b'Use of FY 2009/2010 Funds by the General Services\nAdministration to Assist the Department of Veterans\nAffairs in Acquiring Human Resources for FY 2012\nThe Department of Veterans Affairs properly obligated its Fiscal Year 2009/2010 funds\nwhen it and the General Services Administration signed an interagency agreement in\nAugust 2010, under which GSA agreed to assist the VA in obtaining a new contract for\nthe provision of human resources.\nGSA may use those funds in Fiscal Year 2012 to perform its obligations under the\ninteragency agreement without running afoul of the requirement, developed by the\nGovernment Accountability Office, that servicing agencies acting under interagency\nagreements perform within a \xe2\x80\x9creasonable time.\xe2\x80\x9d\nMarch 2, 2012\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nDEPARTMENT OF VETERANS AFFAIRS\nAND THE GENERAL COUNSEL\nGENERAL SERVICES ADMINISTRATION\nThe Department of Veterans Affairs (\xe2\x80\x9cVA\xe2\x80\x9d) and the General Services\nAdministration (\xe2\x80\x9cGSA\xe2\x80\x9d) have asked whether, consistent with federal\nappropriations law, they may undertake certain activities contemplated by\nan interagency agreement between the VA and GSA. This opinion memorializes the advice we provided in response to that question.\nIn the interagency agreement, GSA agreed to assist the VA in obtaining\na new contract for the provision of human resources (\xe2\x80\x9cHR\xe2\x80\x9d) services.\nUnder Part B of the agreement, signed on August 3, 2010, the VA purported to obligate funds from its Fiscal Year (\xe2\x80\x9cFY\xe2\x80\x9d) 2009/2010 appropriation to GSA. However, as of November 2011, GSA had not engaged in\nany meaningful services under that agreement because the VA and GSA\nhave, until recently, been waiting for the Office of Management and\nBudget (\xe2\x80\x9cOMB\xe2\x80\x9d) and the Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) to\nreview and approve the VA\xe2\x80\x99s decision to proceed with a competition\namong private shared service centers to select the new HR services provider. Those approvals were finally granted in September 2011. The VA\nwould now like to proceed with the acquisition.\nGiven the fact that it is now FY 2012, both agencies have asked\nwhether GSA may still properly use the VA\xe2\x80\x99s FY 2009/2010 funds to\n59\n\n\x0c36 Op. O.L.C. 59 (2012)\n\nprovide the agreed-upon assisted acquisition services. More specifically,\nthey have asked whether, in using the VA\xe2\x80\x99s funds, GSA would satisfy the\nrequirement, developed by the Government Accountability Office\n(\xe2\x80\x9cGAO\xe2\x80\x9d), that servicing agencies acting under interagency agreements\nperform within a \xe2\x80\x9creasonable time.\xe2\x80\x9d They also have asked whether the\n\xe2\x80\x9creasonable time\xe2\x80\x9d construct applies at all in this unique context, where\nthe delay in performing the tasks specified in an interagency agreement\nwas caused not by the servicing agency but rather by the time required\nfor the requesting agency\xe2\x80\x94here, the VA\xe2\x80\x94to meet conditions that had to\nbe satisfied prior to performance. 1\nWe informally advised that under the unusual circumstances presented\nhere, the VA properly obligated its FY 2009/2010 funds when the VA and\nGSA signed Part B of the interagency agreement in August 2010, and that\nGSA may use those funds without running afoul of the \xe2\x80\x9creasonable time\xe2\x80\x9d\nlimitation developed by the GAO. Initially, we hesitated to extend the\n\xe2\x80\x9creasonable time\xe2\x80\x9d concept to delay by requesting as well as servicing\nagencies in the absence of clear guidance from the GAO. But the logic of\nthe GAO\xe2\x80\x99s concept is that an unreasonable delay by the servicing agency\nmay cast doubt on whether the requesting agency had a bona fide need in\nthe year of the appropriation and may suggest that the requesting agency\nwas attempting to \xe2\x80\x9cpark\xe2\x80\x9d funds for use during a later fiscal year. We\nbelieve that this logic may also apply when the requesting agency itself\nhas unreasonably delayed performance of its assigned responsibilities, if\nthat delay hinders the servicing agency\xe2\x80\x99s ability to use the funds, and\ncircumstances suggest that the requesting agency did not have a bona fide\nneed in the fiscal year of the appropriation. However, on the facts presented here\xe2\x80\x94where the VA had an uncontested bona fide need for a\nnonseverable service in FY 2010; where neither the VA nor GSA had any\nreason or incentive to delay the use of the funds; and where the delay was\nattributable to a new, untried regulatory review process conducted by\n1 See Letter for Virginia A. Seitz, Assistant Attorney General, Office of Legal Counsel,\nfrom Will A. Gunn, General Counsel, Department of Veterans Affairs, and Kris E.\nDurmer, General Counsel, General Services Administration (Nov. 10, 2011), with accompanying Memorandum for Virginia A. Seitz, Assistant Attorney General, Office of Legal\nCounsel, from Will A. Gunn, General Counsel, Department of Veterans Affairs (\xe2\x80\x9cVA\nMemo\xe2\x80\x9d), and GSA Position Paper on VA Human Resources IT Procurement (\xe2\x80\x9cGSA\nPaper\xe2\x80\x9d).\n\n60\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\nOMB and OPM\xe2\x80\x94we conclude that neither the VA nor GSA failed to use\nthe funds within a reasonable time and that the VA cannot be charged\nwith having improperly \xe2\x80\x9cparked\xe2\x80\x9d its FY 2009/2010 funds with GSA.\nI.\nAs noted above, the VA and GSA have entered into an interagency\nagreement in which GSA agreed to assist the VA in selecting a new\nprovider of HR information systems services, which, in addition to\nproviding new HR services, would migrate the VA\xe2\x80\x99s current HR system to\nthe new system. GSA has the authority to perform these services for the\nVA under 40 U.S.C. \xc2\xa7 501 (2006 & Supp. IV 2010), which authorizes\nGSA to perform services for executive agencies, and 40 U.S.C. \xc2\xa7 321\n(2006), which establishes the Acquisition Services Fund that finances\nGSA\xe2\x80\x99s Federal Acquisition Service. 2 The agreement was formed in two\nparts. The VA and GSA entered into Part A of the agreement on April 30,\n2009. That part set out the purpose of the agreement and the respective\nroles and responsibilities of the two agencies. See Interagency Agreement\nBetween Department of Veterans Affairs and General Services Administration, Federal Acquisition Service (\xe2\x80\x9cIA\xe2\x80\x9d) pt. A (General Terms and\nConditions). No fiscal obligations were created through the execution of\nPart A. See id. \xc2\xa7 A.1 (Purpose).\nOn August 3, 2010, the agencies signed Part B of the interagency\nagreement, which served as the funding document. The purpose of Part B\nwas \xe2\x80\x9cto establish an agreement with the Servicing Agency [GSA] to assist\nthe Requesting Agency [the VA] in obtaining a new contract to support the\nselection of a provider of Human Resources Information Systems (HRIS)\nservices and migrate the VA to that provider for those services.\xe2\x80\x9d IA pt. B\n(Requirements and Funding Information), \xc2\xa7 B.1 (Purpose). Part B specified that GSA would procure IT support for the VA and provide acquisition support services, including, among other things, preparing a solicitation, conducting a competition, and administering the contract, in order to\nassist the VA in migrating to \xe2\x80\x9can HR system that is mandated by OMB.\xe2\x80\x9d\nId. \xc2\xa7\xc2\xa7 B.6, B.9. Part B purported to obligate to GSA $36,710,332.66 of the\nVA\xe2\x80\x99s information technology systems funds, from a two-year appropria2 Accordingly, GSA was acting under statutory authority independent of the Economy\nAct, 31 U.S.C. \xc2\xa7 1535 (2006).\n\n61\n\n\x0c36 Op. O.L.C. 59 (2012)\n\ntion that expired on September 30, 2010. Id. \xc2\xa7 B.12; see Consolidated\nSecurity, Disaster Assistance, and Continuing Appropriations Act, 2009,\nPub. L. No. 110-329, div. E, tit. II, 122 Stat. 3574, 3706\xe2\x80\x9307 (2008). 3 That\ntotal included a fee for GSA of $1,105,000. Part B of the interagency\nagreement did not condition the obligation of funds on any contingency or\nthe need for regulatory approval.\nSection B.9 of Part B incorporated by reference section A.6 of Part A,\nwhich set forth the specific roles and responsibilities of the VA and GSA.\nThat section specified, among other things, that the VA, as the requesting\nagency, had to \xe2\x80\x9ccomply fully with applicable procurement regulations\nand policies in all matters related to this IA.\xe2\x80\x9d IA \xc2\xa7 A.6, Requesting\nAgency Roles and Responsibilities, #4. Among these applicable policies\nwas the requirement, set out in relevant OMB and OPM guidance regarding so-called Human Resources Line of Business (\xe2\x80\x9cHRLoB\xe2\x80\x9d) migrations,\nthat an agency seeking to conduct a less than fully-open competition\n(such as a private-private or public-public competition) submit a full\njustification for that approach, set out in an Excepted Business Case\n(\xe2\x80\x9cEBC\xe2\x80\x9d), to OMB and OPM. 4 See Memorandum for Chief Human Capital Officers et al. from Linda M. Springer, Chairman & Director, Office\nof Personnel Management, and Clay Johnson III, Vice Chairman &\nDeputy Director for Management, Office of Management and Budget,\nRe: Competition Framework for Human Resources Management Line of\nBusiness Migrations at 4 (May 21, 2007) (\xe2\x80\x9cAgencies that wish to conduct\na non-competitive migration or a migration based on private-private (if\nauthorized) or public-public competition shall prepare a full justification,\ngenerally including the type of information called for by section 6.303-2\nof the FAR [Federal Acquisition Regulations System]. . . . Agencies shall\nconfer with OMB prior to proceeding with a migration through other than\nSection B.12 of the interagency agreement incorrectly stated that the appropriation\nexpired in 2011. The VA and GSA agree that this statement was a clerical error. Section\nB.11 states that the agreement was for a \xe2\x80\x9cseverable service.\xe2\x80\x9d The agencies agree that this\nstatement, too, was in error. As we discuss below, we agree that the services to be performed by GSA were plainly nonseverable, or \xe2\x80\x9centire.\xe2\x80\x9d\n4 Because a congressional rider was construed as barring public-private competitions\nfor HRLoB services, see Omnibus Appropriations Act, 2009, Pub. L. No. 111-8, \xc2\xa7 737,\n123 Stat. 524, 691, federal agencies seeking to migrate to new HR shared service centers\nwere required to conduct either a public-public or a private-private competition, either of\nwhich involved a less than full competition. Thus, an EBC was required in any event.\n3\n\n62\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\na public-private competition.\xe2\x80\x9d); OPM, Migration Planning Guidance,\n\xc2\xa7 7.1, Selection Guidance: Migration Competition Framework (\xe2\x80\x9cMigration Competition Framework\xe2\x80\x9d), http://www.opm.gov/egov/documents/\nMPG/selectionguidance.asp#7.1 (last visited ca. Mar. 2012) (\xe2\x80\x9cAgencies\nthat wish to conduct a non-competitive migration or a migration based on\nprivate-private competition or public-public competition shall prepare a\nfull justification. . . . Agencies may wish to use the Exception Business\nCase Template . . . in preparing their justification to the Office of Management and Budget.\xe2\x80\x9d); see also Migration Competition Framework\n(incorporating by reference the May 21, 2007 OMB memorandum).\nAlthough the precise timing of its choice is unclear, either by the time\nthe VA signed Part B of the interagency agreement or shortly thereafter,\nthe VA had decided to use a private-private competition to select its HR\nservice provider. The extent to which OMB and OPM had the authority\nto veto that decision is also unclear, but both the VA and GSA understood that the VA was required to submit a justification for its decision\nto OMB and OPM to obtain these agencies\xe2\x80\x99 approval. That understanding was not only supported by the OMB-OPM guidance requiring migrating agencies contemplating a public-public or private-private competition to submit an EBC to and \xe2\x80\x9cconfer\xe2\x80\x9d with OMB before proceeding,\nbut also was apparently confirmed in a meeting in August 2010 in\nwhich, according to subsequent VA e-mails, OMB and OPM provided\nthe VA guidance on how to proceed with its HR services acquisition and\nsuggested that the VA submit an EBC justifying its choice of either a\npublic or private sector provider. VA Memo app. A, \xc2\xb6 16; see E-mail for\nTonya Deanes from Robert Baratta, Re: OMB/OPM Meeting on HRIS\n(Aug. 2, 2010, 3:24 PM); E-mail for Carol A. Bales from Robert Baratta, Re: VA\xe2\x80\x99s Plan for Selecting an HR LoB Shared Services Center\n(Aug. 23, 2010, 3:24 PM). In addition, the memorandum from OPM\nultimately recommending that the VA be allowed to proceed with its\nplanned private-private competition states that agencies seeking to select\nand migrate to a new HR service provider \xe2\x80\x9cmust seek OPM\xe2\x80\x99s and\nOMB\xe2\x80\x99s approval of their selection and migration decision\xe2\x80\x9d; and at the\nend of the memorandum, a box next to \xe2\x80\x9cApprove\xe2\x80\x9d is checked. Memorandum for Matthew E. Perry, Chief Information Officer, Office of\nPersonnel Management, from Elizabeth A. Mautner, Program Manager,\nOffice of Personnel Management, Re: Human Resources Lines of Busi63\n\n\x0c36 Op. O.L.C. 59 (2012)\n\nness, Department of Veterans Affairs\xe2\x80\x94Exception Business Case at 1, 2\n(Sept. 29, 2011) (\xe2\x80\x9cOPM Approval Memo\xe2\x80\x9d).\nThe VA\xe2\x80\x99s submission of an EBC to OMB and OPM to justify a private-private competition was the first such submission ever made under\nthe HRLoB process. The VA and GSA expected relatively quick approval, but the process of preparing an EBC and obtaining OMB and OPM\napproval was new and untried and took far longer than the VA and GSA\nhad expected. See VA Memo at 6 (\xe2\x80\x9cIt is important to note that no other\nfederal agency has ever undertaken this exact private-private competition\nto modernize and migrate its HRLoB systems. No agency has gone\nthrough the OMB/OPM review process. There are no benchmarks, no\nregulatory deadlines, or temporal boundaries to guide the HRLoB migration.\xe2\x80\x9d); GSA Paper at 2 (\xe2\x80\x9cThe time it took for VA to obtain final approval of its EBC was substantially longer than either VA or GSA anticipated\nwhen they entered the IA[].\xe2\x80\x9d). The VA submitted a draft EBC to OPM in\nSeptember 2010, VA Memo app. A, \xc2\xb6 17, but the VA needed both to\nconduct further market research before the EBC could pass muster with\nOMB and OPM, and to obtain necessary internal approvals. VA Memo\nat 6. Various unexpected developments delayed the necessary market\nresearch and vendor demonstrations, and the VA did not submit a final\nEBC for review until June 2011, followed by an updated version in\nAugust 2011. Id. at 6 & app. A, \xc2\xb6\xc2\xb6 27, 31. In the meantime, in November\n2010, GSA advised the VA by letter that it would be unable to proceed\nwith the issuance of a solicitation for bids until the VA\xe2\x80\x99s EBC was approved. Letter for Robert Baratta, Director, HR Line of Business/HRIS\nProgram Office, Department of Veterans Affairs, from Bjorn Miller,\nContracting Officer, General Services Administration, Re: Approval of\nException Business Case (Nov. 4, 2010).\nOn or about September 12, 2011, OMB notified the VA that it had approved its planned private-private competition. VA Memo app. A, \xc2\xb6 32.\nOn September 29, 2011, at the very end of FY 2011, the HRLoB (OPM)\nprogram manager also recommended that the VA be allowed to proceed\nwith its plan. Id. \xc2\xb6 33; OPM Approval Memo. As of that date, GSA had\nengaged in no meaningful services under the interagency agreement and\nhad made no charges against the obligated funds. The VA and GSA are\nready to proceed with the acquisition, but prior to doing so have asked\n\n64\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\nthis Office whether GSA may properly use the VA\xe2\x80\x99s FY 2009/2010 funds\nin FY 2012.\nII.\nUnder the VA and GSA\xe2\x80\x99s interagency agreement, the VA obligated FY\n2009/2010 funds in order to obtain \xe2\x80\x9cacquisition services\xe2\x80\x9d from GSA\xe2\x80\x94in\nparticular, GSA\xe2\x80\x99s assistance in selecting a new HR provider for the VA\nand administering the contract with that provider. We advised that GSA\nmay properly use those funds to perform its obligations under the interagency agreement, for three principal reasons. First, we think that the\nfunds were validly obligated to procure nonseverable services for which\nthe VA had a bona fide need in FY 2010 (during the availability of its\nappropriation), and it is settled law that such validly obligated funds can\nbe used in subsequent fiscal years. Second, we do not think that the fact\nthat the VA had to navigate a novel regulatory approval process before\nGSA could begin work renders the obligation invalid. And third, we\nconclude that the \xe2\x80\x9creasonable time\xe2\x80\x9d doctrine does not prohibit GSA from\nusing the funds, even though they are FY 2009/2010 funds that would be\nused in FY 2012.\nA.\nThe recording statute, 31 U.S.C. \xc2\xa7 1501 (2006), contemplates that\nagencies may enter into binding agreements creating recordable obligations with other agencies. See id. \xc2\xa7 1501(a) (\xe2\x80\x9cAn amount shall be recorded as an obligation of the United States Government only when supported by documentary evidence of . . . (1) a binding agreement between an\nagency and another person (including an agency)[.]\xe2\x80\x9d). It is settled fiscal\nlaw that where, as here, an interagency agreement is based on statutory\nauthority other than the Economy Act, 5 an obligation under the agree5 The Economy Act provides authority for agencies to contract with other agencies\nfor goods or services. That Act requires that an amount obligated by one agency to\nanother be deobligated if the agency filling the order has not incurred obligations to\n\xe2\x80\x9cprovid[e] goods or services\xe2\x80\x9d or \xe2\x80\x9cmak[e] an authorized contract with another person to\nprovide the requested goods or services,\xe2\x80\x9d \xe2\x80\x9cbefore the end of the period of availability of\nthe appropriation.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1535(d). As GSA points out, however, see GSA Paper at 1\nn.1, the interagency agreement between the VA and GSA rests on authority independent\n\n65\n\n\x0c36 Op. O.L.C. 59 (2012)\n\nment \xe2\x80\x9cwill remain payable in full from the appropriation initially\ncharged, regardless of when performance occurs, in the same manner as\ncontractual obligations generally\xe2\x80\x9d if it satisfies \xe2\x80\x9cthe bona fide needs rule\nand . . . any restrictions in the legislation authorizing the agreement.\xe2\x80\x9d\n2 Government Accountability Office, Principles of Federal Appropriations Law 7-30 (3d ed. 2006) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d). \xe2\x80\x9cAn\ninteragency agreement . . . is akin to a contract and the obligational\nconsequences are the same as if it were a contract.\xe2\x80\x9d Chemical Safety and\nHazard Investigation Board\xe2\x80\x94Interagency Agreement with the General\nServices Administration, B-318425, 2009 WL 5184705, at *1 n.6 (Comp.\nGen. Dec. 8, 2009). 6\nFor contracts generally, as well as interagency agreements, funds may\nbe obligated for the provision of services beyond the fiscal year of a\ntime-limited appropriation only to the extent that a bona fide need existed in the year that obligational authority existed, and that the services\nconstitute a single nonseverable undertaking. See Transfer of Fiscal\nYear 2003 Funds from the Library of Congress to the Office of the\nArchitect of the Capitol, B-302760, 2004 WL 1146276, at *5 n.9, *7\n(Comp. Gen. May 17, 2004) (\xe2\x80\x9cLibrary of Congress\xe2\x80\x9d) (Library of Congress\xe2\x80\x99s FY 2003 funds obligated to the Architect of the Capitol through\nan interagency agreement are available for use in FY 2004 and 2005 to\nredesign and renovate a loading dock); Interagency Agreement\xe2\x80\x94\nAdministrative Office of the U.S. Courts, 55 Comp. Gen. 1497, 1498,\n1500\xe2\x80\x9301 (1976) (interagency agreement for automatic data processing\nservices constitutes a valid obligation against the FY 1976 appropriation\neven though the necessary work would be performed in both FY 1976\nof the Economy Act (40 U.S.C. \xc2\xa7\xc2\xa7 321, 501), and thus is not subject to this restriction.\nSee, e.g., National Park Service Soil Surveys, B-282601, 1999 WL 795735, at *2 (Comp.\nGen. Sept. 27, 1999) (\xe2\x80\x9cWhere an interagency agreement is based on specific statutory\nauthority independent of the Economy Act, the funds do not expire at the end of the\nperiod of availability if they have been otherwise properly obligated.\xe2\x80\x9d).\n6 In addressing issues of fiscal law, we give serious consideration to the views of the\nComptroller General, although they are not \xe2\x80\x9ccontrolling for executive branch officers.\xe2\x80\x9d\nUse of General Agency Appropriations to Purchase Employee Business Cards, 21 Op.\nO.L.C. 150, 151 (1997); see also id. (\xe2\x80\x9c[T]he opinions and legal interpretations of the\nComptroller General, although useful sources on appropriations matters, are not binding\nupon departments or agencies of the executive branch.\xe2\x80\x9d). In addressing the issues here, we\nagree with the GAO\xe2\x80\x99s general approach.\n\n66\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\nand 1977); see also Independent Statutory Authority of Consumer Product Safety Commission to Enter Into Interagency Agreements, B-289380,\n2002 WL 31628522, at *2 (Comp. Gen. July 31, 2002); National Park\nService Soil Surveys, 1999 WL 795735, at *3; Obligation of Funds for\nPurchase of Oil for Strategic Petroleum Reserve, B-193005, 1978 WL\n11174, at *3 (Comp. Gen. Oct. 2, 1978); HUD\xe2\x80\x94Corps of Engineers\nFlood Insurance Studies, B-167790, 1977 WL 12105, at *2 (Comp. Gen.\nSept. 22, 1977). Appropriated funds remain available to liquidate obligations properly chargeable to that account for five fiscal years after the\nperiod of availability. Library of Congress, 2004 WL 1146276, at *5\nn.9 (citing 31 U.S.C. \xc2\xa7\xc2\xa7 1552(a), 1553(a) (2000)).\nHere, we believe that the VA had a bona fide need in FY 2010, when\nits obligational authority still existed, and that the services for which it\nwas contracting were nonseverable. We discuss each conclusion in turn.\nThe bona fide needs rule is a longstanding gloss by the GAO on the\nrequirements of 31 U.S.C. \xc2\xa7 1502 (2006). 7 The rule is that \xe2\x80\x9c[a] fiscal year\nappropriation may be obligated only to meet a legitimate, or bona fide,\nneed arising in, or in some cases arising prior to but continuing to exist in,\nthe fiscal year for which the appropriation was made.\xe2\x80\x9d 1 Federal Appropriations Law 5-11 (3d ed. 2004); see also Funding of Grants by the\nNational Institutes of Health, 10 Op. O.L.C. 19, 21 (1986) (\xe2\x80\x9cFunding of\nGrants\xe2\x80\x9d); National Park Service Soil Surveys, 1999 WL 795735, at *3.\nConsistent with this rule, delivery of goods or performance of services in\na fiscal year subsequent to the year in which a contract is executed does\nnot necessarily preclude charging earlier fiscal year funds with the full\ncost of the goods or services. The test is whether the goods or services\nmeet a bona fide need during the period in which obligational authority\nexists, regardless of when the work is actually performed. EEOC\xe2\x80\x94\nPayment for Training of Management Interns, B-257977, 1995 WL\n7\n\nThe statute provides in relevant part:\nThe balance of an appropriation or fund limited for obligation to a definite period is\navailable only for payment of expenses properly incurred during the period of availability or to complete contracts properly made within that period of availability and obligated consistent with section 1501 of this title. However, the appropriation or fund is\nnot available for expenditure for a period beyond the period otherwise authorized by\nlaw.\n\n31 U.S.C. \xc2\xa7 1502(a).\n\n67\n\n\x0c36 Op. O.L.C. 59 (2012)\n\n683813, at *2 (Comp. Gen. Nov. 15, 1995); see also Library of Congress,\nB-302760, 2004 WL 1146276, at *5 & n.9.\nThe VA maintains that it had a clear bona fide need in FY 2010, during\nthe availability of its two-year appropriation, to migrate its HR systems to\na modern shared service center. VA Memo at 2; see also IA \xc2\xa7 B.6 (describing the VA\xe2\x80\x99s bona fide need to provide continuous HR services and support to its employee population and to migrate those services and support\nto an approved third-party provider by direction from OMB under the\nHRLoB initiative). Consistent with this contention, the VA\xe2\x80\x99s Determinations and Findings supporting the interagency agreement, signed by the\nVA in June 2010, expressed the VA\xe2\x80\x99s goal of selecting a new provider as\nsoon as possible in FY 2010. Determinations and Findings for Project\nEntitled Human Resources Information Systems (HRIS) Human Resources\nMigration at 3. GSA does not dispute that the VA had a bona fide need for\nGSA\xe2\x80\x99s acquisition assistance services at the time the agencies signed Part\nB of the interagency agreement; indeed, GSA believes that the VA validly\nobligated its FY 2009/2010 funds at that time. GSA Paper at 3. GSA\nlikewise does not dispute that the VA\xe2\x80\x99s bona fide need continues to exist.\nA bona fide need, moreover, may arise in one fiscal year for services\nthat by their nature cannot be separated for performance in separate fiscal\nyears. The GAO has explained that the question whether to charge the\nappropriation current on the date the contract is made or the funds current\nat the time services are rendered depends upon whether the services are\n\xe2\x80\x9cseverable\xe2\x80\x9d or \xe2\x80\x9centire.\xe2\x80\x9d 1 Federal Appropriations Law at 5-23; see also\nFunding of Grants, 10 Op. O.L.C. at 22. \xe2\x80\x9cThe term \xe2\x80\x98severable services\xe2\x80\x99\nrefers to those services which are continuing and recurring in nature, such\nas window cleaning, maintenance or security services\xe2\x80\x9d; they are services\n\xe2\x80\x9cthat can be separated into components that independently provide value\nto meet agency needs.\xe2\x80\x9d National Park Service Soil Surveys, 1999 WL\n795735, at *3. Under the bona fide needs rule, any portion of severable\nservices completed in a subsequent fiscal year is chargeable only to appropriations available in the subsequent year. Id.\nBy contrast, an entire, or nonseverable, service is one that is not recurring in nature; such a service is more akin to a single project, the\ncomponents of which do not individually provide value to the agency.\nFor example, training tends not to be severable. 1 Federal Appropriations Law at 5-27; Proper Appropriation to Charge for Expenses Relat68\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\ning to Nonseverable Training Course, 70 Comp. Gen. 296, 297 (1991);\nPayment for Training of Management Interns, 1995 WL 683813, at *2.\nA nonseverable service for which an agency had a bona fide need at the\ntime the agency orders or contracts for the service is properly charged to\nan appropriation current when the agency enters into the contract. Interagency Agreement with the General Services Administration, 2009 WL\n5184705, at *3; see, e.g., Library of Congress, 2004 WL 1146276, at *5\nn.9 (construction of building loading dock was nonseverable undertaking) ; Incremental Funding of U.S. Fish and Wildlife Service Research\nWork Orders, 73 Comp. Gen. 77, 79\xe2\x80\x9380 (1994) (research work order\nwas \xe2\x80\x9centire\xe2\x80\x9d for purposes of the bona fide needs rule and thus chargeable to the appropriation available at execution rather than funds current\nwhen the research was performed); Proper Fiscal Year Appropriation to\nCharge for Contract and Contract Increase, 65 Comp. Gen. 741, 743\n(1986) (study on adjustment needs of Vietnam veterans was not severable and should have been charged to the appropriation available when\nthe contract was executed).\nWe agree with the VA and GSA that, in this instance, the VA contracted\nwith GSA to obtain indivisible acquisition assistance services that would\nculminate in the selection of and migration to a new HR services provider.\nThe individual activities in which GSA is to engage pursuant to the interagency agreement will be of no independent value to the VA; the point of\nthe agreement, and its entire value to the VA, will be realized only when\nthe migration of the VA\xe2\x80\x99s HR systems to the new provider is complete.\nUnder these circumstances, we think that GSA\xe2\x80\x99s services are nonseverable.\nSee Financial Crimes Enforcement Network\xe2\x80\x94Obligations Under a CostReimbursement, Nonseverable Services Contract, B-317139, 2009 WL\n1621304, at *5 (Comp. Gen. June 1, 2009) (contract called for delivery of\na defined end product\xe2\x80\x94the design, development, and deployment of a data\nretrieval system\xe2\x80\x94and thus was for a nonseverable services contract).\nBecause the VA had a bona fide need in the year that obligational authority\nexisted, and the services for which it contracted with GSA constitute a\nsingle nonseverable undertaking, GSA can perform services under the\ninteragency agreement in a later fiscal year so long as the VA otherwise\nproperly obligated the funds. See Continued Availability of Expired Appropriation for Additional Project Phases, B-286929, 2001 WL 717355,\nat *4 (Comp. Gen. Apr. 25, 2001) (\xe2\x80\x9cNothing in the bona fide needs rule\n69\n\n\x0c36 Op. O.L.C. 59 (2012)\n\nsuggests that expired appropriations may be used for a project for which a\nvalid obligation was not incurred prior to expiration merely because there\nwas a need for that project during that period.\xe2\x80\x9d).\nB.\nGSA agrees that the VA successfully obligated its FY 2009/2010\nfunds when the agencies signed Part B in August 2010. GSA Paper at 3.\nAlthough the agencies do not dispute that the funds were validly obligated, we considered whether the agreement satisfied the various statutory and GAO requirements for a valid obligation, including specificity,\ncertainty, and definiteness. We also considered whether the existence of\na required regulatory approval process post-dating the execution of Part\nB of the interagency agreement\xe2\x80\x94through which the VA had to secure\nOMB and OPM concurrence before GSA could issue a solicitation and\nbegin providing its assisted acquisition services\xe2\x80\x94rendered the VA\xe2\x80\x99s\nattempt to obligate its funds in August 2010 invalid. As we now explain,\nwe conclude that the obligation satisfied these requirements and that the\nregulatory approval process did not render the obligation invalid.\nPart B of the interagency agreement, which purports to obligate the\nVA\xe2\x80\x99s FY 2009/2010 funds to GSA, satisfies the basic criteria for an\n\xe2\x80\x9cobligation\xe2\x80\x9d under the recording statute\xe2\x80\x94namely, that an amount to be\nrecorded as an obligation of the United States be supported by \xe2\x80\x9cdocumentary evidence of . . . a binding agreement between an agency and another\nperson (including an agency) that is . . . in writing, in a way and form, and\nfor a purpose authorized by law\xe2\x80\x9d and \xe2\x80\x9cexecuted before the end of the\nperiod of availability for obligation of the appropriation or fund used for\nspecific . . . work or service to be provided.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1501(a).\nIn our view, Part B also satisfies the basic definition of \xe2\x80\x9cobligation\xe2\x80\x9d\nset out in a long line of GAO authorities. See, e.g., 2 Federal Appropriations Law at 7-3 (defining \xe2\x80\x9cobligation\xe2\x80\x9d as \xe2\x80\x9ca definite commitment which\ncreates a legal liability of the Government for the payment of appropriated funds for goods and services ordered or received\xe2\x80\x9d); see also Government Accountability Office, GAO-05-734SP, A Glossary of Terms\nUsed in the Federal Budget Process 70 (2005); To the Administrator,\nAgency for International Development, 42 Comp. Gen. 733, 734 (1963).\nTo be valid, an obligation of appropriations must be \xe2\x80\x9cdefinite and certain,\xe2\x80\x9d 2 Federal Appropriations Law at 7-3, and the agreement must be\n70\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\nfor \xe2\x80\x9cspecific\xe2\x80\x9d goods or services, id. at 7-17; 31 U.S.C. \xc2\xa7 1501(a)(1)(B).\nAs the Comptroller General has explained, \xe2\x80\x9cCongress did not want\nagencies to record obligations against current appropriations based on\ninchoate agreements\xe2\x80\x94whether with vendors or other agencies.\xe2\x80\x9d Expired\nFunds and Interagency Agreements between GovWorks and the Department of Defense, B-308944, 2007 WL 2120292, at *7 (Comp. Gen. July\n17, 2007) (\xe2\x80\x9cGovWorks\xe2\x80\x9d).\nWhile the need for a regulatory step to be taken during the pendency of\nthe VA\xe2\x80\x99s and GSA\xe2\x80\x99s agreement adds a complication on which we have\nfound little guidance, the interagency agreement between the VA and\nGSA was, in our view, sufficiently definite, certain, and specific within\nthe meaning of those terms as articulated by the GAO to create a binding\nobligation. Part B specifies the acquisition-related services the VA engaged GSA to perform. Part A, incorporated by reference in Part B, further delineates the roles and responsibilities of both the VA and GSA.\nAlthough the VA was required to obtain advance OMB-OPM approval of\nits plan to conduct a private-private competition, and although Part B of\nthe agreement does not specify that GSA would be assisting the VA in\nconducting a private-private (as opposed to some other form of ) competition, the services the VA asked GSA to provide were not so vague, contingent, tentative, or uncertain that they would cause the agreement to fail\nthe GAO\xe2\x80\x99s specificity test. Rather, the VA hired GSA to provide \xe2\x80\x9cacquisition services\xe2\x80\x9d that consisted of conducting a competition for a new HR\nservices provider for the VA.\nIn providing this specific, definite description of the tasks the servicing\nagency was to perform, the interagency agreement between the VA and\nGSA stands in contrast to other situations in which the GAO has found an\nagreement too indefinite or inchoate to form a valid obligation. See, e.g.,\nTo Betty F. Leatherman, Department of Commerce, 44 Comp. Gen. 695,\n697\xe2\x80\x9398 (1965) (no \xe2\x80\x9cfirm and complete\xe2\x80\x9d order for printing of sales promotion materials when a manuscript was not provided until more than seven\nmonths after the end of the fiscal year); Natural Resources Conservation\nService\xe2\x80\x94Obligating Orders with GSA\xe2\x80\x99s AutoChoice Summer Program,\nB-317249, 2009 WL 2004210, at *5\xe2\x80\x936 (Comp. Gen. July 1, 2009) (agency\xe2\x80\x99s order for motor vehicles was not \xe2\x80\x9cfirm and complete\xe2\x80\x9d because the\nagency could not finalize its order until the following fiscal year when the\nnext-year model car information first became available); GovWorks, 2007\n71\n\n\x0c36 Op. O.L.C. 59 (2012)\n\nWL 2120292, at *7 (three of four interagency agreements were too vague\nin their descriptions to establish the rights and duties of the Department of\nDefense and GovWorks\xe2\x80\x94e.g., \xe2\x80\x9cequipment through the Pentagon IT\nStore\xe2\x80\x9d); Status of Purchase Order as Obligation, B-196109, 1979 WL\n11928, at *1 (Comp. Gen. Oct. 23, 1979) (order lacking a description of\nthe products to be provided, but which relied on \xe2\x80\x9crequisitions\xe2\x80\x9d to be sent\nunder separate cover, was not \xe2\x80\x9cfirm and complete\xe2\x80\x9d); Director, International Operations Division, B-155708-O.M. (Comp. Gen. Apr. 26, 1965),\nhttp://redbook.gao.gov/4/fl0016226.php (last visited ca. Mar. 2012) (loan\nagreement between United States and Brazil was not sufficiently \xe2\x80\x9cdefinite\nor specific\xe2\x80\x9d in providing that the funds would be used to finance programs\nin certain areas \xe2\x80\x9cas may, from time to time, be agreed upon in writing by\nA.I.D. and the Government\xe2\x80\x9d); To the Honorable Secretary of State,\nB-147196, 1965 WL 2883, at *2\xe2\x80\x934 (Comp. Gen. Apr. 5, 1965) (contracts\nwere not specific as to services to be rendered when they provided for\nfunds for refugee assistance \xe2\x80\x9cas determined by the supervising officer\xe2\x80\x9d).\nAs we have noted, the fact that a particular regulatory step had to be\ntaken after the agencies signed Part B of the interagency agreement complicates our assessment of the agreement\xe2\x80\x99s specificity and definiteness.\nWe have not found definitive analysis on this point by the Comptroller\nGeneral. For purposes of discussion, we accept the VA\xe2\x80\x99s and GSA\xe2\x80\x99s view\nthat review and concurrence by OMB and OPM in the VA\xe2\x80\x99s planned\nprivate-private competition was a necessary regulatory step to be completed in the process before GSA was free to use the funds in conducting\nthe acquisition. This step appears to have been the responsibility of the\nVA, the requesting agency. See IA \xc2\xa7 A.6, Requesting Agency Roles and\nResponsibilities, #4 (requesting agency must \xe2\x80\x9ccomply fully with applicable procurement regulations and policies in all matters related to this IA\xe2\x80\x9d).\nNevertheless, we do not perceive the requirement that the VA pursue this\nconsultation-concurrence step as negating either the certainty or definiteness of the obligation the VA undertook with GSA. In at least one instance, the Comptroller General concluded that a contract with an express\nregulatory contingency was nonetheless sufficiently definite to create a\nvalid obligation. See Lawrence W. Rosine Co., 55 Comp. Gen. 1351,\n1354\xe2\x80\x9355 (1976) (award to a business on the condition that the contract\nwould be terminated at no cost if the Small Business Administration\nfound that it was not a small business was sufficiently definite to create a\n72\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\nbinding agreement supporting the obligation of funds). Here, the VA\nobligated its FY 2009/2010 funds to GSA without even imposing an\nexpress condition in Part B\xe2\x80\x94the obligation, in other words, was more\ncertain and definite than the one at issue in Rosine because it was not\nexpressly conditioned on OMB-OPM approval, which seems instead to be\npart of an assumed regulatory background for the contract. Furthermore,\nunder Part A of the interagency agreement, section A.12, both agencies\nretained the right to terminate the agreement upon 30 days\xe2\x80\x99 written notice,\nenabling either agency to cancel the agreement in the event that a failure\nby OMB or OPM to approve the contemplated competition or conditions\nplaced on that competition prevented GSA from carrying out the duties\nimposed on it under the interagency agreement. Thus, the agreement was\ndefinite, certain, and specific as written and understood by the agencies,\nbut in the event that OMB or OPM interceded with a requirement that\nwould have prevented GSA\xe2\x80\x99s performance, the agreement could have\nbeen terminated by either agency. We conclude, therefore, that the VA\xe2\x80\x99s\nobligation to comply with the OMB-OPM review process did not preclude\nit from entering into a binding agreement with GSA.\nC.\nFinally, although GSA agrees that the VA validly obligated its FY\n2009/2010 funds when it signed Part B of the interagency agreement,\nGSA asks whether it will have acted within a \xe2\x80\x9creasonable time\xe2\x80\x9d of the\nobligation of the funds if it renders services under the agreement more\nthan one fiscal year after the funds\xe2\x80\x99 expiration. It also asks whether the\n\xe2\x80\x9creasonable time\xe2\x80\x9d for a servicing agency to perform applies only to the\ntime required for the servicing agency to fulfill its duties or whether it\nalso includes time required by the requesting agency to satisfy conditions\nnecessary for the servicing agency to begin performance. See GSA Paper\nat 2\xe2\x80\x934. We believe that on the facts presented here, the \xe2\x80\x9creasonable time\xe2\x80\x9d\nrequirement developed by the GAO would not prevent GSA from performing under the interagency agreement and using the funds in FY 2012.\nThe GAO has adopted a requirement, as a further gloss on the bona fide\nneeds rule, that the servicing agency in an interagency agreement award a\ncontract to a third party or otherwise perform within a \xe2\x80\x9creasonable time.\xe2\x80\x9d\nAlthough we have discovered little fiscal law from the Comptroller General on this point, the GAO appears to use a \xe2\x80\x9creasonableness\xe2\x80\x9d standard to\n73\n\n\x0c36 Op. O.L.C. 59 (2012)\n\nevaluate the timeliness of a performing agency\xe2\x80\x99s actions. For example, in\nanswering the question how long a performing agency has to execute a\ncontract with a third party, consistent with the bona fide needs rule, the\nGAO has explained: \xe2\x80\x9cThere is no hard and fast rule in this regard. Rather,\nthe GAO uses a \xe2\x80\x98reasonableness\xe2\x80\x99 standard when evaluating the timeliness\nof a performing agency\xe2\x80\x99s actions, examining the circumstances surrounding transactions on a case-by-case basis.\xe2\x80\x9d See Government Accountability\nOffice, Interagency Transactions: Roles and Responsibilities\xe2\x80\x94Frequently\nAsked Questions #3 (Mar. 13, 2008) (\xe2\x80\x9cGAO FAQ\xe2\x80\x9d), http://www.gao.gov/\nspecial.pubs/appforum2008/interagencytransactions.pdf. The Comptroller\nGeneral has applied this test in circumstances in which an unreasonable\ndelay on the part of the servicing agency might cast doubt on whether the\nrequesting agency had a bona fide need for the goods or services during\nthe fiscal year in which the funds were obligated.\nThe GAO\xe2\x80\x99s decision in GovWorks, an example of an agency\xe2\x80\x99s failure to\nsatisfy the reasonable time requirement, involved circumstances wholly\ndistinguishable from those here. In that case, the Department of Defense\nincurred an obligation against its FY 2004 appropriation in April 2004,\nwhen it transferred FY 2004 funds to GovWorks to obtain laser printers.\nGovWorks did not execute the contract to acquire those printers until\nalmost 17 months later and 11 months after the end of FY 2004. The GAO\nhad \xe2\x80\x9cno information suggesting that the printers GovWorks purchased on\nDOD\xe2\x80\x99s behalf [were] anything but readily available commercial items that\nGovWorks could have purchased on DOD\xe2\x80\x99s behalf with little lead time.\xe2\x80\x9d\n2007 WL 2120292, at *8. As such, the GAO found it \xe2\x80\x9cunreasonable\xe2\x80\x9d that\nGovWorks took 17 months to execute the contract to purchase the printers. Id. The GAO treated the passage of time prior to execution of the\ncontract for the printers as strong evidence that, rather than fulfilling a\nbona fide need of FY 2004, the contract at best fulfilled a need of FY\n2005. Moreover, the GAO concluded that, by transferring funds to\nGovWorks under several inadequate interagency agreements, three of\nwhich lacked specificity, the Department of Defense had improperly\n\xe2\x80\x9cparked\xe2\x80\x9d funds at GovWorks in an effort to extend the availability of\ntime-limited appropriated funds. Id. at *10; Federal Appropriations Law,\nAnnual Update of the Third Edition 5-3 (Mar. 2011), http://www.gao.gov/\nspecial.pubs/appforum2011/d11210sp.pdf (discussing the GovWorks decision). In this instance, by contrast, the VA was not contracting for the\n74\n\n\x0cUse of FY 2009/2010 Funds by GSA to Assist VA in FY 2012\n\npurchase of a readily available commodity or service but for a major\nproject, the migration of its HR system to a new provider. Nor, the agencies agree, was the delay in the use of the funds within the control of the\nservicing agency, GSA.\nWe know of no GAO decision applying the \xe2\x80\x9creasonable time\xe2\x80\x9d restriction to delays on the part of the requesting, rather than the servicing,\nagency. But we also see no reason in principle why the logic of this GAO\nstandard would not extend to unreasonable delays by the requesting\nagency, including delays that would cast doubt on whether the agency\nentered into an interagency agreement to fulfill a bona fide need of that\nfirst fiscal year and delays that would suggest that the agency was \xe2\x80\x9cparking\xe2\x80\x9d funds to prevent their lapse. We are not required to decide whether\nthe \xe2\x80\x9creasonable time\xe2\x80\x9d doctrine extends to delays on the part of the requesting agency, however, because even assuming it does, under the\nunusual circumstances present here, the VA has satisfied any such requirement.\nIn procuring a new HR system, the VA was proceeding under a new\nand untried regulatory process that involved obtaining approval from\nOMB and OPM to conduct a private-private competition. At the time the\nVA and GSA signed Part B of the interagency agreement, there were no\nbenchmarks or settled expectations about the amount of time it would take\nto prepare an EBC that would pass muster and for OMB and OPM to\nconcur. VA Memo at 6; GSA Paper at 2. The VA and GSA believed that\nthe process would be reasonably quick, and certainly not as long as a year.\nIndeed, the VA\xe2\x80\x99s Determinations and Findings supporting the interagency\nagreement, signed by the VA in June 2010, expressed the VA\xe2\x80\x99s goal of\nselecting a new provider as soon as possible in FY 2010. Neither the VA\nnor GSA had any incentive to delay the performance of the agreement or\nthe issuance of the solicitation. The VA\xe2\x80\x99s immediate need for the HR\nmigration in FY 2010 was clear and undisputed; and, as noted above, the\nagreement was definite and intended for the acquisition of a unique, rather\nthan routinely available, product. We have been given no basis to believe\nthat the delay in OMB\xe2\x80\x99s and OPM\xe2\x80\x99s approval was attributable to dilatoriness by the VA. On these facts, and in the absence of any reason the VA\nshould have expected the EBC process to take an entire fiscal year to\ncomplete, we conclude that the VA acted reasonably, that the delay was\nnot attributable to any fault on its part, and that the lapse of time did not\n75\n\n\x0c36 Op. O.L.C. 59 (2012)\n\nthrow into question the VA\xe2\x80\x99s bona fide need for GSA\xe2\x80\x99s services in FY\n2010, when it obligated the funds.\nFinally, we find that GSA would not run afoul of the \xe2\x80\x9creasonable time\xe2\x80\x9d\nrequirement by further contracting the VA\xe2\x80\x99s funds in FY 2012, two fiscal\nyears after the VA incurred the obligation, rather than in the following\nyear. See, e.g., Library of Congress, 2004 WL 1146276, at *8 (FY 2003\nfunds could be applied to cover costs incurred in FY 2004 and 2005).\nAgain, our understanding of the reasonable time concept is that it is\ncontextual and imposes no rigid standard regarding the time in which a\nservicing agency must perform under an interagency agreement. See GAO\nFAQ #3. Because the OMB and OPM approvals have only recently been\nissued, and because we do not think the delay in obtaining those approvals\nviolates the \xe2\x80\x9creasonable time\xe2\x80\x9d requirement, we also conclude that GSA\xe2\x80\x99s\nreasonably timely performance following issuance of those necessary\napprovals would not violate that requirement.\nFor all of these reasons, we conclude that, in the unique circumstances\nhere, the \xe2\x80\x9creasonable time\xe2\x80\x9d requirement would not be violated by GSA\xe2\x80\x99s\nuse of the VA\xe2\x80\x99s FY 2009/2010 funds in FY 2012, even if that requirement\napplies to delay by a requesting agency.\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\n76\n\n\x0c'


b'Authority of Indian Tribal Court to Issue\nGarnishment Writs Under 42 U.S.C. \xc2\xa7 662(e)\nA n In d ia n trib a l c o u r t is a \xe2\x80\x9c c o u r t o f c o m p e te n t j u r i s d ic tio n " fo r p u rp o s e s o f issu in g\ng a r n is h m e n t w r its u n d e r 4 2 U .S .C . \xc2\xa7 6 6 2 (e ), if it h a s th e p o w e r u n d e r trib a l la w to issue\nju d g m e n ts a w a r d in g c h ild s u p p o r t o r a lim o n y .\n\nFebruary 28, 1980\nM EM ORANDUM OPINION FOR T H E ASSOCIATE G EN ER A L\nCOUNSEL, O FFIC E O F PERSO N N EL M AN AG EM ENT\nThis responds to your request for our opinion whether the Yakima\nIndian Nation Tribal Court is a \xe2\x80\x9ccourt of competent jurisdiction\xe2\x80\x9d for\npurposes of 42 U.S.C. \xc2\xa7 662(e), as implemented by the Office of Person\xc2\xad\nnel Management\xe2\x80\x99s proposed regulations. 44 Fed. Reg. 60301 (1979) (to\nbe codified in 5 C.F.R. 581.101-581.501). In our opinion, a tribal court\nthat establishes garnishment procedures may qualify as a court of com\xc2\xad\npetent jurisdiction if it had the power to issue the underlying judgment\nawarding child support or alimony. Absent the facts of a particular\ncase, we do not decide whether any particular tribal court is a \xe2\x80\x9ccourt\nof competent jurisdiction.\xe2\x80\x9d\nIn 1975, Congress waived the sovereign immunity of the United\nStates in proceedings for enforcement of writs of garnishment -issued to\nenforce orders for child support or alimony. Pub. L. No. 93-647,\n\xc2\xa7 101(a), 88 Stat. 2357, 42 U.S.C. \xc2\xa7 659. Prior to that Act, the pay of\nfederal employees was not subject to attachment for purposes of enforc\xc2\xad\ning court orders, including orders for child support and alimony. See\nBuchanan v. Alexander, 45 U.S. (4 How.) 20 (1846); Applegate v. Apple\xc2\xad\ngate, 39 F. Supp. 887, 889-90 (E.D. Va. 1941). Reflecting the \xe2\x80\x9cimpor\xc2\xad\ntance the Congress attributes to support payments,\xe2\x80\x9d a bill recommended\nby the Senate Committee on Finance in 1975 provided that the money\n\xe2\x80\x9cbased upon remuneration for employment\xe2\x80\x9d of federal employees, in\xc2\xad\ncluding military personnel, would be subject to garnishment in support\nand alimony cases. S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54 (1974).\nThe conference committee adopted this language. H.R. Rep. No. 1643,\n93d Cong., 2d Sess. 23 (1974). As enacted, this provision states:\nNotwithstanding any other provision of law, effective\nJanuary 1, 1975, moneys (the entitlement to which is\nbased upon remuneration for employment) due from, or\n450\n\n\x0cpayable by, the United States (including any agency or\ninstrumentality thereof and any wholly owned Federal\ncorporation) to an individual, including members of the\narmed services, shall be subject, in like manner and to the\nsame extent as if the United States were a private person,\nto legal process brought for the enforcement, against such\nindividual of his legal obligations to provide child support\nor make alimony payments.\n42 U.S.C. \xc2\xa7 659. \xe2\x80\x9cLegal process\xe2\x80\x9d was not defined in the Act.\nIn 1977, Congress clarified this law by authorizing the issuance of\nregulations to administer the law, providing specific conditions and\nprocedures, and defining the terms used in the garnishment statute. 42\nU.S.C. \xc2\xa7\xc2\xa7661-662. See H.R. Rep. No. 263, 95th Cong., 1st Sess. 35\n(1977). It defined legal process as follows:\nThe term \xe2\x80\x9clegal process\xe2\x80\x9d means any writ, order, sum\xc2\xad\nmons, or other similar process in the nature of garnish\xc2\xad\nment, which\xe2\x80\x94\n(1) is issued by (A) a court of competent jurisdiction\nwithin any State, territory, or possession of the United\nStates, (B) a court of competent jurisdiction in any for\xc2\xad\neign country . . . , or (C) an authorized official pursuant\nto an order of such a court of competent jurisdiction or\npursuant to State or local law, and\n(2) is directed to, and the purpose of which is to\ncompel, a governmental entity, which holds moneys\nwhich are otherwise payable to an individual, to make a\npayment from such moneys to another party in order to\nsatisfy a legal obligation of such individual to provide\nchild support or make alimony payments.\n42 U.S.C. \xc2\xa7 662(e) (1976 ed., Supp. IV 1980). The question posed is\nwhether an Indian tribal court is a \xe2\x80\x9ccourt of competent jurisdiction\xe2\x80\x9d for\nthe purposes of this section.\nGarnishment is a purely statutory proceeding. See, e.g., Farmers Ins.\nExchange v. Ledesma, 214 F.2d 495, 497-98 (10th Cir. 1954); M ahomet\nv. H artford Ins. Co., 3 Wash. App. 560, 477 P.2d 191 (1970). The\nfederal statute allowing garnishment of federal wages does not create a\nright of action, it merely waives sovereign immunity and allows en\xc2\xad\nforcement pursuant to laws governing the court in question. Kelley v.\nKelley, 425 F. Supp. 181, 183 (W.D. La. 1977); Harris v. Harris, 40 N.C.\nApp. 26, 252 S.E.2d 95, 96-97 (1979). Accordingly, it has been held\nthat a right to subject an employee\xe2\x80\x99s wages to the claims of the plaintiff\nmust exist under state law. D iaz v. Diaz, 568 F.2d 1061, 1063 n.l (4th\nCir. 1977). A tribal court can be a court of competent jurisdiction for\n451\n\n\x0cpurposes of issuing garnishment writs, therefore, only if tribal law\ncreates a right of garnishment.\nA writ of garnishment for purposes of \xc2\xa7 659 must be based on a valid\njudgment that the funds are due and owing to the plaintiff. Accord\xc2\xad\ningly, the court issuing the underlying judgment must have had both\nsubject matter jurisdiction and personal jurisdiction over the parties. It\nis clear that many tribal courts, including the Yakima Indian Nation\nTribal Court, are courts of competent jurisdiction in domestic relations\ncases. Confederated Tribes and Bands o f the Yakima Indian Nation v.\nWashington, 608 F.2d 750, 752 (9th Cir. 1979). It has been held that the\npower to regulate the domestic relations of its members is among the\npowers which tribes possess by virtue of their quasi-sovereign status.\nSee Fisher v. District Court, 424 U.S. 382, 390 (1976); United States v.\nQuiver, 241 U.S. 602, 603-04 (1916); Conroy v. Conroy, 575 F.2d 175,\n181 \xe2\x80\x9482 (8th Cir. 1978). In Fisher, the Court ruled that tribal jurisdiction\nover a proceeding for adoption, by Indians, of a son of Indian parents,\nwhere all parties resided on the reservation, was exclusive. 424 U.S. at\n389. In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978), the\nCourt noted that tribal courts have repeatedly been recognized as\nappropriate forums for the exclusive adjudication of disputes affecting\nimportant personal and property interests of both Indians and nonIndians.\nIn light of these holdings, it must be recognized that many tribal\ncourts are courts of competent jurisdiction for purposes of alimony and\nchild support decrees. The federal garnishment statute, which defines\n\xe2\x80\x9cchild support\xe2\x80\x9d and \xe2\x80\x9calimony,\xe2\x80\x9d refers to judgments \xe2\x80\x9cissued in accord\xc2\xad\nance with applicable State law by a court of competent jurisdiction.\xe2\x80\x9d 42\nU.S.C. \xc2\xa7 662(b) and (c) (1976 ed., Supp. IV 1980) (emphasis added). We\ndo not read this definition to exclude tribal court judgments, however.\nThere is no evidence that Congress meant to exclude tribal law. The\ncommittee reports cited above do not discuss the question of tribal\ncourt jurisdiction. It is likely that the issue simply did not arise. The\nintent of the law, however, was to remove a barrier against garnish\xc2\xad\nment of federal wages where a valid judgment decreed that alimony or\nchild support was due. See S. Rep. No. 1356, 93d Cong., 2d Sess. 53-54\n(1974). It would defeat the intent of the law, and undermine the integ\xc2\xad\nrity of tribal court judgments, to refuse to recognize them as valid\njudgments under the garnishment statute.\nIn sum, we see no legitimate basis either for denying the benefits of\nthe federal wage garnishment law to Indian litigants or for requiring\nthem to seek a garnishment writ in state courts. If the tribal court had\njurisdiction over the underlying suit, and if a garnishment right is\ncreated by tribal law, then the tribal court should be considered a court\nof competent jurisdiction for purposes of 42 U.S.C. \xc2\xa7 662(e) (1976 ed.,\nSupp. IV 1980).\n452\n\n\x0cWe note that we do not intend to suggest that the federal garnishee\nor its agents must examine the jurisdictional basis for the underlying\njudgment. Section 659(0 provides:\nNeither the United States, any disbursing officer, nor gov\xc2\xad\nernmental entity shall be liable with respect to any pay- .\nment made from moneys due or payable from the United\nStates to any individual pursuant to legal process regular\non its face, if such payment is made in accordance with\nthis section and the regulations issued to carry out this\nsection.\nFederal courts have refused to entertain suits against federal defendants\nfiled by plaintiffs alleging that the defendants recognized invalid state\ncourt judgments. Overman v. United States, 563 F.2d 1287, 1291-92 (8th\nCir. 1977) (held that waiver of sovereign immunity did not include suit\nagainst United States to challenge validity of garnishment based on\nallegedly fraudulent divorce decree); Jizmerjian v. Departm ent o f the A ir\nForce, 457 F. Supp. 820, 823-24 (D.S.C. 1978) (held that 42 U.S.C.\n\xc2\xa7 659(0 insulates the United States from suit challenging garnishment\nbased on allegedly invalid alimony decree). If the garnishment is pursu\xc2\xad\nant to \xe2\x80\x9clegal process regular on its face,\xe2\x80\x9d and the federal statute and\nregulations are followed, you need inquire no further.\nL eon U lm an\n\nD eputy Assistant Attorney General\nOffice o f L egal Counsel\n\n453\n\n\x0c'


b'The President\xe2\x80\x99s Authority to Remove the Chairman of\nthe Consumer Product Safety Commission\nThe Chairman of the Consumer Product Safety Commission serves at the pleasure of the President and\nthe President has the constitutional authority to remove her for any reason.\n\nJuly 31, 2001\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked for our opinion concerning the power of the President to\nremove the Chairman of the Consumer Product Safety Commission (\xe2\x80\x9cCPSC\xe2\x80\x9d). We\nconclude that the Chairman of the CPSC serves at the pleasure of the President,\nand that the President has the constitutional authority to remove her for any\nreason.\nI.\nSection 2053 of title 15 of the U.S. Code provides that the CPSC shall consist\nof \xe2\x80\x9cfive Commissioners who shall be appointed by the President, by and with the\nadvice and consent of the Senate.\xe2\x80\x9d 15 U.S.C. \xc2\xa7 2053(a). The President shall\nappoint a Chairman from among the members of the Commission, by and with the\nadvice of the Senate, id. \xc2\xa7 2053(a), and the members of the Commission annually\nelect a Vice Chairman to act in case of a vacancy in the office of the Chairman, id.\n\xc2\xa7 2053(d). Members of the Commission serve seven-year terms. Id. \xc2\xa7 2053(b)(1).\nThe President may remove \xe2\x80\x9c[a]ny member of the Commission\xe2\x80\x9d for \xe2\x80\x9cneglect of\nduty or malfeasance in office but for no other cause.\xe2\x80\x9d Id. \xc2\xa7 2053(a).\nThe current Chairman of the Commission, Ann Brown, sworn in on March 10,\n1994, serves as both a member of the Commission and its seventh Chairman. In\nJune 1999, President Clinton nominated Brown to her second term, which expires\nin October 2006. The Commission\xe2\x80\x99s other members include Mary Sheila Gall,\nwho was nominated by President Bush in July 1991 and renominated by President\nClinton in May 1999. Her current term expires in October 2005. Thomas Hill\nMore was nominated by President Clinton to complete a term that expired in\nOctober 1996. In August 1996, he was confirmed for his current full term, which\nexpires in October 2003. According to the Commission\xe2\x80\x99s Office of Public Affairs,\nthe Commission elected More to a one-year term as Vice Chairman in June 2001.\nThe other two positions on the Commission are currently vacant.\nII.\nThe President\xe2\x80\x99s ability to remove subordinates is one of his most important\nconstitutional powers. As head of the Executive Branch, the President has the duty\n\n171\n\n227-329 VOL_25_PROOF.pdf 181\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nto \xe2\x80\x9ctake Care that the Laws be faithfully executed.\xe2\x80\x9d U.S. Const. art. II, \xc2\xa7 3. In\norder to fulfill this responsibility, the Chief Executive must be able to supervise\nsubordinate officials and to coordinate Executive Branch policies and positions.\nSee generally Myers v. United States, 272 U.S. 52 (1926). The power to remove is\nthe power to control. As a result, the Supreme Court and the Executive Branch 1\nhave consistently recognized that the Constitution restricts congressional efforts to\nlimit the President\xe2\x80\x99s removal authority, so as to preserve the President\xe2\x80\x99s ability to\nenforce the laws. Morrison v. Olson, 487 U.S. 654, 690-91 (1988). As reflected in\nthe great debate over removal in the very first Congress, the Framers rejected a\nlegislative role in removal in favor of plenary presidential power over officers\nappointed by the President with the advice and consent of the Senate. See Bowsher\nv. Synar, 478 U.S. 714, 723-24 (1986); Myers, 272 U.S. at 111-44. Indeed, the\npower to remove should be seen as a necessary component of the vesting of all of\nthe federal executive power in one President in Article II, Section 1 of the\nConstitution.\nTo be sure, the Court has refused to invalidate all limitations on presidential\nauthority over all Executive Branch officials. In Humphrey\xe2\x80\x99s Executor v. United\nStates, 295 U.S. 602 (1935), the Court upheld a for-cause removal provision over\nmembers of the Federal Trade Commission due to the Commission\xe2\x80\x99s \xe2\x80\x9cquasilegislative or quasi-judicial\xe2\x80\x9d functions. Id. at 628. In Wiener v. United States, 357\nU.S. 349 (1958), the Court inferred the existence of a for-cause limitation on\nremoval, but again because the official in question, a member of the War Claims\nCommission, performed a quasi-judicial function. Most recently, in Morrison v.\nOlson, the Court upheld a for-cause removal provision for an independent counsel\nwho performed investigatory and prosecutorial functions. The Court allowed a\nlimitation on removal, however, only because the inferior officer involved\nperformed a narrow, sharply limited, and highly unusual role that addressed the\ndifficult issue of investigating the conduct of high-ranking Executive Branch\nofficials. The Morrison Court further found that the limitation on the removal\npower did not unconstitutionally infringe on the President\xe2\x80\x99s Article II powers, due\nto the Attorney General\xe2\x80\x99s continuing ability to control and supervise the independent counsel.\nIn light of these cases, it is clear that the Constitution generally reserves to the\nPresident alone the power to remove officials within the Executive Branch, subject\nto certain narrow exceptions. Even the congressional efforts that were upheld in\nHumphrey\xe2\x80\x99s Executor, Wiener, and Morrison were recognized by the Court as\nraising serious constitutional problems due to the possible infringement of the\nPresident\xe2\x80\x99s powers under Article II of the Constitution. At a minimum, therefore,\n\n1\nSee The Constitutional Separation of Powers Between the President and Congress, 20 Op. O.L.C.\n124, 166-70 (1996); Common Legislative Encroachments on Executive Branch Authority, 13 Op.\nO.L.C. 248, 252-53 (1989).\n\n172\n\n227-329 VOL_25_PROOF.pdf 182\n\n10/22/12 11:10 AM\n\n\x0cPresident\xe2\x80\x99s Authority to Remove Chairman of CPSC\n\nthis Office believes that Congress must state explicitly its intention to challenge\nthe President\xe2\x80\x99s authority to remove subordinate officials. Indeed, unless Congress\nsignals a clear intention otherwise, a statute should be read to preserve the\nPresident\xe2\x80\x99s removal power, so as to avoid any potential constitutional problems.\nCf. Public Citizen v. U.S. Dep\xe2\x80\x99t of Justice, 491 U.S. 440, 466 (1989) (construing\nstatute to avoid unconstitutional infringement on executive powers); Ass\xe2\x80\x99n of Am.\nPhysicians & Surgeons v. Clinton, 997 F.2d 898, 906-11 (D.C. Cir. 1993) (same).\nHere, the statute establishing the CPSC does not include any limitation on the\nPresident\xe2\x80\x99s power to remove the Chairman. In the absence of such a provision, the\nstatute is best read as not interfering with the President\xe2\x80\x99s plenary power to remove\nExecutive Branch officials. Constitutional problems would arise if such a provision were to be implied; even section 2053(a)\xe2\x80\x99s for-cause removal provision for\nCommissioners itself could prove to be unconstitutional. For example, none of the\nfactors that led the Morrison Court to uphold the independent counsel law\xe2\x80\x94that\nthe independent counsel was an inferior officer, that her jurisdiction and powers\nwere narrowly limited, and that the Attorney General still had supervisory\nauthority over the independent counsel\xe2\x80\x94is present here. In order to avoid the\ndifficult constitutional questions that would arise concerning the President\xe2\x80\x99s\nArticle II powers, section 2053 must be interpreted as creating no restrictions on\nthe President\xe2\x80\x99s ability to remove the CPSC Chairman.\nOne might argue that Wiener\xe2\x80\x94the sole Supreme Court case inferring a forcause provision in the face of statutory silence\xe2\x80\x94suggests a different outcome. It is\nclear, however, that the Wiener Court believed such protections necessary because\nthe official in question performed purely adjudicatory duties affecting the rights of\nprivate individuals. 357 U.S. at 354-56. The CPSC\xe2\x80\x99s powers do not remotely\napproach the discrete dispute-resolution functions of Wiener\xe2\x80\x99s War Claims\nCommission, which heard claims by Americans who suffered personal injury or\nproperty damage at the hands of the enemy during World War II. Instead, the\nCPSC\xe2\x80\x99s main responsibilities include conducting research and collecting data on\nproduct safety, 15 U.S.C. \xc2\xa7 2054, promulgating product safety regulations, id.\n\xc2\xa7 2056, banning hazardous products, id. \xc2\xa7 2057, and the right to bring civil suits in\nfederal court, id. \xc2\xa7 2071. The CPSC has no adjudicatory functions, certainly none\nthat resembles the pure claims-settlement role of the War Claims Commission. 2\nConversely, the War Claims Commission had no rulemaking or lawenforcement functions like those of the CPSC. Indeed, the CPSC more closely\nresembles the structure of the FTC, whose for-cause removal provision was upheld\n2\nWhile the CPSC has issued regulations that discuss its \xe2\x80\x9cadjudicative proceedings,\xe2\x80\x9d see 16 C.F.R.\n\xc2\xa7 1025.1, these rules appear to apply to hearings that the Commission conducts in connection with the\nexercise of its regulatory duties, rather than the adjudication of private rights similar to that performed\nby courts. In fact, private parties who suffer harm from CPSC rules, and suits by those injured by\nnoncompliant products, must file lawsuits directly in federal court. See 15 U.S.C. \xc2\xa7\xc2\xa7 2060(a), 2072,\n2073.\n\n173\n\n227-329 VOL_25_PROOF.pdf 183\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nin Humphrey\xe2\x80\x99s Executor. Even then, however, the Court required an explicit\nprovision restricting the President\xe2\x80\x99s removal authority, which is not present here.\nNo for-cause removal protection for the CPSC Chairman can be inferred from the\nCPSC\xe2\x80\x99s statutory duties. 3\nThe Chairman\xe2\x80\x99s specific functions further reinforce this interpretation. The\nCPSC\xe2\x80\x99s statute provides that the Chairman \xe2\x80\x9cshall be the principal executive officer\nof the Commission, and he shall exercise all of the executive and administrative\nfunctions of the Commission.\xe2\x80\x9d Id. \xc2\xa7 2053(f)(1). Thus, by statute, the Chairman is\ndifferentiated from those of the other Commissioners solely by her executive\nduties. The Wiener Court\xe2\x80\x99s willingness to infer a limit on the President\xe2\x80\x99s removal\npower, therefore, would be even less appropriate here. The purely executive\nfunctions of the Chairman qua Chairman also help explain why Congress would\nintend different conditions for the removal of the Chairman as opposed to removal\nof the Commissioners generally.\nIII.\nThis reading is further bolstered by other parts of the CPSC\xe2\x80\x99s statutory text.\nSection 2053(a) seeks to limit the President\xe2\x80\x99s authority to remove Commission\nmembers by establishing a for-cause requirement. Under standard canons of\nstatutory construction, the inclusion of a provision in one part of a statute, and its\nabsence in another part, indicates that the first provision does not apply in the\nlatter context. See, e.g., Lindh v. Murphy, 521 U.S. 320, 326-30 (1997) (applying\ncanon of expressio unius); Cipollone v. Liggett Group, Inc., 515 U.S. 504, 517\n(1992) (same). Specification of grounds for the removal of a Commission member,\nand the failure to address the removal of the Chairman, demonstrate Congress\xe2\x80\x99s\nintention not to limit the President\xe2\x80\x99s removal powers over the Chairman. The\nChairman serves at the pleasure of the President.\nLegislative history further confirms this reading of the text. In 1978, Congress\namended the law establishing the CPSC to make clear that the Chairman served at\nthe pleasure of the President. As originally enacted in 1972, the Consumer Product\nSafety Act had stated that:\nAn independent regulatory commission is hereby established, to be\nknown as the Consumer Product Safety Commission, consisting of\nfive Commissioners who shall be appointed by the President, by and\nwith the advice and consent of the Senate, one of whom shall be designated by the President as Chairman. The Chairman, when so des-\n\n3\nIn other contexts, this Office has questioned whether Wiener\xe2\x80\x99s rationale makes sense and whether\nthe case remains good law. See The Constitutional Separation of Powers Between the President and\nCongress, 20 Op. O.L.C. at 168 n.115.\n\n174\n\n227-329 VOL_25_PROOF.pdf 184\n\n10/22/12 11:10 AM\n\n\x0cPresident\xe2\x80\x99s Authority to Remove Chairman of CPSC\n\nignated shall act as Chairman until the expiration of his term of\noffice as Commissioner. Any member of the Commission may be\nremoved by the President for neglect of duty or malfeasance in office\nbut for no other cause.\nPub. L. No. 92-573, \xc2\xa7 4(a), 86 Stat. 1207, 1210 (1972) (emphasis added). It was\nthought that this provision did not make clear whether the Chairman served at the\npleasure of the President, or whether he held the chairmanship as long as his term\nas a Commissioner. One might construe the Act as requiring that in order to\nremove a Chairman, the President would have to remove him as a Commissioner\nas well. Because the statute limited the removal of commissioners, the original\nversion of the Act thus might have been understood as limiting the President\xe2\x80\x99s\nremoval power over the Chairman.\nIn amending the statute in 1978, Congress clarified the CPSC removal provisions. While Congress decided to subject the selection of the Chairman to\nsenatorial advice and consent, it also made clear that the Chairman served at the\npleasure of the President. The statutory language was changed to:\nAn independent regulatory commission is hereby established, to be\nknown as the Consumer Product Safety Commission, consisting of\nfive Commissioners who shall be appointed by the President, by and\nwith the advice and consent of the Senate. The Chairman shall be\nappointed by the President, by and with the advice and consent of the\nSenate, from among the Members of the Commission. An individual\nmay be appointed as a member of the Commission and as Chairman\nat the same time. Any member of the Commission may be removed\nby the President for neglect of duty or malfeasance in office but for\nno other cause.\nPub. L. No. 95-631, \xc2\xa7 2(a), 92 Stat. 3742, 3742 (1978) (emphasis added). The\nstatute removed the provision that had tied the term of the chairmanship to the\nterm of the commissioner appointed to the post. This had the additional effect of\ndelinking the conditions of the Chairman\xe2\x80\x99s removal, if there had been any, from\nthe conditions under which the President could remove Commissioners. 4\nCongress fully appreciated the importance of the new language. In its report on\nthe 1978 Act, the Senate Commerce Committee observed that this change made\nclear that the \xe2\x80\x9cchairman of the agency shall serve at the pleasure of the President.\xe2\x80\x9d\n\n4\nThe 1990 amendments to the Act added the following sentence: \xe2\x80\x9cIn making such appointments,\nthe President shall consider individuals who, by reason of their background and expertise in areas\nrelated to consumer products and protection of the public from risks to safety, are qualified to serve as\nmembers of the Commission.\xe2\x80\x9d Pub. L. No. 101-608, \xc2\xa7 102, 104 Stat. 3110, 3110 (1990). This part of\nsection 2053(a) is not involved in this matter.\n\n175\n\n227-329 VOL_25_PROOF.pdf 185\n\n10/22/12 11:10 AM\n\n\x0cOpinions of the Office of Legal Counsel in Volume 25\n\nS. Rep. No. 95-889, at 10 (1978). In introducing the bill on the floor, Senator Ford\ndeclared that \xe2\x80\x9c[t]his legislation amends the act to provide that the Commission\nChairman serve at the pleasure of the President with the advice and consent of the\nSenate.\xe2\x80\x9d 124 Cong. Rec. 24,362 (1978). In introducing the House version,\nRepresentative Eckhardt stated that the legislation \xe2\x80\x9cwould provide that the\nChairman of the Commission serve at the pleasure of the President and be\nappointed with the advice and consent of the Senate.\xe2\x80\x9d 124 Cong. Rec. 38,620\n(1978). In agreeing to the House version, which contained the same language on\nremoval as the Senate\xe2\x80\x99s bill, Senator Ford told the Senate that the legislation\ncontinued to provide \xe2\x80\x9cthat the Chairman of the Commission serve at the pleasure\nof the President with Senate advice and consent.\xe2\x80\x9d 124 Cong. Rec. 37,646 (1978).\nIt seems clear that Senator Ford\xe2\x80\x99s references to the Senate\xe2\x80\x99s advice and consent\nrole relate to the appointment of the Chairman (as it is settled that the Senate\ncannot condition removal of executive officials on its own advice and consent),\nwhile his discussion of the service of the Chairman at the pleasure of the President\nrefers to removal. The Senate Report and Representative Eckhardt\xe2\x80\x99s description of\nthe 1978 amendments made clear the new change: that the appointment of the\nChairman would require the Senate\xe2\x80\x99s advice and consent, but that otherwise he\nwould serve at the pleasure of the President.\nIV.\nWe conclude that the President has the authority to remove the Chairman of the\nCPSC for any reason. Upon her removal, she will still continue to serve as a\nCommissioner. Under 15 U.S.C. \xc2\xa7 2053(d), the Vice Chairman of the Commission\nwill assume the post of Chairman.\nJOHN C. YOO\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n176\n\n227-329 VOL_25_PROOF.pdf 186\n\n10/22/12 11:10 AM\n\n\x0c'