b'Use of Polygraph Examinations in Investigating Disclosure of\nInformation About Pending Criminal Investigations\nT h e A tto rn e y G e n e ra l m ay o rd e r Ju stic e D e p a rtm e n t em p lo y ees to subm it to p o ly g ra p h\ntests to an sw er q u estio n s relatin g to p en d in g crim inal investigations, an d m ay d isc h a rg e\nan em p lo y ee fo r refusing to take such a test.\nE v en w h e re an em p lo y ee is en titled to\nc o o p e ra te w ith an official inv estig atio n\nad eq u ate cau se, as lo n g as th e em p lo y ee\nn eed fo r th e test an d th e use to w h ic h its\n\nbe d isc h a rg e d o n ly \xe2\x80\x9c fo r cau se," failure to\nby taking a p o ly g ra p h test m ay c o n stitu te\nis g iven reasonable assu ran ces resp ec tin g th e\nresults m ay be put.\n\nFebruary 22, 1980\nM EM O R A N D U M O P IN IO N F O R T H E A T T O R N E Y G E N E R A L\nYou have asked us to consider the following questions regarding the\nuse o f polygraphs in investigating unauthorized disclosures of inform a\xc2\xad\ntion about pending criminal investigations: (1) may a Justice D epart\xc2\xad\nment employee be dismissed for refusing to submit to a polygraph\ntest; and (2) may the results o f a polygraph test be used against the\nemployee |n (a) administrative proceedings and (b) criminal proceed\xc2\xad\nings? We conclude that the A ttorney G eneral may order D epartm ent\nemployees to submit to polygraph tests to answ er specific questions\nrelating to pending criminal investigations and that employees w ho\nrefuse to take polygraph tests may be discharged. If any em ployee is\nthreatened w ith dismissal for refusing to take a polygraph test, then any\nevidence obtained through the test may not be used against the em\xc2\xad\nployee in a subsequent criminal proceeding. Em ployees should be\nw arned prior to taking the test that their refusal to participate may lead\nto their dismissal, but that nothing they say can or will be used against\nthem in a criminal proceeding. It is doubtful that evidence obtained by\nway o f polygraph would, in any event, be admissible in a federal\ncriminal proceeding, unless the employee stipulates to its admissibility.\n\nI. Polygraphs and Federal Employment\nT he use o f polygraphs for federal em ploym ent purposes has been the\nsubject o f controversy for a num ber o f years. T he discussion focuses on\ntw o conflicting trends: the grow ing scientific acceptance o f the reliabil\xc2\xad\nity o f polygraphy and the increasing concern that polygraph examina\xc2\xad\n\n421\n\n\x0ctions violate privacy rights and the F ourth, Fifth, and Fourteenth\nAmendments.\nIn 1965, the House Com m ittee on G overnm ent O perations held hear\xc2\xad\nings and issued a report on the use o f polygraphs by the federal\ngovernm ent. H. Rep. No. 198, 89th Cong., 1st Sess. (1965). T he Com \xc2\xad\nmittee R eport noted that 19 federal agencies used polygraphs; the most\nfrequently reported purpose o f the use involved security matters. A\ntotal o f just under 20,000 tests w ere administered in 1963. Eight agen\xc2\xad\ncies used polygraphs to investigate employee misconduct. (The D epart\xc2\xad\nment o f Justice indicated its use was limited to security and criminal\nmatters.) T he Com mittee strongly criticized the use o f polygraphs; it\nconcluded that the accuracy o f such tests was unproven and that\noperators w ere generally unqualified and undertrained. Id. at 1-2.\nIn 1968, the Civil Service Commission prom ulgated regulations\nwhich prohibit use o f polygraphs in em ploym ent screening and person\xc2\xad\nnel investigations for members o f the com petitive service, except for\nnational security purposes. This regulation, w hich does not apply to the\nexcepted service, is currently in force. Federal Personnel Manual chap\xc2\xad\nter 736, Appendix D .1\nSenator E rvin introduced a num ber o f bills which would have\nprohibited the use o f polygraphs in the hiring or firing o f federal\nemployees and employees o f industries affecting interstate commerce. S.\n2156, 91st Cong., 2d Sess. (1971); S. 2836, 93d Cong., 1st Sess. (1973),\nreprinted in 119 Cong. Rec. 42681 (1973). See also H.R. 2596, 94th\nCong., 1st Sess. (1975). None o f these measures was enacted.\nA dditional congressional hearings w ere held in 1974 before the\nHouse G overnm ent O perations C om m ittee.2 A D eputy Assistant A tto r\xc2\xad\nney G eneral for the Criminal Division testified that polygraphs had\nproven useful in a small num ber o f investigations involving a \xe2\x80\x9cclosed\xe2\x80\x9d\ngroup o f persons\xe2\x80\x94 e.g., persons with access to stolen or embezzled\nproperty. H ow ever, he noted that even in these circumstances, the\nCriminal Division viewed the results \xe2\x80\x9cw ith caution and opposes their\nintroduction into evidence . . . .\xe2\x80\x9d Hearings at 414. A representative of\nthe Federal Bureau o f Investigation (FB I) testified that \xe2\x80\x9cthe F B I\xe2\x80\x99s\nofficial position has always been that [it does] not consider polygraph\nexaminations sufficiently precise to perm it absolute judgm ent o f guilt or\nnon-guilt\xe2\x80\x94lie o r truth\xe2\x80\x94w ithout qualifications.\xe2\x80\x9d Id. at 418. He added,\nhow ever, that\nw ith proper ethics by the polygraph examiner and tight\nadm inistrative control by the user agency, there is no\nquestion but that the polygraph can be a valuable investi\xc2\xad\n\xe2\x80\x98 T h e regulations require that agencies using polygraphs advise the individual o f his o r her privilege\nagainst self-incrim ination and right to counsel. T h e individual must voluntarily consent to the exam ina\xc2\xad\ntion and a refusal to consent may not be included in his o r h er personnel file.\na The Use o f Polygraphs and Sim ilar Devices by Federal Agencies, Hearings Before the House Committee\non Government Operations, 93d C ong., 2d Sess. (1974) (" Hearings").\n\n422\n\n\x0cgative aid to supplement interrogation in selected criminal\nand national security cases. Interrogation is a basic tool of\nany investigative agency and the FBI considers the poly\xc2\xad\ngraph technique a thorough and specialized interview pro\xc2\xad\ncedure in which a skillful interrogator is attem pting to\nsimply ascertain the truthful facts from a consenting indi\xc2\xad\nvidual regarding a m atter in which we have jurisdiction.\nIn some instances suspects will admit deception and\nfurnish confessions an d /o r signed statements. In most in\xc2\xad\nstances valuable new information or investigative direc\xc2\xad\ntion is developed as a result o f the examination and followup interrogation.\nId. at 419. T he use o f polygraphs was strongly criticized by the A m eri\xc2\xad\ncan Civil Liberties Union on constitutional and scientific grounds. Id.\nat 2-84.\nA study prepared in 1974 by the staff o f the Subcommittee on\nConstitutional Rights o f the Senate Judiciary Com mittee reached a\nconclusion similar to the House Com mittee in 1965. It stated that\n\n[cjompulsory submission to a polygraph test is an affront\nto the integrity o f the human personality that is uncon\xc2\xad\nscionable in a society which values the retention o f indi\xc2\xad\nviduals\xe2\x80\x99 privacy. . . . T he Congress should take legisla\xc2\xad\ntive steps to prevent Federal agencies as well as the\nprivate sector from requiring, requesting, or persuading\nany employee o r applicant for em ploym ent to take any\npolygraph tests.\nStaff o f the Subcomm. on Constitutional Rights o f the Senate Comm,\non the Judiciary, 93d Cong., 2d Sess., Privacy, Polygraphs, and Em ploy\xc2\xad\nment, 17-18 (Comm. Print 1974). T he study also concluded, after re\xc2\xad\nviewing the literature on polygraphs, that \xe2\x80\x9cdoubt must be cast upon the\nobjectivity, accuracy, and reliability o f the polygraph test.\xe2\x80\x9d Id. at 9.\nBased on the above, it is clear that use o f polygraphs for federal\nemployment purposes remains controversial.3 While civil service regu\xc2\xad\nlations prohibit their use for the com petitive service, Congress has been\nmade aw are that no prohibition exists regarding the excepted service.\nSeveral bills that would have prohibited such use have not been\nenacted.\n\nII. Attorney General\xe2\x80\x99s Authority to Terminate Employment\nAnalysis o f the authority o f the A ttorney G eneral to dismiss an\nemployee for refusing to submit to a polygraph examination must begin\ns States have taken an active role in limiting use o f polygraphs in the em ploym ent context. Eighteen\nstates have licensing procedures for polygraph examiners; IS states prohibit use o f polygraphs. See\nC om m ent, Privacy: The Polygraph in Employment. 30 A rk. L. Rev. 35, 37-38 (1976).\n\n423\n\n\x0cw ith an understanding o f the statutory and regulatory protections af\xc2\xad\nforded different classes o f D epartm ent employees.\nU nder the civil service laws, D epartm ent attorneys and employees of\nthe FBI are in the excepted service. 28 U.S.C. \xc2\xa7 536 (FBI); 5 C.F.R.\n\xc2\xa7 213.3102(d) (governm ent attorneys). T he Office o f Personnel Manage\xc2\xad\nment (OPM ), by regulation, has exempted personnel in the excepted\nservice from the statutory provisions regarding removal o f civil serv\xc2\xad\nants. See 5 C.F.R . \xc2\xa7 752.401(c). H ow ever, persons in the excepted\nservice w ho are non-probationary \xe2\x80\x9cpreference eligibles,\xe2\x80\x9d\xe2\x80\x94primarily\nveterans and the spouses and m others o f disabled and deceased veter\xc2\xad\nans\xe2\x80\x94are afforded the civil service law protections. 5 U.S.C.\n\xc2\xa7 7511(a)(1)(B). See id. \xc2\xa7 2108 (defining \xe2\x80\x9cpreference eligible\xe2\x80\x9d). T he civil\nservice law protections are substantive and procedural. A preferenceeligible em ployee may be rem oved \xe2\x80\x9conly for such cause as will pro\xc2\xad\nmote the efficiency o f the service.\xe2\x80\x9d Prior to removal, an employee is\nentitled to 30 days\xe2\x80\x99 advance w ritten notice o f the reasons for the action,\na reasonable time to respond to the charges, the assistance of an attor\xc2\xad\nney, a w ritten decision, and an appeal to the Merit System Protection\nBoard (MSPB). 5 U.S.C. \xc2\xa7 7513; D O J O rder 1752.1.\nD epartm ent employees w ho are in the excepted service and are not\npreference-eligibles have no rights arising from a statute or OPM regu\xc2\xad\nlation to a statem ent o f reasons for discharge or to an appeal from an\nadverse action. See Paige v. Harris, 584 F.2d 178, 181 (7th Cir. 1978).\nH ow ever, the D epartm ent is bound by its ow n substantive standards\nand procedures even though the em ployee may have no legitimate\nexpectation o f continued em ploym ent and could, under relevant stat\xc2\xad\nutes, be summarily discharged by the A ttorney G eneral at any time. See\nVitarelli v. Seaton, 359 U.S. 535, 539-40 (1959); Paige v. Harris, 584\nF.2d at 184; M azaleski v. Treusdell, 562 F.2d 701, 717 n.38 (D.C. Cir.\n1977). D epartm ent O rder 1752.1 (1975), as supplem ented by a M arch\n27, 1979 notice, establishes minimal procedures for D epartm ent attor\xc2\xad\nneys w ho are not preference-eligibles. C hapter 6 o f the order entitles\nthem only to \xe2\x80\x9ca letter o f term ination prior to the effective date o f the\nterm ination . . . [which provides] a brief statem ent o f the reasons for\nthe term ination.\xe2\x80\x9d 4\nSubstantively, D epartm ent attorneys are provided no protections by\nD epartm ent regulations. And since they are not covered by the \xe2\x80\x9cfor\ncause\xe2\x80\x9d standard o f the civil service laws, attorneys apparently serve at\nthe pleasure o f the A ttorney General. T he A ttorney G eneral\xe2\x80\x99s authority\nto rem ove Assistant United States A ttorneys (A U SA ) is expressly rec\xc2\xad\nognized by statute. See 28 U.S.C. \xc2\xa7 542(b).\nT his conclusion must be qualified because o f recent cases that have\nheld that agency handbooks and informal understandings may establish\n4 FB I em ployees are excluded alto g eth er from D O J O rd e r 1752.1.\n\n424\n\n\x0csubstantive protections for federal employees. In Ashton v. Cm letti, 613\nF.2d 923 (D.C. Cir. 1979), the D.C. Circuit held that \xe2\x80\x9c the FBI has\nfostered rules and understandings which [entitle an FBI employee] to\nbelieve that he would lose his jo b only for a job-related reason.\xe2\x80\x9d 613\nF.2d at 928.5 T he court recognized that FBI employees are in the\nexcepted service and that \xe2\x80\x9c [standing alone, the exception could suggest\nto an employee that he held his jo b at the sufferance o f his em ployer.\xe2\x80\x9d\nIt went on to find, how ever, that the FBI Handbook, Manual o f\nInstructions, and the plaintiffs letter o f appointm ent created an implied\npromise that the employee would be dismissed \xe2\x80\x9conly for failing to\nperform his duties satisfactorily and w ithout prejudice to the F B I\xe2\x80\x99s\nachievem ent o f its law-enforcem ent mission.\xe2\x80\x9d 613 F.2d at 930. In es\xc2\xad\nsence, the court held that FB I employees, even though placed in the\nexcepted service by statute, may be discharged only upon a finding o f\ncause similar to that required for dismissal o f members o f the com peti\xc2\xad\ntive service.6 Once it is determ ined that an employee has a legitim ate\nclaim to continued em ploym ent\xe2\x80\x94Le\xe2\x80\x9e that he o r she may be not be fired\nat any time\xe2\x80\x94then procedural due process applies: the em ployee must\nbe afforded a hearing and other procedural safeguards.\nWe are unaw are o f any handbooks or guidelines upon w hich D ep art\xc2\xad\nment attorneys could rely to establish a legitimate claim to continued\nemployment. W e cannot, how ever, rule out the possibility that an\nattorney could point to a letter o f appointm ent or to informal under\xc2\xad\nstandings which a court w ould deem sufficient to establish a property\ninterest.7\nIn sum, the A ttorney G eneral probably has the authority to dismiss a\nnon-veteran D epartm ent attorney for any reason, and the attorney is\nentitled only to a statem ent o f reasons for the discharge. N on-veteran\nFBI agents probably may be discharged only for job-related reasons,\neven though they are in the excepted service; they are entitled to a due\nprocess hearing. D epartm ent employees w ho are veterans may be dis\xc2\xad\ncharged only for cause and are entitled to statutory, OPM and D O J\nprocedural rights.\n\n5 T he case concerned the F B I\'s discharge o f an em ployee because o f his adm itted hom osexuality.\nT h e court held that (he em ployee w as entitled to a due process hearing prior to term ination to\ndeterm ine w h eth er his hom osexuality constituted a jo b -related basis fo r his dismissal.\n6 See also Paige v. Harris, 584 F.2d 178 (7th Cir. 1978) (H U D H andbook provides rules and\nunderstandings creating legitim ate claim to continued em ploym ent for em ployees in the excepted\nservice); Colm v. Vance, 567 F.2d 1125 (D .C . Cir. 1977) (rem anding for consideration o f w h eth er the\nForeign Service A ct requires prom otion to be based solely on perform ance and m erit, even though\nplaintiff could dem onstrate no constitutional p ro p erty entitlem ent to prom otion).\n7 F o r example, it is conceivable that a c o u rt could find that w hen an A U SA agrees to a 3-year\ncom m itm ent w ith a U.S. A tto rn ey \'s Office, that that agreem ent constitutes a prom ise by the D e p art\xc2\xad\nment not to discharge the a tto rn ey d u rin g that period w ithout good cause. A c o u rt m ight also hold\nthat the D epartm ent\'s regulation requiring a statem ent o f reasons for term ination im plicitly requires\nthe. D epartm ent to have a \xe2\x80\x9cg o o d \xe2\x80\x9d reason.\n\n425\n\n\x0cIII. What Constitutes \xe2\x80\x9cCause\xe2\x80\x9d\nAs noted above, the civil service laws authorize removal o f covered\ncivil servants \xe2\x80\x9conly for such cause as will prom ote the efficiency o f the\nservice.\xe2\x80\x9d 5 U.S.C. \xc2\xa77513. T he D.C. Circuit has similarly held that an\nFB I em ployee may be dismissed \xe2\x80\x9conly for failing to perform his duties\nsatisfactorily and w ithout prejudice to the F B I\xe2\x80\x99s achievem ent o f its lawenforcem ent mission.\xe2\x80\x9d Ashton v. Civiletti, supra.6 T he question is\nw hether failure to obey an order to submit to a polygraph examination\nis sufficient cause for discharge under these standards. T he following\ndiscussion assumes that at the time the em ployee is ordered to take the\ntest, the employee is assured both that he or she may be discharged for\nrefusing to take the test and that no inform ation obtained in the course\nof, or as a result of, the examination may be used against him or her in\na subsequent criminal proceeding.9\nA t the minimum, failure to obey a legitimate order of a superior\nconstitutes insubordination\xe2\x80\x94an offense punishable by removal. See FBI\nManual o f Instructions, Part I, \xc2\xa7 1-20-2 (refusal to cooperate during an\ninterview regarding w ork-related m atters permits discipline for insubor\xc2\xad\ndination); \xc2\xa7 13, Schedule o f Offenses and Penalties for FB I Employees\n(insubordination punishable by censure to removal). A refusal to submit\nto a polygraph test also arguably impedes investigation o f governm ent\nmisconduct. It thus directly effects the efficiency o f the D epartm ent by\nhindering removal o f offending employees and restoration o f public\nconfidence in the D epartm ent. T he Schedule o f Disciplinary Offenses\nand Penalties for D O J Employees, included in D O J O rder 1752.1,\nidentifies the offense o f \xe2\x80\x9crefusal to cooperate in an official governm ent\n8 It is quite clear that the underlying co n d u ct\xe2\x80\x94disclosure o f facts o f a pending criminal investiga\xc2\xad\ntion\xe2\x80\x94perm its rem oval o f the offending employees. T h e co nduct may violate various crim inal statutes\nand plainly violates a num ber o f O PM and D O J standards o f conduct. See, e.g.. 5 C .F .R .\n\xc2\xa7\xc2\xa7 735.201a(c) (im peding governm ent efficiency); (e) (m aking a governm ent decision outside official\nchannels); (0 (affecting adversely the confidence o f the public in the integrity o f the governm ent);\n73S.206 (misuse o f inform ation not made available to the general public); 735.209 (conduct prejudicial\nto the governm ent); 28 C .F .R . \xc2\xa7\xc2\xa7 45.735-2(c)(3) (im peding governm ent efficiency); (c)(6) (affecting\nadversely the confidence o f the public in the integrity o f the governm ent); 45.735-10 (im proper use o f\nofficial inform ation); 45.735-18 (1980) (conduct prejudicial to the governm ent).\nIt is possible that an em ployee charged w ith unauthorized disclosure may assert a First A m endm ent\ndefense: that the governm ent may not constitutionally prohibit him o r her from com m enting on\nm atters o f public im portance. W hile the em ployee may have an interest in com m enting upon m atters\no f public interest, this interest must be balanced against the g overnm ent\'s interest in prom oting the\nefficiency o f the public services it perform s th ro u g h its em ployees. See Pickering v. Board o f Education,\n391 U.S. 563 (1968). T h e D .C . C ircuit has identified the relevant factors in the \xe2\x80\x9cbalancing test" as: the\nsensitivity and confidential nature o f the em ployee\xe2\x80\x99s position and the governm ent\'s consequently\nlegitim ate need for secrecy; the subject m atter o f the speech; the truth o r falsity o f the speech; the\ninterference w ith jo b perform ance; the context o f the speech; the effect o f the speech on agency\nm orale and w orking relationships w ith im m ediate superiors. Hanson v. Hoffman. 628 F.2d 42, 50 (D .C .\nCir. 1980). It w ould appear that the g o vernm ent\xe2\x80\x99s interest in preventing disclosure is at its maximum in\nregard to inform ation relating to pending crim inal investigations.\n9 W ithout these assurances, an em ployee could not constitutionally be fired for refusing to take the\npolygraph test. See Kalkines v. United States, 473 F.2d 1391 (Ct. Cl. 1973); see also Sanitation Men v.\nSanitation Commissioner. 392 U.S. 280(1968).\n\n426\n\n\x0cinquiry\xe2\x80\x9d and lists the suggested discipline as \xe2\x80\x9cofficial reprimand to\nremoval.\xe2\x80\x9d\nT he obligation o f public officials to answer questions related to the\nperform ance o f their public duties is well-recognized. T he Supreme\nC ourt has upheld the right of public em ployers to fire employees solely\nfor their refusal to sign affidavits or answer questions related to their\nfitness to perform their public functions. See, e.g., Lefkowitz v. Turley,\n414 U.S. 70, 84 (1973); Sanitation Men v. Commissioner, 392 U.S. at 285;\nBeilan v. Board o f Education, 357 U.S. 399 (1958). These holdings are\nbased on the recognized public interest in the accountability of public\nservants. This interest appears at its zenith when the integrity o f lawenforcement activities is at stake. As stated by Justice Harlan,\n[I]t is surely plain that [a State] may . . . require its\nemployees to assist in the prevention and detection o f\nunlawful activities by officers o f the state government.\nT he urgency o f these requirem ents is the m ore obvious\n. . . w here the conduct in question is that o f officials\ndirectly entrusted with the adm inistration o f justice. The\nim portance for our systems o f justice o f the integrity of\nlocal police forces can scarcely be exaggerated.\nGarrity v. N ew Jersey, 385 U.S. 493, 507-08 (1967) (Harlan, J.,\ndissenting).10\nThus, if the use o f polygraphs is deemed a necessary part of an\ninvestigation o f leaks, then a refusal to submit to such a test could\nimpede the investigation and consequently hinder the efficiency o f the\nD epartm ent. D epartm ent standards o f conduct recognize the affirma\xc2\xad\ntive duty o f employees to cooperate w ith official investigations, and\nrefusals to cooperate are deemed serious enough offenses to w arrant\nremoval in appropriate cases. W e can see no meaningful difference\nbetween compelling an employee to answer questions or sign an affida\xc2\xad\nvit and compelling an employee to submit to a polygraph test.11 While\nthe results o f the test may be open to question and debate, the refusal to\ntake the test may properly be characterized as conduct which does not\nprom ote the efficiency o f the Departm ent. Accordingly, we believe\nthat an employee could be dismissed for refusing to take a polygraph\nexam ination.12\n10 A lthough the C o u rt held in Garrity that the incrim inating statem ents o f a public official obtained\nunder threat o f dismissal could not be used in a criminal proceeding, the m ajority did not disagree\nw ith Justice H arlan\'s statem ent regarding the public interest that public officers provide information\nabout the conduct o f their activities. See also Gardner v. Broderick, 392 U.S. 273, 278 (1968).\n11 We reach this conclusion even though w e recognize that the use o f a polygraph is a g reater\nintrusion into an individual\'s privacy to the extent it probes unrelated m atter, private thoughts, and\nbeliefs.\n12 O ne district court has upheld the authority o f a city transit au th o rity to fire em ployees suspected\no f intoxication w ho refuse to submit to urinalysis o r blood tests. T he c ourt relied upon the Garrity line\no f cases for the proposition that public em ployees may be discharged for refusal to properly account\nfor the perform ance o f their duties. Division 241, Am algam ated Transit Union v. Suscy. 4fi5 F. Supp.\n750 (N .D . III. 1975), a ffd , per curiam, 538 F.2d 1264 (7th Cir.), cert, denied. 429 U.S. 1029 (1976).\n\n427\n\n\x0cAn arguable objection to this conclusion may be phrased as follows.\nPolygraph tests have not achieved recognized acceptance among the\ncourts and the experts as accurate indicators o f truth-telling. F or exam\xc2\xad\nple, the test may show deception w here a truthful subject is nervous,\ntense, over-tired, or angry, or when an examiner asks misleading or\ninadequate questions. See United States v. Alexander, 526 F.2d 161, 165\n(8th Cir. 1975). Thus, w here an em ployee believes that the results of\nthe polygraph will not be accurate, refusal to take the examination\nshould not be grounds for removal.\nWe believe that if the investigator can establish a reasonable basis for\nthe use o f the polygraph in the course o f the investigation, then a\nrefusal by an em ployee to take the test would be impermissible, not\xc2\xad\nwithstanding the subjective fear o f the employee. A reasonable basis\nwould be established by showing the need for use o f the technology\nand the state o f the art. W e believe that adequate scientific evidence\nexists w hich w ould support an investigator\xe2\x80\x99s decision that polygraphy\ncould be helpful in the pursuit o f the investigation. See, e.g., United\nStates v. D e Betham, 470 F.2d 1367 (9th Cir. 1972) (per curiam ), cert,\ndenied, 412 U.S. 907 (1973) (although holding that district court did not\nabuse discretion in excluding polygraph evidence, court noted that\nevidence \xe2\x80\x9cvigorously su p p o rted ] the accuracy o f polygraphic evi\xc2\xad\ndence\xe2\x80\x9d); United States v. Oliver, 525 F.2d 731, 737 (8th Cir. 1975), cert,\ndenied, 424 U.S. 973 (1976) (upholding admission of polygraph evidence\nw here parties stipulated admissibility; court could not conclude that\npolygraph \xe2\x80\x9cis so unreliable as to be inadmissible in this particular\ncase\xe2\x80\x9d); Tarlow , Adm issibility o f Polygraph Evidence in 1975: An A id in\nDetermining Credibility In a Perjury-Plagued System, 26 Hastings L.J.\n917 (1975).13 We recognize, how ever, that reliability of polygraphy\nremains hotly contested, and courts o f appeal have perm itted introduc\xc2\xad\ntion o f polygraph evidence only when the parties have stipulated to its\nadmissibility. See United States v. Alexander, supra (summarizing cases\nand denying trend o f adm itting polygraph evidence); Hearings, supra . 14\nT he reasonableness o f the use o f a polygraph would be supported by\na record establishing the reason for its use, the expected accuracy of\nthe technology, the qualifications o f the examiner, and the reliance\nupon other evidence to establish and corroborate the results o f the\ninvestigation.15 Once the reasonable basis for the use o f polygraphy is\nestablished, we do not believe than an employee can, with impunity,\n13 O ne factor frequently ciled by courts for excluding polygraph evidence is the probability that the\nju ry will acco rd it undue w eight. O f course, this concfern is nbt present w hen adm inistrative proceed\xc2\xad\nings are contem plated.\n14 T h e D .C . C ircuit continues to adhere to its per se rule against admissibility as established by the\nleading case o f Frye v. United States, 293 F. 1013 (D .C . Cir. 1923). See United States v. Skeens, 494\nF.2d 1050 (D .C . Cir. 1974).\n15 Presum ably, the quality o f the exam ination and the qualifications of the exam iner w ould be quite\nhigh if the exam ination is co n d u cted by FB I polygraph experts.\n\n428\n\n\x0crefuse to take the examination any more than he or she could refuse to\nsubmit to fingerprinting or blood-typing.\n\nIV. Use of the Results of a Polygraph Test\nAs long as the employee is promised that any evidence obtained in\nthe course of the polygraph test will not be used in a subsequent\ncriminal proceeding, the Fifth Am endm ent does not bar its use in an\nadministrative proceeding.16 O f course, such a promise, and the Fifth\nAmendment, prohibit use in any criminal proceeding. Garrity v. New\nJersey, supra.\n\nV. Conclusion\nWe conclude that the A ttorney General may discharge an employee\nfor refusing to take a polygraph examination w here the examination is\nnecessary to an official investigation of unauthorized disclosures about\npending criminal investigations, provided that the employee has been\nw arned that failure to submit to the test could lead to his or her\ndismissal and that nothing obtained in the examination will be used\nagainst the employee in a subsequent criminal proceeding. Even if a\ncourt were to hold that D epartm ent attorneys may only be discharged\n\xe2\x80\x9c for cause,\xe2\x80\x9d we conclude that, generally, failure to cooperate with an\nofficial investigation is adequate cause, although each situation must be\nevaluated on a careful case-by-case basis.\nL arry A. H am m ond\n\nActing Assistant Attorney General\nOffice o f L egal Counsel\n\n16\nBecause o f the controversy surrounding the use o f polygraphs, it is possible than an em ployee\ndischarged solely on the basis o f polygraphic evidence w ould challenge the dismissal as arbitary and\nirrational agency action. W e do not believe that, absent a judicially recognizable property or liberty\ninterest, an em ployee may challenge agency action as a violation o f due process unless the agency has\nnot followed its ow n regulations. See Paige v. Harris, 584 F.2d at 184; c f Bishop v. Wood, 426 U.S. 341\n(1976). A t least one court, how ever, has held that a governm ent decision is subject to challenge as\narbitrary and capricious even w here the em ployee has no pro p erty right in continued em ploym ent.\nHeaphy v. U.S. Treasury Dept., 354 F. Supp. 396 (S.D .N .Y . 1973) (T yler, J.), a f f d on opinion below. 489\nF.2d 735 (2d Cir. 1974). If a court w ere to permit a challenge to a dismissal based solely on the results\no f a polygraph exam ination, the non-arbitrariness o f the action w ould depend upon such factors as the\nquality o f the exam ination, the skill and training o f the exam iner, and the inherent credibility o f the\nem ployee\xe2\x80\x99s statements.\n\n429\n\n\x0c'


b'Firearms Disabilities of Nonimmigrant Aliens\nUnder the Gun Control Act\nThe prohibition in 18 U.S.C. \xc2\xa7 922(g)(5)(B) of shipping, transporting, possessing, or\nreceiving any firearm or ammunition that has a connection to interstate commerce applies only to nonimmigrant aliens who must have visas to be admitted to the United\nStates, not to all aliens with nonimmigrant status. The text of the statute forecloses the\ninterpretation advanced by the Bureau of Alcohol, Tobacco, Firearms and Explosives\nin an interim final rule applying section 922(g)(5)(B) to all nonimmigrant aliens.\nOctober 28, 2011\n\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL\nBUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES\nA provision of the federal Gun Control Act prohibits any \xe2\x80\x9calien\xe2\x80\x9d who\nhas \xe2\x80\x9cbeen admitted to the United States under a nonimmigrant visa\xe2\x80\x9d\nfrom shipping, transporting, possessing, or receiving \xe2\x80\x9cany firearm or\nammunition\xe2\x80\x9d that has a connection to interstate commerce. 18 U.S.C.\n\xc2\xa7 922(g)(5)(B) (2006). In 2002, the Bureau of Alcohol, Tobacco, Firearms and Explosives (\xe2\x80\x9cATF\xe2\x80\x9d) issued an interim final rule interpreting\nthis prohibition to apply to any alien who has the status of \xe2\x80\x9cnonimmigrant alien,\xe2\x80\x9d regardless of whether the alien required a visa in order to\nbe admitted to the United States. See 27 C.F.R. \xc2\xa7 478.32(a)(5)(ii) (2011).\nIn March 2011, in response to a request for informal advice regarding\nATF\xe2\x80\x99s interpretation, we concluded that the text of the statute forecloses\nthat interpretation. We explained that the text is clear: the provision\napplies only to nonimmigrant aliens who must have visas to be admitted,\nnot to all aliens with nonimmigrant status. In May 2011, you requested a\nformal opinion from the Office on this matter.1 This memorandum memorializes and elaborates upon the informal advice we provided in March. In\nthe course of formalizing our advice, we received views from the Department of Homeland Security (\xe2\x80\x9cDHS\xe2\x80\x9d), 2 which also concluded that the\nSee Memorandum for the Office of Legal Counsel from Stephen R. Rubenstein, Chief\nCounsel, Bureau of Alcohol, Tobacco, Firearms and Explosives (May 11, 2011) (\xe2\x80\x9cATF\nMemorandum\xe2\x80\x9d).\n2 See Letter for Cristina M. Rodr\xc3\xadguez, Deputy Assistant Attorney General, Office of\nLegal Counsel, from Seth Grossman, Chief of Staff, Office of the General Counsel,\nDepartment of Homeland Security (July 20, 2011) (\xe2\x80\x9cDHS Letter\xe2\x80\x9d). We also received\n1\n\n171\n\n\x0c35 Op. O.L.C. 171 (2011)\n\ninterpretation reflected in ATF\xe2\x80\x99s interim final rule conflicts with the plain\ntext of the statute.\nI.\nCongress enacted the Gun Control Act of 1968, Pub. L. No. 90-618, 82\nStat. 1213 (codified at 18 U.S.C. \xc2\xa7\xc2\xa7 921\xe2\x80\x93931), to \xe2\x80\x9cestablish[] a detailed\nfederal scheme\xe2\x80\x9d to govern \xe2\x80\x9cthe distribution of firearms,\xe2\x80\x9d Printz v. United\nStates, 521 U.S. 898, 902 (1997). Congress also prescribed criminal and\ncivil penalties for knowing violations of the statute\xe2\x80\x99s provisions. See 18\nU.S.C. \xc2\xa7 924(a)(2) (2006) (\xe2\x80\x9cWhoever knowingly violates subsection . . .\n(d) [or] (g) . . . of section 922 shall be fined as provided in this title,\nimprisoned not more than 10 years, or both.\xe2\x80\x9d). The concerns animating\nthe legislation included the need to address \xe2\x80\x9cthe widespread traffic in\nfirearms\xe2\x80\x9d and the \xe2\x80\x9cgeneral availability\xe2\x80\x9d of firearms to persons \xe2\x80\x9cwhose\npossession thereof was contrary to the public interest.\xe2\x80\x9d United States v.\nOne Assortment of 89 Firearms, 465 U.S. 354, 364 (1984) (internal quotation marks omitted); see also Barrett v. United States, 423 U.S. 212, 220\n(1976) (\xe2\x80\x9cThe history of the 1968 Act reflects a . . . concern with keeping\nfirearms out of the hands of categories of potentially irresponsible persons, including convicted felons.\xe2\x80\x9d).\nAs part of the Act\xe2\x80\x99s scheme, Congress laid out various so-called \xe2\x80\x9cprohibitors\xe2\x80\x9d to identify the categories of people barred from possessing,\nshipping, transporting, or receiving firearms. See 18 U.S.C. \xc2\xa7 922(h)\n(Supp. IV 1968). These prohibitors are now codified in 18 U.S.C.\n\xc2\xa7 922(g) (2006). In 1998, Congress added the prohibitor here at issue to\nthe statute: section 922(g)(5)(B) bars \xe2\x80\x9caliens\xe2\x80\x9d 3 who have \xe2\x80\x9cbeen admitted\nviews from the Federal Bureau of Investigations (\xe2\x80\x9cFBI\xe2\x80\x9d). See E-mail for Cristina M.\nRodr\xc3\xadguez, Deputy Assistant Attorney General, Office of Legal Counsel, from Scarlett\nEverly, National Instant Criminal Background Check System Bureau of Investigation,\nFederal Bureau of Investigation (June 13, 2011) (noting that when a Federal Firearms\nLicensee provides the FBI with information that a prospective purchaser has indicated he\nor she is a non-U.S. citizen, the FBI searches DHS records to determine if the potential\npurchaser is an unlawful or nonimmigrant alien and processes firearm background checks\nin line with ATF\xe2\x80\x99s interpretation of 18 U.S.C. \xc2\xa7 922(g)(5)(B)).\n3 The original Gun Control Act did not contain a prohibitor applicable to aliens. Congress first adopted that prohibition in title VII of the Omnibus Crime Control and Safe\nStreets Act of 1968, 18 U.S.C. app. \xc2\xa7 1202(a) (Supp. IV 1968), barring possession by\n\n172\n\n\x0cFirearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act\n\nto the United States under a nonimmigrant visa\xe2\x80\x9d from possessing, shipping, transporting, or receiving firearms. Omnibus Consolidated and\nEmergency Supplemental Appropriations Act of 1999, Pub. L. No. 105277, 112 Stat. 2681 (codified at 18 U.S.C. \xc2\xa7 922(g)(5)(B)). 4\nIn 2002, ATF adopted an interim final rule implementing section\n922(g)(5)(B). See Implementation of Public Law 105-277, Omnibus\nConsolidated and Emergency Supplemental Appropriations Act, 1999,\nRelating to Firearms Disabilities for Nonimmigrant Aliens, and Requirement for Import Permit for Nonimmigrant Aliens Bringing Firearms and\nAmmunition Into the United States (2001R-332P), 67 Fed. Reg. 5422\n(Feb. 5, 2002) (temporary rule, Treasury decision). 5 ATF interpreted the\nprohibitor to include all aliens with the status of nonimmigrant alien, not\njust those nonimmigrants who required a visa to be admitted to the United\nStates. In explaining this interpretation, ATF acknowledged that section\n922(g)(5)(B) applied by its terms to \xe2\x80\x9caliens admitted to the United States\nunder a nonimmigrant visa,\xe2\x80\x9d but also determined that such a visa \xe2\x80\x9csimply\nfacilitates travel and expedites inspection and admission to the United\nStates,\xe2\x80\x9d and \xe2\x80\x9cdoes not itself provide nonimmigrant status.\xe2\x80\x9d Id. at 5422.\nBased on this observation, as well as its view that drawing distinctions\namong different types of nonimmigrant aliens was neither rational nor\nsupported by the legislative history, ATF concluded that Congress intended the prohibitor to cover all persons with nonimmigrant alien status, see\nid., and issued its interim final rule. See 27 C.F.R. \xc2\xa7 478.32(a)(5)(ii); see\nid. \xc2\xa7 478.11 (defining \xe2\x80\x9cnonimmigrant alien\xe2\x80\x9d). ATF has since understood\n\xe2\x80\x9c\xe2\x80\x98alien[s]\xe2\x80\x99\xe2\x80\x9d who are \xe2\x80\x9c\xe2\x80\x98illegally or unlawfully in the United States,\xe2\x80\x99\xe2\x80\x9d United States v. Bass,\n404 U.S. 336, 337 n.1 (1971). In 1986, Congress repealed title VII and added a firearms\ndisability for aliens who are \xe2\x80\x9cillegally or unlawfully in the United States\xe2\x80\x9d to 18 U.S.C.\n\xc2\xa7 922. See Firearm Owners\xe2\x80\x99 Protection Act, Pub. L. No. 99-308, 100 Stat. 449, 457\n(1986).\n4 Section 922(y)(2) lists various exceptions to the prohibition in section 922(g)(5)(B),\nand section 922(y)(3) sets out a waiver procedure for aliens subject to the requirements of\nsection 922(g)(5).\n5 ATF issued the interim rule before Congress transferred ATF from the Department\nof the Treasury to the Department of Justice through the Homeland Security Act of\n2002, Pub. L. No. 107-296, 116 Stat. 2135. See 6 U.S.C. \xc2\xa7 531(c) (2006); 28 U.S.C.\n\xc2\xa7 599A(c)(1) (2006). Congress originally delegated rulemaking authority to implement\nthe Gun Control Act to the Secretary of the Treasury but, due to the transfer, such rulemaking authority now resides in the Attorney General. See 18 U.S.C. \xc2\xa7 926(a) (2006).\n\n173\n\n\x0c35 Op. O.L.C. 171 (2011)\n\nsection 922(g)(5)(B) to apply to all aliens with nonimmigrant status,\nincluding nonimmigrant aliens admitted to the United States without a\nvisa, pursuant either to the Visa Waiver Program, see 8 U.S.C. \xc2\xa7 1187\n(2006), or to regulations otherwise exempting them from visa requirements. 6\nII.\nYou have asked whether ATF\xe2\x80\x99s interim rule permissibly construes\nsection 922(g)(5)(B). Our analysis of the provision \xe2\x80\x9cbegin[s], as always, with the text of the statute.\xe2\x80\x9d Hawaii v. Office of Hawaiian Affairs, 556 U.S. 163, 173 (2009) (internal quotation marks omitted). In\nour view, the text of the statute is clear and forecloses ATF\xe2\x80\x99s interpretation. Section 922(g)(5)(B) makes it unlawful for aliens who have been\n\xe2\x80\x9cadmitted to the United States under a nonimmigrant visa (as that term\nis defined in section 101(a)(26) of the Immigration and Nationality Act\n(8 U.S.C. 1101(a)(26))\xe2\x80\x9d to ship, transport, possess, or receive any firearms or ammunition. 18 U.S.C. \xc2\xa7 922(g)(5)(B). Section 101(a)(26) of the\nImmigration and Nationality Act (\xe2\x80\x9cINA\xe2\x80\x9d), in turn, defines a \xe2\x80\x9cnonimmigrant visa\xe2\x80\x9d as \xe2\x80\x9ca visa properly issued to an alien as an eligible nonimmigrant by a competent officer as provided in this chapter.\xe2\x80\x9d 8 U.S.C.\n\xc2\xa7 1101(a)(26) (2006). The text of section 922(g)(5)(B), read in accord\nwith section 101(a)(26) of the INA, therefore makes it a crime for an alien\nwho has been \xe2\x80\x9cissued\xe2\x80\x9d a \xe2\x80\x9cvisa . . . as an eligible nonimmigrant by a competent officer\xe2\x80\x9d to ship, transport, possess, or receive any firearm or ammunition. 7\n6 By statute, the Attorney General and the Secretary of State are authorized to establish\na Visa Waiver Program under which a nonimmigrant alien may seek a waiver of the visa\nrequirement if, among other things, he or she seeks entry \xe2\x80\x9cfor a period not exceeding 90\ndays\xe2\x80\x9d; is \xe2\x80\x9ca national of, and presents a passport issued by, a country which . . . extends\n. . . for immigration admissions, reciprocal privileges to citizens and nationals of the\nUnited States\xe2\x80\x9d; and \xe2\x80\x9chas been determined not to represent a threat to the welfare, health,\nsafety, or security of the United States.\xe2\x80\x9d 8 U.S.C. \xc2\xa7 1187(a)(1), (2), (6) (2006). In addition, the visa requirement has been waived by regulation for certain categories of foreign\nnationals, including nationals from particular countries, such as Canada and Mexico,\nseeking admission to the United States for particular purposes. See 22 C.F.R. \xc2\xa7 41.2(a),\n(g) (2011).\n7 Section 922(d)(5) similarly makes it unlawful to sell or dispose of a firearm or ammunition to \xe2\x80\x9can alien\xe2\x80\x9d who \xe2\x80\x9chas been admitted to the United States under a nonimmigrant\n\n174\n\n\x0cFirearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act\n\nNothing in this statutory text indicates that the prohibition applies to\npersons simply by virtue of their status as nonimmigrants. The statute\ninstead requires that the covered nonimmigrant possess a visa. ATF\xe2\x80\x99s\ninterim rule thus reads a key limiting phrase\xe2\x80\x94\xe2\x80\x9cadmitted . . . under a\nnonimmigrant visa\xe2\x80\x9d\xe2\x80\x94out of the statute, in contravention of bedrock\nprinciples of statutory interpretation. See, e.g., Fid. Fed. Sav. & Loan\nAss\xe2\x80\x99n v. De La Cuesta, 458 U.S. 141, 163 (1982) (declining to construe a\nstatute \xe2\x80\x9cso as to render [certain] provisions nugatory, thereby offending\nthe well-settled rule that all parts of a statute, if possible, are to be given\neffect\xe2\x80\x9d) (internal quotation marks omitted); see also DHS Letter at 5\xe2\x80\x938\n(noting that ATF\xe2\x80\x99s interpretation finds support in neither ordinary linguistic practices nor case law).\nATF suggests that the text of section 922(g)(5)(B) is \xe2\x80\x9cinaccurate and\nambiguous\xe2\x80\x9d because nonimmigrant aliens are not actually \xe2\x80\x9c\xe2\x80\x98admitted\nunder\xe2\x80\x99\xe2\x80\x9d a visa. ATF Memorandum at 2. Instead, a visa merely \xe2\x80\x9cexpedites\nadmission to the United States by showing that the State Department\nfound the person to be admissible.\xe2\x80\x9d Id. According to ATF, it then \xe2\x80\x9cis up to\nthe immigration officer at the port of entry to determine if the individual\nis in fact admissible and, if so, under what terms and conditions and in\nwhat category.\xe2\x80\x9d Id.\nThough DHS indicates that ATF accurately describes the admissions\nprocess, see DHS Letter at 7, that description does not support ATF\xe2\x80\x99s\nreading of section 922(g)(5)(B). As a matter of ordinary usage, the process to which ATF refers could be described as admission \xe2\x80\x9cunder a\nnonimmigrant visa\xe2\x80\x9d because the nonimmigrant must present the visa when\nseeking admission. As DHS emphasizes, see DHS Letter at 7\xe2\x80\x938, courts\nhave employed language similar to that contained in the statutory provision when describing different categories of aliens, underscoring that\n\xe2\x80\x9cadmitted . . . under a nonimmigrant visa\xe2\x80\x9d can be used in a non-technical\nsense to refer to the particular subclass of nonimmigrant aliens admitted\nwith a visa. See, e.g., Phal v. Mukasey, 524 F.3d 85, 87 (1st Cir. 2008)\n(noting an alien \xe2\x80\x9centered the United States on a nonimmigrant visa\xe2\x80\x9d);\nvisa (as that term is defined in section 101(a)(26) of the Immigration and Nationality Act\n(8 U.S.C. 1101(a)(26)).\xe2\x80\x9d 18 U.S.C. \xc2\xa7 922(d)(5) (2006). Because ATF has requested our\nview on the meaning of section 922(g)(5)(B) only, our opinion is limited to that subsection, but our analysis would likely apply to section 922(d)(5), provided no relevant\ndifferences between that provision and section 922(g)(5)(B) exist.\n\n175\n\n\x0c35 Op. O.L.C. 171 (2011)\n\nChoe v. INS, 11 F.3d 925, 943 (9th Cir. 1993) (\xe2\x80\x9cBefore 1960, the Attorney General had three options when faced with an adjustment application\nfrom an alien who entered under a nonimmigrant visa[.]\xe2\x80\x9d). Moreover,\n\xe2\x80\x9c[i]mmigration law draws a distinction between aliens in possession of a\nnonimmigrant visa and those who have been admitted in a nonimmigrant\nclassification.\xe2\x80\x9d DHS Letter at 5. The statutory reference to nonimmigrants\n\xe2\x80\x9cadmitted . . . under a nonimmigrant visa\xe2\x80\x9d therefore has a clear meaning\nhere: it indicates that Congress intended the firearms disabilities in section\n922(g)(5)(B) to apply only to a subset of nonimmigrants\xe2\x80\x94namely those\nwho possess a \xe2\x80\x9cnonimmigrant visa\xe2\x80\x9d\xe2\x80\x94whatever that visa\xe2\x80\x99s function. 8\nATF also justifies its interpretation of the statutory text on the ground\nthat applying the prohibitor to only a particular subset of nonimmigrants\nwould produce \xe2\x80\x9cirrational\xe2\x80\x9d results, because \xe2\x80\x9c[t]here is no logical reason\nnonimmigrants with nonimmigrant visas should have a firearms disability,\nif nonimmigrants without visas do not have the disability.\xe2\x80\x9d ATF Memorandum at 4. Although an established canon of statutory construction\nmight permit departure from the literal meaning of statutory text where\nsuch a reading would produce \xe2\x80\x9cpositively absurd\xe2\x80\x9d results, United States v.\nX-Citement Video, Inc., 513 U.S. 64, 69 (1994), the literal meaning of\nsection 922(g)(5)(B) is far from absurd. Indeed, the Supreme Court recently has emphasized that \xe2\x80\x9cit is not this Court\xe2\x80\x99s task to decide whether\nthe statutory scheme established by Congress is unusual or even bizarre.\xe2\x80\x9d\nPLIVA, Inc. v. Mensing, 131 S. Ct. 2567, 2582 (2011) (internal quotation\nmarks omitted).\nAlthough the text of the statute does not include an express rationale\nfor the distinction drawn between nonimmigrants with visas and those\nwithout, it is not difficult to discern a rational basis for the distinction.\nDHS has told us, for example, that applying the prohibitor to nonimmigrant aliens in a limited fashion, \xe2\x80\x9cwhile not ideal . . . would not be irraDHS also observes that Congress would have been fully aware of the existence of\ncategories of nonimmigrants who did not require visas to be admitted to the United States\nwhen it enacted section 922(g)(5)(B). The Visa Waiver Program had been in effect for\ntwelve years at the time Congress debated section 922(g)(5)(B), and Canadian and\nMexican nationals in possession of border crossing cards had long been permitted to enter\nthe United States without a nonimmigrant visa. See DHS Letter at 7; see also Miles v.\nApex Marine Corp., 498 U.S. 19, 32 (1990) (\xe2\x80\x9cWe assume that Congress is aware of\nexisting law when it passes legislation.\xe2\x80\x9d).\n8\n\n176\n\n\x0cFirearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act\n\ntional,\xe2\x80\x9d as it is possible that Congress considered those aliens eligible for\nadmission to the United States without a nonimmigrant visa to be a \xe2\x80\x9clesser\nsecurity risk\xe2\x80\x9d than aliens admitted with visas. DHS Letter at 8\xe2\x80\x939. After\nall, Congress has tied the decision whether to waive visa requirements to\njudgments about a waiver\xe2\x80\x99s effects on public safety, and Congress here\ncould have concluded that nonimmigrant aliens who do not require visas\ndo not present the public safety risks that warrant prohibiting their acquisition of firearms. See id. at 8. 9\nOther factors may also explain why Congress decided to treat nonimmigrant aliens eligible for visa waivers differently from nonimmigrant\naliens admitted under visas. For example, nonimmigrants admitted under\nthe Visa Waiver Program may well spend less time in the country than\nother nonimmigrants, see 8 U.S.C. \xc2\xa7 1187(a)(1) (2006) (imposing 90-day\nlimit on aliens admitted under Visa Waiver Program), perhaps making\nthem less likely to purchase firearms. Congress also could have thought\nthat imposing criminal firearms prohibitions on nonimmigrant aliens\nadmitted under the program would frustrate the objectives of the program,\nwhich include reducing barriers to and burdens upon travel. See Department of State, Visa Waiver Program (VWP), http://travel.state.gov/visa/\ntemp/without/without_1990.html (last visited Oct. 21, 2011) (\xe2\x80\x9cThe program was established to eliminate unnecessary barriers to travel, stimulating the tourism industry, and permitting the Department of State to focus\nconsular resources in other areas.\xe2\x80\x9d).\nCongress (or some members thereof) ultimately could have had all,\nsome, or none of these considerations in mind. Whatever Congress\xe2\x80\x99s\nmotivation, these rationales demonstrate that it would have been rational\nfor Congress to draw a statutory line between nonimmigrants with visas\n9 DHS cites 8 U.S.C. \xc2\xa7 1187(c)(2)(C), which provides that a country will not be eligible for the Visa Waiver Program unless the Secretary of Homeland Security \xe2\x80\x9cevaluates\nthe effect that the country\xe2\x80\x99s designation would have on the law enforcement and security\ninterests of the United States.\xe2\x80\x9d See also id. \xc2\xa7 1187(c)(2)(F) (Supp. IV 2010) (requiring\nparticipating countries to share information regarding safety risks); Department of State,\nVisa Waiver Program (VWP), http://travel.state.gov/visa/temp/without/without_1990.\nhtml (last visited Oct. 21, 2011) (\xe2\x80\x9cTo be admitted to the Visa Waiver Program, a country\nmust meet various security and other requirements, such as enhanced law enforcement\nand security-related data sharing with the United States and timely reporting of both blank\nand issued lost and stolen passports. VWP members are also required to maintain high\ncounterterrorism, law enforcement, border control, and document security standards.\xe2\x80\x9d).\n\n177\n\n\x0c35 Op. O.L.C. 171 (2011)\n\nand those without, such that the plain meaning of the text is not absurd.\nATF may be correct that the firearms disabilities in section 922(g)(5)(B)\nshould be applied to all nonimmigrant aliens \xe2\x80\x9cas a matter of sound public\npolicy\xe2\x80\x9d or administrative convenience. ATF Memorandum at 4. But any\ndebate over whether the current statute is deficient as a policy matter\nultimately \xe2\x80\x9cbelongs in the halls of Congress.\xe2\x80\x9d Powerex Corp. v. Reliant\nEnergy Servs., 551 U.S. 224, 237 (2007).\nATF next turns to legislative history to support its position. ATF first\npoints to two floor statements made by members of Congress during the\ndebate over section 922(g)(5)(B): a statement by Senator Richard Durbin\nthat a restriction on gun possession should apply to persons who \xe2\x80\x9c\xe2\x80\x98come\ninto this country as our guest, not as a citizen of the United States,\xe2\x80\x99\xe2\x80\x9d and a\nstatement by Senator Larry Craig supporting restrictions on gun possession by persons \xe2\x80\x9c\xe2\x80\x98who are guests in our country, legally or illegally.\xe2\x80\x99\xe2\x80\x9d\nATF Memorandum at 2 (quoting 144 Cong. Rec. 16,493\xe2\x80\x9394 (1998)).\nFrom these statements, ATF concludes that Congress intended the gun\ncontrol prohibition to apply to all nonimmigrant aliens, regardless of visa\nstatus.\nBecause the text of the statute is clear, any resort to legislative history\nin this context is unnecessary. See, e.g., Conn. Nat\xe2\x80\x99l Bank v. Germain,\n503 U.S. 249, 254 (1992) (\xe2\x80\x9cWhen the words of a statute are unambiguous,\nthen, this first canon is also the last: judicial inquiry is complete.\xe2\x80\x9d (internal quotation marks omitted)); Ratzlaf v. United States, 510 U.S. 135,\n147\xe2\x80\x9348 (1994) (\xe2\x80\x9c[W]e do not resort to legislative history to cloud a statutory text that is clear.\xe2\x80\x9d). What is more, floor statements are generally of\nlimited interpretive assistance as they \xe2\x80\x9creflect at best the understanding of\nindividual Congressmen.\xe2\x80\x9d Zuber v. Allen, 396 U.S. 168, 186 (1969).\nIndeed, we think it unlikely that even unambiguous floor statements by a\nfew members of Congress could ever overcome the plain meaning of a\nstatute. See Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 457 (2002)\n(\xe2\x80\x9cFloor statements from two Senators cannot amend the clear and unambiguous language of a statute.\xe2\x80\x9d).\nIn any event, neither of the floor statements speaks directly to the interpretive issue addressed here. Neither uses the term \xe2\x80\x9cnonimmigrants.\xe2\x80\x9d\nEach statement refers instead to \xe2\x80\x9cguests\xe2\x80\x9d or a person who enters the\ncountry \xe2\x80\x9cnot as a citizen\xe2\x80\x9d of the United States. The plain meaning of these\nreferences, particularly the reference to non-citizens, encompasses all\n178\n\n\x0cFirearms Disabilities of Nonimmigrant Aliens Under the Gun Control Act\n\nimmigrants, including lawful permanent residents\xe2\x80\x94immigrants who\nneither ATF nor the legislative record suggests are covered by section\n922(g)(5)(B). Thus, two Senators\xe2\x80\x99 use of the references \xe2\x80\x9cguest[]\xe2\x80\x9d and\nperson who enters \xe2\x80\x9cnot as a citizen\xe2\x80\x9d during a floor debate provides little,\nif any, insight into the meaning of the statutory phrase \xe2\x80\x9cnonimmigrants\n. . . admitted under a visa.\xe2\x80\x9d Cf. Aaron v. SEC, 446 U.S. 680, 697 (1980)\n(\xe2\x80\x9cit would take a very clear expression in the legislative history of congressional intent to the contrary to justify the conclusion that the statute\ndoes not mean what it so plainly seems to say\xe2\x80\x9d). 10\nATF also highlights a floor statement from the debate over a laterenacted statutory provision\xe2\x80\x94an explosives prohibition contained in the\nHomeland Security Act of 2002. See ATF Memorandum at 4. During that\nlegislative debate, a section-by-section analysis was introduced into the\nrecord explaining that the prohibition would apply to \xe2\x80\x9caliens other than\nlawful permanent resident aliens\xe2\x80\x9d and that the provision \xe2\x80\x9cbrings the explosives law in line with most categories of prohibited people in the Gun\nControl Act.\xe2\x80\x9d 148 Cong. Rec. 22,985 (2002) (noting also that \xe2\x80\x9c[t]he language relating to non-immigrant aliens differs slightly from that in the Gun\nControl Act, as technical changes have been made to improve the clarity of\nthe provisions\xe2\x80\x9d). ATF\xe2\x80\x99s argument appears to be that (i) because a sectional\nanalysis accompanying the explosives statute stated that the statute would\nbring the law into line with the Gun Control Act; (ii) because the explosives provision clearly applied to all aliens other than lawful permanent\nresidents, including all nonimmigrant aliens; and (iii) because the only\ndifference in the language of the definitions of the two statutes was \xe2\x80\x9ctechnical,\xe2\x80\x9d Congress must have intended the Gun Control Act to apply to all\nnonimmigrant aliens. See ATF Memorandum at 4.\n\n10 Although it is unnecessary to our statutory analysis, we note that elements of the\nlegislative history reinforce the plain meaning of the text. The legislative record suggests\nthat the prohibition in section 922(g)(5)(B) was added in response to a shooting by \xe2\x80\x9ca\nresident of the Nation of Lebanon\xe2\x80\x9d who had come \xe2\x80\x9cto the United States on a nonimmigrant visa, such as a tourist visa.\xe2\x80\x9d 144 Cong. Rec. 16,493 (1998). Furthermore, the\nprincipal sponsor of the bill, Senator Durbin, used the term \xe2\x80\x9cnonimmigrant visa\xe2\x80\x9d six times\nin the course of a short floor statement discussing the need for the prohibition. See id.\nThis legislative history suggests that Congress drafted section 922(g)(5)(B) to apply to\nnonimmigrants admitted under a visa for the simple reason that it was that category of\nnonimmigrant aliens Congress had in mind in enacting the bill.\n\n179\n\n\x0c35 Op. O.L.C. 171 (2011)\n\nThis argument rests not on the legislative history of the Gun Control\nAct, but on the history of a subsequently enacted statute. Like broad\nstatements from individual members of Congress, such evidence provides\nonly limited support for a statutory reading that is inconsistent with the\ntext. The history of later-enacted statutes generally does not provide\nreliable evidence of the intent of the Congress that enacted an earlier\nprovision. See Mackey v. Lanier Collection Agency & Serv., Inc., 486\nU.S. 825, 840 (1988) (\xe2\x80\x9cThe views of a subsequent Congress form a\nhazardous basis for inferring the intent of an earlier one.\xe2\x80\x9d) (internal\nquotation marks omitted). For these reasons, we do not believe the legislative history of the explosives statute sheds light on the meaning of\nsection 922(g)(5)(B).\nIII.\nYou also have asked us what actions ATF would be legally required to\ntake with respect to past or pending criminal cases in the event that section 922(g)(5)(B) does not apply to all nonimmigrant aliens. See ATF\nMemorandum at 5. The necessary implication of our conclusion here is\nthat section 922(g)(5)(B) does not authorize future or pending investigations and prosecutions predicated on the view that the statute applies to all\nnonimmigrant aliens, regardless of visa status. Although we are not aware\nof any legal obligations ATF or the Department might have to seek the\nvacatur of any past criminal convictions, we note that the Criminal Division possesses substantial expertise on the relevant legal rules and Department practices in such circumstances.\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\n180\n\n\x0c'


b'Severance Agreement Between a Prospective Federal\nAppointee and His Law Firm\nS ev eran ce a rra n g em en ts b etw een a p ro sp e c tiv e a p p o in te e to federal office an d his law\nfirm d o n o t result in an unlaw ful su p p lem en tatio n o f his federal sa lary in v iolation o f 18\nU .S.C . \xc2\xa7 209, n o tw ith sta n d in g th e fact th a t th ey d e v ia te in ce rta in resp ec ts from the\nterm s o f th e law firm \xe2\x80\x99s p a rtn ersh ip ag reem en t.\n\nMay 7, 1980\nMEMORANDUM OPINION FOR\nTH E DEPUTY COUNSEL TO TH E PR ESID EN T\nThis is in response to your request of our review of the withdrawal\nagreement entered into by Mr. A, a nominee to federal office, and the\nlaw firm of which he is a partner, Firm X. More particularly, you ask\nwhether the agreement is consistent with the federal conflict of interest\nlaws, including 18 U.S.C. \xc2\xa7209. That statute in general prevents an\nofficer or employee of the Executive Branch from receiving, or anyone\nfrom paying him, any salary or supplementation of salary for his serv\xc2\xad\nices to the government.\nArticle VIII of the Firm X partnership agreement, provides for\nretirement, with a cash benefit payable in 60 monthly installments, for a\npartner who leaves the firm under certain conditions. Mr. A is eligible\nfor retirement, which under the agreement would terminate his interest\nin the partnership. A technique for less than complete severance from\nthe firm is provided by Article X III-2 of the agreement. It authorizes a\ntemporary withdrawal of a partner for a period of no longer than\nIS months, subject to such terms and conditions as a majority of the\nother partners may specify. A temporary withdrawal does not termi\xc2\xad\nnate a partner\xe2\x80\x99s interest and he remains a member of the firm. You will\nrecall that Mr. A informed us at our meeting with him that his firm was\nagreeable to his choice of departure under either Article V III or Arti\xc2\xad\ncle XIII-2 and would approve the same financial arrangements under\neither option. Mr. A chose retirement under Article VIII and the\nwithdrawal agreement was drawn accordingly.\nThe withdrawal agreement will come into force on the day of\nMr. A\xe2\x80\x99s confirmation by the Senate. It provides for variations from the\nFirm X partnership agreement in connection with his capital account\nand the payment of his retirement benefits. Under Article VIII-3(a) and\n605\n\n\x0cVII-2(a) and (d) of the latter document, the capital account would be\npaid within 90 days after separation and the monthly retirement pay\xc2\xad\nments would commence at the end of the month following his retire\xc2\xad\nment. However, the withdrawal agreement provides for the firm to\ndefer liquidation of the capital account until Mr. A requests it and to\ndefer initiation of the retirement installments for 24 months after his\nseparation from Firm X, unless he is readmitted to membership before\nthen or if the 24-month period is extended by mutual consent.\nIt is appropriate to consider first the element of intent on the part of\nFirm X and Mr. A. If the firm and he went beyond the provisions of\nArticles VIII and VII-2(a) and (d) with a view to providing something\nof value to him as a supplement to his federal salary, then \xc2\xa7 209(a)\nwould be a bar to his filling that office and our discussion would end at\nthis point. However, there is nothing in the circumstances here to\nsuggest that the firm was motivated by anything but a desire to accom\xc2\xad\nmodate Mr. A in recognition of his years of membership in it, or that\nhe had in mind obtaining from the firm a subsidy of his employment by\nthe government. We have no difficulty in ruling out both possibilities.\nSee 41 Op. A tt\xe2\x80\x99y Gen. 217, 221 (1955).\nRemaining for consideration in relation to \xc2\xa7 209(a) is the question\nwhether the withdrawal agreement is per se inconsistent with Mr. A \xe2\x80\x99s\ntaking and remaining in office. Had that agreement followed the terms\nof the partnership compact, there would be no doubt that any benefits\nthat might flow from it to Mr. A would fall within the exemption from\n\xc2\xa7 209(a) granted by \xc2\xa7 209(b) with respect to a \xe2\x80\x9cbona fide . . . retire\xc2\xad\nment . . . plan maintained by a former employer.\xe2\x80\x9d However, the de\xc2\xad\nscribed variations raise the question whether the withdrawal agreement\nitself bestows on Mr. A a form of \xe2\x80\x9ccontribution to or supplementation\nof salary, as compensation for his services as an officer\xe2\x80\x9d of the federal\ngovernment that is not waived by \xc2\xa7 209(b).\nThe deferral of the payout of Mr. A \xe2\x80\x99s capital account will provide no\nsignificant financial benefit to him that we are aware of. On the other\nhand, he has stated that he requested the temporary deferment of the\nretirement payments in order to reduce the amount of income tax\nliability they would otherwise generate. This Office has generally\nviewed severance arrangements that minimize a recipient\xe2\x80\x99s tax liability\nas not cutting across the prohibition o f \xc2\xa7 209(a). Nevertheless, for the\nreasons set forth below, we do not find it necessary to pass on the\nagreed variations from Firm X\xe2\x80\x99s retirement program in that context.\nIt appears that if Mr. A and his firm had determined that he should\nundertake his projected government service while remaining a member\nof the firm under Article X III-2 of its governing instrument, in addition\nto forgoing his share of profits during his absence, he would not\nreceive the return of his capital or any retirement payments. Thus, he\nwould be in the same position as the withdrawal agreement calls for but\n606\n\n\x0cwould have avoided the question under consideration here. As a practi\xc2\xad\ncal matter, however, temporary withdrawal under Article XIII-2 was\nand is not open to him as a means of avoiding the possible impact of\n\xc2\xa7 209(a). That is so because, as you informed him at our meeting, White\nHouse policy prevents a partner of a law firm from serving the govern\xc2\xad\nment under a presidential appointment to a full-time post unless he\nwithdraws from the firm. That condition would not be met by the mere\ntemporary suspension of Mr. A under Article XIII-2.\nIt would be anomalous to conclude on the one hand that \xc2\xa7 209(a)\nstands in the way of the financial arrangement worked out be\xc2\xad\ntween Mr. A and his firm because it deviates to some extent from\ncertain provisions of the partnership agreement, and to conclude on the\nother hand that the same financial arrangement under other provisions\nof the partnership agreement would comport with \xc2\xa7 209(a). Because the\nWhite House policy that has intervened to prevent resort to the latter\nprovisions is not based on any prohibition of \xc2\xa7 209(a), we do not\nbelieve that any purpose of the statute would be furthered by reading it\nto require this formalistic stalemate and the consequent loss of Mr. A\xe2\x80\x99s\nservices to the government. In short, we are of the opinion that imple\xc2\xad\nmentation of the executed withdrawal agreement, just like implementa\xc2\xad\ntion of a similar agreement drawn under Article XIII-2, would not\ncontravene \xc2\xa7 209(a).\nThe withdrawal agreement need not be examined in the light of any\nof \xc2\xa7 209\xe2\x80\x99s companion conflict of interest statutes except 18 U.S.C. \xc2\xa7 208,\nwhich prohibits a federal employee from participating in a matter for\nthe government in which, to his knowledge, \xe2\x80\x9che, his . . . partner . . .\nor any person or organization with whom he is negotiating or has any\narrangement concerning prospective employment, has a financial inter\xc2\xad\nest. . . .\xe2\x80\x9d The term \xe2\x80\x9cfinancial interest\xe2\x80\x9d does not extend to the credi\xc2\xad\ntor\xe2\x80\x99s claim against his firm that Mr. A will have when the withdrawal\nagreement comes into force. Nevertheless, in order to avoid adverse\nappearances, Mr. A should recuse himself from any matter which may\ncome before him as an official of the government in which Firm X\nappears as counsel or otherwise has a financial interest.\nL eo n U lm an\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n607\n\n\x0c'