b'Gulf War Veterans Health Statutes\nSection 1604 o f the Persian G ulf W ar Veterans A ct o f 1998 is constitutionally invalid insofar as\nit purports to nullify prospectively certain described legislation that m ight be enacted in the future.\nO verlapping provisions o f the Veterans Program s E nhancem ent A ct o f 1998 and the P ersian G ulf\nW ar V eterans A ct o f 1998, although redundant and burdensom e in som e respects if both statutes\nare given effect, are not inherently conflicting or m utually exclusive and therefore both provisions\nm ust be treated as valid and given effect.\n\nMarch 12, 1999\nM e m o r a n d u m O p in io n\nD epartm ent\n\nof\n\nfo r th e\n\nG en era l C ou n sel\n\nV e t e r a n s A f f a ir s\n\nThis responds to your letter of December 8, 1998, requesting our legal opinion\non questions raised by two conflicting or overlapping statutes, passed by Congress\non the same day, responding to the health risks associated with military service\nin the Persian Gulf War (\xe2\x80\x9c Gulf W ar\xe2\x80\x9d ).1 The statutes in question are the Veterans\nPrograms Enhancement Act of 1998, Pub. L. No. 105-368, 112 Stat. 3315\n( \xe2\x80\x9c VPEA\xe2\x80\x9d ), and the Persian Gulf War Veterans Act of 1998, passed as Title XVI\nof Division C of the Act Making Omnibus Consolidated and Emergency Supple\xc2\xad\nmental Appropriations for Fiscal Year 1999, Pub. L. No. 105-277, 112 Stat. 2681742 ( \xe2\x80\x9c GWVA\xe2\x80\x9d ). We conclude that: (1) section 1604 of the GWVA is constitu\xc2\xad\ntionally invalid and ineffective insofar as it purports to nullify certain described\nlegislation (including section 101 of the VPEA) that might be enacted in the\nfuture; (2) under governing principles of statutory interpretation, every effort must\nbe made to reconcile the provisions of two statutes enacted under the cir\xc2\xad\ncumstances presented here before resorting to rules of construction giving one\nprimacy over the other; and (3) the respective provisions of the two laws that\nyou have asked us to analyze, although redundant and burdensome in some\nrespects if both laws are given effect, are not inherently conflicting or mutually\nexclusive, and therefore the provisions of both laws must be treated as valid and\neffective.\nI.\nThe statutes in question here were both introduced in response to the October\n1997 recommendation of the Presidential Advisory Committee on Persian Gulf\nWar Illnesses that Congress enact a permanent statutory program for providing\n1 L etter for R andolph M oss, A cting A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, from L eigh A B radley,\nG eneral C ounsel, D epartm ent o f V eterans A ffairs (D ec 8, 1998) ( \xe2\x80\x9c V A L etter\xe2\x80\x9d ) In co n sidering this m atter, w e\nalso received and considered the view s o f the G eneral C ounsel o f the O ffice o f M anagem ent and B udget. S ee L etter\nfo r R andolph M oss, A cting A ssistant A ttorney G eneral, O ffice o f Legal C o unsel, from R obert G D am us, G eneral\nC ounsel, O ffice o f M anagem ent and B udget (Jan. 25, 1999)\n\n49\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\ncompensation and benefits to veterans suffering illnesses as a result of their Gulf\nWar service. The VPEA was originally introduced as H.R. 4110 in the 105th\nCongress. H.R. 4110 was unanimously passed by the House of Representatives\non October 10, 1998. It was subsequently passed by the Senate on October 21,\n1998 \xe2\x80\x94 several hours after final congressional passage of the GWVA as part of\nthe Omnibus Appropriations Act. It was signed into law by the President on\nNovember 11, 1998.\nThe provisions enacted as the GWVA were largely drawn from S. 2358, a bill\noriginally introduced in the 105th Congress by Senators Byrd, Rockefeller, and\nSpecter. See 144 Cong. Rec. S12,832 (daily ed. Oct. 21, 1998) (statement of Sen.\nByrd). S. 2358 was passed by the Senate on October 8, 1998, but was never\ntaken up as such by the House. The key provisions of S. 2358 were then attached\nin the form of the GWVA as an amendment to the Omnibus Appropriations Act,\nat the behest of Senator Byrd, and passed by both the House and Senate on\nOctober 21, 1998 \xe2\x80\x94 several hours before final congressional passage of the VPEA.\nThe Omnibus Appropriations Act was also signed by the President on October\n21, 1998.\nIn summary, although final congressional passage of both laws occurred on the\nsame day, the VPEA was both passed by the Congress and signed into law by\nthe President after the GWVA. Thus, the VPEA constitutes the later enacted of\nthe two statutes.\nBoth laws require the Secretary of Veterans Affairs (\xe2\x80\x9c Secretary\xe2\x80\x9d ) to seek to\nenter into an agreement with the National Academy of Sciences (\xe2\x80\x9c NAS\xe2\x80\x9d ) to study\nand report upon the relationship between service in the Gulf War, certain factors\nand conditions (such as use of particular vaccines and exposure to specified sub\xc2\xad\nstances) associated with such service, and illnesses experienced by Gulf War vet\xc2\xad\nerans. Although the respective NAS studies required by the two statutes overlap\nin substantial respects, there are a number of differences between them. The study\nrequired under the VPEA, for example, requires an assessment of latency periods\nthat is not required under the GWVA. The GWVA, on the other hand, contains\na requirement to include Uranium among the synthetic chemical compounds to\nbe considered as a potential source of illness, whereas the VPEA omits that par\xc2\xad\nticular requirement. Additionally, the statutory deadlines for completion of the\nrespective NAS studies are different, in that the GWVA provisions establish a\nconsiderably shorter timetable. The study authorized by the GWVA must be com\xc2\xad\npleted no later than 18 months after that bill\xe2\x80\x99s date of enactment (i.e., October\n21, 1998), whereas the study authorized by the VPEA is not due until two years\nafter the date the Department o f Veterans Affairs (\xe2\x80\x9c VA\xe2\x80\x9d ) enters into a contract\nwith the NAS. The most significant variation between the two bills is that the\nGWVA requires the VA Secretary to make an administrative determination\nwhether the covered illnesses warrant a presumption of service connection, which\nwould substantially enhance the ability of Gulf War veterans to establish claims\n50\n\n\x0cG ulf War Veterans Health Statutes\n\nfor disability entitlements under 38 U.S.C. \xc2\xa71110 (1994), whereas the VPEA\nmerely requires the Secretary to submit to designated congressional committees\na report with non-binding recommendations as to whether there is sufficient evi\xc2\xad\ndence to warrant a presumption of service connection for the occurrence of the\nspecified illnesses and conditions found in Gulf War veterans.\nIn light of the differing provisions and requirements of the two statutes, you\nhave requested our legal opinion on a number of questions. Initially, you seek\nour opinion whether section 1604 of the GWVA, which purports to nullify\nprospectively later enacted legislation (and section 101 of the VPEA in particular)\nrespecting authorization of a Gulf War study and related issues, is constitutional\nand effective. In the event we conclude section 1604 does not effectively nullify\nthe provisions of the VPEA, you seek our guidance as to whether the various\nprovisions o f the respective bills may be reconciled and, insofar as they cannot\nbe reconciled, which of the two statutes is to be given controlling effect.\nn.\nA.\nThe first issue that must be resolved in determining the relationship between\nthese two statutes is whether section 1604 of the GWVA effectively nullifies the\nGulf War health study provisions contained in section 101 of the VPEA. Section\n1604 provides:\nIn the event of enactment, before, on, or after the date of the\nenactment of this Act, of section 101 of the Veterans Programs\nEnhancement Act of 1998, or any similar provision of law enacted\nduring the second session of the 105th Congress requiring an agree\xc2\xad\nment with the National Academy of Sciences regarding an evalua\xc2\xad\ntion of health consequences of service in Southwest Asia during\nthe Persian Gulf War, such section 101 (or other provision of law)\nshall be treated as if never enacted, and shall have no force or\neffect.\nAs relevant here, section 1604 would prospectively nullify the ability of Con\xc2\xad\ngress and the President to enact effective legislation on a designated subject during\nthe remainder of the 105th Congress. Such a measure is incompatible with the\nprovisions for the enactment of laws set forth in Article I, section 7 of the Con\xc2\xad\nstitution because it purports to invalidate by statute subsequent legislation duly\nenacted through valid constitutional processes. See Manigault v. Springs, 199 U.S.\n473, 487 (1905) (\xe2\x80\x9c a general law . . . may be repealed, amended or disregarded\nby the legislature which enacted it,\xe2\x80\x9d and \xe2\x80\x9c is not binding upon any subsequent\n51\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nlegislature\xe2\x80\x9d ); United States v. Lopez Andino, 831 F.2d 1164, 1172 (1st Cir. 1987)\n(Torruella, J., concurring) ( \xe2\x80\x9c under well-established constitutional precedent, as an\nact of Congress it does not bind future Congresses\xe2\x80\x9d ), cert, denied , 486 U.S. 1034\n(1988); Community-Service Broadcasting o f Mid-America, Inc. v. FCC, 593 F.2d\n1102, 1113 (D.C. Cir. 1978) (\xe2\x80\x9c To be sure, Congress is generally free to change\nits mind; in amending legislation Congress is not bound by the intent of an earlier\nbody.\xe2\x80\x9d ).2 Accordingly, we conclude that section 1604 does not nullify or abrogate\nthe later-enacted provisions of section 101 of the VPEA.\n\nB.\nAlthough section 1604 of the GWVA cannot constitutionally nullify the subse\xc2\xad\nquent enactment of section 101 o f the VPEA, it remains to be considered what\neffect, if any, should be given to section 1604 as evidence of congressional intent\nin construing the effect and relationship of the two statutes. Specifically, does\nthe enactment of section 1604 establish that Congress intended the provisions of\nthe GWVA to be controlling to the extent that they would conflict with the laterenacted provisions of section 101 of the VPEA? In this regard, it is to be noted\nthat section 1604 directly confronts the possibility of conflict between the two\nprovisions, whereas the VPEA does not address that subject at all. It might be\nargued, therefore, that section 1604 is to that extent a more specific provision\nthat should control over the provisions of the VPEA insofar as there is irreconcil\xc2\xad\nable conflict. See, e.g., Watson v. Fraternal O rder o f Eagles, 915 F.2d 235, 240\n(6th Cir. 1990) (where two statutes conflict, regardless of priority of enactment,\nthe more specific statute ordinarily controls the more general).\nWe conclude that section 1604 does not establish the primacy of the provisions\nof the GWVA in relation to those of the VPEA insofar as the two provisions\nconflict. The G ulf War study provisions of the GWVA are not more specific than\nthose of section 101 of the VPEA in the sense in which the specific/general\ndichotomy is used in this context; rather, the two provisions are at the same order\nof specificity. The mere fact that section 1604 of the GWVA ineffectually purports\nto nullify the later-enacted provisions of section 101 of the VPEA, moreover, does\nnot render the former statute more specific than the latter in the sense intended\nby the rule of construction. Further, section 1604 does not actually address the\nissue of reconciling the two provisions; its sole stated objective is to nullify com\xc2\xad\n2 In holding that an act o f Congress cannot bind \xe2\x80\x9c future Congresses,\xe2\x80\x9d Lopez Andino and other cases using such\nphrasing do not implicitly suggest that an act o f Congress can bind the same Congress when that Congress subse\xc2\xad\nquently undertakes to enact legislation contrary to the earlier enactment. In either circumstance, the controlling general\nprinciple is that an act o f Congress (as distinguished, for example, from an amendment to the Constitution) cannot\nprohibit the enactment o f subsequent contrary legislation through valid constitutional processes This is not to say\nthat earlier adopted legislation, such as the Dictionary Act, see 1 U.S.C. \xc2\xa7 1 (Supp. Ill 1997), cannot influence\nthe interpretation or meaning o f later adopted legislauon. Such earlter legislation may influence the meaning of\nterms in a subsequent enactment, to the extent consistent with that enactment. But Congress always retains the\nauthority, subject to constitutional limitations such as due process, to override the earlier enactment through duly\nenacted subsequent legislation\n\n52\n\n\x0cG ulf War Veterans Health Statutes\n\npletely any enactment of the provisions of section 101, which is not constitu\xc2\xad\n\ntionally permissible.\nNotwithstanding the prior passage of section 1604 as part of the Omnibus\nAppropriations Act, the Senate proceeded to pass the VPEA hours later \xe2\x80\x94\nincluding without alteration, let alone any indication of repeal, the targeted provi\xc2\xad\nsions of section 101. Such action is difficult to reconcile with a genuine congres\xc2\xad\nsional intent to nullify section 101. The Senate debate on final passage of the\nVPEA, moreover, does not support the odd view that the Senate intended that\nthe very provisions of section 101 that it was enacting without amendment (let\nalone removal) would have no effect. In comments upon the VPEA \xe2\x80\x94 comments\nmade after Congress had already passed section 1604 of the GWVA \xe2\x80\x94 Senator\nRockefeller (ranking member of the Senate Committee on Veterans\xe2\x80\x99 Affairs and\nan original co-sponsor of S. 2358, the bill that was later essentially enacted as\nthe GWVA) made the following observations touching on the relationship between\nthe two bills:\n[T]his bill [the VPEA] directs the Secretary of Veterans Affairs\nto enter into agreements with the NAS to conduct studies and pro\xc2\xad\nvide recommendations for research that may be needed to better\nunderstand the possible health effects of exposures to toxic agents\nor environmental or wartime hazards associated with Gulf War\nservice. The NAS will also provide recommendations to VA on\nthe development of continuing medical education programs on the\ntreatment of war-related illnesses and the assessment of new treat\xc2\xad\nments to alleviate the effects of these illnesses.\n144 Cong. Rec. at S12,933 (daily ed. Oct. 21, 1998). Referring to what he per\xc2\xad\nceived as shortcomings in the provisions of section 101 of the VPEA (i.e., H.R.\n4110), Senator Rockefeller observed:\nHowever, I was disappointed that we were unable to move\nbeyond the initial steps contained in H.R. 4110 in negotiations with\nthe House and Senate Veterans\xe2\x80\x99 Affairs Committees. H.R. 4110\nonly provides for VA to contract with NAS to perform the scientific\nreview to identify potential exposures and illnesses associated with\nthose exposures, but excluded the critical directive and guidance\nto VA to make determinations about compensation and presumption\nof battlefield exposures. Nonetheless, I felt that it was important\nthat we accomplish what we could in this Congress to begin the\nprocess, although I realized this would still leave more for us to\naccomplish in the 106th Congress.\n53\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nW e would have been left with only this initial step were it not\nfor the senior Senator from West Virginia, Senator Byrd. Senator\nByrd successfully negotiated the inclusion of the compensation and\npresumption provisions of S. 2358 in the Omnibus Appropriations\nbill.\nId. at S 12,933 (emphasis added).\n\nSenator Rockefeller\xe2\x80\x99s statement does not support the view that the VPEA was\npassed with a tacit understanding that it would be subordinate to, or nullified\nby, section 1604 of the GWVA. Especially in light of the fact that Senator\nRockefeller was a proponent of the legislation that became the GWVA, his state\xc2\xad\nment indicates instead that the two provisions were viewed as cumulative, rather\nthan conflicting and mutually exclusive. Thus, Senator Rockefeller described sec\xc2\xad\ntion 101 of the VPEA as an \xe2\x80\x9c initial step,\xe2\x80\x9d with the provisions of the GWVA\naddressing the perceived shortcomings of the former statute by additionally pro\xc2\xad\nviding for compensation and presumption of service connection.\nA conclusion that section 1604 of the GWVA wholly superseded the laterenacted provisions of the VPEA would require a presupposition that the Senate\nproceeded to enact the VPEA recognizing all the while that its extensive and\ndetailed Gulf W ar study provisions were meaningless and inoperative. Apart from\nthe text of section 1604 itself\xe2\x80\x94 which we have already concluded is ineffective\ninsofar as pertinent here \xe2\x80\x94 we find no evidence of that understanding on the part\no f the Senate as it passed the VPEA, and substantial evidence to the contrary\nin the statement o f Senator Rockefeller.\nC.\nHaving concluded that section 1604 of the GWVA does not effectively nullify\nthe provisions of section 101 of the VPEA, we now consider how these two over\xc2\xad\nlapping enactments should be interpreted and applied. An early opinion of the\nAttorney General sets forth the key legal principles that were employed to resolve\na strikingly similar statutory dilemma:\nBy old and well-established canons of construction it is settled\nthat every effort should be made \xe2\x80\x94 in the absence of express words\nof repeal \xe2\x80\x94 to harmonize seemingly conflicting provisions in stat\xc2\xad\nutes in pari materia passed at the same time, or approximately the\nsame time, even though one of the acts contains language which,\nin ordinary circumstances and except for the element of contem\xc2\xad\nporaneity, would be deemed to displace the other. The presumption\nthat in such cases the legislature did not intend any inconsistency,\nno doubt has special force in the case of statutes passed on the\n54\n\n\x0cG ulf War Veterans Health Statutes\n\nsame day, and it is entirely clear that such statutes ought, if pos\xc2\xad\nsible, to be so construed as to allow both of them to stand, for,\nas was said by the Supreme Court of Maine in Stuart v. Chapman,\n104 Me. 17, 23, in discussing a situation similar to the one here\npresented \xe2\x80\x94\n\xe2\x80\x9c It avoids the absurdity of holding that the legislature,\nwhose proceedings are presumed to be conducted with\nwisdom and deliberation, enacted and repealed a statute\nupon the same day; or that the house and senate gravely\nand solemnly passed through all their several stages two\ninconsistent acts, either one of which would repeal the other,\nand sent them at the same time to the governor, intending\nthat, and that alone, should become a law of the land to\nwhich he happened last to affix his signature.\xe2\x80\x9d\nWar-Risk Insurance Act \xe2\x80\x94 Repeal o f Gratuity Laws, 31 Op. Att\xe2\x80\x99y Gen. 205, 208\n(1918) (\xe2\x80\x9c AG Opinion\xe2\x80\x9d ).\nHere, too, we confront statutes in pari materia passed on the same day, but\nwith one of the acts containing language \xe2\x80\x94 i.e., section 1604 of the GWVA \xe2\x80\x94\nthat could (setting aside the temporal sequence of enactment) be deemed to dis\xc2\xad\nplace the other. Accordingly, we find that the Attorney General\xe2\x80\x99s above-quoted\nformulation provides the appropriate framework for interpreting the two provisions\nin question here \xe2\x80\x94 that is, every effort should be made to harmonize or reconcile\ntheir apparent conflicts, without distorting their plain meaning. See also Morton\nv. Mancari, 417 U.S. 535, 550 (1974) ( \xe2\x80\x9c In the absence of some affirmative\nshowing of an intention to repeal, the only permissible justification for a repeal\nby implication is when the earlier and later statutes are irreconcilable.\xe2\x80\x9d ); United\nStates v. Trident Seafoods Corp., 92 F.3d 855, 862 (9th Cir. 1996) (\xe2\x80\x9c to the extent\nthat statutes can be harmonized, they should be, but in case of an irreconcilable\ninconsistency between them the later and more specific statute usually controls\nthe earlier and more general one\xe2\x80\x9d ), cert, denied, 519 U.S. 1109 (1997). Moreover,\napart from the canon of statutory construction favoring harmonization, with respect\nto these two statutes there is relevant evidence from the legislative history\nweighing in favor of harmonization: Senator Rockefeller stated that the VPEA\nrepresented the \xe2\x80\x9c initial step\xe2\x80\x9d and that the GWVA moved beyond that step. See\n144 Cong. Rec. at S I2,933.3 Given the canon of construction and this legislative\nhistory, the case for harmonization is compelling.\n3 Nothing in the debate or floor statements accompanying final passage of the VPEA indicates that it was consid\xc2\xad\nered irreconcilable with the provisions o f the GWVA. However, Representative Stump (Chairman of the House\nV eterans\xe2\x80\x99 Affairs Committee), in connection with the insertion o f the GWVA provisions into the Omnibus Appropria\xc2\xad\ntions Act, expressed the view that aspects o f the GWVA were irreconcilable with those of the VPEA. See 144\nContinued\n\n55\n\n\x0cOpinions of the Office o f Legal Counsel in Volume 23\n\nD.\nWe now consider whether the Gulf W ar health study provisions of the VPEA\nand the GWVA may both be given effect through reconciliation, or whether they\nare in such irreconcilable conflict that one provision must be given primacy under\ncontrolling principles of construction. In doing so, we apply the standard of\nirreconcilability employed by the Attorney General in his 1918 opinion: \xe2\x80\x9c To obey\none provision is to ignore the other; to disobey one is to give effect to the other.\xe2\x80\x9d\nAG Opinion at 209. We conclude that, for all material and significant purposes,\nthe two statutes are not irreconcilable.4 Although there is considerable overlap\nand some disparity between the two provisions \xe2\x80\x94 for example, they require the\npreparation of predominantly similar reports on Gulf War service-related illnesses\nby the NAS, but the reports differ in some notable respects and are subject to\ndifferent submission deadlines \xe2\x80\x94 compliance with either of the statutes does not\nappear to render compliance with the other impossible or compel disobedience\nto it.\nProbably the most significant difference between the two statutes is their respec\xc2\xad\ntive approaches to a \xe2\x80\x9c presumption of service connection\xe2\x80\x9d for illnesses associated\nwith Gulf W ar service. GWVA, 112 Stat. at 2681-743. Under section 1602 of\nthe GWVA, which would enact a new 38 U.S.C. \xc2\xa7 1118, the Secretary must deter\xc2\xad\nmine, based on the NAS report, whether the covered illnesses warrant a presump\xc2\xad\ntion of service connection by reason of certain associations described in the\nGWVA. That determination would be formally promulgated in regulations and\nthen come into play in the disposition of claims for compensation for serviceconnected disabilities under 38 U.S.C. \xc2\xa7 1110. The VPEA, in contrast, does not\ndirect or authorize the Secretary to make such a determination. Rather, section\n10l(i)(2) thereof merely requires the Secretary to submit to designated congres\xc2\xad\nsional committees a report with recommendations as to whether there is sufficient\nevidence to warrant a presumption of service connection for the occurrence of\nspecified conditions in Gulf W ar veterans, based upon the NAS report and the\ncomments of government agencies in response to that report.\nWe conclude that these two provisions are not mutually exclusive and that,\naccordingly, the VA must attempt to comply in good faith with both provisions.\nC ong. Rec HI 1,656-57 (daily ed. Oct 20, 1998). Specifically, Representative Stump contended that the GW VA\xe2\x80\x99s\nprovision for a binding Secretarial determination on the presumption of service connection left Congress with \xe2\x80\x9c no\nrole in deciding the future compensation policy for veterans,\xe2\x80\x9d whereas the VPEA provided for the VA Secretary\nto make non-binding recommendations to Congress with respect to that issue Id. at HI 1,657. While we agree that\nthe two statutes take different approaches to this issue, those approaches do not appear to be mutually exclusive\no r irreconcilable, as we discuss in SecUon 11.D infra As indicated in the text, moreover, it has long been established\nthat roughly contemporaneous statutes should be harmonized where possible Nonetheless, Representative Stum p\xe2\x80\x99s\nstatement indicates that Senator Rockefeller\xe2\x80\x99s view was not universally shared\n4 Given the detailed and technical nature o f the two statutes\xe2\x80\x99 specifications for the NAS studies and the Secretary\xe2\x80\x99s\nresponse thereto, our opinion does not purport to determine that there are no irreconcilable discrepancies whatsoever\nbetween any provisions o f the two bills T he VA would have superior expertise to identify any such irreconcilable\ndiscrepancies at a factual level, but it has not called to our attention, nor have we identified, any of that nature\n\n56\n\n\x0cG ulf War Veterans Health Statutes\n\nCompliance with the GWVA\xe2\x80\x99s requirement for an administrative determination\non the presumption of service connection does not require the Secretary to\n\xe2\x80\x9c ignore\xe2\x80\x9d or \xe2\x80\x9c disobey,\xe2\x80\x9d see A.G. Opinion at 209, the VPEA\xe2\x80\x99s distinct require\xc2\xad\nment for submitting a recommendation respecting that same issue to the congres\xc2\xad\nsional committees. Although it may seem burdensome or redundant, we are unable\nto find a convincing reason why the Secretary cannot do both. The chief argument\nsupporting the view that the two measures are mutually exclusive might rest on\nthe premise that the later submission of a recommendation to the congressional\ncommittees pursuant to the VPEA would amount to a futile or ineffectual gesture\ninasmuch as the Secretary would already have made an effective administrative\ndetermination that the presumption of service connection is warranted or not war\xc2\xad\nranted pursuant to the GWVA. Such a premise would not be valid, however,\nbecause the provision of the Secretary\xe2\x80\x99s recommendations to the congressional\ncommittees would still provide Congress with pertinent information enabling it\nto consider and possibly to enact legislation reflecting a distinct congressional\nresolution of the presumption-of-service-connection issue. Compliance with both\nof these provisions, moreover, would not appear to be inordinately burdensome,\ninasmuch as the assessment and analysis underlying both the VPEA recommenda\xc2\xad\ntion and the GWVA determination would involve substantial overlap.\nWhat we have said with respect to the differing provisions of the two statutes\non resolving the presumption-of-service-connection issue applies as well to the\nother possible disparities identified in your submission to this Office.\nOne set of possible disparities that you have identified is that the two statutes\nhave a number of differences in their provisions for the review of scientific evi\xc2\xad\ndence to be conducted by the NAS. See VA Letter at 4\xe2\x80\x946. Under section\n101(c)(1)(B) of the VPEA, for example, the NAS would be required to identify\nillnesses \xe2\x80\x9c associated with the agents, hazards, or medicines or vaccines\xe2\x80\x9d\ndescribed in that statute, whereas under the GWVA the requirement calls for the\nidentification of the illnesses (including diagnosed and undiagnosed illnesses) that\nare \xe2\x80\x9c manifest\xe2\x80\x9d in Gulf War veterans. GWVA \xc2\xa7 1603(c)(1)(B). While these\nrequirements are not identical or co-extensive \xe2\x80\x94 there may, for example, be some\nillnesses \xe2\x80\x9c manifest\xe2\x80\x9d in Gulf War veterans that are not actually associated with\nthe specific potential causes listed in the VPEA \xe2\x80\x94 they clearly entail substantial\noverlap.\nAdditionally, there are particular items required in the NAS study described\nin one of the statutes that are not required in the other. The VPEA, for example,\nrequires the NAS study to assess latency periods between service or exposure\nto the risk factors and manifestation of the illness, id. \xc2\xa7 101(c)(3), whereas the\nGWVA study does not expressly contain such a requirement. On the other hand,\nsection 1603(f) of the GWVA requires the NAS to review separately, for various\ncategories of illnesses, the available scientific data in order to identify empirically\nvalid models of treatment for such illnesses, whereas the VPEA does not contain\n57\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nsuch a requirement. Rather, section 101(f) of the VPEA merely calls on the NAS\nto make any recommendation it considers appropriate for additional scientific\nstudies including, among others, \xe2\x80\x9c studies relating to treatment models.\xe2\x80\x9d Addition\xc2\xad\nally, although the lists of agents, hazards, and compounds to be covered in the\ninitial NAS review in the two statutes are nearly identical, only the GWVA\nincludes Uranium in the listing. Id. \xc2\xa7 1603(d)(1)(F).\nThe foregoing disparities, however, clearly do not render the study requirements\nmutually exclusive or even radically divergent. Indeed, it appears that the identical\nor overlapping requirements of the studies called for by the respective bills may\nexceed their differences and that the respective study contracts could be drafted\nso that NAS\xe2\x80\x99s performance of one contract satisfies all the identical or overlapping\nrequirements of the other contract.\nYou have also identified as a potential problem the statutory provisions con\xc2\xad\ncerning timing and submission of reports by the NAS. See VA Letter at 6-7.\nFor example, the GWVA requires NAS to submit the first of its reports to the\nSecretaries of VA and Defense and to designated Senate and House Committees\nno later than 18 months after the date of enactment of that act (i.e., by April\n21, 2000, which is 18 months after October 21, 1998), whereas the VPEA does\nnot require the submission of the first of its required reports (to the VA Secretary\nand a different set of congressional committees) until two years after the Secretary\nand the NAS enter into the required agreement, a considerably later deadline.\nAgain, the more accelerated timetable for submission of the report required by\nthe GWVA presents no irreconcilable conflict between the two laws. It merely\nmeans that the portions of the VPEA study that overlap with those of the GWVA\nstudy must be completed by the latter\xe2\x80\x99s earlier deadline in order to comply with\nthat statute. In that respect, the shorter GWVA deadlines may actually accelerate,\nrather than preclude, compliance with some requirements of the VPEA.\nA final potential disparity that you have noted is the difference in the \xe2\x80\x9c sunset\xe2\x80\x9d\nprovisions of the two laws: whereas section 101 (j) of the VPEA provides for the\ntermination of its provisions eleven years after the end of the fiscal year in which\nthe VA enters into the agreement with the NAS, section 1603(j) of the GWVA\nprovides for termination of its provisions ten years after the end of the fiscal\nyear in which the NAS submits its first report. See VA Letter at 7. As in the\ncase of the differing provisions for report submission deadlines, we do not believe\nthese variations create any irreconcilable conflict between the statutes. For\nexample, insofar as the two statutes impose overlapping or identical obligations\nor tasks that might be performed close to the \xe2\x80\x9c sunset\xe2\x80\x9d date of the earlier expiring\nstatute, the existence of the differing sunset provisions does not appear to create\na genuine or irreconcilable conflict. It merely means that if the VA is unable\nto complete such an overlapping task before the sunset of the statute with the\nshorter life it would still have authority to complete the task under the provisions\nof the statute with the longer duration. In that respect, the dual sunset provisions\n58\n\n\x0cG ulf War Veterans Health Statutes\n\nmay prove to supply an added element of flexibility in the completion of overlap\xc2\xad\nping tasks authorized by both laws, rather than rendering any obligation under\neither statute impossible to perform.\n\nConclusion\nWe conclude that section 1604 of the GWVA does not effectively nullify the\nlater-enacted provisions of section 101 of the VPEA and that the Gulf War study\nand related provisions of the two statutes that the VA has asked us to analyze\nare not irreconcilable and are therefore valid and effective.\nWILLIAM MICHAEL TREANOR\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n59\n\n\x0c'


b']ta(fl\xc2\xae m m inlfn<E $ittB \xc2\xae E\n\n\xc2\xa9IF ID)\xc2\xa9paiiniimn\xc2\xaeimtt \xc2\xa9IT JJunsltnc\xc2\xae Em pll\xc2\xa9 y\xc2\xae \xc2\xae \xc2\xa7\n\nThe A ttorney General m ay use funds from the D epartm ent of Justice\xe2\x80\x99s general appropriation to\nindem nify D epartm ent employees fo r actions taken within the scope o f their employment.\n\nFebruary 6, 1986\nM\n\nem o ran d um\n\nO p in io n\n\nfo r th e\n\nA ttorney G eneral\n\nThis memorandum responds to your request for this Office\xe2\x80\x99s opinion on the\nquestion whether you have authority to indemnify Department of Justice em\xc2\xad\nployees against personal liability for actions taken within the scope of their\nemployment. Funds for the indemnification would come from the Department\xe2\x80\x99s\nown appropriation.\nIn an opinion issued in 1980, this Office expressed the view that the Attorney\nGeneral does have such authority.1We have carefully re-examined that opinion\nand, for the reasons discussed below, continue to adhere to the view that the\nAttorney General may lawfully authorize the indemnification of Department\nemployees for adverse money judgments (as well as for settled or compromised\nclaims) arising out of actions taken within the scope of their employment.\nAs noted in this Office\xe2\x80\x99s 1980 opinion, the Attorney General has plenary\nauthority to conduct and supervise all litigation in which the United States has\nan interest. This power derives generally from the Attorney General\xe2\x80\x99s position\nas the chief legal officer of the federal government. See 28 U.S.C. \xc2\xa7\xc2\xa7516-519;\n5 U.S.C. \xc2\xa7 3106. \xe2\x80\x9cIncluded within the broad authority of the Attorney General\nto carry on litigation is the power to compromise.\xe2\x80\x9d \xe2\x80\x9cSettlement Authority of the\nUnited States in Oil Shale Cases,\xe2\x80\x9d 4B Op. O.L.C. 756 (1980) (footnote omit\xc2\xad\nted). See gen erally United States v. San Jacinto Tin Co., 125 U.S. 273, 284\n(1888); 38 Op. Att\xe2\x80\x99y Gen. 98 (1934).\nUnder this general authority, the Attorney General has long taken steps to\ndefend Department employees sued for actions taken within the scope of their\nemployment. As stated in 1858 by Attorney General Black:\nWhen an officer of the United States is sued for doing what he\nwas required to do by law, or by the special orders of the\n1 M em orandum to A lice Daniel, A ssistant A ttorney G eneral, Civil Division from John M. Harmon,\nA ssistan t A ttorney G eneral, O ffice of Legal Counsel (A ug. IS, 1980) (1980 O pinion). See also M emorandum\nto R ichard K. W illard, A ssistant Attorney G eneral, C ivil D ivision from Ralph W. Tarr, D eputy Assistant\nA ttorney G eneral, O ffice o f Legal Counsel (O ct. 4, 1984) (com m enting on 1984 C ivil D ivision R epresenta\xc2\xad\ntion Study); M em orandum fo r the Attorney General from Theodore B. O lson, A ssistant A ttorney G eneral,\nO ffice o f Legal C ounsel (N ov. S, 1981) (suggesting that the A ttorney G eneral establish a policy on this issue).\n\n6\n\n\x0cGovernment, he ought to be defended by the Government. This\nis required by the plain principles of justice as well as by sound\npolicy. No man of common prudence would enter the public\nservice if he knew that the performance of his duty would render\nhim liable to be plagued to death with lawsuits, which he must\ncarry on at his own expense. For this reason it has been the\nuniform practice of the Federal Government, ever since its\nfoundation, to take upon itself the defense of its officers who are\nsued or prosecuted for executing its laws.\n9 Op. Att\xe2\x80\x99y Gen. 51, 52 (1858). See also 5 Op. Att\xe2\x80\x99y Gen. 397 (1851).2\nThe gradual erosion of the doctrine of sovereign immunity culminated in the\nenactment of the Federal Tort Claims Act (FTCA), 28 U.S.C. \xc2\xa7\xc2\xa7 2671-2680,\nwhich permits suit to be brought directly against the United States once\nadministrative remedies have been exhausted. Although enactment of the\nFTCA initially led to a decline in the number of suits against individual\nofficers, the problem emerged afresh after the Supreme Court\xe2\x80\x99s decision in\nBivens v. Six Unknown N am ed Agents, 403 U.S. 388 (1971), holding that\ndamages may be obtained against federal officers who have violated the\nconstitutional rights of private individuals. Bivens and its progeny have led to a\nsteadily increasing stream of damage actions against government employees\nsued in their individual capacity for alleged constitutional violations. This\ngrowth in damages claims, in turn, has revived the government\xe2\x80\x99s interest in the\nproblems of providing assistance to its employees who are sued in their\nindividual capacity for job-related activities. The primary form of assistance,\nof course, is the provision of an attorney, either a Department of Justice\nemployee or private counsel. Expenses incurred by the Department for private\ncounsel are paid out of the Department\xe2\x80\x99s general appropriation.3 In light of the\nDepartment\xe2\x80\x99s interest in protecting both employee morale and any underlying\nfederal interests involved in the lawsuits, payment of private counsel fees\nincurred in the defense of Department employees is warranted as \xe2\x80\x9cexpenses\nnecessary for the legal activities of the Department of Justice,\xe2\x80\x9d as our appro\xc2\xad\npriation usually provides. See, e.g.. Pub. L. No. 96-68,93 Stat. 419 (1979). The\nDepartment has developed in the last decade extensive guidelines governing\nsuch representation. See 28 C.F.R. \xc2\xa7 50.15.4\n2 The practice o f defending such officers was made necessary in the early days o f our country because the\ndoctrine o f sovereign im m unity forbade suits against the U nited States. Claim ants would therefore often sue\nthe officer who had taken the w rongful action, alleging that he had acted outside the scope o f his official\ncapacity.\n3 Early exam ples o f agency appropriations being used to pay private counsel fees can be found at 12 Op.\nA tt\xe2\x80\x99y Gen. 368 (1868), 9 Op. A tt\xe2\x80\x99y Gen. 146 (1858), 5 Op. A tt\xe2\x80\x99y Gen. 397 (1851), and 3 O p. A tt\xe2\x80\x99y Gen. 306\n(1838). \xe2\x80\x9cWhen a m inisterial or executive officer is sued for an act done in the lawful discharge o f his duty, the\ngovernm ent which em ployed him is bound, in conscience and h o n o r,. . . not [to] suffer any personal\ndetrim ent to com e upon him for his fidelity, but will adopt his act as its ow n and pay the expense o f\nmaintaining its legality before the tribunal where it is questioned.\xe2\x80\x9d 9 Op. A tt\xe2\x80\x99y Gen. 146, 148 (1838).\n4 The C om ptroller G eneral has long approved this use o f our general appropriation. See 31 Comp. Gen. 661\n(1952); see also 53 Comp. Gen. 301 (1973) (use o f judiciary appropriation to pay for litigation costs w hen\nDepartment of Justice has declined representation).\n\n7\n\n\x0cIn the 1980 Opinion, we advised the Civil Division that the Attorney General\ncould expend money from the Department\xe2\x80\x99s general appropriation to settle\nclaims against Department employees for damages caused by actions taken\nwithin the scope of their employment. As in the case of departmental payment\nof private counsel fees, our conclusion was based on the basic rule that a\ngeneral appropriation may be used to pay any expense that is necessary or\nincident to the achievement of the underlying objectives for which the appro\xc2\xad\npriation was made. General Accounting Office, Principles o f Federal A ppro\xc2\xad\npriations Law 3-12 to 3-15 (1982). If the agency believes that the expenditure\nbears a logical relationship to the objectives of the general appropriation, and will\nmake a direct contribution to the agency\xe2\x80\x99s mission, the appropriation may be used:\nIt is in the first instance up to the administrative agency to\ndetermine that a given item is reasonably necessary to accom\xc2\xad\nplishing an authorized purpose. Once the agency makes this\ndetermination, GAO will normally not substitute its own judg\xc2\xad\nment for that of the agency. Id. at 3-14.\nThere is a clear logical connection between the achievement of an agency\xe2\x80\x99s\nunderlying mission and protecting the agency\xe2\x80\x99s employees from financial\nliability for actions taken within the scope of their employment. As Attorney\nGeneral Black noted in 1858, it will be difficult to recruit or maintain a superior\nfederal work force if employees are fearful that they may face financial ruin for\ntheir actions notwithstanding the fact that they have acted within the scope of\ntheir employment.5\nSimilarly, the General Counsel for the Comptroller General has opined that\nthe Department of the Interior may use its general appropriation to pay a\njudgment entered against two game wardens who had been convicted of\ntrespass.6 See GAO Opinion B -168571-O.M. (Jan. 27, 1970) (unpublished).\nThe wardens had entered onto private property at the direction of their superiors in\norder to post \xe2\x80\x9cNo Hunting\xe2\x80\x9d signs. The General Counsel turned first to the question\nwhether the employees had been acting within the scope of their employment:\n5 9 O p. A tt\xe2\x80\x99y Gen. 51, 52 (1858). In 1838 A ttorney G eneral Butler determ ined that the Navy could pay a\nju d g m en t for dam ages and costs entered ag ain st a naval officer:\nT he recovery w as for acts done by C om m odore Elliot in the perform ance o f his official duty, and\nfo r costs occasioned b y the defenses m ade by the U nited States. It is therefore one o f those cases\nin w hich the o fficer ought to be fully indem nified; and the section to which I have referred may\nw ell be regarded as authorizing the departm ent to pay the amount required for such indem nifica\xc2\xad\ntion, if, as already suggested, there b e any funds w ithin its control properly applicable to such a\nsubject.\n3 O p. A tt\xe2\x80\x99y G en. 306 (1838). There is o th e r language in the early cases and A ttorney General opinions\nsupporting the proposition th at the governm ent should and w ill indemnify such em ployees, but it is not clear\nw hether the paym ent w as m ade in these c ase s from an agency appropriation or through special legislation.\nSee Tracy v. Swartwout, 35 U.S. (10 P e t.) 80, 9 8 -9 9 (1836) (\xe2\x80\x9cSom e personal inconvenience may be\nexperienced by an o fficer w ho shall be h e ld responsible in dam ages for illegal acts done under instructions of\na superior; but, as the governm ent in such cases is bound to indem nify the officer, there can be no eventual\nh ard sh ip ."); 9 Op. A tt\xe2\x80\x99y Gen. 51, 53 (1 8 5 7 ) (\xe2\x80\x9cIn Little v. Bareme , 6 U.S. (2 Cranch) 170, the G overnment\ntook no part in the defense, but it afterw ards assum ed th e judgm ent, and paid it w ith interest and all\ncharg es.\xe2\x80\x9d ).\n6 See Merovka v. Allen , 410 F.2d 1307 (1 0 th Cir. 1969).\n\n8\n\n\x0cIt is apparent that the claimants acted at the direction of their\nsuperiors and with legal advice upon which they were entitled to\nrely. They were required to act in the line of duty, and they\nintended faithfully to carry out the law enforcement activity of\nthe Bureau. Under these circumstances and especially since they\nwere directed by their superiors, the government is obligated to\ncompensate them.\nId. at 2.\n\nHe then examined whether the judgment should be paid out of what is\nfamiliarly called the Judgment Fund, 31 U.S.C. \xc2\xa7 1304, or some other source:\n[T]he judgment against the claimants is not sufficiently similar\nto a judgment against the United States to justify payment under\n31 U.S.C. 724a [now codified at 31 U.S.C. \xc2\xa7 1304], On the other\nhand, the claimants\xe2\x80\x99 course of conduct resulting in their pay\xc2\xad\nment of the damages was sanctioned and directed by the Bureau\nof Sport Fisheries and Wildlife to the extent that it can reason\xc2\xad\nably be considered as law enforcement activity of the Bureau.\nAccordingly, reimbursement to the claimants should be charged\nto the Department of Interior appropriation available to the\nBureau for necessary expenses of its law enforcement program.\nId. at 3.\n\nThe Comptroller General had earlier used the same analysis in determining\nthat the Justice Department could use its general appropriation to indemnify an\nFBI agent for a fine imposed by a district court for contempt of court. 44 Comp.\nGen. 312 (1964). The agent had refused, pursuant to Department regulations\nand instructions from the Attorney General, to answer certain questions con\xc2\xad\ncerning a Mafia figure. After first determining that the agent had been acting\nwithin the scope of his employment and that the Judgment Fund was not\navailable, the Comptroller General concluded:\n[I]t is a settled rule that where an appropriation is made for a\nparticular object by implication it confers authority to incur\nexpenses which are necessary or proper or incident to the ac\xc2\xad\ncomplishment of the objective or purpose for which made. The\nFBI appropriation. . . provides in general terms for, among\nother things, \xe2\x80\x9cexpenses necessary for the detection and prosecu\xc2\xad\ntion of crimes against the United States.\xe2\x80\x9d\n*\n\n*\n\n*\n\nAccordingly, and since it appears from the facts reported and\noutlined herein that the expense of the fine reasonably would\nfall into that category, we conclude that payment of the con\xc2\xad\ntempt fine of $500 may be regarded as a proper charge against\nthis appropriation.\n9\n\n\x0cId. at 314-15.\n\nMore recently, the Comptroller General reached the same conclusion with\nrespect to attorneys\xe2\x80\x99 fees assessed against FBI agents involved in a raid on the\nBlack Panthers. 59 Comp. Gen. 489 (1980). After noting that the lawsuit \xe2\x80\x9carose\nby reason of the performance of their duties as employees of the FBI,\xe2\x80\x9d the\nComptroller General stated flatly: \xe2\x80\x9cIt has long been our view that the United\nStates may bear expenses, including court imposed sanctions, which a Govern\xc2\xad\nment employee incurs because of an act done in the discharge of his official\nduties.\xe2\x80\x9d Id. at 492-93.\nThe Comptroller General has applied these principles in at least two cases\nraising the specific issue of individual liability for damages. In 1977, he issued\nan opinion addressing the issue of liability under 26 U.S.C. \xc2\xa7 7217 for disclo\xc2\xad\nsure of a taxpayer\xe2\x80\x99s return. 56 Comp. Gen. 615 (1977). Although IRS employ\xc2\xad\nees were protected under a specific statute authorizing their indemnification,\nsee 26 U.S.C. \xc2\xa7 7423(2), employees of other agencies that might have access to\nthe forms were not. The Comptroller General concluded that damage awards\nagainst these employees could be funded from their agencies\xe2\x80\x99 general appro\xc2\xad\npriations. Id. at 619. In the second case, the Comptroller General concluded\nthat the Drug Enforcement Administration could use its appropriation to settle\na case in which two of its agents were charged with conduct violating the\nFourth Amendment. See GAO Opinion B -176229 (Sept. 27, 1977) (unpub\xc2\xad\nlished).7\nFinally, this Office relied upon these principles in its opinions holding that\nthe Department of Defense could use one of its appropriations to fund the\nsettlement of constitutional tort claims against four Army officers arising out of\nBerlin D em ocratic Club v. Brown, 410 F. Supp. 144 (D.D.C. 1978). See\nMemorandum for the Attorney General from Larry A. Hammond, Deputy\nAssistant Attorney General, Office of Legal Counsel (Aug. 15, 1979); Memo\xc2\xad\nrandum from Larry A. Hammond, Acting Assistant Attorney General, Office\nof Legal Counsel to Barbara Allen Babcock, Assistant Attorney General, Civil\nDivision (Jan. 24, 1979).8\n7 The C o m p tro ller G eneral suggested that indem nification is not possible w hen an adverse final judgm ent is\nentered against an individual government em ployee on the issue o f fault. A lthough the 1980 Opinion did not\nreach th is issue, this O ffice advised the C iv il D ivision shortly thereafter that our analysis also supported the\nconclusion that, in appropriate circum stances, the A ttorney G eneral has authority to reim burse Justice\nD epartm ent em ployees for final judgments entered against them individually. See M emorandum for A lice\nD aniel, A ssistant A ttorney G eneral, Civil D ivision from John M. H annon, A ssistant A ttorney G eneral, O ffice\no f Legal C ounsel (A ug. 22, 1980).\nA s the A ssistant A ttorney General for the C ivil Division has underscored, the C om ptroller General has not\nm ade th e settlem ent/final judgm ent d istinction in other cases, \xe2\x80\x9cand in any event C om ptroller General\nopinions are not binding on the Attorney G en eral.\xe2\x80\x9d M em orandum for the A ttorney General from Richard K.\nW illard, A ssistant A ttorney General, C ivil D ivision (Jan. 6, 1986). M oreover, a careful reading o f the\nC om p tro ller G eneral opinion in which the d istinction was m ade suggests that it may actually relate to w hether\nthe ad v erse ju d g m en t reveals that actions o f the officer w ere outside the scope o f his employment. In any\nevent, w e believe th at such a distinction is untenable, and w e continue to adhere to previous opinions that\nindem nity is leg ally p erm issible both for settlem ents and final judgm ents.\n8 T he C ivil D iv isio n \xe2\x80\x99s 1984 Representation Study identified m em oranda from Attorneys General C iviletti\nand Sm ith th at ap p ear to conflict with th e view expressed in our 1980 opinion. M emorandum for A lice\nC ontinued\n\n10\n\n\x0cConclusion\nWe have reviewed our 1980 opinion on this subject and have again con\xc2\xad\ncluded that the Attorney General may use the Department\xe2\x80\x99s general appropria\xc2\xad\ntion to indemnify Department employees for adverse money judgments, as well\nas for settled or compromised claims, arising out of actions taken within the\nscope of their employment.\nCharles\n\nJ. C o o p e r\n\nAssistant Attorney General\nOffice o f Legal Counsel\n\n8 ( . . . continued)\nDaniel, A ssistant Attorney G eneral, C ivil D ivision from Benjamin R. C iviletti, A ttorney General (N ov. 20,\n1980); M emorandum to W illiam W ebster, D irector, Federal Bureau o f Investigation from W illiam French\nSmith, Attorney G eneral (N ov. 17, 1981) (resolving \xe2\x80\x9cto adhere to the existing D epartm ent policy generally\nnot to pay settlem ents on behalf o f em ployees\xe2\x80\x9d). This apparent conflict may have led to uncertainty w ithin the\nD epartm ent, resulting in statem ents by D epartm ent officials suggesting the need for express legislative\nauthority. See M emorandum fo r the A ttorney G eneral from R ichard K. W illard, Assistant A ttorney G eneral,\nC ivil Division (Jan. 6, 1986). W hile these statem ents obviously may be weighed in your decision on w hether\nto change the D epartm ent\xe2\x80\x99s indem nification policy and, if so, on how to alert C ongress, they do not affect our\nanalysis o f the Attorney G eneral\xe2\x80\x99s legal authority to indemnify.\n\n11\n\n\x0c'