b'Septem ber 27, 1977\n\n77-54\n\nMEMORANDUM OPINION FOR THE\nASSISTANT TO THE ATTORNEY GENERAL\nTransfer of Watergate Special Prosecution Force\nRecords to the National Archives\xe2\x80\x94Income Tax\nInformation\xe2\x80\x9426 U.S.C. \xc2\xa7 6103(a)\n\nThis is in response to your request for our opinion concerning the\nlegality o f the transfer of W atergate Special Prosecution Force (WSPF)\nrecords containing income tax returns or return information to the\nNational Archives. In light of both the stringency o f the provisions\npertaining to disclosure o f tax records and the applicable penalties, it\nwould be advisable to seek legislative authorization for a transfer of\nW SPF tax records to the Archives. T he reasons for our conclusion are\nset forth herein.\nThe Tax Reform Act o f 1976, Pub. L. 94-455, was designed to\nimpose much greater restrictions on the disclosure of tax returns and\nreturn information than had previously existed.1 Such records are now\ndeemed to be \xe2\x80\x9cconfidential\xe2\x80\x9d and are not to be disclosed in any manner\n\xe2\x80\x9cexcept as authorized by this title.\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6103(a). See also S.\nRep. No. 938 (Part I), 94th Cong., 2d Sess. 318 (1976). Even though\ndisclosure is authorized by \xc2\xa7 6103 with respect to a number of Federal\nagencies or other entities, there is no authorization to disclose tax\nreturns or return information to the Archives.2 The statute would thus,\non its face, prohibit a transfer of tax records to the Archives.\nThis statute, however, is not the only one that addresses this prob\xc2\xad\nlem. W e must also consider the Archivist\xe2\x80\x99s authority to accept and\nmaintain records:\n1 While certain tax records held by the W SPF may be exempt from the restrictions\nimposed by the A ct, see Treas. Reg. \xc2\xa7 404.6103(a)-l, it is our understanding that it is\nneither feasible nor desirable to segregate these records. W e thus consider the question\nhere as though all W SPF tax records are subject to the 1976 Act.\n2 It seems apparent that a transfer to the Archives would result in a \xe2\x80\x9cdisclosure\xe2\x80\x9d\nsubject to the 1976 A ct. That term is defined as \xe2\x80\x9cthe making known to any person in any\nm anner w hatever a return or return information,\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6103(b)(8), and this defini\xc2\xad\ntion would be fulfilled because A rchives personnel are expected to examine the records\npursuant to Freedom o f Information requests and for archival purposes.\n\n216\n\n\x0cThe Administrator of General Services shall be responsible for\nthe custody, use, and withdrawal of records transferred to him.\nWhen records, the use of which is subject to statutory limitations\nand restrictions, are so transferred, permissive and restrictive statu\xc2\xad\ntory provisions with respect to the examination and use of records\napplicable to the head of the agency from which the records were\ntransferred or to employees of that agency are applicable to the\nAdministrator, the Archivist of the United States, and to the em\xc2\xad\nployees of the General Services Administration, respectively. 44\nU.S.C. \xc2\xa7 2104.\nThis provision clearly indicates that materials subject to \xe2\x80\x9crestrictive\nstatutory provisions\xe2\x80\x9d may be transferred to, and held by, the Archivist.\nThe legislative history of the provision bears this out, for it demon\xc2\xad\nstrates that the imposition of restrictions on the Archivist was designed\nto make a transfer of confidential records to the Archives more accept\xc2\xad\nable to the agencies generating those records. See H.R. Rep. No. 44,\n80th Cong., 1st Sess. 2-3 (1947); S. Rep. No. 706, 80th Cong., 1st Sess.\n2 (1947). Indeed, the statutory functions assigned to the Archives\nwould be greatly hampered if it could not obtain and hold historic\nrecords subject to restrictions on disclosure.\nWe thus have, on the one hand, a statute allowing accession of\nconfidential records to the Archives, and on the other hand, another\nstatute allowing disclosure only upon an authorization that is not pres\xc2\xad\nent here. These provisions need not necessarily be in conflict. One\napproach to reconcile them would be to allow a transfer to the A r\xc2\xad\nchives only if the statute mandating confidentiality explicitly so pro\xc2\xad\nvided. We believe, however, that this is an unsatisfactory resolution of\nthe relationship o f these two statutes. This resolution would frustrate\nCongress\xe2\x80\x99 intent underlying 44 U.S.C. \xc2\xa7 2104 to provide for a conven\xc2\xad\nient repository of historical records subject to some form of restriction\non public inspection. Because most statutes mandating some form of\nconfidentiality are similar to 26 U.S.C. \xc2\xa7 6103 in that they do not\nexplicitly provide for a transfer to the Archives, a conclusion that the\nlack of such a provision bars such a transfer would have the practical\neffect of rendering Congress\xe2\x80\x99 efforts in enacting 44 U.S.C. \xc2\xa7 2104 futile.\nWe thus do not believe that Congress intended that a statute mandating\nconfidentiality must expressly provide for a transfer to the Archives in\norder for such a transfer to be authorized.\nBy the same token, however, we do not believe that 44 U.S.C. \xc2\xa7 2104\ncan be taken to override statutes mandating the confidentiality of rec\xc2\xad\nords in every instance. While it may not often be the case, there may\nexist situations where Congress\xe2\x80\x99 purposes underlying confidentiality\nstatutes may bar even the sort o f disclosure which occurs in a transfer\nto the Archives. The fact that the Archives may generally receive\nconfidential records under 44 U.S.C. \xc2\xa7 2104 cannot, in our view, justify\nan approach which does not trouble to inquire into Congress\xe2\x80\x99 intent in\n217\n\n\x0cenacting a particular statute subjecting certain records to restrictions on\ndisclosure.\nT he inquiry with respect to intent concerning tax returns and return\ninformation produces no clear answer. The legislative materials do not\naddress the problem directly, and those aspects of the materials that\nrelate in some way to this matter were issued without any thought of\ntheir applicability to this problem. However, it is our view that on\nbalance the statute itself and its legislative history are indicative of a\nlegislative intent that tax records are not to be transferred to the\nArchives.\nW e have already seen th at the statute itself allows for disclosure only\n\xe2\x80\x9cas authorized by this title.\xe2\x80\x9d 26 U.S.C. \xc2\xa7 6103(a). The legislative history\nmakes clear that Congress intended that no disclosure of tax informa\xc2\xad\ntion could be made except in the limited situations delineated in \xc2\xa7 6103.\nS. Rep. No. 938 (Part I), supra, at 318. The amount of attention that\nwas paid to the formulation of the exceptions would allow for an\ninference that no exception was intended as to the Archives.\nA stronger indication o f congressional intent on this matter can be\nderived from its enactment of provisions respecting the disposition of\nreturns and return information. Section 6103(p)(4)(F)(ii) provides that\nwhen an agency has completed its use o f tax returns or return informa\xc2\xad\ntion, it must\n(I) return to the Secretary such returns or return information\n(along with any copies made therefrom)\n(II) otherwise make such returns or return information undisclosable, or\n(III) to the extent not so returned or made undisclosable, ensure\nthat the conditions of subparagraphs (A), (B), (C), (X>), and (E) of\nthis paragraph continue to be met with respect to such returns or\nreturn information . . . .\nThis clearly shows that Congress was concerned about the disposition\nof tax records upon the completion of an agency\xe2\x80\x99s task and decided that\nrigid safeguards should be imposed on their disposition.\nT he legislative history o f this provision tells how rigid Congress\nmeant these safeguards to be. That history states that the safeguards in\ngeneral were \xe2\x80\x9cdesigned to protect the confidentiality of the returns and\nreturn information and to make certain that they are not used for\npurposes other than the purposes for which they were disclosed.\xe2\x80\x9d S.\nRep. No. 938 (Part I), supra, at 344. To ensure that this goal was\naccomplished, care was to be taken with respect to the disposition of\ntax records when they w ere no longer needed. In this regard the\nlegislative history states that the statute requires \xe2\x80\x9creturning or destroy\xc2\xad\ning the information when the agency is finished with it.\xe2\x80\x9d S. Rep. No.\n938 (Part I), at 345. This requirement appears to be one of the means\nchosen by Congress to keep returns from being \xe2\x80\x9cscattered all over the\nlandscape.\xe2\x80\x9d Hearings on Federal Tax Return Privacy before the Sub\xc2\xad\n218\n\n\x0ccommittee on Administration of the Internal Revenue Code of the\nSenate Finance Committee, 94th Cong., 1st Sess., 100 (1975) (remarks\nof Senator Haskell).3\nWhile we recognize that this display of legislative intent does not put\nthe issue beyond all dispute, we believe that the legislative history\nsuggests an intent on the part of Congress that tax records should not\nbe transferred to the Archives. We believe, moreover, that the applica\xc2\xad\nble penalties warrant a cautious interpretation of the statute, see 18\nU.S.C. \xc2\xa7 1905, 26 U.S.C. \xc2\xa7\xc2\xa7 7213, 7217, and that any doubts here with\nregard to Congress\xe2\x80\x99 intent should thereby be resolved in favor of\nstaying within the explicit restrictions of the statute. We therefore\nadvise that the W SPF tax records should be transferred only upon an\n^explicit legislative authorization.\nL eon U lm a n\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n\xe2\x80\x98 We recognize that subparagraph (III) of \xc2\xa7 6103(p)(4)(F)(ii) may contemplate some\nflexibility in dealing with tax records upon the completion of an Agency\xe2\x80\x99s use of them.\nThe intent underlying this provision is somewhat confusing, particularly in light of the\nstatement in the legislative history that returns no longer needed were to be returned or\ndestroyed. In any event, we do not believe that this provision can be taken to authorize a\ntransfer of tax records to an entity not expressly authorized to receive such records by\nthe Act and one that will not use the records for the purposes for which they were\noriginally transferred.\n\n219\n\n\x0c'


b"Litigation Responsibility of the Attorney General in\nCases in the International Court of Justice\nUnder 28 U.S.C. \xc2\xa7\xc2\xa7516 and 519, the conduct and supervision of litigation in which the\nUnited States is a party is reserved to the A ttorney General, except as otherw ise\nauthorized by law; under 5 U.S.C \xc2\xa73106, other agencies shall not conduct litigation,\nbut shall refer the m atter to the D epartm ent of Justice.\nThe A ttorney G eneral\xe2\x80\x99s authority and responsibility to conduct litigation extends to\nlitigation in foreign and international tribunals, including litigation affecting foreign\nrelations of the United States, and contentious litigated proceedings before the Interna\xc2\xad\ntional Court of Justice are thus within his supervisory power.\n\nApril 21, 1980\nT h e L e g a l A d v is e r o f t h e D e p a r t m e n t o f S t a t e\n\nMy D e a r S i r : I have your letter of March 7, 1980, concerning repre\xc2\xad\nsentation of the United States in the International Court of Justice. The\nletter and attached memorandum raise the question of the applicability\nof the litigation responsibility of the Attorney General to cases in the\nInternational Court of Justice.\nTwo provisions, 28 U.S.C. \xc2\xa7\xc2\xa7516 and 519, reserve to the Attorney\nGeneral \xe2\x80\x9cthe conduct of litigation in which the United States . . . is a\nparty.\xe2\x80\x9d A third, 5 U.S.C. \xc2\xa7 3106, states the obverse of the same proposi\xc2\xad\ntion\xe2\x80\x94that other agencies shall not conduct litigation in which the\nUnited States is party but shall refer the matter to the Department of\nJustice. All three allow for exceptions \xe2\x80\x9cas otherwise authorized by\nlaw.\xe2\x80\x9d\nIt seems plain that bringing a contentious or litigated proceeding\nbefore the International Court of Justice, as was done in United States\nv. Iran, is the conduct of litigation in which the United States is a\nparty. In any case concerning the interpretation of a statute, the starting\npoint must be the language of the statute itself. Lewis v. United States,\n48 U.S.L.W. 4205, 4207 (U.S. Feb. 27, 1980). You suggest, however,\nthat this principle ought not conclude the matter, and we therefore turn\nto the reasons that you offer.\nYour memorandum analyzes the legislative history of the pertinent\nstatutes and concludes that 28 U.S.C. \xc2\xa7 516 is not applicable here. You\npoint out that the 1966 codification was not intended to change the\n233\n\n\x0claw. S. Rep. No. 1380, 89th Cong., 2d Sess. 20-21 (1966).' Neverthe\xc2\xad\nless, the analysis concerning \xc2\xa7516 of Title 28, states, \xe2\x80\x9cThe section\nconcentrates the authority for the conduct of litigation in the Depart\xc2\xad\nment of Justice.\xe2\x80\x9d S. Rep. No. 1380, supra, at 205 which now appears as\n28 U.S.C. \xc2\xa7516, note.2 In commenting on this provision, the courts\nhave recognized that the Attorney General\xe2\x80\x99s litigation power was\nmeant to be \xe2\x80\x9cpervasive,\xe2\x80\x9d S & E Contractors, Inc. v. United States, 406\nU.S. 1, 12 (1972), and \xe2\x80\x9c[i]f any [litigation] is conducted, it shall be done\nby the Department of Justice.\xe2\x80\x9d United States v. Daniel, Urbahn, Seelye\nand Fuller, 357 F. Supp. 853, 858 (N.D. 111. 1973).\nIt is true that the section was revised \xe2\x80\x9cto express the effect of the\nlaw,\xe2\x80\x9d 28 U.S.C. \xc2\xa7516, note. If there had been preexisting law \xe2\x80\x9cother\xc2\xad\nwise authorizing\xe2\x80\x9d the State Department to conduct litigation independ\xc2\xad\nent of the Attorney General, then a different result would be indicated.\nSuch authorization must be specific, however, to be viewed as an\nexception to \xe2\x80\x9cthe Attorney General\xe2\x80\x99s plenary power over government\nlitigation.\xe2\x80\x9d ICC v. Southern Ry. Co., 543 F.2d 534, 537-38 (5th Cir.\n1976). Not only is there no preexisting statute, but it appears that there\nis no formal opinion or agreement covering this matter that could be\nviewed as having the status of law.3\nYou suggest that the statute is limited in its applicability to domestic\ncourts and that another interpretation would interfere with the ability\nof the Secretary of State to conduct the foreign affairs of the United\nStates. The responsibility of the Attorney General has not, however,\nbeen limited to litigation in domestic courts. 28 C.F.R. \xc2\xa7 0.46. This\nDepartment regularly supervises litigation in courts in foreign countries.\nSuch litigation frequently raises questions of international law and af\xc2\xad\nfects foreign relations of the United States. Domestic litigation has also\ninvolved both foreign relations and international law questions fully as\nmuch as cases in the International Court of Justice.4 This fact does not,\nhowever, lessen the responsibility of the Attorney General for the\nconduct of such litigation. At the same time, the Department of Justice\nl T he statements you cite in the com m ittee reports, w hich indicate that there are no \xe2\x80\x9csubstantive\nchanges,\xe2\x80\x9d refer directly to the enactm ent o f T itle 5 and not to am endm ents to Title 28.\n2T he language of the law conferring litigation authority prior to 1966 was narrow er, referring only\nto suits in the Supreme Court and the C ourt o f Claims. 5 U.S.C. \xc2\xa7 306 (1964).\n3 T he effect and relevance o f the early practice cited is not clear since, with the establishment of the\nD epartm ent o f Justice in 1870, the A ttorney G eneral assumed responsibility for the legal w ork o f the\nD epartm ent o f State. Until 1931, the Solicitor of the State D epartm ent was an employee o f the\nD epartm ent o f Justice. R. Bilder, The Office o f the Legal Adviser, 56 Am J. Int\xe2\x80\x99l L. 633, 634 (1962).\nT he last significant litigated or contentious case prior to 1966, when \xc2\xa7516 was enacted, was\nInterhandel, w hich lasted from 1957 to 1959, and w here representatives of both the Justice and State\nD epartm ents appeared as co-agents. See 1957 I.C.J. 105, 107-08. T he present case, United States\nDiplomatic and Consular S taff in Tehran, is the first contentious case in the I.C.J. involving the United\nStates since enactm ent o f 28 U.S.C. \xc2\xa7 516. O ther United States involvem ent in International C ourt of\nJustice proceedings since 1966 has related to advisory opinions.\n4 F or example, a proposed treaty w ould vest the International C ourt of Justice with jurisdiction to\nresolve fisheries and O uter Continental Shelf boundary disputes with Canada. T he issues closely\nresemble litigation conducted by the D epartm ent of Justice presenting the very kinds o f issues, both\nfactual and legal, that are raised in dom estic litigation.\n\n234\n\n\x0crecognizes the need for close cooperation with the State Department\non matters affecting foreign relations or with any other agency which\nhas specialized experience necessary to the conduct of litigation.\nI conclude, therefore, that litigated proceedings before the Interna\xc2\xad\ntional Court of Justice are within the supervisory power committed to\nthe Attorney General by 28 U.S.C. \xc2\xa7\xc2\xa7516, 519, and 5 U.S.C. \xc2\xa73106.\nThis does not mean, of course, that this Department intends to carry\nout this responsibility without the fullest participation by your Office.\nWe look forward to such a continuing relationship.\nSincerely,\nB e n j a m i n R. C i v i l e t t i\n\n235\n\n\x0c"


b'Authority of the President to Name an\nActing Attorney General\nThe President may designate an Acting Attorney General under the Vacancies Reform Act, even if an\nofficer of the Department of Justice otherwise could act under 28 U.S.C. \xc2\xa7 508, which deals with\nsuccession to the office of the Attorney General.\n\nSeptember 17, 2007\n\nMEMORANDUM OPINION FOR THE COUNSEL TO THE PRESIDENT\nYou have asked for our opinion whether the President has authority to name an\nActing Attorney General under the Vacancies Reform Act, 5 U.S.C. \xc2\xa7\xc2\xa7 33453349d (2000 & Supp. IV 2004), even if an officer of the Department of Justice\notherwise could act under 28 U.S.C. \xc2\xa7 508 (2000). As we advised orally, we\nbelieve that the President has this authority.\nThe Vacancies Reform Act ordinarily provides \xe2\x80\x9cthe exclusive means for temporarily authorizing an acting official to perform the functions and duties of any\noffice of an Executive agency . . . for which appointment is required to be made by\nthe President, by and with the advice and consent of the Senate.\xe2\x80\x9d 5 U.S.C.\n\xc2\xa7 3347(a). This provision is subject to an exception, however, when \xe2\x80\x9ca statutory\nprovision expressly . . . authorizes the President, a court, or the head of an\nExecutive department, to designate an officer or employee to perform the functions and duties of a specified office temporarily in an acting capacity.\xe2\x80\x9d Id.\n\xc2\xa7 3347(a)(1)(A). Section 508 of title 28 is such a statute. It states that when the\noffice of Attorney General is vacant, the Deputy Attorney General \xe2\x80\x9cmay exercise\nall the duties of that office\xe2\x80\x9d; that when the office of Deputy Attorney General is\nvacant, the Associate Attorney General \xe2\x80\x9cshall act as Attorney General\xe2\x80\x9d; and that\nthe Attorney General \xe2\x80\x9cmay designate the Solicitor General and the Assistant\nAttorneys General, in further order of succession, to act as Attorney General.\xe2\x80\x9d 28\nU.S.C. \xc2\xa7 508(a), (b). The Vacancies Reform Act thus did not extinguish the\nauthority under 28 U.S.C. \xc2\xa7 508 by which an Acting Attorney General might\nserve.\nAttorney General Alberto R. Gonzales has resigned, effective today. Attorney\nGeneral Order No. 2877-2007 (Mar. 29, 2007), issued under 28 U.S.C. \xc2\xa7 508,\nspecifies the order of succession to act as Attorney General when the positions of\nDeputy Attorney General and Associate Attorney General are vacant\xe2\x80\x94as they are\nnow. The Solicitor General is first in line, followed by the Assistant Attorneys\nGeneral for the Office of Legal Counsel, for National Security, for the Criminal\nDivision, and for the Civil Division. The President wishes the Assistant Attorney\nGeneral for the Civil Division to act as Attorney General. To achieve this end, he\nhas decided to designate that officer under the Vacancies Reform Act. Your\nquestion arises because the provision specifying that the Vacancies Reform Act\n\n208\n\n\x0cAuthority of the President to Name an Acting Attorney General\n\nordinarily is the exclusive means for naming an acting officer, 5 U.S.C. \xc2\xa7 3347,\ndoes not apply here.\nThat the Vacancies Reform Act is not exclusive does not mean that it is unavailable. By its terms, the Vacancies Reform Act (with express exceptions not\nrelevant here) applies whenever a Senate-confirmed officer in an executive agency\nresigns. 5 U.S.C. \xc2\xa7 3345(a). The Vacancies Reform Act nowhere says that, if\nanother statute remains in effect, the Vacancies Reform Act may not be used.\nIndeed, the Senate Committee Report accompanying the Act expressly disavows\nthis view. After listing a number of statutes that would come within the exception\nto exclusivity in the Vacancies Reform Act, including 28 U.S.C. \xc2\xa7 508, the Senate\nCommittee Report states that \xe2\x80\x9c[i]n any event, even with respect to the specific\npositions in which temporary officers may serve under the specific statutes this bill\nretains, the Vacancies [Reform] Act would continue to provide an alternative\nprocedure for temporarily occupying the office.\xe2\x80\x9d S. Rep. No. 105-250, at 17\n(1998). 1\nFurthermore, nothing in the text of the statute or its legislative history supports\nthe conclusion that the \xe2\x80\x9calternative procedure\xe2\x80\x9d of the Vacancies Reform Act may\nbe used only when no one can serve under a statute like 28 U.S.C. \xc2\xa7 508. In\nanalogous circumstances, we earlier concluded that the President could use the\nVacancies Reform Act to name an Acting Director of the Office of Management\nand Budget, even though another statute, 31 U.S.C. \xc2\xa7 502(f) (2000), came within\nthe exception to exclusivity under the Vacancies Reform Act and authorized the\nPresident to designate an Acting Director. We wrote that \xe2\x80\x9c[t]he Vacancies Reform\nAct does not provide . . . that where there is another statute providing for a\npresidential designation, the Vacancies Reform Act becomes unavailable. The\nlegislative history squares with the conclusion that, in such circumstances, the\n1\n\nThe President has already issued an order embodying the conclusion that the Vacancies Reform\nAct is available for naming an Acting Attorney General. On March 19, 2002, he issued a Memorandum\nfor the Attorney General on Designation of Officers of the Department of Justice, 1 Pub. Papers of\nPres. George W. Bush 752 (2002), under which he exercised his authority under the Vacancies Reform\nAct to provide that, when the officials designated under 28 U.S.C. \xc2\xa7 508 have died, resigned, or\notherwise become unavailable to perform the duties of the Attorney General, specified United States\nAttorneys would constitute an additional chain of succession to act as Attorney General. The precise\nissue here, however, is whether the President may use the Vacancies Reform Act even if an officer\notherwise would be able to act under 28 U.S.C. \xc2\xa7 508.\nWe note that, under the version of the Vacancies Act in effect before the Vacancies Reform Act,\nthe provision allowing the President to designate an officer to act did \xe2\x80\x9cnot apply to a vacancy in the\noffice of Attorney General.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 3347 (1994). As originally introduced and as later reported by\nthe Senate Committee, the Vacancies Reform Act would have provided that \xe2\x80\x9c[w]ith respect to the\noffice of the Attorney General of the United States, the provisions of section 508 of title 28 shall be\napplicable.\xe2\x80\x9d See 144 Cong. Rec. 12,433 (June 16, 1998) (proposed 5 U.S.C. \xc2\xa7 3345(c)); S. Rep. No.\n105-250, at 25 (same). That provision was not enacted as part of the final bill, and no provision of the\nVacancies Reform Act bars the President from designating an Acting Attorney General under that\nstatute.\n\n209\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nVacancies Reform Act may still be used.\xe2\x80\x9d Designation of Acting Director of the\nOffice of Management and Budget, 27 Op. O.L.C. 121, 121 n.1 (2003). 2 We do not\nbelieve that this opinion could be distinguished on the ground that, there, the\nPresident had the authority under both statutes, while here the authority under the\nVacancies Reform Act belongs to the President and section 508 provides that the\nAttorney General may designate officers to serve. Neither the text of the statute\nnor the legislative history places any weight on such a distinction. Nor would it\nmake sense that the Attorney General, through the exercise of a discretionary\nauthority to name a further order of succession after the Deputy Attorney General\nand Associate Attorney General, could prevent the President, his superior, from\nusing his separate authority under the Vacancies Reform Act. Indeed, for this\nreason, we believe that the President\xe2\x80\x99s action under the Vacancies Reform Act,\nwithout more, trumps the Attorney General\xe2\x80\x99s designation of a succession under\nsection 508. 3\nA footnote in guidance from the Counsel to the President issued in 2001 states\nthat the Vacancies Reform Act does not apply to the position of Attorney General\n\xe2\x80\x9cunless there is no official serving in any of the positions designated by section\n508 to act as attorney general in the case of a vacancy.\xe2\x80\x9d Memorandum for the\nHeads of Federal Executive Departments and Agencies and Units of the Executive\nOffice of the President, from Alberto R. Gonzales, Counsel to the President, Re:\nAgency Reporting Requirements Under the Vacancies Reform Act at 2 n.2 (Mar.\n21, 2001). For the reasons set out above, we believe that this statement is incorrect\nand that the President may use the Vacancies Reform Act even when there is an\nofficial serving in one of the designated positions under section 508. We note that\nthe subject of the memorandum was reporting requirements under the Vacancies\nReform Act, not the eligibility of officers to act under the statute, and the footnote\nappears in a section of the memorandum that only gives background for the reader.\nMoreover, the memorandum preceded our later analysis of the analogous issue\nposed by a vacancy in the Office of Management and Budget.\n2\nSimilarly, we have concluded that the Vacancies Reform Act could be used to provide for an\nActing United States Attorney. We observed that another statute, 28 U.S.C. \xc2\xa7 546, allowed appointment of an interim United States Attorney, who would fill the office (not be an acting officer), but that\neven if section 546 had dealt with acting officers, that section and the Vacancies Reform Act would\nboth be available. Temporary Filling of Vacancies in the Position of United States Attorney, 27 Op.\nO.L.C. 149, 149\xe2\x80\x9350 (2003).\n3\nSection 508 itself may give some indication that it does not displace the Vacancies Reform Act\nwhenever an official in the chain of succession under 28 U.S.C. \xc2\xa7 508(a) remains at the Department.\nSection 508(a) provides that \xe2\x80\x9cfor the purpose of section 3345(a) of title 5 the Deputy Attorney General\nis the first assistant to the Attorney General.\xe2\x80\x9d Cf. United States v. Lucido, 373 F. Supp. 1142, 1147\xe2\x80\x9351\n(E.D. Mich. 1974) (under a previous version of the statute, the court suggested that the Deputy\nAttorney General had acted under the \xe2\x80\x9cfirst assistant\xe2\x80\x9d provision of the Vacancies Act and, when he\nreached the time limit under that statute, thereafter served under 28 U.S.C. \xc2\xa7 508; the Department of\nJustice argued that the entire service was only under section 508).\n\n210\n\n\x0cAuthority of the President to Name an Acting Attorney General\n\nWe therefore believe that the President may name an Acting Attorney General\nunder the Vacancies Reform Act and that he can take this step even if officers\nnamed under section 508 would otherwise be able to perform the Attorney\nGeneral\xe2\x80\x99s functions and duties. 4\nSTEVEN G. BRADBURY\nPrincipal Deputy Assistant Attorney General\nOffice of Legal Counsel\n\n4\n\nIn the event that the Assistant Attorney General for the Civil Division were unable to carry out the\nduties of the Attorney General, either in general or in a specific case, the order of succession under 28\nU.S.C. \xc2\xa7 508 would again become applicable.\n\n211\n\n\x0c'


b'Applicability of 18 U.S.C. \xc2\xa7 1721 to Collection of Fee for\nStamped Cards\nT he Postal S erv ice m ay ch arg e a fee for stam ped cards in addition to the face value o f the postage\nw ithout violatin g 18 U .S.C . \xc2\xa7 1721.\n\nJanuary 7, 1999\nM\n\nem o ra n d u m\n\nO\n\np in io n fo r t h e\n\nU\n\nn it e d\n\nSta\n\nV\n\nic e\n\ntes\n\nP\n\nPo\n\nr e s id e n t a n d\n\nstal\n\nS\n\nG\n\neneral\n\nC\n\no u n sel\n\ne r v ic e\n\nThis responds to your letter of July 27, 1998, requesting the Justice Depart\xc2\xad\nment\xe2\x80\x99s legal opinion whether the provisions of 18 U.S.C. \xc2\xa7 1721 (1994) prohibit\nthe sale of stamped cards for a one-cent fee that has been authorized by the Postal\nService Board of Governors and that is to be charged in addition to the value\nof the postage charge identified on the stamp that appears on the face of the\ncards.1 We conclude that \xc2\xa7 1721 is not properly construed to impose such a\nprohibition.\nI.\n\n\xe2\x80\x9c Stamped cards,\xe2\x80\x9d formerly known as postal cards or postcards, are postcard\xc2\xad\nsized items of stationery bearing a preprinted postage marking. They are presently\nsold by the U.S. Postal Service ( \xe2\x80\x9c Service\xe2\x80\x9d ) at postal retail units throughout the\nUnited States at a price of twenty cents per card. Heretofore, the Postal Service\nhas not charged a separate fee for the cost of the stationery component \xe2\x80\x94 as distin\xc2\xad\nguished from the face postage value \xe2\x80\x94 of stamped cards. Consequently, the price\ncurrently recovered by the Service for stamped cards accounts for postage value\nonly; the stationery component is effectively provided free of charge.\nPursuant to its statutory authority to establish postal rates, fees, and classifica\xc2\xad\ntions, the Service has undertaken to establish a new fee on stamped cards that\nwould enable it to recover its costs for the stationery component.\nUnder the procedures established by the Postal Reorganization Act, Pub. L. No.\n91-375, 84 Stat. 719 (1970) (\xe2\x80\x9c P R A \xe2\x80\x9d ), changes in postal rates, fees, or classifica\xc2\xad\ntions are initiated when the Postal Service proposes the change to the independent\nPostal Rate Commission (\xe2\x80\x9c Commission\xe2\x80\x9d ). See 39 U.S.C. \xc2\xa73622 (1994), as\namended by Postal Employees Safety Enhancement Act, Pub. L. No. 105-241,\n\xc2\xa7 5, 112 Stat. 1572, 1573 (1998) ( \xe2\x80\x9c PESEA\xe2\x80\x9d ); id. \xc2\xa7 3623. If the Commission favor\xc2\xad\n1 L e tte r fo r th e H o n o rab le Jam es K. R obinson, A ssistant A ttorney G eneral, C rim in al D ivision, fro m M ary S Elcano,\nS e n io r V ice P resid en t and G eneral Counsel, U .S . P ostal S ervice (July 27, 1998) ( \xe2\x80\x9c U SPS L e tte r\xe2\x80\x9d ). Y our inquiry\nw as referre d to th is O ffice fo r response S e e 28 C F R \xc2\xa7 0 .25(a) (1998) W e requested, and you h ave provided,\nth e S e rv ic e \xe2\x80\x99s ag reem en t to b e bound by o u r opinion on this issu e S ee L etter fo r B eth N olan, D eputy A ssistant\nA tto rn e y G en eral, O ffice o f L egal Counsel, fro m M ary S. E lcano, S en io r V ice P resident and G en eral C ounsel, U.S\nP o stal S erv ic e (A ug. 14, 1998).\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 1721 to Collection o f Fee fo r Stamped Cards\n\nably recommends the Service\xe2\x80\x99s proposal, the Governors of the Postal Service\n( \xe2\x80\x9c Governors\xe2\x80\x9d ) are vested with the ultimate authority to approve or reject new\nrates, fees, and classifications. See id. \xc2\xa7\xc2\xa73624, 3625. Changes adopted by the\nGovernors are then formally promulgated as provisions of the Domestic Mail\nClassification Schedule (\xe2\x80\x9c DMCS\xe2\x80\x9d ), which is published at 39 C.F.R. pt. 3001,\nsubpt. C, app. A (1998), and in the form of Postal Service rules implementing\nchanges to the Domestic Mail Manual (\xe2\x80\x9c DMM\xe2\x80\x9d ). See 39 U.S.C. \xc2\xa7401(2) (1994);\n39 C.F.R. pt. I l l (1998).\nIn 1996, the Service petitioned the Commission to recommend the adoption\nof a new two-cents fee to be paid on the purchase of stamped cards to recover\nthe costs of manufacturing such cards. In the proceedings before the Commission,\ntwo individual mailers intervened in opposition to the proposed fee. Among other\nthings, the intervenors argued that collection of the fee would violate 18 U.S.C.\n\xc2\xa7 1721, a criminal statute, which provides in relevant part:\nWhoever, being a Postal Service officer or employee, knowingly\nand willfully: . . . sells or disposes of postage stamps or postal\ncards for any larger or less sum than the values indicated on their\nfaces; or sells or disposes of stamped envelopes for a larger or less\nsum than is charged therefor by the Postal Service for like quan\xc2\xad\ntities; . . . or sells or disposes of postage stamps, stamped enve\xc2\xad\nlopes, or postal cards, otherwise than as provided by law or the\nregulations of the Postal Service; shall be fined under this title or\nimprisoned not more than one year or both.\nThe Commission did not reach the intervenors\xe2\x80\x99 contentions regarding \xc2\xa7 1721\nin its initial disposition. Although it declined to recommend adoption of the pro\xc2\xad\nposed fee at that time on factual grounds unrelated to the issue posed here, the\nCommission did recommend the fee classification proposed by the Service in the\nform of a \xe2\x80\x9c shell classification\xe2\x80\x9d \xe2\x80\x94 i.e., a classification earmarked for distinct rate\ntreatment, but without the recommendation of any particular current rate level.\nIn 1997, the Service again proposed adoption of the two-cents card fee to the\nCommission, and one of the previously noted intervenors again contended that\ncharging such a fee would violate 18 U.S.C. \xc2\xa7 1721. The Commission Presiding\nOfficer, however, determined that the proposed fee \xe2\x80\x9c likely\xe2\x80\x9d would not violate\n\xc2\xa71721, stating \xe2\x80\x9c [e]ven if the face value of a stamped card did not equal its price,\npostal employees would likely not be in violation of the statute.\xe2\x80\x9d Presiding Offi\xc2\xad\ncer\xe2\x80\x99s Ruling on Popkin\xe2\x80\x99s Motion to Dismiss, No. R97-1/31, at 3 (Sept. 26, 1997)\n(\xe2\x80\x9c Popkin Ruling\xe2\x80\x9d ).\n\n9\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nSubsequently, the Commission issued a decision recommending a one-cent fee\nfor stamped cards over and above the twenty-cents postage charge.2 In June 1998,\nthe Governors approved the one-cent fee on stamped cards, \xe2\x80\x9c in addition to post\xc2\xad\nage,\xe2\x80\x9d under the authority of 39 U.S.C. \xc2\xa7 3625, and determined that the fee would\ngo into effect on January 10, 1999. The authorized fee was officially published\nin the form of a change to the DMCS, domestic rates and fees. See Changes\nin Domestic Rates, Fees, and Mail Classifications, 63 Fed. Reg. 39,124, 39,145,\nand 39,163 (1998).3 Further implementing the authorized fee, the Postal Service\npromulgated a Final Rule on July 14, 1998, setting forth the DMM standards\nadopted by the Service to implement, among numerous other new provisions, the\nstamped card fee approved in the Decision of the Governors of the Postal Service\nin Postal Rate Commission Docket No. R97-1. See Domestic Mail Manual\nChanges To Implement the Rate, Fee, and Classification Changes in Docket No.\nR97-1, 63 Fed. Reg. 37,946, 37,957 (1998) (to be codified at 39 C.F.R. pt. 111).\nThe new provision of the DMM states:\nA $0.01 fee per stamped card and a $0.02 fee per double stamped\ncard will be added to cover manufacturing and printing costs. A\nfee of $0.40 will be added to the price of a sheet of 40 stamped\ncards. This is consistent with the existing fee structure for stamped\nenvelopes, where customers are charged postage plus a small fee\nfor the envelope itself.\nId. at 37,957.\nIn light o f the intervenors\xe2\x80\x99 contentions in the rate proceedings, you have sought\nthe Department\xe2\x80\x99s opinion as to whether charging the one-cent fee on the stamped\ncards, without changing the postage imprinted on the cards to include the amount\nof that fee,4 would result in criminal violation of 18 U.S.C. \xc2\xa7 1721.\n\n2 T h e reasons w hy the C o m m issio n recom m ended (and the G overnors later approved) a one-cent fee rather than\nthe tw o -cen ts p ro p o sed by the S erv ic e was ex p lain ed by the C om m ission as follow s \xe2\x80\x9c A o ne-cent fee fo r a stam ped\ncard ea sily co v e rs m a n u factu rin g costs and m a k es an adequate contributio n w ith a co st co v erag e o f 125 percent\n. . . T h e c o st co v e ra g e sh o u ld be relatively lo w for this service, so th at it w ill pro v id e a low co st m ethod by\nw hich an individual can send m ail \xe2\x80\x9d Opinion a n d R ecom m ended D ecision, D ocket N o R 9 7 -1 , at 595 (Postal Rate\nC o m m ission, M ay 11, 1998).\n3 T h e D om estic M ail C la ssificatio n Schedule is incorporated by referen ce in the P ostal R egulations set forth at\n3 9 C F . R \xc2\xa7 111.1 (1998).\n4 W e are ad v ise d that it w o u ld b e financially an d otherw ise im practicable fo r the S ervice to alter o r m odify its\nlarge ex istin g in v en to ry o f stam p ed cards so th a t the face value im printed on the card s (presently tw enty-cents)\nw ould b e increased to tw en ty -o n e cents, reflectin g the o n e-cent non-postag e fee in addition to p o stag e value See\nU SPS L etter at 4. M o reo v er, b ec au se the p n ce in d icia stam ped on the ex istin g card s represents the co st o f po sta g e\nonly, it w o u ld ap p e ar an o m alo u s an d m isleading to alter the stam ped p n c e to read \xe2\x80\x9c tw en ty -o n e c e n ts\xe2\x80\x9d w hen the\nactual p o stag e v alu e is o n ly tw enty-cents\n\n10\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa71721 to Collection o f Fee fo r Stamped Cards\n\nn.\nIn its various submissions to the Commission and the Governors, the Service\nhas asserted that charging the one-cent fee on stamped cards, in addition to the\nimprinted postage of twenty-cents, would not result in violation of 18 U.S.C.\n\xc2\xa7 1721. Invoking the relevant legislative history, the Service argues that the\ncriminal statute was enacted solely to remedy fraudulent pricing practices engaged\nin by postmasters in order to inflate their salaries; that \xc2\xa7 1721 is therefore con\xc2\xad\ncerned solely with unauthorized price manipulation by postal employees; and that\nit is in no way intended to prevent the authorized collection of supplemental postal\nfees duly approved by the postal authorities. See USPS Letter at 4. The Service\nalso contends that interpreting \xc2\xa7 1721 to prohibit implementation of the proposed\nfee arrangement would be inconsistent with the powers and authorities designedly\ngranted the Service by Congress under the PRA. As the Service asserted in a\nbrief to the Commission:\nA stamped card fee would not give rise to a violation of section\n1721, since, if implemented, it would be entirely consistent with\nthe policies of Postal Service management, and therefore would not\nresult in the unauthorized sale of postage at inflated rates. It is evi\xc2\xad\ndent that Congress did not intend the restrictions in 1721 to apply\nto pricing policies recommended by the Commission, approved by\nthe Governors, and implemented by postal management, since,\nsimultaneously with the enactment of conforming amendments to\nsection 1721 adopted in connection with the Postal Reorganization\nAct and 39 U.S.C. \xc2\xa7 410(b)(2), Congress contemplated that mail\nclassifications such as postal cards would be subject to change, as\nit created an elaborate scheme for the implementation of and\nchanges to the Domestic Mail Classification Schedule. See 39\nU.S.C. \xc2\xa7\xc2\xa73623, 3625.\nReply Brief of United States Postal Service at 111, Special Services Reform, 1996,\nU.S. Postal Rate Commission, Docket No. MC96-3 (1997).\nThe Service\xe2\x80\x99s position was subsequently endorsed by the Commission Presiding\nOfficer in his opinion denying the intervenor\xe2\x80\x99s motion to dismiss based on the\n\xc2\xa71721 argument. The Presiding Officer concluded:\nEven if the face value of a stamped card did not equal its price,\npostal employees would likely not be in violation of the statute.\nAs the Postal Service convincingly argues, this particular criminal\nstatute appears to have been aimed at preventing the misuse of\npostal items by postal employees attempting to increase their sala\xc2\xad\n11\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nries (postmasters\xe2\x80\x99 salaries are determined in part by a post office\xe2\x80\x99s\nrevenues). By all appearances, it is not an effort to regulate postal\nfees. It would be remarkable if Congress had regulated postal fees\nby criminalizing conduct. \xe2\x80\x98\xe2\x80\x98I f Congress wished to prevent the Postal\nService from authorizing the sale of stamped cards for a fee in addi\xc2\xad\ntion to postage, Congress would have enacted a law directed at the\nPostal Service rather than its individual employees and officers.\xe2\x80\x9d\nOpposition at 4 n.2.\nPopkin Ruling at 3.\nThe Postal Service also invokes an early opinion of the Solicitor of the Post\nOffice Department to bolster its position that \xc2\xa7 1721 is solely concerned with\nunauthorized sales and pricing practices by postal employees, as distinct from offi\xc2\xad\ncial changes in postage rates and fees authorized by the Service under the provi\xc2\xad\nsions of the PRA. As the Postal Solicitor\xe2\x80\x99s opinion explained with reference to\nthe \xe2\x80\x9c face value\xe2\x80\x9d sale requirements o f an earlier version of \xc2\xa7 1721:\n[B]ut accepting the broad and specific terms of the law as applying\nhere, it must be borne in mind that this is a criminal statute, and\nin order to constitute a violation a criminal intent is necessary, and\nwhile it is well established that intent may be presumed from the\ncommission o f the acts prohibited, the circumstances in this case\nwould negative the existence of such intention, especially should\nthe procedure be authorized by the department. . . . For it is to\nbe observed that the purpose of the law is not to secure an exact\nreturn, for accounting purposes or otherwise, for the stamped paper\ndisposed of, but to regulate and control postal employees in their\nhandling o f stamped papers, this being apparent from the numerous\nother provisions o f the law.\n6 Op. Solicitor of the Post Office 652, 655 (1918) (emphasis added).5\nThus, the Service, the Commission, and the Post Office Solicitor\xe2\x80\x99s early opinion\nall appear to agree on the basic proposition that the relevant requirement of 18\nU.S.C. \xc2\xa7 1721 was intended to apply only to unauthorized and deceptive acts or\ntransactions by Postal employees, and has no proper application to their\nimplementation of authorized fee provisions adopted by the Service in accordance\nwith the provisions of the PRA.\n5 T h a t o p in io n con c ern ed th e peculiarities o f U .S . postal operations in S hanghai, C hina, w here a P ostm aster G eneral\no rd er w as p ro p o sed that pro v id e d for the sale o f stam ps to the public in exchange fo r foreign currency pegged\nto th e v alu e o f th e prevailing d aily rate of e x c h a n g e o f U.S currency. T h e issue p resented w as w hether the sale\no f stam p s d u rin g p erio d s w hen th e banks w e re closed and, consequently , n o official exch an g e rate (an d therefore\nno ac c u ra te sales value) co u ld b e ascertained, w o u ld constitute a violation o f the version o f \xc2\xa71721 th en in effect\nB ased o n th e c o n sid e ratio n s q u o te d above, th e S olicitor con clu d ed that n o violation o f the statute w ould result\n\n12\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa71721 to Collection o f Fee fo r Stamped Cards\n\nBy contrast, the intervenors in the Commission\xe2\x80\x99s proceedings argued that\n\xc2\xa71721, by its terms, applies to criminalize the sales arrangements proposed by\nthe Service. Section 1721 prohibits the sale by postal employees \xe2\x80\x9c of postage\nstamps or postal cards for any larger or less sum than the values indicated on\ntheir faces,\xe2\x80\x9d and it makes no express exception for official actions. Because postal\nemployees would be selling stamped cards bearing a twenty-cents postage indicia\non their face for a total sales price of twenty-one-cents, it has been argued that\nthe sale of the cards would constitute sales for a \xe2\x80\x9c larger . . . sum than the values\nindicated on their faces.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 1721.\nIII.\n\nA.\nIn determining whether the Service\xe2\x80\x99s proposed sales arrangement for the\nstamped cards would violate the criminal prohibition set forth in \xc2\xa7 1721, we need\nnot resolve whether the Service is correct to contend that the criminal prohibition\nis inapplicable to official, authorized acts by Service employees. For even if we\nassume that \xc2\xa7 1721 may apply to some official, authorized acts, we do not believe\nthat the plain text of \xc2\xa7 1721 bars the proposed sales arrangement that we have\nbeen asked to consider. To see why this is so, it is important to consider not\nonly the precise terms o f \xc2\xa7 1721, but also the overall statutory structure and rel\xc2\xad\nevant legislative history, each of which supports the conclusion that the Service\xe2\x80\x99s\nproposed sales arrangement comports with the terms of the criminal prohibition.6\nB.\n\nThe Service agrees that the literal terms of the statutory prohibition set forth\nin \xc2\xa71721, which bars the sale of \xe2\x80\x9c postage stamps or postal cards\xe2\x80\x9d for sums\ngreater or less than the \xe2\x80\x9c values indicated\xe2\x80\x9d on their faces, applies to the sale of\n\xe2\x80\x9c stamped cards.\xe2\x80\x9d The Service concedes that \xe2\x80\x9c stamped cards\xe2\x80\x9d are \xe2\x80\x9c postal cards\xe2\x80\x9d\nfor purposes of \xc2\xa7 1721, and thus that the criminal prohibition applies to stamped\ncards in the same manner that it would apply to any type of postal cards. The\nanalysis that follows, therefore, accords no weight to the fact that the Service\nhas designated the sales item in question here with a nam e\xe2\x80\x94 \xe2\x80\x9c stamped cards\xe2\x80\x9d \xe2\x80\x94\nthat does not expressly appear in \xc2\xa7 1721.\nThe analysis that follows does accord weight, however, to the Service\xe2\x80\x99s conten\xc2\xad\ntion that, in adopting the proposed sales arrangement, it has exercised the discre\xc2\xad\ntion that Congress has delegated to it pursuant to the PRA. The Service\xe2\x80\x99s conten\xc2\xad\ntion is important because the enactment of the PRA dramatically altered the legis\xc2\xad\n6 T h e C rim inal D ivision o f the U nited States D epartm ent o f Ju stice concurs m th is conclusion. See M em o ran d u m\nfor B eth N olan, D eputy A ssistant A ttorney G eneral, O ffice o f Legal C ounsel, fro m Jam es K. R obinson, A ssistan t\nA ttorney G eneral, C rim inal D ivision, R e \xe2\x96\xa0Collection F ee f o r Stam ped C ard s (D ec. 30, 1998)\n\n13\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nlative and regulatory context in which postal pricing and sales practices \xe2\x80\x94\nincluding those covered by 18 U.S.C. \xc2\xa7 1721\xe2\x80\x94 must be evaluated. Indeed, Con\xc2\xad\ngress amended \xc2\xa7 1721 at the time that it enacted its postal reform legislation and\nthereby expressly linked the existing criminal prohibition with the broader statu\xc2\xad\ntory and regulatory changes effected by the PRA. See Pub. L. No. 91-375, sec.\n6(j)(29), \xc2\xa7 1721, 84 Stat. 719, 780 (1970) (extending the prohibition to the sale\nof postal cards and other postal items \xe2\x80\x9c otherwise than as provided by law or\nthe regulations o f the Postal Service.\'").1\nMost significantly, the PRA shifted control over postal pricing and sales prac\xc2\xad\ntices from Congress to the Service. See National Ass \xe2\x80\x99n o f Greeting Card Pub\xc2\xad\nlishers v. U.S. Postal Service, 462 U.S. 810, 813 (1983) (citation omitted)\n(\xe2\x80\x9c When, in 1970, Congress enacted the Postal Reorganization Act, it divested\nitself of the control it theretofore had exercised over the setting of postal rates\nand fees.\xe2\x80\x9d ). In doing so, Congress afforded the Service broad discretion to carry\nout its functions in a businesslike and cost-effective manner. See S. Rep. No.\n91-912, at 2 (1970) ( \xe2\x80\x9c [PJostal management must now be given the unfettered\nauthority and freedom it has been denied for years to maintain and operate an\nefficient service.\xe2\x80\x9d ); 39 U.S.C. \xc2\xa7 404(a)(2) (1994) (giving the Service specific\nauthority \xe2\x80\x9c to prescribe, in accordance with this title, the amount of postage and\nthe manner in which it is to be p a id \xe2\x80\x9d ) (emphasis added); id. \xc2\xa7401(2) (granting\nthe Service authority \xe2\x80\x9c to adopt, amend, and repeal such rules and regulations\nas it deems necessary to accomplish the objectives of [the PRA].\xe2\x80\x9d ). Accordingly,\n\xc2\xa71721 should be construed, to the extent that its text will allow, in a manner\nthat will permit the Service to exercise the kind of broad discretion to establish\nfee changes and to implement them in a businesslike and cost-efficient manner\nthat appears to have been contemplated by Congress when it enacted the PRA.\nHere, the Service\xe2\x80\x99s proposal to sell postal cards for twenty-one cents, adopted\nto recover the cost of producing the stationery component of such cards, furthers\nthe statutory purpose of ensuring that postal items are sold for amounts that reflect\nthe costs of their production. Specifically, the PRA requires that postal rates and\nfees must be established in accordance with \xe2\x80\x9c the requirement that each class of\nmail or type o f mail service bear the direct and indirect postal costs attributable\nto that class or type plus that portion of all other costs of the Postal Service\nreasonably assignable to such class or type.\xe2\x80\x9d 39 U.S.C. \xc2\xa7 3622(b)(3). The addition\nof a one-cent fee for the costs of the stationery plainly comports with that statutory\ncommand, as the Service has determined that the postage price no longer accounts\nfor the costs of the stationery on which the postage mark appears.\nIn addition, the Service\xe2\x80\x99s proposal to sell its existing inventory of postal cards\nat the new price, even though these cards do not set forth the new sales price\non their face, furthers the statutory purpose of ensuring that fee changes are imple7 F o rm erly, th e statu to ry p ro h ib itio n had a p p lie d to the \xe2\x80\x9c P o st O ffice D e p a rtm e n t\xe2\x80\x9d S e e A ct o f Ju n e 25, 1948,\nch 6 4 5 , \xc2\xa7 1721, 62 S tat. 683, 7 83.\n\n14\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 1721 to Collection o f Fee fo r Stamped Cards\n\nmerited in a businesslike and cost-effective manner. See UPS Worldwide For\xc2\xad\nwarding, Inc. v. United States Postal Service, 66 F.3d 621, 638 (3d Cir. 1995),\ncert, denied, 516 U.S. 1171 (1996) (explaining that \xe2\x80\x9c [i]n enacting the PRA, Con\xc2\xad\ngress repeatedly explained the fundamental reason for the dramatic changes man\xc2\xad\ndated by the Act; it wanted the Postal Service to operate less like a bureaucratic\nagency and more like a business. The relevant committee reports repeat this prin\xc2\xad\nciple again and again.\xe2\x80\x9d ); see, e.g., H.R. Rep. No. 91-1104, at 11 (1970), reprinted\nin 1970 U.S.C.C.A.N. 3649, 3660 (\xe2\x80\x9c The Postal Service is a public service but\nthere is no reason why it cannot be conducted in a businesslike way and every\nreason why it should be.\xe2\x80\x9d ). As we have noted, the Service has advised that it\nwould be financially and otherwise impracticable to alter its large, existing inven\xc2\xad\ntory of postal cards to account for the newly-determined fee on the face of those\ncards. See USPS Letter at 4. The Service\xe2\x80\x99s proposed sales arrangement therefore\nwould appear to promote the statutory aim of economic efficiency by imple\xc2\xad\nmenting the new fee for postal cards \xe2\x80\x94 which has been selected to serve the\ncongressional mandate that the fee reflect all of the costs of production \xe2\x80\x94 in a\nmanner that makes use of already-printed postal cards without incurring substantial\nalteration costs.\nThe foregoing analysis demonstrates that the adoption of the intervenors\xe2\x80\x99 pro\xc2\xad\nposed construction of the criminal prohibition set forth in \xc2\xa7 1721 of title 18 would\neffectively preclude the Service from adopting a cost-effective means of imple\xc2\xad\nmenting a fee change that meets the statutory requirement that postal fees reflect\nall of the costs of the production of the postal item. Because the Service\xe2\x80\x99s pro\xc2\xad\nposed sales arrangement appears to represent an exercise of the very type of\ndiscretion in the implementation of a fee change that Congress appears to have\ncontemplated when it enacted the PRA, \xc2\xa7 1721 should be construed to preclude\nthe exercise of that discretion only if the plain terms of the criminal prohibition\nwould compel that result. In our view, as we explain more fully below, they do\nnot.\nC.\nThe proposed sales arrangement arguably contravenes the plain terms of\n\xc2\xa7 172l \xe2\x80\x99s face-sale provision in two distinct ways. First, the Service proposes to\nsell postal cards for a price \xe2\x80\x94 twenty-one cents \xe2\x80\x94 that is not set forth on their\nface. Second, the Service proposes to sell these cards for a price that is greater\nthan the only monetary amount that does appear on their face \xe2\x80\x94 namely the\namount set forth on the twenty-cents postage stamp that is imprinted on the face\nof the card.\nTo assess the seriousness of these two potential points of conflict between the\nstatutory text and the Service\xe2\x80\x99s proposed sales arrangement, it is necessary to\nanswer two questions. First, does \xc2\xa7 1721 require that postal cards indicate a value\n15\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\non their face? If it does not, as we conclude below, then the Service may authorize\nthe sale o f postal cards for an amount \xe2\x80\x94 twenty-one cents \xe2\x80\x94 that is not indicated\non the face of the card. This conclusion, however, leads to a second question:\nEven if the value need not be indicated on the face of the card, when a monetary\namount does appear on the face of a postal card in the form of the price of the\npostage stamp, is the postage amount the only price at which the card may be\nsold, or is it possible that the card m ay be sold for a value other than the postage\namount? If the latter is possible, as we also conclude below, then the Service\nmay authorize the sale of a postal card for an amount that is greater than the\nstamped postage mark and that is not otherwise indicated on the face of the card.\nIn addressing the first question, it is clear that the plain terms of \xc2\xa7 1721 are\nconsistent with the conclusion that the Service may sell postal cards for an amount\nthat is not specified on their face. That is, \xc2\xa7 1721 does not require that the face\nof a postal card must indicate the value of the postal card. The statute prohibits\nthe sale of a postal card for a sum greater or lesser than the indicated value of\nthe postal card, but it does not, by its terms, mandate that the face of the postal\ncard indicate what that value is. Nothing in the text of the criminal prohibition\nappears to require the conclusion, therefore, that the proposed sales arrangement\nwould be prohibited by the face-sale provision of \xc2\xa7 1721 simply because the\nService proposes to sell cards that would not have set forth the official value\nof the cards, as opposed to the official value of the postage of the cards, on\ntheir face.\nThis reading of the statutory text accords with longstanding administrative prac\xc2\xad\ntice with respect to the sale of postage stamps, which, like postal cards, are subject\nto the face-sale requirement of \xc2\xa7 1721. The Service has regularly issued letterseries postage stamps, which do not indicate a monetary amount but have only\na letter of the alphabet indicated on their faces, for a price authorized by the\nService but not indicated on the faces of the stamps themselves. To be sure, letterseries stamps do contain a marking on their faces that signifies their value. The\nactual sales price that a purchaser must pay for the stamp, however, is not discern\xc2\xad\nible from the face of the stamp. A purchaser may verify the official, authorize\nsales price only by consulting an official Service document that states the price\nof a stamp bearing a certain letter. In this respect, letter-series stamps are similar\nto postal cards that do not bear their sales price on their faces. In each case,\na purchaser must look beyond the face of the postal item, and consult official\nmaterials, to determine the official price.\nThus, if \xc2\xa7 1721, which requires that both postage stamps and postal cards be\nsold for no more or less than \xe2\x80\x9c the values indicated on their faces,\xe2\x80\x9d imposed\na requirement that these items always indicate the monetary amount of their sales\nprice on their faces, then letter-series stamps would have been prohibited. Instead,\nhowever, the Service advises that letter-series stamps have not been considered\n16\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 1721 to Collection o f Fee fo r Stamped Cards\n\nproblematic under \xc2\xa7 1721,8 and Congress has not precluded the issuance of such\nletter-series stamps despite ample time within which to do so. This longstanding\nadministrative practice with respect to postage stamps comports with our conclu\xc2\xad\nsion that the plain terms of the criminal prohibition do not require that the Service\nindicate the sale price of the postal cards on their faces.\nWe find additional support for our conclusion in the fact that \xc2\xa7 1721 explicitly\npermits the sale of stamped envelopes at prices not indicated on their faces. The\nprovision regarding stamped envelopes suggests that the criminal prohibition set\nforth in \xc2\xa7 1721, when considered as a whole, was not intended to embody a gen\xc2\xad\neral policy that the price of a postal item must be indicated on the face of the\nitem. Such a policy, after all, would be inconsistent with the provision regarding\nstamped envelopes. As a result, the overall structure of the statutory criminal\nprohibition does not provide clear support for a conclusion that the plain terms\nof the face-sale provision should be construed to include, even if only implicitly,\na requirement that the value of a postal card be indicated on its face.\nEven though we do not believe that \xc2\xa7 1721 precludes the sale of postal cards\nfor an authorized amount not indicated on their faces, we are still left to consider\nthe second question: whether postal cards must be sold at the price of the postage\nindicated whenever a postage amount is indicated on the faces of the cards. Here,\nthe Service proposes to sell postal cards not only for an amount, twenty one cents,\nthat would not appear on the faces of the cards, but also for an amount that would\nbe greater than the only monetary value, twenty-cents, that would appear on the\nfaces of the postal cards \xe2\x80\x94 namely, the amount of the postage price marked on\nthe postage stamp. If \xc2\xa7 1721 is properly construed so that such a monetary amount\nnecessarily \xe2\x80\x9c indicates\xe2\x80\x9d the \xe2\x80\x9c value\xe2\x80\x9d of the card itself, then \xc2\xa7 1721 arguably would\nappear, by its terms, to bar the proposed sales arrangement. If the provision may\nbe construed so that such a monetary amount may be understood to \xe2\x80\x9c indicate\xe2\x80\x9d\nonly the value of the postage, however, then the Service\xe2\x80\x99s sale for twenty-one\ncents of a card stamped with a twenty-cents postage mark would not contravene\nthe express terms of the criminal prohibition. Under such a construction, the Serv\xc2\xad\nice\xe2\x80\x99s sale for twenty-one cents of a postal card stamped with a twenty-cents post\xc2\xad\nage mark would not be for a sum greater than the \xe2\x80\x9c value indicated\xe2\x80\x9d on the card\xe2\x80\x99s\nface because the card\xe2\x80\x99s face would indicate only the value of the postage and\nnot the value o f the card itself.\nIn our view, the plain text of \xc2\xa7 1721 does not require the conclusion that the\namount of postage that appears on a postal card necessarily constitutes the \xe2\x80\x9c value\nindicated\xe2\x80\x9d of a postal card, even when there is no express countervailing indica\xc2\xad\ntion of the postal card\xe2\x80\x99s value on the face of such a postal card. The statutory\ntext does not reveal, by its terms, the circumstances in which the face of a postal\ncard may be said to have indicated the value of the postal card as opposed to\n8 T elephone conversation betw een G eorge S m ith, A ttorney-A dvisor, O ffice o f Legal C o u n sel, an d A nthony\nA lvem o, A ttorney, N ational Litigation Section, U nited States Postal S ervice (D ec. 22, 1998).\n\n17\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nmerely the value of the postage stamp that appears on the face of the postal card.\nThe statutory text states only that a sale of a postal card may not be for a sum\ngreater or lesser than the \xe2\x80\x9c value indicated\xe2\x80\x9d on the face of a postal card. As to\nwhether the appearance of the monetary amount of a postal stamp on a postal\ncard, without more, necessarily indicates the value of the postal card within the\nmeaning o f \xc2\xa7 1721, the statutory text is silent.\nThe Service\xe2\x80\x99s last regulation that defined the term \xe2\x80\x9c postal cards\xe2\x80\x9d accords with\na construction of the criminal prohibition in which the postage stamp that appears\non the face of a postal card need not be understood to reflect the full value of\nthe card itself. The regulation defined a postal card as follows: \xe2\x80\x9c A postal card\nis a card with postage imprinted o r impressed on it and supplied by the Postal\nService for the transmission of messages.\xe2\x80\x9d 39 C.F.R., pt. 3001, subpt. C, appx.\nA, 222.11 (1996).9 That definition suggests that the postal card is a distinct postal\nitem from the postage that is impressed upon it, a suggestion that accords with\nthe conclusion that the postage stamp that appears on the face of a postal card\ndoes not necessarily indicate the value of the card. The statutory prohibition on\nthe sale of postal cards for a value greater than the \xe2\x80\x9c value indicated\xe2\x80\x9d on the\nface o f the card would appear to be at least ambiguous, therefore, as to whether\nthe textual phrase \xe2\x80\x9c value indicated on its face\xe2\x80\x9d refers only to the authorized sales\nprice of the card in those cases in which such a value has been indicated on\nthe face o f the card, or whether that phrase is instead intended to refer to the\nsole monetary amount that appears on the face o f the card even though the Service\nhas concluded that such an amount actually refers only to the postage price.\nThe intervenors reject the notion that \xc2\xa7 1721 may be read to be ambiguous on\nthis point. Their plain meaning argument against the Service\xe2\x80\x99s proposed sales\narrangement hinges largely on the contrast in the language that \xc2\xa7 1721 employs\nwith respect to postal cards as compared to stamped envelopes. The intervenors\ncontend that because \xc2\xa7 1721 refers to the value indicated on the face of postal\ncards, but not stamped envelopes, it is clear that \xc2\xa7 1721 imposes an additional\nlimitation regarding the manner o f the sale o f postal cards \xe2\x80\x94 namely, that they\nmay not be sold for a monetary amount greater than the sole monetary amount\nthat appears on their face, which, in the case before us, is the amount of postage\nthat is stamped on the cards.\nA review of the historical background to the current version of the criminal\nprohibition set forth in \xc2\xa7 1721 demonstrates, however, that it is far from clear\nthat the differing language in \xc2\xa7 1721 on which the intervenors rely supports their\nplain meaning argument. At the time that Congress first enacted the criminal\nprohibition subsequently codified, without material alteration, as 18 U.S.C. \xc2\xa7 1721,\nsee Revised Statutes of the United States, 1873-1874, \xc2\xa73920, at 762 (1878)\n9 T h is reg u latio n w as am en d ed through su bsequent regulation in 1996 so th at the term \xe2\x80\x9c stam ped ca rd \xe2\x80\x9d replaced\nth e te rm \xe2\x80\x9c postal card \xe2\x80\x9d S e e A m endm ent to D o m estic M ail C lassificatio n S chedule, 61 F ed Reg. 32,656, 32,662\n(1996).\n\n18\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 1721 to Collection o f Fee fo r Stamped Cards\n\n(\xe2\x80\x9c Revised Statutes\xe2\x80\x9d ), as amended by Act of June 17, 1878, ch. 259, 20 Stat.\n140, 141, it had statutorily established a single \xe2\x80\x9c postage charge\xe2\x80\x9d for postal cards\nof \xe2\x80\x9c one cent each, including the cost of their manufacture.\xe2\x80\x9d See Act of June\n8, 1872, ch. 335, \xc2\xa7 170, 17 Stat. 283, 304. Congress had in this way set the postal\ncard fee at a monetary amount that reflected both the cost of postage and the\ncost of manufacture. There was therefore no deviation between the postal charge\nand the value of the postal card at that time because Congress, in one legislative\nact, had established the value of the postal card to be the equivalent of the postal\ncharge. Indeed, Congress did not even authorize the use of private post cards\nuntil 1898, well after it had enacted the face-sale provision of the criminal prohibi\xc2\xad\ntion now codified in \xc2\xa7 1721. Act of May 19, 1898, ch. 347, 30 Stat. 419. Thus,\nat the time Congress enacted the face-sale provision, there was no market, as\nthere is today, for post cards that could be purchased for a fee separate from\nthe costs of their postage stamps.\nIn contrast to its treatment of postal cards, Congress, at the time of the first\nenactment o f the face-sale provision, had not established a similarly uniform, fixed\nstatutory value for stamped envelopes. Indeed, it could not have because stamped\nenvelopes were used to mail a wide variety of materials, including newspapers,\nof varying sizes, and thus no single cost could be affixed due to variations in\nboth the applicable postage rates and the costs of producing differing types of\nenvelopes. See 25 Op. Att\xe2\x80\x99y Gen. 354, 359-60 (1905). Congress had instead pro\xc2\xad\nvided by statute that the Postmaster General shall provide stamped envelopes and\nthat such stamped envelopes \xe2\x80\x9c shall be sold, as nearly as may be, at the cost\nof procuring them, with the addition o f the value o f the postage stamps impressed\nthereon.\xe2\x80\x9d See Revised Statutes, \xc2\xa73915, at 761 (emphasis added). This framework\nmeant that the face of a stamped envelope did not set forth the value of the\nenvelope \xe2\x80\x94 it set forth only the value of the postage stamp that was impressed\non the envelope. Accordingly, the statutory prohibition regarding the manner of\nthe sale of stamped envelopes did not refer to the face value of the envelope\nbut provided instead that such an envelope could not be sold or disposed of \xe2\x80\x9c for\na larger or less sum than is charged therefor by the Post-Office Department for\nlike quantities[.]\xe2\x80\x9d Act of June 17, 1878, 20 Stat. at 141; see Revised Statutes,\n\xc2\xa7 3920, at 762. This statutory restriction served to ensure that the sale of stamped\nenvelopes conformed to the authorized, albeit variable, fee for their purchase.\nThese historical facts regarding the state of nineteenth century postal law make\nit difficult to conclude that Congress clearly employed the differing language con\xc2\xad\ncerning stamped envelopes that appears in \xc2\xa7 1721 in order to ensure that the face\nvalue of the postage stamp that appears on a postal card would necessarily indicate\nthe value of the postal card itself. The historical context instead may be read\nto suggest that the face-sale provision was intended to ensure that postal cards,\nlike stamped envelopes, were sold for a price authorized by Congress. The statu\xc2\xad\ntory reference to the face value of postal cards, but not the face value of stamped\n19\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nenvelopes, may merely have been reflective of the fact that, at the time that Con\xc2\xad\ngress first enacted the criminal prohibition now in question, the face of postal\ncards set forth their legally established value while the face of stamped envelopes\ndid not. It is not at all clear, therefore, that the criminal prohibition should be\nconstrued to preclude a proposed sales arrangement of the type at issue here.\nUnder the Service\xe2\x80\x99s proposed sales arrangement, stamped cards would be per\xc2\xad\nmitted to be sold only for a price that, although greater than the price of postage\nthat appears on their faces, would nevertheless conform to the fee that has been\nestablished by the administrative agency that Congress has authorized to set such\nfees.\nIn light o f the ambiguity as to the inference that should be drawn from the\ndiffering statutory treatment of stamped envelopes and postal cards, we do not\nbelieve that \xc2\xa7 1721 should be construed to bar the Service\xe2\x80\x99s proposed sales\narrangement. Such a construction would serve to restrict the ability of the Service\nto adopt a method for the implementation of a fee change that appears to serve\nthe broad purposes of the PRA. Congressional intent is better served by construing\nthe ambiguity on this point in a manner that preserves the substantial discretion\nthat the PRA appears to have been intended to confer upon the Service. For that\nreason, we conclude that \xc2\xa7 1721 does not bar the Service from determining that\nthe postal mark on a pre-stamped card indicates the value of the postage alone,\nnot the value of the postal card, and thus from selling stamped cards bearing\ntwenty-cents stamps for twenty-one cents.\nD.\nA review of the legislative history to \xc2\xa7 1721 accords with our conclusion that\nthe face-sale provision should be construed to afford the Service the discretion\nto permit the sale of a postal card for an amount that reflects its authorized value\neven though it exceeds the amount of postage that appears on its face. It is evident\nfrom the legislative history that \xc2\xa7 1721 was primarily intended to deter, prohibit,\nand punish fraudulent and unauthorized practices by postal employees in the\npricing and sale of stamps, postcards, and other postal items. That general purpose\naccords with a construction of the terms of \xc2\xa7 1721 that would permit the Service\nto offer a postal card for sale only at a price that had been fixed by regulation,\neven though it may be greater than the amount of postage that appears on its\nface.\nThat is not to dispute that a broad requirement that, in the absence of a counter\xc2\xad\nvailing indication on the face o f a postal item, a postal item may not be sold\nfor a price greater than the postage stamp would also protect against fraudulent\nsales practices. Such a requirement would arguably make it more difficult for\npostal employees to sell postal items for unauthorized prices because consumers\nwould need only to consult the face of the postal item to determine the authorized\n20\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa71721 to Collection o f Fee fo r Stamped Cards\n\nprice. In that sense, the general anti-fraud purpose of the criminal prohibition\narguably would be furthered by the intervenors\xe2\x80\x99 proposed construction of \xc2\xa7 1721.\nNevertheless, the pertinent legislative history of \xc2\xa7 1721 demonstrates that the\npredominant purpose of that provision, together with several others enacted or\nconsidered with it, was to prevent postmasters and other postal employees from\nengaging in fraudulent or other unauthorized practices in the sale of stamps, post\xc2\xad\ncards, and related postal items.10 The legislative history at no point states that\nthe statute was intended to protect against fraudulent practices through the imposi\xc2\xad\ntion of a broad prophylactic rule that would preclude the sale of postal cards\nfor an amount greater than the stamped postage in circumstances when no other\nmonetary amount would appear on their faces.\nThe House debate on these measures tersely expressed the main purpose of\nthe reforms under consideration: \xe2\x80\x9c The question and the only question for the com\xc2\xad\nmittee to determine is which is the better proposition for the protection of the\nGovernment to prevent dishonest men from swindling the Government.\xe2\x80\x9d 7 Cong.\nRec. 2680 (1878) (remarks of Rep. Hewitt). During the debate on related provi\xc2\xad\nsions in the bill aimed at postmaster abuses, Representative Hewitt described the\npractices underlying the face value sale provision that was included in the bill\nunder consideration and enacted in language essentially similar to that of \xc2\xa7 1721:\nIn the law as it now stands, as I said a moment ago, there is\nno prohibition of a postmaster selling stamps to whom he pleases\nand where he pleases. There is no provision in the law that prohibits\nhim from trading them for goods or paying his debts with them \xe2\x80\x94\nI mean in the present law as it now stands. And it was under that\nlaw this abuse had grown up, and just because the law did not\nprohibit i t . . . .\nBut now the Committee on Appropriations have reported a bill\nhere which . . . absolutely prohibits the sale of stamps for less than\ntheir face value . . . . This bill not only prohibits that, but it pro\xc2\xad\nhibits postmasters from trading in stamps for goods, from using\nthem in buying goods, or paying their debts with them; and it\naffixes a severe penalty for the violation of the law.\n7 Cong. Rec. at 2679.\nLater, defending the bill reported by the Appropriations Committee (which\nincluded the predecessor version of \xc2\xa7 1721) against an amendment designed to\nincrease the percentages of postal revenues payable to postmasters as compensa\xc2\xad\ntion, Rep. Blount stated: \xe2\x80\x9c The proposition of the Committee on Appropriations\nl0 T he predecessor version o f \xc2\xa7 1721 and the related postal reform m easures w ere co nsidered as part o f th e Post\nO ffice A ppropriation Bill for the F iscal Y ear Ending June 30, 1879, H .R 424 6 , 45 th C ong. (1878). S e e 7 C ong\nR ec. 2 4 7 6 and passim (1878).\n\n21\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nis not to change the law as to the percentage that the postmasters are paid, but\nit is simply to adopt another method to ascertain what they are paid. It is simply\nan effort to avoid fraud; that and nothing m ore." Id. at 2681 (emphasis added).\nDescribing the Post Office Department\xe2\x80\x99s position on the pending sale and com\xc2\xad\npensation provisions, Rep. Blount further stated: \xe2\x80\x9c The proposition now from the\nDepartment is not to decrease by this legislation the amount of [the postmasters\xe2\x80\x99]\nsalary, but to protect the Government against fraud.\xe2\x80\x9d Id. As Rep. Blount pro\xc2\xad\nceeded to describe his own general approach to the bill: \xe2\x80\x9c [A]s a Representative\nupon this floor, bound to protect the Government, I shall not hesitate to provide\nproper legislation against fraud, even if some over-sensitive postmasters should\nimagine there is some reflection upon their integrity.\xe2\x80\x9d Id.\nAuthoritative statements accompanying the passage of subsequent amendments\nand revisions of \xc2\xa7 1721 further confirm the intent indicated in the original debate.\nThus, when Congress modified and recodified the statute in 1909, ch. 321, see\nAct of March 4, 1909, \xc2\xa7 208, 35 Stat. 1088, 1128, the accompanying legislative\nhistory characterized it as follows: \xe2\x80\x9c This section, like section 207, is designed\nto punish certain acts the effect o f which is to defraud the postal revenue or to\nmisappropriate the postal funds, and by means of the acts forbidden to fraudulently\nincrease the compensation of postmasters and employees.\xe2\x80\x9d S. Rep. No. 60-10,\npt. 1, at 22 (1908). Similarly, the legislative history of the 1956 amendments to\nthe statute, see Act of Aug. 1, 1956, ch. 818, 70 Stat. 784, again explained that\nthe purpose of the provision was to prohibit postal employees from \xe2\x80\x9c so disposing\nof stamps, stamped envelopes, or postal cards as to inflate receipts artificially.\xe2\x80\x9d\nS. Rep. No. 84\xe2\x80\x942720, at 1 (1956), reprinted in 1956 U.S.C.C.A.N. 3814, 3814.\nIn describing the effect of the 1956 amendments, the accompanying House Report\nexplained that they were designed to\nbroaden the class of postal employees who are prohibited by\nexisting law from inducing or attempting to induce any person to\npurchase postage stamps, stamped envelopes, or postal cards for\nthe purpose of increasing the emoluments or compensation of the\npostmaster or any employee of any post office or any station or\nbranch thereof.\nH.R. Rep. No. 84-555, at 1 (1955).\nThe review of the legislative history that is set forth above reveals that there\nare no statements that directly speak to the issue that is before us in this matter.\nOnly by drawing a questionable inference from the general anti-fraud statements\nthat appear in the legislative history, therefore, could one conclude that Congress\nintended for \xc2\xa7 1721 to establish a broad prophylactic rule against a sales arrange\xc2\xad\nment of the type that the Service has proposed here. The broad nature of the\nadministrative discretion that the PRA appears to confer upon the Service to make\n22\n\n\x0cApplicability o f 18 U.S.C. \xc2\xa7 172 J to Collection o f Fee fo r Stamped Cards\n\nand implement fee changes, however, counsels against the drawing of such an\ninference. The general anti-fraud statements that appear in the legislative history\nsimply do not suffice to justify the conclusion that \xc2\xa7 1721 should be construed\nto preclude the Service from exercising its broad administrative discretion in the\nmanner that it proposes here. Accordingly, we conclude that the legislative history\naccords with our construction of the plain terms of \xc2\xa7 1721.\nE.\nWe note one final point. Intervenors contend that their construction of \xc2\xa7 1721\nis supported by an early opinion of the Attorney General. That opinion asserted\nthat the prohibition against postal sales at less than face value contained in a\nlate nineteenth century version of \xc2\xa71721, see Revised Statutes, \xc2\xa73920, at 762;\n20 Stat. at 141, extended to the Post Office Department and the Postmaster-General as well as to postmasters and other postal employees. See 25 Op. Att\xe2\x80\x99y Gen.\nat 360. In that opinion, the Attorney General concluded that the Postmaster Gen\xc2\xad\neral lacked authority to approve a \xe2\x80\x9c Retum-Postage\xe2\x80\x9d scheme proposed by a private\ncontractor which would have relieved advertisers from paying postage on pre\xc2\xad\naddressed return cards and envelopes until they were actually deposited in the\nmails and reached the designated return address preprinted on the card.\nAmong other things, the Attorney General determined that such an arrangement\nwould \xe2\x80\x9c violate the spirit and also the letter\xe2\x80\x9d of numerous provisions of the postal\nlaws, including the version of \xc2\xa7 1721 then in effect. In referring to that provision,\nthe Attorney General stated that "[tjhe Postmaster-General is clearly within the\ninhibition. Indeed, to rule otherwise would be to do violence to the plain and\nexpressed intent of Congress.\xe2\x80\x9d Id. After further noting that the proposal would\nallow the contractor to make its initial purchase of the return postal cards and\nstamped envelopes at a price far below that paid by the general public (reflecting\nthe fact that the postage component would not be paid until the stamped card\nor envelope was actually returned and delivered), the Attorney General stated:\nI am unable to reconcile such a transaction with the plain and\nexplicit injunction of Congress that \xe2\x80\x98no stamped envelopes shall\nbe sold by the Post Office Department at less (in addition to legal\npostage) than the cost, including all salaries, clerk hire, and other\nexpenses connected therewith,\xe2\x80\x99 \xe2\x80\x98or sell or dispose of postal cards\nfor any larger or less sum than the values indicated on their faces.\xe2\x80\x99\nId.\nWe do not find the reasoning of this opinion pertinent when applied to the\nmatter presented here. Most significantly, the Postmaster-General in 1905 did not\npossess the broad statutory authority to change postage rates and fees that is vested\n23\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 23\n\nin the Service today pursuant to the PRA. See 39 U.S.C. \xc2\xa7403 (1994); id. \xc2\xa7404,\nas amended by PESEA, \xc2\xa73, 112 Stat. at 1572; id. \xc2\xa7\xc2\xa73621-3625, as amended\nby PESEA, \xc2\xa7 5, 112 Stat. at 1573. That is why the Attorney General\xe2\x80\x99s 1905\nopinion stressed that the return postage scheme under consideration there could\n\xe2\x80\x9c not be put into operation without the express authority of Congress,\xe2\x80\x9d 25 Op.\nAtt\xe2\x80\x99y Gen. at 357, or \xe2\x80\x9c without additional legislation.\xe2\x80\x9d Id. at 366. In contrast,\nchanges in postage rates and fees may be adopted today by the Service (with\nthe Commission\xe2\x80\x99s concurrence) through administrative action alone pursuant to\nthe procedures of the PRA. Passage of legislation by Congress is no longer\nrequired. The legal and regulatory framework on which the Attorney General\xe2\x80\x99s\n1905 opinion was premised has been fundamentally altered by the intervening\nenactment o f the PRA. Specifically, the Service is now authorized to impose a\nfee applicable to stamped cards, to prescribe the manner in which it is to be paid,\nand to promulgate a regulation providing for the collection of that fee. Thus, while\nthe criminal prohibition may have been relevant to the Attorney General\xe2\x80\x99s late\nnineteenth century determination o f whether the Postmaster General possessed\nstatutory authority to enter into a contract to sell postal cards at a rate lower\nthan that which had been authorized by Congress, it has no relevance to the\npresent determination o f how the Service may implement a change in postal fees\nthat Congress has authorized.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n24\n\n\x0c'