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

• Court: Department of Justice Office of Legal Counsel
• Decided: June 30, 1988
• Status: Published

Opinion

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

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

June 30,1988

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

Introduction and Summary

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

Background

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

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

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

Analysis

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

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

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

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

124 40 U.S.C. § 472. You believe that the Smithsonian is an “independent establish­ ment in the executive branch” and thus an “executive agency”.2 The Smithson­ ian considers itself to be a “Federal agency” but not an executive agency. Congress did not expressly specify the status of the Smithsonian under the Property Act. Nor does the legislative history of the Property Act elaborate on the definitions of “executive agency” and “Federal agency” contained in the Act. See H.R. Rep. No. 670, 81st Cong., 1st Sess. 8 (1949), reprinted in 1949 U.S.C.C.A.N. 1475, 1481-82 (section-by-section analysis of section 3 does not discuss these definitions). Moreover, unlike those instances in which Congress has specified the status of an entity for the purpose of federal law, e.g., 39 U.S.C. § 201 (the United States Postal Service is “an independent establishment of the executive branch of the Government of the United States”); 31 U.S.C. § 9101(2) (listing ten “mixed-ownership Government corporation[s]”), Congress has not specified the general status of the Smithsonian. Thus, we must determine whether Congress intended the Property Act to apply to the Smithsonian at all, and if so, whether Congress intended the Smithsonian to be treated as an “executive agency” or as a “Federal agency” for the purposes of the Act. The GSA and the Smithsonian both assert that the Property Act applies to the Smithsonian. See Letter for Charles J. Cooper, Assistant Attorney General, Of­ fice of Legal Counsel, from Clyde C. Pearce, Jr., General Counsel, GSA at 3-5 (Oct. 27, 1986); Powers Letter at 10-12. The legislative history of the Act sup­ ports this conclusion.3 Indeed, it has long been understood that transactions with the Smithsonian involving federal property or appropriated funds are subject to federal property and contract law. See, e.g.. Act of Dec. 30, 1982, Pub. L. No. 97-394, 96 Stat. 1966, 1991-92 (1982) (provisions for appropriations to the Smithsonian presume the applicability of the procurement provisions of the Prop­ erty Act); 45 Comp. Gen. at 686-88; 12 Comp. Gen. 317 (1932). We therefore agree that the Property Act does apply to the Smithsonian. As to whether Congress intended the Smithsonian to be treated as an “execu­ tive agency” or as a “Federal agency” for the purposes of the Property Act, we

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

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

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

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

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

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

Conclusion

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

D ouglas W. K m ie c

Deputy Assistant Attorney General Office o f Legal Counsel

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