U.S. Department of Justice
Office of Legal Counsel
Washington, D.C. 20530

Office of the Assistant Attorney General

September 17, 2009

MEMORANDUM FOR GREGORY B. CRAIG
COUNSEL TO THE PRESIDENT
Re: Application of 5 US. C. § 3110 to Two Proposed Appointments by the President to Advisory
Committees
You have asked for our opinion whether section 3110 of title 5, United States Code,
which prohibits a public official from appointing or employing a relative "in or to a civilian
position in the agency ... over which [the official] exercises jurisdiction or control," bars the
President from appointing two of his relatives to advisory committees within the Executive
Branch. Specifically, you have asked whether the President may appoint his brother-in-law to
the President's Council on Physical Fitness and Sports ("Fitness Council" or "Council") and his
half-sister to the President's Commission on White House Fellowships ("Fellowships
Commission" or "Commission"). We conclude that section 3110 prohibits both proposed
appointments.

I
The Fitness Council is an advisory committee established by executive order and charged
with advising, and making recommendations to, the Secretary of Health and Human Services and
the President regarding measures to enhance participation in physical activity and sports. See
Exec. Order No. 13265, 67 Fed. Reg. 39,841 (June 6, 2002). 1 The Council lacks any authority to
undertake operational activities, and its functions are purely advisory. See Memorandum for
Richard Hauser, Deputy Counsel to the President, from Robert B. Shanks, Deputy Assistant
Attorney General, Office of Legal Counsel, Re: President's Council on Physical Fitness and
Sports at 5 (Feb. 17, 1984) ("Fitness Council Memo"). Specifically, the Council provides advice
and recommendations through the Secretary to the President regarding the Secretary's progress
in establishing "a national program to enhance physical activity and sports participation." Exec.
Order No. 13265, § 1; see id. § 3(a). It also advises the Secretary in her own capacity regarding
"ways to enhance opportunities for participation in physical fitness and sports" and the need for
"enhancement" of the Council's "programs and educational and promotional materials." Id.
§ 3(b), (d). In advising the Secretary, the Council also serves as her "liaison to relevant State,
local, and private entities." Id. § 3(c).
The Council is composed of twenty presidentially appointed members, with a Chair or
Vice Chair designated by the President and an Executive Director appointed by the Secretary.
Id. §§ 2(b ), 4( d). Members of the Council serve without compensation, but may receive certain
1 In accordance with subsection 14(a)(2) of the Federal Advisory Committee Act, 5 U.S.C. app. § 14(a)(2)
(2006), the Council was scheduled to terminate on June 6, 2004, but that date has repeatedly been extended by
executive order. The Council's current termination date is September 30, 2009. See Exec. Order No. 13446,
§ l(m), 72 Fed. Reg. 56,175 (Sept. 28, 2007).

 travel expenses. Id. § 4(b). The Secretary is responsible for the Council's administrative
requirements, "furnish[ing] the Council with necessary staff, supplies, facilities, and other
administrative services" and paying its expenses "from funds available to the Secretary." Id.
§ 4(c).
The Fellowships Commission, which was also established by executive order, is a
presidential advisory committee charged with "prescrib[ing] such standards and procedures as
may be necessary to enable it to recommend annually a group of outstanding young persons from
among whom the President may select White House Fellows." Exec. Order No. 11183, § 2(a),
29 Fed. Reg. 13,633 (Oct. 3, 1964), as amended by Exec. Order No. 11648, 37 Fed. Reg. 3,623
(Feb. 16, 1972). "[T]he basic function of the Commission is to provide [these]
recommendations" to the President. Letter for the Honorable Dudley Mecum, II, Assistant
Director for Management Organization and Analysis, Office of Management and Budget, from
· Robert G. Dixon, Jr., Assistant Attorney General, Office of Legal Counsel at 2 (Apr. 23, 1973)
("Fellowships Commission Letter"). 2 Once the Commission's "standards and procedures" have
been published, it may accept applications and nominations "for consideration in its
recommendations." Exec. Order No. 11183, § 2(a). The Commission is composed of "such
outstanding citizens ... of private endeavor, and the Government service, as the President may
from time to time appoint," with"[o ]ne of the members appointed from private life ...
designated by the President to serve as Chairman of the Commission." Id. § l(a). Members
"serve at the pleasure of the President," and receive no compensation for their service. Id.
§ l(b). The Office of Personnel Management ("OPM") (the successor to the Civil Service
Commission) is responsible for "provid[ing] the Commission with administrative services, staff
support, and travel expenses." Id. § 4(b ).
The Federal Advisory Committee Act ("F ACA") applies to the Fitness Council and the
Fellowships Commission, both of which "were established ... by the President ... in the interest
of obtaining advice or recommendations for the President or one or more agencies or officers of
the Federal Government," and both of which have members who are not full-time or permanent
part-time federal employees or officers. 5 U.S.C. app. § 3(2) (2006); see also Fellowships
Commission Letter at 2-3; Fitness Council Memo at 2. You have informed us that the
President's brother-in-law and half-sister would, like other members of these sorts of advisory
committees, be appointed to their positions as "special government employees," who exercise
their duties on a part-time, temporary basis. See 18 U.S.C. § 202 (2006); see also Fitness
Council Memo at 8 n.9 ("[i]n light of their limited service, it is likely that most, if not all, of the
Council members from private life are 'special government employees'").

2 The Fellowships Commission's current termination date is September 30, 2009. See Exec. Order No.
13446, § l(f).

2

 II
The operative portion of section 3110 is subsection (b ), which provides that "[a] public
official may not appoint, employ, promote, advance, or advocate for appointment, employment,
promotion, or advancement, in or to a civilian position in the agency in which he is serving or
over which he exercises jurisdiction or control any individual who is a relative of the public
official." 5 U.S.C. § 31 l0(b) (2006). The statute provides expressly that the President is a
"public official" and that a public official's brother-in-law and half-sister are his "relative[s]" for
purposes of the prohibition. See id. § 311 0(a)(2), (3). We also have little doubt that the
President has "jurisdiction or control" over the Fitness Council and the Fellowships Commission.
See, e.g., Inspector General Legislation, l Op. O.L.C. 16, 17 (1977) ("The President's power of
control extends to the entire executive branch.... "). Accordingly, the permissibility of each of
the President's contemplated appointments turns on whether it constitutes an appointment "to a
civilian position in [an] agency."
Our inquiry into this question is guided by the substantial precedent from this Office
addressing the scope of the section 3110 prohibition as applied to presidential appointments. In a
November 14, 1972 memorandum, we advised that section 3110 would bar the President from
appointing a relative "to permanent or temporary employment as a member of the White House
staff." Memorandum for the Honorable John W. Dean, III, Counsel to the President, from Roger
C. Cramton, Assistant Attorney General, Office of Legal Counsel, Re: Applicability to President
of Restriction on Employment of Relatives at 1 ("Cramton Memo"). In a February 18, 1977
memorandum, we advised that section 3110 would also bar the President from appointing the
First Lady to serve, with or without compensation, as Chairperson of the President's
Commission on Mental Health ("Mental Health Commission"). See Memorandum for Douglas
B. Huron, Associate Counsel to the President, from John M. Harmon, Acting Assistant Attorney
General, Office of Legal Counsel, Re: Possible Appointment of Mrs. Carter as Chairman of the
Commission on Mental Health ("Mental Health Commission Memo") (referencing attached
Memorandum for John M. Harmon, Acting Assistant Attorney General, Office of Legal Counsel,
from Edwin S. Kneedler, Attorney-Adviser, Office of Legal Counsel, Re: Legality of the
President's appointing Mrs. Carter as Chairman of the Commission on Mental Health (Feb. 17,
1977) ("2/17/77 Kneedler Memo")). That memorandum further advised that the First Lady
could serve in an "honorary position related to the Commission," as long as she "remained
sufficiently removed from the Commission's official functions." Id. at 1.
Later in 1977, the White House again asked us to advise on the application of section
3110 to a contemplated presidential appointment, this time of the President's son to serve as an
unpaid assistant to a regular member of the White House staff. See Memorandum for the
Attorney General, from John M. Harmon, Acting Assistant Attorney General, Office of Legal
Counsel, Re: Employment of Relatives Who Will Serve without Compensation (Mar. 23, 1977)
("3/23/77 Harmon Memo") (referencing Memorandum for John M. Harmon, Acting Assistant
Attorney General, Office of Legal Counsel, from Edwin S. Kneedler, Office of Legal Counsel,
Re: Appointment of President's Son to Position in the White House Office (Mar. 15, 1977)
("3/15/77 Kneedler Memo")). We "re-examin[ed]" the issues raised by the proposed
appointment in light of arguments advanced by the Civil Service Commission (now OPM) for
construing section 3110 not to prohibit the President and Vice President from appointing
relatives to their personal staffs. Id. at 1. We deemed the Commission's arguments
3

 unpersuasive, however, reaffirming the reasoning of the Mental Health Commission Memo and
concluding that section 3110 barred the proposed appointment. See 3/23177 Harmon Memo at 1
(noting that 3/15/77 Kneedler Memo, which concluded "that [section 311 0] does apply to
positions on the President's staff," and to the proposed appointment in particular, was conveyed
to the Counsel to the President); see also id. at 2 (stating that Mr. Harmon had "re-examined the
specific issue of whether the statute applies to uncompensated positions," and concluded that it
does).
Finally, in a February 28, 1983 memorandum, we advised on whether the President could
appoint a relative to the Presidential Advisory Committee on Private Sector Initiatives ("CPSI").
See Memorandum for David B. Waller, Senior Associate Counsel to the President, from Robert
B. Shanks, Deputy Assistant Attorney General, Office of Legal Counsel, Re: Appointment of
Member of President's Family to Presidential Advisory Committee on Private Sector Initiatives
("CPSI Memo"). After summarizing the Office's precedents on the application of section 3110,
we cautioned that "time constraints have not permitted us to reexamine the legal analysis and
conclusions reached in these memoranda." Id. at 1. We nonetheless observed that the CPSI and
the Mental Health Commission "are not sufficiently different to provide a basis for
distinguishing between them with respect to the applicability of section 311 O," and stated that in
light of our inability to conduct a proper reexamination, "we must adhere to the conclusion ...
that the President cannot, consistently with section 3110, appoint a relative as an active member
of such a Commission, even if the relative serves without compensation." Id. at 1-2.
Thus, these precedents demonstrate this Office's consistent position that a presidential
appointment is not exempt from the bar imposed by section 3110 just because it is to an
uncompensated position or to a position on an advisory committee. Absent clear evidence that
the analysis in these prior memoranda was in error, that there have been material intervening
changes in the governing law, or that the appointments presently contemplated are somehow
distinguishable from those we have addressed previously, we are disinclined to deviate from our
longstanding position.

III
The first issue we address is whether members of the Fitness Council and the Feliowships
Commission, who receive no compensation and exercise duties that are strictly advisory in
nature, occupy "civilian positions" within the meaning of section 3110. We conclude that they
do.

Lack of compensation. As discussed above, the Office has repeatedly advised that
section 3110 applies to presidential appointments to uncompensated positions. 3 In a 1993
3 See 3/23/77 Harmon Memo at 2; Mental Health Commission Memo; see also Memorandum for D. Lowell
Jensen, Acting Deputy Attorney General, from Theodore B. Olson, Assistant Attorney General, Office of Legal
Counsel, Re: Application of5 US. C. § 3110 to Mrs. Meese 's Service on Attorney General's Task Force on Family
Violence at 2 (Feb. 14, 1984) (relying on 3/23/77 Harmon Memo in concluding that section 3110 applies to the
uncompensated service of the wife of Attorney General Edwin Meese III on the Attorney General's Task Force on
Family Violence) ("Family Violence Task Force Memo"); Memorandum for Michael E. Shaheen, Jr., Counsel,
Office of Professional Responsibility, from Robert B. Shanks, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Use of Department ofJustice Vehicles by Attorney General's Spouse at 9 (Jan. 23, 1984) (concluding

4

 decision, however, the U.S. Court of Appeals for the District of Columbia Circuit observed in
dicta that "[t]he anti-nepotism statute ... may well bar appointment only to paid positions in
government." Ass 'n ofAm. Physicians and Surgeons, Inc. v. Clinton, 997 F.2d 898, 905 (D.C.
Cir.) ("AAPS''). The only support the court offered for this view was a citation to subsection (c)
of the statute, which provides that "[a]n individual appointed, employed, promoted, or advanced
in violation of [section 311 0] is not entitled to pay, and money may not be paid from the
Treasury as pay to an individual so appointed, employed, promoted, or advanced." 5 U.S.C.
§ 3110(c ). The 2/17177 Kneedler Memo that was attached to and referenced in the Mental
Health Commission Memo addressed the import of subsection (c ). In concluding that section
3110 applies to uncompensated appointments, the Kneedler Memo acknowledged the argument
"that because the statutory remedy for a violation is to deny the appointee pay," the ban applies
only to appointments to compensated positions, 2/17177 Kneedler Memo at 2. But the Kneedler
Memo deemed this argument unpersuasive in light of section 3110' s text and legislative history
and the evident congressional purposes underlying its enactment. See id. at 2-4; see also id. at 4
(observing that Civil Service Commission concurred in the Memo's view that the prohibition
applies to uncompensated positions). We agree with this conclusion.
We tum first to the text of section 3110. As the 2/17/77 Kneedler Memo observed, the
"substantive prohibition in [section 311 0(b)] is written in broad terms which on their face attach
no significance to the matter of compensation." 2/17177 Kneedler Memo at 2. In particular, to
say that a public official may not "appoint" someone does not suggest that the appointment must
be compensated. This is demonstrated by the very executive orders establishing the Fitness
Council and the Fellowships Commission, both of which use the term "appoint" to refer to
positions that are uncompensated. See Exec. Order No. 11183, § l(b) ("Members appointed to
the Commission from private life shall serve without compensation."); Exec. Order No. 13265,
§ 2(b) ("The Council shall be composed ofup to 20 members appointed by the President."). It is
true that subsection (b) uses "appoint" in conjunction with "employ" and that the appointment
must be to a civilian "position"-a term that in context might well mean an "employment,"
Webster's New International Dictionary 1925 (2d ed. 1958). But although it may be fair to say
that employments usually come with a salary, that is not necessarily the case. See Memorandum
for the Honorable Fred F. Fielding, Counsel to the President, from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel, Re: Private Sector Survey on Cost Control in the
Federal Government at 4 (Mar. 17, 1982) ("[P]ersons who do not receive a federal salary may
nonetheless be deemed to be government employees by virtue of the tasks that they perform or
the positions in which they serve.") ("Cost Control Survey Memo"). Since the members of the
Council and the Commission serve in their positions as uncompensated "special government
employees," 18 U.S.C. § 202 (emphasis added), the proposed appointments at issue here again
demonstrate the point. Accordingly, we believe that the text of section 3110 strongly supports
the conclusion that Congress intended the prohibition to encompass appointments to both paid
and unpaid positions.
In addition, as the 2/17/77 Kneedler Memo observed, the legislative history of section
3110 provides no clear indication that Congress intended uncompensated appointments to be
exempt from the prohibition. See 2/17/77 Kneedler Memo at 2; cf Mental Health Commission
that "[ s]ection 3110 would prohibit the Attorney General from appointing his spouse to, or recommending her for,
even an uncompensated official position within the Department of Justice").

5

 Memo ("[T]he legislative history of the statute shows that the prohibition in 5 U.S.C. § 31 IO(b)
applies whether or not the appointee will receive compensation."). To be sure, there are isolated
floor and hearing statements indicating that certain members of Congress were particularly
concerned about appointments to paid positions. See 113 Cong. Rec. 28,659 (Oct. 11, 1967)
(statement of Rep. Smith); 113 Cong. Rec. 37,316 (Dec. 15, 1967) (statement of Rep. Udall);
Federal Pay Legislation: Hearings Before the S. Comm. on Post Office and Civil Service, 90th
Cong. 360, 366 (1967) ("Section 3110 Hearings"). But there is no evidence that members were
concerned exclusively with such appointments, or that they were unconcerned about
appointments to unpaid positions. In fact, Congress might well have concluded that eliminating
"family patronage" from "Federal job appointments," 113 Cong. Rec. 37,316-among the stated
purposes of section 3110-would necessarily require applying the prohibition to unpaid
government positions as such positions are often highly sought after for their substantial nonpecuniary benefits. Moreover, as the 2/17177 Kneedler Memo also noted, the legislative history
demonstrates that section 3110 was motivated in significant part by Congress's belief that
appointments of unqualified relatives were sapping the morale of government workers and
hindering government efficiency. See 2/17/77 Kneedler Memo at 4 (citing 113 Cong. Rec.
28,659 (statement of Rep. Smith); Section 3110 Hearings at 359, 365-68, 372). Such detrimental
effects can result from appointments to unpaid as well as paid positions.
Subsection (c)'s provision that relatives appointed in violation of the statutory prohibition
are "not entitled to compensation" does not undermine this reading. Admittedly, were this loss
of compensation the only statutorily required penalty for violations of section 3110, it might cast
some doubt on whether the prohibition extends to uncompensated positions. In our view,
however, the better reading of section 3110, including its legislative history and structure, is that
Congress intended for relatives appointed in violation of the prohibition to be removed-a
penalty that applies regardless whether the position is compensated. Three considerations
support this conclusion. First, section 3110 does not describe loss of compensation as the
exclusive statutory penalty for appointments in violation of the prohibition, nor do we believe
that loss of compensation is inconsistent with an implied statutory penalty of removal. See
Chauffeur's Training Sch., Inc. v. Spellings, 478 F.3d 117, 126-27 (2d Cir. 2007). Second, the
legislative record supports the conclusion that Congress intended an implied statutory penalty of
removal. See 113 Cong. Rec. 37,377 (1967) ("Discovery of such an appointment [in violation of
section 311 O] will result in the removal of the appointee from office.") (statement by House
Majority Leader Albert of accomplishments of the first session of the 90th Congress). Moreover,
as noted above, there is no suggestion in the relevant legislative history that Congress intended
appointments of relatives to uncompensated positions to be treated more leniently than such
appointments to compensated positions. Third, it makes little sense to construe the available
remedies under section 3110 as limited to denial of compensation, since such a reading would
mean that an illegal paid appointee is subject to loss of his compensation, but not to loss of his
position. We doubt that Congress's intent in enacting section 3110 was to permit improperly
appointed relatives to remain as volunteers in their formerly compensated positions.
To be sure, "it is an elemental canon of statutory construction that where a statute
expressly provides a particular remedy or remedies, a court must be chary of reading others into
it." Transamerica Mortgage Advisors v. Lewis, 444 U.S. 11, 20 (1979). This canon may
"yield," however, "to persuasive evidence of a contrary legislative intent," id., including the text,
the "legislative history[,] and the overall structure" of a statute, Sec. Investor Prat. Corp. v.
6

 Barbour, 421 U.S. 412,419 (1975). Cf Transamerica Mortgage Advisors, 444 U.S. at 18-19
(concluding that statutory language, "[b ]y declaring certain contracts void," "itself fairly
implies" a cause of action to bring "suit for rescission or for an injunction against continued
operation of the contract, and for restitution," which suits are "customary legal incidents of
voidness"); Chauffeur's Training Sch., Inc., 478 F.3d at 126-27 ("We are not persuaded that
Congress, by describing some remedial actions available to the Department [of Education],
intended to preclude the Department from taking other reasonable remedial actions."). As
discussed above, we have identified such "persuasive evidence" here.
Accordingly, we conclude that subsection (c) is best read as affording an additional
specific penalty for appointments to compensated positions made in violation of section 3110,
but not as limiting the universe of prohibited appointments to only those that are compensated.

Advisory Character. As discussed above, this Office has also advised that section 3110
applies to presidential appointments to positions that are strictly advisory. 4 We remain of this
view, and therefore believe that the purely advisory functions of the Fitness Council and the
Fellowships Commission would not remove their members from occupying "civilian positions."
"Members of advisory committees are usually considered to be employees of the United
States," Memorandum for C. Boyden Gray, Counsel to the President, from William P. Barr,
Assistant Attorney General, Office of Legal Counsel at 1-2 (May 15, 1989) ("Barr Memo").
That would be clearly true here, as we are advised that members of-the Fitness Council and the
Fellowships Commission are appointed as special government employees. Moreover, members
of these bodies, like the members of other advisory committees, "hold positions that are
expressly created by federal authority, they are charged with federal responsibilities, and they are
often entrusted with access to government information not available to the public." Application
of 18 USC§ 219 to Members of Federal Advisory Committees, 15 Op. O.L.C. 65, 68 (1991)
("Section 219 Opinion"). 5 In light of the purposes underlying section 3110-including
Congress's concern that appointments ofrelatives were impairing government operations-we
believe that the prohibition applies to positions that carry these indicia of authority and
responsibility.
We note, moreover, that application of section 3110 in the present circumstances hardly
constitutes an unprecedented example of congressional regulation of volunteer service in
Executive Branch advisory positions. Were they to be appointed, both the President's brotherin-law and his half-sister would be subject as special government employees to a number of
statutory restrictions on their conduct. See Fitness Council Memo at 8 (members of Fitness
Council, as federal employees, are subject to conflict-of-interest laws, including 18 U.S.C.
4 See Mental Health Commission Memo at 1; see also CPSI Memo at 2; cf 3/23/77 Harmon Memo at l
(appointment to White House staff); Cramton Memo at 1-2 (same).

5 The Section 219 Opinion, from which this characterization of advisory committees is drawn, concluded
that members of such committees "hold offices of profit or trust within the meaning of the Emoluments Clause[,
U.S. Const. art. I,§ 9, cl. 8)." 15 Op. O.L.C. at 68. The Office subsequently receded from the view that the
Emoluments Clause applies to entities of this type, see The Advisory Committee on International Economic Policy,
20 Op. O.L.C. 123 (1996); see also infra, fu. 6, but the Section 219 Opinion's characterization of the nature and
functions of advisory committees remains sound.

7

 § 208); see also Barr Memo at 2 ("As special government employees, advisory committee
members are subject to some-but not all-of the conflict laws."); Memorandum for Stephen J.
Markman, Assistant Attorney General, Office of Legal Policy, from Douglas W. Kmiec, Deputy
Assistant Attorney General, Office of Legal Counsel, Re: HR. 4203, Advisory Panel on
Government Debt Collection Act at 5 & n. 5 (Apr. 24, 1986) (same); see, e.g., 18 U.S.C. § 208
(2006) (precluding government employees from participating personally and substantially,
including through "recommendation [or] the rendering of advice," in any matter in which they
have a financial interest, absent a waiver). 6
That members of the Fitness Council and the Fellowships Commission are charged with
advising the President does not affect our conclusion in this case. In particular, we do not
believe that Congress's barring of the appointment of presidential relatives to such advisory
committees impermissibly "restrict[s] the President's ability to seek advice from whom and in
the fashion he chooses," AAPS, 997 F.2d at 909. See Cramton Memo at 1-2 (concluding that
while section 3110 may present constitutional concerns as applied to presidential appointments
of "high-level" officials, it "seems clearly applicable to subordinate positions on the White
House staff, which fall within the category of 'inferior officers' subject to Congressional
control"). The U.S. Court of Appeals for the District of Columbia Circuit has "construe[ d]"
FACA "strictly" in determining whether it applies to presidential advisory committees to avoid
potential separation of powers concerns. In re: Cheney, 406 F.3d 723, 728 (D.C. Cir. 2005); see
also Ctr. For Arms Control and Non-Proliferation v. Pray, 531 F.3d 836, 843-44 (D.C. Cir.
2008); AAPS, 997 F.2d at 910-11. The court has expressed the view that subjecting such
committees to FA CA-which requires, among other things, balanced committee membership,
open committee meetings, and the public availability of committee documents, see 5 U.S.C. app.
§§ 5(b)(2); lO(a), (b) (2006)-risks impermissible interference with the President's
constitutional entitlement "to consult with his advisers confidentially [and,] as a corollary, ... to
organize his advisers and seek advice from them as he wishes." AAPS, 997 F.2d at 909; see also
Cheney, 407 F.3d at 728 (identifying President's need, "[i]n making decisions on personnel and
policy, and in formulating legislative proposals, ... to seek confidential information from many
sources, both inside the government and outside"); cf Pub. Citizen v. United States Dep 't of
Justice, 491 U.S. 440,466 (1989) (construing FACA not to apply to the judicial recommendation
panels of the American Bar Association to avoid "formidable constitutional difficulties"). But
whatever the merits of the D.C. Circuit's analysis in the context ofFACA, we do not believe that
the application of section 3110 to prevent a President's relative from serving on a presidential
advisory committee threatens to "impermissibly undermine[] the powers of the Executive
6 We recognize that members of the Fitness Council and the Fellowships Commission might not be subject
to a number of statutory and constitutional standards of conduct that apply only to employees of the federal
government who exercise some substantive authority. See 20 Op. O.L.C. 123 (1996) (appointees do not hold an
"Office[] of Profit or Trust" for purposes of the Emoluments Clause when they "meet only occasionally, serve
without compensation, take no oath, and do not have access to classified information," and when "the Committee"
on which they serve "is purely advisory, is not a creature of statute, and discharges no substantive statutory
responsibilities"); Dixson v. United States, 465 U.S. 482, 496, 499 (1984) (in order to qualify as a "public official"
for purposes of the federal bribery statute, 18 U.S.C. § 201, a person must "occup[y] a position of public trust with
official federal responsibilities," and "must possess some degree of official responsibility for carrying out a federal
program or policy"). These standards are phrased differently than section 3110, and they are motivated by different
purposes. Accordingly, we do not view any limits on their application as shedding significant light on the present
inquiry.

8

 Branch" or to "disrupt[] the proper balance between the coordinate branches by preventing the
Executive Branch from accomplishing its constitutionally assigned functions." Morrison v.
Olson, 487 U.S. 654, 695 (1988) (internal quotation marks, alterations, and citation omitted).
The President remains free to consult his relatives in their private, individual capacities at the
time and place of, and on the subjects of, his choosing, and, in any event, "the effect of the
qualification requirement is to eliminate only a handful of persons from the pool of possible
appointees," 3/15/77 Kneedler Memo at 4.
IV

We next address whether the proposed appointments would be to positions "in [an]
agency" as defined in section 3110. We have previously determined that positions on the
President's staff and the White House Office staff and as a member of the Mental Health
Commission would be "in [] agenc[ies]" for purposes of section 3110. 7 We conclude the same
with respect to seats on the Fitness Council and the Fellowships Commission.
Section 3110 defines "agency" to mean "Executive agency," 5 U.S.C. § 311 0(a)(l)(A),
which in tum is defined for title 5 generally as "an Executive department, a Government
corporation, and an independent establishment," id. § 105. Thus, for a seat on the Council or the
Commission to be "in [an] agency" for purposes of section 3110, the Council or the Commission
must either constitute or be located in one of the kinds of entities that qualify as an "Executive
agency" under section 105. 8 Neither the Fitness Council nor the Fellowships Commission is, or
is part of, a Government corporation, see id. § 103, so whether membership on the Council or the
Commission would be "in [an] agency" turns on whether the Council or the Commission
constitutes, or is situated in, an "Executive department" or an "independent establishment."
Fitness Council. We believe that the Fitness Council has a sufficiently close and
substantial re'tationship with the Department of Health and Human Services ("HHS") that the
Council should be considered within that Department for purposes of determining whether
section 3110 applies. Since the Department of HHS is one of the "Executive Department[ s]
listed in 5 U.S.C. § 101 (2006), membership on the Council constitutes a position in an
"Executive department," and thus "in [an] agency." The position therefore falls within the scope
of section 3110.

The executive order establishing the Fitness Council does not specify its location, but the
order does indicate a close connection between the Council and the Department of HHS. See
Executive Order No. 13265; see also infra pp. 11-12. In order to determine whether the Council
is actually a part of HHS for purposes of section 105 (and thus section 3110), we must perform a
"fact-specific analysis," as guided by our prior Office precedent. Applicability of the Federal

7 See CPSI Memo; 3/23/77 Harmon Memo at 2; Mental Health Commission Memo; Cramton Memo; see
also Family Violence Task Force Memo at 2 (service on Attorney General's Task Force on Family Violencelocated within the Department of Justice-is "in [an] agency" for purposes of section 3110).
8 An independent establishment cannot be "part of an independent establishment," 5 U.S.C. § 104(1 ), but
an entity that is part of an independent establishment is subject to "the provisions of [title 5] applicable to the
independent establishment of which [the entity is] a constituent or part." S. Rep. No. 89-1380, at 22 (1966); H.R.
Rep. No. 89-901, at 6 (1965).

9

 Vacancies Reform Act to Vacancies at the International Monetary Fund and the World Bank, 24
Op. O.L.C. 58, 63 (2000) ("IMF Memo").
Particularly instructive on this point is advice we provided in 1995 on whether the
Regional Fishery Management Councils are components of the Commerce Department for
purposes of section 15 of the Age Discrimination in Employment Act, 29 U.S.C. § 633a (1994).
That statute applies to personnel actions affecting applicants to and employees in Executive
agencies as defined in section 105. See Memorandum for Ginger Lew, General Counsel,
Department of Commerce, from Dawn Johnsen, Deputy Assistant Attorney General, Office of
Legal Counsel, Re: ADEA and Regional Fishery Management Councils (Mar. 14, 1995)
("Regional Fishery Management Councils Opinion"). In concluding that the Councils are part of
the Commerce Department, we identified the following factors as "substantial and persuasive":
(1) the Councils' primary function is to advise the Secretary of Commerce with respect to
fishery management plans which are a Commerce responsibility; (2) those plans are
subject to ultimate review and approval by the Secretary; (3) a majority of the Councils'
voting members are appointed by the Secretary, and those members are removable "for
cause" by the Secretary on the recommendation of the Councils; (4) the Secretary
determines what administrative employees (other than the executive directors) may be
appointed by the Councils; (5) the Secretary prescribes the uniform standards that govern
the organization, practice, and procedures adopted by the Councils in performing their
functions; ( 6) the Councils must report annually to the Secretary; and (7) the
compensation of Council members and staff, as well as its other costs and expenses, are
paid by Commerce.
Id. at 4 n.1.
Also relevant is our advice on whether the United States Mission to the United Nations is
within the Department of State for purposes of a since-superseded version of the Vacancies Act,
5 U.S.C. §§ 3345-3349 (1994), which applied to certain vacancies in "Executive agenc[ies]" as
defined in section 105. See Memorandum for Files, from Daniel L. Koffsky, Special Counsel,
Office of Legal Counsel, Re: Permanent Representative to the United Nations (July 14, 1998)
("1998 UN Memo"); Memorandum for Files, from Daniel L. Koffsky, Special Counsel, Office
of Legal Counsel, Re: Vacancy at United States Mission to the United Nations (Apr. 8, 1996)
("1996 UN Memo"). In the 1996 UN Memo, we identified three factors as establishing that the
Mission was part of the State Department: that instructions for the U.S. Permanent
Representative to the United Nations (who heads the Mission) were sent through the Secretary of
State, that the State Department controlled the Mission's appropriations, and that the State
Department's organizational chart had an entry for the Permanent Representative. See 1996 UN
Memo at 1-2. In the 1998 UN Memo, we reaffirmed this conclusion and deemed it
"reinforce[ d]" by "practice," including that the State Department handled the Freedom of
Information Act ("FOIA"), whistleblower, and ethics work for the Mission; that the State
Department carried the Permanent Representative on its employment rolls; that there was a
"home desk" for the Mission within the State Department; and that the State Department's
administrative officers treated the Permanent Representative as an official of the Department.
See 1998 UN Memo at 2.

10

 Finally, we find guidance in our 2000 advice on whether the U.S. Executive Director and
the Alternate U.S. Executive Director at the International Monetary Fund and the World Bank
("U.S. representatives") are part of the Department of the Treasury for purposes of the Federal
Vacancies Reform Act, 5 U.S.C. §§ 3341-3349d (Supp. IV 1998). See 24 Op. O.L.C. at 61-65,
67-68. In concluding that they were not, we acknowledged that the President had delegated to
the Secretary of the Treasury responsibility for conveying the government's instructions to the
U.S. representatives, that the Treasury Department is responsible for some aspects of the
representatives' receipt of certain employment benefits, and that the Department gives ethics
advice to the representatives. See id. at 62-63. We nonetheless characterized the relationship of
the U.S. representatives to the Treasury Department as "quite limited in scope and frequently
ambiguous even within that limited area." Id. at 61. Central to this determination was the fact
that "[f]or some of the most central elements of personnel administration, the U.S.
representatives are unconnected to the Department of the Treasury." ld. 9 Specifically, we noted
that the Department was not responsible for setting or paying the U.S. representatives' salaries
and did not carry them on its employment roles and that the U.S. representatives' staff were not
employees of the Treasury Department. See id.
Consistent with this past advice, we believe that the relevant factors support the
conclusion that the Fitness Council is part of the Department of HHS. The HHS General
Counsel's Office has advised us that it concurs with this conclusion. Accord Memorandum for
Files, from Janis Sposato, Office of Legal Counsel, Re: President's Council on Physical Fitness
and Sports Authority to Accept Gifts at 1 (Aug. 2, 1982) ("[T]he Council is an advisory
Committee attached to the Department of [HHS]."); S. Comm. on Homeland Sec. and
Governmental Affairs, 110th Cong., U.S. Gov't Policy and Supporting Positions 68 (Comm.
Print 2008) ("Plum Book"), available at http://www.gpoaccess.gov/plumbook/2008/ (locating
Executive Director of Fitness Council within HHS Office of the Assistant Secretary for Public
Health and Science).
Most importantly, the Fitness Council advises and makes recommendations directly to
the Secretary of HHS on matters relating to the Secretary's operational responsibilitiesspecifically, the Secretary's development and coordination of a "program to enhance physical
activity and sports participation," Exec. Order No. 13265, § 1; see id. § 3(b ), (d). See Regional
Fishery Management Councils Opinion at 4 n.1 (noting that Councils advise the Secretary of
Commerce regarding matters for which Secretary is responsible). Even the Council's advice and
recommendations for the President must be made "through the Secretary," Exec. Order No.
13265, § 3(a).'° Cf 1996 UN Memo at 1-2 (noting that instructions for U.S. Permanent
Representative to the United Nations are sent through the Secretary of State). It is also
significant that the Secretary appoints the Council's Executive Director; must agree to the
objectives of any subcommittees established by the Council; is responsible for furnishing the
Council with necessary administrative services, including staff; and pays the Council's expenses
We also noted that the responsibility for instructing the U.S. representatives had not originally been
delegated to the Secretary of the Treasury, and that no action by the President or Congress in subsequently
transferring this authority to the Secretary demonstrated an intent to "transfer the legal, administrative location of the
U.S. representatives." 24 Op. O.L.C. at 63.
9

Prior to 2002, the Council had advised and provided recommendations to the President directly. See
Exec. Order No. 12345, § 3(a), 47 Fed. Reg. 5,189 (Feb. 2, 1982).
10

11

 out of her own funds. See Exec. Order No. 13265, § 4(c), (d), & (e). Finally, we note that the
Secretary is responsible for performing all of the President's functions under FACA with respect
to the Council (except reporting to Congress), see id. § 5(a), including "evaluating and taking
action, where appropriate, with respect to all public recommendations" the Council makes to the
President, 5 U.S.C. app. § 6(a).
Although the President, not the Secretary of HHS, appoints the members of the Fitness
Council, that does not outweigh the other relevant considerations we have identified. See 1998
UN Memo (deeming the U.S. Mission to the United Nations part of the State Department despite
the fact that the President, not the Secretary of State, appoints the Permanent Representative, see
U.S. Const. art. II,§ 2, cl. 2); see also 1996 UN Memo (same). Taken together, these factorsparticularly the fact that the Secretary either receives herself or conveys to the President all of the
Fitness Council's advice-suffice to make the Council a part of the Department of HHS for
purposes of section 105, and thus to render appointments to it subject to section 3110. 11
Fellowships Commission. The Fellowships Commission is not one of the Executive
Departments listed in section 101 and has no connection with any of those Departments.
Accordingly, whether membership on the Commission constitutes a position "in [an] agency"
turns on a distinct question-namely, whether the Commission is, or is part of, an "independent
establishment" for purposes of section 105.

An "independen! establishment" is defined as "an establishment in the executive branch
(other than the United States Postal Service or the Postal Regulatory Commission) which is not
an Executive department, military department, Government corporation, or part thereof, or part
of an independent establishment." 5 U.S.C. § 104(1) (2006). The executive order establishing
the Commission does not specify its location, see Exec. Order No. 11183, and so we must look
beyond the text of the order. We discern four realistic possibilities: either the Commission is in
OPM, which "provid[ es] the Commission with administrative services, staff support, and travel
expenses," id. § 4(b ); it is within the White House Office; it is elsewhere in the Executive Office
of the President ("EOP"); or it is a freestanding Executive Branch entity.
If the Commission were in OPM, then Commission memberships would be subject to
section 3110, since OPM is an independent establishment, see 5 U.S.C. § 1101 (2006). Looking
to the same factors that were relevant in assessing whether an entity is part of an Executive
department, however, we are of the view that the Commission is not part of OPM. The OPM
General Counsel's Office has advised us orally that it agrees with this conclusion.

OPM provides the Commission with administrative support, but that relationship is not
itself dispositive of the Commission's status. We are mindful that, since title 5 "largely deals
with personnel matters," we have advised that if an Executive Branch entity has no connection
with an Executive department for certain "essential aspects of personnel administration," then
11 This conclusion is consistent with those executive orders creating advisory committees similar to the
Fitness Council in which the location of the committee is specified. See Exec. Order No. 13256, 67 Fed. Reg. 6,823
(Feb. 12, 2002) (locating President's Board of Advisors on Historically Black Colleges and Universities within the
Department of Education); Exec. Order No. 13270, 67 Fed. Reg. 45,288 (Jul. 3, 2002) (locating the President's
Board of Advisors on Tribal Colleges and Universities within the Department of Education).

12

 "the compelling implication" is that the entity does not reside within that Executive department.
24 Op. O.L.C. at 62. But the converse of this proposition-that if an Executive department or
independent establishment is responsible for an entity's "essential aspects of personnel
administration," then the entity is necessarily part of that Executive department or independent
establishment-is not necessarily true. Indeed, we are loath to treat the identity of the agency
providing administrative services as dispositive of the location of the entity receiving the
services when, as in this instance, the receiving entity is a FACA advisory committee. FACA
permits the "establishing authority" to provide for a committee to receive "support services"
from an entity other than the one that established the committee or receives advice from it. See 5
U.S.C. app. § 12(b) (2006); see, e.g., Exec. Order No. 13498, § 2(a), (d)(5), 74 Fed. Reg. 6,533
(Feb. 5, 2009) (establishing President's Advisory Council on Faith-Based and Neighborhood
Partnerships within the Executive Office of the President ("EOP"), but specifying that the
Department of HHS shall provide administrative support to and fund the Council). 12 It would
give too much weight to the establishing authority's discretionary choice of a particular entity to
provide support services-possibly for budgetary or other practical reasons-to treat that choice
as determinative of the location of the committee receiving the support.13
We therefore must consider the other indicia of the Commission's form and function, all
of which-by suggesting the Commission's close connection to the President-militate against
placing it within OPM. In particular, the Commission's "basic function ... is to provide
recommendations" regarding prospective White House Fellows to the President, for his "ultimate
decisions," Fellowships Commission Letter at 2; see Exec. Order No. 11183, § 2-a process that
does not involve OPM in any way. Moreover, the President-not OPM-selects the members of
the Commission and its Chairman. The evolution over time of the Commission's structure also
supports treating it as separate from OPM. The original version of the executive order
12 The discretion of the establishing authority under section 12(b) ofFACA to choose which entity will
supply support services to a committee applies equally with respect to presidential advisory committees. To be sure,
section 12(b) provides that "[i]n the case of Presidential advisory committees, [support] services may be provided by
the General Services Administration." But any argument that this language implicitly "requires that administrative
support [for a presidential advisory committee] come from either the appropriation for the Executive Office of the
President or from the GSA, and not some other agency," finds no support in Executive Branch practice or the
legislative history ofF ACA, Memorandum for Files, from Thomas 0. Sargentich, Office of Legal Counsel, Re:
Contemplated Executive Order to establish Presidential Advisory Committee on the Arts and Humanities at 2 (May
28, 1981).
13 We advised in the IMF Memo that the offices of the U.S. representatives are "component part[s] of the
IMF [and World Bank]" because those organizations fully fund the offices-including setting and paying the
compensation of the representatives and their staffs and the offices' operating expenses-and staff the offices with
IMF and World Bank employees. 24 Op. O.L.C. at 66. We thus appeared to take the position that the offices of the
U.S. representatives were components of the IMF and the World Bank at least in large part because those
organizations were responsible for funding and staffing the offices. In rejecting the proposition that a federal
government entity's responsibility for providing administrative support and staff to a FACA advisory committee
suffices to establish the committee's location within that entity, we do not call the validity of this previous advice
into question. We addressed in the IMF memo only whether an entity was within an international organization or
the federal government. The standards for resolving this question may not necessarily be the same as those we have
applied here in determining whether the Fitness Council and Fellowships Commission-entities that are
unquestionably within the Executive Branch-are free-standing or components of an Executive department or
independent establishment. Moreover, the offices of the U.S. representatives are not FACA advisory committees,
and we have already explained why we are particularly reluctant to treat the identity of the entity providing
administrative support to such a committee as dispositive of where the committee resides.

13

 establishing the Commission, issued in 1964, provided that the "Civil Service Commission shall .
. . assist in the conduct of the [Fellowships] Commission's work." Exec. Order No. 11183,
§ 4(b). The 1972 order amending that original order eliminated this requirement, see Exec.
Order No. 11648, § 4, although it retained the requirement that the Civil Service Commission
provide administrative services to the Fellowships Commission. Thus, in issuing the 1972
executive order, the President appears to have intended to limit the involvement in the
Commission's activities of the entity charged with providing it with administrative support.
Considering all of the relevant factors, we conclude that the Commission is not part of OPM.
We also do not believe that the Commission is part of the White House Office. The
executive order establishing the Commission does not place it within the White House Office, cf
Exec. Order No. 13283, § 1, 68 Fed. Reg. 3,371 (Jan. 21, 2003) (establishing Office of Global
Communications within the White House Office); Exec. Order No. 13254, § 4, 67 Fed. Reg.
4,869 (Jan. 29, 2002) (establishing USA Freedom Corps Office as "a component of the White
House Office"); Exec. Order No. 12537, § 1, 50 Fed. Reg. 45,083 (Oct. 28, 1985) (establishing
President's Foreign Intelligence Advisory Board within the White House Office), and no
member of the President's personal staff serves on the Commission, cf Exec. Order No. 13503,
§ 5(b), 74 Fed. Reg. 8,139 (Feb. 19, 2009) (designating Deputy Assistant to the President and
Director of Urban Affairs as head of the White House Office of Urban Affairs); Exec. Order No.
13199, § 4(b), 66 Fed. Reg. 8,499 (Jan. 29, 2001) (designating the Assistant to the President for
Faith-Based and Community Initiatives as head of the White House Office of Faith-Based and
Community Initiatives). In addition, the Plum Book lists the Commission among the
"independent agencies and government corporations," not as part of the White House Office (or
the Executive Office of the President). Plum Book at 180; cf 1996 UN Memo at 2 (looking to
State Department organizational chart in determining location of U.S. Permanent Representative
to the United Nations). We note, moreover, that OPM, not the White House Office, provides
"the Commission with administrative services, staff support, and travel expenses," Exec. Order
No. 11183, § 4(b), and indeed the Commission has informed us that it receives no funding
through the White House Office. See 24 Op. O.L.C. at 62-63 (noting that if Treasury
Department does not employ or pay the salaries of the U.S. representatives, the "compelling
implication is that [they] are not located in the Department"). Finally, based on our discussions
with your Office, we are not aware of any other factors that would suffice to warrant treating the
Commission as part of the White House Office under our precedents.
It is true that the White House website identifies the "White House Fellows" as within the
White House Office, see http://www.whitehouse.gov/administration/eop/, but this may be a

reference to the administrative location of the fellowship program itself, not to the location of the
Commission. See Congressional Quarterly, Inc., Federal Staff Directory 12, 43-44 (56th ed.
2008) (separate entries for "White House Fellowships," which is situated within the Office of the
President, and the "President's Commission on White House Fellowships," which is situated
outside the Office of the President as an agency of the EOP). In any event, as we have noted, the
other available evidence points away from the Commission's location within the White House
Office.
Having determined that the Commission is part of neither OPM nor the White House
Office, the remaining alternatives are either that it resides elsewhere in the EOP or that it
constitutes a free-standing entity within the Executive Branch. There is some support for
14

 locating the Commission, which is charged solely with advising the President, in the EOP, since
we have in the past advised that entities of this type reside in the EOP. See Memorandum for
Files, from Paul P. Colborn, Special Counsel, Re: Records of the Information Coordination
Center at 2 (Nov. 14, 2000) ("As with other presidential boards and commissions, the
[President's Council on Year 2000 Conversions] resided in the Executive Office of the
President."). However, in light of our conclusion below that the Commission amounts to an
"establishment," see infra pp. 15-18, we need not resolve this question definitively. Regardless
whether the Commission is part of the EOP or free-standing, the Commission's status as an
establishment means that membership on the Commission constitutes a position in an
independent establishment for purposes of section 105-and thus "in [an] agency" for purposes
of section 3110.
Three separate possible lines of analysis lead to this same conclusion. If the Commission
is a free-standing establishment, then it would qualify as an independent establishment, and its
members would hold positions in an independent establishment. If the Commission is in the
EOP, then there are two further possibilities, depending on whether EOP itself is an independent
establishment, but both lead to the conclusion that so long as the Commission amounts to an
establishment, its members occupy positions in an independent establishment and thus in an
agency under section 3110. If the EOP itself is an independent establishment, as we have
suggested at times in the past, 14 then Commission memberships would constitute positions in that
independent establishment. If the EOP is not an independent establishment-the view that we
have espoused more recently 15-then, so long as the Commission constitutes an "establishment,"
its members would hold positions in an independent establishment, since the Commission would
be independent in the sense of not being part of any department or independent establishment.
We tum, then, to the ultimate question of whether the Commission constitutes an
"establishment," as that term is used in sections 104 and 105. Although the question is not
entirely free of doubt, we conclude that it does.
This Office has consistently read the statutory term "establishment" as having "broad"
application. 24 Op. O.L.C. at 65. We have sometimes suggested that the term is a catch-all for
"essentially any ... organization in the Executive Branch" that is not an Executive department or
a Government corporation. Applicability of the Hatch Act to the Chairman of the Native
Hawaiians Study Commission, 6 Op. O.L.C. 292, 293 (1982). Thus, we have characterized it as
intended to sweep in "all agencies and instrumentalities in the Executive Branch." Memorandum
for Charles H. Atherton, Secretary, Commission of Fine Arts, from Theodore B. Olson, Assistant
Attorney General, Office of Legal Counsel, Re: Applicability of Exec. Order 11988 Concerning
Floodplain Management to the Commission of Fine Arts at 4 (June 7, 1984) ("1984 Fine Arts
Memo"). That approach is consistent with the most basic definition of "establishment": "[t]hat
which is established." Webster's New International Dictionary at 874.
14 See Memorandum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky, Acting
Assistant Attorney General, Office of Legal Counsel, Re: Use of GSA Authority to Accept Gift ofEquipment at 5
(Aug. 3, 1993) ("the ordinary meaning of ... 'independent establishment in the executive branch"' as used in 40
U.S.C. § 472(a) "would seem to" encompass the EOP and some of its "principal components"); 3/15/77 Kneedler
Memo at 4.
15 See Memorandum for Files, from Daniel Koffsky, Special Counsel, Re: OSTP (Apr. 23, 1998);
Memorandum to Files, from Daniel Koffsky, Special Counsel at 2-3 (Jan. 9, 1998).

15

 More recently, we have indicated that section 104(1)'s use of the term "establishment" is
not quite all-encompassing, but rather should include only entities with "[their] own structure
and unity." 24 Op. O.L.C. at 65; cf id. at 60 ("The use of the phrase 'of an Executive agency'
imposes a meaningful limitation on the scope of the [Federal Vacancies Reform Act].");
Memorandum for Bernard Nussbaum, Counsel to the President, from Daniel L. Koffsky, Acting
Assistant Attorney General, Re: Use of GSA Authority to Accept Gift of Equipment at 5 (Aug. 3,
1993 (not clear "whether more ad hoc and less formal entities under the EOP would meet this
definition"). This approach is consistent with that of the U.S. Court of Appeals for the District of
Columbia Circuit in addressing the meaning of"establishment" as used in FOIA's somewhat
different definition of"agency." See Meyer v. Bush, 981 F.2d 1288, 1296 (D.C. Cir. 1993)
("FOIA, by declaring that only 'establishments in the executive branch' are covered, 5 U.S.C.
§ 552(e), requires a definite structure for agency status."); Armstrong v. EOP, 90 F.3d 553, 558
(D.C. Cir. 1996) ("a definite structure may be a prerequisite to qualify as an 'establishment
within the executive branch"'); see also Memorandum for J. Michael Farren, Deputy Counsel to
the President, from Steven A. Engel, Deputy Assistant Attorney General, Office of Legal
Counsel, Re: Whether the Office ofAdministration Within the Executive Office of the President
Is an "Agency" for Purposes of the Freedom ofInformation Act at 2-3 (Aug. 21, 2007).
The legislative history of section 104, which was added to the U.S. Code as part of the
codification of title 5, see Pub. L. No. 89-554, 80 Stat. 378, 379 (1966), does not shed much light
on the question. But the amendment history of section 3110 suggests that Congress intended
section 3110 to bar appointments to a broad range of Executive Branch entities. Introduced in
the House as a floor amendment to extensive legislation for the revision of postal rates and
salaries, see Postal Revenue and Federal Salary Act of 1967, Pub. L. No. 90-206, § 221, 81 Stat.
613, 640, section 3110 as adopted by the House prohibited the appointment ofrelatives to
positions in the appointing official's "Department," meaning "each department, agency,
establishment, or other organization unit in or under the . .. executive branch." 113 Cong. Rec.
28,658 (1967) (emphasis added). When the bill was reported out of Senate committee, that
definition had been replaced with the current language referencing the official's "agency,"
defined to incorporate the title 5 definition of "Executive agency." The rationale for the change
is unclear-the legislative history suggests it was intended to allay concerns that the original
definition of "Department" included military as well as civilian entities, see Section 3110
Hearings at 363; see also 5 U.S.C. § 104 (excluding "military department" from definition of
"independent establishment")-but there is no indication that the purpose of the shift from
"Department" to "Executive agency" was to limit the application of the prohibition to a smaller
subset of civilian Executive Branch entities.
In accord with our broad reading of "establishment," we have repeatedly advised that
particular advisory committees constitute establishments for purposes of sections 104 and 105 of
title 5. 16 For example, in concluding that section 3110 would bar President Carter's appointment
of the First Lady as Chairperson of the Mental Health Commission, which was a federal advisory
committee, see Exec. Order No. 11973, 42 Fed. Reg. 10,677 (Feb. 17, 1977), we observed that
16 We have observed generally that "[a]n entity in the Executive Branch may be both an advisory
committee within the meaning ofFACA and an executive agency within the meaning of5 U.S.C. § 105." 1984 Fine
Arts Memo at 5 n.4.

16

 "[t]he comprehensive term 'establishment' would clearly cover the [Commission]." Mental
Health Commission Memo; see also CPSI Memo (stating that the reasons for deeming the
Mental Health Commission an establishment would apply equally to the CPSI). We also have
concluded that another F ACA advisory committee, the Commission of Fine Arts ("Fine Arts
Commission"), is an establishment for purposes of section 104, 17 and we have suggested that the
Advisory Board for Cuba Broadcasting "probably qualifies" as one as well, Memorandum for
Files, from Daniel Koffsky, Special Counsel at 2-3 (Jan. 9, 1998). See also 6 Op. O.L.C. at 29395 (concluding that the Hatch Act, 5 U.S.C. § 7324 (1976), which applies to "[a]n employee in
an Executive agency" as defined in section 105, applies to Native Hawaiians Study
Commission).
In addressing the status of the Fine Arts Commission, we saw "no question" that the
Commission-regardless of whether it was engaged in its "advisory function" or making
"substantive, binding decision[ s]"-"is performing functions constitutionally committed to the
Executive Branch and, as such, is an executive agency within the meaning of [section] 105."
1984 Fine Arts Memo at 5; cf Memorandum for Charles H. Atherton, Secretary, Commission of
Fine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Application of Executive Order 11988, entitled "Floodplain Management, " to the Commission
of Fine Arts at 2-3 (Nov. 14, 1980) ("1980 Fine Arts Memo) (describing Commission's functions
as purely advisory and concluding that Commission is an establishment because it is
congressionally created, composed of presidential appointees, and entirely financed by the
federal government).
Assuming an entity must have some degree of ongoing structure and unity to qualify as
an independent establishment within the meaning of section 105, we believe the Fellowships
Commission meets the test. The Fellowships Commission has a structure-a formal
membership comprising special government employees-and is unified-in its ability to
deliberate and make decisions as a body. See Mental Health Commission Memo (identifying
fact that President's Commission on Mental Health is "comprised of persons who will be
regarded as government employees" as among reasons that it is "clearly" an establishment)
(citing Exec. Order No. 11973, §§ 4, 7). To be sure, the Commission has a fairly skeletal
organization; functions as a body only on a small number of occasions per year; and possesses
relatively limited powers, even as compared to some of the other advisory committees that we
have deemed independent establishments. Cf 1984 Fine Arts Memo at 5 (observing that Fine
Arts Commission is established by statute and exercises "both advisory and substantive
responsibilities"); Mental Health Commission Memo (observing that President's Commission on
Mental Health is "authorized, through its Chairman, to conduct hearings and procure
independent services pursuant to 5 U.S.C. § 3109") (citing Exec. Order No. 11973, § 7); Exec.
Order No. 11973, § 7 (providing for compensation of members of Commission on Mental
Health). Moreover, the Commission is a creature of executive order, and thus subject to
abolition at the President's discretion, unlike a number of the statutorily created advisory bodies
that we have deemed establishments. See, e.g., 40 U.S.C. § 9101 (2006) (establishing the Fine
See 1984 Fine Arts Memo at 5 & n.4; see also Memorandum for Charles H. Atherton, Secretary,
Commission of Fine Arts, from Leon Ulman, Deputy Assistant Attorney General, Office of Legal Counsel, Re:
Application of Executive Order 11988, entitled "Floodplain Management, " to the Commission ofFine Arts at 2-3
(Nov. 14, 1980) (same); Letter for Charles H. Atherton, Secretary, Commission of Fine Arts, from Ralph W. Tarr,
Acting Assistant Attorney General, Office of Legal Counsel at 2 (May 20, 1985) (same).
17

17

 Arts Commission); 22 U.S.C. § 1465c (2006) (establishing the Advisory Board for Cuba
Broadcasting); Pub. L. No. 96-565, title III,§§ 301-307, 94 Stat. 3321, 3324-3327 (1980)
(establishing the Native Hawaiians Study Commission). Nonetheless, in the context of the
present inquiry, we do not think that these differences suffice to distinguish the Fellowships
Commission from these other advisory committees, such that the Commission should not be
considered an "establishment." In reaching this conclusion, we give particular weight to the fact
that the Commission was established during the Johnson Administration, and thus is now in its
fifth decade of continuous operation. Accordingly, it cannot be disputed that, in a most basic
sense, the Commission constitutes an established entity with its own structure, practices, and
history. Cf Armstrong, 90 F.3d at 560 (contrasting entity possessing sufficient structure to
qualify as FOIA agency with "an amorphous assembly from which ad hoc task groups are
convened periodically by the President"); Meyer, 981 F.2d at 1296 ("The President does not
create an 'establishment' subject to FOIA every time he convenes a group of senior staff or
departmental heads to work on a problem.").
We are aware of two judicial decisions that either hold or suggest that particular freestanding Executive Branch entities that are not Executive departments or Government
corporations are not independent establishments. See Haddon v. Walters, 43 F.3d 1488 (D.C.
Cir. 1995); AAPS, 997 F.2d at 905. Neither of these opinions affects our conclusion here.
In Haddon, the D.C. Circuit held that section 2000e-16 of title 42, which prohibits certain
discrimination in connection with "personnel actions affecting employees or applicants ... in
executive agencies as defined in [5 U.S.C. § 105]," did not apply to a personnel action affecting
an employee of the Executive Residence. Id. at 1489. The court relied on two statutory
rationales. First, the court construed 3 U.S.C. § 112 (2006)-which authorizes details from "any
department, agency, or independent establishment of the executive branch" to a number of
entities in the EOP, including the Executive Residence-as "suggest[ing] that Congress does not
regard" the Residence to be an independent establishment. Haddon, 43 F.3d at 1490. Second,
the court deemed it significant that section 2000e-16 incorporated title 5's definition of
Executive agency, since title 3 of the United States Code contains a provision that authorizes the
President to appoint and fix the pay of the employees of the Executive Residence "without
regard to any other provision of law regulating the employment or compensation of persons in
the Government service," 3 U.S.C. § 105(b) (2006). See Haddon, 43 F.3d at 1490.
Even assuming that the Haddon court's reasoning is sound, neither of these rationales has
any bearing on whether the Fellowships Commission qualifies as an "establishment." The only
entities that are grouped with the Executive Residence as possible recipients of details from
independent establishments under 3 U.S.C. § 112-and thus, in the court's view, distinct from
those independent establishments-are the White House Office, the Office of the Vice President,
the Domestic Policy Staff, and the Office of Administration. These are the same entities with
respect to which title 3 grants the President special authority to appoint and fix the pay of
employees without regard to other provisions of law regulating the employment or compensation
of government workers, see 3 U.S.C. §§ 105, 106, 107 (2006)-the same special authority that
the Haddon court deemed significant in concluding that the Executive Residence was not an
independent establishment. Even if the Haddon court is correct that Congress wished to thus
signify that the named entities are not independent establishments for purposes of section 105 of
title 5, Congress expressed no such intent to similarly demarcate presidential advisory
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 committees not in the White House Office, such as the Fellowships Commission, which are
mentioned in neither 3 U.S.C. § 112 nor in any special grant of appointment authority under title
3. Congress may well have concluded that the President's need to be free of title 5' s strictures in
appointing and paying the employees of the named entities did not extend to such advisory
committees to the same extent.
The AAPS court's views are more on point, but we find the court's brief discussion
unpersuasive. The court expressed "doubt that Congress intended" section 3110 to apply to
appointments to "the White House or the Executive Office of the President," although the court
did not need to, and did not purport to, resolve that question definitively. 997 F.2d at 905; see
also id. (speculating that the President might be "barred from appointing his brother as Attorney
General, but perhaps not as a White House special assistant"). The only support the AAPS court
advanced for its tentative view were citations to Franklin v. Massachusetts, 505 U.S. 788 (1992);
Meyer, 981 F.2d 1288; and Armstrong v. Bush, 924 F.2d 282,289 (D.C. Cir. 1991). These
decisions do not support changing our conclusion that the Commission is an "establishment" for
purposes of section 105. Cf AAPS, 997 F.2d at 921 (Buckley, J., concurring) ("Viewed purely
as a matter of congressional intent, the [majority's] argument that the Anti-Nepotism Act applies
only to the Departments and not to the White House ... is a weak one.").
In Meyer, the court held that the President's Task Force on Regulatory Relief-an entity
within the EOP-was not an "agency" subject to FOIA, 5 U.S.C. § 552(1), because it was not a
body with "substantial independent authority" to direct Executive Branch officials. 981 F .2d at
1297; see also Citizens for Responsibility and Ethics in Washington v. Office ofAdministration,
566 F.3d 219,224 (D.C. Cir. 2009); cf Soucie v. David, 448 F.2d 1067, 1075 (D.C. Cir. 1971)
(stating that if EOP entity's "sole function were to advise and assist the President, that might be
taken as an indication that the [entity] is part of the President's staff and not a separate agency"
for purposes of the Administrative Procedure Act, 5 U.S.C. § 551(1) (Supp. V 1970), which at
the time defined an agency as any "authority of the Government of the United States"). That
holding is not of direct relevance here. It may be the case that the Fellowships Commission,
which is charged solely with advising the President, would not qualify as an "agency" for FOIA
purposes. But see Letter for the Honorable Abner J. Mikva, Counsel to the President, from
Richard L. Shiffrin, Deputy Assistant Attorney General, Office of Legal Counsel at 1 (Mar. 10,
1995) (noting that "[t]he Commission considers itself an agency subject to the Privacy Act,"
which incorporates the FOIA definition of "agency," see 5 U.S.C. § 552a(a)(l) (2006)). But we
need not resolve that question for present purposes, since the Commission's status under FOIA is
not dispositive of whether it is an Executive agency within the meaning of section 105. FOIA's
legislative history is "unambiguous" that '"the President's immediate personal staff or units in
the Executive Office whose sole function is to advise and assist the President' are not included
within the term 'agency."' Kissinger v. Reporters Comm.for Freedom of the Press; 445 U.S.
136, 156 (1980) (quoting H.R. Conf. Rep. No. 1380, 93d Cong., 2d Sess. 15 (1974)); see also
Meyer, 981 F.2d at 1291-92. At least when it comes to such entities within the EOP-and
analogous entities outside the EOP that are "responsible directly to the President and assist[] him
by performing whatever duties he may prescribe," Sweetland v. Walters, 60 F.3d 852, 854 (D.C.
Cir. 1995)-the definition of an "agency" for FOIA purposes is plainly more restrictive than the
section 105 definition of Executive agency. See Armstrong, 90 F.3d at 558 ("not every
[Executive Branch] establishment is an agency under the FOIA"). As suggested previously, see
supra p. 16, there is no legislative history for sections 104, 105, or 3110 that is comparable to
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 FOIA ' s legislative history, and thus there is no support for construing their ambit to be similarly
limited.
In Franklin, which the AAPS court also cited, the Supreme Court-"[ o J ut of respect for
the separation of powers and the unique constitutional position of the President"-dec lined to
subj ect the President to the Administrative Procedure Act ("APA") absent "an express statement
by Congress," 5 0 5 U . S . at 800-0 1 . See also Armstrong, 924 F . 2 d at 2 8 9 (relying on clear
statement rule in concluding that APA does not apply to the President). W e have previously
invoked this c lear statement rule where "application [of a statute to the President] would involve
a possible conflict with the President ' s constitutional prerogatives," Application of 28 USC.
§ 458 to Presidential Appointme nts of Fede ral Judges, 1 9 Op. O . L . C . 3 5 0, 3 5 1 ( 1 995); but the
rule does not affect our construction of section 1 04, section 1 05 , or section 3 1 1 0 as applied to the
Fellowships Commission. C ongress defined "public official" in section 3 1 1 0 expressly to
include the President. 5 U . S . C . § 3 1 1 0( a)(2). And although the definitions of "agency" in
section 3 1 1 0, "Executive agency" in section 1 05 , and "independent establishment" in section 1 04
do not expressly include entities charged solely with advising the President, for the reasons
discussed previously we do not think that the application of the prohibition to bar presidential
appointments to such entities raises significant constitutional concerns. See s upra pp. 8-9; see
also 1 9 Op. O.L.C. at 3 5 7 n. 1 1 ("The clear statement principle . . . does not apply with respect to
a statute that.raises no separation of powers questions were it to be applied to the President.").
Accordingly, we conclude that the Fellowships Commission i s an independent
establishment and therefore is subj ect to the bar imposed by section 3 1 1 0 . 1 8
Please let us know if we may be of further assistance.

Acting Assistant Attorney General

1 8 We have previously advised that section 3 1 1 0 would not bar the President from appointing a relative to
an "honorary" position relating to an Executive Branch entity, so Jong as the appointee remains "sufficiently
removed" from the entity ' s "official functions ." Mental Health Comm iss ion Memo at 1 ; see also 21 1 7177 Kneedler
Memo at 7 (honorary appointee could attend entity's meetings or hearings, submit ideas for the entity's
consideration, and offer and solicit support for the entity' s work). W e have not independently exami ned this
question, and express no view on the status of "honorary" appointments under section 3 1 1 0. Even if they are
permissible in cases where an appointment otherwise would be prohib ited, the i nvolvement of a nonemployee with
the work of an advisory comm ittee would potentially raise independent legal questions, requiring careful
consideration, relating to the application of other laws, including F ACA, FOIA, and the conflict of interest laws.
20