28 U.S.C. § 521 — Publication and distribution of opinions

Page 195 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 521 principles on which the decision was based. When the decision was founded on an Act of Con- gress it shall be cited specifically, and if any previous interpretation or construction has been given to the Act, section, or clause by the de- partment, bureau, or officer, it shall be set forth briefly in the statement and a copy of the opin- ion filed, if any, attached to it. When a decision in the case has been based on a regulation of a department or when a regulation has, in the opinion of the department, bureau, or officer sending the statement, any bearing on the claim, it shall be distinctly quoted at length in the statement. When more than one case or class of cases is pending, the defense of which rests on the same facts, circumstances, and proofs, the department, bureau, or officer may certify and send one statement and it shall be held to apply to all cases as if made out, cer- tified, and sent in each case respectively. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 614; amended Pub. L. 97–164, title I, § 118(a), Apr. 2, 1982, 96 Stat. 32; Pub. L. 102–572, title IX, § 902(b)(1), Oct. 29, 1992, 106 Stat. 4516.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 91. R.S. § 188. The section is reorganized and restated for clarity. In subsection (a), the word ‘‘concerning’’ is sub- stituted for ‘‘touching’’. In subsection (b), the words ‘‘without delay’’ are omitted as unnecessary in view of the requirement that the statement be furnished ‘‘Within a reasonable time’’. The word ‘‘briefly’’ is substituted for ‘‘suc- cinctly’’. The words ‘‘in suit’’ are omitted as unneces- sary. The words ‘‘executive department’’ are substituted for ‘‘department’’ because ‘‘department’’ as used in R.S. § 188 meant ‘‘executive department’’. (See R.S. § 159.) The words ‘‘military department’’ are inserted to preserve the application of the source law. Before en- actment of the National Security Act Amendments of 1949 (63 Stat. 578), the Department of the Army, the De- partment of the Navy, and the Department of the Air Force were Executive departments. The National Secu- rity Act Amendments of 1949 established the Depart- ment of Defense as an Executive Department including the Department of the Army, the Department of the Navy, and the Department of the Air Force as military departments, not as Executive departments. However, the source law for this section, which was in effect in 1949, remained applicable to the Secretaries of the mili- tary departments by virtue of section 12(g) of the Na- tional Security Act Amendments of 1949 (63 Stat. 591), which is set out in the reviser’s note for section 301 of title 5, United States Code. Editorial Notes AMENDMENTS 1992—Pub. L. 102–572 substituted ‘‘United States Court of Federal Claims’’ for ‘‘United States Claims Court’’ in section catchline and subsec. (a). 1982—Pub. L. 97–164, § 118(a)(2), substituted ‘‘United States Claims Court or in United States Court of Ap- peals for the Federal Circuit’’ for ‘‘Court of Claims’’ in section catchline. Subsec. (a). Pub. L. 97–164, § 118(a)(1), substituted ‘‘United States Claims Court or in the United States Court of Appeals for the Federal Circuit’’ for ‘‘Court of Claims’’. Statutory Notes and Related Subsidiaries EFFECTIVE DATE OF 1992 AMENDMENT Amendment by Pub. L. 102–572 effective Oct. 29, 1992, see section 911 of Pub. L. 102–572, set out as a note under section 171 of this title. EFFECTIVE DATE OF 1982 AMENDMENT Amendment by Pub. L. 97–164 effective Oct. 1, 1982, see section 402 of Pub. L. 97–164, set out as a note under section 171 of this title. § 521. Publication and distribution of opinions The Attorney General, from time to time— (1) shall cause to be edited, and printed in the Government Publishing Office, such of his opinions as he considers valuable for preserva- tion in volumes; and (2) may prescribe the manner for the dis- tribution of the volumes. Each volume shall contain headnotes, an index, and such footnotes as the Attorney General may approve. (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 614; amended Pub. L. 113–235, div. H, title I, § 1301(b), Dec. 16, 2014, 128 Stat. 2537.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 305 (1st sentence, as applicable to the Attorney General; 2d and 3d sen- tences). R.S. § 383 (1st sentence, as ap- plicable to the Attorney General; 2d and 3d sen- tences). Section 188 of the Revised Statutes was part of title IV of the Revised Statutes. The Act of July 26, 1947, ch. 343, § 201(d), as added Aug. 10, 1949, ch. 412, § 4, 63 Stat. 579 (former 5 U.S.C. 171–1), which provides ‘‘Except to the extent inconsistent with the provisions of this Act [National Security Act of 1947], the provisions of title IV of the Revised Statutes as now or hereafter amended shall be applicable to the Department of Defense’’ is omitted from this title but is not repealed. The words ‘‘his opinions’’ are substituted for ‘‘the opinions of the law officers herein authorized to be given’’ as the opinions of the Attorney General are his and only his and the reference to other ‘‘law officers’’ is misleading. All functions of all other officers of the Department of Justice were transferred to the Attor- ney General by 1950 Reorg. Plan No. 2, § 1, eff. May 14, 1950, 64 Stat. 1261. The word ‘‘considers’’ is substituted for ‘‘may deem’’. In the last sentence, the words ‘‘proper’’ and ‘‘com- plete and full’’ are omitted as unnecessary. Statutory Notes and Related Subsidiaries CHANGE OF NAME ‘‘Government Publishing Office’’ substituted for ‘‘Government Printing Office’’ in par. (1) on authority of section 1301(b) of Pub. L. 113–235, set out as a note preceding section 301 of Title 44, Public Printing and Documents. REVIEW FOR OFFICIAL PUBLICATION OF OPINIONS OF THE OFFICE OF LEGAL COUNSEL OF THE DEPARTMENT OF JUSTICE CONCERNING INTELLIGENCE ACTIVITIES Pub. L. 113–126, title III, § 322, July 7, 2014, 128 Stat. 1400, provided that: ‘‘(a) PROCESS FOR REVIEW FOR OFFICIAL PUBLICA- TION.—Not later than 180 days after the date of the en- actment of this Act [July 7, 2014], the Attorney General Page 196 TITLE 28—JUDICIARY AND JUDICIAL PROCEDURE § 522 1 So in original. Probably should be followed by ‘‘the’’. shall, in coordination with the Director of National In- telligence, establish a process for the regular review for official publication of significant opinions of the Office of Legal Counsel of the Department of Justice that have been provided to an element of the intelligence community. ‘‘(b) FACTORS.—The process of review of opinions es- tablished under subsection (a) shall include consider- ation of the following: ‘‘(1) The potential importance of an opinion to other agencies or officials in the Executive branch. ‘‘(2) The likelihood that similar questions addressed in an opinion may arise in the future. ‘‘(3) The historical importance of an opinion or the context in which it arose. ‘‘(4) The potential significance of an opinion to the overall jurisprudence of the Office of Legal Counsel. ‘‘(5) Such other factors as the Attorney General and the Director of National Intelligence consider appro- priate. ‘‘(c) PRESUMPTION.—The process of review established under subsection (a) shall apply a presumption that sig- nificant opinions of the Office of Legal Counsel should be published when practicable, consistent with national security and other confidentiality considerations. ‘‘(d) CONSTRUCTION.—Nothing in this section shall re- quire the official publication of any opinion of the Of- fice of Legal Counsel, including publication under any circumstance as follows: ‘‘(1) When publication would reveal classified or other sensitive information relating to national secu- rity. ‘‘(2) When publication could reasonably be antici- pated to interfere with Federal law enforcement ef- forts or is prohibited by law. ‘‘(3) When publication would conflict with pre- serving internal Executive branch deliberative proc- esses or protecting other information properly sub- ject to privilege. ‘‘(e) REQUIREMENT TO PROVIDE CLASSIFIED OPINIONS TO CONGRESS.— ‘‘(1) IN GENERAL.—Any opinion of the Office of Legal Counsel that would have been selected for publication under the process of review established under sub- section (a) but for the fact that publication would re- veal classified or other sensitive information relating to national security shall be provided or made avail- able to the appropriate committees of Congress. ‘‘(2) EXCEPTION FOR COVERT ACTION.—If the Presi- dent determines that it is essential to limit access to a covert action finding under section 503(c)(2) of the National Security Act of 1947 (50 U.S.C. 3093(c)(2)), the President may limit access to information con- cerning such finding that would otherwise be pro- vided or made available under this subsection to those members of Congress who have been granted ac- cess to such finding under such section 503(c)(2). ‘‘(f) JUDICIAL REVIEW.—The determination whether an opinion of the Office of Legal Counsel is appropriate for official publication under the process of review estab- lished under subsection (a) is discretionary and is not subject to judicial review.’’ [For definition of ‘‘intelligence community’’ as used in section 322 of Pub. L. 113–126, set out above, see sec- tion 2 of Pub. L. 113–126, set out as a note under section 3003 of Title 50, War and National Defense.] § 522. Report of business and statistics (a) The Attorney General, by April 1 of each year, shall report to Congress on the business of the Department of Justice for the last preceding fiscal year, and on any other matters pertaining to the Department that he considers proper, in- cluding— (1) a statement of the several appropriations which are placed under the control of the De- partment and the amount appropriated; (2) the statistics of crime under the laws of the United States; and (3) a statement of the number of causes in- volving the United States, civil and criminal, pending during the preceding year in each of the several courts of the United States. (b) With respect to any data, records, or other information acquired, collected, classified, pre- served, or published by the Attorney General for any statistical, research, or other aggregate re- porting purpose beginning not later than 1 year after the date of enactment of 1 21st Century De- partment of Justice Appropriations Authoriza- tion Act and continuing thereafter, and notwith- standing any other provision of law, the same criteria shall be used (and shall be required to be used, as applicable) to classify or categorize of- fenders and victims (in the criminal context), and to classify or categorize actors and acted upon (in the noncriminal context). (Added Pub. L. 89–554, § 4(c), Sept. 6, 1966, 80 Stat. 615; amended Pub. L. 94–273, § 19, Apr. 21, 1976, 90 Stat. 379; Pub. L. 107–273, div. A, title II, § 204(b), Nov. 2, 2002, 116 Stat. 1776.) HISTORICAL AND REVISION NOTES Derivation U.S. Code Revised Statutes and Statutes at Large ..................... 5 U.S.C. 333. R.S. § 384. The words ‘‘The Attorney General . . . shall report’’ are substituted for ‘‘It shall be the duty of the Attor- ney General to make . . . a report’’. The word ‘‘begin- ning’’ is substituted for ‘‘commencement’’. The words ‘‘pertaining to the Department that he considers prop- er’’ are substituted for ‘‘appertaining thereto that he may deem proper’’. The words ‘‘and a detailed statement of the amounts used for defraying the expenses of the United States courts in each judicial district’’ are omitted as obsolete in view of the creation of the Administrative Office of the United States Courts by the Act of Aug. 7, 1939, ch. 501, § 1, 53 Stat. 1223 (Chapter 41 of this title). In paragraph (3), the words ‘‘involving the United States’’ are inserted for clarity. The function of report- ing on all cases pending in the United States courts is now vested in the Administrative Office of the United States Courts, see 28 U.S.C. 604. Editorial Notes REFERENCES IN TEXT The date of enactment of 21st Century Department of Justice Appropriations Authorization Act, referred to in subsec. (b), is the date of enactment of Pub. L. 107–273, which was approved Nov. 2, 2002. AMENDMENTS 2002—Pub. L. 107–273 designated existing provisions as subsec. (a) and added subsec. (b). 1976—Pub. L. 94–273 substituted ‘‘by April 1 of each year’’ for ‘‘at the beginning of each regular session of Congress’’. Statutory Notes and Related Subsidiaries REPORT TO CONGRESS ON BANKING LAW OFFENSES Pub. L. 101–647, title XXV, § 2546, Nov. 29, 1990, 104 Stat. 4885, which requires the Attorney General to re- port to Congress quarterly, after Dec. 31, 1991, on the nature and number of proceedings in progress with re- spect to banking law offenses, was editorially reclassi- fied as section 41306 of Title 34, Crime Control and Law Enforcement.