Authority of FBI Agents, Serving As Special Deputy United States Marshals, to Pursue Non-Federal Fugitives

Authority of FBI Agents, Serving As Special Deputy United
States Marshals, to Pursue Non-Federal Fugitives

Regardless of whether federal process is outstanding or anticipated, agents of the Federal Bureau o f
Investigation have authority to investigate fugitive felons when there is a reasonable basis to believe
that doing so will detect or prevent the commission o f a federal crime.

U.S. Marshals, including FBI agents serving as Special Deputy U.S. Marshals, have authority under
28 U.S.C. § 566(e)(1)(B) to investigate and pursue fugitives wanted under state felony warrants
whenever such action is undertaken pursuant to a special apprehension program approved by the
Attorney General.

Where a U.S. Marshal or Special Deputy U.S. Marshal is engaged in an approved investigation o f
state law fugitives under section 566(e)(1)(B), the marshal’s derivative state sheriff powers under
28 U.S.C. §564 and the marshal’s inherent authority to take enforcement actions necessary to
carry out his federal duties provide valid grounds for the marshal to arrest such fugitives.

February 21,1995

M e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l
F e d e r a l B u r e a u o f In v e s t ig a t io n

Summary

You have requested our opinion on the authority of agents of the Federal Bureau
of Investigation (“ FBI” ), serving as Special Deputy United States Marshals, to
participate in federal-state task force efforts to locate and arrest fugitives charged
with violations of state law where federal process is neither outstanding nor antici­
pated. Our conclusions on this matter may be summarized as follows:

(1) Regardless of whether federal process is outstanding or antici­
pated, FBI agents have authority to investigate (and sometimes
arrest) fugitive felons when there is a reasonable basis to believe
that doing so will detect or prevent the commission of a federal
crime, including violations of the Fugitive Felons Act, 18 U.S.C.
§ 1073 (“ FFA” ). That may include situations where a state fugitive
has not yet crossed state lines but has engaged in evasive move­
ments or a course of conduct that manifests an intent to cross a
state or national border and violate the FFA.
(2) Under 28 U.S.C. § 566(e)(1)(B), the U.S. Marshals Service
(“ USMS” ) has authority to investigate fugitive matters “ as
directed by the Attorney General.” This authority is not confined
to fugitives who are sought on federal charges. In a series of special
apprehension programs authorized by three Administrations, the
Attorneys General have directed the USMS and other federal agen-

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 Opinions o f the Office o f Legal Counsel in Volume 19

cies to engage in cooperative operations with state and local police
that encompass the investigation, pursuit, and arrest of fugitives
wanted under state as well as federal warrants. Section 566(e)(1)(B)
authorizes U.S. Marshals (including FBI agents serving as deputy
marshals) to investigate and pursue fugitives wanted under state
warrants whenever it is done pursuant to a special apprehension
program approved by the Attorney General.
(3) Although section 566(e)(1)(B) does not explicitly provide for
authority to participate in task force arrests in state warrant cases,
we conclude that where a U.S. Marshal is engaged in an approved
investigation of state law fugitives under that section, arrest
authority may be validly based upon (a) the marshal’s derivative
state sheriff powers granted under 28 U.S.C. §564; and (b) the mar­
shal’s inherent authority to take enforcement actions necessary to
carry out his federal duties, which now include participation in
cooperative fugitive pursuit operations with state and local police.
(4) However, we conclude that neither the doctrine of legislative
ratification nor the U.S. Marshal’s asserted “ federal common law
authority” provide independent, non-statutory legal authority for
marshals to pursue or arrest fugitives sought for state law violations
only.

I. BACKGROUND

This matter arises from the operations of intergovernmental fugitive task forces,
in which federal law enforcement personnel work with state and local law enforce­
ment agencies in locating and apprehending fugitives from justice. The most
prominent of these task forces began in 1981 and were classified as Fugitive
Investigative Strike Teams, or “ FIST,” under a congressionally funded program
of the USMS. Similar task force operations have also been authorized by the
Attorneys General in more recent years, including Operation Gunsmoke (1992)
and Operation Trident (1993). These operations are designed to locate and
apprehend both federal and state law fugitives. Although the operations have been
successful in arresting both categories of fugitives, arrests of state law fugitives
have predominated. The USMS has stated that “ [t]he cooperative assistance of
state and local officers is essential to the apprehension of federal fugitives under
the FIST program and vice versa.” 1 Federal personnel assigned to these intergov­
ernmental task forces are sometimes expected to assist not only in locating, but
also arresting, the fugitives in question.

1 M emorandum for W illiam Sessions, Director, Federal Bureau o f Investigation, from Stanley E. Morris, Director,
U S. M arshals Service, Attachment p.2 (Dec. 8, 1987) ( " 1987 M e m /’)*

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 Authority o f FBI Agents, Serving As Special Deputy United States Marshals, to Pursue Non-Federal
Fugitives

The FBI’s fugitive apprehension efforts have generally been based upon the
Fugitive Felons Act (“ FFA” or “ UFAP” ), 18 U.S.C. §1073,2 which prohibits
persons from moving or traveling in interstate commerce in order to avoid
prosecution, confinement, or service of process in connection with felonies under
the laws of the place from which flight is taken. The Department of Justice has
issued procedural standards governing the FBI’s exercise of its authority under
the FFA, but these standards are not statutory and could be changed by administra­
tive action. FBI agents have clear statutory authority to pursue and arrest both
federal and state law fugitives who have violated the FFA by crossing state lines.
The more difficult question raised by the FBI arises when the target fugitive has
not been charged with any federal crime, has not fled across state lines, and seem­
ingly presents no other independent basis for the exercise of federal law enforce­
ment jurisdiction.
The FBI has considered its own authority to pursue and arrest fugitives to be
limited by the parameters of the FFA and by Department procedures governing
the routine handling of its general criminal investigations. It now inquires whether
deputation of FBI agents as Special Deputy U.S. Marshals will enhance or broaden
their authority to pursue and arrest fugitive felons charged only with state law
crimes. In its memorandum requesting this opinion, however, the FBI questions
whether the authority of the USMS extends that far.
The USMS asserts a broader range of federal authority to investigate and
apprehend “ non-federal” or “ state law” fugitives. It asserts that this authority
may be based on a number of sources apart from the FFA: 28 U.S.C. § 564 (mar­
shal’s authority to exercise powers of the state sheriff while executing federal
law in that state); 28 U.S.C. § 566(e)(1)(B) (marshal’s authority to investigate
fugitive matters as directed by the Attorney General); and the U.S. Marshal’s
“ inherent” or “ federal common law” authority to take such enforcement meas­
ures as are necessary to carry out its federal duties. The USMS also asserts that
repeated enactment of appropriations earmarked for the fugitive apprehension pro­
grams, after Congress had been made well aware that federal officals pursued
and arrested large numbers of state law fugitives under those programs, provides
sufficient legal authority for such activities under the doctrine of congressional
ratification.
Contrary to assertions in the FBI submission, the USMS states that its personnel
“ do not routinely make state and local arrests on state and local fugitive war­
rants,” as opposed to providing assistance when such arrests are made by a fed­
eral-state task force.3 Nonetheless, it is evident that USMS personnel sometimes
perform such arrests in special apprehension program operations, and it is the

2 This statute is also sometimes referred to as the Unlawful Flight to Avoid Prosecution law, or UFAP.
3 Memorandum for Walter E. Dellinger, Assistant Attorney General, Office of Legal Counsel, from Deborah C
W estbrook, General Counsel, U.S. Marshals Service, Re: Authority o f United States Marshals Service to Participate
in Joint Federal/State/Local Fugitive Apprehension Task Forces at 2 (Oct. 7, 1994).

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legal basis for such federal arrest activity that the FBI most strongly questions
in its submission.

II. ANALYSIS

A. E xtent o f F B I’s Existing Statutory Authority

Federal law enforcement officials have authority to participate in the investiga­
tion and arrest of some fugitives wanted for state law violations under the provi­
sions of the Fugitive Felons Act. See 18 U.S.C. §1073. The FFA makes it a
federal crime to “ move[] or travel[] in interstate or foreign commerce” in order
to avoid prosecution, custody, confinement, or service of process in connection
with felonies under the laws of the state from which the person is fleeing. The
purpose and policy underlying the FFA was explained by the court in Lupino
v. United States, 268 F.2d799, 801 (8th Cir. 1959):

[F]lights by perpetrators of crimes against the states are a
common means of hindering state justice as is well known and,
as it is the federal government which accords the freedom of move­
ment throughout the country that makes the flights possible, it is
plainly within the province of that government to regulate this
abuse of it.

A threshold issue is whether FBI agents may have dormant authority under
the FFA to participate in the investigation or arrest of those “ state law” fugitives
whose cases may have heretofore been considered outside that statute’s coverage.
If a more expansive interpretation of existing FFA authority is warranted, the
necessity for additional authority to be derived from the USMS through deputation
might be reduced.
The FBI submission reflects a somewhat restrictive interpretation of its current
authority to investigate and arrest under the FFA. It states, for example, that its
fugitive investigation authority is constrained by the preliminary inquiry require­
ments of the Attorney General’s Guidelines on Investigations.4 On the other hand,
it does not explore the FBI’s clear statutory authority to make warrantless arrests
whenever there are reasonable grounds to believe the person to be arrested is
in the process of committing any federal crime, including a violation of the FFA.
See 18 U.S.C. §3052.
Where there is a reasonable expectation that an investigation will lead to evi­
dence of a violation of federal law, FBI agents have authority to undertake that
investigation under 28 U.S.C. § 533. See Authority o f the Federal Bureau oflnves-
4 M emorandum for W alter E. Dellinger, Assistant Attorney General, Office of Legal Counsel, from Howard M.
Shapiro, G eneral Counsel, FBI, Re: Authority o f FBI Agents Who H ave Been D eputized as Special Deputy U nited
States M arshals to Locate a n d Apprehend S ta te and Local Fugitives at 2 (Aug. 23, 1994).

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 Authority o f FBI Agents, Serving A s Special Deputy United Slates Marshals, to Pursue Non-Federal
Fugitives

tigation to Investigate Police Killings, 5 Op. O.L.C. 45, 49 (1981). As this Office
also stated in a 1977 opinion on a similar issue: “ As long as there remains a
legitimate basis for the view that the investigation . . . may unearth violations
of federal law, we believe that the FBI is authorized to proceed with the investiga­
tion.” Memorandum for the Director of the FBI, from Mary C. Lawton, Deputy
Assistant Attorney General, Re: FBI Cooperation with Local Authorities at 1
(Nov. 9, 1977). This is consistent with the Attorney General’s 1989 Guidelines
for FBI general crimes investigations, which provide:

A general crimes investigation may be initiated by the FBI when
facts or circumstances reasonably indicate that a federal crime has
been, is being, or will be committed. The investigation may be con­
ducted to prevent, solve, and prosecute such criminal activity.
The standard of “ reasonable indication” is substantially lower
than probable cause.

The Attorney General’s Guidelines on General Crimes, Racketeering Enterprise
and Domestic Security/Terrorism Investigations §II.C(1) (Mar. 21, 1989)
(emphasis added) (“ AG Guidelines” ). The Guidelines further state that a prelimi­
nary inquiry is not a required step “ when facts or circumstances reasonably indi­
cating criminal activity are already available; in such cases, a full investigation
can be immediately opened.” Id. §II.B(1). These provisions show that the FBI
has ample authority to investigate a state law fugitive whenever there is some
reasonable indication that he may violate the FFA or another federal law.5
Various courts have held that the crossing of state lines is a necessary element
for a violation of the FFA. See, e.g., Lupino v. United States, 268 F.2d at 801
(FFA violation “ is complete when the offender crosses the border.” ).6 However,
the line separating a so-called “ non-federal” fugitive and a fugitive subject to
federal pursuit under the FFA can be a thin one. Many fugitives will “ move”
or “ travel” on interstate highways as they continue to evade arrest, even if they
have not been detected crossing state lines. Under appropriate circumstances, such
fugitives may be deemed to be moving in interstate commerce and there may
well be a reasonable basis to believe that a violation of the FFA is in progress.
This view is bolstered by Supreme Court and lower federal court opinions that
have adopted a flexible construction of the interstate movement element in federal
criminal statutes similar to the FFA. In McElroy v. United States, 455 U.S. 642,
5 In other contexts, the FBI has even been subjected to potential liability under the Federal Tort Claims Act for
failing to take the initiative under 28 U.S.C. §533 when a developing violation o f federal law has been detected.
See Bergman v. United States, 565 F. Supp. 1353, 1396-1401 (W.D. Mich. 1983). There, the U nited States was
held liable for injuries sustained by civil rights “ Freedom R iders” when FBI agents failed to take preventive action
to thwait a developing conspiracy to violate civil rights which had been disclosed by an informant.
6 This view is arguably at variance with the statute’s text, which requires only that the fugitive “ m oveU or travel[]
in interstate or foreign com m erce,” 18 U.S.C. §1073 (emphasis added), without stating that a state line must be
crossed for a violation to occur. In similar contexts, the Supreme Court has declared that movement in interstate
commerce may occur without crossing a state border. See cases discussed in note 7 and accompanying text.

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653 (1982), for example, the Court observed that “ interstate commerce begins
well before state lines are crossed.” 7 If a fugitive is “ in the course” of travel
on the highways with an intent to proceed across the border, the mere failure
to reach the border should not negate a violation of the statute. Cf. United States
v. Schardar, 850 F.2d 1457, 1461-62 (11th Cir. 1988) (“ Goods have been
adjudged to have moved in interstate . . . commerce when they are in the course
of such a crossing, even when they have not yet crossed the technical bound­
aries.” ); United States v. Ajlouny, 629 F.2d at 837.
We therefore conclude that FBI agents have statutory authority to investigate
state law fugitives whenever, as part of their evasive course of conduct, they have
begun to travel on interstate highways or manifested any other reasonable indica­
tion (such as the purchase of a bus or airplane ticket to another state) that they
will violate the FFA. Moreover, the FBI’s authority to detect and investigate fed­
eral crimes under 28 U.S.C. §533 encompasses the authority to “ take whatever
steps are necessary to bring criminal charges against the suspect criminals.”
Bergman v. United States, 551 F. Supp. 407, 417 (W.D. Mich. 1982) (“ While
[section 533] confers investigative powers upon an FBI official, it also confers
a prosecutorial duty to follow up any investigation undertaken.” ). Under 18 U.S.C.
§3052, FBI agents have the authority to make warrantless arrests “ for any felony
cognizable under the laws of the United States if they have reasonable grounds
to believe that the person to be arrested has committed or is committing such
a felony.” (Emphasis added). Consequently, the fact that a state fugitive has com­
menced evasive travel on the highways may sometimes establish that he is “ in
the course” of interstate flight and therefore provide grounds for federal arrest
under the FFA.

B. Authority o f USMS

In some instances, there may be no reasonable grounds to believe that a state
law fugitive sought by a task force will violate the FFA or any other federal
statute (e.g., a fugitive who “ goes underground” within the state and gives no
indication of resorting to interstate travel). This office has previously opined that
FBI agents, as such, have no authority to investigate criminal suspects under state
law where there are no federal charges outstanding and no reasonable grounds
to believe that a federal offense has been or will be committed. See 5 Op. O.L.C.
at 49. This raises the question whether, in the context of federal-state task force
operations, FBI agents serving as Deputy U.S. Marshals would have additional

1 Cf. U nited States v. Ajlouny, 629 F.2d 830 (2d Cir. 1980), concerning a violation of the federal law against
the transportation o f stolen goods in interstate or foreign commerce. The defendant was arrested just before he
was able to ship stolen goods from New Y ork to Qatar. The court rejected the argument that no offense had occurred
because no international boundary had been crossed, stating: “ Congress was not aiming only at stolen goods moving
across a technical boundary line, but also w anted to reach shipments in the course of such a crossing.” Id. at 837.

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 Authority o f FBI Agents, Serving A s Special Deputy United States Marshals, to Pursue Non-Federal
Fugitives

authority to pursue and/or arrest state fugitives that would otherwise be unavail­
able to them.

1.2 8 U.S.C. §566

The Marshal Service’s authority to investigate fugitive felons is found in 28
U.S.C. § 566(e)(1)(B), which provides: “ The United States Marshals Service is
authorized to . . . investigate such fugitive matters, both within and outside the
United States, as directed by the Attorney General.” (emphasis added). Signifi­
cantly, this authorization was passed in 1988, when Congress was already familiar
with five years of USMS participation in FIST programs, wherein USMS per­
sonnel repeatedly participated in large numbers of arrests of state law fugitives.
Section 566(e)(1)(B) authorizes the Attorney General to “ direct” the USMS to
investigate fugitive matters to the fullest extent permitted by the Constitution in
the exercise of her discretion.8
In 1988, the Attorney General issued a “ Policy on Fugitive Apprehension in
FBI and DEA Cases.” After providing that the FBI generally has jurisdiction
“ in locating fugitives pursuant to the Unlawful Flight Statutes (Title 18, Sections
1073 and 1074)” , the Policy stated:

The above provisions shall not preclude the USMS from providing
available information to state and local law enforcement agencies
about fugitives being sought by their jurisdictions. The initiation
of formal fugitive investigations involving State and local fugitives
will be done through the Unlawful Flight process set forth above,
except fo r special apprehension programs (such as Fugitive Inves­
tigative Strike Teams and Warrant Apprehension Narcotics Teams)
and other special situations approved by the Associate Attorney
General.

Id. at 3 (emphasis added). In' this regard, the Attorney General’s approval of
USMS pursuit and arrest of state law fugitives in FIST and subsequent special
apprehension programs is authorized by the “ as directed” provision of 28 U.S.C.
§ 566(e)(1)(B).
Subsequent to 1988, the Attorney General has “ directed” the USMS to under­
take additional “ special apprehension programs.” In early 1992, for instance, the
Attorney General ordered the USMS to participate in Operation Gunsmoke, a pro­
8 Regulations generally describing the marshals’ authority in the fugitive area are included under the “ General
Functions” provisions o f the DOJ regulations. See 28 C.F.R. §0.111(q) (1995). This subsection merely, provides
that among the activities o f the USMS that are subject to the supervision of the USMS Director are: “ Exercising
the power and authority vested in the Attorney General under 28 U.S.C. 510 to conduct and investigate fugitive
matters, domestic and foreign, involving escaped federal prisoners, probation, parole, mandatory release, and bond
default violators.” This provision does not purport to define the outer limits o f USMS fugitive authority, and we
do not consider its enumeration o f authorized activities to be exclusive.

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gram in which U.S. marshals worked with state and local police to apprehend
armed fugitives charged or convicted of serious crimes involving violence with
weapons. In this operation, the Attorney General again authorized the USMS to
investigate, pursue, and arrest fugitives wanted on state as well as federal warrants.
Indeed, of the 3,313 Operation Gunsmoke arrests, 2,562 were on state warrants.
In 1993, the USMS was directed to participate in Operation Trident, another
cooperative federal-state fugitive manhunt focusing on the identification and arrest
of major narcotics and violent crime fugitives. In his memorandum requesting
the Attorney General’s approval of Operation Trident (which was given), the
USMS Director specifically stated that the operation would include the apprehen­
sion of “ State and local fugitives wanted for homicide and other violent offenses”
and “ State and local fugitives wanted on firearms violations.” 9 Of the 5,788
arrests made by Operation Trident investigators, 4,825 were based on state
charges.
These operations confirm that, pursuant to 28 U.S.C. § 566(e)(1)(B) and the
more general authorities granted by 28 U.S.C. §§503, 509, and 515, the Attorney
General has repeatedly authorized the USMS to participate with state and local
police in the investigation, pursuit, and arrest of fugitives wanted on state as well
as federal charges. FBI agents serving as Deputy U.S. Marshals could also under­
take such activities under the same lawful authority.
When investigations duly conducted under § 566 reveal ongoing or inchoate vio­
lations of the FFA or another federal law, marshals and deputy marshals also
have authority to arrest under the provisions of 18 U.S.C. §3053. That section
provides (emphasis added):

United States marshals and their deputies may carry firearms and
may make arrests without warrant for any offense against the
United States committed in their presence, or for any felony cog­
nizable under the laws of the United States if they have reasonable
grounds to believe that the person to be arrested has committed
or is committing such a felony.

This language provides authority for marshals to arrest a state law fugitive if,
as discussed in section II.A, above, there are reasonable grounds to believe he
is in the process of violating the FFA. When there is no indication of such an
ongoing federal violation, however, the question arises whether USMS authority
to investigate state fugitives under §566 may be extended to participation in the
arrest of such fugitives.

9 Memorandum for the A ttorney General, from Henry E. Hudson, Director, USM S, Re: Proposed National Fugitive
Apprehension Operation at 1-2 (Apr. 1,1993).

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 Authority o f FBI Agents, Serving As Special Deputy United States Marshals, to Pursue Non-Federal
Fugitives

2. Marshal’s Authority under 28 U.S.C. §564

Another pertinent source of the authority in question here is 28 U.S.C. §564,
which provides:

United States marshals, deputy marshals and such other officials
of the Service as may be designated by the Director, in executing
the laws of the United States within a State, may exercise the same
powers which a sheriff of the State may exercise in executing the
laws thereof.

We do not think that §564 provides an independent basis for the initiation
of investigation or pursuit of state law fugitives by marshals or deputy marshals.
Rather, it provides that they may employ the full powers of a state sheriff in
executing federal law within a state only when they are already exercising valid
federal authority within that state.
When marshals participate in a task force investigation of state law fugitives
pursuant to the Attorney General’s direction under 28 U.S.C. §566, they are “ exe­
cuting the laws of the United States within a State.” As stated by the Supreme
Court in In re Neagle, 135 U.S. 1, 59 (1890), “ any duty of the marshal to be
derived from the general scope of his duties under the laws of the United States,
is ‘a law’ within the meaning of [the Supremacy Clause].” Within that context,
the marshals may exercise the same law enforcement powers as those of a sheriff
in the host state. See United States v. St. Onge, 676 F. Supp. 1041, 1043 (D.
Mont. 1987); United States v. Laub Baking Co., 283 F. Supp. 217, 221 (N.D.
Ohio 1968). That would include the power to arrest a state law fugitive on prob­
able cause. See United States v. Red Feather, 392 F. Supp. 916, 919 (D. S.D.
1975) (U.S. marshals exercising federal authority at Wounded Knee uprising had
full authority of state sheriff under South Dakota law to “ keep and preserve the
peace” and to “ pursue and apprehend all felons.” ) (emphasis added).

3. Congressional Ratification o f Special Apprehension Programs

Even if (contrary to our conclusion) none of the statutes discussed above provide
authority for the pursuit and arrest of fugitives by federal marshals for purely
state law violations, the USMS contends that Congress has nonetheless authorized
such activities by passing specific appropriations to fund them after they had
clearly been brought to the attention of Congress. Various opinions have recog­
nized that, under appropriate circumstances, Congress may “ ratify” an agency’s
exercise of previously unsettled authority by appropriating funds for the continu­
ation of the activity in question where that activity was specifically brought to
Congress’s attention beforehand. See Ex Parte Endo, 323 U.S. 283, 303 n.24
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(1944); Brooks v. Dewar, 313 U.S. 354, 361 (1941); Isbrandtsen-Moller Co. v.
United States, 300 U.S. 139, 147-48 (1937); Alabama v. TVA, 636 F.2d 1061,
1069 (5th Cir. 1981), (“ [C]ontinued congressional funding of allegedly improper
agency action can be viewed in appropriate circumstances as a ratification of that
agency practice.” ). For an effective ratification, the appropriation must manifest
a purpose to approve the particular authority which is claimed. See Ex Parte Endo,
323 U.S. at 303 n.24.
Subsequent Supreme Court opinions, however, have sharply curtailed this doc­
trine’s applicability. In TVA v. Hill, 437 U.S. 153 (1978), for example, the Court
rejected arguments that Congress’s continued appropriation of funds to proceed
with construction of the Tellico Dam, even after the appropriations committees
had been fully apprised of the project’s adverse impact on the endangered snail
darter, could be viewed as legislative ratification of the project notwithstanding
its conflict with the requirements of the Endangered Species Act. The Court held
that the rule against repeals by implication trumps the legislative ratification doc­
trine; stressed that allowing the enactment of substantive law via appropriations
measures would violate the Rules of Congress; and rejected the view that the
statements and understandings of the congressional appropriations committees can
be ascribed to Congress as a whole for purposes of effecting a ratification through
appropriations. Id. at 190-92. In Greene v. McElroy, 360 U.S. 474 (1959), the
Court held that congressional ratification of security clearance regulations, adopted
by the Secretary of Defense without explicit authorization from Congress or the
President, could not be implied from the continued appropriation of funds to
finance aspects of the clearance program. The Court stressed that the doctrine
of implied ratification is especially unsuitable when the administrative action in
question is based on unsettled constitutional authority. Id. at 506-07.
More recently, the D.C. Circuit described additional limitations upon the ratifi­
cation doctrine:

While appropriations acts are “ Acts of Congress” which can
substantively change existing law, there is a very strong presump­
tion that they do not [citing TVA v. Hilt], and that when they do,
the change is only intended for one fiscal year. . . . Accordingly,
a provision contained in an appropriations bill operates only in the
applicable fiscal year unless its language clearly indicates that it
is intended to be permanent.

Building & Constr. Trades D ep’t v. Martin, 961 F.2d 269, 273-74 (D.C. Cir.
1992).10
i0 See also EE O C v. CBS, Inc., 743 F.2d 969, 974 (2d Cir. 1984), where the court said that “ Chadha's strict
interpretation o f the principles o f bicameralism, presentment, and separation o f powers reinforces the need for strong
evidence o f ratification.’* In rejecting a claim ed legislative ratification argument, that court added, “ an appropriations

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 Authority o f FBI Agents, Serving As Special Deputy United States Marshals, to Pursue Non-Federal
Fugitives

The USMS has cited excerpts from congressional hearings and reports indicating
that Congress has repeatedly passed Justice Department appropriations earmarked
for the FIST program, even though the participation of USMS personnel in the
pursuit and arrest of state law fugitives was repeatedly brought to the attention
of the appropriations committees. 1987 Mem., Attachment at 3-6. The Service
contends that these materials are adequate to demonstrate legislative ratification
of all actions taken in connection with its special apprehension programs under
the standards of the foregoing cases. The FBI’s submission also acknowledges
that Congress was made aware that FIST operations entailed federal apprehension
of state fugitives before it passed appropriations funding such operations, but sug­
gests that the record is insufficient to establish a valid legislative ratification.
The cited legislative materials show that the USMS has repeatedly described
the nature of its special apprehension programs to the congressional appropriations
committees. For example, USMS Director Morris described FIST operations in
considerable detail in 1986 hearings before the House Appropriations Sub­
committee for Commerce-Justice-State:

[W]e go in and set up what is a 10-week round up in which we
bring in people from out of district, plus dedicate people in the
district to work jointly with state and local officers in partnership.
They identify their worst fugitive felons, we identify ours. We cross
deputize their officers. We make them special deputy U.S. mar­
shals. For 10 weeks their officers and ours work in the same cars,
the same command posts, going out and arresting felons.

. . . I will tell you in all candor that the reason we can make
3,300 arrests in a 10-week period is that local law enforcement has
not been funded adequately to deal with this problem.

Departments o f Commerce, Justice, and State, the Judiciary, and Related Agencies
Appropriations fo r 1986: Hearings Before a Subcomm. o f the House Comm, on
Appropriations, 99th Cong., pt. 7, at 737 (1985) (emphasis added). Similarly, in
testimony in support of the FY 1985 appropriations request, Morris described how
USMS agents worked with NYPD officers in the FIST program: “ We would look
for local fugitives and they would look for federal fugitives.” Departments o f
Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations
Act for 1985: Hearings Before a Subcomm. o f the House Comm, on Appropria­
tions, 98th Cong., pt. 8, at 784 (1984) (emphasis added). That year the Director
was also quite explicit in his request for specific Congressional approval for FIST
operations: “ Our plans are to try to begin one more FIST this year, and if this

bill is a particularly unsuitable vehicle for an implied ratification o f unauthorized actions funded therein.” Id. at
975.

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appropriation is granted by this committee, we would hope to run two in fiscal
year 1985.” Id. at 785. An appropriation of “ $1,000,000 above the budget request
for FIST operations” was granted in the FY 1985 appropriations bill. H.R. Conf.
Rep. No. 98-952, at 26 (1984).
More recently, Congress appropriated an additional $2.5 million “ for [USMS]
expenses and equipment related to the apprehension of fugitives.” Treasury, Postal
Service, and General Government Appropriations Act, 1993, Pub. L. No. 102-
393, 106 Stat. 1729, 1742 (1992). The 1992 Report of the House Appropriations
Committee contained material again demonstrating that committee’s awareness
and approval of cooperative state-federal law enforcement programs to apprehend
“ dangerous drug fugitives” and other fugitive felons. As the report states:

Cooperative law enforcement programs, involving all levels of
government, have proven to be the most effective and efficient way
to apprehend dangerous drug fugitives. . . . The Committee has
recommended $3 million for the United States Marshals Service
to enhance the efforts to apprehend and incapacitate criminals
wanted for drug related offenses. . . . The Committee expects that
the Marshals Service will work closely with state and local law
enforcement agencies . . . to conduct this special operation against
drug offenders.

H.R. Rep. No. 102-618, at 42 (1992).
As a departure from the norm that legislative action should be textually explicit,
the legislative ratification doctrine should be invoked with caution and only on
the basis of a convincing showing that Congress actually intended to grant the
authority in question. Here, there is ample evidence that the appropriations
committees were repeatedly informed that federal officers participated in thou­
sands of arrests based on state law warrants as an integral part of the FIST oper­
ations for which specific appropriations were subsequently passed. On the other
hand, there is little or no evidence that awareness of this activity extended beyond
the appropriations committees. Nor is there evidence that the appropriations
committees, let alone Congress as a whole, regarded the FIST appropriations as
a permanent authorization for direct federal participation in arrests based solely
on state law violations.
As stressed by the Supreme Court in Greene v. McElroy, 360 U.S. at 506-
07, when the agency action at issue is based on unsettled or controversial legal
authority, reliance on the ratification doctrine is particularly questionable. Here,
the use of federal officers to arrest persons charged solely with state law violations
cannot be viewed as a settled and uncontroversial legal matter. Given these consid­
erations, and the more restrictive interpretation of the ratification doctrine reflected
in more recent court opinions, we conclude that it does not provide a reliable
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 Authority o f FBI Agents, Serving A s Special Deputy United States Marshals, to Pursue Non-Federal
Fugitives

legal basis for federal marshals to participate in the arrest of fugitives wanted
on state warrants only.

4. Inherent or Federal Common Law Authority

The USMS also contends that it has inherent or “ federal common law”
authority to pursue and arrest state law fugitives even if no federal statute applies
in the particular case. We conclude that in circumstances where there is good
reason to believe that the pursuit or arrest will prevent the commission of a federal
felony (including a violation of the FFA), the USMS does have limited inherent
authority to take the necessary preventive measures. In the absence of such cir­
cumstances, U.S. marshals would generally lack any inherent or common law
authority to pursue or arrest fugitives wanted solely for state law violations.11
However, as discussed in section II.B.2, supra, whenever a marshal or deputy
marshal is already executing federal law within a state, he may exercise the powers
of a sheriff in that state in carrying out all reasonable aspects of the federal assign­
ment. See United States v. Laub Baking Co., 283 F. Supp. 217, 220-22 (N.D.
Ohio 1968).
In 1970, this office opined that Department of Transportation personnel depu­
tized as Special Deputy Marshals had inherent authority to serve as armed air
marshals on civil aircraft in order to prevent acts of air piracy prohibited by 49
U.S.C. § 1472(h).12 The thrust of that opinion was that the United States “ has
inherent authority to take reasonable and necessary steps to prevent [federal
crimes].” Air Piracy Op. at 2 (emphasis added); see id. at 3 (stating that federal
law enforcement personnel have “ the inherent authority to protect against viola­
tion of federal criminal laws” ). We most recently reaffirmed this position in
advising the USMS that it had inherent legal authority to provide protective serv­
ices to abortion clinics and providers, without regard to the applicability of a court
order, in order to prevent violations of the Freedom of Access to Clinic Entrances
Act, 18 U.S.C. §248.
The most prominent judicial authority for the claim of inherent federal enforce­
ment authority is In re Neagle, 135 U.S. 1 (1890). There, the Court held that,
even in the absence of specific legislation, “ any duty of the marshal to be derived
from the general scope of his duties under the laws of the United States is ‘a
law’ within the meaning of [the Supremacy Clause].” Id. at 59. Although Marshal
David Neagle’s actions in shooting a would-be assassin to protect the life of a
Circuit Justice were not specifically authorized by federal statute, the Court
11 Under exigent circumstances, federal officers qualifying as peace officers under state law sometimes have the
authority, or even the duty, to intervene in state offenses committed in their presence, particularly when responding
to the call o f a local law enforcement officer. See 5 Op. O.L.C. at 48. We adhere to that interpretation, but it
applies only in narrow circumstances that do not encompass the issue posed here.
12 M emorandum for Wayne B. Colburn, Director, U.S. Marshals Service, from Leon Ulman, Deputy Assistant
Attorney General, Office o f Legal Counsel, Re: Law Enforcement Authority o f Special Deputies Assigned to D O T
to Guard A gainst Air Piracy (Sept. 30, 1970) ( “ Air Piracy Op.*’).

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considered them to be within the general scope of his duties. The Court has re-
acknowledged and reapplied the “ inherent authority” principle in subsequent
cases. See, e.g., In re Debs, 158 U.S. 564 (1895).
Based on Neagle and the principles underlying our Air Piracy opinion, we
believe that U.S. marshals have inherent authority to take reasonable and necessary
steps to prevent federal crimes.13 Participation by federal marshals in cooperative
federal-state task forces approved by the Attorney General to pursue and
apprehend fugitive federal felons would appear to be a reasonable and necessary
step to prevent violations of the FFA and other federal statutes. We do not think
that such participation is rendered legally invalid, or constitutes an insupportable
expansion of federal law enforcement authority, merely because it also entails
the pursuit and arrest of state law fugitives as the quid pro quo that motivates
the participation of state and local police in these operations. State and local
governments cannot be expected to participate in these joint operations unless
they receive reciprocal assistance in rounding up fugitives wanted under their laws
and warrants.
The validity of that aspect o f joint task force operations is also fortified by
the prospect that many state law fugitives will “ move or travel in interstate com­
merce,” and thus violate the FFA, in the course of their evasive activities. In
other words, many of the state law fugitives arrested by these joint task forces
are also potential violators of the FFA and other federal laws.

RICHARD L. SHIFFRIN
Deputy Assistant Attorney General
Office of Legal Counsel

13 W e do not base this position on the view that the scope o f federal law enforcement jurisdiction may be expanded
on the basis o f “ federal com m on law.” Rather, federal common law only provides authority for taking necessary
actions to implement federal authority that already exists or for taking emergency action to prevent crimes committed
in the presence o f the federal officer. This v iew is codified in 28 U.S.C. § 5 6 4 (formerly §570), which gives U.S.
marshals the com m on law authority of a state sheriff in the respective states, but only insofar as he is already
enforcing fed era l law within that state in the fir s t place.

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