         Status of the Foreign Claims Settlement Commission
The Foreign Claims Settlement Commission is subject to the Attorney General’s direction in adminis-
  trative matters, except where that direction would interfere with the Commission’s independence in
  adjudicating claims.

                                                                                February 20, 2004

           MEMORANDUM OPINION FOR THE DEPUTY ATTORNEY GENERAL

   Your office has asked for our opinion whether the Foreign Claims Settlement
Commission (“Commission”) is subject to the Attorney General’s direction in
administrative matters. We believe that it is subject to such direction, except where
that direction would interfere with the Commission’s independence in adjudicating
claims.1

                                                 I.

    The Commission consists of a Chairman and two members, who are appointed
by the President with the Senate’s advice and consent and serve staggered three-
year terms. 22 U.S.C. § 1622c(a)–(c) (2000). It has “jurisdiction to receive, exam-
ine, adjudicate, and render a final decision with respect to any claim of the
Government of the United States or of any national of the United States” under
“claims agreement[s] . . . between the Government of the United States and a
foreign government . . . providing for the settlement and discharge of claims” that
the United States or its nationals have against the foreign government. 22 U.S.C.
§ 1623(a)(1)(B) (2000).
    The Commission itself, although it had institutional predecessors, was estab-
lished by Reorganization Plan 1 of 1954, 68 Stat. 1279, codified at 22 U.S.C.
§ 1622 note (“Reorganization Plan”), and continued as a free-standing entity until
1980. At that time, it was “transferred to the Department of Justice as a separate
agency within that Department.” 22 U.S.C. § 1622a (2000), codifying Pub. L. No.
96-209, § 101, 94 Stat. 96, 96 (1980); see also 28 C.F.R. § 0.128 (2003) (organiza-
tion of Commission).
    Under the terms of the transfer, “[a]ll functions, powers, and duties of the
[Commission] are . . . transferred with the Commission.” 22 U.S.C. § 1622b
(2000). In addition, “[a]ll functions, powers, and duties not directly related to
adjudicating claims are . . . vested in the Chairman, including the functions set
forth in section 3 of Reorganization Plan 1 of 1954 and the authority to issue rules


   1
     We address only the statutory question of the Attorney General’s administrative control and do
not consider the President’s authority to supervise the Commission or any constitutional issues that
would arise to the extent the Commission might be insulated from control by the President.




                                                 4
                 Status of the Foreign Claims Settlement Commission


and regulations.” Id. § 1622e (2000). The “functions” in that section of the Reor-
ganization Plan are:

      all functions of the Commission with respect to the internal man-
      agement of the affairs of the Commission, including but not limited
      to functions with respect to: (a) the appointment of personnel em-
      ployed under the Commission, (b) the direction of employees of the
      Commission and the supervision of their official activities, (c) the
      distribution of business among employees and organizational units
      under the Commission, (d) the preparation of budget estimates, and
      (e) the use and expenditure of funds of the Commission available for
      expenses of administration.

Reorganization Plan § 3.
   The Attorney General “shall provide necessary administrative support and
services to the Commission.” 22 U.S.C. § 1622f (2000). Although the Chairman
must follow the Department of Justice’s procedures in preparing “budget requests,
authorization documents, and legislative proposals,” the Attorney General is to
“submit these items to the Director of the Office of Management and Budget as
proposed by the Chairman.” Id.
   The Attorney General has no power to review the Commission’s decisions on
claims: “The decisions of the Commission with respect to claims shall be final and
conclusive on all questions of law and fact, and shall not be subject to review by
the Attorney General or any other official of the United States or by any court by
mandamus or otherwise.” Id. § 1622g (2000). Moreover, nothing in the statute
transferring the Commission to the Department “shall be construed to diminish the
independence of the Commission in making its determinations on claims in
programs that it is authorized to administer.” Id.
   Shortly after the Commission’s transfer to the Department, the Commission and
the Justice Management Division began what turned out to be a continuing dispute
about whether the Department could exercise administrative control over the
Commission. The Assistant Attorney General for Administration seems to have
argued in 1980 that the Commission “is subject to the administrative procedures
and policies of the Department,” but the Commission found “this conclusion . . .
contrary to the plain language of [the statute transferring the Commission to the
Department] as well as its legislative history.” Memorandum from the Foreign
Claims Settlement Commission of the United States, Re: Relationship Between the
Department of Justice and the Foreign Claims Settlement Commission at 1 (un-
dated) (“Undated Commission Memorandum”) (describing Memorandum for
Richard W. Yarborough, Chairman, Foreign Claims Settlement Commission, from
Kevin D. Rooney, Assistant Attorney General for Administration, Re: Relation-
ship Between the Department of Justice and the Foreign Claims Settlement
Commission (April 22, 1981)). The dispute recurred in 1996, when the Commis-




                                         5
                    Opinions of the Office of Legal Counsel in Volume 28


sion disputed the Justice Management Division’s assertion that its Chairman
needed to obtain authorization from the Department before undertaking foreign
travel.2 In 2001, the issue arose again, in the context of determining the “employ-
ing agency” that may approve a Commission employee’s receipt of a decoration
under the Foreign Gifts and Decorations Act, 5 U.S.C. § 7342(d) (2000).3 The
immediate issue about acceptance of a foreign gift or decoration was resolved by
the Deputy Attorney General’s delegating to the Commission’s Chairman the
power to grant the approval of the “employing agency” with respect to all officers
or employees of the Commission except the Chairman himself. See Memorandum
for the Deputy Attorney General, from Janis A. Sposato, Acting Assistant Attor-
ney General for Administration, Re: Receipt of a Polish-Government Decoration
at 3 (Sept. 28, 2001) (signature on approval line). At your office’s request, the
larger issue of the Department’s administrative authority over the Commission
was then referred to our Office. See Memorandum for Jay S. Bybee, Assistant
Attorney General, Office of Legal Counsel, from Janis A. Sposato, Acting
Assistant Attorney General for Administration, Re: Authority of Foreign Claims
Settlement Commission (Jan. 31, 2002).

                                              II.

   We addressed a closely similar issue in Attorney General’s Authority with
Respect to the Regulatory Initiatives of the U.S. Parole Commission, 14 Op.
O.L.C. 139 (1990) (“1990 Opinion”). For reasons discussed below, we reaffirm
the validity of that opinion. The statutes governing the United States Parole
Commission (“USPC”) and the Commission are so similar as to require treating
the two entities alike for purposes of the question here.




    2
      Memorandum for Mark Rodeffer, Finance Staff, Justice Management Division, from David E.
Bradley, Chief Counsel, Foreign Claims Settlement Commission, Re: Foreign Travel by the Chair,
Foreign Claims Settlement Commission (Feb. 2, 1996); Memorandum for Stephen R. Colgate, Assis-
tant Attorney General for Administration, from Stuart Frisch, General Counsel, Justice Management
Division, Re: Travel Authorizations for the Chairmen of the Foreign Claims Settlement Commission
and U.S. Parole Commission (July 8, 1997).
    3
      See Memorandum for the Deputy Attorney General, from David E. Bradley, Chief Counsel,
Foreign Claims Settlement Commission, Re: Proposed Acceptance of Decoration from the Ministry of
Finance of the Government of Poland (Aug. 21, 2001); Memorandum for Janis A. Sposato, Acting
Assistant Attorney General for Administration, from Stuart Frisch, General Counsel, Justice
Management Division, Re: Authorization for [an Employee of] the Foreign Claims Settlement
Commission to Receive and Retain a Polish-Government Decoration (Aug. 31, 2001); Memorandum
for the Deputy Attorney General, from John R. Lacey, Chairman, Richard T. White, Commissioner,
and Laramie F. McNamara, Commissioner, Foreign Claims Settlement Commission, Re: Delegation of
Approval Authority Under the Foreign Gifts and Decorations Act (Dec. 12, 2001) (“2001 Commission
Memorandum”).




                                               6
                  Status of the Foreign Claims Settlement Commission


                                         A.

We described the USPC in the 1990 Opinion:

      The Commission was established in 1976 as “an independent agency
      in the Department of Justice.” The legislative history of the Act that
      created the Commission states that Congress intended the Commis-
      sion to be “independent for policy-making purposes” but that the
      Commission would be “attached to the Department of Justice for
      administrative convenience.” Indeed, the Conference Report on the
      bill stated that “[t]he Commission is attached to the Department sole-
      ly for administrative purposes.” Congress granted the Commission
      independence from the Department because it wanted to ensure that
      “parole decisionmaking [would] be independent of, and not gov-
      erned by, the investigative and prosecutorial functions of the De-
      partment of Justice.”

14 Op. O.L.C. at 141 (citations and parenthetical quotations omitted). In the 1990
Opinion, we considered the extent of the Attorney General’s authority in light of
these provisions and, in particular, whether the Attorney General could “require
the [USPC] to consult the Office of Policy Development (‘OPD’) concerning the
[USPC’s] regulatory initiatives and to submit proposed regulations to OPD in
advance of their submission to OMB’s Office of Information and Regulatory
Affairs (‘OIRA’).” Id. at 139. We concluded that “the Attorney General has the
authority to require the [USPC], as an administrative unit of the Department of
Justice, to coordinate its regulatory activities with OPD and other components of
the Department,” but that “[t]he [USPC’s] statutory status as an ‘independent
agency’ within the Department . . . precludes the Attorney General as a general
matter from asserting substantive control over the [USPC’s] policy-making,
including its issuance of regulations.” Id. at 139–40.
    Ordinarily, the placement of an agency “within” the Department of Justice
would subject the agency to the Attorney General’s administrative direction. By
statute, the Attorney General “is the head of the Department of Justice.” 28 U.S.C.
§ 503 (2000). With certain exceptions, “[a]ll functions of other officers of the
Department of Justice and all functions of agencies and employees of the Depart-
ment of Justice are vested in the Attorney General,” id. § 509, and he may make
“such provisions as he considers appropriate” to authorize other officers, employ-
ees, and agencies of the Department to carry out the functions vested in him, id.
§ 510. See also 5 U.S.C. § 301 (2000) (empowering the head of a department to
“prescribe regulations for the government of his department, the conduct of its
employees, the distribution and performance of its business, and the custody, use,
and preservation of its records, papers, and property”). These provisions, in almost
all circumstances, grant the Attorney General both administrative and substantive




                                          7
                     Opinions of the Office of Legal Counsel in Volume 28


control over the Department and the agencies within it. See Memorandum for
Philip B. Heymann, Deputy Attorney General, from Walter Dellinger, Assistant
Attorney General, Office of Legal Counsel, Re: Creation of the Office of Investi-
gative Agency Policies at 2 (Oct. 26, 1993) (“Congress specifically granted broad
powers to the Attorney General, vesting in her virtually all the functions within the
Department, and authorizing her to delegate any of her authorities.”) (citations
omitted); Memorandum for D. Lowell Jensen, Associate Attorney General, from
Ralph W. Tarr, Deputy Assistant Attorney General, Office of Legal Counsel at 2
n.1 (Aug. 23, 1983) (advisory commission located in the Department of Justice for
administrative purposes). Although the 1990 Opinion did not explicitly refer to
these provisions, they formed the evident background to our conclusion that
“[b]ecause the [USPC] remains ‘attached’ to the Department for administrative
purposes . . . the Attorney General may require the [USPC] to participate in
Department-wide regulatory coordination that does not entail substantive control
of the [USPC’s] regulatory initiatives.” 14 Op. O.L.C. at 142.
    Congress has dealt, in some detail, with the administrative powers of both the
USPC and the Commission, and the powers conferred in both cases are quite
similar. The statute on the USPC provides that its Chairman, among other things,
may hire personnel, including for temporary and intermittent services, 18 U.S.C.
§ 4204(a)(2), (b)(3) (repealed prospectively by Continuing Appropriations—Com-
prehensive Crime Control Act of 1984, tit. II, § 218(a)(5), 98 Stat. 1837, 2027);
“assign duties among officers and employees . . . so as to balance the workload
and provide for orderly administration,” id. § 4204(a)(3); “direct the . . . use of
funds made available to the [USPC],” id. § 4204(a)(4); “enter into and perform
such contracts, leases, cooperative agreements, and other transactions as may be
necessary in the conduct of the functions of the [USPC],” id. § 4204(b)(1); and
accept voluntary services, id. § 4204(b)(2). Similarly, the statute governing the
Commission enables it to hire personnel, including consultants and language
experts, and to accept facilities, services, and reimbursed details from other
agencies. 22 U.S.C. § 1622d (2000). It vests in the Chairman “[a]ll functions, pow-
ers, and duties not directly related to adjudicating claims,” including functions set
forth in the Reorganization Plan, id. § 1622e. The Reorganization Plan, through
this incorporation by reference, places under the Chairman’s control “the internal
management of the affairs of the Commission,” including “the direction of
employees of the Commission and the supervision of their official activities” and
“the use and expenditure of funds of the Commission available for expenses of
administration.” Reorganization Plan § 3.
    In the case of the USPC, we did not interpret the specific provisions on admin-
istrative authority as generally displacing the Attorney General’s authorities under
28 U.S.C. §§ 509 and 510 and 5 U.S.C. § 301.4 The conferral of specific authori-

    4
      Although the 1990 Opinion addresses only one specific case of administrative control, its conclu-
sions are more general. In a footnote to the conclusion that the USPC’s being attached to the




                                                  8
                      Status of the Foreign Claims Settlement Commission


ties on the constituent part of the Department, without more, did not mean that the
same authority was not vested in the Attorney General under section 509. Because
the Commission, too, is “within” the Department, see 22 U.S.C. § 1622a, the same
principle would apply here, unless some valid ground for distinction between the
Commission and the USPC can be found.5

                                                   B.

   When the legislation that transferred the Commission to the Department was
being drafted, we wrote a bill comment stating that the “relationship of the
Commission to the Department is similar to that provided for the United States
Parole Commission, which is attached to the Department of Justice solely for
administrative purposes.” Memorandum for Michael Dolan, Office of Legislative
Affairs, from Larry A. Hammond, Acting Assistant Attorney General, Office of
Legal Counsel, Re: Draft Bill to Transfer the Foreign Claims Settlement Commis-
sion of the United States to the Department of Justice (Jan. 24, 1979) (citations
omitted) (“1979 Bill Comment”). There are, however, four principal arguments for
the view that the two entities are dissimilar in administrative matters.
   First, according to the Undated Commission Memorandum,

           The Department of Justice conclusion that administration of the
        Commission rests with the Attorney General rather than the Chair-
        man rests apparently on the thesis that the Congress intended the
        same authority in the Chairman of the [Commission] as was granted
        by legislation creating the Parole Commission. A comparison of the
        two statutes shows such conclusion to be totally without support. No
        where [sic] in the statute does Congress vest in the Parole Commis-


Department for administrative purposes subjects it to Department-wide requirements for coordination,
the 1990 Opinion notes that “Congress has expressly provided, however, that the Commission’s
budgetary requests shall be separate from those of any other component of the Department.” 14 Op.
O.L.C. at 142 n.4 (citation omitted). The plain implication is that the conclusion about the Attorney
General’s power reaches other administrative matters, with budgetary requests being an express
exception.
    5
      Regulations issued by the Department in 1981 appear to have treated the Commission as subject
to the Attorney General’s direction in administrative matters. A delegation of the Attorney General’s
authority to the Deputy Attorney General, which listed components reporting to the Deputy Attorney
General, provided that “[t]he Foreign Claims Settlement Commission is under the supervision of the
Deputy Attorney General for administrative purposes.” 46 Fed. Reg. 52,339, 52,341 (1981) (issuing 28
C.F.R. § 0.15(b)). Although the regulation elsewhere used the term “supervision and direction,” see id.,
the omission of “direction” was not consequential for present purposes, since the relationship of the
Attorney General to the Deputy Attorney General was also described as one of “supervision.” See id. at
52,341 (“[s]ubject to the general supervision of the Attorney General”). The regulation was amended in
1988 to remove the specification of the units under the Deputy Attorney General and to substitute a
general reference to the Deputy Attorney General’s “direct[ing] the activities of organizational units as
assigned.” 53 Fed. Reg. 5370 (1988) (amending 28 C.F.R. § 0.15(b)).




                                                   9
                  Opinions of the Office of Legal Counsel in Volume 28


       sion or its Chairman the broad powers vested in the Chairman of the
       [Commission] by section 105 of Public Law 96-209.

Id. at 4. Section 105 is the provision under which “[a]ll functions, powers, and
duties not directly related to adjudicating claims are hereby vested in the Chair-
man.” But although the statute on the USPC does not use the “[a]ll functions”
formulation, it does state that the Chairman “shall . . . exercise such other powers
and duties and perform such other functions as may be necessary to carry out the
purposes of this chapter,” 18 U.S.C. § 4204(a)(7), and this catch-all appears, in
practical effect, as broad as the provision to which the Undated Commission
Memorandum points. The Chairman of the USPC, therefore, does not have
appreciably narrower administrative authorities than the Chairman of the Commis-
sion, and the two entities cannot be distinguished on such a ground. Moreover,
even before the Commission was transferred to the Department, “all functions of
the Commission with respect to the internal management of the affairs of the
Commission” were “vested in the Chairman.” Reorganization Plan § 3. Accord-
ingly, the evident purpose for vesting authority in the Chairman was not to exclude
the authority of the Attorney General, but to set the relative roles of the Chairman
and the other members of the Commission.
   Second, under 22 U.S.C. § 1622f, “[t]he Chairman shall prepare the budget
requests, authorization documents, and legislative proposals for the Commission
within the procedures established by the Department of Justice, and the Attorney
General shall submit these items to the Director of the Office of Management and
Budget as proposed by the Chairman.” Thus, the Commission argues, “although
[the statute] . . . refers to ‘procedures established by the Department of Justice,’ it
limits the applicability of those only to ‘budget requests, authorization documents,
and legislative proposals.’” 2001 Commission Memorandum at 3. At least as to
budget requests, the Commission’s statute is hardly different from the USPC’s. By
statute, the USPC’s appropriations requests “shall be separate from those of any
other agency of the Department of Justice.” 18 U.S.C. § 4203(a)(3). In 1977, we
construed this provision as protecting the USPC’s ability to request whatever
amount it considered necessary for its operations, but not as precluding the
Department from insisting on “the administrative mechanics of the budgetary
submission procedure implemented by the Department of Justice on the instruc-
tions of the Office of Management and Budget.” Memorandum for James S.
Jardine, Special Assistant to the Attorney General, from Leon Ulman, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: Interpretation of 18
U.S.C. 4203(a)(3), the Budgetary Authority of the United States Parole Commis-
sion at 2 (Oct. 27, 1977). In both cases, therefore, the special protections for the
agency’s budget requests, as limited by the procedural requirements, are virtually
identical.
   More generally, by making the Commission subject to certain administrative
controls over the form of budget requests, authorization documents, and legislative



                                          10
                     Status of the Foreign Claims Settlement Commission


proposals, the Commission’s statute does not imply that the Commission is
otherwise outside such controls. The statute supplies an additional, specific
protection for the Commission’s requests in these areas, which are closely tied to
its substantive work, and the reference to the Department’s procedures serves to
set the limits of this additional protection. The draft version of the legislation
transferring the Commission that we reviewed in 1979 appears to have provided
that the Attorney General could attach his recommendations to the Commission’s
budget requests, see 1979 Bill Comment at 1, and we “suggest[ed] that the
Commission be authorized to submit its budget request without review and
recommendations of the Attorney General in order to avoid undermining its
independence from the Department.” We specifically offered the similar provision
for the Parole Commission as a model. Id. The specific treatment of the proce-
dures, budgets and similar matters should not be taken to imply that, in other areas
not touching so directly on the Commission’s substantive work, the Attorney
General lacks administrative control over the Commission.
    Third, “the paramount purpose of the 1980 act [transferring the Commission to
the Department] was to streamline the Executive Branch by reducing the number
of free-standing, individual agencies in it,” and “[t]here is no suggestion anywhere
in the [committee] report of any intent to reduce the [Commission] Chairman’s
administrative autonomy.” 2001 Commission Memorandum at 4. But, assuming
that the legislative purpose was to streamline the executive branch, it might be
perfectly consistent with that purpose for the Commission and its Chairman to be
placed under the Attorney General’s administrative control. If, for example, the
Commission no longer maintained separate approval mechanisms for various
administrative matters, its integration into the Department’s mechanisms could
promote consistency and allow the application of the expertise arising from the
Department’s more extensive experience.6
    Fourth, the Commission’s statute provides that “[t]he Attorney General shall
provide necessary administrative support and services to the Commission.” 22
U.S.C. § 1622f. The requirement, in mandatory language, that the Attorney
General provide administrative support and services arguably conflicts with the
idea that the Commission, from an administrative standpoint, is sufficiently like
other entities within the Department of Justice to be subject to the Attorney Gener-
al’s administrative control. Those entities, as a matter of course, receive adminis-
trative support as directed by the Attorney General and his delegates. The statutory
requirement for the Attorney General to provide administrative support to the
Commission might seem to bespeak a more distant relationship. However, while
provisions requiring that one entity or official support another usually apply to

    6
      We take no position, of course, on such issues as whether the Attorney General might want to
delegate approval authorities to the Commission. The point is that Congress could have considered that
the transfer of the Commission would increase efficiency by providing for the Commission to be
integrated, as appropriate, into the Department’s administrative mechanisms.




                                                 11
                 Opinions of the Office of Legal Counsel in Volume 28


entities that are administratively distinct, see, e.g., 21 U.S.C. § 1908(d)(3) (2000)
(the Attorney General and Treasury Secretary provide a legislative-branch com-
mission “such administrative services, funds, facilities, and other support services
as are necessary for the performance of the Commission’s duties”); 21 U.S.C.
§ 1704(c) (2000) (Administrator of General Services Administration is to provide
Director of Office of National Drug Control Policy “such administrative support
services as the Director may request”), they are not invariably found in that
context, see Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, § 811(a)(1)(A), 110 Stat. 1214, 1312 (1996) (using particular identified
funds, the Attorney General is to “provide support and enhance the technical
support center and tactical operations of the Federal Bureau of Investigation”); 28
U.S.C. § 586(c) (2000) (United States Trustees are under the “general supervision
of the Attorney General, who shall provide general coordination and assistance” to
them). The provision on administrative support clarifies that, despite the Commis-
sion’s being a “separate agency” with the Department, 22 U.S.C. § 1622a, and its
having separate authority over budgetary matters, id. § 1622f, the Attorney Gener-
al may make available to the Commission the administrative resources of the
Department. This clarification does not undermine the Attorney General’s
authority over the Commission in administrative matters.

                                         C.

   To be sure, administrative control by the Attorney General in some cases could
interfere with the substantive independence of the Commission, and, in those cases
in which it would, we would not conclude that the Attorney General could
exercise such control. As the 1990 Opinion shows, however, procedural require-
ments do not necessarily trench upon an agency’s substantive independence. 14
Op. O.L.C. at 142. We therefore cannot accept the categorical view that the inde-
pendence of the Commission in its adjudicatory functions implies a similar
independence from administrative controls.

                                           M. EDWARD WHELAN III
                                    Principal Deputy Assistant Attorney General
                                              Office of Legal Counsel




                                         12
