      The Status of the Smithsonian Institution Under the Federal
              Property and Administrative Services Act


T h e S m ithsonian Institution is an “independent establishm ent in the executive branch” and is there­
    fore an "ex ecu tive ag en cy ” for purposes o f the F ederal P roperty and A dm inistrative Services Act.

                                                                                              June 30,1988

                     M   em orandum      O   p in io n f o r t h e   G en era l C o u n sel
                               G e n e r a l S e r v ic e s A   d m i n is t r a t io n



                                   Introduction and Summary

   You have asked for the opinion of this Office concerning the status of the
Smithsonian Institution. In particular, you are interested in the status of the Smith­
sonian under the Federal Property and Administrative Services Act (“Property
Act” or “Act”), 40 U.S.C. §§ 471-544, and under the Federal Advisory Com­
mittee Act (“FACA”), 5 U.S.C. app. I, §§ 1-15, both of which are administered
by the General Services Administration (“GSA”). For the reasons stated below,
we conclude that the unique nature of the Smithsonian counsels in favor of de­
termining the status of the Smithsonian on a statute-by-statute basis. In this in­
stance, we adhere to our prior opinion that the Smithsonian is not covered by the
FACA, and we conclude that the Smithsonian is an “executive agency” within
the meaning of the Property Act.


                                               Background

  The Smithsonian Institution is “an establishm ent. . . for the increase and dif­
fusion of knowledge among men.” 20 U.S.C. § 41. Congress founded the Smith­
sonian in 1846 to accomplish the purposes of a bequest to the United States by
James Smithson, an English scholar and scientist. The original bequest is now
supplemented by private donations and congressional appropriations in financ­
ing the activities of the Smithsonian. These activities include the operation of nu­
merous museums, the sponsorship of research, and the direction of educational
and other public service programs. A Board of Regents composed of the Vice
President, the Chief Justice, six Members of Congress, and nine other persons
appointed by Congress conducts the business of the Smithsonian. 20 U.S.C. §§
42—43.

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    The Smithsonian Institution has long been regarded as having a special rela­
 tionship to the federal government. The precise nature of that relationship, how­
 ever, is the subject of some disagreement. The Smithsonian perceives itself as
 “not a government agency in any ordinary use of the term, but [as] a charitable
 trust for the benefit of humankind whose trustee is the United States. As such, it
 cannot carry out the functions of any of the three branches of government, but
 must be devoted exclusively to its educational and scientific purposes ‘for the in­
crease and diffusion of knowledge among men.’” Letter for Douglas W. Kmiec,
 Deputy Assistant Attorney General, Office of Legal Counsel, from Peter G. Pow­
ers, General Counsel, Smithsonian Institution at 1 (Apr. 10, 1987) (quoting 20
U.S.C. § 41) (“Powers Letter”). The Smithsonian further relates that “the Smith­
 son charitable trust is not part of the government itself. The basic legal nature of
the Institution as a unique trust instrumentality of the United States separate from
the three main branches of government has not been altered by the fact that the
government has chosen to support the trust with substantial appropriations and
Federal property, largely in response to major benefactions and collections from
the private sector.” Id. at 5.
    Chief Justice Taft, speaking as Chancellor of the Smithsonian Board of Re­
gents, also asserted “that the Smithsonian Institution is not, and never has been
considered a government bureau. It is a private institution under the guardian­
ship of the Government.” Taft, “The Smithsonian Institution—Parent of Amer­
ican Science” 16, quoted in Memorandum for Peter Powers, General Counsel,
the Smithsonian Institution, from Leon Ulman, Deputy Assistant Attorney Gen­
eral, Office of Legal Counsel at 8 (Feb. 19, 1976) (“Ulman Memorandum”). At
least in some instances, though, the Smithsonian is covered by federal statutes
that are applicable to certain instrumentalities of the United States. See, e.g., Ex­
peditions Unlimited Aquatic Enters., Inc. v. Smithsonian Inst., 566 F.2d 289,296
(D.C. Cir. 1977) (Smithsonian is a federal agency for purposes of the Federal
Tort Claims Act), cert, denied, 438 U.S. 915 (1978); 45 Comp. Gen. 685, 688
(1966) (the use of funds appropriated to the Smithsonian must be in accordance
with federal law).
    The Office has previously described the Smithsonian Institution as a “histori­
cal and legal anomaly,” Memorandum for the Attorney General, from Theodore
B. Olson, Assistant Attorney General at 1 (May 23, 1983), “a very unusual en­
tity,” id., “sui generis", 3 Op. O.L.C. 274,277 (1979), and “unique unto its own
terms,” Ulman Memorandum at 9. We have said that the Smithsonian enjoys an
“anomalous position in the Government,” Memorandum for Drew S. Days, III,
Assistant Attorney General, Civil Rights Division, from Leon Ulman, Deputy
Assistant Attorney General at 2 (Mar. 20,1978), and a “unique status in the eyes
of the Supreme Court,” Letter for Robert H. Simmons, from Robert B. Shanks,
Deputy Assistant Attorney General at 3 (Feb. 13,1984). In short, “the hybrid and
anomalous character of the Smithsonian Institution is proverbial.” Memorandum
for Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assis­
tant Attorney General at 8 (Aug. 8, 1983).
   The unique nature of the Smithsonian counsels reluctance toward a sweeping

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declaration o f the Smithsonian’s status within the federal government. The wiser
course, which we and others have followed, is to focus upon the position of the
Smithsonian within a precise statutory scheme. We therefore limit our advice to
the status o f the Smithsonian under the specific statute—the Property Act— in
which you are interested.

                                                   Analysis

   As you are aware, this Office has previously advised that the Smithsonian is
not covered by the FACA. In the Ulman Memorandum, supra, we considered the
status o f the Smithsonian under the FACA, the Administrative Procedure Act
(“APA”), and the Privacy Act. Under the FACA, “[t]he term ‘agency’ has the
same meaning as in” the Administrative Procedure Act. 5 U.S.C. app. I, § 3(3).
The APA, in turn, defines “agency” as “each authority of the Government of the
United States” except for Congress, the courts, territorial governments, the Dis­
trict o f Columbia government, and certain military authorities. 5 U.S.C. § 551 (1).
Applying this definition to the Smithsonian, we observed that “[t]he Smithson­
ian performs none o f the purely operational functions of government which have
been given such significant weight in determinations of agency status in other
cases.” Ulman Memorandum at 10. Moreover, “[t]he nature of the Smithsonian
Institution is so widely different from the kinds of agencies otherwise included
that it is apparent Congress could not have intended to place it [under] the same
category.” Id. at 5. Therefore, we advised, the Smithsonian is not an “agency”
within the meaning o f the APA and FACA definition. Id. at 10.1 Your request
suggests no basis to re-examine our previous opinion that the FACA does not ap­
ply to the Smithsonian Institution.
   The Property Act establishes procedures for the management of governmen­
tal property. The Act applies to “executive agencies” and to “federal agencies.”
These terms are defined in section 3 of the Act as follows:

          (a) The term “executive agency” means any executive department
          or independent establishment in the executive branch of the Gov­
          ernment, including any wholly owned Government corporation.

           (b) The term “Federal agency” means any executive agency or
           any establishment in the legislative or judicial branch of the Gov­
           ernment (except the Senate, the House of Representatives, and the
           Architect o f the Capitol and any activities under his direction).

    1     In the Ulman M emorandum, we also suggested thal it appears from the legislative history o f the APA defini­
tion o f “agency” thal the term applies only to entities within the executive branch. Ulman Memorandum at 2 -5 . We
then said thal the Sm ithsonian “cannot be view ed as an establishment within the Executive branch of government,”
Id. al 10. However, we stressed thal the nature o f the Smithsonian in comparison to the nature o f agencies covered
by the definition provides “a still more com pelling argument” fo r our conclusion that the Smithsonian is not cov­
ered by the APA definition o f agency. Id. a t 5. We agree thal the unique nature o f the Smithsonian is decisive to
resolve the present issue o f statutory interpretation, and for the reasons stated above, w e express no opinion on
w hether the Sm ithsonian could be considered to be in the executive branch for any other purpose.


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40 U.S.C. § 472. You believe that the Smithsonian is an “independent establish­
ment in the executive branch” and thus an “executive agency”.2 The Smithson­
ian considers itself to be a “Federal agency” but not an executive agency.
   Congress did not expressly specify the status of the Smithsonian under the
Property Act. Nor does the legislative history of the Property Act elaborate on
the definitions of “executive agency” and “Federal agency” contained in the Act.
See H.R. Rep. No. 670, 81st Cong., 1st Sess. 8 (1949), reprinted in 1949
U.S.C.C.A.N. 1475, 1481-82 (section-by-section analysis of section 3 does not
discuss these definitions). Moreover, unlike those instances in which Congress
has specified the status of an entity for the purpose of federal law, e.g., 39 U.S.C.
§ 201 (the United States Postal Service is “an independent establishment of the
executive branch of the Government of the United States”); 31 U.S.C. § 9101(2)
(listing ten “mixed-ownership Government corporation[s]”), Congress has not
specified the general status of the Smithsonian. Thus, we must determine whether
Congress intended the Property Act to apply to the Smithsonian at all, and if so,
whether Congress intended the Smithsonian to be treated as an “executive
agency” or as a “Federal agency” for the purposes of the Act.
   The GSA and the Smithsonian both assert that the Property Act applies to the
Smithsonian. See Letter for Charles J. Cooper, Assistant Attorney General, Of­
fice of Legal Counsel, from Clyde C. Pearce, Jr., General Counsel, GSA at 3-5
(Oct. 27, 1986); Powers Letter at 10-12. The legislative history of the Act sup­
ports this conclusion.3 Indeed, it has long been understood that transactions with
the Smithsonian involving federal property or appropriated funds are subject to
federal property and contract law. See, e.g.. Act of Dec. 30, 1982, Pub. L. No.
97-394, 96 Stat. 1966, 1991-92 (1982) (provisions for appropriations to the
Smithsonian presume the applicability of the procurement provisions of the Prop­
erty Act); 45 Comp. Gen. at 686-88; 12 Comp. Gen. 317 (1932). We therefore
agree that the Property Act does apply to the Smithsonian.
   As to whether Congress intended the Smithsonian to be treated as an “execu­
tive agency” or as a “Federal agency” for the purposes of the Property Act, we


    2 The GSA has held this position since 1952. See Op. Gen. Couns No. 39 (Oct. 13,1952) (GSA No. 5 3 -1 0 0 11).
    3 Two aspects o f the passage o f the Property Act suggest that Congress intended the act to apply to the Smith­
sonian. First, as discussed more fully below, the Property Act replaced federal property sale and exchange author­
ity that had previously been granted to the Smithsonian. Second, Congress relied upon the recently published rec­
ommendations o f the Hoover Commission on Organization o f the Executive Branch o f the Government in drafting
the Property Act in 1949. See, e ^ . H R Rep. No. 670, at 3-5, reprinted in 1949 U.S C.C.A.N. at 1476-78; 95
Cong Rec. 7441 (1949) (statement o f Rep. Hohfield). In turn, the Hoover Commission's report on the manage­
ment o f the property, supplies, and records o f the federal government anticipated that federal property law should
apply to the Smithsonian. For example, the Commission proposed the creation of the General Services Adminis­
tration and recommended the placement o f “[cjertain relations with the Smithsonian Institution” in that agency. 1
U.'S. Commission on Organization o f the Executive Branch o f the Government, Office o f General Services: A Re­
port to the Congress by the Commission on Organization o f the Executive Branch o f the Government, February
1949 at 5 (1949) (“Office o f General Services Report”), quoted in H.R. Rep. No. 670, 81st Cong., 1st Sess., pt. 2,
at 2 (1949). The report also recommended that “when [the Smithsonian's] officials need assistance from the Chief
Executive or the departments, it is recommended that they consult with the Director o f the Office of General Ser­
vices.” Office of General Services Report at 12. Thus, the Hoover Commission recognized the Smithsonian’s need
to deal with the federal government regarding property transactions.


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believe that the best evidence the Smithsonian is an “executive agency” is that
the Property Act repealed the Smithsonian’s prior statutory authority for certain
property exchanges and replaced it with a provision applicable only to executive
agencies. The Act of Mar. 3,1915, ch. 75,38 Stat. 822,838-39 (1915), provided
specific exchange and sale authority to the Smithsonian. Section 502(a)( 19) of
the Property Act repealed the 1915 act and a number of other provisions that had
granted similar authority to other agencies and substituted general sale and ex­
change authority for executive agencies. As a 1956 analysis prepared by GSA
and printed by the Senate Committee on Government Operations observed, sec­
tion 201(c)

           authorizes executive agencies to exchange or sell personal prop­
           erty and apply the trade-in allowance or proceeds of sale in whole
           or part payment for property acquired. This is an expansion of au­
           thority given under a num ber of previous statutes to specific agen­
           cies or with respect to specific types of property. While these
           statutes are repealed by section 602[sic](a)(8) to (28), the language
           here is intended to be sufficiently broad to preserve all such ex­
           isting authority.

Senate Comm, on Government Operations, 85th Cong., 2d Sess., Federal Prop­
erty and Adm inistrative Services Act o f 1949, As Amended 22 (Comm. Print
1959). See also H.R. Rep. No. 670, at 28, reprinted in 1949 U.S.C.C.A.N. at 1504
(section 502(a) o f the Property Act repeals “some 20 statutes relating to use of
trade-in allowances which will be superseded by section 201(e)[sic]”).4 Section
201(c) applies to “any executive agency”— it does not apply to a “Federal
agency.”5 Therefore, because the Smithsonian’s previous authority for sales and



    4 The House report’s reference to section 201(e), rather than section 201(c), appears to be a mistake. The House
report describes the repeal o f “statutes relating to use o f trade-in allowances which will be superseded by section
201(e).” H.R. Rep. No. 670, at 28, reprinted in 1949 U.S.C.C.A.N. at 1504. Section 201(e), however, governs the
transfer o f medical materials and supplies held for national emergency purposes. 40 U.S.C. § 481(e). It is section
201(c) that governs exchange allowances. 4 0 U.S.C. § 481(c). The analysis of section 201(c) in the House report
confirm s that section 201(c) preserves the existing statutory authonty repealed by section 502(a). H.R. Rep No.
670, at 12, reprinted in 1949 U.S C.C A.N. at 1486.
    5 T he Smithsonian denies that section 201(c) applies only to executive agencies. Powers Letter at 11-12. We
disagree. Including several different provisions for the sale and exchange of government property, section 201 care­
fully distinguishes between different types o f agencies: subsection (a) refers to executive agencies; subsection (b)
refers to “any other Federal agency” than those in subsection (a), mixed ownership corporations, and the District
o f Columbia; subsection (c) refers to “any executive agency” , subsection (d) refers to executive agencies; and sub­
section (e) refers to executive agencies and any other federal agencies. 40 U S C. § 481 In short, different types of
agencies enjoy different authority under th e Act. The Sm ithsonian’s contention that “executive agency” in section
201(c) is “not restrictive o r exclusive,” Pow ers Letter at 12, disregards the distinction within section 201 and the
legislative history o f that section. See H .R . Rep No 670, at 11, reprinted in 1949 U.S.C C.A.N. at 1486 (para­
phrasing “ federal agency” in section 201(b) as “the legislative and judicial branches, and mixed-ownership corpo­
rations” ). W hen the Property Act repealed the Smithsonian’s specific sale and exchange authority but “preserve[d]
all such existing authority” o f executive agencies under section 201 (c), Congress must have considered the Smith­
sonian an executive agency for purposes o f the Act.


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exchanges is superseded by a provision that applies only to executive agencies,
we conclude that Congress must have intended the Smithsonian to be considered
an executive agency for the purposes of the Property Act.6

                                               Conclusion

   For the reasons stated herein, and solely for the purposes of the Federal Prop­
erty and Administrative Services Act, we conclude that the Smithsonian Institu­
tion is an “independent establishment in the executive branch” as Congress in­
tended the term to be construed.

                                                                     D   ouglas     W. K   m ie c

                                                            Deputy Assistant Attorney General
                                                                Office o f Legal Counsel




    6    President Truman considered the Smithsonian an “executive agency” for the purposes of the Property Act at
the time of the act’s passage in 1949 On the day after the Property Act was approved, President Truman sent a let­
ter “To All Executive Agencies” concerning the implementation o f the act. 14 Fed. Reg. 3699 (1949). The letter
described the responsibilities o f “Executive agencies” under the Property Act. Id at 3701 The President sent a copy
of the letter to the Smithsonian, thereby indicating the contemporaneous executive branch interpretation of “exec­
utive agency” as including the Smithsonian. See Letter for John Nagle, Office o f Legal Counsel, Department of
Justice, from Benedict K. Zobrist, Director, Harry S. Truman Library (May 13, 1988) (confirming President T ru­
man sent the letter to the Smithsonian) Although this letter may not be determinative of the congressional intent
in enacting the Property Act, it does suggest that our conclusion that the Smithsonian is an “executive agency” was
hardly a novel interpretation even at a time contemporary with the A ct’s enactment See generally Frank B. Cross,
The Constitutional Legitimacy and Significance o f Presidential “Signing Statements”, 40 Admin. L. Rev. 209, 232
(1988) (suggesting that “ |j]udicial deference to contemporaneous statutory constructions . . . provides reason for
ascribing importance to the [contemporary] views expressed [by the president]”).


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