b'Reimbursing Transition-Related Expenses Incurred\nBefore the Administrator of General Services Ascertained\nWho Were the Apparent Successful Candidates for the\nOffices of President and Vice President\nThe General Services Administration can reimburse the Bush/Cheney transition for legitimate\ntransition-related expenses, as contemplated by the Presidential Transition Act of 1963, that were\nincurred after the general election on November 7, 2000 but prior to December 14, 2000, when the\nAdministrator of GSA ascertained that George W. Bush and Richard Cheney were the apparent\nsuccessful candidates for the offices of President and Vice President.\n\nJanuary 17, 2001\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nGENERAL SERVICES ADMINISTRATION\nYou have requested our opinion concerning whether, under the Presidential\nTransition Act of 1963, as amended (\xe2\x80\x9cTransition Act,\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d), 1 funds appropriated for purposes of that Act can be used to reimburse the Bush/Cheney transition\nfor transition-related obligations they incurred after the general election but before\nthe Administrator of the General Services Administration (\xe2\x80\x9cAdministrator\xe2\x80\x9d)\nascertained that they were the \xe2\x80\x9capparent successful candidates for the office of\nPresident and Vice President\xe2\x80\x9d within the meaning of the Act. As you have\nacknowledged, before the Administrator could use any Transition Act funds to pay\nany such obligation of the President-elect or Vice-President-elect, he \xe2\x80\x9cwould have\nto confirm that the obligations were bona fide Transition expenses.\xe2\x80\x9d Letter for\nRandolph Moss, Assistant Attorney General, Office of Legal Counsel, from\nStephenie Foster, General Counsel, General Services Administration at 2 n.2\n(Dec. 20, 2000). 2\nThe Act authorizes the Administrator to expend the funds appropriated to implement the Act only for those services and facilities that are necessary to assist\nthe transition of the \xe2\x80\x9cPresident-elect\xe2\x80\x9d and the \xe2\x80\x9cVice-President-elect.\xe2\x80\x9d Id. \xc2\xa7 3(a).\nThe terms \xe2\x80\x9cPresident-elect\xe2\x80\x9d and \xe2\x80\x9cVice-President-elect\xe2\x80\x9d are defined under the Act\nto mean the individuals, \xe2\x80\x9cfollowing the general elections held to determine the\nelectors,\xe2\x80\x9d that the Administrator ascertains are \xe2\x80\x9cthe apparent successful candidates\nfor the office of President and Vice-President, respectively.\xe2\x80\x9d Id. \xc2\xa7 3(c). We\nrecently concluded that \xe2\x80\x9c[s]ince there cannot be more than one \xe2\x80\x98President-elect\xe2\x80\x99\n1\nThe Presidential Transition Act is set out in the notes to section 102 of title 3 of the United States\nCode. See 3 U.S.C. \xc2\xa7 102 note (1994). The Act has also recently been amended. For those amendments,\nsee Presidential Transition Act of 2000, Pub. L. No. 106-293, 114 Stat. 1035.\n2\nWe also address only your question of whether the Act permits such reimbursements. We do not\nconsider whether there are other legal requirements that might relate more generally to transitionrelated reimbursements.\n\n7\n\n227-329 VOL_25_PROOF.pdf 17\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nand one \xe2\x80\x98Vice-President-elect\xe2\x80\x99 under the Act, the Presidential Transition Act does\nnot authorize the Administrator to provide transition assistance to more than one\ntransition team.\xe2\x80\x9d See Authority of the General Services Administration to Provide\nAssistance to Transition Teams of Two Presidential Candidates, 24 Op. O.L.C.\n322, 322 (Nov. 28, 2000) (\xe2\x80\x9cGSA Authority\xe2\x80\x9d). This conclusion, however, does not\nanswer the question whether the Administrator may reimburse the President-elect\nand/or Vice-President-elect for obligations related to legitimate transition activities\nthat they incurred beginning the day following the general election (November 8,\n2000) but prior to the Administrator\xe2\x80\x99s determination that they were in fact \xe2\x80\x9cthe\napparent successful candidates for the office of President and Vice President,\xe2\x80\x9d\nwhich in this election did not occur until December 14, 2000. Based on the\nlanguage and purposes of the Act, we conclude that the Administrator can\nreimburse the President-elect and Vice-President-elect for such expenses.\nThe argument that funds appropriated to implement the Act cannot be used to\nreimburse the President-elect and Vice-President-elect for post-election transition\nobligations incurred prior to December 14, 2000 depends on a reading of the Act\nthat would limit such reimbursement only to those obligations incurred by the\nPresident-elect or Vice-President-elect after they held that status as defined in the\nAct. Under such a reading, because the Act defines both these terms as requiring a\ndetermination by the Administrator that each candidate is the apparent successful\ncandidate, and because that determination did not take place until December 14,\n2000, any obligations incurred prior to that time would not qualify for reimbursement. We conclude, however, that this is not the best reading of the statute.\nSection 3(b) of the Act specifies that the Administrator may not expend funds\nfor the provision of services and facilities under the Act\nin connection with any obligations incurred by the President-elect or\nVice-President-elect\xe2\x80\x94\n(1) before the day following the date of the general elections held to\ndetermine the electors of President and Vice President under section\n1 or 2 of title 3, United States Code; or\n(2) after 30 days after the date of the inauguration of the Presidentelect as President and the inauguration of the Vice-President-elect as\nVice President.\nIf the term \xe2\x80\x9cPresident-elect\xe2\x80\x9d in the phrase \xe2\x80\x9cincurred by the President-elect\xe2\x80\x9d was\nitself intended to incorporate a temporal limitation on reimbursement\xe2\x80\x94i.e., no\nreimbursement for any obligations incurred prior to the time the Administrator\ndetermines who the President-elect is\xe2\x80\x94then section 3(b)(1) would serve little\npurpose. As a practical matter, the Administrator cannot determine who \xe2\x80\x9cthe\napparent successful candidate[] for the office of President\xe2\x80\x9d is \xe2\x80\x9cbefore the day\n\n8\n\n227-329 VOL_25_PROOF.pdf 18\n\n10/22/12 11:10 AM\n\n\x0cReimbursing Transition-Related Expenses of President and Vice President\n\nfollowing the date of the general elections held to determine the electors of\nPresident and Vice President.\xe2\x80\x9d The separate prohibition of section 3(b)(1) thus\nwould have little function if the phrase \xe2\x80\x9cincurred by the President-elect\xe2\x80\x9d already\nlimited reimbursement to those obligations incurred after the designation of the\nPresident-elect. 3 Because interpretations of statutes that render language superfluous are disfavored, Connecticut Nat\xe2\x80\x99l Bank v. Germain, 503 U.S. 249, 253 (1992),\nwe reject the view that the phrase \xe2\x80\x9cincurred by the President-elect\xe2\x80\x9d itself bars\nreimbursement for legitimate transition obligations incurred by the person\nultimately ascertained to be the President-elect prior to the time that the Administrator designates an apparent successful candidate. Section 3(b)(1) evidently\nrecognizes that the person who eventually becomes the President-elect may incur\ntransition-related obligations prior to the election itself (or even within the very\nbrief period of time that may exist between the end of the election and the next\nday), and the provision operates to bar reimbursement of any such expenses. 4\nFurther support for this construction is found in section 3(b)(2) of the Act,\nwhich bars the Administrator from reimbursing transition obligations \xe2\x80\x9cincurred by\nthe President-elect . . . after 30 days after the date of the inauguration of the\nPresident-elect as President.\xe2\x80\x9d Plainly, any transition-related obligations incurred\nafter the date of the inauguration cannot be incurred by \xe2\x80\x9cthe President-elect\xe2\x80\x9d; they\nwould instead be incurred by the President. Thus, section 3(b)(2), like section 3(b)(1), reflects Congress\xe2\x80\x99s understanding that the phrase \xe2\x80\x9cincurred by the\nPresident-elect\xe2\x80\x9d does not limit reimbursement to obligations incurred only by a\nperson who, at the time the obligation is incurred, actually is the \xe2\x80\x9cPresident-elect.\xe2\x80\x9d\nFinally, our construction finds support in section 3(a), which sets out the services and facilities that the Administrator is authorized to provide. This section\nspecifically states:\n3\nIt is conceivable that the Administrator could determine that a candidate was the apparently\nsuccessful candidate after the polls had closed but prior to the day following the election. In such a\nsituation, if the term \xe2\x80\x9cPresident-elect\xe2\x80\x9d were understood to operate as a temporal limitation, section 3(b)(1) could serve the independent function of prohibiting the Administrator from reimbursing\nany transition-related obligations incurred by the President-elect in the few hours after the polls closed\nbut prior to the day following the election. This possibility appears so remote, the amount of\nobligations that could be incurred so slight and the policy supporting such a distinction so unclear that\nwe consider such a potential independent function to be too insubstantial to support the view that the\nterm \xe2\x80\x9cPresident-elect\xe2\x80\x9d itself incorporates a temporal restriction on reimbursement.\n4\nThis construction of section 3 is consistent with two provisions added to the Act in 2000 that\npermit the expenditure of funds prior to the election itself. See Pub. L. No. 106-293, \xc2\xa7 2, 114 Stat.\nat 1036 (relevant provisions added as paragraphs (9) and (10) of the Presidential Transition Act).\nParagraph (10) expressly provides that the Administrator may consult with \xe2\x80\x9cany candidate for President\nor Vice President to develop a systems architecture plan for the computer and communications systems\nof the candidate to coordinate a transition to Federal systems.\xe2\x80\x9d See Presidential Transition Act,\n\xc2\xa7 3(a)(10). Paragraph (9) involves the development of a transition directory prior to the election. Id.\n\xc2\xa7 3(a)(9). Only in this narrow category of pre-election transition expenses does the Act authorize\ndisbursements, thus providing support to our view that transition expenses that might be incurred prior\nto the day after the election are, generally, not reimbursable due to section 3(b)(1).\n\n9\n\n227-329 VOL_25_PROOF.pdf 19\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nThe Administrator of General Services . . . is authorized to provide,\nupon request, to each President-elect and each Vice-President-elect,\nfor use in connection with his preparations for the assumption of official duties as President or Vice President necessary services and facilities, including [payment of compensation of members of office\nstaffs, payment of expenses for the procurement of experts or consultants, payment of travel expenses and subsistence allowances,\netc.].\nAlthough this provision authorizes assistance only to the \xe2\x80\x9cPresident-elect\xe2\x80\x9d and the\n\xe2\x80\x9cVice-President-elect,\xe2\x80\x9d it does not limit that assistance to expenses incurred after\nthe determination of that fact. To the contrary, the Act as a whole only limits the\nassistance to obligations that are \xe2\x80\x9cin connection with his preparations for the\nassumption of official duties as President or Vice President\xe2\x80\x9d and which were\nincurred after \xe2\x80\x9cthe day following the date of the general elections held to determine the electors.\xe2\x80\x9d This indicates a congressional intent to reimburse the President-elect and Vice-President-elect for any legitimate transition related expenses\nincurred by them after the general election.\nThis reading of the statute is also consistent with its purposes, and promotes its\ngoals. Based on a recognition that \xe2\x80\x9cthe orderly transfer of the executive power in\nconnection with the expiration of the term of office of a President and the inauguration of a new President\xe2\x80\x9d is in the \xe2\x80\x9cnational interest,\xe2\x80\x9d id. \xc2\xa7 2, Congress believed\nthat transition efforts are a public function that should be financed by government\nfunds rather than by private interests. See 109 Cong. Rec. 13,346 (1963) (statement of Rep. Rosenthal); id. at 13,347 (1963) (statement of Rep. Monagan).\nCongress concluded that it was not fair to place the financial burden on the\nPresident-elect, private individuals and the national political parties, see, e.g., id. at\n13,347 (statement of Rep. Monagan) (\xe2\x80\x9cthe country cannot reasonably expect that\n[the costs of transition] will any longer be borne by individuals or even by a party\norganization. They are an integral part of the presidential administration and\nshould be borne by the public.\xe2\x80\x9d), and that it was bad public policy for private\nindividuals possibly to feel that they were entitled to special consideration as a\nresult of helping to fund a cost of government. See, e.g., id. at 13,346 (statement of\nRep. Rosenthal) (\xe2\x80\x9cIf someone is going to come forward and help pay what we now\nrecognize is a cost of government, which is actually what it is, during the transitional period, that person may feel inclined to think that he is entitled to special\nconsideration from the government.\xe2\x80\x9d).\nThose expenses incurred by the President-elect and Vice-President-elect after\nthe election but prior to December 14, 2000 (and in relation to transition activities\nas contemplated under the Act) are precisely the sort of expenses that Congress\nfelt it was important to fund publicly because Congress viewed these activities as\n\xe2\x80\x9cexpenses that are necessary and pertinent to the job of the Presidency and the\n\n10\n\n227-329 VOL_25_PROOF.pdf 20\n\n10/22/12 11:10 AM\n\n\x0cReimbursing Transition-Related Expenses of President and Vice President\n\nVice Presidency,\xe2\x80\x9d 109 Cong. Rec. at 19,738 (statement of Sen. Jackson); \xe2\x80\x9ca public\nfunction,\xe2\x80\x9d id. at 13,346 (statement of Rep. Rosenthal); \xe2\x80\x9can integral part of the\npresidential administration,\xe2\x80\x9d id. at 13,347 (statement of Rep. Monagan); and, as\nPresident Kennedy expressed in his letter transmitting the proposed legislation that\nwas to become the Presidential Transition Act, \xe2\x80\x9cthe reasonable and necessary costs\nof installing a new administration in office.\xe2\x80\x9d Letter of Transmittal from the\nPresident of the United States to the President of the Senate and the Speaker of the\nHouse of Representatives (May 29, 1962), reprinted in H.R. Rep. No. 88-301, at 9,\n12 (1963). As long as the transition obligations at issue were incurred within the\ntime frame specified by the Act, the Administrator\xe2\x80\x99s inability, due to the closeness\nof the election, to determine the President-elect and Vice-President-elect until\nseveral weeks after the election itself should not operate to cut off reimbursement\nof legitimate, post-election transition-related expenses.\nTo be sure, in our earlier opinion, we concluded that the Act prohibits the\nAdministrator from expending transition funds prior to a determination of \xe2\x80\x9cthe\napparently successful candidates.\xe2\x80\x9d That conclusion, however, is consistent with\nour determination here that, once the President-elect is determined, the Administrator may expend available funds to reimburse the now-designated President-elect\nfor legitimate post-election transition obligations his transition incurred prior to\nthat designation. The prohibition on expenditure prior to the determination of the\napparent successful candidate is designed to ensure both that public funds are not\ndisbursed in a manner that might influence the outcome of a disputed election, and\nthat those funds are expended only on obligations that are truly related to the\nactual transition of the President-elect and Vice-President-elect. As Representative\nFascell, a sponsor and manager of the bill, explained:\nThe pending legislation does not seek to do anything about [the determination of the election of the President and the Vice President]\nor change it in any way, and we are not directly concerned with the\nquestion of election, nomination, or the inauguration, for that matter.\nBut we do provide under this pending legislation, as we have provided in previous congressional actions, the right of the Administrator\nto determine that funds shall be spent for certain services, supplies,\nand other things for the benefit of the President-elect and the VicePresident-elect.\n109 Cong. Rec. at 13,349 (emphasis added). However, to construe the Act in such\na manner that it bars not only expenditures of funds prior to a determination of the\napparent successful candidate, but also reimbursement of legitimate transition\nobligations that the transition incurs after the election but prior to the designation\nof the President-elect, would have the perverse effect of denying the Presidentelect and Vice-President-elect the very funds Congress made available for their\n\n11\n\n227-329 VOL_25_PROOF.pdf 21\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nbenefit. Neither the language of the statute nor its legislative history supports such\na result. As Representative Fascell explained to the House, \xe2\x80\x9cthis bill formalizes\n[the process] by authorizing the funding procedures for the orderly transition of\nexecutive power so that certain services will be available to the incoming President between the time of his election and inauguration.\xe2\x80\x9d 110 Cong. Rec. 3539\n(1964) (emphasis added). 5 The Administrator\xe2\x80\x99s determination under section 3(c) of\nthe Act confirms which of the candidates for President is entitled to receive\ntransition funds and when the Administrator may first begin expending those\nfunds; that determination does not also serve to establish the time frame within\nwhich legitimate transition-related obligations must be incurred in order to qualify\nfor reimbursement. That time frame is set forth in section 3(b) of the Act.\nIn sum, we conclude that the General Services Administration can reimburse\nthe transition for legitimate transition-related expenses, as contemplated by the\nPresidential Transition Act of 1963, that were incurred after November 7, 2000 but\nprior to December 14, 2000.\nRANDOLPH D. MOSS\nAssistant Attorney General\nOffice of Legal Counsel\n\n5\n\nWe noted, in the GSA Authority opinion, Representative Fascell\xe2\x80\x99s statement that:\nThis act and the Administrator could in no way, in any way, affect the election of\nthe successful candidate. The only decision the Administrator can make is who the\nsuccessful candidate\xe2\x80\x94apparent successful candidate\xe2\x80\x94for the purposes of this particular act in order to make the services provided by this act available to them. And, if\nthere is any doubt in his mind, and if he cannot or does not designate the apparently\nsuccessful candidate, then the act is inoperative. He cannot do anything. There will be\nno services provided and no money expended.\n\n24 Op. O.L.C. at 325 (quoting 109 Cong. Rec. at 13,349). We read this and similar statements in the\nlegislative history to refer to when the Administrator is authorized to make expenditures under the Act\nrather than to refer to the period in which obligations can be incurred by the transition for which\nreimbursement expenditures can ultimately be made by the Administrator following his ascertainment\nof the President-elect.\n\n12\n\n227-329 VOL_25_PROOF.pdf 22\n\n10/22/12 11:10 AM\n\n\x0c'


b'Funding an Agency\xe2\x80\x99s Functions from\nIts Working Capital Fund\nThe Secretary of Com merce may designate certain agency functions now funded out of his Depart\xc2\xad\nm ent\xe2\x80\x99s General Administration (GA) appropriation as \xe2\x80\x9ccentral services\xe2\x80\x9d and transfer respon\xc2\xad\nsibility for their funding to the working capital fund, 15 U .S.C. \xc2\xa7 1521, so that they will\nhenceforth be paid for with funds appropriated to the various component bureaus of the Depart\xc2\xad\nment of Com merce. The Secretary m ay thereby avoid exhaustion of the GA account, the likely\nconsequence of a ruling of the Comptroller General disallowing direct reimbursement of the GA\nby the bureaus on grounds that it would unlawfully augment the GA appropriation.\nThe authority for a working capital fund in 15 U.S.C. \xc2\xa7 1521 constitutes an exception to the\nCom ptroller G eneral\xe2\x80\x99s rule prohibiting an agency from switching responsibility for funding a\nparticular service from one appropriation account to another.\n\nJune 16, 1982\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL,\nDEPARTMENT OF COMMERCE\nThis responds to your request for an opinion on whether any of the services\nnow paid out of the Department of Commerce\xe2\x80\x99s General Administration (GA)\nappropriation1may be transferred to its working capital fund, 15 U.S.C. \xc2\xa7 1521,\nwhere they will be paid for out of the appropriations of the various components of\nthe Department. The issue has arisen because of a recent Comptroller General\xe2\x80\x99s\nopinion, B-206669 (Mar. 15, 1982), disallowing direct reimbursement of three\nservices by the components to the GA account.2 Failure to reimburse the GA\naccount will result in its rapid exhaustion, necessitating the furlough of a\nsubstantial number of employees for the remainder of the fiscal year. We believe\nthat the problem can be resolved by the application of a statute that the Comp\xc2\xad\ntroller General did not consider\xe2\x80\x94 15 U.S.C. \xc2\xa7 1521.\nI. Background\nCommerce\xe2\x80\x99s divisions are funded by several lump sum appropriations cover\xc2\xad\ning the Office of the Secretary and the various components, such as the Bureau of\n1\n\nGeneral Administration\nSalaries and Expenses\nBor expenses necessary for the general administration of the Department of Commerce, including\nnot to exceed $2,000 for official entertainment, $28,407,000.\nH.R 4169, 97th Cong , 1st Sess. at 2 (1981).\n2 The Comptroller G eneral, reviewing Commerce\'s proposal, held that the budgetary transfers suggested were an\nunlawful augmentation of the GA appropriation. 31 U.S C \xc2\xa7\xc2\xa7 628,628-1 (1976) He argued that the funds for the\nGA account constitute a "specific\xe2\x80\x9d appropriation for general, department-wide administration, slip op. at 2, which,\nonce exhausted, cannot be supplemented by transfers from other appropriations Id at 4 The three services\nproposed for reimbursement were (1) the cost of Assistant Secretaries and their immediate staffs, (2) the Office of\nPersonnel Policy, and (3) Special Projects. You have indicated that you will be choosing from a much wider variety\nof services, totaling over $18,000,000, for transfer under 15 U S.C \xc2\xa7 1521\n\n384\n\n\x0cthe Census. The present continuing appropriation for fiscal year 1982, H.R.J.\nRes. 370,97th Cong., 1st Sess., Pub. L. No. 97-92, 95 Stat. 1183, 1190(1981),\nappropriated funds \xe2\x80\x9cat the rate provided in H.R. 4169,\xe2\x80\x9d which was passed by the\nHouse of Representatives last fall. In H.R. 4169, 97th Cong., 1st Sess. (1981),\nthe GA account received $28,407,000, a reduction of $5,618,000 from fiscal\nyear 1981, and $7,315,000 below the budget request submitted by the President.\nH.R. Rep. No. 180, 97th Cong., 1st Sess. 8(1981). Because of this reduction in\nfunding, it was decided to charge to the bureaus\xe2\x80\x99 appropriations certain activities\nformerly charged to the central GA.\nThe appropriations for the GA, see n .l, and the various bureaus are broadly\nworded,3 and would appear to fall into the category known as lump sum\nappropriations. As a general rule, money in a lump sum appropriation can be\nspent on anything within the purview of an appropriations act, regardless of the\ncongressional intent indicated in reports, debates, or hearings. In re Newport\nNews Shipbuilding & Dry Dock Co., 55 Comp. Gen. 812, 819-20 (1976); In re\nLTV Aerospace Corp., 55 Comp. Gen. 307, 319 (1975).4 Congress can and does\nplace restrictions on an agency\xe2\x80\x99s funds when it wants to remove that discretion.\nId. at 318-19. Resort to legislative intent is only used to discover whether a\nparticular item is within an appropriation\xe2\x80\x99s general language\xe2\x80\x94 i.e., whether\ncertain kinds of planes fall within the meaning of an appropriation for \xe2\x80\x9cmilitary\naircraft.\xe2\x80\x9d Id. at 325.\n\nII. Discussion\nThe issue in this discussion is whether the bureaus\xe2\x80\x99 appropriations may be used\nto pay for services that have heretofore been paid from the GA account. We\nbelieve that they may.\nFirst, the appropriations for most of Commerce\xe2\x80\x99s bureaus are lump sum\nappropriations, see, e.g., n.2, whose monies may be expended on anything\nwithin the scope of the appropriation.5 We believe that you may properly\n3 For example, the appropriation for the F^tent and Trademark Office states: \xe2\x80\x9cFor necessary expenses of the Ritent\nand Trademark Office, including defense of suits instituted against the Commissioner of Patents and Trademarks,\n$118,961,000, to remain available until expended " H R 4169, 97th Cong., 1st Sess , al 8 (1981). Other\nCommerce units include the Economic Development Administration, the International Trade Administration, the\nMinority Business Development Agency, the United States Travel and Tourism Administration, the National\nOceanic and Atmospheric Administration, the National Bureau of Standards, the National Technical Information\nService, and the National Telecommunications and Information Administration\n4 \xe2\x80\x9cThe realities of the annual appropriations process, as well as nonstatutory arrangements such as reprogram\xc2\xad\nming, provide safeguards against abuse " 55 Comp Gen. at 820.\n5 The absence of specific limitations or prohibitions in the terms of an appropriations statute implies that Congress\ndid not intend to impose restraints upon an agency\'s flexibility in shifting funds within a particular lump sum account\namong otherwise authorized activities or programs\xe2\x80\x94 unless of course Congress has in some other law specified that\nfunds from the appropriation in question should be spent (or not, as the case may be) in a particular manner By the\nsame token, an agency\xe2\x80\x99s legal authority to fund an authorized program from its general operating funds does not\ndepend upon its being able to point to some references to that program in its budget justification or elsewhere in the\nappropriations process This is because the lawfulness of an expenditure is tested by the terms of the appropriations\nstatute and any other relevant law, and not with reference to legislative history Thus, inclusion of an activity or\nfunction in the \xe2\x80\x9cclass of objects\xe2\x80\x9d for which an agency\xe2\x80\x99s general funds may be spent does not depend upon Congress\xe2\x80\x99\naffirmative acknowledgement in the appropriations process that the activity or function will be funded or even its\nbeing explicitly so informed by the agency. If the activity or function is one which Congress has elsewhere given the\nagency authority to perform, its funding does not depend upon its being singled out for specific mention each year in\nthe appropriation process.\n\n385\n\n\x0cdetermine that there are services listed in your submission that are covered by the\nlanguage of the bureaus\xe2\x80\x99 appropriations.\nSecond, Commerce\xe2\x80\x99s working capital fund provides a statutory mechanism for\nthe transfer of funds. 15 U.S.C. \xc2\xa7 1521.6 The Secretary may charge services to\nthe fund which he determines, and the Office of Management and Budget agrees,\n\xe2\x80\x9cmay be performed more advantageously as central services.\xe2\x80\x9d The fund is kept\nwhole through reimbursement from the relevant bureaus which pay in funds for\ntheir proportion of the services.7\nDiscretion in determining what is a \xe2\x80\x9ccentral\xe2\x80\x9d service lies with the Secretary,8\nand he may designate as \xe2\x80\x9ccentral\xe2\x80\x9d any service that he believes will be performed\nmore advantageously on a department-wide rather than a bureau basis. The\nbureaus may then use their general appropriations to pay for those services\npursuant to 15 U.S.C. \xc2\xa7 1521.9\nSince soon after its passage, 15 U.S.C. \xc2\xa7 1521 has been used to transfer\nfunctions from the Office of the Secretary, where they were paid out of the GA\naccount, to the working capital fund, where they were paid out of the bureaus\xe2\x80\x99\nappropriations. For example, in 1947 the Secretary asked that the departmental\nstockroom be transferred to the working capital fund.10 \xe2\x80\x9cThe original purchases\nfor stock are made from the appropriation \xe2\x80\x98Salaries and Expenses, Office of the\nSecretary, Department of Commerce\xe2\x80\x99 [the GA account], with the appropriation\n6 Section 1521 provides as follows (emphasis added)*\nThere is established a working capital fu n d of $100,000, without fiscal year limitation, for the\npayment c f salaries and other expenses necessary to the maintenance and operation c f ( 1) central\nduplicating, photographic, drafting, and photostating services and (2) such other services as the\nSecretary, with the approval c f the Director of the Office of Management andBudget, determines may\nbe performed more advantageously as central services; said fund to be reimbursed from applicable\nfunds of bureaus, offices, and agencies for which services are performed on the basis of rates which\nshall include estimated or actual charges for personal services, materials, equipment (including\nmaintenance, repairs, and depreciation) and other expenses* Provided, That such central services\nshall, to the fullest extent practicable, be used to make unnecessary the maintenance of separate like\nservices in the bureaus, offices, and agencies of the Department Provided further. That a separate\nschedule of expenditures and reimbursements, and a statement of the current assets and liabilities of\nthe working capital fund as of the close of the last completed fiscal year, shall be included in the\nannual Budget.\nSee Department c f Commerce Appropriation B ill fo r 1945. Hearings Before the Subcomm. c f the House Comm on\nAppropriations, 78th Cong., 2d Sess. 33-35 (1944), H R. Rep. No. 1149, 78th Cong., 2d Sess. 19 (1944)\n7 Approximately $30,000,000 in services are now funded annually through the working capital fund\n8 It is essential, of course, that such services fall within the statutory intent of 15 U.S.C. \xc2\xa7 1521, and that they\noffer truly department-wide benefits. Pnor uses of the statute have included designation of fiscal, travel, audio\nvisual, messenger, and laundry services as \xe2\x80\x9ccentral " Services that are of particular use only to a single bureau, or\nwhich properly fall only within the scopeof that bureau\xe2\x80\x99s activities, do notfall within the intent of 15 U S C \xc2\xa7 1521.\nIf a service does not fall within the intent of 15 U S C. \xc2\xa7 1521, your Office can provide advice on alternative\nsources of funding, such as through the transfer of personnel Reorg.PlanNo 5 o fl9 5 0 ,\xc2\xa7 4, reprinted in 5 U .S C ,\nApp.\n9 We are aware that the Comptroller General has articulated a general rule that where an agency has chosen to pay\nfor an item out of one of two generally available appropriations, the agency must continue to use the first\nappropriation for the item and cannot decide at some later date to use the second instead. See 59 Comp Gen. 518,\n520-21 (1980); 23 Comp. Gen 827,828(1944); 10 Comp Gen. 440,443 (1931); 15 Comp. Gen. 101,102(1908).\nBut see 12 Comp. Gen 331, 333 (1932), 5 Comp. Gen. 479, 480 (1926). We need not examine the ramifications of\nthe rule m this context\xe2\x80\x94 or, indeed, whether it can be reconciled with the flexibility the Comptroller General has\ngiven the agencies in the lump sum context\xe2\x80\x94 because we believe that 15 U S.C \xc2\xa7 1521 provides a statutory\nexception to this general rule of construction. To the extent that this general rule is an interpretation of 31 U S.C\n\xc2\xa7 628-1, which forbids a transfer o f funds from one appropriation to another except as specifically authorized, 15\nU .S.C . \xc2\xa7 1521 provides the necessary authorization\n10 Letter for Hon. James E Webb, Director, Bureau of the Budget, from Acting Secretary Foster, June 30, 1947.\n\n386\n\n\x0cbeing reimbursed by the bureaus upon the receipt of a billing based on their\nrespective withdrawals.\xe2\x80\x9d" The request was approved by the Bureau of the\nBudget.12 Likewise, in 1951, the Secretary asked permission to transfer the\nexpenses of the Department\xe2\x80\x99s health unit to the working capital fund.\nFor some years the Office of the Secretary has been purchasing\nsupplies and providing funds for the necessary maintenance of the\nHealth Unit.13\nApproval was promptly granted.14 The same exchange of letters asked for and\napproved the transfer of payments for transcripts of Loyalty Board hearings, from\nthe same GA account, which was being used as a \xe2\x80\x9csuspense account\xe2\x80\x9d until the\nbureaus paid their bills, to the working capital fund.15 In 1962, the Bureau of the\nBudget approved a request that Accounting Operations funded out of the GA\naccount be transferred to the working capital fund, where the bureaus could be\ncharged for its services.16 Therefore, we believe the Secretary can designate\nservices as \xe2\x80\x9ccentral\xe2\x80\x9d and to be paid out of the working capital fund by the bureaus\nregardless of the appropriation out of which they have traditionally been paid.17\nWe do not believe that it is proper for this Office to outline what can or cannot\nbe designated as a central service. The decision is for the Secretary, who is in the\nbest position to determine what services may be performed more advantageously\ncentrally, informed by prior administrative practice and subject to the approval of\nthe Office of Management and Budget.\nSince the Comptroller General did not consider use of 15 U.S.C. \xc2\xa7 1521, we\ndo not believe that his opinion should interfere with your implementation of any\npayments under it.\nT h eo d o r e B . O lso n\n\nAssistant Attorney General\nOffice of Legal Counsel\n\n" I d at I\n12 Letter for Acting Secretary Foster from Assistant Director Bailey, Bureau of the Budget, Aug 21, 1947.\n13 Letter for Hon Frederick J. Lawton, Director, Bureau of the Budget, from Assistant Secretary Osthagen,\nDepartment of Commerce, Aug. 24, 1951\n14 Letter for Secretary Sawyer, Department of Commerce, from Direct or Lawton, Bureau of the Budget, Sept. 20,\n1951.\n15 Letter, supra n. 13, at 1-2.\n16 Letter for Hon David E. Bell, Director, Bureau of the Budget, from Assistant Secretary Koltz, Department of\nCommerce, Oct 25, 1962; Letter for Secretary Hodges, Department of Commerce, from Bell, Bureau of the\nBudget, Nov. 9, 1962\n17 The bureaus\xe2\x80\x99 payments for services heretofore paid for out of the GA do not constitute a transfer between\nappropriations in contravention of 3 1 U S C \xc2\xa7 628-1, since the money goes into the working capital fund, not the\nGA account Services will be billed retroactively directly to the bureaus for the entire fiscal year\n\n387\n\n\x0c'


b'Authority of Federal Judges and Magistrates to Issue\n\xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants\nFederal judges and magistrates may lawfully and constitutionally issue \xe2\x80\x9cno-knock\xe2\x80\x9d warrants where\ncircumstances justify a no-knock entry, and federal law enforcement officers may lawfully apply for\nsuch warrants under such circumstances.\nAlthough officers need not take affirmative steps to make an independent re-verification of the\ncircumstances already recognized by a magistrate in issuing a no-knock warrant, such a warrant does\nnot entitle officers to disregard reliable information clearly negating the existence of exigent\ncircumstances when they actually receive such information before execution of the warrant.\n\nJune 12, 2002\n\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL\nDRUG ENFORCEMENT ADMINISTRATION\nThis responds to your memorandum seeking this Office\xe2\x80\x99s opinion whether\nfederal judges and magistrate judges have legal authority to issue so-called \xe2\x80\x9cnoknock\xe2\x80\x9d warrants. 1 In addition to considering the information and analysis contained in your memorandum, we have also solicited and received the views of the\nDepartment\xe2\x80\x99s Criminal Division, which has both interest and experience in this\narea. 2\nAfter giving full consideration to these submissions, and having reviewed the\npertinent statutes and case law, we conclude that federal district court judges and\nmagistrates may lawfully and constitutionally issue no-knock warrants\xe2\x80\x94i.e.,\nwarrants authorizing officers to enter certain premises to execute a warrant without\nfirst knocking or otherwise announcing their presence where circumstances (such\nas a known risk of serious harm to the officers or the likelihood that evidence of\ncrime will be destroyed) justify such an entry. It follows that federal law enforcement officers may lawfully apply for such warrants based on information showing\nsuch circumstances to be present. We further conclude that the issuance of a noknock warrant by a neutral magistrate, while not conclusive on the issue, will\ngenerally reinforce the admissibility of evidence obtained through no-knock\nentries executed pursuant to such warrants under Leon\xe2\x80\x99s good-faith exception to\nthe exclusionary rule 3 and by fortifying the objective reasonableness of the police\nconduct. Even when authorized by such a no-knock warrant, however, a no-knock\n1\nSee Memorandum for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal\nCounsel, from Cynthia R. Ryan, Chief Counsel, Drug Enforcement Administration, Re: Authority of\nFederal Judges to Issue \xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants (Oct. 26, 2001) (\xe2\x80\x9cDEA Memorandum\xe2\x80\x9d).\n2\nSee Memorandum for M. Edward Whelan III, Acting Assistant Attorney General, Office of Legal\nCounsel, from Patty Stemler, Chief, Appellate Section, Criminal Division (Dec. 11, 2001) (\xe2\x80\x9cCRM\nMemorandum\xe2\x80\x9d).\n3\nSee United States v. Leon, 468 U.S. 897 (1984).\n\n44\n\n227-329 VOL_26_PROOF.pdf 54\n\n10/22/12 11:13 AM\n\n\x0cAuthority of Federal Judges and Magistrates to Issue \xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants\n\nentry might nonetheless violate the Fourth Amendment if the officers have actual\nknowledge that the circumstances that justified the no-knock authorization no\nlonger exist at the time the warrant is executed.\nI.\nYour inquiry notes that it is the present practice of some United States Attorneys\xe2\x80\x99 offices to seek \xe2\x80\x9cno-knock\xe2\x80\x9d search warrants and recognizes that some federal\nmagistrate judges issue such warrants. DEA Memorandum, supra note 1, at 2.\nYour memorandum also states that components of the Criminal Division have\nadvised federal prosecutors that it is appropriate to seek no-knock warrants when\nthe facts supporting a no-knock entry are known to exist at the time the warrant is\nsought. Id.; see also CRM Memorandum, supra note 2, at 1 (stating that the\nCriminal Division \xe2\x80\x9crecommends that we continue to seek such warrants on\nappropriate facts\xe2\x80\x9d). You also note that various States have enacted statutes that\nexplicitly authorize judges to issue no-knock warrants, whereas a previous federal\nstatutory authorization for the issuance of such warrants in controlled substances\ncases was repealed in 1974.\nYou advise that DEA has assisted state and local police in the execution of state\nno-knock warrants and that DEA has been requested by a United States Attorney\xe2\x80\x99s\noffice to participate in the execution of a number of federal no-knock warrants.\nYou further explain, however, that current DEA policy, as reflected in section\n6653.2.C of the DEA Agents Manual, is based on the contrary premise that\n\xe2\x80\x9cFederal law does not allow for the issuance of a \xe2\x80\x98no-knock\xe2\x80\x99 warrant.\xe2\x80\x9d DEA\nMemorandum at 3. Your memorandum therefore expresses concern regarding the\nlegal accuracy of DEA\xe2\x80\x99s current policy. You have requested that we address that\nconcern in this opinion.\nIn response to our request for its views, the Criminal Division has submitted a\nmemorandum supporting the legality and constitutionality of no-knock warrants\nand recommending \xe2\x80\x9cthat we continue to seek such warrants on appropriate facts.\xe2\x80\x9d\nCRM Memorandum at 1. In the Division\xe2\x80\x99s view, the issue presented here \xe2\x80\x9cultimately turns on the following question: Can an issuing magistrate sanction a\nconstitutional manner of executing a warrant in the absence of a statute or rule that\ngives him authority to address the question?\xe2\x80\x9d Id. at 5. The Division answers that\nquestion in the affirmative, and further endorses the view expressed by the Eighth\nCircuit in United States v. Moore, 956 F.2d 843, 849 n.8 (8th Cir. 1992), that \xe2\x80\x9cthe\nfact that a no-knock entry has been authorized by a neutral magistrate in a warrant\nrequired by statute can hardly be irrelevant to the reasonableness of that entry\nunder the Fourth Amendment.\xe2\x80\x9d\n\n45\n\n227-329 VOL_26_PROOF.pdf 55\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nII.\nA.\nAs recognized in your memorandum, the Fourth Amendment imposes restrictions on the authority of federal law enforcement officers to enter a residence even\nwhen they have a valid search warrant based upon probable cause. As the Fourth\nAmendment states:\nThe right of the people to be secure in their persons, houses, papers,\nand effects, against unreasonable searches and seizures, shall not be\nviolated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place\nto be searched, and the persons or things to be seized.\nU.S. Const. amend. IV. In applying the Fourth Amendment, the Supreme Court\nhas held that, even when they are conducting a search lawfully authorized by a\nwarrant, officers must generally knock and announce their identity and purpose\nbefore entering a private residence to execute the warrant. See Wilson v. Arkansas,\n514 U.S. 927 (1995). The Court has stressed, however, that this general principle\n\xe2\x80\x9cwas never stated as an inflexible rule requiring announcement under all circumstances.\xe2\x80\x9d Id. at 934. On the contrary, there are well-established exceptions to the\n\xe2\x80\x9cknock-and-announce\xe2\x80\x9d requirement, primarily in situations where exigent\ncircumstances make it necessary for officers to enter the premises without prior\nannouncement for reasons of physical safety or in order to prevent the imminent\ndestruction of evidence or contraband. See id. at 936.\nApart from the Constitution, 18 U.S.C. \xc2\xa7 3109 (2000) also addresses certain\naspects of the execution of search warrants by federal officers. That section\nprovides as follows: \xe2\x80\x9cThe officer may break open any outer or inner door or\nwindow of a house, or any part of a house, or anything therein, to execute a search\nwarrant, if, after notice of his authority and purpose, he is refused admittance or\nwhen necessary to liberate himself or a person aiding him in the execution of the\nwarrant.\xe2\x80\x9d Id. (emphasis added). 4 The Supreme Court has made it clear, however,\nthat the requirements and restrictions of 18 U.S.C. \xc2\xa7 3109 are subject to the same\nwell-recognized exceptions that apply under the Fourth Amendment. See United\nStates v. Ramirez, 523 U.S. 65 (1998) (holding that section 3109 \xe2\x80\x9cincludes an\n4\nAnother statute regulating the execution of warrants is 21 U.S.C. \xc2\xa7 879 (2000), which provides:\n\xe2\x80\x9cA search warrant relating to offenses involving controlled substances may be served at any time of the\nday or night if the judge or United States magistrate judge issuing the warrant is satisfied that there is\nprobable cause to believe that grounds exist for the warrant and for its service at such time.\xe2\x80\x9d This\nstatute plainly does not prohibit the issuance of no-knock warrants, but merely provides specific\nauthorization for judges and magistrates to issue warrants that may be executed at any time of day or\nnight.\n\n46\n\n227-329 VOL_26_PROOF.pdf 56\n\n10/22/12 11:13 AM\n\n\x0cAuthority of Federal Judges and Magistrates to Issue \xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants\n\nexigent circumstances exception\xe2\x80\x9d and that the constitutional standard and section\n3109\xe2\x80\x99s standard are the same). The Court\xe2\x80\x99s decision in Ramirez also emphasized\nthat, by its own terms, 18 U.S.C. \xc2\xa7 3109 prohibits nothing. It is an authorizing\nstatute, not one of prohibition. See 523 U.S. at 72.\nThe general authority for the issuance of search warrants by federal magistrates\nand federal district judges is found in Rule 41 of the Federal Rules of Criminal\nProcedure. 5 Rule 41 does not address whether, or to what extent, officers must\nknock or otherwise announce their presence and purpose before executing a\nwarrant authorized by the rule. See Fed. R. Crim. P. 41.\nFinally, another pertinent factor giving rise to this inquiry is the abovereferenced provision in the DEA Agents Manual, which includes the following\nstatements:\nFederal law does not contain a provision for a \xe2\x80\x9cno knock\xe2\x80\x9d warrant.\nAlthough some states still issue \xe2\x80\x9cno knock\xe2\x80\x9d warrants, DEA Agents\nneed to recognize that such warrants are actually no different than a\nnormal warrant with respect to the duty to knock and announce. The\nduty to knock and announce before entering a residence is a matter\nof Federal constitutional law, and the duty can be excused only by\nshowing that exigent circumstances actually existed at the time of the\nsearch. DEA Agents must not under any circumstances participate in\na search warrant execution that fails to comply with the knock and\nannounce requirement unless they are aware of specific facts that\ndemonstrate that their safety will be compromised or evidence will\nlikely be destroyed if they do not effect an immediate, unannounced\nentry to the residence.\nDEA Agents Manual \xc2\xa7 6653.2.C. This language suggests that DEA agents have an\nindependent responsibility to evaluate the circumstances existing at the time of\n5\n\nRule 41(a) provides in relevant part:\n(a) Authority to Issue Warrant. Upon the request of a federal law enforcement officer\nor an attorney for the government, a search warrant authorized by this rule may be\nissued (1) by a federal magistrate judge, or a state court of record within the federal\ndistrict, for a search of property or for a person within the district and (2) by a federal\nmagistrate judge for a search of property or for a person either within or outside the\ndistrict if the property or person is within the district when the warrant is sought but\nmight move outside the district before the warrant is executed and (3) in an investigation of domestic terrorism or international terrorism (as defined in section 2331 of title\n18, United States Code), by a Federal magistrate judge in any district in which activities related to the terrorism may have occurred, for a search of property or for a person\nwithin or outside the district.\n\nFed. R. Crim. P. 41(a). Although Rule 41(a)\xe2\x80\x99s authorization refers only to \xe2\x80\x9cfederal magistrate\njudge[s],\xe2\x80\x9d courts have \xe2\x80\x9cuniformly assumed\xe2\x80\x9d that the authorization extends to U.S. District Judges as\nwell. See United States v. Torres, 751 F.2d 875, 878 (7th Cir. 1984).\n\n47\n\n227-329 VOL_26_PROOF.pdf 57\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nexecution of every warrant to determine whether any emergency exists to justify\nentry without knocking. They may not, in other words, simply rely on the issuance\nof a no-knock warrant itself, according to the guidance of the Agents Manual.\nB.\nWe first address whether it is constitutionally permissible for courts or magistrates to issue no-knock warrants.\nThe Supreme Court first addressed no-knock warrants in Richards v. Wisconsin, 520 U.S. 385 (1997). There, the Court addressed the legality of a search\nconducted pursuant to a warrant (not a no-knock warrant) where the officers\nexecuting the warrant determined that the situation required a no-knock entry. The\nCourt held that the Fourth Amendment does not permit a \xe2\x80\x9cblanket exception\xe2\x80\x9d to\nthe knock-and-announce requirement in the case of all warrants executed in felony\ndrug investigations. At the same time, the Court upheld the constitutionality of the\nparticular no-knock entry at issue. More importantly for present purposes, the\nCourt in dicta specifically expressed its approval of state court magistrates issuing\nno-knock warrants when they are authorized to do so under state law. As the Court\nexplained:\nA number of States give magistrate judges the authority to issue\n\xe2\x80\x9cno-knock\xe2\x80\x9d warrants if the officers demonstrate ahead of time a reasonable suspicion that entry without prior announcement will be\nappropriate in a particular context. The practice of allowing magistrates to issue no-knock warrants seems entirely reasonable when\nsufficient cause to do so can be demonstrated ahead of time. But, as\nthe facts of this case demonstrate, a magistrate\xe2\x80\x99s decision not to\nauthorize a no-knock entry should not be interpreted to remove the\nofficers\xe2\x80\x99 authority to exercise independent judgment concerning the\nwisdom of a no-knock entry at the time the warrant is being executed.\nId at 396 n.7 (emphasis added). In holding that the magistrate\xe2\x80\x99s refusal to include\n\xe2\x80\x9cno-knock\xe2\x80\x9d authorization in the warrant did not itself render the officers\xe2\x80\x99 subsequent no-knock entry constitutionally unreasonable, the Richards Court emphasized that, for Fourth Amendment purposes, \xe2\x80\x9cthe reasonableness of the officers\xe2\x80\x99\ndecision . . . must be evaluated as of the time they entered\xe2\x80\x9d the premises to be\nsearched, id. at 395.\nFollowing Richards, there is extensive federal case authority supporting the\nconstitutionality of the issuance and use of no-knock warrants. In United States v.\nRamirez, for example, the Supreme Court upheld the execution of a no-knock\nwarrant obtained by federal officers against claims that the executing officers had\nviolated both the Fourth Amendment and federal statutory restrictions. 523 U.S.\n\n48\n\n227-329 VOL_26_PROOF.pdf 58\n\n10/22/12 11:13 AM\n\n\x0cAuthority of Federal Judges and Magistrates to Issue \xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants\n\nat 65. In so holding, the Court gave no suggestion that the issuance and use of the\nno-knock warrant was inappropriate or invalid. Numerous other federal cases have\nexpressly cited and relied upon the above-quoted statement from Richards v.\nWisconsin in upholding the constitutionality and legality of searches conducted\npursuant to no-knock warrants. See, e.g., United States v. Tisdale, 195 F.3d 70, 72\n(2d Cir. 1999) (\xe2\x80\x9cRichards approved the issuance of no-knock warrants.\xe2\x80\x9d); 6 United\nStates v. Spry, 190 F.3d 829, 833 (7th Cir. 1999) (upholding search conducted\npursuant to no-knock warrant), cert. denied, 528 U.S. 1130 (2000); United States\nv. Mattison, 153 F.3d 406, 409 n.1 (7th Cir. 1998) (\xe2\x80\x9cA \xe2\x80\x98no-knock\xe2\x80\x99 search warrant\nallows the police to enter the residence without knocking and announcing their\npresence and purpose before entering the residence.\xe2\x80\x9d); United States v. Winters,\nNo. 2:00-CR-590C, 2001 WL 670924 (D. Utah May 9, 2001) (issuance of a noknock search warrant did not violate the Fourth Amendment); United States v.\nPenman, No. 2:00-CR-192C, 2001 WL 670922 (D. Utah May 3, 2001) (same);\nUnited States v. Mack, 117 F. Supp. 2d 935 (W.D. Mo. 2000) (upholding the\nvalidity of a search performed pursuant to a Missouri no-knock warrant based\nupon an affidavit establishing exigent circumstances for the search; the court also\nspecifically held that the no-knock provision of the search warrant was constitutionally supported by reasonable suspicion). 7\nIn light of the clear authority in Richards v. Wisconsin and ensuing cases, we\nconclude that nothing in the Fourth Amendment prohibits federal magistrates from\nissuing, and law enforcement officers from seeking, a no-knock warrant when\nthere are reasonable grounds to believe that circumstances justifying no-knock\nentry will exist at the time the warrant is to be executed.\nC.\nAlthough Richards and ensuing cases confirm that the Fourth Amendment\nplaces no constitutional prohibition on no-knock warrants as a general proposition,\nthey do not specifically address whether federal courts are authorized or permitted\nto issue such warrants under the powers assigned to them by federal law. The\nprecedents discussed above generally involve warrants issued by state courts or\n\n6\nIn Tisdale, the court also held that, even assuming that the exigent circumstances required for a\nno-knock search warrant were not present, the police officers\xe2\x80\x99 reliance on the no-knock provision of the\nwarrant was not objectively unreasonable, thus precluding suppression of the evidence seized during\nthe no-knock search. See 195 F.3d at 71.\n7\nOther federal court decisions recognized the constitutionality of no-knock warrants prior to the\nRichards opinion. See, e.g., United States v. Singer, 943 F.2d 758, 759 & n.1 (7th Cir. 1991) (no-knock\nwarrants held permitted under Wisconsin law because no statute specifically prohibited them).\n\n49\n\n227-329 VOL_26_PROOF.pdf 59\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nmagistrates, 8 and do not address whether, or to what extent, federal statutes\nauthorize or permit the issuance of no-knock warrants by federal magistrates.\n1. 18 U.S.C. \xc2\xa7 3109. We first consider whether 18 U.S.C. \xc2\xa7 3109\xe2\x80\x99s provisions\nauthorizing officers to \xe2\x80\x9cbreak open any outer or inner door or window of a house\xe2\x80\x9d\nin executing warrants under certain defined circumstances should be construed to\nprohibit (by negative implication) the issuance or use of federal no-knock warrants\nin circumstances not encompassed by section 3109. Section 3109 expressly limits\nits door-and-window-breaking authorization to circumstances where either (a) the\nofficers have been refused admittance after announcing their authority and\npurpose; or (b) forcible entry is necessary to \xe2\x80\x9cliberate\xe2\x80\x9d the officers or those\nassisting them in the execution of the warrant. We do not believe this statute\xe2\x80\x99s\nparticularized authorization for officers to break open doors and windows is\nproperly construed as a prohibition against warrants authorizing no-knock entries.\nAs the Supreme Court emphasized in United States v. Ramirez, section 3109 \xe2\x80\x9cby\nits terms prohibits nothing. It merely authorizes officers to damage property in\ncertain instances.\xe2\x80\x9d 523 U.S. at 72. 9 As further held in Ramirez, moreover, to the\nextent that section 3109 might be construed to include an implied prohibition or\nrestriction, it should also be construed as subject to the same \xe2\x80\x9cexigent circumstance\xe2\x80\x9d exceptions applicable with respect to Fourth Amendment restrictions. Id.\nat 73. See also United States v. Tisdale, 195 F.3d at 73 (standards governing\nsection 3109 and constitutional Fourth Amendment standards are the same). It\nfollows that since the Fourth Amendment does not bar the issuance and use of noknock warrants where exigent circumstances (defined under the standard adopted\nin Richards, see 520 U.S. at 394) are established, neither does 18 U.S.C. \xc2\xa7 3109.\n2. 21 U.S.C. \xc2\xa7 879. Both DEA\xe2\x80\x99s and the Criminal Division\xe2\x80\x99s submissions note\nthat an earlier version of the \xe2\x80\x9c24-hour drug search\xe2\x80\x9d statute, 21 U.S.C. \xc2\xa7 879, had\nexpressly authorized the issuance and use of warrants authorizing officers to break\nopen doors and outer windows without prior announcement of authority or\npurpose in certain searches for illegal drugs. See Comprehensive Drug Abuse\nPrevention and Control Act of 1970, Pub. L. No. 91-513, \xc2\xa7 509, 84 Stat. 1236,\n1274, previously codified at 21 U.S.C. \xc2\xa7 879(b) (1970). However, subsection (b)\nof the earlier statute, the portion that expressly authorized issuance of no-knock\nwarrants and door-breaking authority under enumerated circumstances, was\nrepealed in 1974 by a Senate amendment to an appropriations bill. See Pub. L. No.\n\n8\nIn United States v. Ramirez, neither the Supreme Court\xe2\x80\x99s opinion nor that of the Ninth Circuit\nspecifies whether the warrant issued to the Deputy U.S. Marshal was issued by a federal or state court.\n9\nThe Seventh Circuit made a similar point in United States v. Torres, 751 F.2d 875 (7th Cir. 1984).\nIn upholding a federal district court\xe2\x80\x99s power to issue a warrant authorizing television surveillance of\nterrorist \xe2\x80\x9csafehouses\xe2\x80\x9d despite the lack of explicit statutory authority to do so, the court observed: \xe2\x80\x9cIt\ndoes not follow, however, that because Title III does not authorize warrants for television surveillance,\nit forbids them. The motto of the Prussian state\xe2\x80\x94that everything which is not permitted is forbidden\xe2\x80\x94\nis not a helpful guide to statutory interpretation.\xe2\x80\x9d Id. at 880.\n\n50\n\n227-329 VOL_26_PROOF.pdf 60\n\n10/22/12 11:13 AM\n\n\x0cAuthority of Federal Judges and Magistrates to Issue \xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants\n\n93-481, \xc2\xa7 3, 88 Stat. 1455 (1974). As pointed out in the DEA Memorandum, there\nis some indication in the legislative history of this repeal provision that at least its\nSenate sponsor intended the repeal to prohibit the issuance of no-knock warrants.\nSee 120 Cong. Rec. 19,910, 19,911 (1974) (remarks of Sen. Ervin).10\nThis raises the question whether congressional removal of the special authorization for the execution of certain drug-search warrants contained in former 21\nU.S.C. \xc2\xa7 879(b) (1970) should be equated with a general prohibition against noknock warrants. We reject such an interpretation. Former section 879(b) was a\nnarrow and carefully framed authorization respecting the execution of search\nwarrants, limited to offenses involving controlled substances, that included\nauthority to break open doors and windows under certain described circumstances.\nLike 18 U.S.C. \xc2\xa7 3109, as recognized by the Supreme Court in Ramirez, section\n879(b) was an authorizing statute that by its terms \xe2\x80\x9cprohibit[ed] nothing.\xe2\x80\x9d 523 U.S.\nat 72. Given that fact, and particularly in light of the specialized and restricted\nnature of that statutory provision, we do not conclude that its repeal can be equated\nwith, or construed as, a general statutory prohibition on no-knock search warrants.\nCf. United States v. Torres, 751 F.2d at 880.\nThe actual issue, instead, is whether an express statutory authorization is even\nrequired for federal magistrates to include constitutionally permitted \xe2\x80\x9cno-knock\xe2\x80\x9d\nprovisions in search warrants they are otherwise authorized to issue.\nExisting judicial authority does not appear to specifically address this point. In\nUnited States v. Ramirez, for example, the Supreme Court upheld the execution of\na no-knock warrant that was \xe2\x80\x9csought and received\xe2\x80\x9d by a Deputy United States\nMarshal, see 523 U.S. at 68, but did not address the question of federal statutory\nauthority for a court to issue such a no-knock warrant. In United States v. Singer,\n943 F.2d 758 (7th Cir. 1991), the court upheld the issuance and execution of a noknock warrant issued by a state court. Although the court applied federal law\nbecause the case was a federal prosecution, it suggested that no-knock warrants\nwere permitted under Wisconsin law because no statute prohibited them. Id. at 759\n& n.1 (\xe2\x80\x9cwhile the language of the [Wisconsin] statute does not specifically\nauthorize no-knock warrants, it does not prohibit them either\xe2\x80\x9d). There would seem\nto be no apparent reason why a different rule of statutory construction would apply\nwith regard to federal law. Similarly, in United States v. Mack, 117 F. Supp. 2d\n935, 941 (W.D. Mo. 2000), the court acknowledged that there was no Missouri\nstatute expressly authorizing no-knock search warrants. Nonetheless, the court\nproceeded to uphold the validity of the no-knock provisions of a search warrant\nissued by a Missouri judge on the grounds that it was fully compliant with\n10\nThe House Conference Report on the legislation also stated that it would \xe2\x80\x9crepeal the authority of\na judge or magistrate to issue a search warrant (relating to offenses involving controlled substances)\nwhich authorizes, under certain circumstances, an officer to break and enter a building in the execution\nof the search warrant without giving notice of his authority and purpose.\xe2\x80\x9d H.R. Rep. No. 93-1442, at 4\n(1974) (Conf. Rep.), reprinted in 1974 U.S.C.C.A.N. 5974, 5976.\n\n51\n\n227-329 VOL_26_PROOF.pdf 61\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\nMissouri law and federal constitutional requirements. Id. at 942-43. As the\nCriminal Division points out, however, state courts are divided on the issue of\nwhether judges or magistrates may issue no-knock warrants without explicit\nstatutory authority.11\nAlthough we find no federal opinions resolving this precise issue, we conclude\nthat a federal judge\xe2\x80\x99s or magistrate\xe2\x80\x99s general authority to issue warrants under\nRule 41 of the Federal Rules of Criminal Procedure is sufficiently flexible to\nencompass no-knock authorizations. Indeed, there is substantial support in existing\ncase law for such an understanding of the flexible authority provided by Rule 41.\nIn United States v. New York Telephone Company, 434 U.S. 159 (1977), the\nSupreme Court held that a federal district court had the power to authorize the\ninstallation of pen registers (used to record the numbers dialed on a telephone\nwithout overhearing conversations) even though neither Rule 41(b) nor Title III of\nthe Omnibus Crime Control and Safe Streets Act of 1968 specifically authorized\nsuch measures. After reciting Rule 41(b)\xe2\x80\x99s express (but limited) authorizations for\nthe search and seizure of property and contraband, the Court explained:\nThis authorization is broad enough to encompass a \xe2\x80\x9csearch\xe2\x80\x9d\ndesigned to ascertain the use which is being made of a telephone\nsuspected of being employed as a means of facilitating a criminal\nventure and the \xe2\x80\x9cseizure\xe2\x80\x9d of evidence which the \xe2\x80\x9csearch\xe2\x80\x9d of the telephone produces. Although Rule 41(h) defines property \xe2\x80\x9cto include\ndocuments, books, papers and any other tangible objects,\xe2\x80\x9d it does not\nrestrict or purport to exhaustively enumerate all the items which may\nbe seized pursuant to Rule 41. Indeed, we recognized in Katz v.\nUnited States, which held that telephone conversations were protected by the Fourth Amendment, that Rule 41 is not limited to tangible\nitems but is sufficiently flexible to include within its scope electronic\nintrusions authorized upon a finding of probable cause.\nOur conclusion that Rule 41 authorizes the use of pen registers\nunder appropriate circumstances is supported by Fed. Rule Crim.\nProc. 57(b), which provides: \xe2\x80\x9cIf no procedure is specifically prescribed by rule, the court may proceed in any lawful manner not inconsistent with these rules or with any applicable statute.\xe2\x80\x9d\n434 U.S. at 169-70 (citations and footnotes omitted).12\n\n11\nCompare State v. Cleveland, 348 N.W.2d 512, 518-19 (Wis. 1984) (no-knock warrants may be\nissued without express statutory authority), with State v. Bamber, 630 So. 2d 1048, 1050-51 (Fla. 1994)\n(no-knock warrants must be expressly authorized).\n12\nRule 57(b), as invoked by the Court in New York Telephone in support of a federal court\xe2\x80\x99s power\nto authorize procedures (such as the use of pen registers) not expressly authorized by the applicable\n\n52\n\n227-329 VOL_26_PROOF.pdf 62\n\n10/22/12 11:13 AM\n\n\x0cAuthority of Federal Judges and Magistrates to Issue \xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants\n\nA similarly flexible construction of the scope of judicial authority to issue\nspecial warrant provisions was adopted by the Seventh Circuit (per Judge Posner)\nin United States v. Torres. In Torres, the court held that a federal district court had\nauthority to issue a warrant authorizing television surveillance of terrorist\n\xe2\x80\x9csafehouses\xe2\x80\x9d despite the absence of express statutory authority for that procedure\nin Rule 41 or federal statutes such as Title III. Noting that Congress\xe2\x80\x99s overhaul of\nthe federal criminal code in 1948 left the matter of search warrants \xe2\x80\x9cto be governed by rule of court,\xe2\x80\x9d the Seventh Circuit stated: \xe2\x80\x9cThis broad delegation suggests\nthat Congress views the issuance of federal search warrants as standing on a plane\nwith other procedural powers that courts traditionally have exercised without\nexplicit legislative direction.\xe2\x80\x9d 751 F.2d at 879. Although the court cautioned that it\n\xe2\x80\x9cshall not pretend greater certainty than we feel\xe2\x80\x9d on the issue, the court concluded\nthat federal courts may issue warrants for television surveillance and other \xe2\x80\x9cnew\ntypes of search\xe2\x80\x9d without express statutory authorization. Id.\nAlthough the issue is not entirely free from doubt, we believe the foregoing\nholdings and principles support the view that express statutory authority is not\nrequired for federal magistrates to issue search warrants authorizing no-knock\nentries when the government makes an adequate showing of exigent circumstances.\nD.\nFinally, we consider an additional question suggested by your inquiry and by\nthe provisions of the DEA Agents Manual\xe2\x80\x94namely, to what degree, if any, does\nthe issuance of a no-knock warrant relieve officers of the necessity of determining\nwhether the circumstances that justified inclusion of the no-knock provision still\nexist at the time of actual execution? As noted above, the DEA Agents Manual\nessentially takes the view that the issuance of no-knock warrants has no effect on\nan officer\xe2\x80\x99s obligation to knock and announce before execution of a warrant unless\nthe officer independently determines that circumstances existing at the time of\nexecution satisfy constitutional prerequisites for an unannounced entry.\nIn United States v. Singer, 943 F.2d 758 (7th Cir. 1991), where the court upheld\na no-knock entry undertaken pursuant to a state no-knock warrant, the court\nframed and addressed this issue as follows:\nSinger maintains that the officers\xe2\x80\x99 execution of the warrant was\nunconstitutional because the police officers were aware of facts sug-\n\nrule, has been slightly amended since that decision and now provides: \xe2\x80\x9cA judge may regulate practice\nin any manner consistent with federal law, these rules, and local rules of the district.\xe2\x80\x9d Fed. R. Crim. P.\n57(b). Rule 57(b) provides further support for federal no-knock warrant authority in that such authority\nappears to be \xe2\x80\x9cconsistent with federal law\xe2\x80\x9d\xe2\x80\x94i.e., consistent with the numerous federal court opinions\nupholding the constitutionality of no-knock warrants.\n\n53\n\n227-329 VOL_26_PROOF.pdf 63\n\n10/22/12 11:13 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 26\n\ngesting that no exigent circumstances existed to justify their unannounced entry. To support this argument, he makes much of what the\nofficers did not encounter when they arrived at his home to conduct\nthe search. . . . As our previous discussion concluded, the officers\xe2\x80\x99\nno-knock entry was permissible because Singer\xe2\x80\x99s possession of firearms posed a threat to the safety of the officers. If, during the intervening period between the warrant\xe2\x80\x99s issuance and execution, the\npolice received reliable information that Singer no longer possessed\nany firearms, then they would have been required to reevaluate their\nplan to forcibly enter Singer\xe2\x80\x99s home without first knocking and\nannouncing.\nId. at 763 (emphasis added).13\nAlthough the Singer opinion indicates that the force of a no-knock warrant may\nbe undercut by the police\xe2\x80\x99s actual receipt of reliable information negating the\nexistence of exigent circumstances, it does not follow that officers in possession of\nsuch warrants must necessarily and invariably undertake an independent reinvestigation of those circumstances prior to execution of the warrant. Thus, in\nUnited States v. Spry, the Seventh Circuit held that \xe2\x80\x9cthe district court correctly\ndetermined that the law does not require officers, after obtaining a no-knock\nwarrant, to make an independent determination of the exigent circumstances at the\ntime of entry.\xe2\x80\x9d 190 F.3d at 833 (emphasis added). Other cases emphasize that\nofficers are generally entitled to rely on the validity of a warrant authorizing noknock entry, including its underlying finding that exigent circumstances exist. See\nUnited States v. Hawkins, 139 F.3d 29, 32 (1st Cir. 1998) (\xe2\x80\x9cThe matter was\nsubmitted to the judgment of a judicial officer who passed upon facts submitted,\nthe existence of which has not been questioned. Under these circumstances the\nexecuting officers were clearly entitled to rely on the validity of the warrant.\xe2\x80\x9d)\n(citing United States v. Leon, 468 U.S. 897 (1984); United States v. Mack, 117\nF. Supp. 2d 935, 942 (W.D. Mo. 2000) (observing that \xe2\x80\x9c[t]he issuance of a noknock search warrant potentially insulates the police against a subsequent finding\nthat exigent circumstances, as defined by Richards, did not exist\xe2\x80\x9d); United States\nv. Rivera, No. CRIM. 00-6-B-C, 2000 WL 761976 (D. Me. May 15, 2000) (\xe2\x80\x9cThe\n\n13\n\nSee also State v. Cleveland, 348 N.W.2d at 519, where the court stated:\nBut such prior authorization is in effect conditional; a magistrate cannot absolutely\nauthorize no-knock entry. A search warrant may be executed within five days after\nissuance. Circumstances which justify noncompliance with the rule of announcement\nwhen the warrant was obtained might change after the judge\xe2\x80\x99s evaluation and before\nthe officer\xe2\x80\x99s entry. If the warrant authorizes a no-knock entry, officers may forego\nannouncement unless between the time of the issuance of the warrant and its execution new information has come to the officers\xe2\x80\x99 attention that would obviate the need to\nenter without complying with the rule of announcement.\n\n54\n\n227-329 VOL_26_PROOF.pdf 64\n\n10/22/12 11:13 AM\n\n\x0cAuthority of Federal Judges and Magistrates to Issue \xe2\x80\x9cNo-Knock\xe2\x80\x9d Warrants\n\nFirst Circuit has held that when a judicial officer issues a no-knock warrant, Leon\nis applicable. See United States v Hawkins, 139 F.3d 29, 32 (1st Cir. 1998).\nSpecifically, the Court will not exclude evidence discovered pursuant to a noknock warrant if the executing officers are objectively reasonable in their reliance\non such a warrant, even if the judicial officer should have required a more\nparticularized showing of exigent circumstances.\xe2\x80\x9d).\nAlthough it might be argued that there is some tension between the abovequoted holdings in Singer (a no-knock warrant\xe2\x80\x99s authority can be vitiated by the\nofficers\xe2\x80\x99 intervening receipt of reliable information that the factual basis for\nexigent circumstances no longer exists) and Spry (officers are not obligated to\nmake an independent determination of exigent circumstances when they execute a\nno-knock warrant), we think the decisions are easily reconcilable and that the\ndistinctions drawn by the cases are reasonably clear. Although officers need not\ntake affirmative steps to make an independent re-verification of the circumstances\nalready recognized by a magistrate in issuing a no-knock warrant, such a warrant\ndoes not entitle officers to disregard reliable information clearly negating the\nexistence of exigent circumstances when they actually receive such information\nbefore execution of the warrant.14\nPATRICK F. PHILBIN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n14\nOur conclusion is consistent with the Supreme Court\xe2\x80\x99s observations in Leon regarding an\nofficer\xe2\x80\x99s permissible reliance on a magistrate\xe2\x80\x99s determination of probable cause when executing a\nsearch warrant. As the Court stated: \xe2\x80\x9cIn the ordinary case, an officer cannot be expected to question the\nmagistrate\xe2\x80\x99s probable cause determination . . . . \xe2\x80\x98[O]nce the warrant issues, there is literally nothing\nmore the policeman can do in seeking to comply with the law.\xe2\x80\x99\xe2\x80\x9d 468 U.S. at 921 (quoting Stone v.\nPowell, 428 U.S. 465, 498 (1976)). The Court added, however, that the officer\xe2\x80\x99s reliance on the\nmagistrate\xe2\x80\x99s probable cause determination must be \xe2\x80\x9cobjectively reasonable\xe2\x80\x9d for purposes of the goodfaith exception to the exclusionary rule. Id. at 922.\n\n55\n\n227-329 VOL_26_PROOF.pdf 65\n\n10/22/12 11:13 AM\n\n\x0c'


b"Relationship Between Department of Justice Attorneys and\nPersons on Whose Behalf the United States Brings Suits Under\nthe Fair Housing Act\nWhen the Department o f Justice undertakes a civil action on behalf o f a complainant alleging a\ndiscriminatory housing practice under the Fair Housing Act, Department attorneys handling the\naction do not enter into an attomey-client relationship with the complainant, nor do they undertake\na fiduciary obligation to the complainant.\nBecause no attom ey-client relationship is established in such undertakings, no retainer agreement\nbetween the complainant and the Department attorneys should be entered into.\n\nJanuary 20, 1995\nM e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l\nC iv il R ig h t s D iv is io n\n\nYou have requested that this Office clarify the legal relationship between\nDepartment attorneys and individuals on whose behalf the United States institutes\ncivil actions pursuant to the Fair Housing Act, as amended. 42 U.S.C. \xc2\xa7\xc2\xa736043616a.\nDescription of the program\nThe Fair Housing Act uses the resources of the federal government to address\nhousing discrimination against private persons. Persons alleging a discriminatory\nhousing practice may file a complaint with the Secretary of Housing and Urban\nDevelopment (\xe2\x80\x9c the Secretary\xe2\x80\x9d or \xe2\x80\x9c HUD\xe2\x80\x9d ), or the Secretary may undertake\naction at his or her own behest. The statutory structure attempts to ensure that\nsuch complaints are vigorously investigated and, if meritorious, pursued by the\ngovernment. Under \xc2\xa7 3610(e), the Secretary may authorize a civil action for appro\xc2\xad\npriate temporary or preliminary relief, to be filed by the Department of Justice.\nWhen a complaint is filed with HUD under \xc2\xa73610, the complainant, respondent,\nor person on whose behalf a complaint was filed may elect to have the claims\nasserted in that charge heard in a civil action under \xc2\xa73612(o). Subsection 3612(o)\nprovides that, if an election to proceed in a civil action is made: \xe2\x80\x9c the Secretary\nshall authorize, and not later than 30 days after the election is made the Attorney\nGeneral shall commence and maintain, a civil action on behalf of the aggrieved\nperson in a United States district court seeking relief under this subsection.\xe2\x80\x9d\n(Emphasis added.)\nSection 3613 grants aggrieved private persons a cause of action, whether or\nnot the person has filed a complaint administratively. However, if the Secretary\nhas already obtained a conciliation agreement with the consent of the aggrieved\n1\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nperson, then the aggrieved person may only file a suit to enforce the terms of\nsuch an agreement.\nSubsection 3614(a) authorizes the Attorney General to file suits alleging a pat\xc2\xad\ntern or practice of violations o f the chapter; subsection (d) of this section author\xc2\xad\nizes the courts, in either a pattern or practice case or a case filed upon a referral\nby the Secretary, to award injunctive relief, damages to the person aggrieved,\ncivil penalties, and attorneys fees to parties other than the United States.\nRelationship between Department attorneys and the complainant\nWe believe that when the Department of Justice undertakes a matter \xe2\x80\x9c on behalf\nof\xe2\x80\x99\xe2\x80\x99 a complainant, the Department attorney does not enter into an attomey-client\nrelationship with the complainant. Likewise, when the Department files a pattern\nor practice case under \xc2\xa73614, seeking damages on behalf of aggrieved persons,\nno attomey-client relationship is established with those for whom damages are\nsought.\nThe structure of the statute compels this conclusion. Congress recognized not\nonly that the government\xe2\x80\x99s interests in large measure coincide with those of\naggrieved parties, but also\xe2\x80\x94 and importantly for our purposes here \xe2\x80\x94 that the\ninterests of the complainant or aggrieved persons may diverge from that of the\ngovernment. Such potential divergence of interest would be inconsistent with inter\xc2\xad\npreting the statute as establishing attomey-client relationships between the govern\xc2\xad\nment and the complainants on whose behalf the Department litigates. First, the\nstatute has separate sections for enforcement by private persons under \xc2\xa73613 and\nenforcement by the Attorney General under \xc2\xa73614. More specifically, \xc2\xa7 3613(a)\nillustrates that Congress recognized the potential for diverging interests within the\nstatute itself. It provides that an aggrieved person may file a civil action, regardless\nof whether an administrative complaint was filed under \xc2\xa73610.' Similarly,\n\xc2\xa7 3 6 13(e), which provides for intervention by the Attorney General in suits brought\nby private persons, and its companion provision, \xc2\xa7 3614(e), which provides for\nintervention by aggrieved persons in suits brought by the Attorney General,\nindicate that the Attorney General may have separate interests or positions from\nthose advanced by the complainant. Likewise, \xc2\xa73612(o)(2) provides that an\naggrieved person may intervene as of right in any administrative action filed by\nthe Secretary. Finally, if the Department (or a HUD attorney, in the case of an\nadministrative filing) were the attorney for the complainant, Congress would not\nhave needed to provide for the complainant\xe2\x80\x99s individual representation, or for\ncourt appointment of an attorney for the complainant under \xc2\xa7 3613(b).\nMoreover, Congress nowhere in the Fair Housing Act itself decreed or author\xc2\xad\nized the establishment of an attomey-client relationship between the Department\n1 The only limit on Filing in court in such a circumstance is that the aggrieved person may not file if a conciliation\nagreem ent has already been obtained with th e consent o f the aggrieved person, or if the administrative law judge\nhas already com m enced a hearing on the record. \xc2\xa7 3613(a)(2)\xe2\x80\x94<3).\n\n2\n\n\x0cRelationship Between Department o f Justice Attorneys and Persons on Whose B ehalf the United States\nBrings Suits Under the Fair Housing Act\n\nattorney and the complainant or aggrieved person. Nor have we located anything\nin the legislative history that would indicate that Congress intended the Depart\xc2\xad\nment to serve as the complainant\xe2\x80\x99s personal attorney, rather than the attorney for\nthe government. Congress apparently intended that the government use its\nresources to vindicate civil rights with respect to housing, and to attempt to\nachieve redress for the complainants who bring violations to the government\xe2\x80\x99s\nattention, as it has in other areas of civil rights. Yet the Fair Housing Act does\nnot provide personal attorneys for those who believe that they have suffered\nhousing discrimination.\nOther civil rights laws attempt to involve the government in the promotion of\ncivil rights by mustering the government\xe2\x80\x99s litigative resources on behalf of private\nindividuals or groups of aggrieved individuals. In those situations, courts have\nnot found that an attomey-client relationship was established between the govern\xc2\xad\nment and those for whom the government sought relief. Bratton v. Bethlehem\nSteel Corp., 649 F.2d 658, 669 (9th Cir. 1980); Williams v. United States, 665\nF. Supp. 1466, 1470 (D. Or. 1987).2 Courts have also recognized that the United\nStates has broader and somewhat different litigative interests from that of the indi\xc2\xad\nvidual complainants or aggrieved persons. General Tel. Co. o f the Northwest, Inc.\nv. EEOC, 446 U.S. 318, 324, 326 (1980); United States v. School Dist. o f Femdale, 577 F.2d 1339, 1345 n.9 (6th Cir. 1978) (\xe2\x80\x9c The District Court suggested\nthat specificity was required in the complaint because the EEOA\xe2\x80\x99s purpose was\nto vindicate \xe2\x80\x98the individual rights of those discriminated against\xe2\x80\x99 as opposed to\na \xe2\x80\x98national policy of school desegregation.\xe2\x80\x99 This reading is totally inconsistent\nwith the Act\xe2\x80\x99s statement of purpose . . . . \xe2\x80\x9d ) (citation omitted); EEOC v. Whirlpool\nCorp., Local 808, 80 F.R.D. 10 (N.D. Ind. 1978).\nIn the few situations in which Congress has provided that attorneys employed\nby the government shall serve as the attorney for a party other than the govern\xc2\xad\nment, its intent that the attorneys represent a party other than the government\nitself is manifest in the statute. For example, judges advocate of the Army, Navy,\nAir Force, and Marine Corps, and law specialists of the Coast Guard may be\ndetailed to serve as defense counsel, 10 U.S.C. \xc2\xa7827, pursuant to the defendant\xe2\x80\x99s\n\xe2\x80\x9c right to be represented at that investigation by counsel.\xe2\x80\x9d 10 U.S.C. \xc2\xa7832(b).\nWithin the statute providing for government-provided counsel through judges\nadvocate, Congress included provisions addressing conflicts of interest, to ensure\nthat the judge advocate truly does represent the accused, rather than broader\ngovernmental interests. Id. \xc2\xa7 827(a)(2). Likewise, attorneys employed by the Fed\xc2\xad\n2 In Gormin v. Brown-Forman Corp., 133 F.R.D. 50 (M.D. Fla. 1990), the court held that there was no attomeyclient relationship with aggrieved employees listed in the complaint, although the decision left open the possibility\nof establishing such a relationship if an aggrieved person filed a complaint with the agency. W e believe that under\nthe Fair Housing Act, even if an aggrieved person did file a complaint with the Secretary and the case were referred\nto the Department, the Department would not formally represent the complaint in the D epartm ent's action. This\nissue was not reached by the District Court in Gormin.\n\n3\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\neral Public Defender Organization clearly do not represent the government in\nlitigation, but represent the defendants. 18 U.S.C. \xc2\xa7 3006A(g)(2)(A).\nThe Attorney General also may provide that an attomey-client relationship is\nestablished with a party other than the government itself. With respect to formal\nrepresentation of government employees, regulations establish that any such rep\xc2\xad\nresentation undertaken by the Department is protected by the attomey-client privi\xc2\xad\nlege, although the employee must be informed that the government attorney will\nnot assert any legal position on behalf of the employee that is not in the interests\nof the United States. 28 C.F.R. \xc2\xa7 50.15(a)(3), (a)(8)(ii) (1994). The Attorney Gen\xc2\xad\neral has not authorized Department attorneys to undertake representation of Fair\nHousing Act complainants. Due to the absence of clear statutory or regulatory\nauthority to represent a party other than the government itself, as provided by\nCongress and the Attorney General in other areas, we conclude that neither Con\xc2\xad\ngress nor the Attorney General has authorized the establishment of formal,\nattomey-client representation of complainants by Department attorneys.\nOur conclusion, based principally on the Fair Housing Act statute itself, is con\xc2\xad\nfirmed by the strong legal policy considerations that require the government\nattorney to represent the government rather than the complainant. First, Depart\xc2\xad\nment attorneys are to be guided in their conduct by the Code of Professional\nResponsibility of the American Bar Association, 28 C.F.R. \xc2\xa745.735-l(b) (1994).\nThe Code, like the Model Rules which have largely succeeded it, requires attor\xc2\xad\nneys to avoid conflicts of interest. Model Code of Professional Responsibility DR\n5-105(A); Model Rules of Professional Conduct Rule 1.7 (1994). If the govern\xc2\xad\nment attorney were not only to represent the government, but also a complainant,\nconflicts would sometimes arise between the government\xe2\x80\x99s interest and the private\ncomplainant-client\xe2\x80\x99s interest. See United States v. Wheat, 813 F.2d 1399, 1402\n(9th Cir. 1987), a ffd , 486 U.S. 153 (1988) (conflicts of interest arise whenever\nan attorney\xe2\x80\x99s loyalties are divided; courts may decline proffers of waivers\nregarding conflicts). If the government attorney were formally representing the\ncomplainant, the possibility of violating other rules would also rise. For instance,\nthe Model Rules of Professional Conduct Rule 1.2 (1994) requires that a lawyer\nfollow a client\xe2\x80\x99s decisions concerning the objectives of representation, mandates\nthat an attorney consult with the client as to means, and requires that the attorney\nheed a client\xe2\x80\x99s decision whether to accept an offer of settlement. If formal rep\xc2\xad\nresentation were undertaken, these ethical provisions might sometimes conflict\nwith the attorney\xe2\x80\x99s duties towards the government.\nFor example, we understand that some complainants may want to accept a con\xc2\xad\nfidentiality provision as part of settlement negotiations, when Department policy\nand public records laws may preclude Department attorneys from agreeing to such\nterms. Similarly, we understand that the Civil Rights Division prefers in-court\nsettlements, so as to promote enforceability of the agreements, and to deter civil\nrights violations by others, whereas complainants may wish to settle out of court.\n4\n\n\x0cRelationship Between Department o f Justice Attorneys and Persons on Whose B ehalf the United States\nBrings Suits Under the Fair Housing Act\n\nLosing complainants might wish to press an appeal, when the Department\xe2\x80\x99s proce\xc2\xad\ndures repose ultimate authority for such appeal decisions with the Solicitor Gen\xc2\xad\neral. 28 C.F.R. \xc2\xa70.20(b) (1994). Complainants also might wish to institute collec\xc2\xad\ntion actions in the event of a failure to pay on the part of the defendant when\nthe particular Departmental office responsible for debt collection may have other\npriorities. In all likelihood, complainants will typically favor a strategy of seeking\nthe maximum damages for themselves, rather than injunctive relief. In all these\ncircumstances, then, the establishment of an attomey-client relationship would\nrequire the government attorney to take actions that might deviate from Depart\xc2\xad\nment policy and priorities.\nThe role of the government attorney is somewhat more complicated than that\nof a private attorney: that is, the government attorney may have a higher obligation\nto \xe2\x80\x9c do justice\xe2\x80\x9d and to correct public or societal wrongs, rather than simply to\nadvocate the position of the attorney\xe2\x80\x99s client. See EEOC v. Occidental Life Ins.\nCo., 535 F.2d 533 (9th Cir. 1976), affd, 432 U.S. 355 (1977); EEOC v. Huttig\nSash & Door Co., 511 F.2d 453 (5th Cir. 1975). The government attorney, then,\ntypically perceives him or herself as being obliged to undertake a more thorough\ninvestigation of the facts before filing a suit than the rules of pleading and ethics\nwould strictly require. The force of an accusation lodged in the form of a com\xc2\xad\nplaint filed by the government is stronger than that of a complaint filed by an\nordinary citizen. Likewise, at the end of the case, government attorneys attempt\nto arrive at a just settlement (not always the maximum possible, due to the govern\xc2\xad\nment\xe2\x80\x99s negotiating advantages), and, as noted above, government attorneys may\nprefer to seek injunctive relief, rather than damages on behalf of one person. Were\nthe government attorney simply serving as the attorney for the private complain\xc2\xad\nant, the attorney would seek to maximize a dollar recovery for the private\ncomplainant, regardless of the strength of the case or the desirability of injunctive\nrelief. See McClain v. Wagner Elec. Corp., 550 F.2d 1115 (8th Cir. 1977). Finally,\nthe government attorney may be required to consider overall governmental policy\nand the government\xe2\x80\x99s litigative posture in other cases in litigation. As a con\xc2\xad\nsequence, the government attorney may refrain from making certain arguments\npermissible under the law, but contrary to the government\xe2\x80\x99s position in other\ncases. See Trbovich v. United Mine Workers o f America, 404 U.S. 528 (1972)\n(recognizing that federal agencies may not be able to serve the interest of both\nprivate and public interests). For all of these reasons, we conclude that the govern\xc2\xad\nment attorney does not serve as the attorney for the private complainant in a Fair\nHousing Act case, as such formal representation might require the government\nattorney to file prematurely or make accusations that are not fully supported, urge\nsettlements that do not best promote the public interest, and make arguments that\nmay be at odds with the government\xe2\x80\x99s litigative positions in other cases.\n5\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nFiduciary Duties\nYou also asked whether the government attorney has a \xe2\x80\x9c fiduciary duty\xe2\x80\x9d to\nthe complainant. For the same reasons that the government attorney does not\nundertake an attomey-client relationship with the complainant, he or she does not\nhave fiduciary duties to the complainant. The term \xe2\x80\x9c fiduciary duty\xe2\x80\x9d underscores\nthe obligation to act in the client\xe2\x80\x99s best financial interest, and, again, we can fore\xc2\xad\nsee cases when, contrary to the interest of the complainant, the government\nattorney may determine that seeking injunctive relief is most appropriate, or\nseeking relief on behalf of a broader class of aggrieved persons would be the\nbest strategy. Moreover, undertaking a fiduciary relationship might trigger a host\nof obligations under the relevant state law regarding fiduciaries.\nRetainer Agreements\nYou asked whether you should formally enter into retainer-like agreements with\nthe complainants at the beginning of the litigation and, if so, what should be\naddressed in such an agreement. Because there is no attomey-client relationship\nestablished, no retainer agreement should be entered into. The question of disclo\xc2\xad\nsure is outside the expertise of the Office of Legal Counsel, but in view of the\npotential confusion on behalf of complainants regarding the nature of the relation\xc2\xad\nship, it would seem prudent to advise them that the government attorney is not\ntheir attorney, although the government is bringing a case on their behalf, and\nthat they are entitled to retain their own counsel. We have reviewed the form\nletter used by the Civil Rights Division, which you transmitted to us, as well\nas the Department of Housing and Urban Development\xe2\x80\x99s sample letter to\ncomplainants in administrative proceedings. The Civil Rights Division\xe2\x80\x99s letter\ntracks the statutory language in stating that it is bringing suit \xe2\x80\x9c on your behalf,\xe2\x80\x9d\nwhereas HUD uses the word \xe2\x80\x9c represents\xe2\x80\x9d unless and until there is a conflict.\nThe HUD letter thus may create confusion by overstating the nature of the rela\xc2\xad\ntionship. However, both letters are perfectly clear in stating that the possibility\nexists that the government\xe2\x80\x99s interests may diverge from the complainant\xe2\x80\x99s, and\nthat the complainant is entitled to retain his or her own attorney.\nOther Duties Towards Complainants\nYou asked what further obligations the government has toward the complainant\nin involving them in various litigation decisions. The statute does not set forth\nsuch obligations, and we decline to read them into the statute. See The Attorney\nGeneral\xe2\x80\x99s Role as Chief Litigator for the United States, 6 Op. O.L.C. 47 (1982)\n(absent clear legislative directives to the contrary, the Attorney General has full\nplenary authority over all litigation to which the United States is a party), 28\n6\n\n\x0cRelationship Between Department o f Justice Attorneys and Persons on Whose B ehalf the United Stales\nBrings Suits Under the Fair Housing Act\n\nU.S.C. \xc2\xa7516 (conduct of litigation reserved to the Department of Justice); 28\nU.S.C. \xc2\xa7519 (Attorney General shall supervise all litigation to which the United\nStates is a party and shall direct assistants in the course of their duties). It falls\nwithin the expertise of litigating divisions to determine how best to work with\ncomplainants, in view of the statute\xe2\x80\x99s intent, the litigation decisions to be made,\nand attorney time-management concerns.\nOther Privileges\nYou ask whether other privileges could protect communications with the\ncomplainant. Because we are not experts on litigation privileges, we will not\nundertake a full assessment of the common interest/joint defense privilege, but\nwill simply note its existence, recognition, and apparent applicability here. See\nIn re Grand Jury Subpoenas, 89-3 and 89\xe2\x80\x944, 902 F.2d 244, 249 (4th Cir. 1990)\n(citing cases); Sheet Metal Workers Int\xe2\x80\x99l Ass\xe2\x80\x99n v. Sweeney, 29 F.3d 120, 124 n.3\n(4th Cir. 1994); In re Bieter Co., 16 F.3d 929, 935 (8th Cir. 1994) (citing Supreme\nCourt Standard 503(b): \xe2\x80\x9c A client has a privilege to refuse to disclose and to pre\xc2\xad\nvent any other person from disclosing confidential communications made for the\npurpose of facilitating the rendition of professional legal services to the client,\n. . . (3) by him or his lawyer to a lawyer representing another in a matter of\ncommon interest . . . .\xe2\x80\x9d ); In re Auclair, 961 F.2d 65 (5th Cir. 1992); United\nStates v. Schwimmer, 892 F.2d 237 (2d Cir. 1989). In Bauman v. Jacobs Suchard,\nInc., 136 F.R.D. 460, 461-62 (N.D. 111. 1990), the court protected documents\ntransmitted from the complainant to the Equal Employment Opportunity Commis\xc2\xad\nsion (\xe2\x80\x9c EEOC\xe2\x80\x9d ), notwithstanding the fact that there is not a formal attomey-client\nrelationship between the EEOC and a complaining party. Here, the complainant\nand the government would have a mutual interest in vindicating federally estab\xc2\xad\nlished protection from housing discrimination, and disclosures made by the\ncomplainant to the Department would facilitate the rendition of legal services to\nboth the government as client and to the complainant. Accordingly, in jurisdictions\nrecognizing the privilege, courts should find that the privilege applies to commu\xc2\xad\nnications between fair housing complainants and the Department attorneys filing\non their behalf, when those communications are made in the course of an ongoing\ncommon enterprise and are intended to further the enterprise. Schwimmer, 892\nF.2d at 243.\nIn sum, we conclude that no formal attomey-client relationship exists between\nthe government and a complainant or aggrieved party in a case referred to the\nDepartment under the Fair Housing Act.\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f LegalCounsel\n1\n\n\x0c"