T1a B46 Legal Research 3 Of 4 Fdr- Entire Contents- Court Docs- Press Reports- Laws- Motley Letter- 1st Pgs For Ref

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Monday, May 05, 2003 15:13:00 Central 00000#060000-0010 SCT 92 S.Ct. 2614 2037 1 0

PUBLIC LAW 107-306—NOV. 27, 2002

116 STAT. 2383

Public Law 107-306 107th Congress An Act To authorize appropriations for fiscal year 2003 for intelligence and intelligencerelated activities of the United States Government, the Community Management Account, and the Central Intelligence Agency Retirement and Disability System, and for other purposes.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, SECTION 1. SHORT TITLE; TABLE OF CONTENTS.

(a) SHORT TITLE.—This Act may be cited as the "Intelligence Authorization Act for Fiscal Year 2003". (b) TABLE OK CONTENTS.—The table of contents for this Act is as follows:

Nov. 27, 2002 [H.R. 4628J

Intelligence Authorization Act for Fiscal Year 2003.

Sec. I. Short title; table of contents. Sec. Sec. Sec. Sec. Sec.

101. 102. 103. 104. 105.

Sec. 106. Sec. 107. Sec. 108. Sec. 109.

TITLE I—INTELLIGENCE ACTIVITIES Authorization of appropriations. Classified schedule of authorizations. Personnel ceiling adjustments. Intelligence Community Management Account. Authorization of emergency supplemental appropriations for fiscal year 2002. Additional authorizations of appropriations for intelligence for the war on terrorism. Specific authorization of funds for intelligence or intelligence-related activities for which fiscal year 2003 appropriations exceed amounts authorized. Incorporation of reporting requirements. Preparation and submittal of reports, reviews, studies, and plans relating to intelligence activities of Department of Defense or Department of Energy.

TITLE II—CENTRAL INTELLIGENCE AGENCY RETIREMENT AND DISABILITY SYSTEM Sec. 201. Authorization of appropriations. TITLE III—GENERAL PROVISIONS Subtitle A—Recurring General Provisions Sec. 301. Increase in employee compensation and benefits authorized by law. Sec. 302. Restriction on conduct of intelligence activities. Sec. 303. Sense of Congress on intelligence community contracting. Subtitle B—Intelligence Sec. 311. Specificity of National Foreign Intelligence Program budget amounts for counterterrorism, counterproliferation, counternarcotics, and counterintelligence. Sec. 312. Prohibition on compliance with requests for information submitted by foreign governments. Sec. 313. National Virtual Translation Center. Subtitle C—Personnel Sec 321. Standards and qualifications for the performance of intelligence activities.

92 S.Ct. 2614 33 L.Ed.2d 583 (Cite as: 408 U.S. 606, 92 S.Ct. 2614) Supreme Court of the United States Mike GRAVEL, United States Senator, v. UNITED STATES. UNITED STATES, Petitioner, v. Mike GRAVEL, United States Senator. Nos. 71-1017,71-1026. Argued April 19, 20, 1972. Decided June 29, 1972. Motions to quash subpoenas served on publisher and members of senator's staff by grand jury investigating possible crimes relating to release and dissemination of Pentagon Papers. The United States District Court for the District of Massachusetts, 332 F.Supp. 930, entered protective order, and senator, having intervened in proceeding, appealed and Government cross-appealed. The United States Court of Appeals for the First Circuit, 455 F.2d 753, modified the protective order and, as modified, affirmed. The United States and the senator brought certiorari. The Supreme Court, Mr. Justice White, held that aide to United States Senator had no nonconstitutional testimonial privilege from being questioned by federal grand jury in connection with its inquiry into whether private publication of classified government documents violated federal law.

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attendance of the session of their respective houses, and in going to and returning from the same, exempts members from arrest in civil cases only. U.S.C.A.Const. art. 1. § 6. cl. 1. J21 United 393kl2 Most Cited Cases The constitutional freedom from arrest does not confer immunity on a member of Congress from service of process as a defendant in civil matters or as witness in criminal case. U.S.C.A.Const. art. 1, § 6, cl. 1. J31 United States C=>12 393kl2 Most Cited Cases The constitutional freedom from arrest does not exempt members of Congress from the operation of the ordinary criminal laws, even though the imprisonment may prevent or interfere with the performance of their duties as members. U.S.C.A.Const. art. 1. § 6, cl. 1. Ml United States 393kl2 Most Cited Cases Implicit in the narrow scope of the privilege of freedom of arrest is the judgment that members of Congress ought not to stand above the law they create but ought generally to be bound by it as are ordinary persons. U.S.C.A.Const. art. 1, § 6, cl. 1.

Judgment of the Court of Appeals vacated and cases remanded.

151 United States €=12 393k 12 Most Cited Cases

Mr. Justice Douglas filed a dissenting opinion.

The "Speech or Debate Clause" was designed to assure the Congress wide freedom of speech, debate and deliberation without intimidation or threats from the Executive Branch and it protects members of Congress against prosecutions that directly impinge upon or threaten the legislative process. U.S.C.A.Const. art. 1, § 6, cl. 1.

Mr. Justice Brennan filed a dissenting opinion, in which Mr. Justice Douglas and Mr. Justice Marshall joined. Mr. Justice Stewart filed an opinion dissenting in part.

M United States €=>12 393kl2 Most Cited Cases West Headnotes HI United States €==>12 393kl2 Most Cited Cases Constitutional clause that members of Congress shall in all cases, except treason, felony and breach of the peace, be privileged from arrest during their

United States Senator could not be made to answer-either in terms of questions before grand juries or in terms of defending himself from prosecution— for reading to a subcommittee of the Congress certain classified documents, which he then placed in the public record. U.S.C.A.Const. art. 1, § 6, cl. 1.

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LEXSEE 89 fid 897 WASHINGTON LEGAL FOUNDATION, APPELLANT v. UNITED STATES SENTENCING COMMISSION, ET AL., APPELLEES No. 94-5334 UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT 319 U.S. App. D.C. 256; 89 F.3d 897; 1996 U.S. App. LEXIS 18796; 24 Media L. Rep. 2417 October 5,1995, Argued July 30,1996, Decided

PRIOR HISTORY: [**1] Appeal from the United States District Court for the District of Columbia. (No. 93cv00986). DISPOSITION: Affirmed. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff public citizen firm sought review of a decision by the United States District Court for the District of Columbia, which granted summary judgment to defendant, U.S. Sentencing Commission(Commission), after finding that the documents compiled or created by the Commission's advisory group (group) were not "public records" to which the public citizen firm had a conditional right of access under the common law. OVERVIEW: The group was created by the Commission for the purpose of developing sentencing guidelines for environmental offenses. The public citizen firm attended the group's meetings until the group decided to hold them in private. The public citizen firm then filed suit under the Federal Advisory Committee Act (Act), 5 U.S.C.S. app. 2, § § 1-15, to gain access to the internal documents and memoranda which were relied upon in the formulation of the guidelines. The district court granted summary judgment in favor of the Commission because the group was not an agency subject to the Act. The public citizen firm then sought access under common law right to access. The district court again granted summary judgment in favor of the

Commission, finding that the records requested were not public in nature. On appeal, the summary judgment was affirmed. The court found that the categories of documents being requested were not created and kept for the to memorialize an official action, decision, or statement, and therefore were not public record. OUTCOME: The court affirmed the district court's decision to grant summary judgment for the Commission. The documents at issue were not created and kept for the purpose of memorializing or recording an official action, decision, statement, or other matter of legal significance, and therefore were not considered by the court to be public record. LexisNexis(TM) HEADNOTES - Core Concepts Civil Procedure > Remedies > Extraordinary Writs Governments > Federal Government > Claims By & Against [HN1] The mandamus statute provides that the district courts shall have original jurisdiction of any action in the nature of mandamus to compel an officer or employee of the United States to perform a duty owed to the plaintiff. 28 U.S.C.S. § 1361. The generally accepted rule is that § 1361 does not constitute a waiver of sovereign immunity by the United States. If a plaintiff seeks a writ of mandamus to force a public official to perform a duty imposed upon him in his official capacity, no separate waiver of sovereign immunity is needed. There may be suits for specific relief against officers of the sovereign which are not suits against the sovereign. Where the officer's powers are limited by statute, his actions beyond

3 of 100 DOCUMENTS CONNAUGHT LABORATORIES, INC., Plaintiff and Counterdefendant, v. SMITHKLINE BEECHAM P.L.C. and SMITHKLINE BEECHAM CORP., Defendants and Counterplaintiffs. Misc. Action No. 98-24 JJF UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE 7 F. Supp. 2d 477; 1998 U.S. Dist LEXIS 8586; 47 U.S.P.Q.2D (SNA) 1699 May 29,1998, Decided May 29,1998, Filed

DISPOSITION: [**1] SmithKline's Motion To Compel The United States Food And Drug Administration To Comply With Subpoenas (D.I. 7) granted and Motion Of The United States Food And Drug Administration To Quash Subpoenas (D.I. 19) denied.

government. Sovereign immunity was inapplicable to shield a federal employee from complying with a federal subpoena. The court did, however, allow the corporation and the FDA the opportunity to mutually agree to modifications of the subpoenas in order to accommodate the FDA's concerns about undue burden.

CASE SUMMARY

OUTCOME: The court granted the corporation's motion to compel the FDA's compliance with the subpoenas. The court denied the FDA's motion to quash the subpoenas.

PROCEDURAL POSTURE: Defendant corporation sought compliance of a subpoena issued on a non-party, the United States Food and Drug Administration (FDA). The corporation was defending a patent infringement action filed by plaintiff patent holder. The FDA sought to quash the subpoenas. The corporation counterclaimed against the patent holder and alleged that the patent was not valid or enforceable. OVERVIEW: A patent holder had a patent relating to the active component of a pertussis vaccine, pertactin. The patent holder alleged that a corporation had infringed upon the patent. The corporation contended that the patent was not infringed, that the patent was unenforceable, and that the patent was invalid for failing to satisfy the provisions of 35 U.S. C.S. § § 102, 103, 112. The patent holder filed a subpoena on a non-party, the FDA. The corporation wanted the FDA's documents related to the FDA's understanding, examination, and use of pertactin. The FDA refused to comply and moved to quash the subpoenas. The court granted the motion to compel the compliance with the subpoenas and denied the motion to quash. The court found that the doctrine of sovereign immunity did not bar a federal court from enforcing a federal subpoena against the federal

LexisNexis(TM) HEADNOTES - Core Concepts Civil Procedure > Trials > Subpoenas Administrative Law > Sovereign Immunity Governments > Federal Government > Employees & Officials [HN1] The Administrative Procedure Act contains an express waiver of sovereign immunity. However, while a waiver of sovereign immunity is required to compel federal officials from responding to state court subpoenas, no such waiver is needed for a federal court to exercise its subpoena power against federal officials. Civil Procedure > Trials > Subpoenas Governments > Federal Government > Employees & Officials [HN2] In examining the issue of whether a litigant may compel discovery from a non-party federal government agency, courts distinguish between cases in which the underlying action arises in federal court and cases in which the underlying action arises in state court. When an action arises in state court, the federal government is

r

917F.2d581 Nuclear Reg. Rep. P 20,519, 18 Media L. Rep. 1294 (Cite as: 917 F.2d 581, 286 U.S.App.D.C. 359) United States Court of Appeals, District of Columbia Circuit. ENERGY RESEARCH FOUNDATION, et al, Appellants, v. DEFENSE NUCLEAR FACILITIES SAFETY BOARD, Appellee. No. 90-5096.

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defense and to public health and safety; statute provides for Board to make its recommendations public after receipt by the Secretary of Energy, and Board argued it could be considered entity which advised the President, rather than "agency." 5 U.S.C.A. § § 552. 552b; Atomic Energy Act of 1954, § 315(a), as amended, 42 U.S.C.A. § 2286d(a). *581 **359 Appeal from the United States District Court for the District of Columbia (Civil Action No. 90-0530).

Argued Sept. 14, 1990. Decided Oct. 26, 1990.

Eric R. Glitzenstein, with whom Dean Tousley, Washington, D.C., and Robert Guild, Jacksonville, Fla., were on the brief, for appellants.

Two environmental organizations and individual brought action seeking declaratory and injunctive relief requiring Defense Nuclear Facilities Safety Board to comply with Government in the Sunshine Act and the Freedom of Information Act (FOIA). On Board's motion for summary judgment, the United States District Court for the District of Columbia, 734 F.Supp. 27, John Garrett Perm, J., ruled that neither Sunshine Act nor FOIA applied to the Board because it was not an "agency." On appeal, the Court of Appeals, Randolph, Circuit Judge, held that Board would be considered "agency" within meaning of the Sunshine Act and the FOIA.

Margaret S. Hewing, Arty., Dept. of Justice, with whom Stuart M. Person, Asst. Arty. Gen., Jay B. Stephens, U.S. Arty., and Douglas N. Letter, Arty., Dept. of Justice, and Richard Azzaro, Atty., Defense Nuclear Facilities Safety Board, Washington, D.C., were on the brief, for appellee. Before BUCKLEY, D.H. RANDOLPH, Circuit Judges.

GINSBURG,

and

Opinion for the court filed by Circuit Judge RANDOLPH.

Reversed and remanded. West Headnotes Administrative Law and Procedure ' 15Ak5 Most Cited Cases Administrative Law and Procedure ' 15Akl24 Most Cited Cases Records 326k51 Most Cited Cases United States 393k33 Most Cited Cases Defense Nuclear Facilities Safety Board would be considered "agency" within meaning of the Freedom of Information Act (FOIA) and the Government in the Sunshine Act, and therefore required to make its records available to public and to open its meetings, even though Board dealt with highly sensitive information concerning matters critical to nation's

RANDOLPH, Circuit Judge: The Defense Nuclear Facilities Safety Board does not consider itself an "agency" subject to the Freedom of Information Act, 5 U.S.C. § 552 (FOIA), or the Government in the Sunshine Act, 5 U.S.C. § 552b. The Board therefore does not make its records available to the public under FOIA and it does not open its meetings pursuant to the Sunshine Act. Appellants are two organizations and an individual who wish to attend the Board's meetings and review its records. They sued for a declaratory judgment and an injunction requiring the Board to comply with these statutes. The district court ruled on summary judgment that neither FOIA nor the Sunshine Act applied to the Board because it is not an "agency." We reverse. The Department of Energy operates plants and other facilities that produce *582 **360 atomic weapons and conduct research and development in the military application of atomic energy. 42 U.S.C. §

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125 F.3d 877 (Cite as: 125 F.3d 877, 326 U.S.App.D.C. 350)

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governmental in nature to count for purposes of determining whether entity is agency under the Privacy Act. 5 U.S.C.A. § 551(1). *877 **350 Appeal from the United States District Court for the District of Columbia (No. 94cv00628).

United States Court of Appeals, District of Columbia Circuit. Margaret DONG, Appellee, v. SMITHSONIAN INSTITUTION, Hirshhorn Museum & Sculpture Garden, Appellant.

Nancy R. Page, Assistant U.S. Attorney, Washington, DC, argued the cause for appellant. With her on the brief was Eric H. Holder, Jr., U.S. Attorney at the time the brief was filed, and R. Craig Lawrence, Assistant U.S. Attorney.

No. 96-5303. Argued Sept. 5, 1997. Decided Oct. 17,1997. Rehearing Denied Dec. 3, 1997.

Joseph Kaplan. Washington, DC, argued the cause for appellee. With him on the brief was John P. Mahoney, Washington, DC.

Employee sued the Smithsonian Institution for allegedly violating the Privacy Act in investigating violation of work rule. The United States District Court for the District of Columbia, Gladys Kessler, J., 878 F.Supp. 244, denied Smithsonian's motion to dismiss. Smithsonian appealed. The Court of Appeals, Stephen F. Williams, Circuit Judge, held that the Smithsonian Institution was not an agency subject to the Privacy Act. Reversed.

Before WILLIAMS, GINSBURG HENDERSON. Circuit Judges.

and

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS. STEPHEN F. WILLIAMS, Circuit Judge:

West Headnotes JH Records 326k51 Most Cited Cases The Smithsonian Institution was not an agency subject to the Privacy Act; Smithsonian was not government controlled corporation or establishment of Executive Branch, and although Smithsonian received substantial federal funds, any public authority it exercised, including limited police powers, was entirely ancillary to its cultural and educational mission. 5 U.S.C.A. § § 552a, 552(f).

Margaret Dong brought this action against her employer, the Smithsonian Institution, for damages under the Privacy Act, 5 U.S.C. § 552a. The district court found the Smithsonian liable and awarded plaintiff $2,500 in compensatory damages. Dong v. Smithsonian Institution, 943 F.Supp. 69 (D.D.C.1996). The Smithsonian appeals from the district court's determination that it is an "agency" subject to the Privacy Act. Dong v. Smithsonian Institution, 878 F.Supp. 244 (D.D.C.1995). Alternatively, it argues that even if it is covered by the Act, its conduct toward plaintiff was not "intentional or willful" as required for imposition of damages under the Act. 5 U.S.C. § 552a(g)(4). We reverse.

12J Statutes €==>199 361kl99 Most Cited Cases The word "includes" normally does not introduce exhaustive list but merely sets out examples of some general principle, for purposes of statutory construction. 13J Records 326k51 Most Cited Cases Authority

exercised

by

an

entity

must

be

Plaintiff began working at the Hirshhorn Museum and Sculpture Garden in 1985. She currently holds the position of Museum Registration Specialist, which means that her duties include serving as a courier for works of art the Hirshhorn lends to other museums. Museum procedures require employees to obtain permission from the director of the Hirshhorn before acting as a courier. In September 1993, without seeking permission, plaintiff took annual leave and accompanied the painting Circus Horse by

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86F.3dl208 35 Fed.R.Serv.3d 291 (Cite as: 86 F.3d 1208, 318 U.S.App.D.C. 214) United States Court of Appeals, District of Columbia Circuit. HOUSTON BUSINESS JOURNAL, INC. and Dee Gill, Individually, Appellants, v. OFFICE OF the COMPTROLLER OF the CURRENCY, UNITED STATES DEPARTMENT OF the TREASURY, Appellee.

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federal court's jurisdiction upon removal is derivative of state court's, and federal government is shielded from subpoena requests in state court by sovereign immunity. J3J Witnesses 410kl6 Most Cited Cases Federal court cannot enforce subpoena against federal governmental agency employee when agency has validly enacted regulation that withdraws from employees power to produce documents.

No. 95-5273. Argued April 15, 1996. Decided June 21, 1996. Journal was sued for libel in state court, and sought to obtain from comptroller of currency documents relating to examination of banks to use in its defense. Comptroller released certain documents, but kept others pursuant to bank examination privilege. Journal obtained order to compel production based on state court subpoena. Comptroller did not comply with order, and removed action to federal court. The United States District Court for the Southern District of Texas granted motion to quash subpoena, which the Fifth Circuit affirmed. Journal then came to the United States District Court for the District of Columbia, Stanley S. Harris, J., served federal subpoena on comptroller which the comptroller ignored, and moved to compel production of documents. The district court denied journal's motion. Journal appealed. The Court of Appeals, Rogers, Circuit Judge, held that district court lacked jurisdiction on removal to issue subpoena in connection with state court litigation. Affirmed. West Headnotes HI Federal Courts 170Bk542 Most Cited Cases Court of Appeals may raise questions of federal court's subject matter jurisdiction sua sponte. 12J Removal of Cases C^lll 334kl 1 1 Most Cited Cases Federal court in removed action is barred from enforcing subpoena against federal government, since

1£ Witnesses 4 10k 16 Most Cited Cases State court litigant seeking documents from federal agency must request documents pursuant to agency's regulations, and if agency refuses to produce requested documents, sole remedy for state court litigant is to file collateral action in federal court under Administrative Procedure Act. 5 U.S.C.A. § 704. 15J Witnesses €^16 410kl6 Most Cited Cases Federal court litigant can seek to obtain production of documents from federal agency by means of federal subpoena, since federal government has waived its sovereign immunity in federal court, and neither Federal Housekeeping Statute nor Touhy decision authorizes federal agency to withhold documents from federal court. 5 U.S.C.A. § § 301, 702. 16J United States 393k40 Most Cited Cases To extent that regulation controlling ability of employees of comptroller of currency to give information is contrary to established rules for federal litigant's ability to obtain production of documents from federal agency under subpoena, it conflicts with federal civil procedure rule governing subpoenas and exceeds comptroller's authority under housekeeping statute. 5 U.S.C.A. § 301; Fed.Rules Civ.Proc.Rule 45, 28 U.S.C.A.; 12 C.F.R. § 4.19(1995). 1?1 Removal of Cases 334kl 1 1 Most Cited Cases When underlying litigation is in state court, federal court on removal lacks subject matter jurisdiction to issue federal subpoena to allow litigant to avoid

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735 F.2d 1261 (Cite as: 735 F.2d 1261)

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United States Court of Appeals, Eleventh Circuit. In re PETITION TO INSPECT AND COPY GRAND JURY MATERIALS. Appeal of Honorable Alcee L. HASTINGS, Appellant. No. 84-5003. June 20,1984. As Amended on Denial of Rehearing Aug. 3,1984. Judicial investigating committee filed petition seeking access to records of grand jury that had indicted district judge. The United States District Court for the Southern District of Florida, Eugene A. Gordon, Senior District Judge, sitting by designation, 576 F.Supp. 1275. granted the petition, and district judge appealed. The Court of Appeals, Levin H. Campbell, Chief Judge, sitting by designation, held that: (1) committee had standing to seek access to grand jury materials; (2) Federal Rule of Criminal Procedure providing for nondisclosure of grand jury records did not preclude District Court, under its inherent power as supervisor of grand jury, from permitting release of such records at request of committee; and (3) District Court did not abuse its discretion in granting request, as committee's need for the records outweighed the public interest in secrecy. Affirmed. West Headnotes [I] Grand Jury €==>4l.5Q(3) 193k4T.50(31 Most Cited Cases (Formerly 193k41) Statutory duty on part of judicial investigating committee to conduct an investigation of complaint of judicial misconduct provided it with the necessary congressional grant of standing to petition for records of grand jury proceeding which had returned criminal indictment against district judge, leading to his trial and acquittal. 28 U.S.C.A. S 372(c)(5l [21 Grand Jury €=>4l.50(3) 193k41.50(3) Most Cited Cases (Formerly 193k41) Statute providing that Attorney General shall conduct litigation in which United States, an agency, or

officer thereof is a party did not bar judicial investigating committee from acting in its own behalf in petitioning for access to records of grand jury proceeding which had returned criminal indictment against district judge, leading to his trial and acquittal. 28 U.S.C.A. § § 372(c¥4). 516. [SJJudges €=>39 227k39 Most Cited Cases Court of Appeals' panel members were not required to disqualify themselves, under statute providing for disqualification where justice or judge has substantial interest in case, from appeal of district court order allowing judicial investigating committee to inspect records of federal grand jury proceeding which had returned criminal indictment against district judge, leading to his trial and acquittal, notwithstanding that case may have involved important Article UJ concerns. 28 U.S.C.A. S 455: U.S.C.A. Const. Art. 3. § 1 et seq. [41Judges 227k39 Most Cited Cases Under the rule of necessity an interested judge may sit if alternative would be to deny litigants a forum. [5J Grand Jury €=>41.50(1) 193k41 .50m Most Cited Cases (Formerly 193k41) Federal Rule of Criminal Procedure providing for nondisclosure of grand jury records, except under listed exceptions, does not preclude district court, in its inherent power as supervisor of grand jury, from permitting release of such records on request of committee conducting judicial investigation under Judicial Councils Reform and Judicial Conduct and Disability Act. 28 U.S.C.A. S 372(c). (cX5): Fed.Rules Cr.Proc.Rule 6(e1. 18 U.S.C.A. [6J Grand Jury €=>4i.so(10) 193k41.50(10) Most Cited Cases (Formerly 193k41) In passing on propriety of an exercise of inherent power, as supervisor of grand jury, to permit release of grand jury records, courts may take into account a specific statutory policy favoring disclosure in particular circumstances. Fed.Rules Cr.Proc.Rule 6(e1. 18 U.S.C.A. [71 Grand Jury €==>41.50(3) 193k41.50(3) Most Cited Cases

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LEXSTAT 49 USC 40101 UNITED STATES CODE SERVICE Copyright © 2003 Matthew Bender & Company, Inc., one of the LEXIS Publishing (TM) companies All rights reserved *** CURRENT THROUGH P.L. 108-18, APPROVED 4/23/03 *** TITLE 49. TRANSPORTATION SUBTITLE VII. AVIATION PROGRAMS PART A. AIR COMMERCE AND SAFETY SUBPART I. GENERAL CHAPTER 401. GENERAL PROVISIONS GO TO CODE ARCHIVE DIRECTORY FOR THIS JURISDICTION 49 USCS § 40101 (2003) § 40101. Policy (a) Economic regulation. In carrying out subpart II of this part [49 USCS § § 41101 et seq.] and those provisions of subpart IV [49 USCS § § 46101 et seq.] applicable in carrying out subpart II [49 USCS § § 41101 et seq.], the Secretary of Transportation shall consider the following matters, among others, as being in the public interest and consistent with public convenience and necessity: (1) assigning and maintaining safety as the highest priority in air commerce. (2) before authorizing new air transportation services, evaluating the safety implications of those services. (3) preventing deterioration in established safety procedures, recognizing the clear intent, encouragement, and dedication of Congress to further the highest degree of safety in air transportation and air commerce, and to maintain the safety vigilance that has evolved in air transportation and air commerce and has come to be expected by the traveling and shipping public. (4) the availability of a variety of adequate, economic, efficient, and low-priced services without unreasonable discrimination or unfair or deceptive practices. (5) coordinating transportation by, and improving relations among, air carriers, and encouraging fair wages and working conditions. (6) placing maximum reliance on competitive market forces and on actual and potential competition(A) to provide the needed air transportation system; and (B) to encourage efficient and well-managed air carriers to earn adequate profits and attract capital, considering any material differences between interstate air transportation and foreign air transportation. (7) developing and maintaining a sound regulatory system that is responsive to the needs of the public and in which decisions are reached promptly to make it easier to adapt the air transportation system to the present and future needs of(A) the commerce of the United States; (B) the United States Postal Service; and (C) the national defense. (8) encouraging air transportation at major urban areas through secondary or satellite airports if consistent with regional airport plans of regional and local authorities, and if endorsed by appropriate State authorities—

6 of 386 DOCUMENTS AMERICAN MANAGEMENT SYSTEMS, INC., Plaintiff-Respondent, v. UNITED STATES, DefendantPetitioner. MISCELLANEOUS DOCKET NO. 726 UNITED STATES COURT OF APPEALS FOR THE FEDERAL CIRCUIT 2003 U.S. App. LEXIS 4989 February 26,2003, Decided February 26, 2003, Filed

NOTICE: [*1] THIS DECISION WAS ISSUED AS UNPUBLISHED OR NONPRECEDENTIAL AND MAY NOT BE CITED AS PRECEDENT. PLEASE REFER TO THE RULES OF THE FEDERAL CIRCUIT COURT OF APPEALS FOR RULES GOVERNING CITATION TO UNPUBLISHED OR NONPRECEDENTIAL OPINIONS OR ORDERS. JUDGES: Before MICHEL, RADER, and SCHALL, Circuit Judges. OPINIONBY: Paul R. Michel OPINION: ON PETITION FOR PERMISSION TO APPEAL MICHEL, Circuit Judge. ORDER The United States petitions for permission to appeal the order certified by the Court of Federal Claims as one involving a controlling question of law with respect to which there is a substantial ground for difference of opinion and where an immediate appeal may materially advance the ultimate termination of the litigation. American Management Systems, Inc. (AMS) opposes. AMS filed suit against the United States challenging the Federal Retirement Thrift Investment Board's termination of the contract between the Thrift Board and AMS for default. The contract related to AMS's development of an automated record keeping system for the Thrift Saving Plan (TSP). The United States moved to dismiss for lack of subject matter jurisdiction based on the nonappropriated funds doctrine, 28 U.S. C. § 2517(a) [*2] , arguing that the TSP contract was not financed from general federal revenues, but rather funded out of private monies placed in the Thrift Savings Fund. AMS opposed the motion, advancing several independent reasons why the nonappropriated funds doctrine did not apply. The Court of Federal Claims denied the motion to dismiss on one ground and did not address AMS's remaining arguments. The trial court subsequently certified its order for immediate appeal pursuant to 28 U.S.C. § 1292(d)(2). This court has complete discretion to grant or deny a petition for permission to appeal. In re Convertible Rowing Exerciser Patent Litigation, 903 F.2d 822 (Fed. Cir. 1990). In this case, we are not convinced that immediate interlocutory review of the trial court's order is warranted. We are particularly persuaded by AMS's argument that immediate interlocutory review may not advance the ultimate termination of the litigation because our decision on appeal, either affirming or reversing, would not decide the case. If we affirmed, the case would continue. If we reversed, the trial court would still be required to consider AMS's remaining arguments regarding [*3] jurisdiction. Accordingly, IT IS ORDERED THAT: The United States' petition for permission to appeal is denied.

4 of 407 DOCUMENTS FEDERAL ELECTION COMMISSION, PETITIONER v. NRA POLITICAL VICTORY FUND ET AL. No. 93-1151 SUPREME COURT OF THE UNITED STATES 513 U.S. 88; 115S. Ct. 537; 130L. Ed. 2d439; 1994 U.S. LEXIS 8790; 63 U.S.L.W. 4027; 94 Cal Daily Op. Service 9287; 94 Daily JournalDAR17190; 8 Flo. L. Weekly Fed. S 489 October 11,1994, Argued December 6,1994, Decided

PRIOR HISTORY: ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT. DISPOSITION: Petition for certiorari dismissed for want of jurisdiction. Reported below: 6 F. 3d 821. CASE SUMMARY PROCEDURAL POSTURE: Petitioner, Federal Election Commission, filed a petition for certiorari seeking review of a judgment entered in the United States Court of Appeals for the District of Columbia Circuit, which held that the congressionally mandated composition of petitioner violated the separation of powers principle embodied in the United States Constitution. OVERVIEW: After judgment was entered in the lower court against petitioner, Federal Election Commission, holding that the congressionally mandated composition of petitioner violated the separation of powers principle embodied in the United States Constitution, petitioner in its own name requested a writ of certiorari. Petitioner did not seek or obtain the authorization of the United States Solicitor General before filing its petition. The court dismissed the petition, holding that petitioner could not independently file a petition for certiorari in the United States Supreme Court under 2 U.S.C.S. § 437d(a)(6). The court further held that the Solicitor General's authorization, which was filed after the 90-day statutory period for filing certiorari petitions expired, did not relate back to the date of petitioner's unauthorized filing so as to make it timely. OUTCOME: The court dismissed the petition for certiorari filed by petitioner, Federal Election Commission, on grounds that petitioner had no authority to file a petition for certiorari. LexisNexis(TM) HEADNOTES - Core Concepts Civil Procedure > Appeals > U.S. Supreme Court Review > Federal Court Decisions [HN1] A petition for certiorari in a civil case must be filed within 90 days of the entry of the judgment below. 28 U.S.C.S. § 2101(c). This 90day limit is mandatory and jurisdictional. Governments > Federal Government > Claims By & Against [HN2] Under 28 U.S.C.S. § § 516, 519, the conduct of litigation on behalf of the United States and its agencies is subject to control of the United States Attorney General except as otherwise authorized by law. Governments > Federal Government > Claims By & Against [HNS] See 28 U.S.C.S. § 518(&). Governments > Federal Government > Claims By & Against [HN4] See 28 C.F.R. § 0.20 (1994). Governments > Federal Government > Claims By & Against [HNS] If a case is one in which the United States is interested under 28 U.S.C.S. § 518(a), it must be conducted and argued in the United States Supreme Court by the United States Solicitor General or his designee. Governments > Federal Government > Claims By & Against [HN6] United States Congress may exempt litigation from the otherwise blanket coverage of 28 U.S.C.S. § 518(a) which requires the United States Attorney General and the United States Solicitor General to conduct and argue suits in the United States Supreme Court in cases in which the United States is interested. Governments > Federal Government > Claims By & Against [HN7] 2 U.S.C.S § 437d(a.)(6) gives the Federal Election Commission power to initiate, defend, or appeal any civil action to enforce the provisions of the Federal Election Commission Act and 26 U.S. C.S. chs. 95, 96. 2 U.S.C.S § 43 7d(a)(6) clearly authorizes the Federal Election Commission to appeal, but it omits any mention of authority to file a petition for a writ of certiorari or otherwise conduct litigation before the United States Supreme Court. Business & Corporate Entities > Agency > Ratification > Ratification Conduct [HNS] If an act to be effective in creating a right against another or to deprive him of a right must be performed before a specific time, an

6 of 9 DOCUMENTS DAVID M. WALKER, Comptroller General of the United States,) Plaintiff, v. RICHARD B. CHENEY, Vice President of the United States and Chair, National Energy Policy Development Group, Defendant. Civil Action No. 02-0340 (JOB) UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA 230 F. Supp. 2d 51; 2002 U.S. Dist. LEXIS 23385 December 9, 2002, Decided December 9, 2002, Filed

SUBSEQUENT HISTORY: [**1] As Corrected December 18, 2002. DISPOSITION: Motion to dismiss granted; action dismissed. CASE SUMMARY PROCEDURAL POSTURE: Plaintiff Comptroller General of the United States filed an action against defendant Vice President of the United States and Chair of the National Energy Policy Development Group (NEPDG), arguing that the Comptroller's authority under 31 U.S.C.S. § § 712, 717, 716, authorized a production of documents. The Comptroller moved for summary judgment. The Vice President moved to dismiss, arguing a lack of U.S. Const, art. Ill standing. OVERVIEW: The Comptroller's interest was solely institutional, relating to his duties in his official capacity. Although the Vice President's refusal to disclose the documents may have frustrated the Comptroller's efforts to fulfill his statutory role, the Comptroller had no personal stake in the dispute. The complaint stated the documents were sought in order to aid Congress. The possible injury to Congress was too vague and amorphous to confer art. Ill standing. Congress had not endorsed the suit and had other options for obtaining the documents. Although a failure to obtain the documents could result in some generalized harm to legislative power, that injury did not pertain to a highly specific constitutional mandate and did not threaten Congress's composition. The authorization of 31 U.S.C.S. § 716 did not compel the conclusion that Congress needed the court to resolve whether it had the power to investigate the process by which the President of the United States sought opinions and formulated recommendations or the constitutional authority to bring enforcement actions in aid of investigations. There was no compelling showing that the justiciability of the claim was well established. OUTCOME: The Vice President's motion to dismiss was granted. The action was dismissed. LexisNexis(TM) HEADNOTES - Core Concepts Public Contracts Law > Dispute Resolution > U.S. Comptroller General & General Accounting Of/Ice Governments > Federal Government > Employees & Officials [HN1] The General Accounting Office an instrumentality of the United States Government independent of the executive departments. 31 U.S.C.S. § 702(&). Governments > Federal Government > Employees & Officials [HN2] The Comptroller General of the United States is subservient to Congress. Governments > Federal Government > Employees & Officials [HN3] Under statute, the Comptroller General of the United States is granted broad authority to carry out investigations and evaluations for the benefit of Congress. 31 U.S.C.S. § 712 requires the Comptroller General to (1) investigate all matters related to the receipt, disbursement, and use of public money; (2) estimate the cost to the United States Government of complying with each restriction on expenditures of a specific appropriation in a general appropriation law and report each estimate to Congress with recommendations the Comptroller General considers desirable; (3) analyze expenditures of each executive agency the Comptroller General believes will help Congress decide whether public money has been used and expended economically and efficiently; (4) make an investigation and report ordered by either House of Congress or a committee of Congress having jurisdiction over revenue, appropriations, or expenditures; and (5) give a committee of Congress having jurisdiction over revenue, appropriations, or expenditures the help and information the committee requests. Governments > Federal Government > Employees & Officials [HN4] 31 U.S.C.S. § 777(b) requires the Comptroller General of the United States to evaluate the results of a program or activity the government carries out under existing law (1) on the initiative of the Comptroller General; (2) when either House of Congress orders an evaluation; or (3) when a committee of Congress with jurisdiction over the program or activity requests the evaluation. Governments > Federal Government > Employees & Officials [HNS] The Comptroller General of the United States is able to enforce his investigatory powers by bringing a civil action in the United States District Court for the District of Columbia to require the head of an agency to produce a record. 31 U.S.C.S. § 716(b)(2). Prior to instituting such an action, the Comptroller General must follow a specific set of procedures. First, he must make a formal written request to the head of the relevant agency stating the authority for inspecting the records and the reason for the inspection. 31 U.S.C.S. § 776"(b)(l). If he is not given an opportunity to inspect the records within 20 days, he may file a report with the President, the Director of the Office of Management

LEXSEE 485 U.S. 693,AT 705 UNITED STATES v. PROVIDENCE JOURNAL CO. ET AL. No. 87-65 SUPREME COURT OF THE UNITED STATES 485 U.S. 693; 108 S. Ct. 1502; 99 L. Ed. 2d 785; 1988 U.S. LEXIS 2034; 56 U.S.L. W. 4366; 15 Media L. Rep. 1241 January 20,1988, Argued May 2,1988, Decided

PRIOR HISTORY: CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT. DISPOSITION: 820 F.2d 1342 and 1354, certiorari dismissed for want of jurisdiction. CASE SUMMARY PROCEDURAL POSTURE: An appointed special prosecutor petitioned for certiorari seeking reinstatement of a judgment of contempt against respondent newspaper and its executive editor for violating a temporary restraining order against publication, which the United States Court or Appeals for the First Circuit had found invalid. OVERVIEW: In a suit against respondent journal a party sought to enjoin the dissemination of information compiled from an illegal electronic surveillance. The court issued a temporary restraining order (TRO), but respondent journal published the information anyway. A motion to have respondent journal held in contempt was made and the court appointed a special prosecutor to handle the matter as the U.S. Attorney represented the federal defendants in the underlying civil matter. The district court found respondent journal in criminal contempt. Respondent appealed and the court reversed finding that the TRO was invalid under U.S. Const, amend. I. The special prosecutor sought review despite having been told by the U.S. Attorney's office that they did not wish to proceed in the matter. The court found that the special prosecutor lacked the authority to represent the United States before the court. Because he was not a party entitled to petition for certiorari under 28 U.S.C.S. § 1254(\), the court dismissed the writ of certiorari previously granted for want of jurisdiction. OUTCOME: Because the special prosecutor was not a party entitled to petition for certiorari the court dismissed the writ of certiorari previously granted seeking resinstatement of a temporary restraining order prohibiting publication against respondent newpaper and executive editor for want of jurisdiction. LexisNexis(TM) HEADNOTES - Core Concepts Civil Procedure > Counsel [HN1] The special prosecutor lacks the authority to represent the United States before the United States Supreme Court. Civil Procedure > Remedies > Extraordinary Writs Civil Procedure > Counsel [HN2] A federal statute deprives the special prosecutor of the authority to pursue the litigation in The United States Supreme Court on behalf of the United States, when the Solicitor General declines to petition for certiorari or to authorize the filing of such a petition. Civil Procedure > Counsel [HNS] See 28 U.S.C.S. § 518(a). Constitutional Law > Separation of Powers [HN4] Even when exercising distinct and jealously separated powers, the three branches are but co-ordinate parts of one government. Civil Procedure > Remedies > Extraordinary Writs [HNS] When a district court's judgment of contempt has been reversed on appeal, a special prosecutor may decide to seek a writ of certiorari on the basis of his professional judgment that the court of appeals' decision merits review. Civtt Procedure > Entry of Judgments > Specific Acts [HN6] A federal court's inherent authority to punish disobedience and vindicate its authority is an excepted provision or authorization within the meaning of 28 U.S.C.S. §§ 516, 547. Criminal Law & Procedure > Criminal Offenses > Miscellaneous Offenses > Contempt [HN7] A criminal contempt prosecution brought to vindicate the authority of the judiciary and to punish disobedience of a court order is a suit in which the United States is interested, within the meaning of 28 U.S.C.S. § 518(z), regardless of who is appointed by the district court to prosecute the action. SYLLABUS:

5 of 23 DOCUMENTS THE GOVERNORS OF THE UNITED STATES POSTAL SERVICE, PETITIONER v. THE UNITED STATES POSTAL RATE COMMISSION, RESPONDENT SOUTHERN PACIFIC COMMUNICATIONS COMPANY and GTE TELENET COMMUNICATIONS CORPORATION, EVTERVENORS No. 80-1971 UNITED STATES COURT OF APPEALS, DISTRICT OF COLUMBIA CIRCUIT 210 U.S. App. D.C. 1; 654 F.2d 108; 1981 U.S. App. LEXIS 12815 January 21,1981, Argued May 29,1981, Decided

PRIOR HISTORY: [**1] Petition for Review of an Order of the United States Postal Rate commission. CASE SUMMARY PROCEDURAL POSTURE: Petitioner Board of Governors of the United States Postal Service (board) sought review of an order of respondent United States Postal Rate Commission (commission), which recommended that the United States Postal Service's proposed electronic mail service addition to the Domestic Mail Classification Schedule be designated as experimental with a fixed terminal date. OVERVIEW: Pursuant to the Postal Reorganization Act (Act), 39 U.S.C.S. § 101 et seq., the board submitted to the commission a mail classification proposal to add a new electronic mail service to the Domestic Mail Classification Schedule. After the hearing required by § § 3623, 3624 of the Act, the commission recommended that the electronic mail service be designated as experimental. The board sought review of the board's order in the court. The board contended that the commission did not have the authority to make such a recommendation. The court ordered that the entire matter be returned for further consideration pursuant to § 3628 of the Act. The court held that the commission's recommended decision was in excess of its authority, as (1) the Act's legislative history indicated that the commission was not allowed to overrule or modify a management decision by the United States Postal Service and (2) the commission's recommended decision violated § § 3622(a), 3625(f)oftheAct. OUTCOME: The court ordered that the commission's recommended decision related to the board's mail classification proposal be returned to the commission for further consideration, pursuant to the applicable provision of the Postal Reorganization Act. LexisNexis(TM) HEADNOTES - Core Concepts Administrative Law > Separation & Delegation of Power > Legislative Controls [HN1] The United States Postal Service has the power to adopt, amend, and repeal such rules and regulations as it deems necessary to accomplish the objectives of this title; to enter into and perform contracts; to acquire personal or real property; to construct, operate, lease, and maintain buildings and facilities; and to determine the need for post offices, and postal and training facilities. 39 U.S.C.S. § § 401(3), (5), (6), 404(a)(3). Administrative Law > Separation & Delegation of Power > Legislative Controls [HN2] The United States Postal Service is governed by an 11 member Board of Governors, nine of whom are appointed by the President of the United States. 39 U.S.C.S. § 202(&). One of the two remaining members, the Postmaster General, is appointed by the nine governors. 39 U.S.C.S. § 202(c). The 11th member, the Deputy Postmaster General, is appointed by the nine governors and the Postmaster General. 39 U.S.C.S. § 202(d). The governors oversee the United States Postal Service as it plans, develops, promotes, and provides mail service throughout the United States. 39 U.S.C.S. § § 202(d), 403(a). Administrative Law > Separation & Delegation of Power > Legislative Controls [HN3] The United States Postal Rate Commission (commission) is charged with the duty of making recommendations to the Governors of the United States Postal Service with respect to rate, fee and classification matters. 39 U.S.C.S. § § 3601, 3622, 3623 and 3624. The commission is composed of five commissioners appointed by the President of the United States. 39 U.S.C.S. § 3601. It is empowered, upon request from the United States Postal Service (service), to submit to the service a recommended decision on changes in rates or fees. 39 U.S.C.S. § 3622. Upon such a request or on its own initiative, the commission may submit a recommended decision on changes in the mail classification schedule. 39 U.S.C.S. § 3623(b). In considering service requests for recommended decisions on rates, fees, and classifications under 39 U.S.C.S. § § 3622, 3623, the commission is required to accord to the service, users of the mails, and an officer of the commission representing the public, an opportunity for a hearing under 5 U.S.C.S. § § 556, 557. 39 U.S.C.S. § 3624(a), (b). The recommended decision which the commission submits must address specifically the statutory criteria established under 39 U.S.C.S. § § 3622, 3623. 39 U.S.C.S. § 3624(d). Administrative Law > Separation & Delegation of Power > Legislative Controls [HN4] Upon receiving a recommended decision of the United States Postal Rate Commission (commission), the Board of Governors of the United States Postal Service (board) has several options. They may approve the commission's recommendation and order it to take effect, 39 U.S.C.S. § 3625(b), or reject the decision and return it to the commission for reconsideration. 39 U.S.C.S. § 3625(d). As an alternative the board may, under protest, allow the recommended decision to take effect and either seek judicial review under 39 U.S.C.S. § 3628 or return the decision to the commission for reconsideration and a further recommended decision. 39 U.S.C.S. § 3625(c). If the board returns the

84 STAT. ]

PUBLIC LAW 91-648-JAN. 5, 1971

1909

Public Law 91-648 AN ACT

January 5, 1971

To reinforce the federal system by strengthening the personnel resources of State and local governments, to improve intergovernmental cooperation in the administration of grant-in-aid programs, to provide grants for improvement of State and local personnel administration, to authorize Federal assistance in training State and local employees, to provide grants to State and local governments for training of their employees, to authorize interstate compacts for personnel and training activities, to facilitate the temporary assignment of personnel between the Federal Government, and State and local governments, and for other purposes.

E*LJ_L]

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may intergovernmental i -j i ^i -IT i i i T-» 4 i in>-,,«« Personnel Act of be cited as the 'Intergovernmental Personneli Act of_r 19fO . 1970. DECLARATION OF POLICY

SEC. 2. The Congress hereby finds and declares— That effective State and local governmental institutions are essential in the maintenance and development of the Federal system in an increasingly complex and interdependent society. That, since numerous governmental activities administered by the State and local governments are related to national purpose and are financed in part by Federal funds, a national interest exists in a high caliber of public service in State and local governments. That the quality of public service at all levels of government can be improved by the development of systems of personnel administra- systems tion consistent with such merit principles as-^(1) recruiting, selecting, and advancing employees on the basis of their relative ability, knowledge, and skills, including open consideration of qualified applicants for initial appointment; (2) providing equitable and adequate compensation; (3) training employees, as needed, to assure high-quality performance; (4) retaining employees on the basis of the adequacy of their performance, correcting inadequate performance, and separating employees whose inadequate performance cannot be corrected; (5) assuring fair treatment of applicants and employees in all aspects of personnel administration without regard to political affiliation, race, color, national origin, sex, or religious creed and with proper regard for their privacy and constitutional rights as citizens; and (6) assuring that employees are protected against coercion for partisan political purposes and are prohibited from using their official authority for the purpose of interfering with or affecting the result of an election or a nomination for office. That Federal financial and technical assistance to State and local governments for strengthening their personnel administration in a manner consistent with these principles is in the national interest. SEC. 3. The authorities provided by this Act shall be administered in such manner as (1) to recognize fully the rights, powers, and responsibilities of State and local governments, and (2) to encourage innovation and allow for diversity on the part of State and local governments in the design, execution, and management of their own systems of personnel administration.

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April 9, 2003 Hon. Thomas E. Kean, Chairman National Commission on Terrorist Attacks Upon the United States c/o GSA Agency Liaison Division 701 D Street, SW Room 7120 Washington, DC 20407 Dear Chairman Kean: As lead counsel to over 3,600 victims of the September 11,2001 attacks, Ness, Motley, P.A. shares in the National Commission on Terrorist Attacks Upon the United States' agenda and goal of examining the continuing threat and funding sources of transnational terrorism as well as the failures and deficiencies of government and industry leading up to the 9/11 attacks. As a Firm, our clients and attorneys deeply appreciate the noble and daunting work the Commission has courageously undertaken for the betterment of our country. I had the honor and privilege of attending the Commission's very powerful opening hearings in New York City on March 31-April 1, and I look forward to following the Commission's important work in the coming months. As Ness, Motley endeavors to root out and bankrupt the logistical and funding sources of terrorism, we wish to contribute and share in the Commission's work and, where appropriate, provide insights and materials in an effort to enhance the overall impact of this monumental initiative. We have spent a considerable number of months investigating, collecting and analyzing evidence concerning prior terrorist threats and

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February 7,2003

Via Fax Governor Thomas Kean President, Drew University Madison, NJ 07940 Fax #973-408-3080 Dear Governor Kean: Allow me again to applaud you for graciously providing us with so much of your time, and for the energy and commitment that you so amply demonstrated at our recent meeting with the 9/11 family members. As we discussed, because it would be useful for all the members of the 9/11 Commission to have the benefit of the important lessons to be drawn from the 1990 Presidential Commission on Aviation Security and Terrorism, I am pleased to provide you with this synopsis of the lessons of the 1990 Commission. The 1990 Commission members faced a task sadly similar to that faced by the present Commission: to come to grips with the facts of the single greatest terrorism act against American citizens (as of that time), and to make recommendations aimed at deterring future terrorist attacks. Had that Commission's recommendations presented in its 182 pg. report of May 15,1990 been fully heeded, 9/11 might indeed have been averted. Further to our discussion, I and my colleagues would be pleased to present to all the members of the Commission a much fuller briefing on this subject, together with video