nAdministrators of Law Enforcement Assistance, who shall be appointed\nby the President, by and with the advice and consent o f the Senate.\n[Emphasis added.]2\n'M o re o v e r, the D ep u ty C o m p tro lle r G e n e ra l's p re sen t re lia n c e on his ipse dixit in the Gray case\nis m isplaced sin ce th at situ a tio n in v o lv ed a d e sig n a tio n o f an A ctin g D ire c to r o f the FBI u n d e r 28\nU .S .C . \xc2\xa7\xc2\xa7 5 0 9 , 5 1 0 . T h e p re sen t situ a tio n d o e s not in v o lv e a d e sig n a tio n o f an a cting head o f an\ne x ec u tiv e ag en c y but ra th e r it c o n ce rn s a d e le g atio n o f a u th o rity u n d e r 4 2 U.S.C. \xc2\xa7 3 7 5 2 , a\nd ifferen t m atter fro m a legal stan d p o in t. T h e leg al e ffe c t o f the d e le g atio n w as c o n sid e re d in o u r\nF ebruary 27 m e m o ra n d u m .\n2W e note that th e q u o ta tio n o f th is su b se c tio n in th e D ep u ty C o m p tro lle r G e n e r a l\xe2\x80\x99s o p in io n is\ne rro n e o u s; it fa ils to tak e into acc o u n t its a m e n d m en t by th e C rim e C o n tro l A ct o f 1976.\n\n73\n\n\x0cThe functions o f LEAA thus are not com pletely vested in the Attorney General,\nas are those o f most o f the components o f the Department o f Justice. See 28\nU .S.C . \xc2\xa7 509. The Attorney General is given \xe2\x80\x9c general authority, policy\ndirection, and general control.\xe2\x80\x9d As shown by the legislative history o f the 1976\nam endm ent, its purpose was to give LEAA a considerable amount of internal\nautonomy, especially with respect to specific grants.\nThe Senate report (S. Rept. No. 94-847, 94th C ong., 2d sess. (1976), p. 15),\nstates:\n. . . the responsibility for its [LEA A \xe2\x80\x99s] day-to-day operational control\nrests with the Administrator.\nAnd again:\nThe new language is added to make clear the concept that, as a\ncomponent o f the Department of Justice, the Administration falls\nwithin the overall authority, policy direction, and control of the\nAttorney G eneral, while the responsibility for its day-to-day opera\xc2\xad\ntional control rests with the Administrator, [p. 35]\nThe pertinent House report, H .R. Rept. No. 94-1155, 94th C ong., 2d sess.\n(1976), p. 30, contains the following statement o f then-Deputy Attorney G en\xc2\xad\neral Tyler:\nH.R. 9236 em bodies several clarifications and refinements that we\nbelieve would improve the efficacy o f the LEAA program. First of\nall, H.R. 9236 proposes that the Act be clarified by expressly stating\nthat LEAA is under the policy direction o f the Attorney General. The\nAct now provides that LEAA is within the Department o f Justice,\nunder the \xe2\x80\x9c general authority\xe2\x80\x9d o f the Attorney General. In accord\xc2\xad\nance with this language, the Attorney General is deemed ultimately\nresponsible for LEAA. To make this responsibility meaningful, the\nAttorney General must concern him self with policy direction. Under\nthe proposed language change, responsibility fo r the day-to-day\noperations o f LEAA and particular decisions on specific grants will\nremain with the Adm inistrator, as they are now. The proposed\nadditional language will make clear what is now assumed to be the\ncase. [Emphasis added.]\nSenator Hruska explained on the floor of the Senate that the purpose of the\nlimitation on the Attorney G eneral\xe2\x80\x99s power was\n. . . to assure that the Senate and local nature of the program would\nnot be overshadowed by the Department o f Justice programs. [122\nCong. Rec. S. 23332 (Daily E d., July 22, 1976)]\nThe authority reserved to the A dm inistrator or Deputy Administrators and\ndelegated to Mr. Gregg consists, apart from personnel actions, mainly of\n\n74\n\n\x0capproving important, com plex, and controversial grants.3 Because of the\nstatutory limitation on the Attorney G eneral\xe2\x80\x99s authority with respect to LEAA,\nthose grant functions could not be performed by anyone pending Presidential\nnomination and Senate confirmation of a new Administrator, LEAA, if Mr.\nGregg\xe2\x80\x94 as asserted by the Comptroller General\xe2\x80\x94 is incapable of performing\nthe functions delegated to him. This would be an extreme result; but it is the\nlogical conclusion o f the Deputy Comptroller G eneral\xe2\x80\x99s reading o f the Vacancy\nAct.\nSecond: The Deputy Comptroller G eneral\xe2\x80\x99s assumption that Mr. G regg\xe2\x80\x99s\npast and present actions in carrying out the functions of the Administrator are\nsubject to challenge because his tenure violates the Vacancy Act ignores the de\nfacto officer principle. That principle holds that where an officer performs the\nduty of an office under color of title, he is considered a de facto officer, and his\nacts are binding on the public, and third persons may rely on their legality.\nMcDowell v. United States, 159 U .S. 596, 601-602 (1895); United States v.\nRoyer, 268 U.S. 394 (1925); United States ex rel. D orr v. Lindsley, 148 F. (2d)\n22 (7th Cir. 1945), cert, denied, 325 U .S. 858. Indeed, the authority o f de\nfacto officers can be challenged as a rule only in special proceedings in the\nnature of quo warranto brought directly for that purpose. United States ex rel.\nDorr v. Lindsley, supra; United States v. Nussbaum, 306 F. Supp. 66, 68-69\n(N.D . Cal. 1969); M echem, Public Office and Officers, \xc2\xa7\xc2\xa7 343, 344 (1890).\nThe reason for the principle is that there should be no cloud on the validity of\npublic acts and the right o f the public to rely on them in the case of technical\nimperfections or doubts. A typical case o f a de fa cto officer is an officer who\ncontinues to serve after his term of office has expired. Waite v. Santa Cruz, 184\nU.S. 302, 322-324 (1902); United States v. Groupp, 333 F. Supp. 242,\n245-246 (D. Maine 1971), a ffd , 459 F. (2d) 178, 182, fn. 12 (1st Cir. 1972).\nThe Deputy Comptroller General concedes that Mr. Gregg validly exercised the\nfunctions of the Administrator for at least 30 days. It is our conclusion,\ntherefore, that under the de fa cto officer principle, Mr. G regg\xe2\x80\x99s actions will\ncontinue to bind third parties until his right to perform the delegated functions\n\n3A . A u th o rity re serv ed fo r A d m in istra to r o r D e p u ty A d m in istra to rs.\n1. S ig n T rac k II d isc re tio n a ry g ra n ts, i.e., g ra n ts in v o lv in g S ta te s in o n e re g io n o f the\nc o u n try , if:\na. C o st is $ 3 0 0 ,0 0 0 o r m ore;\nb. P ro ject is o f a c o n tro v e rsia l n atu re;\nc . P ro ject is a c o n stru c tio n p ro ject;\nd . A p p ro a c h has n o t b e en te ste d o r d e m o n stra ted e lse w h e re .\n2. S ig n T rac k I d isc re tio n a ry g ra n ts, i.e., in v o lv e m o re th an o n e re g io n o r h ave n atio n al\nim pact.\n3. S ig n P u b lic S a fe ty O ffic e rs \xe2\x80\x99 B en e fits A ct a w ard s. A lso m a k e fin al ag en c y d e c isio n on\nP S O B c la im s.\n4 . A p p ro v e p e rso n n el a ctio n s fo r G S -1 4 an d G S -1 5 .\n5. M ak e fin al a g e n c y d e cisio n o n c o m p lia n ce an d a d ju d ic ato ry h e a rin g s in c lu d in g c iv il\nrig h ts.\n\n75\n\n\x0chas been adversely determined in proceedings specifically brought for that\npurpose.4\nFor the reasons stated above, we disagree with the legal positions taken by\nthe Deputy Com ptroller General in his opinion. Nevertheless, we believe the\nonly satisfactory resolution o f the uncertain status o f Mr. G regg\xe2\x80\x99s authority is\nfor the President to submit a nomination to fill the position of Administrator\neven though the position may well be abolished with the proposed reorganiza\xc2\xad\ntion of LEAA.\nJohn M . H arm on\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n4W e m ay ad d th a t th e de facto o ffic e r ru le is not an a n tiq u a ted d o c trin e , bu t h as b e en applied\nfreq u e n tly in c o n n e c tio n w ith te c h n ic a l v io la tio n s in th e c o m p o sitio n o f d ra ft b o a rd s. S ee Groupp,\n\nsupra.\n\n\x0c"


b'The President\xe2\x80\x99s Authority to Force\nthe Shah to Return to Iran\nT h e S h ah can n o t be ex trad ited to Iran, since th e U n ited S tates has no ex tra d itio n tre a ty\nw ith Iran; h o w e v e r, \xc2\xa7 \xc2\xa7 241(a)(7) an d 212(a)(27) o f th e Im m ig ratio n and N a tio n a lity A ct\n(IN A ) w o u ld p erm it the A tto rn e y G e n e ra l to d e p o rt th e S hah if his p resen c e in this\nc o u n try w e re d eterm in ed to be preju d icial to th e public interest.\nO n its face, \xc2\xa7 243(a) o f th e IN A ap p ears to p erm it th e A tto rn e y G e n e ra l to fo rce the\nS hah, upon d e p o rta tio n , to re tu rn to Iran; h o w e v e r, \xc2\xa7 243(h) o f th e IN A an d app licab le\nprin cip les o f in tern atio n al law w o u ld p re c lu d e th e A tto rn e y G e n e ra l\xe2\x80\x99s fo rcin g a n y o n e\nto re tu rn to a c o u n try w h e re he o r she w o u ld be su b ject to political p ersec u tio n , as the\nS h ah w o u ld be if d e p o rte d to Iran.\n\nNovem ber 23, 1979\nM E M O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L\nA m ong the questions that have arisen in informal conversations\nduring recent days is the issue w hether the President has the authority\nto repatriate the deposed Shah o f Iran. U nder the decided cases there is\ndoubt about the President\xe2\x80\x99s legal authority to com pel the Shah to\nreturn to Iran.\nT he Shah cannot be extradited to Iran. T he President cannot order\nany person extradited unless a treaty or statute authorizes him to do so.\n\xe2\x80\x9c[T]he pow er to provide for extradition . . . is not confided to the\nExecutive in the absence o f treaty or legislative provision.\xe2\x80\x9d Valentine v.\nUnited States ex rel. Neidecker, 299 U.S. 5, 8 (1936).1 T he United States\nhas no extradition treaty with Iran, see 18 U.S.C. \xc2\xa73181 note, and the\napplicable statute authorizes extradition only when \xe2\x80\x9c there is a treaty or\nconvention for extradition between the United States and [a] foreign\ngovernm ent.\xe2\x80\x9d 18 U.S.C. \xc2\xa73184.2\n1Valentine involved an effort to extradite American citizens to a foreign country, but for several\nreasons the case should be read to limit efforts to extradite any person. First, the language and\nreasoning o f the case are almost uniform ly broad enough to apply to all extraditions. Second, so far as\nw e are aw are, no low er court has ev er read Valentine to hold that the President has g reater pow er to\nextradite aliens than he does to extradite citizens. See. e.g., Argento v. Horn, 241 F.2d 258, 259 (6th Cir.\n1957). T h ird , the Valentine C ourt rested its holding on "th e fundam ental consideration that the\nC onstitution creates no executive prerogative to dispose o f the liberty o f the individual. Proceedings\nagainst him must be authorized by law ." Id. at 9. It is now clear, although it may not have been at the\ntime o f Valentine, that aliens as well as citizens are deprived o f their "individual liberty\xe2\x80\x9d \xe2\x80\x94at least for\npurposes o f the D ue Process C lause\xe2\x80\x94w hen they are forced to leave the U nited States. See. e.g., Wong\nYang Sung v. McGrath. 339 U.S. 33, 49-50 (1950).\n2Even if Valentine permits the President to extradite an alien w ithout affirm ative authority from a\ntreaty o r statute, see note 1 supra, this statute, by authorizing extradition only to nations w ith w hom\nthe United States has a treaty, arguably denies the President the p o w er to extradite in all o th e r cases.\n\n149\n\n\x0cT he President can have the Shah deported and forced to return to\nIran. Section 241(a)(7) o f the Im m igration and Nationality A ct, refer\xc2\xad\nring to \xc2\xa7212(a)(27), provides that \xe2\x80\x9c [a]ny alien in the United States . . .\nshall, upon the order o f the A ttorney G eneral, be deported who . . . is\nengaged . . . in any . . . activities w hich w ould be prejudicial to the\npublic interest, or endanger the welfare, safety, or security o f the\nUnited States.\xe2\x80\x9d 8 U.S.C. \xc2\xa7\xc2\xa7 1251(a)(7), 1182(a)(27). It is unclear w hether\nthe Shah\xe2\x80\x99s merely being in the United States, and accepting medical\ncare, am ounts to an \xe2\x80\x9cactivity\xe2\x80\x9d within \xc2\xa7\xc2\xa7 241(a)(7) and 212(a)(27). A l\xc2\xad\nthough the issue is not free from doubt, we believe that the better view,\nadopted by previous opinions o f this Office, is that presence alone can\nconstitute an \xe2\x80\x9cactivity\xe2\x80\x9d under these sections. By causing the lives of\nA m erican hostages to be threatened, the Shah\xe2\x80\x99s presence probably is\n\xe2\x80\x9cprejudicial to the public interest\xe2\x80\x9d if indeed it does not \xe2\x80\x9cendanger the\nwelfare [or] safety . . . o f the United States.\xe2\x80\x9d In addition, this Office\nhas previously expressed the view that serious harm to the N ation\xe2\x80\x99s\nconduct o f foreign affairs constitutes prejudice to the public interest\nwithin the meaning o f these provisions.3 Thus \xc2\xa7 \xc2\xa7 241(a)(7) and\n212(a)(27) permit the A ttorney G eneral to deport the Shah.\nIf the Shah is deported, \xc2\xa7 243(a) o f the A ct, 8 U.S.C. \xc2\xa7 1253(a),\nappears on its face to em pow er the A ttorney G eneral to force him to\nreturn to Iran. Section 243(a) provides that a deported alien is to be\nsent to a country he designates, \xe2\x80\x9c unless the A ttorney General, in his\ndiscretion, concludes that deportation to such country would be preju\xc2\xad\ndicial to the interests o f the United States.\xe2\x80\x9d If the A ttorney General\nbelieved that allowing the Shah to leave the United States for a nation\nother than Iran would endanger the lives o f Am erican hostages or\nharm Am erican foreign policy, he could exercise his discretion to reject\nthe Shah\xe2\x80\x99s designation.4 If an alien\xe2\x80\x99s designation is not observed, \xe2\x80\x9cde\xc2\xad\nportation o f such alien shall be directed to any country o f w hich such\nalien is a subject, national, or citizen if such country is willing to accept\nhim into its territory.\xe2\x80\x9d \xc2\xa7 243(a), 8 U.S.C. \xc2\xa7 1253(a).5\nSection 243(h) o f the Im m igration and N ationality Act, how ever,\nprovides that\nT he A ttorney G eneral is authorized to w ithhold deporta\xc2\xad\ntion o f any alien within the United States to any country\nin w hich in his opinion the alien w ould be subject to\n3 Specifically, in 1977 this O ffice concluded that the A tto rn ey G eneral had the pow er to exclude\ntrade representatives o f the illegal R hodesian governm ent on the grounds that their activities w ould\nadversely affect A m erican foreign policy interests and that even allow ing them to enter the country\nw ould violate o u r obligations under a S ecu rity Council R esolution.\n4 See o u r interpretation o f parallel language\xe2\x80\x94 \xe2\x80\x9c prejudicial to the public interest"\xe2\x80\x94in \xc2\xa7\xc2\xa7 241(a)(7)\nand 212(a)(27), w hich authorize deportation.\n5 If the Shah has been stripped o f his Iranian citizenship, and is no longer an Iranian national,\n\xc2\xa7 243(a) still gives the A tto rn ey G eneral am ple authority to deport him to Iran. See, e.g., \xc2\xa7 243(a)(3),\n(7), 8 U .S .C \xc2\xa7 1253(a)(3), (7).\n\n150\n\n\x0cpersecution on account o f race, religion, or political\nopinion . . . .\n8 U.S.C. \xc2\xa7 1253(h). Courts have consistently followed the unvarying\npractice o f the A ttorney General, see M atter o f Dunar, 14 I.&N. Dec.\n310, 322 n.20 (1973), and interpreted \xc2\xa7 243(h) not just to authorize but\nto require the A ttorney G eneral not to deport an alien to a country\nw here he is likely to be persecuted. See, e.g., Kovac v. IN S, 407 F.2d\n102, 104 (9th Cir. 1969); U.S. ex rel. Dolenz v. Shaughnessy, 206 F.2d\n392, 395 (2d Cir. 1953); 1 G ordon & Rosenfield, Im m igration Law and\nP rocedure 5-178, 5-179 (1979). T he M ultilateral Protocol Relating to\nthe Status o f Refugees, which binds the United States, confirms this\ninterpretation. It provides:\nNo C ontracting State shall expel or return (\xe2\x80\x9crefouler\xe2\x80\x9d) a\nrefugee in any m anner w hatsoever to the frontiers of\nterritories w here his life or freedom would be threatened\non account o f his race, religion, nationality, membership\no f a particular social group o r political opinion.6\n\xe2\x80\x9c Refugee\xe2\x80\x9d is defined, in part, as:\nany person w ho . . . ow ing to a well-founded fear of\nbeing persecuted for reasons o f race, religion, nationality,\nmembership o f a particular social group o r political opin\xc2\xad\nion, is outside the country o f his nationality. . . . 7\nThus the Protocol allows the A ttorney G eneral no d iscretio n 8 to\ndeport a refugee to a territory \xe2\x80\x9cw here his life or freedom would be\nthreatened\xe2\x80\x9d by political persecution.9\nT he only remaining issue, under both the Protocol and \xc2\xa7 243(h), is\nw hether the Shah w ould be \xe2\x80\x9c persecuted\xe2\x80\x9d on account o f \xe2\x80\x9c political\nopinion\xe2\x80\x9d if he w ere returned to Iran. In other cases courts have gener\xc2\xad\nally deferred to the conclusion o f the Im m igration and N aturalization\nService (IN S)\xe2\x80\x94the A ttorney G eneral\xe2\x80\x99s delegate\xe2\x80\x94on this issue, but that\n6A rticle 33, U nited N ations C onvention R elating to the Status o f Refugees, 185 U .N .T.S. 150, 176\n(1954), incorporated in the P rotocol, 19 U .S.T. 6223, T.I.A .S. No. 6577 (1968).\n\xe2\x80\x99 A rticle 1 o f U nited N ations C onvention, supra note 6.\nflT he Protocol does specify that \xe2\x80\x9c [t]he benefit o f [this protection] may not, how ever, be claim ed by\na refugee w hom there are reasonable grounds for regarding as a danger to the security o f the country\nin w hich he is . .\nA rticle 33 o f the U.N. C onvention, supra note 6. It is unlikely that \xe2\x80\x9cdanger to the\nsecurity" o f the asylum country should be interpreted to include threats made, in an effort to obtain\nthe refugee, by the co u n try w hich w ants to persecute him; such an interpretation w ould in effect\nallow the very nation from w hich the refugee needs protection to nullify that protection. T his point is\nnot entirely clear, how ever, and a colorable argum ent can be made from the language itself that the\nProtocol w ould authorize the President to return the Shah. This issue should be review ed w ith those\nat the State D epartm ent w h o have had experience w ith m atters o f this sort.\n9T h e legislative history o f the ratification o f the P rotocol suggests that the Senate understood\nA rticle 33 to make little change in prevailing law under \xc2\xa7 243(h), but this understanding w as based on\nthe consistent interpretation o f \xc2\xa7 243(h) as requiring, and not ju st authorizing, the A ttorney G enera) to\nw ithhold the deportation o f likely victims o f persecution. See M atter o f Dunar, 14 I. & N. D ec. 310\n(1973). O n this basis, the courts and the Im m igration and N aturalization Service have held that the\nrequirem ents o f \xc2\xa7 243(h) are substantially the same as those o f A rticle 33. See id. at 322-23; Kashani v.\nIN S, 547 F.2d 376, 379 (7th Cir. 1977).\n\n151\n\n\x0chas been because the only dispute was factual; the alien asserted, and\nthe IN S denied, that the alien w ould be harm ed or punished by the\ncountry to w hich the IN S proposed to deport him.\nT he facts about the reception the Shah would receive in Iran are\nfairly clear, how ever, so in this case the issue would becom e basically\none o f law \xe2\x80\x94w hether \xe2\x80\x9cpersecution on account o f . . . political opinion\xe2\x80\x9d\ncorrectly characterizes the actions the Iranian governm ent has prom \xc2\xad\nised to take. In dealing w ith this question o f law courts have inter\xc2\xad\npreted the language them selves and have been reluctant to defer to the\nIN S \xe2\x80\x99s interpretations. See, e.g., Kovac v. INS, 407 F.2d 102, 104-07 (9th\nCir. 1969); Sovich v. Esperdy, 319 F.2d 21, 25-29 (2d Cir. 1963). And\nunder the standards that have developed, w hat the Iranian governm ent\nproposes to do w ould almost certainly qualify as persecution on ac\xc2\xad\ncount o f political opinion. C ourts have found, for example, that a\nthreatened prosecution constituted persecution w hen it was politically\nm otivated and w hen the procedures w ould be irregular or capricious.\nSee, e.g., Coriolan v. IN S, 559 F.2d 993, 1000-04 (5th Cir. 1977) (Tuttle,\nJ.; Coleman, J., dissenting). In general, if an alien can establish that he\nis likely to be punished upon his return, courts have allowed him to be\ndeported only if the punishm ent is for an \xe2\x80\x9cordinary crim e\xe2\x80\x9d o f the sort\nthat might be punished under any regime and that has no overtly\npolitical import. See, e.g., M acC au d v. INS, 500 F.2d 355, 359 (2d Cir.\n1974); K alatjis v. Rosenberg,- 305 F.2d 249, 252 (9th Cir. 1962). If a\npolicy decision w ere made to press for the Shah\xe2\x80\x99s deportation to Iran, it\ncould be argued that Iran w ants to punish the Shah not for his opinions\nbut for his actions. But apparently those same actions, if taken to\nprom ote a different political view or cause, w ould not now be a crime\nin Iran; this is probably sufficient to make the Shah\xe2\x80\x99s prospective\npunishm ent \xe2\x80\x9cpersecution on account o f . . . political opinion.\xe2\x80\x9d See, e.g.,\nCoriolan v. INS, supra; Ross v. IN S, 440 F.2d 100, 101 (1st Cir. 1971).\nF o r these reasons, on the facts available at this time, w e believe that the\nA ttorney G eneral lacks the authority to require the Shah to return to\nIran.\nL\n\narry\n\nA. H\n\nam m ond\n\nD eputy Assistant Attorney General\nOffice o f Legal Counsel\n\n152\n\n\x0c'


b"Septem ber 27, 1977\n\n77-55\n\nMEMORANDUM OPINION FOR THE\nSOLICITOR OF THE DEPARTMENT OF\nLABOR\nDues-Paying Practices of Private Clubs\xe2\x80\x94\nDiscriminatory Practices\n\nThis responds to your request for our opinion concerning the pay\xc2\xad\nment of fees for .membership in private organizations. You request\nclarification of one part o f the December 7, 1976, opinion letter of\nformer Assistant Attorney General Antonin Scalia regarding this\nm atter,1 and you have enclosed for our review a new draft of instruc\xc2\xad\ntions to the compliance agencies.\n1.\nThe portion of Mr. Scalia\xe2\x80\x99s letter that you question reads as\nfollows:\nO r to take what is perhaps a more realistic example: In a city\nwhose luncheon clubs include a \xe2\x80\x9cProfessional Women\xe2\x80\x99s Club,\xe2\x80\x9d a\n\xe2\x80\x9cBusinessmen\xe2\x80\x99s Club\xe2\x80\x9d and a \xe2\x80\x9cMen\xe2\x80\x99s and Women\xe2\x80\x99s Downtown\nClub,\xe2\x80\x9d it would not necessarily constitute discrimination on the\npart of an employer to pay dues for all three.\nYou interpret the quoted sentence as saying that\xe2\x80\x94\n. . . all that a contractor is required to do to remedy the prohibit\xc2\xad\ned discrimination involved in the payment o f dues to discriminating\nclubs is to ensure that each of its employees eligible for such fees is\ngiven an opportunity to join a club. * * *\nOur interpretation of Mr. Scalia\xe2\x80\x99s statement differs from yours.\nThe example was intended to illustrate the point, stated earlier in Mr.\nScalia\xe2\x80\x99s letter, that \xe2\x80\x9ca policy which affords each employee an opportu\xc2\xad\nnity to join one . . . [private] organization [emphasis in original] would\n[not] necessarily be discriminatory merely because some of the organi\xc2\xad\nzations selected were limited to members of a particular sex, a particu\xc2\xad\nlar nationality . . . , a particular race, or a particular religion.\xe2\x80\x9d The\nletter did not say that such a policy would always comply with Execu1T hat letter is reprinted as an appendix hereto.\n\n2 20\n\n\x0ctive Order 11246. The general idea suggested (with which we agree) is\nthat there may be circumstances in which such a policy would not\nviolate the Executive order. Similarly, the hypothetical case described\nby Mr. Scalia was merely an example, and in stating that such a\nsituation would \xe2\x80\x9cnot necessarily constitute discrimination,\xe2\x80\x9d he did not\nrule out the possibility that, depending on all the circumstances, it\ncould be discriminatory. In short, we do not read Mr. Scalia\xe2\x80\x99s opinion\nas reviving the \xe2\x80\x9cseparate but equal doctrine.\xe2\x80\x9d\n2. The draft memorandum that you enclosed sets forth a general rule\nconcerning payment of dues and then lists two types of exceptions. The\ngeneral rule is that\xe2\x80\x94\n. . . payment by a contractor of dues to an organization which\nlimits its membership based on race, color, religion, sex, or national\norigin is a discriminatory practice proscribed by Executive Order\n11246 and the implementing regulations.\nOne of the exceptions is that a contractor may pay fees to\xe2\x80\x94\n. . . organizations in which membership does not confer a business\nor professional advantage and whose primary purpose is charitable,\nreligious, or community service.\nThe other exception permits payment of fees to \xe2\x80\x9corganizations whose\nprimary purpose is to improve the employment positions of minorities\nand women.\xe2\x80\x9d\nWe have certain reservations concerning the approach taken in the\ndraft. Apart from these two exceptions, the draft does not provide for\nany means whereby an employer may demonstrate that its dues-payment practices (involving some discriminatory organizations) have not\nresulted in a business or professional advantage having a discriminatory\nimpact upon its hiring, promotion, commissions, bonuses, or other bene\xc2\xad\nfits. Because of the absence of some mechanism for an employer to\nattempt to prove the nondiscriminatory effect of its policy, we question\nwhether this approach is sufficiently flexible.\nFor example, a particular employer might have a dues-paying policy\napplicable to all managers. Some covered by that policy select discrimi\xc2\xad\nnatory organizations, such as a country club or a downtown club.\nAssume that, for many years, the employer has had an effective affirm\xc2\xad\native action program. Its present (and past) employment statistics show\nthat significant numbers of women and members of minority groups are\nmanagers and that women and minority-group managers have compen\xc2\xad\nsation and authority comparable to that of other managers who are\ntheir contemporaries. Promotions are and have been made on a nondis\xc2\xad\ncriminatory basis. In these circumstances, it seems doubtful to us that,\nbecause of its dues-paying policy alone, the employer would be in\nviolation o f Executive Order 11246. Perhaps, such situations are not\nlikely, but, because they are possible, we suggest that you consider a\ndifferent approach.\n221\n\n\x0cO ur recommendation is that you consider stating in the instructions\nto compliance agencies that there is a rebuttable presumption that a\ncontractor\xe2\x80\x99s payment of dues to a discriminatory organization violates\nthe Executive order.2 Under this approach, the contractor would have\nthe opportunity to show th at its policy and the effects of its policy (on\nhiring, promotions, sales, commissions, bonuses, or other compensation,\netc.) are nondiscriminatory. This is the essential point made in Mr.\nScalia\xe2\x80\x99s letter. A dues-payment policy that results in employer pay\xc2\xad\nments to clubs that discriminate will not always and invariably consti\xc2\xad\ntute employment discrimination, and the employer should be allowed to\ndemonstrate that its dues policy has had no such discriminatory conse\xc2\xad\nquence. While this may be a formidable evidentiary task for the em\xc2\xad\nployer, we believe that the employer may not be foreclosed from\nendeavoring to make that showing. In our view, it would be difficult,\nas a m atter of law, to justify an interpretation of the Executive order\ndenying employers the opportunity to rebut the presumption. The\norder, by its terms, is aimed at assuring that Government contractors\nwill not discriminate. Unless the employer can be found to be maintain\xc2\xad\ning a dues-payment policy that does have the effect of discrimination\nwith respect to employment matters, we do not think that policy may\nbe challenged simply because it allows payments to private clubs that\nare discriminatory.\nT he Civil Rights Division concurs in the views expressed in this\nletter.\nJ o h n M. H a r m o n\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x99 The instructions could still set forth certain general exceptions. The present draft's\nexception for organizations, which is intended to improve the employment situation of\nminorities and women, seems proper. Regarding the other exception included in the\npresent draft, we question whether it should be limited to groups whose primary purpose\nis charitable, religious, or community service. There may be some organizations that are\npurely social but do not \xe2\x80\x9cconfer a business or professional advantage.\xe2\x80\x9d If so, it would\nseem that such organizations could appropriately be included within the exception.\n222\n\n\x0cAPPENDIX\nD ecem ber 7, 1976\n\nMEMORANDUM FOR THE SOLICITOR\nDEPARTMENT OF LABOR\nDues-Paying Practices of Private Clubs\nThis responds to your request for our opinion regarding the proposed\nmemorandum o f your Office of Federal Contract Compliance Programs\n(OFCCP) concerning payment of fees for membership in private orga\xc2\xad\nnizations. The basic position expressed in the memorandum is that any\npayment by a Government contractor of membership fees for employ\xc2\xad\nees in organizations whose membership practices involve \xe2\x80\x9cdiscrimina\xc2\xad\ntion\xe2\x80\x9d on the basis o f race, color, religion, sex or national origin would\nviolate Executive O rder 11246 and O FCCP\xe2\x80\x99s implementing regulations.\nOur conclusions on the issues raised may be summarized as follows:\nTitle V II\xe2\x80\x99s exemption for the employment practices of certain private\nmembership clubs does not govern the present matter. N or does the\npublic accommodations law\xe2\x80\x99s exemption for private clubs. Neither those\nstatutes nor the Constitution would bar the Government from prohibit\xc2\xad\ning payment o f dues by a contractor in a case where such a prohibition\nis needed to remedy discrimination in regard to promotions, compensa\xc2\xad\ntion, or other aspects o f employment. However, in our view, the\nOFCCP memorandum\xe2\x80\x99s basic position is too broad. In some circum\xc2\xad\nstances, the payment of dues to private groups which limit membership\non the basis of race, color, religion, sex, or national origin may violate\nthe Executive order or the regulations; in other circumstances, howev\xc2\xad\ner, such payment may be entirely proper and not result in any pro-,\nscribed discrimination.\n1.\nOne question raised in your request is whether O FCCP must be\nguided by the exemption of certain bona fide private membership clubs\nfrom the coverage of Title VII of the Civil Rights Act o f 1964, 42\nU.S.C. \xc2\xa72000e(b)(2) (1975 Supp.). That exemption, contained in the\ndefinition of \xe2\x80\x9cemployer,\xe2\x80\x9d means that the employment practices of such\nclubs are not subject to Title VII. We do not believe that that exemp223\n\n\x0ction affects the authority o f O FCCP to apply the proposed ruling to\nthe employment practices of contractors covered by the Executive\norder. That involves no attem pt to regulate the employment practices\no f clubs\xe2\x80\x94which is all that the exemption prohibits.1\n2. W e reach the same conclusion regarding the relevance of the\nexemption o f private clubs from the coverage of the public accommo\xc2\xad\ndations law, Title II of the Civil Rights A ct of 1964, 42 U.S.C.\n\xc2\xa7 2000a(e). The present m atter does not involve any challenge to the\nmembership practices of the clubs; they may continue unchanged.2\nHere, the relationship of Federal contractors to clubs with discriminato\xc2\xad\nry memberships is involved; no exemption of the clubs themselves from\ndirect regulation affects that issue. 42 U.S.C. \xc2\xa7 2000a(e) clearly ac\xc2\xad\nknowledges the distinction between regulating the clubs and regulating\nthe relations o f other entities to the clubs\xe2\x80\x94since it excludes from the\nexemption club facilities made available to a covered establishment.\n3. We do not believe that the Constitution bars O FCCP or agencies\nfrom affecting the payment of dues by Federal contractors to private\norganizations w here such payment would result in discriminatory em\xc2\xad\nployment. It is well established that the right o f association, however\nbroad its sweep, does not prohibit the Federal Government from insist\xc2\xad\ning upon the application o f equal protection standards in many fields,\nincluding that o f Federal contracting. C f, Oklahoma v. Civil Service\nCommission, 330 U.S. 127, 143 (1947); Contractors' Association v. Schultz,\n442 F. 2d 159, 170 (3d Cir.), cert, denied, 404 U.S. 854 (1971); Bob Jones\nUniversity v. Johnson, 396 F. Supp. 597, 606 (D. S.C. 1974), a ffd per\ncuriam, 529 F. 2d 514 (1975).\nW hether the current Executive order is based on the President\xe2\x80\x99s\npower under the Constitution or statutory provisions or both, it is\nunquestionable that the order is valid. See, e.g\xe2\x80\x9e Farmer v. Philadelphia\nElectric Co., 329 F. 2d 3, 8 (3d Cir. 1964); Contractors\xe2\x80\x99 Association v.\nSchultz, supra, at 170. If a dues-paying arrangement results in denial of\nequal employment opportunity, then the Order would afford a basis for\nremedial action. This conclusion, in our opinion, is not altered by the\ndecision in Washington v. Davis, 426 U.S. 229 (1976), which speaks to\nthe conduct which the Constitution proscribes rather than to the con\xc2\xad\nduct which the Government may take into account in its contracting\nregulations.\n4. Your letter states that one of the main premises for the proposed\nruling o f O FC C P is\n1 O f course, in the rare event th at a club is also a Government contractor, the club\xe2\x80\x99s\nemployment practices would be subject to Executive Order 11246. This is clearly not the\nsituation to w hich the present inquiry is addressed; and, in any case, there is, in our\nopinion, no reason to read into the Executive order the Title V II exemption o f the\nemployment practices o f private membership clubs.\n2 W e do not here reach the question of the validity o f any Congressional attempt to\nchange the Cf., Cornelius v. B.P.O.K, 382 F. Supp. 1182, 1201 (D. Conn., 1974); Runyon\nv. McCrary, 427 U.S. 160 (1976).\n\n224\n\n\x0c\xe2\x80\x9cthat an employer\xe2\x80\x99s policy of paying membership dues to its em\xc2\xad\nployees has a disparate impact on protected groups in that it\nsegregates employees on the basis of their race, color, sex, religion\nor national origin as to the places where they may transact business\nand thereby affects their promotion and advancement potential.\xe2\x80\x9d\nWithout questioning the proper application of this thesis to certain\nfactual situations, it does not seem to be of such uniform validity to\nwarrant the categorical prohibition which provides the basis for the\nmemorandum. Although some clubs are used substantially for the trans\xc2\xad\naction of business or for making business contacts, we see no grounds\nfor assuming that this is universally so. It is our understanding, for\nexample, that many community-service clubs (some of which are frater\xc2\xad\nnal organizations) are not organizations in which any significant amount\nof business is transacted or acquired; and the practice of a company to\npay for membership in such an organization may be prompted\xe2\x80\x94if by\nany commercial motive at all\xe2\x80\x94only by the desire to have the company\nappear as a \xe2\x80\x9cgood citizen\xe2\x80\x9d of the community through participation of\nmany of its employees in good works, without any care or attention to\nwhich particular employees are responsible for this reputation.\nMoreover, even if it were established that all private club member\xc2\xad\nship appreciably affects promotion potential, or even if such effect were\nnot considered necessary in order to constitute a violation, on the\ntheory that the payment of membership fees is a special emolument\navailable only to certain employees, it is not apparent why a policy\nwhich affords each employee an opportunity to join one such organiza\xc2\xad\ntion would necessarily be discriminatory merely because some of the\norganizations selected were limited to members o f a particular sex,\nnationality, race, or religion. If, for example, a firm were to offer to\npay, for each of its employees at a certain level, membership dues in\none \xe2\x80\x9cworthwhile community organization,\xe2\x80\x9d which it interprets to in\xc2\xad\nclude, among others, the YMCA, the YWCA, the Jewish Community\nCenter, the Knights of Columbus, the German-American Club, the\nHibernian Society, and the National Council of Negro Women, it is far\nfrom self-evident that any discrimination prohibited by Executive Order\n11246 or the implementing regulations could be found. Or to take what\nis perhaps a more realistic example: In a city whose luncheon clubs\ninclude a \xe2\x80\x9cProfessional Women\xe2\x80\x99s Club,\xe2\x80\x9d a \xe2\x80\x9cBusinessmen\xe2\x80\x99s Club,\xe2\x80\x9d and a\n\xe2\x80\x9cMen\xe2\x80\x99s and Women\xe2\x80\x99s Downtown Club,\xe2\x80\x9d it would not necessarily con\xc2\xad\nstitute discrimination on the part of an employer to pay dues for all\nthree.\nWe now turn to the specific provisions of existing regulations upon\nwhich the memorandum relies for its categorical exclusion: T w o provi\xc2\xad\nsions of Revised Order No. 4, which prescribes the contents o f affirma\xc2\xad\ntive action programs refer to the administration of all \xe2\x80\x9ccompany spon\xc2\xad\nsored . . . programs\xe2\x80\x9d without discrimination, and to the need to assure\nthe participation of minorities and women in \xe2\x80\x9ccompany sponsored ac\xc2\xad\n225\n\n\x0ctivities or programs.\xe2\x80\x9d 41 C F R \xc2\xa7 60-2.20(a)(4) and \xc2\xa7 60-2.23(b)(9). The\nO FC C P memorandum regards these descriptions as disapproving con\xc2\xad\ntractors\xe2\x80\x99 payment of all club membership fees o f the type here at issue.\nWe do not believe this generalization is justified. It is possible to view\nan employer\xe2\x80\x99s over-all scheme of paying membership dues as a \xe2\x80\x9ccompa\xc2\xad\nny sponsored program\xe2\x80\x9d; and any improper discrimination as to whose\ndues will be paid (eg., the payment o f men\xe2\x80\x99s dues only) would be a\nviolation. Assuming, however, that the dues-paying program is nondiscriminatory, the fact that some employees choose to join men\xe2\x80\x99s or\nwomen\xe2\x80\x99s clubs would place the employer in violation o f the provisions\nonly if the clubs themselves could be considered \xe2\x80\x9ccompany sponsored\nactivities or programs.\xe2\x80\x9d W e do not interpret the O FCCP memorandum\nas adopting this position\xe2\x80\x94 and it would seem to us an unreasonable\nreading of the regulations, except perhaps in the case of a club support\xc2\xad\ned so substantially by one particular firm as to constitute a sort of\n\xe2\x80\x9ccompany club.\xe2\x80\x9d Thus, no general conclusion of violation of these\nprovisions seems possible, and analysis of the specific circumstances is\nnecessary.\nA nother provision cited in the memorandum is 41 C FR \xc2\xa7 60-20.3(c),\nwhich states that an employer \xe2\x80\x9cmust not make any distinction based\nupon sex in employment opportunities. . . .\xe2\x80\x9d The conclusion that all\npayment of memberships in clubs limited to men or women violates this\nprovision assumes (1) that the club in question does provide significant\nbusiness opportunities, and (2) that the employer does not pay for\nmembership in another club, which includes the other sex and which\nprovides equivalent business opportunities. As discussed above, neither\nof these assumptions is self-evidently correct. Once again, analysis of\nthe specific circumstances is necessary.\nFinally, the memorandum refers to the guidelines regarding discrimi\xc2\xad\nnation based on religion o r national origin, 41 CFR \xc2\xa7\xc2\xa760-50.1, and\n50.2. O ur views here are similar to those just expressed with respect to\nsex discrimination. It does not necessarily constitute a violation of these\nprovisions to pay dues in organizations composed o f persons of a\nparticular religion or national origin, so long as other employees are\ngiven the opportunity o f joining, at company expense, other clubs\nwhich provide equivalent benefits. The injunction against discrimination\ndoes not mean particular religious and ethnic groups cannot be accord\xc2\xad\ned special treatment, so long as over-all benefits are accorded on a\nnondiscriminatory basis. T his is evident from several provisions within\n\xc2\xa7 60-50 itself: \xc2\xa7 60-50.2(6) encourages \xe2\x80\x9cestablishment of meaningful\ncontracts with religious and ethnic organizations and leaders . . . \xe2\x80\x9d;\n\xc2\xa7 60-50.2(8) encourages \xe2\x80\x9c use of the religious and ethnic media for\ninstitutional and employment advertising\xe2\x80\x9d; and \xc2\xa7 60.50.3 states that \xe2\x80\x9can\nemployer must accommodate to the religious observances and practices\nof an employee.\xe2\x80\x9d It is positively consistent with these provisions for an\n226\n\n\x0cemployer to subsidize membership in various religious and ethnic orga\xc2\xad\nnizations.\n5. In conclusion, our main difficulty is the generality of the approach\nand its apparent failure to take into consideration the various types of\ncircumstances which may arise. Please let me know if we can be o f any\nfurther assistance regarding this matter.\nA n t o n in S c a l ia\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n227\n\n\x0c"


b'Validity of Federal Tax Lien\non Civil Service Retirement Refund\n\nUnder 5 U.S.C. \xc2\xa7 8346(a), the Internal Revenue Service is barred from attaching the civil\nservice retirement refund o f a former federal employee in order to satisfy her husband\xe2\x80\x99s\ntax liability, notwithstanding any interest the latter individual may have in the refund\nunder Nevada\xe2\x80\x99s community property law.\n\nJanuary 13, 1981\nM EM ORANDUM OPIN IO N FO R T H E G E N E R A L COUNSEL,\nO F F IC E O F PER SO N N EL M A N A G EM EN T\nThis responds to your request for an opinion on the validity of a levy\nof the Internal Revenue Service (IRS) directed to half the civil service\nretirement deductions due for refund to Mrs. D, a former federal\nemployee. The levy was occasioned by the individual tax liability of\nMrs. D \xe2\x80\x99s husband, with whom she resides in Nevada, a community\nproperty state.\nThe statute relating to civil service retirement benefits that is princi\xc2\xad\npally relevant here provides as follows:\nThe money mentioned by this subchapter [Subchapter\nIII\xe2\x80\x94Civil Service Retirement, consisting of 5 U.S.C.\n\xc2\xa7\xc2\xa7 8331-8348] is not assignable, either in law or equity,\nexcept under the provisions o f subsections (h) and (j) o f\nsection 8345 o f this title, or subject to execution, levy,\nattachment, garnishment, or other legal process, except as\notherwise may be provided by Federal laws.\n5 U.S.C. \xc2\xa7 8346(a) (emphasis added). Subsection (h) of \xc2\xa7 8345 permits\nan individual entitled to an annuity to make allotments or assignments\nof amounts therefrom for such purposes as the Office of Personnel\nManagement (OPM) considers appropriate. Subsection (j), among other\nthings, requires that funds which are otherwise payable by OPM to an\nindividual under the retirement laws shall be paid instead to another\nperson if so provided in a \xe2\x80\x9ccourt decree of divorce, annulment, or legal\nseparation, or the terms of any court order or court-approved property\nsettlement agreement incident to\xe2\x80\x9d such a decree. Subsection (j) encom\xc2\xad\n37\n\n\x0cpasses court-ordered divisions o f assets under state community property\nlaws.\nT he provision of the IR S Code that is principally relevant here is 26\nU.S.C. \xc2\xa7 6331(a), which reads in pertinent part:\nIf any person liable to pay any tax neglects or refuses to\npay the same . . . it shall be lawful for the Secretary [of\nthe Treasury] to collect such tax . . . by levy upon all\nproperty and rights to property (except such property\nas is exempt under section 6334) belonging to such per\xc2\xad\nson . . . .\nSection 6334 does not exempt any payments made under the civil\nservice retirem ent laws.\nT he issue in dispute between OPM and IRS is whether the second\n\xe2\x80\x9cexcept\xe2\x80\x9d clause o f 5 U.S.C. \xc2\xa7 8346(a) has the effect of bringing Ne\xc2\xad\nvada\xe2\x80\x99s community property law into play with regard to the retirement\ndeductions accumulated by OPM for Mrs. D \xe2\x80\x99s account. If so, IRS may\nreach 50 percent o f the funds in the account as Mr. D \xe2\x80\x99s \xe2\x80\x9cproperty [or]\nrights to property\xe2\x80\x9d under 26 U.S.C. \xc2\xa7 6331(a).\nBefore dealing specifically with this issue, it will be helpful to trace\nthe history of 5 U.S.C. \xc2\xa7 8346(a) and other statutory provisions that\nmay impinge on an individual\xe2\x80\x99s civil service retirement benefits. The\noriginal progenitor of \xc2\xa7 8346(a) was \xc2\xa7 14 of the legislation enacted in\n1920 to create the retirement system, Pub. L. No. 66-215, 41 Stat. 614,\n620. Section 14 did not contain the italicized language of \xc2\xa7 8346(a),\nsupra, but read simply as follows:\nT hat none of the moneys mentioned in this A ct shall be\nassignable, either in law or equity, or subject to execution,\nlevy, or attachment, garnishment, or other legal process.\nThis wording remained essentially unchanged until late 1975. How\xc2\xad\never, before then Congress had provided in other statutes for the\ngovernm ent\xe2\x80\x99s deductions of health insurance premiums (5 U.S.C.\n\xc2\xa7 8906(c)), life insurance premiums (5 U.S.C. \xc2\xa7 8714a(d)), and medicare\npremiums (42 U.S.C. \xc2\xa7 1395s(d)) from an individual\xe2\x80\x99s retirement annu\xc2\xad\nity. In addition, Congress had enacted \xc2\xa7 459 of the Social Security Act,\n42 U.S.C. \xc2\xa7 659, effective January 1, 1975, which lifted the bar of\n\xc2\xa7 8346(a) and similar provisions in other federal benefit laws for the\npurpose of allowing garnishment of benefits to satisfy an obligation for\nchild support or alimony.1\nT he first amendment to 5 U.S.C. \xc2\xa7 8346(a) was made by Pub. L. No.\n94-166, 89 Stat. 1002 (1975). It added subsection (h) to \xc2\xa7 8345 to permit\nallotm ents and assignments by annuitants and correspondingly amended\n*Tw o years later Congress defined \xe2\x80\x9calimony\xe2\x80\x9d so as not to include a payment in compliance with a\ncom m unity property settlement\xe2\x80\x94that is, Congress specifically ruled out garnishments to enforce such\nsettlements. 42 U.S.C. \xc2\xa7 662(c) (Supp. I 1977).\n\n38\n\n\x0c\xc2\xa7 8346(a) to introduce the first \xe2\x80\x9cexcept\xe2\x80\x9d clause, as it pertains to subsec\xc2\xad\ntion (h).2 It also added the second \xe2\x80\x9cexcept\xe2\x80\x9d clause.\nFinally, in 1978, Congress enacted 5 U.S.C. \xc2\xa7 8345(j) to allow OPM\nto comply with a decree, order, or property settlement (including one\nbased on a state\xe2\x80\x99s community property law) that arose from a divorce,\nannulment, or legal separation.3 Pub. L. No. 95-366, 92 Stat. 600,\n\xc2\xa7 l(a)(1978). Section 8346(a) was amended accordingly by the addition\nof the italicized reference to \xc2\xa7 8345(j) in the first \xe2\x80\x9cexcept\xe2\x80\x9d clause of\n\xc2\xa7 8346(a). Id.. \xc2\xa7 1(b).\nTurning to the issue before us, we note first that there is nothing in\nthe legislative history of the amendment of \xc2\xa7 8346(a) in 1975 to indicate\nthe reason for adding the words, \xe2\x80\x9cexcept as otherwise may be provided\nby Federal laws,\xe2\x80\x9d at its end. In fact, this language was not necessary to\nachieve the avowed purpose of the 1975 A ct\xe2\x80\x94that is, the authorization\nof allotments and assignments by annuitants.4 That purpose was realized\nby the enactment of \xc2\xa7 8345(g) and the first \xe2\x80\x9cexcept\xe2\x80\x9d clause. Moreover,\nthe second \xe2\x80\x9cexcept\xe2\x80\x9d clause was not necessary for the effectiveness of\nany of the earlier laws listed above because each was self-contained,\nand it was not necessary to enable IRS to reach funds payable under\nthe retirement law to employees or former employees delinquent in the\npayment of their taxes.5 The most that can be said about the provision\nis that it was probably included pro forma.\nPassing the question o f purpose for the moment, we find that there\nwas also silence in Congress concerning the meaning of the term\n\xe2\x80\x9cFederal laws\xe2\x80\x9d in the second \xe2\x80\x9cexcept\xe2\x80\x9d clause. We are faced in this\ncontext with a significant lack of assistance because we must determine\nwhether the term covers 26 U.S.C. \xc2\xa7 6331(a) as read together with the\ncommunity property law o f a state. If not, IRS cannot take half of Mrs.\nD \xe2\x80\x99s retirement deductions to reduce her husband\xe2\x80\x99s indebtedness to the\ngovernment.\nWe are of the opinion on this point that in the absence of congres\xc2\xad\nsional guidance regarding either the purpose o f the second \xe2\x80\x9cexcept\xe2\x80\x9d\nclause or, more importantly, the scope of the term \xe2\x80\x9cFederal laws,\xe2\x80\x9d the\nterm must be read in its natural sense of embracing only federal statu\xc2\xad\ntory laws.6 More particularly, we are unable to find either a precedent\n\xe2\x80\x98 Public Law No. 94-166 mistakenly designated the new subsection in \xc2\xa7 8345 as \xe2\x80\x9c(g)\xe2\x80\x99\xe2\x80\x99 and made the\nsame mistake in \xc2\xa7 8346(a). The errors were corrected by Pub. L. No. 95-366, 92 Stat. 600 (1978).\n5 Section 8345(j) in effect negated, as it applied to OPM, the provision in the definition o f\n\xe2\x80\x9calimony\xe2\x80\x9d in 42 U.S.C. \xc2\xa7 662(c) that excluded payments based on community property laws. See note\n1, supra.\n4See H R. Rep. No. 446, 94th Cong., 1st Sess. 1-2 (1975).\n*39 Comp. Gen. 203 (1959); 27 Comp. Gen. 703 (1948); 21 Comp. Gen. 1000 (1942). These\nopinions, insofar as relevant here, were grounded on general principles of setoff.\n8Cf. H.R. Rep. No. 713, 95th Cong., 1st Sess. 2 (1977), accompanying the bill that enacted\n\xc2\xa7 8345(j). A t p. 2 the Committee paraphrased the second \xe2\x80\x9cexcept\xe2\x80\x9d clause o f \xc2\xa7 8346(a) as follows:\n\xe2\x80\x9cexcept as may be expressly provided by Federal laws\xe2\x80\x9d (emphasis added). S. Rep. No. 1084, 95th\nCong., 2d Sess. 2 (1978), contains the same paraphrase.\n\n39\n\n\x0cor a basis for construing the term to encompass a state\xe2\x80\x99s community\nproperty law by transmutation through the medium of 26 U.S.C.\n6331(a). In short, we conclude that Nevada\xe2\x80\x99s community property law,\nin the absence o f explicit legislation by Congress, has not created for\nMr. D \xe2\x80\x9cproperty [or] rights to property\xe2\x80\x9d in his wife\xe2\x80\x99s retirement deduc\xc2\xad\ntions that are assailable by IRS.\nW e are not inattentive to the judicial doctrine that state law gener\xc2\xad\nally governs the determination w hether a federal taxpayer has an own\xc2\xad\nership interest in property sufficient for an IR S levy to grasp for taxes\ndue from him. Aquilino v. United States, 363 U.S. 509 (1960). That rule,\no f course, is subject to the strictures o f the Supremacy Clause of the\nConstitution. See Hisquierdo v. Hisquierdo, 439 U.S. 572, 581 (1979);\nUnited States v. Yazell, 382 U.S. 341, 352 (1966). However, we do not\nview the gloss put on \xc2\xa7 6331(a) by Aquilino and similar cases as being\npertinent here. It is one thing to hold that, paramount federal interests\naside, the government should abide by state laws \xe2\x80\x9cin the field of family\nand family-property arrangements.\xe2\x80\x9d United States v. Yazell, 382 U.S. at\n352. It is another to conclude that the United States is bound by state\nlaw in its ow n administration of the Civil Service Retirement System.\nT here is no clash between federal and state interests here that re\xc2\xad\nquires scrutiny in the light of the Supremacy Clause. W hat is involved\nin reality is a clash between tw o federal policies, one calling for the\nexpeditious collection o f taxes and the other for the protection of\nretirem ent deductions and benefits so that they will be paid to the\npersons who earned them. Since, in the instant matter, the barrier of 5\nU.S.C. \xc2\xa7 8346(a) remains in place to block the thrust of the power\ngranted IRS by 26 U.S.C. \xc2\xa7 6331(a), there can be no question that the\nlatter policy prevails.\nWe are mindful of the consideration that legislation in\naid of collection o f Governm ent revenues should be liber\xc2\xad\nally construed and applied. T here is obviously an impera\xc2\xad\ntive public interest in favor o f the prompt collection of\ndelinquencies. But manifestly it cannot be validly consid\xc2\xad\nered an overriding policy in any particular situation unless\nCongress has so demonstrated its intention.\nUnited States v. Sullivan, 333 F. 2d 100, 119 (3d Cir., 1964).\nIn summary, IRS is not entitled to obtain any of Mrs. D \xe2\x80\x99s funds from\nOPM for application against her husband\xe2\x80\x99s tax liability.\nL eon U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n40\n\n\x0c'