        Department of Justice Authority Regarding
     Relocations, Reorganizations, and Consolidations
The provisions o f 1989 supplemental appropriations legislation for the Department o f
  Justice did not prohibit the Department from considering o r planning fo r relocations,
  reorganizations, and consolidations that had n ot been previously reported to Congress.

Under the sam e legislation, the Department was a lso permitted to com plete relocations,
  reorganizations, and consolidations that were begun prior to June 30, 1989.

                                                                                         August 28, 1989

           M e m o r a n d u m O pin io n    fo r th e    A s s is t a n t A t t o r n e y G e n e r a l
                  for   A d m in is t r a t io n , J u s t ic e M a n a g m e n t D iv is io n


   This responds to your request o f July 11, 1989, for our opinion on the
effect o f section 105 of the new law providing supplemental appropria­
tions for the Department of Justice.1Specifically, you have asked whether
the Department may engage in the consideration o f and planning for relo­
cations, reorganizations and consolidations that have not previously been
reported to Congress. You have also asked whether the Department may
obligate and expend funds to implement reorganizations which were
reported to Congress prior to June 30, 1988, the effective date of section
105. This latter question is asked in the context o f the reorganization of
the Office o f Policy Development (“OPD”) which was reported to
Congress on June 5, 1989.
   For the reasons set forth below, we believe that the Department may
plan relocations, reorganizations and consolidations. We also believe that
the Department may complete the effectuation o f relocations, reorganiza­
tions and consolidations that were begun prior to June 30, 1989. Because
the reorganization of OPD was begun before June 30 and indeed largely
completed by that date, section 105 does not affect that reorganization.

                                           I. Background

   Prior to the enactment o f section 105, the Department’s reorganiza­
tions were governed by two provisions. The first, enacted as section 8 of
the Department’s 1980 Authorization Act, requires the Department to

 1 Dire Emergency Supplemental Appropriations and TVansfers, Urgent Supplementals, and Correcting
Enrollment Errors Act o f 1989, Pub L No 101-45,103 Stat. 97 ( “Supplemental Appropriations Act” or “Act”).

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notify the House and Senate Judiciary Committees “a minimum o f 15
days before” undertaking significant reprogramming, reorganizations and
relocations.2 The second, contained in the Department’s most recent
appropriations bill, requires fifteen days notice for the Appropriations
Committee as well.3
   The Department has consistently complied with the fifteen-day notice
requirement. Recently, however, certain congressmen indicated that the
notice provisions were part of an “unwritten agreement” that reorganiza­
tions would not be implemented unless the Appropriations Committees had
actually approved the proposal. H.R. Rep. No. 89, 101st Cong., 1st Sess. 44
(1989). Because of the Department’s failure to comply “with the under­
standing that any proposals are subject to the approval o f the
Appropriations Committees,” id. at 45, a new provision was added to the
Department’s 1989 Supplemental Appropriation Act, see supra note 1, to bar
all reorganizations within the Department until the end of the fiscal year:

          None o f the funds provided in this or any prior Act shall be
          available for obligation or expenditure to relocate, reorga­
          nize or consolidate any office, agency, function, facility, sta­
          tion, activity, or other entity falling under the jurisdiction of
          the Department o f Justice.

Supplemental Appropriations Act, § 105, 103 Stat. at 122.

  2 Pub. L. No. 96-132, § 8, 93 Stat 1040, 1046 (1979). The section directs “each organization o f the
Department o f Justice” to provide notice in writing before
      (1) reprogramming o f funds in excess o f $250,000 or 10 percent, whichever is less, between
           the programs within the offices, divisions, and boards as defined in the Department o f
          Justice’s program structure submitted to the Committees on the Judiciary o f the Senate
           and House o f Representatives,
      (2) reprogramming o f funds in excess o f $500,000 or 10 percent, whichever is less, between the
          programs within the Bureaus as defined in the Department o f Justice’s program structure
          submitted to the Committees on the Judiciary o f the Senate and House of Representatives,
      (3) any reprogramming action which involves less than the amounts specified m paragraphs
           (1) and (2) if such action would have the effect o f significant program changes and com­
          mitting substantive program funding requirements in future years;
      (4) increasing personnel or funds by any means for any project or program for which funds
          or other resources have been restricted;
      (5) creation o f new programs or significant augmentation o f existing programs,
      (6) reorganization o f offices or programs, and
      (7) significant relocation o f offices or employees.
Id at 1046-47 The provision has been incorporated into subsequent appropriation bills. See, e g , Pub
L No. 100-459, § 204(a), 102 Stat. 2186, 2199 (1988) (FY 1989)
  3 Section 606(a) o f Pub L No 100^459 states*
      None o f the funds provided under this Act shall be available for obligation or expenditure
      through a reprogramming o f funds which: (1) creates new programs, (2) eliminates a program,
      project or activity, (3) increases funds or personnel by any means for any project or activity for
      which funds have been denied or restricted; (4) relocates an office or employees; (5) reorga­
      nizes offices, programs, or activities; or (6) contracts out or privatizes any functions or activi­
      ties presently performed by Federal employees; unless the Appropriations Committees o f both
      Houses o f Congress are notified fifteen days in advance o f such reprogramming o f funds.
102 Stat. at 2227

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                                              II. Analysis

A. Planning

  Your first question is whether section 105 prevents the Department
from “engaging in consideration of and planning for relocations, reorga­
nizations and consolidations that have not yet been reported to
Congress.”4 We do not believe that it does. The statute forbids the
Department to “relocate, reorganize or consolidate” — all verbs that con­
note action and implementation. Section 105 does not mention planning
or preparation for proposals.
   Nor does the sparse legislative history, see H.R. Rep. No. 89, 101st
Cong., 1st Sess. (1989), suggest that Congress intended to prevent the
Department from even thinking about future options. The prohibition
was aimed at the Department’s refusal to abide by the

          unwritten agreement that they will not go forward with reor­
          ganizations if the Appropriations Committees disapprove
          their proposals. In the past several months, the Justice
          Department and the SBA have proposed reorganizations
          which have not been approved by the Committees. The con­
          ferees have learned that both the Justice Department and the
          SBA plan to go ahead with their proposals contrary to the
          wishes o f the Committees. The conferees agree that the only
          alternative left in this situation is to prohibit all reorganiza­
          tions for the remainder o f fiscal year 1989.

Id. at 44 (emphasis added). Read in context, this language confirms our
conclusion that the statute was aimed at actual reorganizations, not the
proposal o f a reorganization.5 We therefore believe that the Department
may continue to take all the steps that precede a reorganization, reloca­
tion or consolidation, up to and including notice to Congress that it has a
proposal under consideration.

B. Reorganization o f the Office of Legal Policy

  As noted above, prior to the passage o f section 105, the Department
was authorized to implement its proposed reorganizations fifteen days
after notifying Congress. The Department notified Congress about the
proposed reorganization of the Office o f Legal Policy (“OLP”) as OPD on


  4Memorandum for William P. Barr, Assistant Attorney General, Office o f Legal Counsel, from Harry H.
Flickinger, Assistant Attorney General for Administration (July 11, 1989).
  5 Indeed, unless the Department continues to plan and propose reorganizations, relocations, and con­
solidations, it is difficult to see how it will be able to demonstrate to Congress that it is willing to consult
over these matters

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June 5, 1989. The Department was therefore authorized to implement the
reorganization fifteen days later, June 20. Section 105 was signed into law
on June 30. Because OPD had largely completed its reorganization by
June 30, we do not believe that section 105 affects its reorganization.
   By its terms section 105 applies only to reorganizations undertaken
after June 30, 1989, not to reorganizations that were completed by June
30, 1989. Moreover, the legislative history confirms that Congress’ pur­
pose in enacting section 105 was to protect what it perceived to be its
oversight prerogatives by precluding future reorganizations without full
congressional approval. Accordingly, section 105 was not intended to
undo past Department actions. We conclude therefore that section 105
affects only reorganizations which the Department had not substantially
completed by June 30.
   Thus, whether section 105 applies to OLP depends on whether the
Department had substantially completed the reorganization o f OLP into
OPD by June 30. We have been advised that the Department had taken
all the significant steps necessary to reorganize OLP by that date. The
Attorney General had signed a new organization chart reflecting the
existence of OPD within the Department. Mr. Boyd had moved from his
previous job in the Department to become the Director of OPD. A for­
mer Deputy Assistant Attorney General in OLP had been named Deputy
Director o f OPD. New stationery using the OPD letterhead had been
ordered and put into use, and the new title “OPD” rather than “OLP” had
been used in official documents. We believe that these steps, which
were completed by June 30, constituted the reorganization o f OLP into
OPD.GTherefore, we believe that OLP’s reorganization into OPD was
complete when section 105 became law. Because section 105 is pro­
spective in application, wc do not believe that section 105 applies to the
OLP reorganization.
   We recognize that Representative Smith sent a letter, dated June 27,
1989, stating that the Appropriations Committee o f the House of
Representatives did not approve o f the reorganization. This letter, how­
ever, had no legal effect on the Department’s authority to effectuate the
reorganization. Even if it had been sent within fifteen days o f the notice
given by the Department on June 5, the letter could not affect the
Department’s authority to execute the law. That can only be affected by
passage of a new law, not by the disapproval of a congressional commit­
tee. INS v. Chadha, 462 U.S. 919 (1983).

                                       III. Conclusion

  For the reasons stated above, we believe that Department officials may
continue to study and plan for any future reorganizations, including all

 0Indeed, we are not aware o f any other steps that are necessary in order to create OPD.

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preparations that would previously have preceded congressional notifi­
cation. We also believe that section 105 was not intended to undo essen­
tially completed reorganizations. Because OLP’s reorganization into OPD
was complete by June 30, 1989, the reorganization is unaffected by the
passage o f section 105.

                                            WITJ JAM P. BARR
                                        Assistant Attorney General
                                          Office of Legal Counsel




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