Authority of the Secretary of the Treasury Under the

New York City Loan Guarantee Act of 1978

T h e au th o rity o f the S ecretary o f the T reasu ry to issue guarantees under the N ew Y ork 

C ity L oan G u aran tee A ct o f 1978, P .L . N o. 95-339 and P.L. N o. 95-415, w as not 

affected by a rid er in the Senate app ro p riatio n bill, H .R . 7631, und er § 101(a)(3) o f the 

C ontinuing A ppro p riatio n s R esolution, P.L. N o. 96-369, 94 Stat. 1351.

Section 101(a)(3) o f the C ontinuing A p p ro p riatio n s R esolution w as intended to distinguish 

betw een m atters considered by both the Senate and the H ouse o f R epresentatives in 

their ap propriations bills, for w hich the m ore restrictiv e o f the tw o provisions on an 

agen cy 's au th o rity is to go v ern , and m atters considered by only one H ouse in its 

ap propriations bill, for w h ich the au th o rity and conditions o f FY 1980 appropriations 

are to govern.

T h e restriction on the S ecretary o f the T re a su ry ’s au th o rity to issue guarantees under the 

N ew Y ork C ity L oan G u aran tee A ct o f 1978 is found only in th e Senate version o f the 

ap propriations bill pertaining to the N ew Y ork C ity L oan G u aran tee program and had 

not been considered by the H ouse o f R epresentatives; therefore, the Senate rider did 

not o p erate (under § 101(a)(3) o f the C ontinuing A p p ro p riatio n s R esolution) to restrict 

the S ecretary ’s au th o rity to issue N ew Y ork C ity loan guarantees.

T h e A tto rn ey G eneral does not have the au th o rity to issue opinions on questions arising 

out o f a business transaction betw een a private person and th e governm ent w hen the 

private person has insisted on receiving an A tto rn ey G en eral opinion for his benefit and 

the requesting d ep artm en t head has no real co n cern about the question.

T h e A tto rn ey G eneral w ill issue opinions related to business transactions betw een the 

g o vernm ent and private persons only w hen the transaction raises a substantial and 

genuine issue o f law arising in the adm inistration o f a D epartm ent.

October 2, 1980

T h e S e c r e t a r y o f t h e T r e a s u r y

M y D e a r M r . S e c r e t a r y ; Y o u have asked my opinion whether a 

rider contained in the Senate-passed version of H.R. 7631, concerning 

administrative funds for the New York City Loan Guarantee program, 

affects your authority to issue guarantees pursuant to the New York 

City Loan Guarantee Act of 1978, Pub. L. Nos. 95-339 and 95-415. 

For reasons elaborated below, I conclude that the rider in question has 

not taken effect, and therefore does not restrict your authority under 

the G uarantee Act.

In pertinent part, H.R. 7631, as passed by the Senate, provided:

For necessary administrative expenses as authorized by 

the New York City Loan G uarantee A ct of 1978 (Public 

Law 95-415), $922,000: Provided, That none o f these funds

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may be used to administer programs to issue loan guarantees

to New York City fo r the purpose o f permitting the Municipal Assistance Corporation to use the proceeds o f its borrowings in fiscal years 1981 and 1982 to meet the City's financing needs after fiscal year 1982.

The italicized language is the rider, which was a committee amendment. 126 Cong. Rec. S 12,589 (daily ed. Sept. 15, 1980). There is no 

provision similar to the rider in the House-passed version of the bill.

As fiscal year 1980 drew to a close, there was no opportunity for the 

normal conference procedure to resolve differences between the bills, 

and Congress found it necessary to provide continuing appropriations 

through H.J. Res. 610 for a number of agencies having pending appropriations. For agencies whose appropriations had passed both Houses, 

the Resolution provides as follows, in § 101(a)(3):

W henever the amount which would be made available 

or the authority which would be granted under an Act 

listed in this subsection as passed by the House as of 

October 1, 1980, is different from that which would be 

available or granted under such Act as passed by the 

Senate as of October 1, 1980, the pertinent project or 

activity shall be continued under the lesser amount or the 

more restrictive authority: Provided, That where an item is 

included in only one version of an A ct as passed by both 

Houses as of October 1, 1980, the pertinent project or 

activity shall be continued under the appropriation, fund, 

or authority granted by the one House, but at a rate for 

operations not exceeding the current rate or the rate permitted by the action of the one House, whichever is 

lower, and under the authority and conditions provided in 

applicable appropriation Acts for the fiscal year 1980.

The apparent purpose of § 101(a)(3) is to distinguish between matters 

considered by both Houses, for which the more restrictive of the two 

provisions is to govern, and matters considered by only one House, for 

which “authority and conditions” are to revert to those found in fiscal 

year 1980 appropriations.

Because the rider is found only in the Senate version of the underlying 1981 appropriations bill, and the issue of restricting the mode of 

administering New York City loan guarantees was not taken up in the 

House, § 101(a)(3) of H.J. Res. 610 specifies that the rider falls within 

the proviso as an “item included in only one version of an A ct.” 

Therefore, it is superseded by the “authority and conditions” found in 

applicable 1980 appropriations.

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This reading of the resolution is confirmed by the following explanation provided by the Managers in the Conference Committee Report on

H.J. Res. 610:

The Committee of Conference agrees that, for the purposes of this resolution in interpreting the language contained in Section 101(a)(3) concerning restrictive authority 

included in only one version of an A ct as passed by the 

House and Senate, the restrictive authority, as it applies to 

the proviso concerning the New York City Loan Guarantee Program, contained in the 1981 H U D Independent 

Agency Appropriation Act, must have been carried in the 

applicable Appropriation A ct for Fiscal Year 1980, before 

it is operative in Fiscal Year 1981.

The rider was “included in only one version of an A ct” within the 

meaning of the proviso to § 101(a)(3), and was therefore, by the terms 

of the proviso, superseded by the applicable appropriation act for fiscal 

year 1980, which contains no such limitation. I therefore conclude that 

the rider has not taken effect, and does not restrict your authority in 

administering the G uarantee Act.*

Sincerely,

B e n j a m i n R. C i v i l e t t i

•A s you know, A ttorney G eneral Elliot Richardson adopted the formal policy on O ctober 1, 1973, 

o f not issuing opinions regarding the validity of guarantees or other obligations issued by federal 

agencies unless the opinion request raises a genuine issue o f law. Successive A ttorneys General, 

including myself, have adhered to this policy. In addition, A ttorneys General have opined that they do 

not have the authority to issue opinions when it is apparent that the request has been made, not 

because the requestor has any real concern about his authority, but because private persons, who 

engage in transactions with the United States, have insisted upon such an opinion for their benefit. 39 

Op. A tt'y Gen. II, 17-19 (1937); 20 Op. A tt’y G en. 463, 464 (1892). Because your request raises a 

genuine issue o f law, I believe that an A ttorney G eneral’s opinion on the narrow issue presented is 

appropriate. I am also persuaded that this is a legal issue over which you have a serious concern and, 

for that reason, I believe 1 have the authority to issue this opinion. I am troubled, however, by the 

insistence of private lawyers involved in the New York guarantee transaction on receiving an 

A ttorney G eneral opinion addressing this question. I ask you to inform private persons who transact 

business with your departm ent that the A ttorney G eneral will not issue opinions solely because they 

feel it is im portant to protect them or guide them in their transactions, and that opinions related to 

business transactions with the governm ent will be issued only w hen the transaction raises a substantial 

and genuine issue o f law arising in the administration of a departm ent.

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