b'FBI Authority to Charge User Fees for Record Check Services\nT h e F ed eral B ureau o f Investigation has authority to charge the D epartm ent o f S tate user fees\nfo r F B I reco rd ch eck services used by the S tate D epartm ent to determ ine w hether visa\nap p lican ts h av e crim inal records and are thus ineligible for visas.\n\nT h e im p o sitio n o f u ser fees by the F B I for record ch eck services is discretionary.\n\nFebruary 11, 1991\nMem\n\norandum\n\nOp in io n\n\nf o r t h e a s s is t a n t\n\nFe d e r a l B u r e a u\n\nof\n\nDir e c t o r\n\nIn v e s t ig a t io n\n\nThis memorandum responds to your request for our opinion whether the\nAppropriations Act for the Departments of Commerce, Justice, and State,\nthe Judiciary and Related Agencies for Fiscal Year 1990 (\xe2\x80\x9cthe FY 1990 CJS\nAct\xe2\x80\x9d) authorizes the Federal Bureau of Investigation (\xe2\x80\x9cFBI\xe2\x80\x9d) to charge the\nDepartment of State user fees for FBI fingerprint identification and name\ncheck services (\xe2\x80\x9crecord check services\xe2\x80\x9d) provided to the State Department\nin connection with its review of visa applications. We conclude that the Act\nauthorizes the FBI to establish and collect fees for record check services\nthat are requested for, among other things, \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purposes.\nBecause the State Department\xe2\x80\x99s requests for such visa-related record checks\nare for a \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purpose, the FBI may charge the State De\xc2\xad\npartm ent a user fee for record check services provided in response to such\nrequests. We also conclude that the imposition of user fees by the FBI for\nrecord check services is discretionary.\nI.\nThe FY 1990 CJS Act authorized the FBI to \xe2\x80\x9cestablish and collect fees to\nprocess fingerprint identification records and name checks for non-criminal\njustice, non-law enforcement employment and licensing purposes.\xe2\x80\x9d Pub. L.\nNo. 101-162, 103 Stat. 988, 998-99 (1989) (the \xe2\x80\x9cuser fee provision\xe2\x80\x9d). Based\nupon this authority, the FBI notified all federal agencies that use record\ncheck services that it would charge user fees for all such services that are\nnot specifically for criminal justice or law enforcement purposes. Letter to\nAll Federal Users o f FBI Identification Division Services, from Assistant\nDirector in Charge, Identification Division, FBI, at 1 (Dec. 8, 1989). The\nState Department subsequently asked the FBI to confirm that user fees would\n18\n\n\x0cnot be charged for any visa-related record check services, asserting that \xe2\x80\x9c[t]he\npurpose of such namechecks is to avoid issuance of visas to persons who are\nexcludable from the United States by law; they are, therefore, inextricably\nintertwined with the enforcement and administration of the criminal and im\xc2\xad\nmigration laws of the United States.\xe2\x80\x9d Letter to William S. Sessions, Director,\nFBI, from Elizabeth M. Tamposi, Assistant Secretary for Consular Affairs,\nState Department, at 1 (Feb. 2, 1990).\nIn responding to the State Department\xe2\x80\x99s request, the FBI distinguished\nbetween two types of record checks of interest to the State Department. See\nLetter to Elizabeth M. Tamposi, from William S. Sessions (Mar. 26, 1990).\nThe FBI explained that record checks ordered by the FBI\xe2\x80\x99s Intelligence or\nCriminal Investigative Divisions based upon requests submitted by the State\nDepartment are considered to be \xe2\x80\x9cprimary source information in support of\nthe [intelligence and [c]ounterterrorism missions of the FBI\xe2\x80\x99s national secu\xc2\xad\nrity responsibilities,\xe2\x80\x9d and consequently no user fee would be charged for\nsuch requests. Id. at 2-3. However, the FBI stated that other record checks\nrequested by the State Department in connection with visa applications would\nbe subject to a user fee because they are not \xe2\x80\x9cused in support of the FBI\xe2\x80\x99s\nintelligence and counterterrorism, or even criminal investigative mission re\xc2\xad\nsponsibilities.\xe2\x80\x9d Id. at 3.\nThe FBI and the State Department attempted to resolve their differences\nover the FBI\xe2\x80\x99s authority to charge user fees for visa-related record checks.\nThat attempt was unsuccessful, and the FBI subsequently requested the opin\xc2\xad\nion of this Office on the scope of the FBI\xe2\x80\x99s authority to charge user fees\nunder the FY 1990 CJS Act.\n\nII.\nThe FY 1990 CJS Act, as noted above, authorizes the FBI to establish and\ncollect user fees for record check services provided \xe2\x80\x9cfor non-criminal justice,\nnon-law enforcement employment and licensing purposes.\xe2\x80\x9d 103 Stat. at 99899. The State Department asserts that this language, by its terms, authorizes\nfees only for services provided for \xe2\x80\x9cemployment and licensing purposes.\xe2\x80\x9d\nSee Letter to Joseph R. Davis, Assistant Director, Legal Counsel, FBI, from\nAlan Kreczko, Deputy Legal Adviser, Department of State, at 2 (May 24,\n1990) (\xe2\x80\x9cKreczko Letter\xe2\x80\x9d). Under this reading, the terms \xe2\x80\x9cnon-criminal jus\xc2\xad\ntice\xe2\x80\x9d and \xe2\x80\x9cnon-law enforcement\xe2\x80\x9d are construed as coordinate adjectives that\ntogether modify the word \xe2\x80\x9cemployment."1 The FBI, by contrast, argues that\nthe user fee provision must be read as a series o f three adjectives, each of\n\' Alternatively, these tw o terms might be considered as modifying the entire phrase \xe2\x80\x9cem ploym ent and\nlicensing purposes," so that the provision would be read as covering both non-criminal justice, non-law\nenforcem ent employment purposes and non-criminal justice, non-law enforcement licensing purposes.\nThe State Department has not taken a clear position as to whether, under its reading o f the provision,\nthese two terms modify both \xe2\x80\x9cemployment\xe2\x80\x9d and \xe2\x80\x9clicensing\xe2\x80\x9d or ju st \xe2\x80\x9cemployment." In any event, it is\nclear that the State D epartm ent\xe2\x80\x99s use o f FBI record check services is not for an employment or a licens\xc2\xad\ning purpose.\n\n19\n\n\x0cwhich modifies the word \xe2\x80\x9cpurposes.\xe2\x80\x9d Thus read, the user fee provision au\xc2\xad\nthorizes the FBI to impose fees for record check services provided for any of\nthree purposes: a \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purpose, a \xe2\x80\x9cnon-law enforcement\nemploym ent\xe2\x80\x9d purpose, or a \xe2\x80\x9clicensing\xe2\x80\x9d purpose. See Letter to Alan Kreczko,\nfrom Joseph R. Davis, at 2 (M ay 2, 1990) (\xe2\x80\x9cDavis Letter\xe2\x80\x9d).\nApplying ordinary rules o f English grammar, syntax and usage, we con\xc2\xad\nclude that the phrase \xe2\x80\x9cnon-criminal justice, non-law enforcement employment\nand licensing purposes\xe2\x80\x9d is susceptible of either of two permissible construc\xc2\xad\ntions. On the one hand, it would be consistent with ordinary usage to read\nthe terms \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d and \xe2\x80\x9cnon-law enforcement\xe2\x80\x9d as coordinate\nadjectives that both modify the word \xe2\x80\x9cemployment.\xe2\x80\x9d The use of a comma\nrather than the word \xe2\x80\x9cand\xe2\x80\x9d between these two terms does not defeat this\nconstruction; it is well established that coordinate adjectives may properly\nbe separated by commas. See, e.g., The Chicago Manual o f Style \xc2\xa7 5.45, at\n142 (13th ed. 1982) (giving as an example \xe2\x80\x9ca faithful, sincere friend\xe2\x80\x9d);\nGovernment Printing Office (\xe2\x80\x9cGPO\xe2\x80\x9d), Style Manual \xc2\xa7 8.38, at 121 (1984)\n(\xe2\x80\x9cshort, swift streams\xe2\x80\x9d).\nOn the other hand, it would also be consistent with ordinary usage to\nconstrue the user fee provision as comprising a series of three terms (\xe2\x80\x9cnon\xc2\xad\ncriminal justice,\xe2\x80\x9d \xe2\x80\x9cnon-law enforcement employment\xe2\x80\x9d and \xe2\x80\x9clicensing\xe2\x80\x9d), each\no f which modifies the word \xe2\x80\x9cpurposes.\xe2\x80\x9d The absence of a comma after the\nword \xe2\x80\x9cemployment\xe2\x80\x9d does not imply that the provision may not be read as a\nlist o f three items. Although grammarians appear to be divided on the strict\npropriety of omitting the comma before the word \xe2\x80\x9cand\xe2\x80\x9d in a list of three or\nmore items, see, e.g., The Chicago Manual o f Style \xc2\xa7 5.50, at 143 (final\ncom m a should always be used); GPO, Style Manual \xc2\xa7 8.43, at 122 (same);\nsee gen erally R. Copperud, American Usage and Style 78-79 (1980) (\xe2\x80\x9cOpin\xc2\xad\nion is divided on whether the comma should be used before \xe2\x80\x98and\xe2\x80\x99 in a series\n. . . .\xe2\x80\x9d), it is nonetheless consistent with ordinary English usage to leave out\nthe final, or \xe2\x80\x9cserial,\xe2\x80\x9d comma. See, e.g., L. Todd & I. Hancock, International\nEnglish Usage 389 (1987) (comma is used \xe2\x80\x9cwith words or phrases in a\nseries but not before \xe2\x80\x98and\xe2\x80\x99\xe2\x80\x9d); see also The World Almanac Guide to Good\nWord U sage 52 (M. Manser & J. McQuain eds. 1989) (\xe2\x80\x9cthe final comma\npreceding \xe2\x80\x98and\xe2\x80\x99 or \xe2\x80\x98or\xe2\x80\x99 is optional\xe2\x80\x9d). At any rate, whatever the views of\ngrammarians, it is clear that Congress regards it as acceptable to leave out\nthe serial comma. In the very same section that enacts the user fee provi\xc2\xad\nsion, Congress omitted the final comma in a context where it clearly intended\nthat the enumerated activities comprise a series o f four activities. See 103\nStat. at 998 (appropriating funds to the FBI for expenses for \xe2\x80\x9cacquisition, lease,\nmaintenance and operation of aircraft\xe2\x80\x9d).2 Accordingly, the FBI\xe2\x80\x99s construction\nof the user fee provision is consistent both with ordinary English usage and,\nmore importantly, with congressional usage.\n2 Indeed, C ongress does not appear to follow consistently any particular rule with respect to the use of\nthe serial com m a. In another list of item s in the same section, Congress did use a serial com ma. 103\nStat. at 998 (appropriating funds necessary for \xe2\x80\x9cdetection, investigation, and prosecution o f crim es\xe2\x80\x9d).\n\n20\n\n\x0cThe State Department argues that the FBI\xe2\x80\x99s construction of the user fee\nprovision renders part of the provision superfluous and that therefore the\nState Department\xe2\x80\x99s construction is syntactically preferable. Kreczko Letter,\nat 2. We disagree. While \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purposes, \xe2\x80\x9cnon-law en\xc2\xad\nforcement employment\xe2\x80\x9d purposes and \xe2\x80\x9clicensing\xe2\x80\x9d purposes are overlapping\ncategories, none of them is completely subsumed within the other two. For\nexample, there are \xe2\x80\x9clicensing\xe2\x80\x9d purposes that are related to criminal justice\nand thus not within the \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d category (e.g., a firearms\nlicense for a court bailiff). Similarly, there are \xe2\x80\x9cnon-law enforcement em\xc2\xad\nployment\xe2\x80\x9d purposes that are related to criminal justice (e.g., hiring of a\npublic defender). Accordingly, we cannot conclude that the FBI\xe2\x80\x99s construc\xc2\xad\ntion renders any portion of the user fee provision superfluous.3\nBecause both the construction suggested by the State Department and the\none offered by the FBI are grammatically permissible readings o f the statu\xc2\xad\ntory language, the user fee provision is ambiguous. The legislative history,\nhowever, establishes that the FBI\xe2\x80\x99s construction is the only one that fulfills\nCongress\xe2\x80\x99 intent in enacting the provision.\nThe legislative history establishes that the user fee provision in the FY\n1990 CJS Act was intended to effect a significant expansion in the authority\nof the FBI to charge user fees for record check services. Prior appropria\xc2\xad\ntions acts had provided the FBI only limited authority to institute a user fee\nprogram. Since 1982, appropriations acts for the Department o f Justice\nincluded language authorizing the FBI to charge fees only for fingerprint\nidentification record checks requested for \xe2\x80\x9cnoncriminal employment and li\xc2\xad\ncensing purposes.\xe2\x80\x9d Pub. L. No. 97- 257, 96 Stat. 818, 823 (1982); see also,\ne.g.. Pub. L. No. 100- 459, 102 Stat. 2186, 2195 (1988) (appropriations act\nfor fiscal year 1989). By its terms, this statutory language permitted the FBI\nto charge user fees only for fingerprint identification record checks and then\nonly if requested for \xe2\x80\x9cemployment\xe2\x80\x9d purposes or \xe2\x80\x9clicensing\xe2\x80\x9d purposes.\nIn the FY 1990 CJS Act, Congress deleted this earlier, narrow formula\xc2\xad\ntion of the FBI\xe2\x80\x99s user fee authority in favor of the current language. The\nreport submitted by the Senate Appropriations Committee, which added the\nnew language, explained that the change was intended to expand signifi\xc2\xad\ncantly the FBI\xe2\x80\x99s authority to charge user fees for record check services:\nThe expanded authority would permit the FBI to institute a\nuser fee for processing of all requests fo r other than law en\xc2\xad\nfo r c e m e n t p u r p o s e s , including those for o th er F ederal\n\n3 At any rate, the FB I\xe2\x80\x99s reading is no more redundant than that suggested by the State Department.\nBecause the terms \xe2\x80\x9cnon- criminal justice" and \xe2\x80\x9c non-law enforcement" substantially overlap, construing\nboth words as simultaneously modifying the term \xe2\x80\x9cemployment\xe2\x80\x9d renders the second adjective largely\nredundant.\n\n21\n\n\x0cGovernment agencies. The costs to the FBI of providing name\ncheck and fingerprint identification services for nonlaw en\xc2\xad\nforcement purposes are considerable and have begun to negatively\nimpact on its basic law enforcement mission. The Committee\nrecognizes the value of these services to other Federal users,\nhowever, and believes it is important that the FBI continue to\nmake them available, although on a reimbursable basis.\nS. Rep. No. 144, 101st Cong., 1st Sess. 46 (1989) (emphasis added). The\nSenate Committee thus recognized that the increasing cost of record check\nservices \xe2\x80\x9cfor nonlaw enforcement purposes\xe2\x80\x9d was having an adverse effect on\nthe FB I\xe2\x80\x99s overall budget and, consequently, on its ability to perform \xe2\x80\x9cits\nbasic law enforcement mission.\xe2\x80\x9d It therefore expanded the FBI\xe2\x80\x99s authority\nso as to permit the collection of user fees for all record check requests \xe2\x80\x9cfor\nother than law enforcement purposes,\xe2\x80\x9d rather than just the employment and\nlicensing purposes previously authorized. Id.\nT he FBI\xe2\x80\x99s construction o f the user fee provision is the only reading that\ngives effect to this unmistakable congressional intent to expand the FBI\xe2\x80\x99s\nauthority to charge user fees for all record check services \xe2\x80\x9cfor other than\nlaw enforcement purposes.\xe2\x80\x9d Under the FBI\xe2\x80\x99s reading of the provision, the\nFBI is authorized to charge a user fee for any record check that is requested\nfor, among other things, a \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purpose. Because there is\na substantial overlap between the term \xe2\x80\x9cnon-law enforcement,\xe2\x80\x9d which is\nused in the Senate Report, and the statutory term \xe2\x80\x9cnon-criminal justice,\xe2\x80\x9d the\nF B I\xe2\x80\x99s construction substantially effectuates the congressional intent that the\nFBI have the authority to collect user fees for record checks performed for\nall \xe2\x80\x9cnon-law enforcement\xe2\x80\x9d purposes.\nBy contrast, the State Department\xe2\x80\x99s construction fails to expand the range\no f purposes for which a record check request would be subject to the FBI\xe2\x80\x99s\nuser fee authority. Under the State Department\xe2\x80\x99s reading, Congress simply\nsubstituted a new set of adjectives to describe the type of employment pur\xc2\xad\nposes for which the FBI could charge a user fee: the coordinate adjectives\n\xe2\x80\x9cnon-criminal justice, non-law enforcement\xe2\x80\x9d were substituted for the earlier\nadjective \xe2\x80\x9cnoncriminal.\xe2\x80\x9d The State Department has not pointed to any evi\xc2\xad\ndence in the legislative history \xe2\x80\x94 and we have been unable to find any\nevidence \xe2\x80\x94 that Congress intended to limit the FBI\xe2\x80\x99s expanded user fee\nauthority to employment and licensing purposes. On the contrary, this read\xc2\xad\ning of the provision fails to carry out Congress\xe2\x80\x99 explicit intent to expand the\nFB I\xe2\x80\x99s authority so that it would cover \xe2\x80\x9call requests for other than law en\xc2\xad\nforcem ent purposes.\xe2\x80\x9d S. Rep. No. 144, supra, at 46. Indeed, the State\nD epartm ent\xe2\x80\x99s reading may actually contract the FBI\xe2\x80\x99s authority in this re\xc2\xad\ngard. To the extent that the two new adjectives do not completely overlap in\nmeaning, the set of employment purposes that are both \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d\nand \xe2\x80\x9cnon-law enforcement\xe2\x80\x9d is necessarily smaller than the comparatively\n22\n\n\x0cbroad set of \xe2\x80\x9cnoncriminal\xe2\x80\x9d employment purposes.4\nThe State Department argues that the FBI\xe2\x80\x99s conclusion that it may charge\na user fee for record checks conducted for \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purposes is,\non its face, inconsistent with the Senate Report\xe2\x80\x99s statement that the provision\n\xe2\x80\x9cwould permit the FBI to institute a user fee for processing of all requests for\nother than law enforcement purposes.\xe2\x80\x9d S. Rep. No. 144, supra, at 46 (em\xc2\xad\nphasis added); Kreczko Letter, at 3. In essence, the State Department contends\nthat the FBI\xe2\x80\x99s reading places primary emphasis on the wrong statutory term.\nWe find this argument unpersuasive. Under any reading of the user fee\nprovision, the term \xe2\x80\x9cnon-law enforcement\xe2\x80\x9d modifies the word \xe2\x80\x9cemployment\xe2\x80\x9d ;\ntherefore, there is no sense in which the statutory language can be read to\nalign precisely with the description in the Senate Report. Under these cir\xc2\xad\ncumstances, our task is to determine which of the facially perm issible\nconstructions of the statutory text best fulfills the congressional purpose. As\nexplained above, \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d is sufficiently close in meaning to\n\xe2\x80\x9cnon-law enforcement\xe2\x80\x9d that the FBI\xe2\x80\x99s reading effectuates Congress\xe2\x80\x99 intent.\nIndeed, the FBI\xe2\x80\x99s reading is the only construction that fulfills that intent.5\nAccordingly, we conclude that the FY 1990 CJS Act must be construed to\nauthorize the FBI to impose a user fee for any record check services per\xc2\xad\nform ed for a \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purpose, a \xe2\x80\x9cnon-law enforcem ent\nemployment\xe2\x80\x9d purpose or a \xe2\x80\x9clicensing\xe2\x80\x9d purpose.\n\nIII.\nThe State Department asserts that the record check requests it submits to\nthe FBI \xe2\x80\x9chave no other purpose than to support a law enforcement objec\xc2\xad\ntive\xe2\x80\x9d and that they are therefore not subject to a user fee. Kreczko Letter, at\n\n4 B oth the State D epartm ent and the FBI assert that th eir resp ectiv e c o nstructions are su pported by the\nstatem e n t in the S enate R eport that the new u ser fee provision w as intended to give the FB I a u th o rity to\nc h arg e fees for record checks perform ed for \xe2\x80\x9call civil, nonlaw en fo rcem ent e m ploym ent and lic ensing\np u rp o se s." S. R ep. No. 144, supra , at 45 See K reczko Letter, at 3; D avis Letter, at 3. A lth o u g h we\nb eliev e that this language h elp s to clarify the m eaning o f th e term \xe2\x80\x9c non- crim inal ju s tic e ,\xe2\x80\x9d see infra p. 24,\nw e do not believe that it assists in d eterm in in g w hich o f the tw o co n structions is the co rre c t one, b ecau se\nth e p assag e includes precisely the sam e gram m atical am b ig u ity as the statutory language\n5 A lthough the State D ep artm en t\'s reading fails to give effect to C o n g ress\xe2\x80\x99 intent th at FB I h ave the\na u th o rity to charge a user fee fo r all record ch eck s co n d u cted fo r n o n -law en forcem ent pu rp o ses, S. R ep.\nN o. 144, supra, at 46, both c o n stru ctio n s o f the provision w ould e x p and the F B I\xe2\x80\x99s u ser fee a u th o rity in\nth re e oth er resp ects intended by C ongress. F irst, the S enate R eport m akes c le ar that, in m aking these\nc h an g es to the u ser fee pro v isio n . C ongress intended that the p rovision w ould be g iv en its full literal\nsco p e and th erefo re that the FB I was auth o rized to c o llect user fees from o ther federal agencies. Id. at\n4 5 -4 6 . D espite the broad term s o f the 1982 p ro v isio n , the FBI had not collected user fees from fed eral\na g en c ie s betw een 1982 and 1989 Second, the new language also authorized the FBI to charge u ser fees\nin connectio n w ith \xe2\x80\x9c nam e ch eck s\xe2\x80\x9d o f crim in al records in addition to \xe2\x80\x9c fingerprint id e n tific a tio n " record\nc h eck s. Compare Pub. L. No. 101 -162, 103 Stat. at 999 with Pub. L N o. 97-257, 96 Stat. at 823. T h ird ,\nthe new provision also allow ed the FBI to charge a u ser fee for record checks p erform ed \xe2\x80\x9c for c ertain\ne m p lo y e es o f p riv ate secto r contractors w ith classified G o v ern m en t co n tracts." Pub. L. N o 101-162.\n103 Stat at 999. E ither read in g o f the p rovision w ould effectuate the c ongressional purpose on these\nth re e points, but only the F B I\'s construction fulfills C o n g re ss\xe2\x80\x99 intent that the FB I have the a u th o rity to\nc o lle ct u ser fees fo r all record checks conducted fo r non-law enforcement purposes.\n\n23\n\n\x0c2. It says that its only purpose in submitting name checks in connection with\nvisa applications is \xe2\x80\x9cto avoid issuance of visas to persons who are excludable\nfrom the United States by law.\xe2\x80\x9d Id. Because \xe2\x80\x9c[s]ections 212(a)(9), (10), and\n(23) o f the [Immigration and Nationality Act (\xe2\x80\x9cINA\xe2\x80\x9d)] forbid the issuance of\nvisas to aliens who have criminal records,\xe2\x80\x9d the State Department argues, its\nrecord check requests are submitted for the purpose of enforcing the law and\ntherefore should not be subject to a user fee. Id.\', see also Letter for Paul P.\nColbom, Senior Counsel, Office of Legal Counsel, from Alan Kreczko, at 1\n(Aug. 31, 1990) (\xe2\x80\x9cthe sole and exclusive justification for the namecheck/\nfingerprint function in the first instance is a criminal justice, law enforcement\none, i.e., the detection and exclusion of criminal aliens from the United States\nin accordance with Congress\xe2\x80\x99 intent in the relevant exclusionary provisions\no f the [INA]\xe2\x80\x9d).\nWe conclude, however, that the State Department\xe2\x80\x99s requests for record\nchecks in connection with visa applications are for a \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d\npurpose. In ordinary usage, the term \xe2\x80\x9ccriminal justice\xe2\x80\x9d refers to the admin\xc2\xad\nistration and enforcement o f the criminal law. See, e.g., W ebster\xe2\x80\x99s Third\nN ew International Dictionary 1228 (1986) (defining \xe2\x80\x9cjustice\xe2\x80\x9d as the \xe2\x80\x9cad\xc2\xad\nministration of law\xe2\x80\x9d). Accordingly, a \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purpose is a\npurpose that is not related to the administration of criminal laws. The Sen\xc2\xad\nate Report confirms this understanding of \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purposes\nby generally equating them with \xe2\x80\x9ccivil\xe2\x80\x9d purposes. See note 4 supra. The\nState Departm ent\xe2\x80\x99s requests for visa-related record checks relate not to the\nadministration o f criminal laws, but to the administration of certain civil\nprovisions of the INA. The State Department does not request record checks\nfor visa applicants for the purpose of investigating whether those applicants\nhave violated the criminal laws of the United States and should be arrested\nor prosecuted, but rather to determine whether a visa applicant already has a\ncriminal record that would require his or her exclusion from the United\nStates. See 8 U.S.C. \xc2\xa7 1182(a)(9), (10), (23) (listing classes of aliens with\ncriminal records who \xe2\x80\x9cshall be ineligible to receive visas and shall be ex\xc2\xad\ncluded from admission into the United States\xe2\x80\x9d). Indeed, a decision by the\nState Department to deny a visa does not involve any criminal penalty. See\nid. \xc2\xa7 1201. In short, the State Department\xe2\x80\x99s role under the INA does not\ninclude criminal justice responsibilities, but rather the administration of a\ncivil program.6\n6 T he State D epartm ent also argues that, even if these record checks are not requested for \xe2\x80\x9ccriminal\nju stice\xe2\x80\x9d purposes, they are nonetheless for \xe2\x80\x9claw enforcem ent\xe2\x80\x9d purposes and for this reason should be\nexem pt from user fees. It is not clear from the statutory text whether the term \xe2\x80\x9claw enforcem ent" is\nmeant to em brace ju st the enforcement o f criminal laws \xe2\x80\x94 which we believe to be the more conven\xc2\xad\ntional use o f the term \xe2\x80\x94 or whether it is also intended to include the enforcem ent of civil laws. As noted\nabove, however, the Senate Report is clear that this term is being used in the narrower sense o f criminal\nlaw enforcem ent. See S. Rep. No. 144, supra, at 45 (user fees generally authorized for record checks\nrequested for "civil" purposes). The State Department\'s argument ultimately fails in any event because\nthe term \xe2\x80\x9c non-law enforcem ent," as used in the user fee provision, m odifies the word \xe2\x80\x9cemploym ent.\xe2\x80\x9d\nThere is, o f course, no suggestion that the State Department\'s review of visa applications is in any way\nassociated with potential employment of aliens by agencies that conduct law enforcement, whether it be\ncivil or crim inal.\n\n24\n\n\x0cThe State Department\xe2\x80\x99s purpose in requesting a record check of a visa\napplicant is, therefore, a civil, rather than a criminal justice, purpose.7 Be\xc2\xad\ncause the record check services that the FBI provides the State Department in\nconnection with visa applications serve a \xe2\x80\x9cnon-criminal justice\xe2\x80\x9d purpose, we\nconclude that the FBI is authorized to charge user fees for such services.8\n\nIV.\nThe FBI has also asked whether, if it has such authority, it is required to\ncharge the State Department for these services. This question is resolved by\nthe language of the user fee provision, which states that \xe2\x80\x9cthe Director of the\n[FBI] may establish and collect fees to process fingerprint identification\nrecords and name checks for non-criminal justice, non-law enforcement em\xc2\xad\nployment and licensing purposes.\xe2\x80\x9d 103 Stat. at 998-99 (emphasis added).\nIn using the permissive \xe2\x80\x9cmay,\xe2\x80\x9d rather than the mandatory \xe2\x80\x9cshall,\xe2\x80\x9d Congress\nclearly authorized, but did not require, the FBI to charge user fees.9\n\nCONCLUSION\nWe conclude for the reasons stated that the FY 1990 CJS Act authorizes\nthe Federal Bureau of Investigation to charge the Department of State user\nfees for FBI record check services used by the State Department to deter\xc2\xad\nmine whether visa applicants have criminal records and are thus ineligible for\nvisas. We also conclude that the FBI\xe2\x80\x99s exercise of this authority is discretionary.\nJ. MICHAEL LUTTIG\nAssistant Attorney General\nOffice o f Legal Counsel\n\n7We agree with both the FBI and the State Department that record checks ordered by the FB I\xe2\x80\x99s Intelli\xc2\xad\ngence or Criminal Investigative Divisions, based upon requests submitted by the State Departm ent, are\nconducted for a criminal justice purpose and thus are not subject to a user fee.\n8 In light of this conclusion, we do not address the FBI\xe2\x80\x99s argument that the Economy Act, 31 U.S.C. \xc2\xa7\n1535, is available as a separate and independent source of authority. Nor do we consider the F B I\xe2\x80\x99s\nauthority to charge user fees to any other particular federal agency, because to do so would require\nexamination o f the particular purposes for which the services would be provided. We note, however,\nthat the analytical fram ew ork used in this opinion will generally be applicable in the context of record\ncheck services provided by the FBI to other federal agencies. We also note that the conclusions and\nanalysis in this opinion remain applicable for the current fiscal year because the user fee provision in\nthe FY 1990 CJS Act has been reenacted verbatim in the fiscal year 1991 appropriations legislation for\nthe FBI See Departm ents of Commerce, Justice, and State, the Judiciary, and Related Agencies Appro\xc2\xad\npriations Act, 1991, Pub. L. No. 101-515, !04Stal. 2101,2112(1990).\n\xe2\x80\x99 The provision o f record check services to the State Department for visa-related purposes does not\nimplicate the rule prohibiting augmentations of agency appropriations that are not authorized by law.\nSee generally United States General Accounting Office, Office o f General Counsel, Principles o f Fed\xc2\xad\neral Appropriations Law, at 5-62 through 5-93 (1982). In granting the FBI discretionary authority to\nimpose user fees. Congress has expressly authorized any resulting augmentation in the appropriations\no f either the FBI or any agency to which it provides record check services.\n\n25\n\n\x0c'


b'Prejudgment Interest Under the Back Pay Act for Refunds of\nFederal Insurance Contributions Act Overpayments\n\nT h e B ack Pay A c t\xe2\x80\x99s a u th o riz a tio n o f p re ju d g m e n t in te re st d o e s n o t a p p ly to the re tu rn o f a F ederal\nIn su ran ce C o n trib u tio n s A ct tax o v e rp a y m e n t.\n\nE ven i f the B a c k Pay A c t d id ap p ly to su ch re tu rn s, an a g e n c y \xe2\x80\x99s sp e c ific e x e m p tio n fro m lia b ility u n \xc2\xad\nd e r the F e d e ra l In su ra n c e C o n trib u tio n s A ct w o u ld o v e m d e the p ro v isio n s o f the B ack P a y A ct.\n\nMay 31, 1994\n\nM e m o r a n d u m O p in io n f o r t h e A c t in g G e n e r a l C o u n s e l\nD e pa r t m e n t o f D efen se\n\nThis memorandum responds to your Office\xe2\x80\x99s request for our opinion whether\ncivilian employees of the Department of Defense (\xe2\x80\x9cDoD\xe2\x80\x9d) who receive from the\nInternal Revenue Service (\xe2\x80\x9cIRS\xe2\x80\x9d) a refund of taxes that were deducted from their\npay pursuant to 26 U.S.C. \xc2\xa7 3121(a) of the Federal Insurance Contributions Act, 26\nU.S.C. \xc2\xa7\xc2\xa7 3101-3128 (\xe2\x80\x9cFICA\xe2\x80\x9d), as amended, are entitled to receive prejudgment\ninterest on the refund from DoD pursuant to the Back Pay Act, 5 U.S.C. \xc2\xa7 5596, as\namended. We conclude that these DoD employees are not entitled to receive addi\xc2\xad\ntional interest from DoD.\nI.\nBACKGROUND\nFICA imposes a tax on the income of every employee, calculated as a percent\xc2\xad\nage of wages, for the support of old-age, survivors, disability, and hospital insur\xc2\xad\nance. 26 U.S.C. \xc2\xa7 3101. A corresponding payroll tax for the same purpose is\nimposed on every employer with respect to each employee. Id. \xc2\xa7 3111. Under\nFICA, every employer must deduct its employees\xe2\x80\x99 share of the FICA tax from their\nwages \xe2\x80\x9cas and when paid.\xe2\x80\x9d Id. \xc2\xa7 3102(a). All sums collected must be paid over to\nthe IRS. Id. \xc2\xa7 3102(b). In 1983, FICA taxation was extended to all subsequently\nhired civilian federal employees. See Social Security Act Amendments of 1983,\nPub. L. No. 98-21, \xc2\xa7 101(b)(1), 97 Stat. 65, 69 (codified as amended at 26 U.S.C.\n\xc2\xa7 3121(b)(5), (6)); S. Rep. No. 98-23, at 5 (1983). Each federal agency is treated\nas a separate employer for purposes of FICA. See 26 U.S.C. \xc2\xa7 3122.\nCertain civilian DoD employees receive allowances for living quarters and for\ntemporary lodging costs pursuant to the Overseas Differentials and Allowances\nAct, 5 U.S.C. \xc2\xa7 5923, as amended (\xe2\x80\x9cODAA allowances\xe2\x80\x9d). ODAA allowances have\n127\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nalways been expressly exempted from income tax. See 26 U.S.C. \xc2\xa7 912(1)(C);\nAnderson v. United States, 929 F.2d 648, 649 (Fed. Cir. 1991). Because FICA\ndoes not expressly exempt ODAA allowances from taxation, an issue arose as to\nwhether such payments were taxable for that purpose. DoD concluded that they\nwere and, accordingly, deducted appropriate sums from its employees\xe2\x80\x99 ODAA\nallowances and paid those funds over to the IRS. See Anderson v. United States,\n16 Cl. Ct. 530, 532-33 (1989) At least some of the affected employees filed ad\xc2\xad\nministrative claims for refunds, which the IRS denied. Id. at 533-34.\nThe IRS\xe2\x80\x99s denial of these claims did not survive judicial scrutiny. In Anderson,\na number of DoD employees brought suit against the United States, seeking a re\xc2\xad\nfund of the FICA taxes paid on ODAA allowances for the years 1984 through\n1987. The Court of Federal Claims granted them summary judgment, holding that\nODAA allowances are exempt from FICA taxation. 16 Cl. Ct. at 541. The deci\xc2\xad\nsion was affirmed on appeal. Anderson v. United States, 929 F.2d 648 (Fed. Cir.\n1991). The United States did not petition the Supreme Court for a writ of certio\xc2\xad\nrari. As a result of Anderson, certain DoD employees (and other similarly situated\nfederal employees) will receive refunds of the contested FICA taxes (\xe2\x80\x9cAnderson\nemployees\xe2\x80\x9d).\nII.\nISSUE FOR CONSIDERATION\nW e have been asked to determine the amount of interest that must be paid on\nFICA tax refunds to Anderson employees. Absent a waiver of sovereign immunity,\nthe United States and its agencies are not liable for prejudgment interest. See, e.g.,\nLibrary o f Congress v. Shaw, 478 U.S. 310, 310, 314-15 (1986); Loefflerv. Frank,\n486 U.S. 549, 554, 556-57 (1988). The Internal Revenue Code (\xe2\x80\x9cCode\xe2\x80\x9d) contains\nsuch a waiver with respect to refunds of FICA tax overpayments. See 26 U.S.C.\n\xc2\xa7\xc2\xa7 6413(b), 6611(a). The Office of Personnel Management (\xe2\x80\x9cOPM\xe2\x80\x9d) and DoD\nagree that the IRS must pay Anderson employees prejudgment interest on their\nFICA tax refunds pursuant to these provisions.\nThe Back Pay Act, however, also expressly permits prejudgment interest on an\naward of \xe2\x80\x9cback pay,\xe2\x80\x9d as defined by that Act. See 5 U.S.C. \xc2\xa7 5596(b); Brown v.\nSecretary o f the Army, 918 F.2d 214, 216-18 (D.C. Cir. 1990), cert, denied, 502\nU.S. 810 (1991). OPM believes that Anderson employees are entitled to receive\ninterest on their refunds under the Back Pay Act. See Letter for Albert V. Conte,\nDirector, Defense Finance and Accounting Service, Department of Defense, from\nConstance Berry Newman, Director, Office of Personnel Management at 1 (Apr.\n27, 1992) (\xe2\x80\x9cNewman Letter\xe2\x80\x9d); Letter for Philip M. Hitch, Deputy General Counsel\n(Fiscal), Department of Defense, from Arthur Troilo III, General Counsel, Office\nof Personnel Management at 3-4 (Nov. 30, 1992) (\xe2\x80\x9cTroilo Letter\xe2\x80\x9d). Accordingly,\nOPM instructed federal agencies that: \xe2\x80\x9cBecause IRS computes interest in a manner\n128\n\n\x0cP rejudgm ent Interest Under the B ack Pay A ct f a r R efunds o f\nF ederal Insurance C ontributions A ct O verpaym ents\n\nthat would result in a smaller interest payment to employees, agencies must com\xc2\xad\npute interest due employees under the back pay law (5 U.S.C. 5596).\xe2\x80\x9d Attachment\nto Memorandum for Directors of Personnel from Claudia Cooley, Associate Di\xc2\xad\nrector for Personnel Systems and Oversight at 3 (Dec. 3, 1991). OPM further in\xc2\xad\nstructed that each agency must add to the IRS\xe2\x80\x99s interest payment an amount\nsufficient to make the total equal to the larger amount of interest prescribed under\nthe Back Pay Act. Newman Letter at 1-2. OPM suggests that agencies failing to\nmake this payment could be held liable for the additional amount. Troilo Letter at\n3, 4. DoD\xe2\x80\x99s position is that it has no legal obligation to pay any additional inter\xc2\xad\nest.1\nIII.\nLEGAL ANALYSIS\nWe conclude that the Back Pay Act\xe2\x80\x99s authorization of prejudgment interest does\nnot apply to the return of a FICA tax overpayment. The Back Pay Act was not\nintended to remedy this type of injury. Indeed, as discussed below, FICA contains\na provision that exempts employers from liability in these circumstances. Conse\xc2\xad\nquently, there is no legal basis for OPM\xe2\x80\x99s instruction to agencies to pay additional\ninterest computed under the Back Pay Act.\nA. THE REQUIREMENTS FOR APPLICATION\nOF THE BACK PAY ACT ARE NOT MET\nThe Back Pay Act provides:\nAn employee of an agency who, on the basis of a timely appeal\nor an administrative determination . . . is found by appropriate\nauthority under applicable law, rule, regulation, or collective bar\xc2\xad\ngaining agreement, to have been affected by an unjustified or un\xc2\xad\nwarranted personnel action which has resulted in the withdrawal or\nreduction of all or part of the pay, allowances, or differentials of the\nemployee\xe2\x80\x94\n. . . is entitled, on correction of the personnel action, to receive\nfor the period for which the personnel action was in effect\xe2\x80\x94\n\n1\nD oD estim ates lhat paying additional interest under the Back Pay A ct w ould c o st approxim ately $7\nmillion M em orandum for Daniel L K offsky A cting A ssistant A ttorney G eneral, O ffice of Legal C ounsel,\nD epartm ent o f Justice, from Jam ie S. G orelick, G eneral C ounsel, D epartm ent of D efense at 6 (Ju n e 21,\n1993).\n\n129\n\n\x0cO pinions o f the O ffice o f L egal C ounsel\n\n. . . an amount equal to all or any part of the pay, allowances, or\ndifferentials, as applicable which the employee normally would\nhave earned or received during the period if the personnel action\nhad not occurred, less any amounts earned by the employee through\nother employment during that period.\n5 U.S.C. \xc2\xa7 5596(b).\nIn general, the Back Pay Act grants a cause of action to an employee who has\nlost pay as a result of a wrongful personnel action. Its purpose is to permit such an\nemployee to recover money damages sufficient to make the employee whole.\nUnited States v. Testan, 424 U.S. 392, 407 (1976): Wells v. FAA, 755 F.2d 804,\n807 (1 1th Cir. 1985). The need for the Act arises \xe2\x80\x9cby the fact that, absent specific\ncommand of statute or authorized regulation, an appointed employee subjected to\nunwarranted personnel action does not have a cause of action against the United\nStates.\xe2\x80\x9d United States v. Hopkins, 427 U.S. 123, 128 (1976). The Supreme Court\nrepeatedly has adhered to a narrow construction of the Back Pay Act, finding that it\nauthorizes money damages only in the \xe2\x80\x9c\xe2\x80\x98carefully limited circumstances\xe2\x80\x99\xe2\x80\x9d ex\xc2\xad\npressly set forth in the statute. United States v. Mitchell, 463 U.S. 206, 217 (1983)\n(quoting United States v. Testan, 424 U.S. at 404).\nOPM maintains that the Back Pay Act applies concurrently with the provisions\nof the Code as a remedy for an agency\xe2\x80\x99s erroneous deduction of too much FICA\ntax from its employees\xe2\x80\x99 earnings. OPM has not, however, cited (nor have we\nfound) any reported decision applying the Back Pay Act in such circumstances. In\nlight of the Supreme Court\xe2\x80\x99s strict construction of the Back Pay Act, the absence of\nauthority suggests that OPM \xe2\x80\x99s novel application should be approached with skepti\xc2\xad\ncism.\nOPM, moreover, has not demonstrated that the specific requirements of a Back\nPay Act action have been met. The first requirement is that an employee must have\nbeen subject to an \xe2\x80\x9cunjustified or unwarranted personnel action.\xe2\x80\x9d The legislative\nhistory of the Back Pay Act discusses the types of personnel actions falling within\nits purview:\nH.R. 1647 does not prescribe the specific types of personnel ac\xc2\xad\ntions covered. Separations, suspensions, and demotions constitute\nthe great bulk of cases in which employees lose pay or allowances,\nbut other unwarranted or unjustified actions affecting pay or allow\xc2\xad\nances could occur in the course of reassignments and change from\nfull-time to part-time work. If such actions are found to be unwar\xc2\xad\nranted or unjustified, employees would be entitled to backpay bene\xc2\xad\nfits when the actions are corrected.\n\n130\n\n\x0cP rejudgm ent Interest Under the Back Pay A ct f o r R efunds o f\nF ederal Insurance C ontributions A ct O verpaym ents\n\nS. Rep. No. 89-1062, at 3 (1966); see United States v. Testan, 424 U.S. at 405-06\n(quoting this cited legislative history).\nThe examples given in the Senate report all involve an alteration of the terms of\nemployment, such as the downgrading of an employee\xe2\x80\x99s appointed position, that\ncause an employee to earn less money. The damages owed to the employee equal\nthe reduction of earnings arising out of the adverse personnel action. In contrast,\nthe Anderson employees did not suffer a loss of earnings: they concededly earned\nthe money that was deducted from their paychecks. Their claim, rather, was that\nthe United States was indebted lo them to the extent that the FICA deductions ex\xc2\xad\nceeded their actual tax liability. See Stone v. White, 301 U.S. 532, 534-35 (1937)\n(claim of tax overpayment is in the nature of one for money had and received);\nKing v. United States, 641 F.2d 253, 259 (5th Cir. 1981) (same); M issouri Pac.\nR.R. Co. v. United States, 338 F.2d 668, 670 (Ct. Cl. 1964) (taxpayer bringing\naction for refund must show payment of excess taxes that equitably belong to him\nor there can be no recovery). At least one court has held that a claim for money\ndue is not cognizable under the Back Pay Act:\nMere failure by a government agency to pay money due is not\nthe kind of adverse personnel action contemplated in the Back Pay\nAct. We are not called upon to correct an adverse personnel ac\xc2\xad\ntion. . . . Plaintiffs\xe2\x80\x99 claims are analogous to ones for unpaid salary\nfor time actually worked.\nBell v. United States, 23 Cl. Ct. 73, 77 (1991). Thus, we conclude that DoD\xe2\x80\x99s er\xc2\xad\nroneous deduction of too much FICA tax was not an adverse personnel action\nwithin the contemplation of the Back Pay Act. OPM has not called our attention\nto, and we have not discovered, any decision that might compel a different conclu\xc2\xad\nsion.\nA second essential element under the Back Pay Act is that the personnel action\nmust have caused the \xe2\x80\x9cwithdrawal or reduction of all or part of the pay, allow\xc2\xad\nances, or differentials of the employee.\xe2\x80\x9d OPM suggests that an agency\xe2\x80\x99s deduction\nof too much FICA tax constitutes a reduction in pay (or, in this case, allowances).\nSection 3123 of FICA, however, provides:\n\nWhenever under . . . [FICA] . . . an employer is required or per\xc2\xad\nmitted to deduct any amount from the remuneration of an employee\nand to pay the amount deducted to the United States, . . . then for\npurposes of [FICA] the amount so deducted shall be considered to\nhave been paid to the employee at the time o f such deduction.\n\n26 U.S.C. \xc2\xa7 3123 (emphasis added). See Pope v. University o f Washington, 852\nP.2d 1055, 1062 (Wash. 1993), cert, denied, 510 U.S. 11 15 (1994); IRS Private\n131\n\n\x0cOpinions o f th e O ffice o f L egal C ounsel\n\nRuling 7702012130A, 1977 PRL Lexis 60. Cf. Slodov v. United States, 436 U.S.\n238, 243 (1978) (\xe2\x80\x9c[o]nce net wages are paid to the employee, the taxes withheld\nare credited to the employee regardless of whether they are paid by the employer,\nso that the IRS has recourse only against the employer for their payment\xe2\x80\x9d). DoD\nwas \xe2\x80\x9crequired or permitted\xe2\x80\x9d to determine the amount of remuneration subject to tax\nand to make the appropriate deduction. See 26 U.S.C. \xc2\xa7 3102(b); id. \xc2\xa7 3122.\nThus, the deductions at issue here must be considered as having been paid to the\nAnderson employees.2\nFinally, the Back Pay Act requires that the employing agency have been found\nby an \xe2\x80\x9cappropriate authority\xe2\x80\x9d to have engaged in a wrongful personnel action.\nOPM has defined this term in its regulations: \xe2\x80\x9cAppropriate authority means an\nentity having authority in the case at hand to correct or direct the correction of an\nunjustified or unwarranted personnel action, including . .. the Office of Personnel\nM anagement.\xe2\x80\x9d 5 C.F.R. \xc2\xa7 550.803.\nOPM regards itself as the \xe2\x80\x9cappropriate authority\xe2\x80\x9d that has found that DoD has\nengaged in a wrongful personnel action with respect to the Anderson employees:\nOPM clearly meets the definition [of an \xe2\x80\x9cappropriate authority\xe2\x80\x9d\nset forth in 5 C.F.R. \xc2\xa7 550.803] . . . and, in addition, is specifically\nmentioned as such an authority [in the regulation], . . . In the case\nof the FICA tax issue, OPM, consistent with its mission as the Fed\xc2\xad\neral personnel administrator, was compelled to issue guidance to\nFederal agencies setting forth instructions on how to implement the\nAnderson decision, including how to correct the erroneous with\xc2\xad\nholdings of FICA taxes.\n\n2\nS ectio n 3123, by its term s, applies only " fo r p u rposes\xe2\x80\x9d o f FIC A . Thus, it is possible lhat the deduction\nm ight be treated as a n o n -p ay m en t o f wages fo r purposes o f som e other statute. But there is no basis for\ndoing so here, because ihe B ack Pay Act is p u re ly rem edial: it restores pay lost to an em ployee from the\nviolation o f a right gran ted un d er another \xe2\x80\x9c a p p licab le law, rule, regulation, or collective bargaining agree\xc2\xad\nm ent.\'\xe2\x80\x99 5 U S C . (j 5596(b) T he \' \xe2\x80\x98applicable law " in this case\xe2\x80\x94 FIC A \xe2\x80\x94 expressly authorized D oD to m ake\nthe c o n te ste d d ed u ctio n s and com m anded th a t they be co n sid ered as a paym ent o f rem uneration Thus,\nD o D \xe2\x80\x99s erro n eo u s FIC A d ed u ctio n s cannot serv e as the predicate for an action under the Back Pay A ct, w hich\nrequires that the claim ant have suffered a loss o f pay resulting from a w rongful personnel action.\nW e note also that the clash o f assum ptions betw een FICA an d the Back Pay Act concerning w hether an\na g e n c y \'s d ed u ctio n o f FIC A tax is a payment o f w ages could ex p o se the A nderson em ployees to unpleasant\ntax c o n seq u en ces if, as O PM proposes, the tw o schem es w ere applied concurrently. It is settled law that\naw ards u n d e r the Back Pay A ct are taxable e a rn in g s for FIC A and incom e tax purposes, subject to tax w ith\xc2\xad\nholding w hen they are paid to the employee. S e e, e.g., Tanaka v. D epartm ent o f Navy, 788 F.2d 1552, 1553\n(Fed. C ir. 1986), A in sw o rth v. U nited Stales, 3 9 9 F 2d 176, 185-86 (C t Cl 1968), K opp v. D epartm ent o f\nA ir F orce, 37 M .S P R 434, 4 3 6 (1988) T h is tax treatm ent co m p o rts w ith the theory that the Back Pay Act\nprovides \xe2\x80\x98\xe2\x80\x9c rep aratio n . based upon the loss o f w ages w hich the em ployee has suffered from the em p lo y er\xe2\x80\x99s\nw ro n g .\xe2\x80\x99" A in sw o rth , 3 9 9 F 2d at 185 (quoting S o cia l S ecu rity Bd. v. N ierotko, 327 U S 358, 364 (1946)).\nT hus, alth o u g h O D A A allo w an ces ordinarily are excluded from FICA and incom e taxation, the A nderson\nem p lo y e es\xe2\x80\x99 recovery w ould be taxable as o rd in ary wage earn in g s if they w ere received as an aw ard of back\npay ra th e r th an as a tax refu n d (absent an e q u ita b le adjustm ent). T his anom aly highlights the dubious nature\no f any su g g estio n that the Back Pay Act has a ro le to play in the return o f a tax overpaym ent.\n\n132\n\n\x0cP rejudgm ent Interest U nder the B ack Pay A ct f o r R efunds o f\nF ederal Insurance C ontributions A ct O verpaym ents\n\nTroilo Letter at 3.\nWe do not agree that OPM is an \xe2\x80\x9cappropriate authority\xe2\x80\x9d under the Back Pay\nAct. Whatever OPM\xe2\x80\x99s authority to \xe2\x80\x9cissue guidance\xe2\x80\x9d to agencies concerning how\nto correct the FICA tax treatment of ODAA allowances in light of Anderson, it did\nnot have authority to correct the improper FICA tax deductions contested in An\xc2\xad\nderson, which is \xe2\x80\x9cthe case at hand.\xe2\x80\x9d DoD was vested with initial authority to de\xc2\xad\ntermine the amount of FICA tax to be deducted from its Anderson employees\xe2\x80\x99 pay.\n26 U.S.C. \xc2\xa7 3122. That determination was subject to review and correction by the\nSecretary of the Treasury. Id. (As noted in \xc2\xa7 I, supra, the Secretary agreed with\nDoD and allowed the deductions to stand.) The Secretary\xe2\x80\x99s decision was final\nwithin the executive branch. See 26 U.S.C. \xc2\xa7 6406.3 Judicial review of the Secre\xc2\xad\ntary\xe2\x80\x99s decision was available in either the federal district courts or the Court of\nFederal Claims. See 26 U.S.C. \xc2\xa7 7422; 28 U.S.C. \xc2\xa7 1346. (The Anderson em\xc2\xad\nployees proceeded in the Federal Claims Court.) In either case, the decision was\nnot subject to further review by the executive branch. See H ayburn\xe2\x80\x99s Case, 2 U.S.\n(2 Dali.) 409 (1792) (executive branch revision of final judgments of the judicial\nbranch violates the separation of powers); United States v. O\'Grady, 89 U.S. (22\nWall.) 641 (1874) (same). Thus, at no point did OPM have authority to \xe2\x80\x9ccorrect or\ndirect the correction o f \xe2\x80\x99 the decision to deduct FICA taxes from the ODAA allow\xc2\xad\nances of the Anderson employees. Therefore, OPM does not meet the criterion set\nforth in its own regulation defining an \xe2\x80\x9cappropriate authority.\xe2\x80\x9d\nB. OPM\xe2\x80\x99S PROPOSED APPLICATION OF THE BACK PAY ACT\nIS INCONSISTENT WITH FICA\xe2\x80\x99S EXPRESS GRANT\nOF AN EXEMPTION FROM LIABILITY FOR EMPLOYERS\nAs a general matter, the Code\xe2\x80\x99s remedial provisions have been held to be the\nexclusive remedy for those seeking a return of tax overpayments. See, e.g., Bruno\nv. United States, 547 F.2d 71 (8th Cir. 1976) (suit for refund of taxes was governed\nby the specific limitation period in the Internal Revenue Code and not the general\nlimitations period for civil actions against the United States in title 28); Michigan\nState Employees A ss\xe2\x80\x99n v. Marian, 608 F. Supp. 85, 90-92 (W.D. Mich. 1984) (the\nexistence of specific remedial procedures in the Internal Revenue Code to redress\ntax overpayments foreclosed any possibility of relief under 42 U.S.C. \xc2\xa7 1983). In\nthis case, moreover, Congress provided specific procedures to apply \xe2\x80\x9c[i]f more\nthan the correct amount of [FICA] tax .. . is paid [by an employee] with respect to\nany payment of remuneration.\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6413; see 26 C.F.R. \xc2\xa7 31.6413. See\ngenerally Rev. Rul. 81-310, 1981-2 C.B. 241; Rev. Proc. 81-69, 1981-2 C.B. 726;\n3\nO rdinarily, 26 U S C. \xc2\xa7 6406 perm its review o f the S ecretary\xe2\x80\x99s decisions by the T ax C ourt S uch review\nwas not available here because the Tax C ourt has no ju risd ictio n to adjudicate FICA tax liability 2 6 U .S.C.\n\xc2\xa7 7442\n\n133\n\n\x0cOpinions o f th e O ffice o f L e g a l Counsel\n\nAtlantic D e p \xe2\x80\x99t Stores, Inc. v. United States, 557 F.2d 957 (2d Cir. 1977); M acy\xe2\x80\x99s\nNew York, Inc. v. United States, 484 F. Supp. 181 (S.D.N.Y. 1980); Entenmann\xe2\x80\x99s\nBakery, Inc. v. United States, 465 F. Supp. 1118 (E.D.N.Y. 1979).4 It seems un\xc2\xad\n\nlikely that Congress intended the very general remedial provisions of the Back Pay\nAct to apply as well, thereby giving federal employees a more generous remedy\nthan that available to employees in the private sector.\nEven if the Back Pay Act were generally applicable here, OPM\xe2\x80\x99s proposal that\neach agency pay additional interest to its Anderson employees is inconsistent with\n\xc2\xa7 3102(b) of FICA. That section provides that an employer who has collected\nFICA taxes and paid them over to the IRS \xe2\x80\x9cshall be indemnified against the claims\nand demands of any person for the amount of any such payment.\xe2\x80\x9d Id.5 An\n\xe2\x80\x9cindemnity\xe2\x80\x9d is a \xe2\x80\x9clegal exemption from liability for damages.\xe2\x80\x9d American Heritage\nDictionary of the English Language 917 (3d ed. 1992). Section 3102(b), further\xc2\xad\nmore, has been held to serve the same purpose as 26 U.S.C. \xc2\xa7 3403,6 which applies\nto the collection of income taxes. See United States Fidelity & Guaranty Co. v.\nUnited States, 201 F.2d 118, 119 (10th Cir. 1952) (equating 26 U.S.C. \xc2\xa7 3102(b)\nwith \xc2\xa7 3403). Section 3403, in turn, invariably has been construed to mandate that\nan employer is immune from suit by its employees concerning federal income taxes\nthat have been withheld by the employer and paid over to the IRS. See, e.g., Edgar\nv. Inland Steel Co., 744 F.2d 1276, 1278 (7th Cir. 1984); Pascoe v. IRS, 580 F.\nSupp. 649, 654 (E.D. Mich. 1984), a ff\xe2\x80\x99d, 755 F.2d 932 (6th Cir. 1985); Chandler\nv. Perini P ow er Constructors, Inc., 520 F. Supp. 1152, 1156 (D.N.H. 1981).\nTherefore, we conclude that \xc2\xa7 3102 provides an employer with a legal exemption\nfrom liability to the extent of the amount of FICA taxes collected and paid over to\nthe IRS.7\nOPM \xe2\x80\x99s proposal that federal agencies pay their Anderson employees additional\ninterest under the Back Pay Act contravenes this exemption. Under familiar prin\xc2\xad\n4 A n em p lo y er has an incentive to calculate the tax co rrectly because its ow n share o f the FICA tax m ir\xc2\xad\nrors that o f its em p lo y ees See 26 U S C \xc2\xa7 3 1 1 1 . A lso, an em p lo y er who has collected too much FICA tax is\nnot p erm itted to receiv e a return o f its own overpaym ent u n less it has repaid the affected em ployees (or\nform er em p lo y ees) o r has m ade a reasonable e ffo rt to perfect th e ir claim s for a refund See Rev Rul. 8 1-310,\nat 242.\n5 S e e also 26 C F.R \xc2\xa7 31 .3 1 0 2 - 1(c) (\xe2\x80\x9cThe e m p lo y e r is in d em n ified against the ctaim s and dem ands o f any\nperson for the a m o u n t o f any p aym ent of such tax m ade by the em ployer to the district d irecto r \xe2\x80\x9d)\n6 S ectio n 3 4 0 3 p ro v id es\nT h e e m p lo y e r shall be liable for the p a y m e n t o f the [incom e] lax required to be deducted and\nw ith h eld un d er this chapter, and shall n o t be liable to an y person for the am ount o f any such\npaym ent\n7 A n ind em n ity can also b e a \xe2\x80\x9c(s]ecurity a g ain st dam age, loss, or injury/* A m erican H eritage D ictionary\no f the E n g lish L an g u ag e at 917 U nder the la tte r definition, \xc2\xa7 3 102(b) m ight be read as a prom ise to c o m \xc2\xad\npensate e m p lo y ers for their liability arising o u t o f the FICA tax collection process rather than as a legal e x \xc2\xad\nem ption from liab ility in the first instance It is, how ever, a recognized rule o f statutory construction that a\nw aiver o f so v ereig n im m u n ity m u st be unequivocal. Thus, if tw o readings are plausible, the one that does\nnot w aiv e so v ereig n im m unity m u st be adopted. See U nited S ta te s v N o rd ic Village, Inc , 503 U S 30, 3337 (1 9 9 2 ). C o n seq u en tly , w e read \xc2\xa7 3102(b) as conferring a legal exem ption Indeed, \xc2\xa7 3102(b) fails to\nnam e an in d em n ito r, w hich su p p o rts our read in g and also fatally underm ines any claim that \xc2\xa7 3102(b) con\xc2\xad\ntains an u n eq u iv o cal w aiv er o f sovereign im m unity\n\n134\n\n\x0cP rejitdgm ent Interest U nder the B ack P ay A ct f o r R efunds o f\nF ederal Insurance C ontributions A ct O verpaym ents\n\nciples of statutory construction, the exemption in \xc2\xa7 3102(b), which is specifically\napplicable to the collection of FICA taxes, must prevail over the more generally\napplicable interest provision of the Back Pay Act. See Brown v. Secretary o f\nArmy, 918 F.2d at 218 (Title VII\xe2\x80\x99s limit of two years on recovery of back pay\nwould take precedence over the more generous term in the Back Pay Act when\nboth remedies were facially available to federal employees who had successfully\nsued their employer under Title VII). See generally Bulova Watch Co. v. United\nStates, 365 U.S. 753, 758 (1961) (a provision of the Code specifically addressed to\nthe computation of interest on carry-back tax refunds would prevail over provision\non computation of interest on tax refunds generally); 2B Norman J. Singer, Suth\xc2\xad\nerland Statutory Construction \xc2\xa7 51.02 (5th ed. 1992) (\xe2\x80\x9cWhere a conflict exists the\nmore specific statute controls over the more general one.\xe2\x80\x9d). Thus, even if the Back\nPay Act\xe2\x80\x99s interest provision were facially applicable, it could not be applied in\nthese circumstances.\nCONCLUSION\nWe conclude that DoD is not required to pay its Anderson employees any inter\xc2\xad\nest under the Back Pay Act. The Back Pay Act does not apply in these circum\xc2\xad\nstances. Even if it did, the interest provision of the Back Pay Act must yield to the\nlegal exemption from liability granted to employers under FICA. Thus, OPM\xe2\x80\x99s\ninstruction to agencies to pay additional interest has no legal basis.\n\nWALTER DELLINGER\nAssistant Attorney General\nOffice o f Legal Counsel\n\n135\n\n\x0c'


b'September 8, 1979\n\n79-65\n\nMEMORANDUM OPINION FOR THE\nCOUNSEL TO THE PRESIDENT\nMerit Systems Protection Board\xe2\x80\x94Term of OfficerStatutory Construction\xe2\x80\x945 U.S.C. \xc2\xa7 1202\n\nThis responds to the request o f your Office for our opinion on the ques\xc2\xad\ntion whether the President\xe2\x80\x99s nom ination o f Mr. A to be a member o f the\nMerit Systems Protection Board (MSPB) correctly states the term o f the\noffice as expiring on March 1, 1981, or whether he should be nom inated\nfor a term o f 7 years. It is our opinion that the nom ination is correct as it\nstands.\nThe Merit Systems Protection Board was created by Reorganization\nPlan No. 2 o f 1978\' and was continued, as modified, by the Civil Service\nReform Act o f 1978, \xc2\xa7 202(a).2 The plan was made effective January 1,\n1979.1 The effective date o f th e Act was January 11, 1979.4 In creating the\nBoard the plan had provided simply: \xe2\x80\x9c The United States Civil Service\nCommission is hereby redesignated the Merit Systems Protection B oard.\xe2\x80\x9d 5\nIt also redesignated the commissioners as members o f the B oard.6 The Act\nprovides for appointm ent o f members o f the Board to 7-year term s,7 but\nalso contains a transition provision relating to the terms o f members serv\xc2\xad\ning on the Board on the effective date o f the A ct.8\nCommissioners o f the Civil Service Commission served 6-year terms\nthat were systematically staggered so that one term expired every 2 years.\n\n\'43 F.R. 36037 (1978), reprinted in 5 U .S.C . \xc2\xa7 1101 note (Supp. II, 1978).\n25 U.S.C. \xc2\xa7\xc2\xa7 1201-1209 (Supp. Ill, 1979).\n\xe2\x80\x99Executive O rder No. 12107, \xc2\xa7 1 , 5 U .S.C . \xc2\xa7 1101 note (Supp. II, 1978).\n\xe2\x96\xa0\n\xe2\x80\x98Civil Service Reform Act of 1978, \xc2\xa7 907, 5 U .S.C . \xc2\xa7 1101, note (Supp. Ill, 1979).\n\xe2\x80\x99Reorganization Plan No. 2, \xc2\xa7 201(a), 43 F.R. at 36038 (1978); 5 U .S.C . \xc2\xa7 1101 note\n(Supp. II, 1978).\n*Id .\n\n\xe2\x80\x99Civil Service Reform Act, \xc2\xa7 202(a). Section 202(a) o f the Act added C hapter 12 to title 5,\nUnited States Code. C hapter 12 consists o f \xc2\xa7\xc2\xa7 1201-1209. The terms o f office o f the members\no f the MSPB are set by \xc2\xa7 1202(a), 5 U .S.C . \xc2\xa7 1202(a) (1979 Supp.).\n\xe2\x80\xa2Civil Service Reform Act o f 1978, \xc2\xa7 202(b), 5 U.S.C. \xc2\xa7 1201, note (Supp. Ill, 1979).\n\n351\n\n\x0cW hen the commissioners were redesignated members o f MSPB, their\nterms o f office remained the same and continued to be controlled by\n5 U.S.C. \xc2\xa7 1102.9 That section provided:\n(a) The term o f office o f each Civil Service Commissioner\nis 6 years. The term o f one Commissioner ends on March 1 o f\neach odd-num bered year.\n(b) A Commissioner appointed to fill a vacancy occurring\nbefore the end o f the term o f office o f his predecessor serves\nfor the remainder o f that term. The appointm ent is subject to\nthe requirements o f section 1101 o f this title.\n(c) W hen the term o f office o f a Commissioner ends, he\nmay continue to serve until his successor is appointed and has\nqualified.\n(d) The President may remove a Commissioner.\nUnder \xc2\xa7 1102 the terms o f the commissioners and, as o f January 1, 1979,\no f the members o f the MSPB were due to expire, sequentially, on March 1,\n1979, 1981, and 1983.\nOn January 1, 1979, Mr. S, former civil service commissioner, then a\nmember o f the M SPB, whose term was due to expire on March 1, 1981,\nreceived a recess appointm ent to a different office. He was sworn in on\nJanuary 2. On that date he automatically vacated his office as a member\no f the B oard.10 The office that he vacated had not been filled by Jan\xc2\xad\nuary 11, 1979, the effective date o f the A c t." The question presented is\nwhether the fact o f vacancy on that particular date worked an immediate\nchange in the term o f the office vacated, the one for which Mr. A has been\nnom inated. We believe that it did not.\nThe transition provision o f the Act reads:\nAny term o f office o f any member o f the Merit Systems Protec\xc2\xad\ntion Board serving on the effective date o f this Act shall continue\nin effect until the term would expire under section 1102 o f title 5,\nUnited States Code, as in effect immediately before the effective\ndate o f this Act, and upon expiration o f the term, appointm ents\nto such office shall be made under sections 1201 and 1202 of\ntitle 5, United States Code (as added by this section).\nLiterally this provision is inapplicable to Mr. A \xe2\x80\x99s position. As written it\nwould seem to affect only the term o f the office that was actually filled on\nJanuary 11, 1979. A literal reading thus points to the conclusion that an\noffice such as the one with which we are concerned, in existence but vacant\n\n\xe2\x80\x99Civil Service Reform Act o f 1978 \xc2\xa7 201(a), am ended, inter alia, 5 U .S.C . \xc2\xa7 1102. As used\nherein \xe2\x80\x9c 5 U .S.C . \xc2\xa7 1202\xe2\x80\x9d refers to that section o f title 5 as in effect immediately before the\neffective date o f the Act.\n\'\xe2\x80\x9cThe law in effect on January 2 provided that commissioners o f the Civil Service Commis\xc2\xad\nsion (who had been redesignated members o f the MSPB by that date) could not \xe2\x80\x9c hold\nanother office or position in the Governm ent o f the United States.\xe2\x80\x9d 5 U .S.C . \xc2\xa7 1101 (1976).\n"D ue to a com plicated chain o f events, two o f the three positions o f members o f the Merit\nSystems Protection Board were vacant on the effective date o f the Act.\n\n352\n\n\x0con January 11, should be filled in accordance with the nontransitional\nterms o f the Act\xe2\x80\x94that is, with a person appointed for 7 years. However,\nin our view Congress did not intend such a result.\nIn explaining the transition provision the Senate report said:\nSubsection (e) provides that individuals currently serving on the\nCivil Service Commission, who will become members o f the\nMerit Systems Protection Board by virtue o f Reorganization\nPlan No. 2 o f 1978, will continue to hold their positions on the\nBoard until their terms would otherwise have expired as members\no f the Civil Service Commission (commissioners currently serve\nfor six-year terms). If an individual now serving as a Civil Service\nCommissioner does not serve out the remainder o f his present\nterm, an individual appointed to fill the vacancy will only serve\nfor the remainder o f the six-year term established under the older\nlaw. Since the present terms o f the Commission are staggered,\nthis procedure will assure that the new terms o f the members o f\nthe Board will continue to be staggered.12\nIt is clear from this legislative history that the intent o f Congress in including\nthe provision in the Act was twofold. First, it wished to maintain continuity\nwith respect to the membership of the Merit Systems Protection Board. Sec\xc2\xad\nond, and more importantly, it intended to maintain continuity in the terms\no f office o f the members o f the Board. This is apparent not only from the\nquoted legislative history o f the provision but also from its plain language.\nThis continuity, however, was based upon a congressional assumption that\nthe membership o f the Board would be fixed on the effective date o f the\nAct. Given this assumption, the primary focus o f the transition provision\nwas on continuing, for an interim period, the terms o f office o f the members\no f the Board as they were established by Reorganization Plan No. 2\xe2\x80\x94that\nis, derivatively from 5 U.S.C. \xc2\xa7 1102.13 The reason for this focus is clear. As\nis unequivocally stated in the legislative history, it is to \xe2\x80\x9c assure that the new\nterms o f the members o f the Board will continue to be staggered,\xe2\x80\x9d as were\nthe terms of the former civil service commissioners.\n\nI2S. Rept. 969, 95th Cong., 2d sess. 28 (1978). Both the House and the Senate versions o f\nthe Civil Service Reform Act contained transition provisions identical to the one finally\nenacted. Section 202(a) o f the Senate bill, S. 2640, 95th C ong., 2d sess. \xc2\xa7 202(a) o f the Senate\nbill, S. 2640, 95th C ong., 2d sess. \xc2\xa7 202(a) (1978), would have added a new chapter 12, con\xc2\xad\nsisting o f \xc2\xa7\xc2\xa7 1201-1207, to title 5 o f the United States Code. The transition provision was\nsubsection (e) o f \xc2\xa7 1202 to be added. In the House, the transition provision was \xc2\xa7 202(b) o f\nH. 11280, 95th C ong., 2d sess. (1978). The House report erroneously describes H. 11280,\n\xc2\xa7 202(b), as establishing the Board. See H . Rept. 1403, 95th C ong., 2d sess. 20 (1978). A ctu\xc2\xad\nally, it was \xc2\xa7 202(c) o f H. 11280, as reported, that established pay rates. See 124 C o n g re s \xc2\xad\ns i o n a l R e c o rd H. 9368 (daily ed., Sept. 11, 1978), H. 9676 (daily ed., Sept. 13, 1978).\n\' \xe2\x80\x99Under the provision, as its explanation emphasizes, the duration o f an initial term o f o f\xc2\xad\nfice o f a member o f the \xe2\x80\x9c new\xe2\x80\x9d (congressionally created) Merit Systems Protection Board\nshould not be changed by the resignation o f a form er m ember o f the Civil Service Com mis\xc2\xad\nsion (whom Congress erroneously assumed would be serving on the Board on the effective\ndate o f the Act). Rather, the term should continue as unexpired and may be filled only for the\nduration o f the period fixed by \xc2\xa7 1102.\n\n353\n\n\x0cThe question Mr. A \xe2\x80\x99s nom ination presents, therefore, is whether the\nwords or intent o f \xc2\xa7 1102 should govern the term o f office. Read literally\nthe transition provision does not cover Mr. A and, therefore, he could\nreceive a 7-year term. On the other hand, such a term would defeat the\ncongressional intent o f providing systematically staggered terms. The\nproblem arises because the factual situation here, a vacancy as o f Jan\xc2\xad\nuary 11, 1979, simply was not foreseen by Congress.\nIt is a well-settled rule o f interpretation \xe2\x80\x9c that a thing may be within the\nletter o f the statute and yet not within the statute, because not within its\nspirit, not within the intention o f its m akers.\xe2\x80\x9d Church o f the Holy Trinity\nv. United States, 143 U.S. 457, 459 (1892). In Church o f the Holy Trinity,\nthe C ourt refused to apply to a contract between a religious corporation\nand a pastor a broadly worded statute that made it a crime to assist an\nalien\xe2\x80\x99s immigration to the United States by entering a service contract with\nhim previous to his entry. There was no doubt that the contract fell \xe2\x80\x9c with\xc2\xad\nin the letter o f this section,\xe2\x80\x9d id., but the C ourt relied upon its understand\xc2\xad\ning o f the harm the Act was meant to correct, expressed in the legislative\nhistory, to hold that the contract nevertheless was not to be included\nwithin the prohibition.\nThe Court has warned countless times \xe2\x80\x9c against the dangers o f an ap\xc2\xad\nproach to statutory construction which confines itself to the bare words of\na statute, e.g., Church o f the H oly Trinity v. United States, 143 U.S. 457,\n459-462; Markham v. Catell, 326 U.S. 404, 409; for \xe2\x80\x9c \xe2\x80\x98literalness may\nstrangle m eaning,\xe2\x80\x99 Utah Junk Co. v. Porter, 328 U.S. 39, 44.\xe2\x80\x9d Lynch v.\nOverholser, 369 U.S. 705, 710 (1962). The D.C. Court o f Appeals has\nstated this same principle as follows:\n* * * the plain meaning doctrine has always been considered\nsubservient to a truly discernible legislative purpose * * * The\nuse o f the legislative history to determine Congressional purpose\nis appropriate where * * * the literal words o f the statute\nwould bring about an end completely at variance with the pur\xc2\xad\npose o f the Act * * *. [Aviation Consumer Project v.\nWashburn, 535 F. (2d) 101, 106-107 (D.C. Cir. 1976).]\nSee also, Ozawa v. United States, 260 U.S. 178, 194 (1922) (\xe2\x80\x9c We may look\nto the reason o f the enactment and inquire into its antecedent history and\ngive it effect in accordance with its design and purpose, sacrificing, if\nnecessary, the literal meaning in order that the purpose may not fail,\xe2\x80\x9d )\nand Helvering v. New York Trust Co., 292 U.S. 455, 464 (1934) (\xe2\x80\x9c the ex\xc2\xad\npounding o f a statutory provision strictly according to the letter without\nregard to other parts o f the Act and legislative history would often defeat\nthe object intended to be accomplished\xe2\x80\x9d ).\nThis principle o f statutory interpretation has frequently been applied to\navoid constitutional problems; however, it is by no means limited to such\nproblems. For example Helvering, supra, held the capital gains tax provi\xc2\xad\nsion applicable to property held by a trustee for less than 2 years, despite\nlanguage in the statute that on its face required that the property be held\n354\n\n\x0cmore than 2 years. Again, in United States v. Public Utilities Commission,\n345 U.S. 295 (1953), the Court held that although a literal reading o f the\nFederal Power Act would exclude municipalities from the definition o f a\n\xe2\x80\x9c person\xe2\x80\x9d subject to regulation by the Federal Power Commission, this ex\xc2\xad\nclusion had in fact been inadvertent. In such circumstances, intent rather\nthan language, if they do not lead to the same result, should govern. 345\nU.S. 316. Similarly, in United States v. American Trucking Association,\nInc., 310 U.S. 534, 543 (1940), the Court limited the reach o f the Interstate\nCommerce Commission\xe2\x80\x99s jurisdiction by reading a narrow interpretation,\nbased on the legislative history, into the word \xe2\x80\x9c employee\xe2\x80\x9d (\xe2\x80\x9c even when\nthe plain meaning did not produce absurd results but merely an\nunreasonable one \xe2\x80\x98plainly at variance with the policy of the legislation as a\nwhole,\xe2\x80\x99 the C ourt has followed that purpose, rather than the literal\nwords.\xe2\x80\x9d ) 310 U.S. at 543. A final example of the C ourt\xe2\x80\x99s using the pur\xc2\xad\npose o f a statute to discount the literal application o f its language is\nJohansen v. United States, 343 U.S. 427 (1952). There the Court held that\ndespite the language o f the Public Vessels Act, which on its face granted to\nanyone a right to bring suit against the United States \xe2\x80\x9c for damages caused\nby a public vessel o f the United States,\xe2\x80\x9d Congress had no intention to\ngrant this right to U.S. employees and therefore they were not to be in\xc2\xad\ncluded within its scope.\nIn sum, \xe2\x80\x9c when aid to construction of the meaning o f words, as used in\nthe statute, is available, there certainly can be no \xe2\x80\x98rule o f law\xe2\x80\x99 which for\xc2\xad\nbids its use, however clear the words may appear on \xe2\x80\x98superficial examina\xc2\xad\ntio n .\xe2\x80\x99 \xe2\x80\x9d American Trucking Association, Inc., supra, at 543-544. In the\ncase at hand the language is superficially clear, but the factual\nsituation\xe2\x80\x94resignation o f a member between January 1 and January 11,\n1979\xe2\x80\x94was not one that Congress contem plated. In applying the statute to\nthese facts, the above cases make clear that congressional intent should\npreempt literal meaning.\nThe major, expressed intent of Congress in including the transition provi\xc2\xad\nsion in the Act was to \xe2\x80\x9c assure that the new terms o f the members o f the\nBoard will continue to be staggered.\xe2\x80\x9d We take the intent to stagger to be an\nimportant one, since historically Congress has consistently provided for the\nsystematic staggering of the terms o f the heads of the major multimember\nindependent agencies. Quite to the contrary of what Congress intended to\nachieve by the provision, a literal reading of the transition provision would\nassure, given the fact o f the vacancy, that the new terms of members of the\nMerit Systems Protection Board would never be systematically staggered.\nThat intent, however, should not be lightly frustrated by a wooden applica\xc2\xad\ntion of the provision designed to effectuate it. This is especially true when\nsuch an application would do nothing to further any demonstrable purpose\no f the provision and is a possibility only because Congress made an assump\xc2\xad\ntion o f fact that turned out to be erroneous.\nWe believe that the correct construction o f the transition provision is\nthat it continued unchanged, the terms o f office of all three members o f\n355\n\n\x0cthe MSPB in existence on the effective date o f the Act, whether occupied\nor n o t.\'4 In our view, this is the only construction that will effectuate the\nclearly expressed intent o f Congress. M oreover, it avoids the unreasonable\nand unintended result that a congressionally unanticipated vacancy on\nJanuary 11 should result in a term for the vacant office different from that\nwhich would have resulted from a vacancy on any other day, a result dif\xc2\xad\nferent from that which Congress contem plated, and different from that\ndictated by the intent o f Congress ultimately to ensure systematically stag\xc2\xad\ngered terms for the members o f the Merit Systems Protection Board.\nFor the reasons stated we believe that the term o f the office o f member\no f the Merit Systems Protection Board that Mr. A has been nominated to\nfill will expire on March 1, 1981.\nJohn M. H\n\narm on\n\nAssistant A ttorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x9c We note further that the appointm ent o f Ms. P to the MSPB implicitly adopted the inter\xc2\xad\npretation presented here. The position she took was also one that was vacant on January II,\n1979. Her term o f office, however, runs from March 1, 1979, which is the date the term of of\xc2\xad\nfice o f the commissioner she replaced would have term inated. This means that it was as\xc2\xad\nsumed that the term o f office o f the m em ber who resigned continued beyond January 11 to\nMarch 1, 1979, despite the resignation.\n\n356\n\n\x0c'


b'FOIA Appeal from Denial of Access to FBI COINTELPRO\nFiles Regarding Professor Morris Starsky\nAs a matter of administrative discretion, the Department of Justice should grant the FOIA request of an\nattorney for the FBI\xe2\x80\x99s COINTELPRO-New Left files regarding his client, a professor at Arizona\nState University and an active member of the Socialist Workers Party.\nFOIA Exemption (7) is technically applicable to the withheld documents. However, like all of the\nexemptions, Exemption (7) is only discretionary, and should not be asserted unless such action is in\nthe public interest. Assertion of the exemption is not recommended for these documents.\n\nNovember 27, 1974\n\nMEMORANDUM OPINION FOR THE ATTORNEY GENERAL\nThis memorandum transmits for your signature a proposed disposition of Mr.\nKyman\xe2\x80\x99s appeal, on behalf of his client, Professor Morris Starsky, from Director\nKelley\xe2\x80\x99s denial of Mr. Kyman\xe2\x80\x99s request for access to all Federal Bureau of\nInvestigation (\xe2\x80\x9cFBI\xe2\x80\x9d) records pertaining to his client. Fourteen of the documents\nare in COINTELPRO files and the rest are in investigatory files. Director Kelley\xe2\x80\x99s\ndenial was predicated on Exemptions (7), (1), and (5) of the Freedom of Information Act (\xe2\x80\x9cFOIA\xe2\x80\x9d), exempting from mandatory disclosure, respectively,\ninvestigatory files compiled for law enforcement purposes, material classified\npursuant to executive order, and inter-agency or intra-agency memoranda involved\nin the government\xe2\x80\x99s internal deliberations. 5 U.S.C. \xc2\xa7 552(b)(7), (1) & (5). A response is due immediately.1\nThe proposed response affirms almost all of Director Kelley\xe2\x80\x99s denial, but grants\naccess as a matter of administrative discretion to some of the 14 documents\npertaining to Professor Starsky generated as part of the COINTELPRO-New Left\nprogram.\nI. Documents at Issue\nMr. Kyman has requested access to all Bureau files and records pertaining to\nhis client and is especially interested in any communication between the Bureau\nand the Board of Regents of the University of Arizona. In addition to the 14\ndocuments pertaining to Professor Starsky in the COINTELPRO-New Left files,\nhe is the subject of four conventional FBI investigatory law enforcement files. We\n\n1\nAt the request of the Bureau the original due date of September 16, 1974 was extended to October\n15, 1974 by letter dated September 11, 1974. A copy of this extension letter is attached to Mr. Kyman\xe2\x80\x99s\nappeal letter of August 13, 1974. The due date was further extended to November 15, 1974 by letter of\nthis Office dated October 21, 1974. On November 15 I advised Mr. Kyman by telephone that a positive\nresponse would soon be forthcoming.\n\n373\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nrecommend that access to all of these be denied on the basis of Exemptions (7)\nand (1).\nWith regard to the 14 COINTELPRO documents, we recommend withholding\nfour of them in their entirety on the basis of Exemptions (1), (7), and (5). For\nanother four, we recommend release with deletions of material that either can be\nconsidered outside the scope of Mr. Kyman\xe2\x80\x99s request or whose release would\neither constitute an unwarranted invasion of personal privacy of individuals other\nthan Mr. Starsky (Exemption (6)) or jeopardize FBI sources or informants\n(Exemption (7)). The remaining six documents we recommend making available\nwithout deletions.\nAmong the COINTELPRO documents, the most serious difficulty is presented\nby the anonymous letter addressed to the Arizona State University (\xe2\x80\x9cASU\xe2\x80\x9d)\nFaculty Committee on Academic Freedom and Tenure, which was conducting\nhearings on Professor Starsky\xe2\x80\x99s continued tenure as a faculty member. It was\nsigned \xe2\x80\x9ca concerned alumnus\xe2\x80\x9d by an FBI agent with the prior approval of the\nDirector; it was designed to neutralize Starsky as an active member of the Socialist\nWorkers Party, by discrediting him in his academic community.\nThe letter related as true an alleged incident in which Professor Starsky, his\nwife, and two male associates invaded the apartment of a student co-worker and\nthreatened to beat him unless he returned certain socialist material he had borrowed. It went on to characterize the incident as evidence of the totalitarian nature\nof Professor Starsky\xe2\x80\x99s academic socialism, analogous to that advocated by\nHimmler or Beria. It suggested that if Starsky were not insulated by his position at\nthe University, he would have been properly punished for this conduct. 2\nThe following subsequent events are relevant to the gravity with which this\nletter must be regarded: The Committee to which the letter was addressed did not\nrecommend Starsky\xe2\x80\x99s dismissal, but the University\xe2\x80\x99s Regents overrode that\ndecision. It is uncertain whether the letter or its contents were considered by the\nRegents.3 Starsky sued in federal court to be reinstated, in which suit he was\n\n2\nWe disagree with the Bureau\xe2\x80\x99s characterization of the contents of this letter as \xe2\x80\x9cfactual.\xe2\x80\x9d Although\nthe narrative was taken from the Bureau\xe2\x80\x99s substantive subversive investigatory file on Professor\nStarsky, the incident described is only documented by the ASU student\xe2\x80\x99s complaint to the local police.\nThis complaint was voluntarily dropped, and there is no proof that the incident actually took place as\nalleged. Furthermore, the letter questions Professor Starsky\xe2\x80\x99s competence and fitness as a University\nemployee because of the qualities evidenced by the alleged incident. This judgmental conclusion can in\nno way be considered \xe2\x80\x9cfactual.\xe2\x80\x9d\n3\nThe Bureau\xe2\x80\x99s memorandum asserts that the Regents fired Starsky \xe2\x80\x9cfor reasons unrelated to the\nanonymous letter.\xe2\x80\x9d This is true, if it refers to the reasons which the Regents expressed. It is also\ntechnically true if it refers to the \xe2\x80\x9cprimary reason\xe2\x80\x9d which the court in Starsky v. Williams found to have\nbeen the true principal motivation of the Regents\xe2\x80\x94namely, Starsky\xe2\x80\x99s expression of unpopular views.\n353 F. Supp. 900, 927 (D. Ariz. 1972). But on the basis of the limited information we now possess, it is\nimpossible to tell what effect the letter, or secondhand accounts of the letter, might have had on the\nRegents\xe2\x80\x99 view of the case. In any event, regardless of whether there was any direct or indirect effect\nupon the firing, the matter would seem sufficiently serious if we merely accept the Phoenix agents\xe2\x80\x99\n\n374\n\n\x0cFOIA Appeal from Denial of Access to FBI COINTELPRO Files\n\nrepresented by the same lawyer who has made the present FOIA request in his\nbehalf. The suit was a total success, the court finding that the Regents\xe2\x80\x99 action was\nintended to repress Starsky\xe2\x80\x99s free speech and violated his First Amendment rights.\nStarsky v. Williams, 353 F. Supp. 900 (D. Ariz. 1972).*\nII. Applicability of Exemption (7) to the 14 COINTELPRONew Left Documents\nThe principal basis on which it might be asserted that the 14 COINTELPRONew Left documents can be withheld is Exemption (7), which protects \xe2\x80\x9cinvestigatory files compiled for law enforcement purposes.\xe2\x80\x9d Pub. L. No. 90-23, 81 Stat. 54,\n55 (1967) (adding 5 U.S.C. \xc2\xa7 552(b)(7)). We do not find any basis for the\napplicability of other exemptions asserted by the FBI, a matter which we will\ndiscuss below.\nIn our view, it can be maintained that Exemption (7) is applicable, and such a\nposition is consistent with the action you took previously in affirming the denial of\nmost COINTELPRO documents to Fred Graham of CBS News. Such a position\nrisks reversal by a judicial finding that the \xe2\x80\x9cinvestigatory files\xe2\x80\x9d exemption does\nnot apply to files compiled for intelligence purposes; 4 or that the \xe2\x80\x9cinvestigatory\nfiles\xe2\x80\x9d exemption is not a \xe2\x80\x9cblanket\xe2\x80\x9d exemption, applying to all documents contained within the applicable file, whether or not they individually are prepared for\nlaw enforcement purposes.\nBecause of considerations discussed below, we think the risks of a judicial\nfinding that Exemption (7) is not applicable are much higher in this case than in\nGraham; as will also be discussed below, it may be a reversible abuse of the\ndiscretion conferred by the Exemption to withhold the documents in this case.\nNonetheless, it is our position that the Exemption is technically applicable.\nIII. Advisability of Asserting Exemption (7)\nLike all of the exemptions, Exemption (7) is only discretionary, and should not\nbe asserted unless in your opinion such action is in the public interest. I cannot\nrecommend such an exercise of your discretion in the present case.\n\nown evaluation that the letter succeeded in thoroughly discrediting Professor Starsky in the academic\ncommunity.\n*\nEditor\xe2\x80\x99s Note: The district court\xe2\x80\x99s ruling in Starsky v. Williams was affirmed in part, reversed in\npart, and remanded for further proceedings, 512 F.2d 109 (9th Cir. 1975).\n4\nAt the time you considered the Graham appeal, the D.C. district court had already so held, in Stern\nv. Richardson, 367 F. Supp 1316 (D.D.C. 1973). Since that time, the same court has reaffirmed this\nposition. Black v. Sheraton Corp., 371 F. Supp. 97 (D.D.C. 1974).\n\n375\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nA. Policy Considerations\nIn the last analysis, the only policy reason for withholding most of the requested documents is to prevent a citizen from discovering the existence of possible\nmisconduct and abuse of government power directed against him. In my view, this\nis not only no reason for asserting the exemption; it is a positive reason for\ndeclining to use it, even where other reasons for asserting it exist. The obtaining of\ninformation of this sort is perhaps the most important reason for which the\nFreedom of Information Act exists.\nB. Practical Considerations\nEven if you are able to sustain the denial in this case in the courts (which is far\nfrom certain and perhaps unlikely), the Freedom of Information Act revision\nrecently passed would require the documents to be provided as soon as a new\nrequest is made under the newly enacted legislation. Pub. L. No. 93-502, \xc2\xa7 2(b),\n88 Stat. 1561, 1564 (Nov. 21, 1974) (amending 5 U.S.C. \xc2\xa7 522(b)(7)). We believe\nthat the principal basis for withholding COINTELPRO documents of this type\nunder the new legislation will be the \xe2\x80\x9cprivacy\xe2\x80\x9d provision of the revised Exemption\n(7) (5 U.S.C. \xc2\xa7 522(b)(7)(C))\xe2\x80\x94which is unavailable here because it is the subject\nhimself who is making the request.\nMoreover, despite the modification of Exemption (7) in the recent legislation,\njudicial rejection of our assertion of non-coverage under the present law might well\nbe based upon such a ground that it would impair our position with respect to\nCOINTELPRO files when the new legislation becomes effective. For although\nunder the new law Exemption (7) is eliminated as a files exemption, the specific\nbases for non-disclosure which the new Exemption (7) provides still apply only to\n\xe2\x80\x9cinvestigatory\xe2\x80\x9d records. It is only with respect to an \xe2\x80\x9cinvestigatory\xe2\x80\x9d record that\nwithholding will be able to be supported on the basis of disclosure of investigative\ntechniques (the new Exemption (7)(E), 5 U.S.C. \xc2\xa7 552(b)(7)(E)) or disclosure of the\nidentity of a confidential source (the new Exemption (7)(D), id. \xc2\xa7 552(b)(7)(D)).\nThus, if we provoke a judicial decision to the effect that COINTELPRO records are\nnot records compiled for investigative purposes, we have substantially impaired our\nposition.\nThe chances of losing the present case in the courts are immensely greater than\nwere the chances of losing the Graham request. We are, first of all, dealing with a\nrequestor who has already filed and won a law suit dealing with the filing of these\ndocuments. Starsky v. Williams, 355 F. Supp. 900 (D. Ariz. 1972). The lawyer\nwho represented him in that suit is representing him in this appeal. It is in our view\ncertain that he will sue if the appeal is denied.\nIn the Graham request, since only \xe2\x80\x9cprogram\xe2\x80\x9d files were requested, it would\nhave been possible to litigate the denial on a relatively abstract level, arguing that\ncounter-intelligence programs, as programs, are a necessary form of preventive\n\n376\n\n\x0cFOIA Appeal from Denial of Access to FBI COINTELPRO Files\n\nlaw enforcement. There was a fair chance that this line of defense could have\navoided any judicial receptivity to the suggestion that the documents in question\nshould be examined in camera. In the present case, by contrast, there is a very\nspecific, concrete set of actions which is the subject of the inquiry. It is unimaginable that a court would sustain our denial without looking at the documents in\nquestion. It is further unimaginable that having looked at the documents, it would\nfail to find some way to hold against us\xe2\x80\x94perhaps by denying the \xe2\x80\x9cinvestigative\xe2\x80\x9d\ncharacter of all COINTELPRO activities, with the adverse effects described\nabove.\nIV. Availability of Other Exemptions\nAlthough our recommendation is not based upon the unavailability of exemption in this case, but rather on the undesirability of asserting it, it is nevertheless\npertinent to discuss several other exemptions which the FBI memorandum asserts\nto be applicable. The Bureau asserts the applicability of Exemption (2), covering\ndocuments \xe2\x80\x9crelated solely to the internal personnel rules and practices of an\nagency.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 552(b)(2). The assertion of the applicability of that exemption\nin a case similar to this was specifically rejected by the D.C. district court in the\nStern case. 367 F. Supp. at 1319\xe2\x80\x9320. It has generally been rejected in areas other\nthan those which would involve disclosure of the government\xe2\x80\x99s \xe2\x80\x9cplay book.\xe2\x80\x9d See,\ne.g., Cuneo v. Laird, 338 F. Supp. 504 (D.D.C. 1972), rev\xe2\x80\x99d and remanded in part,\n484 F.2d 1086 (D.C. Cir. 1973); Hogan v. United States, --- F. Supp. --- (S.D. Fla.\n1974).*\nThe Bureau\xe2\x80\x99s memorandum further asserts the possible applicability of Exemption (3), which permits the withholding of documents pertaining to matters\n\xe2\x80\x9cspecifically exempted from disclosure by statute.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 552(b)(3). It relies\nfor this on the general statute prohibiting communication of material \xe2\x80\x9crelating to\nthe national defense\xe2\x80\x9d which \xe2\x80\x9ccould be used to the injury of the United States or to\nthe advantage of any foreign nation.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 793(d). Although there may be\nsome COINTELPRO documents which may meet this description, the 14\ndocuments involved in the present appeal are assuredly not among them. The mere\nfact that Professor Starsky was being investigated because he was active in the\nSocialist Workers Party\xe2\x80\x94without any indication or suspicion that he obtained any\ndefense secrets or had any connection whatever with foreign powers\xe2\x80\x94is by no\nstretch of the imagination sufficient to render all the documents pertaining to his\ninvestigation documents \xe2\x80\x9crelating to the national defense.\xe2\x80\x9d And it is even less\n\n*\nEditor\xe2\x80\x99s Note: We have not located the unpublished decision cited here, but it is likely from the\ncase of James J. Hogan v. United States, No. 73-1385 (S.D. Fla.), which is cited in the Freedom of\nInformation Act Source Book, S. Doc. No. 93-82 (1974). The Freedom of Information Act Source\nBook indicates that the plaintiff in Hogan was seeking \xe2\x80\x9cthe Department of Justice Wiretap Manual\xe2\x80\x9d\nand that the court denied the government\xe2\x80\x99s motion to dismiss in October 1973. Id. at 188.\n\n377\n\n\x0cSupplemental Opinions of the Office of Legal Counsel in Volume 1\n\nlikely, if they should relate to the national defense, that they could be used to the\ninjury of the United States or to the advantage of any foreign nation.\nV. Recommendation\nWe recommend disclosure of those documents and portions of those documents\nfrom the COINTELPRO-New Left files pertaining to Professor Starsky which are\nenumerated and recommended for disclosure.* In particular, we recommend the\nrelease in their entirety of (a) the April 7, 1970 Airtel requesting authorization to\nwrite the anonymous letter to the members of the Committee on Academic\nFreedom and Tenure; (b) the anonymous letter sent to the members (the author of\nwhich is not an alumnus of the University); (c) the April 24, 1970 instruction to\nwrite the letter; (d) the May 12, 1970 acknowledgement of the authorization; and\n(e) the June 30, 1970 letter from Phoenix to headquarters commenting on the\nresults of the \xe2\x80\x9cneutralizing\xe2\x80\x9d activity.\nANTONIN SCALIA\nAssistant Attorney General\nOffice of Legal Counsel\n\n*\nEditor\xe2\x80\x99s Note: The memorandum referred here to an attachment listing the COINTELPRO-New\nLeft files recommended for disclosure. That attachment was not preserved in our daybooks. It appears\nthat some, if not all, of the listed files were ultimately released. See Michael Newton, The FBI\nEncyclopedia 322-23 (2003); James K. Davis, Spying on America: The FBI\xe2\x80\x99s Domestic Counterintelligence Program 59-60 (1992); Nicholas M. Horrock, Files of F.B.I. Showed It Harassed Teacher, N.Y.\nTimes, Jan. 29, 1975, at 12.\n\n378\n\n\x0c'