b'Administrative Determination of Eligibility for\nVeterans\xe2\x80\x99 Beneficiary IVavel Reimbursement\nT he Veterans A dm inistration (VA) has discretion to determ ine on a case-by-case basis w hether VA\nbeneficiaries should be reim bursed for transportation costs incurred in connection with their\nreceipt of VA m edical care, and is not required to do so in all cases.\nThe perm issive statutory term \xe2\x80\x9c may,\xe2\x80\x9d used to describe the VA\xe2\x80\x99s adm inistrative authority to reim burse\ntransportation co sts, should be interpreted in light of its plain m eaning unless the legislative\nhistory reveals that such an interpretation would lead to absurd results, o r consequences obviously\nat variance with the policy o f the statute as a w hole. The legislative history of the Veterans\xe2\x80\x99 Benefit\nAct o f 1957 and its predecessor statutes is am biguous with respect to Congress\xe2\x80\x99 intent in using the\nword "m ay\xe2\x80\x9d in the 1957 A ct, and is thus not sufficiently com pelling to contradict the plain\nlanguage of the statute.\nN otw ithstanding the VA\xe2\x80\x99s consistent interpretation o f the relevant provisions since 1957 to m andate\ntravel reim bursem ent, legislative ratification of this adm inistrative interpretation in subsequent\nam endm ents to the statute will not be found in the absence o f clear and unam biguous congressional\nacceptance of the VA\xe2\x80\x99s position.\n\nDecember 7, 1982\nMEMORANDUM FOR THE COUNSEL TO THE DIRECTOR,\nOFFICE OF MANAGEMENT AND BUDGET, AND THE\nGENERAL COUNSEL, VETERANS ADMINISTRATION\nThis memorandum responds to Mr. Horowitz\xe2\x80\x99s request for our opinion\nwhether the Veterans Administration (VA) has discretionary authority to deter\xc2\xad\nmine administratively the eligibility of VA beneficiaries to receive reimburse\xc2\xad\nment for certain travel expenses. Under 38 U.S.C. \xc2\xa7\xc2\xa7 111, 601, 610, and 612,1\nthe VA is authorized to reimburse certain transportation costs of eligible veterans\ntraveling to receive VA covered medical benefits. The Office of Management and\nBudget (OMB) believes these sections do not require the VA to make such\npayments.2 This conclusion is based on the fact that \xc2\xa7 111 uses the permissive\nterm \xe2\x80\x9cmay\xe2\x80\x9d in describing the administrative authority to reimburse transportation\nexpenses. The VA, on the other hand, construes these statutes as mandating\npayment of covered travel expenses of eligible veterans who are receiving VA\n\n1 All statutory references herein will refer to Title 38 of the U .S. Code unless otherwise specifically noted\n2 See Memorandum from Michael J. Horowitz, Counsel to the Director, OMB, to Theodore B. Olson, Assistant\nAttorney General (AAG), Office of Legal Counsel (OLC), June U , 1982\n\n725\n\n\x0cmedical care.3 It argues that Congress intended the word \xe2\x80\x9cmay\xe2\x80\x9d as used in all of\nthese provisions to be mandatory, and that over the years Congress has never\nchallenged the VA\xe2\x80\x99s interpretation that such payments are mandatory. The VA\nrecognizes, however, that it has some discretion in determining the eligibility of\ncertain veterans for travel expense reimbursement and in establishing the rate and\nmode of such reimbursement.\nWe have carefully studied both of your memoranda on this question. While\nthere is some confusion over what Congress intended when passing these\nsections and amending them over the years, we believe the plain meaning of the\nlanguage of these provisions indicates that Congress initially intended to grant\nthe Administrator of the VA discretion regarding reimbursement of transportation\ncosts. Because nothing in the legislative history of the relevant statutes and\namendments to them clearly establishes that these statutes should be interpreted\nin a manner contrary to the plain meaning of the words employed and, in fact, the\nlegislative history provides some support, albeit somewhat ambiguous, for the\nview that Congress intended these statutes to be discretionary, we conclude that\nthe Administrator is not required under the relevant statutory provisions to\nreimburse the transportation costs of VA beneficiaries traveling to receive cov\xc2\xad\nered care.\nWe emphasize that our opinion does not suggest that the Administrator\xe2\x80\x99s\ncurrent practices regarding payment of transportation should or must be changed.\nThe Administrator may wish to continue present practices and is clearly author\xc2\xad\nized to do so. We merely conclude that such reimbursement is not mandated by\nthe relevant statutory provisions.\n\nI. Statutory Language\nW hether the Administrator must reimburse the travel expenses of eligible\nveterans depends upon the interpretation of four interrelated statutory provi\xc2\xad\nsions\xe2\x80\x94 \xc2\xa7\xc2\xa7 111, 601, 610, and 612.\nSection 610 supplies the basic authority for the Administrator of the VA to\nprovide hospital and domiciliary care to veterans \xe2\x80\x9cwithin the limits of Veterans\xe2\x80\x99\nAdministration facilities.\xe2\x80\x9d According to this section, the Administrator \xe2\x80\x9cmay\xe2\x80\x9d\nfurnish \xe2\x80\x9chospital care\xe2\x80\x9d to veterans suffering from service-connected disabilities,\nto veterans who are suffering from non-service connected disabilities and who\nare unable to defray the necessary medical expense, and to veterans who meet\ncertain other selected criteria.4 The Administrator \xe2\x80\x9cmay\xe2\x80\x9d also generally furnish\n3 See M emorandum from John P Murphy, General Counsel, VA, to Theodore B. Olson, AAG, OLC, June 16,\n1982 (VA Memorandum).\n4 The Administrator may also provide hospital care to a veteran \xe2\x80\x9cwhose discharge or release from the active\nmilitary, naval, o r air service was fora disability incurred or aggravated in line of duty\xe2\x80\x9d; \xe2\x80\x9cwho is in receipt of, or but\nfor the receipt o f retirement pay would be entitled to, disability compensation\xe2\x80\x9d ; who is 65 years or older; or who is a\nformer prisoner o f war. See \xc2\xa7 610(a)(2), (3), (4), and (6) In addition, \xc2\xa7 610 covers care for a veteran who served on\nactive duty in Vietnam during the Vietnam W ar era and who the Administrator determines may have been exposed to\ndioxin o r a toxic substance found in a herbicide or defoliant used for military purposes, or for a veteran who was\nexposed while on active duty to ionized radiation from the detonation of a nuclear device in a test of such device or\nduring the American occupation o f Japan in 1945-1946, so long as the VA C hief Medical Director does not find that\nthe disability arises in either of these cases from a cause other than these two types of exposure See \xc2\xa7\xc2\xa7 610(a)(5)\nand (e).\n\n726\n\n\x0cdomiciliary care, pursuant to \xc2\xa7 610(b), to veterans unable to defray the necessary\nexpense, to veterans discharged from active service for a disability incurred or\naggravated in the line of duty, or to permanently disabled persons in receipt of\ndisability compensation who are incapacitated from earning a living and who\nhave no adequate means of support.\nSimilarly, \xc2\xa7 612 generally provides that the Administrator \xe2\x80\x9cmay,\xe2\x80\x9d \xe2\x80\x9cwithin the\nlimits of Veterans Administration facilities,\xe2\x80\x9d furnish \xe2\x80\x9cmedical services\xe2\x80\x9d to vet\xc2\xad\nerans for any service-connected disability.5\nThe terms \xe2\x80\x9chospital care,\xe2\x80\x9d \xe2\x80\x9cmedical services,\xe2\x80\x9d and \xe2\x80\x9cdomiciliary care\xe2\x80\x9d are\ndefined in \xc2\xa7 601 (5), (6), and (7), respectively, to include \xe2\x80\x9ctravel and incidental\nexpenses pursuant to the provisions of \xc2\xa7 111 of this title.\xe2\x80\x9d Section 111, in turn,\nprovides that the Administrator \xe2\x80\x9cmay pay the actual necessary expense of travel\n(including lodging and subsistence) or in lieu thereof an allowance based upon\nmileage traveled, of any person to or from a Veterans\xe2\x80\x99 Administration facility or\nother place in connection with vocational rehabilitation, counseling . . ., or for\nthe purpose of examination, treatment, or care.\xe2\x80\x9d Section 111, however, imposes a\nseparate and independent limitation on the Administrator\xe2\x80\x99s authority to reimburse\nthe transportation costs of veterans receiving non-service-connected care, as\ndistinguished from service-connected care. With respect to such non-serviceconnected care, transportation expenses \xe2\x80\x9cmay\xe2\x80\x9d only be covered when the Admin\xc2\xad\nistrator has determined that a veteran is unable to defray the cost of travel, is\nreceiving or is eligible to receive a VA pension under \xc2\xa7 521, or has an annual\nincome which does not exceed the maximum annual rate which would be payable\nto him under a VA pension. Thus, the Administrator is generally granted the\nauthority to pay transportation costs of persons traveling to receive medical\nservices, hospital care, or domiciliary care covered by the VA, but only in the\ncircumstances specified in \xc2\xa7 111 and pursuant to regulations prescribed by the\nPresident.\nThe VA argues that it is required to pay for covered transportation expenses\nbecause the word \xe2\x80\x9cmay\xe2\x80\x9d in \xc2\xa7\xc2\xa7 610 and 612 should be read to be mandatory. In the\nVA\xe2\x80\x99s view, \xc2\xa7\xc2\xa7 610 and 612 require the Administrator to provide hospital care,\ndomiciliary care, and medical services to eligible veterans, \xe2\x80\x9cwithin the limits of\nVeterans\xe2\x80\x99 Administration facilities.\xe2\x80\x9d Because the terms hospital care, domiciliary\ncare, and medical services are defined in \xc2\xa7 601 to include transportation,\ntransportation is an \xe2\x80\x9cintegral part\xe2\x80\x9d of medical care, according to the VA. Thus,\nthe argument continues, once a person is determined to be eligible for one of\nthese benefits, that person is automatically eligible for and must also be afforded\ntransportation. The VA recognizes that the clause \xe2\x80\x9cwithin the limits of Veterans\xe2\x80\x99\nAdministration facilities\xe2\x80\x9d gives it some discretion to set priorities for access to\nVA facilities among classes of veterans when facilities are limited. In its view,\n5 Medical services may also be provided to veterans if such services are in preparation to, would obviate the need\nfor, or are necessary to complete treatment incidental to, hospital care covered under \xc2\xa7 610; if the veteran has a\nservice-connected disability rating of 50 percent or more, if the veteran is a former prisoner of w ; if the veteran was\ndischarged from active service for a disability incurred or aggravated in the line of duty; or if the veteran meets\ncertain other selected criteria. See \xc2\xa7 612(a), (0, and (g).\n\nin\n\n\x0chowever, it is required to reimburse covered transportation costs whenever\nveterans receive care covered by the VA, unless such reimbursement is specifi\xc2\xad\ncally precluded by \xc2\xa7 III.\nOMB, on the other hand, contends that the definitions of the medical benefits\ndescribed in \xc2\xa7 601 specifically make the transportation component subject to the\nprovisions of \xc2\xa7 111, which states that the Administrator \xe2\x80\x9cmay\xe2\x80\x9d pay for certain\ntravel expenses. The plain meaning of the word \xe2\x80\x9cmay,\xe2\x80\x9d according to OMB, is that\nthe Administrator has discretion; OMB emphasizes that this construction is\nsupported by the fact that subdivision (e) of \xc2\xa7 111 uses the word \xe2\x80\x9cshall\xe2\x80\x9d to require\nthe Administrator of the VA to conduct specified studies and surveys of travel\ncosts and to report them to Congress. The VA answers this argument by\ncontending that \xc2\xa7 111 should be read as merely adding discretion as to the\nalternative modes of calculating reimbursement mandated under \xc2\xa7\xc2\xa7 610 and 612,\nand not as providing discretion to refuse to reimburse transportation costs on\nsome basis.6\nIn resolving this dispute, we begin by observing that the use of the word \xe2\x80\x9cmay\xe2\x80\x9d\nin all of these provisions clearly supports OM B\xe2\x80\x99s conclusion that reimbursement\nof transportation costs is permissive. A statute\xe2\x80\x99s terms are normally to be\ninterpreted in light of the usual or customary meaning of the words themselves.\nSee, e .g .. Southeastern Community College v. Davis, 442 U.S. 397, 405-^406\n(1979). The word \xe2\x80\x9cmay\xe2\x80\x9d ordinarily indicates that one has permission or liberty to\ndo something, not that one is required or compelled to do something. See\nW ebster\xe2\x80\x99s Third N ew International Dictionary, 1396 (1976). Absent some com\xc2\xad\npelling evidence of a contrary intent, the courts have interpreted the word \xe2\x80\x9cmay\xe2\x80\x9d\nas used in a statute to be permissive. See, e .g ., Anderson v. Yungkau, 329 U.S.\n482 (1947); Farmers & Merchants Bank v. Federal Reserve Bank, 262 U.S. 649,\n662-63 (1923) (Brandeis, J.); Burglin v. M orton, 527 F.2d 486, 488 (9th Cir.\n1975), cert, denied, 42 U.S. 973 (1976); United States s. Bowden, 182F.2d251,\n252 (10th Cir. 1950). This interpretation is buttressed in the case of veterans\xe2\x80\x99\nmedical benefits by the fact that \xc2\xa7 111(e)(1), (3), and (4) provides that the\nAdministrator \xe2\x80\x9cshall\xe2\x80\x9d conduct an annual study on travel costs and \xe2\x80\x9cshall\xe2\x80\x9d submit\na report to Congress on the rate he proposes to set for reimbursement. Similarly,\n\xc2\xa7 612(h) and (i) provides that the Administrator \xe2\x80\x9cshall\xe2\x80\x9d furnish certain medicinal\ndrugs to eligible beneficiaries and \xe2\x80\x9cshall\xe2\x80\x9d establish an order of priority for access\nto medical services. Finally, in \xc2\xa7\xc2\xa7 511-562, Congress used the term \xe2\x80\x9cshall\xe2\x80\x9d in\ndescribing the Administrator\xe2\x80\x99s obligation to pay veterans\xe2\x80\x99 pensions. This contrast\nin the use of terms suggests strongly that when Congress wanted to impose a\nmandatory requirement in this title\xe2\x80\x94 indeed, in two of the very provisions at\n6 Although we believe this description of the VA\xe2\x80\x99s position is accurate, the VA\xe2\x80\x99s interpretation of \xc2\xa7 111 over the\nyears has been somewhat strained, if not inconsistent In an August 23, 1960, opinion attached to the VA\nM emorandum , the VA found that \xc2\xa7 111 not only furnished independent authonty for reimbursement of certain\ntransportation expenses that were not covered in \xc2\xa7\xc2\xa7 612 or 610 at that time, but also mandated reimbursement of\nthose expenses. In a June 3 0 ,1 9 7 6 , opinion also attached to the VA M emorandum, however, the VA found that it had\ngreater discretion in reimbursing transportation independently authonzed under \xc2\xa7 111 than transportation author*\nized under \xc2\xa7 610, although it did not specify the limits of that discretion Thus, according to the VA, the word \xe2\x80\x9cmay\xe2\x80\x9d\nas used in \xc2\xa7 111 is mandatory with respect to certain types of transportation, but provides some discretion with\nrespect to others\n\n728\n\n\x0cissue\xe2\x80\x94 it knew how to do so. See Anderson v. Yungkau, 329 U.S. at 485 (when\n\xe2\x80\x9cmay\xe2\x80\x9d and \xe2\x80\x9cshall\xe2\x80\x9d used in the same provision, \xe2\x80\x9cnormal inference is that each is\nused in its usual sense\xe2\x80\x9d); Farmers & Merchants Bank v. Federal Reserve Bank,\n262 U.S. at 662-63.7\nIn addition, \xc2\xa7\xc2\xa7 610 and 612 provide that care \xe2\x80\x9cmay\xe2\x80\x9d only be provided \xe2\x80\x9cwithin\nthe limits of Veterans\xe2\x80\x99 Administration facilities.\xe2\x80\x9d Thus, in contrast to the sections\nimposing an unqualified obligation on the Administrator to pay pensions, see,\ne.g., \xc2\xa7\xc2\xa7511, 512, 521 (\xe2\x80\x9cAdministrator shall pay . . . .\xe2\x80\x9d), \xc2\xa7\xc2\xa7 610 and 612\nexpressly state that the Administrator need not deliver care to the extent that the\nVA does not have adequate facilities. Put another way, Congress has no legal\nobligation under these provisions to appropriate sufficient money to ensure that\nfacilities exist so that every veteran made eligible under these statutes may obtain\nservices. In the absence of adequate facilities, moreover, the Administrator is free\nto choose between categories of beneficiaries in rationing the use of scarce\nfacilities. Thus, these provisions clearly do not require that all eligible veterans\nreceive medical benefits and, on the other hand, give the Administrator wide\ndiscretion in allocating resources. All things being equal, this limitation suggests\nthat the word \xe2\x80\x9cmay\xe2\x80\x9d was used in its ordinary permissive sense\xe2\x80\x94 to grant the\nAdministrator discretion to balance the provision of the various types of care.\nThe only federal court which, to our knowledge, has addressed the question of\nwhat Congress intended when it used the language of the provisions under\ndiscussion in this memorandum has found that \xc2\xa7 610 does not require the\nAdministrator to provide domiciliary care to veterans. In Moore v. Johnson, 582\nF.2d 1228, 1233 (9th Cir. 1978), the court dismissed an action brought under 28\nU.S.C. \xc2\xa7 1361 to require the Administrator to place certain veterans\xe2\x80\x99 benefici\xc2\xad\naries in specific domiciliary facilities, reasoning that \xe2\x80\x9cthe benefits made available\nby 38 U.S.C. \xc2\xa7 610, being such as the Administrator \xe2\x80\x98may furnish\xe2\x80\x99 and \xe2\x80\x98within\nthe limits of Veterans Administration facilities,\xe2\x80\x99 are thus committed to agency\ndiscretion by law.\xe2\x80\x9d8\nIn light of the plain meaning of the language of these provisions, we must act\n7 The VA Memorandum places some significance on the fact that \xc2\xa7 111(e)(2)(A) makes persons receiving or\neligible to receive a VA pension, or with an income below that provided by a VA pension, automatically eligible for\nreimbursement of transportation expenses, even though they may otherwise be able to \xe2\x80\x9cdefray\xe2\x80\x9d the expense of such\ntravel according to the regulations promulgated by the Administrator. The VA draws the inference from this that\n\xe2\x80\x9c [t]his section now directs the Administrator to prescribe regulations to limit payment in some case[s] to assure a real\ninability to pay for the necessary travel, while making it clear that the authonty to so limit does not apply with respect\nto certain other categories c f individuals." VA Memorandum at 5 (emphasis added) Subsection (e)(2), however,\nmerely establishes various restrictions on the Administrator\xe2\x80\x99s authority to provide travel reimbursement (\xe2\x80\x9cIn no\nevent shall payment be provided under this section . . ."). Subparagraph A, which sets forth the basic restriction that\na person seeking reimbursement must demonstrate an inability to defray the expenses before the Administrator is\nauthorized lo afford such reimbursement, specifically exempts from this mandatory means test veterans \xe2\x80\x9creceiving\nbenefits for or in connection with a service-connected disability\xe2\x80\x9d or who fall into the other categories noted above.\nThus, by operation of the statutory double negative, placing veterans in these exempted categones merely puts them\nback in the basic posture of being subject to whatever discretion the Administrator may have under the term \xe2\x80\x9cmay.\xe2\x80\x9d\n8 In contrast, the Supreme Court, see Reynolds v. United States, 292 U S. 443, 446 (1934), the lower federal\ncourts, see UnitedStates v St Paul M ercury Indemnity Co., 238 F 2 d 594, 596 (8th Cir. 1956); United States v.\nAlperstein, 183 F. Supp. 548, 550 (S D Fla 1960), a jfd , 291 F.2d 455 (5th Cir. 1961); United States Petrik, 154\nF Supp. 598, 599 (D Kan 1956); and the Attorney General, see 37 Op A tt\xe2\x80\x99y Gen. 551, 557 (1934), have\ninterpreted the word \xe2\x80\x9cshall\xe2\x80\x9d in predecessor statutes on veterans\xe2\x80\x99 medical benefits to be mandatory The distinction\nbetween the use of the word \xe2\x80\x9cmay\xe2\x80\x9d and \xe2\x80\x9cshall\xe2\x80\x9d is discussed infra.\n\n729\n\n\x0cwithin certain well-defined constraints. If a legislative purpose [of\na statute] is expressed in \xe2\x80\x9cplain and unambiguous language, . . .\nth e. . . duty of the courts is to give effect according to its terms.\xe2\x80\x9d\nExceptions to clearly delineated statutes will be implied only\nwhere essential to prevent \xe2\x80\x9cabsurd results\xe2\x80\x9d or consequences ob\xc2\xad\nviously at variance with the policy of the enactment as a whole.\nU nited States v. Rutherford, 442 U.S. 544, 551-52 (1979) (citations omitted)\n(quoting U nited States v. Lexington Mill & Elevator Co., 232 U.S. 399, 409\n(1914)). Thus, \xc2\xa7\xc2\xa7 i l l , 610, and 612 should be interpreted as permissive unless\nthe legislative history reveals that such an interpretation would lead to \xe2\x80\x98\xe2\x80\x9c absurd\nresults\xe2\x80\x99 or consequences obviously at variance with the policy of the enactment as\na whole.\xe2\x80\x9d Id.\n\nII. Legislative History\nThe current statutory scheme was essentially established in the Veterans\xe2\x80\x99\nBenefits Act of 1957, Pub. L. No. 85-56, 71 Stat. 83, 110 (1957) (1957 Act).\nAlthough subsequent amendments added new types of covered care and new\ncategories of eligible veterans, and made certain structural changes discussed\nbelow, this Act first adopted the word \xe2\x80\x9cmay\xe2\x80\x9d in 38 U.S.C. \xc2\xa7\xc2\xa7 2510 and 2512\n(1952) (Supp. V), which were recodified the next year as \xc2\xa7\xc2\xa7 610 and 612. See\nPub. L. No. 85-857, \xc2\xa7\xc2\xa7610, 612, 72 Stat. 1105, 1141-42 (1958). Unfor\xc2\xad\ntunately, the legislative history o f the 1957 Act itself is not helpful in determining\nwhat Congress intended when it adopted this language. Except for certain minor\nchanges not pertinent to this memorandum, the 1957 Act was passed, according\nto the committee reports and repeated floor comments, merely to incorporate,\nrecodify and simplify existing laws, and not to change the substance of veterans\xe2\x80\x99\nbenefits.9 There was no specific discussion as to why the word \xe2\x80\x9cmay\xe2\x80\x9d was\nadopted or whether medical care or transportation was intended to be mandatory\nor permissive. In addition, the 1957 Act had substantively different provisions on\nmedical benefits than the laws it replaced, which mandated the delivery of certain\ntypes of services and only authorized the delivery of others. Thus, in understand\xc2\xad\ning what Congress intended when it passed the 1957 Act with regard to travel\nexpense reimbursement, we must review in detail the history of the veterans laws\nleading up to 1957 and attempt to assess from this general history what Congress\nintended when it passed the 1957 Act.\n9 See Letter from Comptroller General to C hairm an, Committee on House Affairs, B - 124054 (Jan 30, 1957),\nH .R . Rep. No 279, 85th C ong., 1st Sess. 2 (1957) (\xe2\x80\x9cb ill. . . does not adversely affect the basic entitlement of any\nveteran o r dependent presently on the compensation or pension rolls, nor does it liberalize, except in very minor\nareas, the provisions of law which govern the eligibility of veterans and their dependents for such benefits"); 103\nCong. Rec. 4915 (1957) (remarks of Rep. Teague) (stating that \xe2\x80\x9c [t]here is no intent on the part of the committee to\nincorporate changes other than on the basis indicated\'* and not indicating any intent to change the substantive right to\nmedical benefits); 103 Cong. R ec.4916(1957)(rem arksofR ep. Adair) (bill is not \xe2\x80\x9cdesigned particularly to change\nthe substance o f these laws but merely to put them in better form \'\xe2\x80\x99); 103 Cong Rec 8176 (1957) (remarks of Sen.\nByrd) (\xe2\x80\x9cbill contains only a few minor substantive changes in the existing law, generally of a minor liberalization\n. . .").\n\n730\n\n\x0cA. Status of Law Before Passage c f 1957 Act\n\nDuring the period between 1917\xe2\x80\x94 when the first act dealing purely with\nveterans\xe2\x80\x99 medical benefits was passed\xe2\x80\x94 and 1957\xe2\x80\x94 when the various existing\nveterans\xe2\x80\x99 benefit laws were incorporated and simplified\xe2\x80\x94 Congress passed nu\xc2\xad\nmerous laws mandating medical benefits for some veterans and authorizing care\nfor others. Originally, under the 1917 Act, the provision of medical benefits was\nclearly mandated for all groups covered by the law at that time. The 1917 Act\nprovided that medical and hospital services \xe2\x80\x9cshall be furnished\xe2\x80\x9d to World War I\nveterans with service-connected injuries. See Pub. L. No. 65-90, \xc2\xa7 302(g)(3),\n40 Stat. 398, 406 (1917). In 1922, these mandatory services, which included\ntransportation, were expanded to include hospital care for neuropsychiatric or\ntubercular diseases of veterans of the Spanish American War, the Philippine\nInsurrection, and the Boxer Rebellion. Pub. L. No. 76-194, \xc2\xa7 4, 42 Stat. 496,\n497 (1922).\nIn 1924, however, Congress passed the World War Veterans\xe2\x80\x99 Act, which\ngenerally continued the mandatory category, but authorized the Veterans\xe2\x80\x99 Bureau\n(the predecessor to the VA) to provide hospital care, insofar as \xe2\x80\x9cexisting Govern\xc2\xad\nment facilities permit,\xe2\x80\x9d to veterans of any war, military occupation, or military\nexpedition since 1897, with preference to be given to those unable to defray the\nexpense. See Pub. L. No. 86-242, \xc2\xa7 202(e)(10), 43 Stat. 607, 620-21 (1924).\nAccording to a subsequent report prepared by the General Counsel\xe2\x80\x99s Office of the\nVA reviewing the legal developments during this period:\nThe passage of the World War Veterans\xe2\x80\x99 Act in 1924 brought\nabout a complete change of policy with regard to the construction\nof additional hospital facilities. A large influx of veterans of all\ntypes into Government institutions taxed the capacity of existing\nfacilities. It then became necessary to plan a program of con\xc2\xad\nstruction which would eventually take care of the men and women\nneeding hospitalization or domiciliary care from a veteran popu\xc2\xad\nlation of over 5 million. Notwithstanding that the Congress during\nthe next 7 years authorized and appropriated the sum of\n$68,677,000 for new hospital construction, the demand for beds\nfrom veterans with non-service-connected disabilities exceeded\nthe number of beds available.\nLegislative B ackground o f H ospitalization fo r N on-Service-C onnected D is \xc2\xad\nabilities, prepared by General Counsel\xe2\x80\x99s Office, VA, October 1, 1956, reprinted\nin Hearings Before House Committee on Veterans\xe2\x80\x99 Affairs, July 16, 1958,\n\np. 4022 (VA Legislative Background Study). Because the delivery of care to the\nnew groups covered by the 1924 Act was discretionary, and was to be provided\nonly when \xe2\x80\x9cexisting Government facilities permit,\xe2\x80\x9d the decision on the level of\nservices to be provided was made essentially through the congressional appropri\xc2\xad\nations process, where funding levels were set for construction of new VA\nfacilities. See VA Legislative Background Study, pp. 4022-24.\n731\n\n\x0cWith the onset of the Depression, Congress passed the so-called Economy\nAct, Pub. L. No. 73\xe2\x80\x942, \xc2\xa7 6, 48 Stat. 8, 9 (1933), which repealed prior medical\ncare acts and made the provision of all medical care by the Administrator\npermissive. This basic act, which remained in effect with certain amendments\nuntil 1957, \xe2\x80\x9cauthorize[d]\xe2\x80\x9d the Administrator, \xe2\x80\x9cunder such limitations as may be\nprescribed by the President, and within the limits of existing Veterans\xe2\x80\x99 Admin\xc2\xad\nistration facilities, to furnish the men discharged . . . for disabilities incurred in\n[the] line of duty and to veterans of any war . . . domiciliary care where they are\nsuffering with permanent disabilities, tuberculosis or neuropsychiatric ailments\nand medical and hospital treatment for diseases or injuries.\xe2\x80\x9d Pub. L. No. 73-2,\n\xc2\xa7 6, 48 Stat. 8, 9 (1933) as am ended by Pub. L. No. 73-78, 48 Stat. 283,\n301-302 (1933). In explaining the reasons for this new grant of discretionary\nauthority, a subsequent report prepared by the Solicitor of the VA and presented\nto Congress reviewed the reasons for the Economy Act\xe2\x80\x99s passage:\nIt was not until 1930 when the Veterans\xe2\x80\x99 Administration was\ncreated, and all agencies dealing with veterans\xe2\x80\x99 relief consoli\xc2\xad\ndated therein that the glaring discrepancies and injustices existing\nin these laws became apparent. Following this, the Congress,\nrecognizing the need for remedial action, appointed a joint com\xc2\xad\nmittee of the Senate and the House to study the question. This\ncommittee went deeply into the question of veterans\xe2\x80\x99 relief, and\nwas in the process of formulating a report, but before a final report\nwas made the President presented his program of economy with\nreference to veterans\xe2\x80\x99 benefits which was enacted into law.\n*\n\n*\n\n*\n\n*\n\n*\n\nIt was apparent that in order to insure elimination of inequalities\nand injustices revealed by the exhaustive studies and reports the\nprogram should call for legislation expressing the broad princi\xc2\xad\nples governing the relief to veterans and the limits within which\nbenefits could be administered, leaving the details to the Presi\xc2\xad\ndent. This program insured immediate action by the Congress and\nas subsequently revealed by veterans\xe2\x80\x99 regulations the program\nwithin the limits prescribed by Congress has been effectuated in\nsuch manner that the desired results have been realized within the\nminimum length of time and with the establishment of an accept\xc2\xad\nable system of administration.\nThat the method suggested by the President was the only method\nwhich could be expected to attain results must be conceded by all\nwho are familiar with the subject. While the Congress had recog\xc2\xad\nnized the evils of the existing situation it became early apparent\nduring the deliberations of the joint committee that there was no\nunanimity of opinion as to what should be done. One member or\n\n732\n\n\x0cgroup of members believed that this or that should be done, but\nthe other should not be done. Other members believed that other\ndifferent benefits were the ones which should be changed. It was\nonly by placing the authority in the President to make corrections\nrelying on his fairness cfm ind and courage to tackle the problem\nand solve it that definite accomplishment could be realized.\nComparative Study c f Veterans\' Legislation, prepared by Solicitor, VA, reprinted\nin 78 Cong. Rec. 2550, 2554 (1934) (emphasis added).\n\nThe President promulgated several veterans\xe2\x80\x99 regulations under the Economy\nAct, which, under the terms of the Economy Act, Pub. L. No. 73-2, \xc2\xa7 19, 48\nStat. 8, 12(1933), could not be amended by the President after March 20, 1935,\ntwo years after the Economy Act\xe2\x80\x99s enactment.10These regulations authorized the\nAdministrator to establish a complicated priority system for hospital and\ndomiciliary care with service-connected care generally having a higher priority\nthan non-service-connected care. See VA Regulation 6(a), reprinted in notes to\n38 U.S.C. \xc2\xa7 739 (1946). The presidential regulations also stated that the Admin\xc2\xad\nistrator \xe2\x80\x9cmay\xe2\x80\x9d provide certain medical services, although no system of priority\nwas established for these services. See VA Regulation 7(a), reprinted in notes to\n38 U.S.C. \xc2\xa7 739 (1946). Finally, the regulations provided that the Administrator\n\xe2\x80\x9cmay\xe2\x80\x9d \xe2\x80\x9cin his discretion\xe2\x80\x9d reimburse transportation expenses of those benefici\xc2\xad\naries traveling to receive VA covered care. See Executive Order No. 6094,\nsection 111 (March 31, 1933); Executive Order No. 6232, section III (July 28,\n1933); Executive Order No. 6566, paragraph 2 (Jan. 19, 1934).\nSoon after the passage of the Economy Act, Congress became disturbed over\nthe VA\xe2\x80\x99s failure to use all available beds in VA hospitals, see 78 Cong. Rec.\n3288-89 (1934) (remarks of Sen. Steiwer), and added a new clause to \xc2\xa7 706\nspecifically requiring the Administrator to pay for hospital and domiciliary care\n(including transportation) for veterans of any war who were unable to defray the\nexpense of their care or transportation. This provision stated in full:\nThat any veteran of any war who was not dishonorably dis\xc2\xad\ncharged, suffering from disability, disease, or defect, who is in\nneed of hospitalization or domiciliary care, and is unable to\ndefray the necessary expenses therefor (including transportation\nto and from the Veterans\xe2\x80\x99 Administration facility), shall be fur\xc2\xad\nnished necessary hospitalization or domiciliary care (including\ntransportation) in any Veterans\xe2\x80\x99 Administration facility, within\nthe limitations existing in such facilities, irrespective of whether\nthe disability, disease, or defect was due to service. The statement\nunder oath of the applicant on such form as may be prescribed by\nthe Administrator of Veterans\xe2\x80\x99 Affairs shall be accepted as suffi\xc2\xad\ncient evidence of inability to defray.necessary expenses.\n10 We have not examined the constitutional implications of such a process.\n\n733\n\n\x0cPub. L. No. 73-141, \xc2\xa7 29, 48 Stat. 509, 525 (1934) (emphasis added). Unlike\nthe Economy Act which only gave the Administrator \xe2\x80\x9cpermissive authority\xe2\x80\x9d to\nprovide care, this amendment, as its author noted, was \xe2\x80\x9cmandatory in its\nrequirement\xe2\x80\x9d with respect to war veterans when available hospital and domicili\xc2\xad\nary facilities existed. 78 Cong. Rec. 3288-89 (1934) (remarks of Sen. Steiwer)."\nThe courts which interpreted this section uniformly found that, by using the word\n\xe2\x80\x9cshall,\xe2\x80\x9d it required the Administrator to provide hospital care for needy war\nveterans under the specified circumstances. See United States v. St. Paul Mercury\nIndemnity C o ., 238 F.2d 594, 596 (8th Cir. 1956); United States v. Alperstein,\n183 F. Supp. 548, 550 (S.D. Fla. 1960), a jf d , 291 F.2d 455 (5th Cir. 1961);\nUnited States v. Petrik, 154 F. Supp. 598, 599 (D. Kan. 1956). The Attorney\nGeneral reached the same conclusion in an opinion for the President in 1934. See\n37 Op. Att\xe2\x80\x99y Gen. 551, 557 (1934). Apparently in response to the 1934 amend\xc2\xad\nment, the President amended the presidential regulation on veterans\xe2\x80\x99 benefits to\nprovide that transportation \xe2\x80\x9cwill\xe2\x80\x9d be provided for persons traveling to and from a\nVA facility for hospital or domiciliary care if they were unable to defray the\nnecessary expense. See Executive Order No. 6775, paragraph 2 (June 30,1934).\nDespite its mandatory language, however, the 1934 amendment does not\nappear to have required the Administrator to change his system of priority for\naccess to VA care. Under that system, care for service-connected disabilities was\ngiven priority over non-service-connected care, even though veterans with\nservice-connected disabilities might be able to defray the cost of their care, and\nveterans with non-service-connected medical problems might not. The author of\nthe amendment stated that the purpose of the amendment was to ensure that\nexcess beds in VA hospitals did not remain vacant while indigent veterans could\nnot obtain medical care. He expressed no intent to end the system of priority to\nmedical care that had generally given veterans with service-connected injuries\nfirst calling on VA medical care since 1917. See note 11, supra. The Executive\nBranch apparently adopted this interpretation of the amendment, for the Presi\xc2\xad\ndent retained the system of priority to care established under the presidential\nregulations, see VA Regulation 6(a), reprinted in notes to 38 U.S.C. \xc2\xa7 739\n(1946), and the Attorney General did not find the system to be inconsistent with\nthe requirements of the amendment. See 37 Op. Att\xe2\x80\x99y Gen. 551 (1934). Indeed,\ncongressional committees overseeing the operations of the VA during this period\nexplicitly approved of the system of priority established by the President. See VA\n11 The Senator also noted:\nIt occurs to us that there is no objection at all to making mandatory the furnishing of hospital\ntreatment within the limitations of existing facilities when the United States has the facilities and the\npersonnel to furnish the service and when there are indigent sick veterans unable to care for\nthemselves, who, if they are not cared for through the agencies of the United States Government,\nmust be cared for by charity in private hospitals or in Stale and other local institutions.\nWe hope that the Senate will take favorable action so as to make mandatory the use of these vacant\nbeds. There are now some 7,000 vacant beds in these facilities Prior to the liberalization of Veterans\xe2\x80\x99\nAdministration policy and to the use o f the facilities for the C .C .C . and other Federal agencies, there\nwere nearly 13,000 vacant beds, made vacant by the drastic restrictions under the Economy Act. The\nobject of this proposal is to bring about the utilization in behalf of sick and indigent soldiers of these\navailable unused facilities.\n78 Cong. Rec. 3289 (1934)\n\n734\n\n\x0cLegislative Background Study at 4029-31. Thus, the 1934 amendment does not\nappear to have limited the ability of the Administrator to give those needing\nservice-connected care first access to VA facilities.\nThe final statute passed prior to the adoption of the 1957 Act was a predecessor\nprovision of \xc2\xa7 111, and was principally intended to permit the Administrator to\nsubstitute a mileage allowance for reimbursement of actual costs. The Comp\xc2\xad\ntroller General found in a 1938 opinion solicited by the VA that the VA did not\nhave the authority to substitute a mileage allowance for repayment of actual costs\nfor beneficiary travel. See Comp. Gen. Op. A-98336 (Oct. 11, 1938). The\nAdministrator sought12 and obtained passage of this provision to give him that\nauthority. See 38 U.S.C. \xc2\xa7 76 (1946).13\nThus, in 1957, the statutory framework can be summarized as follows: The\nAdministrator was authorized to provide hospital care, domiciliary care, and\nmedical services for any veteran. When extra beds were available in VA hospitals\nor domiciliary facilities, the Administrator was required, after care had been\nprovided for service-connected disabilities, to use the remaining facilities to\nprovide care for war veterans unable to defray the necessary expenses. Finally,\nwhen the Administrator did provide hospital or domiciliary care, he was required\nto reimburse the transportation expenses of those unable themselves to defray\nsuch expenses.\nB. 1957 Act\n\nWith the passage of the 1957 Act the veterans\xe2\x80\x99 provisions in Title 38 were\nrecodified and \xc2\xa7\xc2\xa7 76 and 706 were replaced with new \xc2\xa7\xc2\xa7 2510, 2512, and 2121\nadopting the permissive language now used in \xc2\xa7\xc2\xa7 610, 612, and 111, respec\xc2\xad\ntively. See Pub. L. No. 85-56, \xc2\xa7\xc2\xa7 510,512,2101,71 Stat. 83,111,112,154-55\n(1957). Although the legislative history of the Act clearly demonstrates, as we\nnoted above, that Congress did not intend to make any substantive changes in the\nprovision of veterans\xe2\x80\x99 benefits, except for several explicit changes not relevant\nhere,14the recodification eliminated the word \xe2\x80\x9cshall,\xe2\x80\x9d but retained the permissive\ntone of the original portion of \xc2\xa7 706. The new provisions\xe2\x80\x94 \xc2\xa7\xc2\xa7 2510, 2512,\n2121\xe2\x80\x94 stated that the Administrator \xe2\x80\x9cmay\xe2\x80\x9d furnish hospital care, domiciliary\ncare, medical services, and transportation payments to the same groups of\nveterans to which he had previously been required to provide care and transporta\xc2\xad\ntion under \xc2\xa7 706. Thus, Congress used the term \xe2\x80\x9cmay\xe2\x80\x9d in the new statute to cover\nthe care of groups to which the Administrator clearly had previously been\nrequired to provide care, as well as to the groups to which he clearly had not been\n12 See S. Rep No. 920, 76th Cong., 1st Sess. 2 (1939) (quoting VA Administrator\'s statement that bill "has been\nprepared with a view o f securing authorization to provide by regulation for an allowance on a mileage basis in lieu of\nexpense of such travel including necessary expense for mea[l]s and lodging\xe2\x80\x9d) See also H R Rep No 1579,76th\nCong , 3d Sess. 1-3 (1940).\n13 Pub L. No 76-432, 54 Stat. 49 (1940). The Act also provided that payment of mileage allowance could be\nmade before completion of travel and that "when any such person requires an attendant other than an employee of the\nVeterans\xe2\x80\x99 Administration for the performance of such travel, such attendant may be allowed expenses of travel upon a\nsimilar basis \xe2\x80\x9d Id at 50.\n14 See note 9, supra\n\n735\n\n\x0crequired to provide care. The basic language of \xc2\xa7 76, which stated that the\nAdministrator \xe2\x80\x9cmay\xe2\x80\x9d pay the actualjcosts or per mile costs of veterans traveling\nfor examination or care, was also incorporated in a new \xc2\xa7 2121.\nCongress\xe2\x80\x99 intent in using the word \xe2\x80\x9cmay\xe2\x80\x9d in the 1957 Act is certainly not selfevident. Each alternative interpretation of this language finds some element of the\nlegislative history or statutory language which arguably does not support it. In\nlight of this ambiguity, however, the legislative history, in our view, is not\nsufficiently compelling to contradict the plain language of the statute, and,\nindeed, can be read generally to support a permissive interpretation.\nFirst, the legislative history o f all of these provisions reflects one overwhelm\xc2\xad\ning fact\xe2\x80\x94 the Administrator must have wide discretion to set priorities and\nbalance resources in the provision of medical benefits for veterans. Since the\npassage of the World War Veterans Act in 1924, veterans\xe2\x80\x99 facilities and resources\nhave never matched the needs o f all of those who were eligible for care, thereby\nnecessitating that the delivery o f care would be largely discretionary.15This need\nfor administrative discretion is also reflected in the ubiquitous provision that care\ncan only be supplied \xe2\x80\x9cwithin the limits of Veterans\xe2\x80\x99 Administration facilities.\xe2\x80\x9d\nAlthough Congress did limit this administrative discretion somewhat by passing\nthe 1934 amendment to the Economy Act, the amendment appears to have been\nintended merely to ensure that excess VA beds were used, and not to limit the\nAdministrator\xe2\x80\x99s overall authority to balance resources and priorities for care. In\nlight of this history of general administrative discretion, it is reasonable to\nassume that, by using the word \xe2\x80\x9c may\xe2\x80\x9d in the 1957 Act, Congress intended to\npermit the Administrator to engage in a general balancing of resources with\nrespect to medical and transportation expenses.\nSecontLCongress\xe2\x80\x99 announced intention in passing the 1957 Act\xe2\x80\x94 not to alter\nthe substantive provisions on veterans\xe2\x80\x99 benefits\xe2\x80\x94cannot be taken at face value.\nDespite the general statement o f purpose, the text of the 1957 Act clearly reveals\nthat Congress not only removed the mandatory language in \xc2\xa7 706, but also\nterminated the eligibility for certain categories of veterans. For example, \xc2\xa7 706\nhad given the Administrator the authority to cover hospital and domiciliary care\nfor non-service-connected injuries, even though the veterans had the money to\ndefray the expense. See also VA Regulation 6(a)(1)(f), reprinted in notes to 38\nU .S.C . \xc2\xa7 739 (1946). Section 2510 (renumbered to current \xc2\xa7 610 by the 1957\nAct), however, limited coverage to those who were receiving service-connected\ncare or who were unable to defray the medical expense.\nThird, Congress must be charged with knowledge that, by removing the\nmandatory language in \xc2\xa7 706 and adopting the permissive word \xe2\x80\x9cmay\xe2\x80\x9d in\n\xc2\xa7\xc2\xa7 2510 and 2512, these provisions were susceptible to the natural interpretation\nof the term to give the Administrator permissive authority. Before the 1957\ncodification, Congress had expressly distinguished in \xc2\xa7 706 between the man\xc2\xad\ndatory use of the word \xe2\x80\x9cshall,\xe2\x80\x9d as adopted in the 1934 amendment, and the\n15 A sim ilar system of priority to medical services was statutorily mandated in 1976 amendments lo \xc2\xa7 612. See\nPub. L. No. 94-581, \xc2\xa7 103(a)(8), 90 Stat. 28 4 2 . 2845 (1976)\n\n736\n\n\x0cpermissive language in the Economy Act\xe2\x80\x94 a distinction which was recognized\nby the courts and the Attorney General. The President had also amended the\npresidential veterans\xe2\x80\x99 regulations on transportation from \xe2\x80\x9cmay\xe2\x80\x9d to \xe2\x80\x9cwill\xe2\x80\x9d appar\xc2\xad\nently in response to this change. Id. Thus, when Congress chose to delete the\nword \xe2\x80\x9cshall\xe2\x80\x9d in 1957 and employ the permissive term \xe2\x80\x9cmay,\xe2\x80\x9d Congress must be\npresumed to have understood the significance of its choice of terms. See 2A, C.\nSands, Sutherland Statutory Construction \xc2\xa7 51.02 (\xe2\x80\x9cif words used in a prior\nstatute to express a certain meaning are omitted, it will be presumed that a change\nof meaning was intended\xe2\x80\x9d) (footnote omitted).\nFinally, to interpret these provisions to require the Administrator to reimburse\nthe covered transportation costs of eligible beneficiaries would lead to an unlikely\nresult. If the Administrator lacks the facilities to provide all the care specified in\nthe statute, a situation which the legislative history reveals to be the usual\ncircumstance, he has explicit authority, by virtue of the clause \xe2\x80\x9cwithin the limits\nof Veterans\xe2\x80\x99 Administration facilities,\xe2\x80\x9d to allocate resources between classes of\nveterans. An interpretation that the Administrator is required to make transporta\xc2\xad\ntion payments to beneficiaries traveling to receive medical benefits, however,\nwould protect transportation services at the expense of medical services, hospital\ncare, and domiciliary care. In a situation where the Administrator lacks sufficient\nfunds to cover all medical and transportation services, he would be required to\nreduce hospital care, domiciliary care, and medical services to a level that would\nensure that persons receiving medical benefits received all covered transportation\nreimbursement. Thus, conceivably, this interpretation would require the Admin\xc2\xad\nistrator to deny medical benefits to some eligible veterans in order to provide\nmedical benefits and transportation benefits to a smaller number of eligible\nveterans.\nThus, while the issue is not free from doubt, the legislative history surrounding\nCongress\xe2\x80\x99 adoption of the permissive language now contained in \xc2\xa7\xc2\xa7 610 and 612\ngenerally supports the conclusion that Congress did not intend to require the\nAdministrator to reimburse all transportation costs of VA beneficiaries traveling\nto receive covered care. Certainly, nothing in the legislative history suggests that\nan interpretation of these provisions as discretionary leads to \xe2\x80\x9c \xe2\x80\x98absurd results\xe2\x80\x99 or\nconsequences obviously at variance with the policy of the enactment as a whole.\xe2\x80\x9d\nUnited States v. Rutherford, 442 U.S. 544, 552 (1979) (citations omitted).\n\nIII. Legislative Ratification\nHaving concluded that the legislative history prior to 1957 does not rebut the\nplain meaning of the language of these provisions, we still must explore the VA\xe2\x80\x99s\nargument that the VA has consistently interpreted the relevant provisions since\n1957 to mandate travel reimbursement and that Congress has been fully aware of\nthis view. Although not stated explicitly, the VA is apparently suggesting that\nCongress has ratified the VA\xe2\x80\x99s interpretation.\n\n737\n\n\x0cA . Requirements fo r Finding a Legislative Ratification\n\nLegislative ratification has generally served as a device for resolving ambigu\xc2\xad\nities in statutory language. The principle is an outgrowth of the related concept\nthat the well-reasoned interpretation of a statute by the agency charged with its\nenforcement is entitled to great deference. See, e.g ., Red Lion Broadcasting Co.\nv. Federal Communications Commission, 395 U.S. 367, 381 (1969); Udall v.\nTollman, 380 U.S. 1, 16(1965). When the agency\xe2\x80\x99s interpretation of a statute has\nbeen publicly conveyed to members and committees of Congress, see, e.g., Haig\nv. Agee, 453 U.S. 280, 299 (1981); Securities and Exchange Commission v.\nSloan, 436 U.S. 103, 121 (1978);Z u b e r\\. Allen, 396 U.S. 168, 193-94(1969),\nand Congress has failed to challenge the agency\xe2\x80\x99s position in circumstances\nsuggesting adoption of it, see, e .g ., H a ig \\. Agee, 453 U.S. at 300-301; Red Lion\nBroadcasting Co. v. Federal Communications Commission, 395U.S. at 381-82;\nZem el v. Rusk, 381 U .S. 1, 11-12 (1965), the courts have \xe2\x80\x9cheld [the legislative\nacquiescence] to constitute persuasive evidence that that interpretation is the one\nintended by Congress.\xe2\x80\x9d Zemel v. Rusk, 381 U.S. at 11 (footnote omitted).\nIn light of the foregoing principles, those attempting to establish a con\xc2\xad\ngressional ratification of the administrative construction of the veterans\xe2\x80\x99 benefit\nprovisions with respect to beneficiary travel carry a heavy burden. First, the\nlanguage of the relevant provisions is not facially ambiguous. The Supreme\nCourt has ordinarily found a legislative ratification of an administrative inter\xc2\xad\npretation only where the agency has construed an ambiguous statute. See Se\xc2\xad\ncurities and Exchange Commission v. Sloan, 436 U.S. at 121. Generally speak\xc2\xad\ning, \xe2\x80\x9cadministrative practice does not avail to overcome a statute so plain in its\ncommands as to leave nothing for construction.\xe2\x80\x9d Norwegian Nitrogen Products\nC o. v. United States, 288 U.S. 294, 315 (1933) (Cardozo, J.). See F.M.C. v.\nSeatrain Lines, 411 U.S. 726, 745 (1973); United States v. Southern Ute\nIndians, 402 U.S. 159, 173 n.8 (1971); Estate c f Sanford v. Commissioner c f\nInternal Revenue, 308 U.S. 39, 52 (1939). Although we would not exclude the\npossibility that Congress could ratify an interpretation contrary to the ordinary\nmeaning of a statute, cf. Saxbe v. Bustos, 419U .S .65,74(1974); United States v.\nM idw est O il C o ., 236 U.S. 459 (1915), we believe the burden upon those seeking\nto demonstrate Congress\xe2\x80\x99 ratification in such a circumstance is demonstrably\ngreater.\nSecond, the Administrator\xe2\x80\x99s longstanding practice of reimbursing such costs is\nconsistent with either interpretation of the statute, namely, that he is required to\nreimburse transportation costs o r that he has authority to terminate such pay\xc2\xad\nments, but has simply chosen not to exercise his discretion to do so. Thus, this\nsituation is distinguishable from the facts of most ratification cases where the\nactions of the agency are inconsistent with the alternative construction and thus\ncan be said to put Congress on notice that it must challenge the agency\xe2\x80\x99s view and\namend the statute if it disagrees with the agency\xe2\x80\x99s interpretation. See, e.g ., Red\nLion Broadcasting Co. v. Federal Communciations Commission, 395 U.S. at\n377-379; Zem el v. Rusk, 381 U .S. at 10-11; Kent v. Dulles, 357 U.S. 116,\n738\n\n\x0c127-128 (1958). B u tc f Haig v. Agee, 453 U.S. at 302-303. Congress\xe2\x80\x99 failure to\nchallenge the administrative construction in the present situation, therefore,\nmight not evidence an acceptance of the Administrator\xe2\x80\x99s legal position, but\nmerely of the policy decision to reimburse transportation costs.\nFinally, the decisions of the VA which Congress has supposedly ratified do not\nprovide a detailed, persuasive legal analysis of the relevant statutes. The general\ndoctrine deferring to the interpretation of a statute by an administrative agency\nhas far less application where the decisions of the agency lack \xe2\x80\x9cspecific attention\nto the statutory authorization,\xe2\x80\x9d or evidence a lack of \xe2\x80\x9cthoroughness . . . in its\nconsideration\xe2\x80\x9d or \xe2\x80\x9cvalidity of its reasoning.\xe2\x80\x9d Adamo Wrecking Co. v. United\nStates, 434 U .S . 275, 287 n . 5 (1978). See Securities and Exchange Commission\nv. Sloan, 436 U.S. at 117-18. With respect to the reimbursement of travel\nexpenses, the VA originally found in a 1960 opinion that it was required to cover\ncosts for certain veterans because the word \xe2\x80\x9cmay\xe2\x80\x9d in \xc2\xa7 111 should be interpreted\nas mandatory. See Opinion of General Counsel, VA, Aug. 23, 1960. This\nconclusion was based not on an analysis of the legislative history of this\nprovision, but rather on the fact that the VA itself had previously interpreted one\nof its own regulations using the word \xe2\x80\x9cmay\xe2\x80\x9d to be mandatory. Id. at 2. The\nGeneral Counsel also relied in the 1960 opinion on the fact that Congress had, in\nextending medical services to such veterans in a 1960 amendment, included a\ncost estimate of transportation for those obtaining medical services. The opinion\napparently reasons, in a logical non sequitur, that Congress thereby intended to\nrequire transportation costs be covered. Based on the analysis of this 1960\ndecision, the VA has held in later opinions that transportation costs must be\nreimbursed. See Opinion of General Counsel, VA, June 30, 1976; Opinion of\nGeneral Counsel, VA, Dec. 12, 1980. This line of decisions hardly constitutes,\nin our view, the type of attention to statutory authorization and exercise of\nadministrative expertise which normally has provided the basis for judicial\ndeference to an agency\xe2\x80\x99s interpretation and a finding of congressional ratification\nof that construction. While we do not exclude the possibility that Congress could\nratify an administrative interpretation under such circumstances, we believe, in\nlight of the clarity of the statute and the lack of clarity in the VA decisions, that, to\nconstitute ratification of such a construction, Congress\xe2\x80\x99 acceptance of the admin\xc2\xad\nistrative position must, at a minimum, be clear and unambiguous.\nB. Congressional Response to VA\xe2\x80\x99s Statutory Construction\n\nAlthough all of these provisions have been amended numerous times during\nthe period after 1957, on only three occasions, in 1976, 1979, and 1980, when\namendments were made to \xc2\xa7 111, has the authority of the Administrator to cut\ntransportation payments arguably been at issue. Bearing in mind the heavy\nburden upon those claiming that Congress has ratified the administrative inter\xc2\xad\npretation in this case, we do not believe that the history of any of these amend\xc2\xad\nments reflects sufficient evidence of a congressional adoption of the VA\xe2\x80\x99s\nconstruction.\n739\n\n\x0c(i) 1976 Amendment. The first amendment, which was passed in 1976, does\nnot raise a serious question of legislative ratification, and thus we deal with it only\nbriefly here. The 1976 amendment made three changes with respect to benefici\xc2\xad\nary travel reimbursement. First, it amended \xc2\xa7 601 to incorporate, for the first\ntime, the requirements of \xc2\xa7 111 in the definitions of hospital care, domiciliary\ncare, and medical services. See Pub. L. No. 94-581, \xc2\xa7\xc2\xa7 102, 202(b), 90 Stat. at\n2843\xe2\x80\x9444, 2855. Previously, the definition of hospital and domiciliary care in\n\xc2\xa7 601 had merely stated that such care included specified transportation costs,\nand the definition of medical services had not included any specific reference to\ntransportation reimbursement. See 38 U.S.C. \xc2\xa7 601 (1970). Second, the 1976\nAct amended \xc2\xa7 111 to permit the Administrator to require the beneficiary to\nsubmit an annual declaration and certification of his inability to defray travel\nexpenses in order to ensure that reimbursement for travel costs was not paid to\nineligible veterans. See Pub. L. No. 94-581, \xc2\xa7 101,90 Stat. at 2842. Finally, the\n1976 Act added the provision that the Administrator \xe2\x80\x9cshall\xe2\x80\x9d conduct an annual\nstudy of the costs of travel and \xe2\x80\x9cshall\xe2\x80\x9d set the rates of reimbursement based on this\nstudy. See id. at 2 8 4 2 ^ 3 .\nNeither the language nor the legislative history of this Act, which was\ngenerally passed in order to reduce the cost of beneficiary travel, see S. Rep. No.\n1206, 94th Cong., 2d Sess. 56-57, 71, 76-77 (1976), evidence any belief by\nMembers of Congress that the Administrator did not have discretion in reimburs\xc2\xad\ning the travel costs of eligible beneficiaries. To the contrary, although Congress\ndid not specifically consider whether the Administrator could eliminate travel\nreimbursement, the fact that it chose to use the word \xe2\x80\x9cshall\xe2\x80\x9d rather than \xe2\x80\x9cmay\xe2\x80\x9d in\namending \xc2\xa7 111 suggests that it understood \xe2\x80\x9cmay\xe2\x80\x9d was used in its permissive\nsense elsewhere in \xc2\xa7 111. Moreover, as the floor comments on these amendments\nemphasize, these changes were not intended to eliminate the \xe2\x80\x9cAdministrator\xe2\x80\x99s\npresent authority to change the rate\xe2\x80\x9d of reimbursement for transportation. 121\nCong. Rec. 40629 (1975) (remarks of Rep. O \xe2\x80\x99Brien). See also id. (remarks of\nRep. Teague) (bill \xe2\x80\x9cdoes not take away the Administrator\xe2\x80\x99s right or responsibility\nto change the rate\xe2\x80\x9d). Thus, the adoption of this amendment suggests, if anything,\nthat the Administrator has broad discretion in allocating funds to beneficiary\ntravel.\n(ii) 1980 Amendment. The 1980 amendment also does not raise a serious\nquestion of legislative ratification. This amendment was passed in response to the\nCarter Administration\xe2\x80\x99s initial attempt to eliminate reimbursement for benefici\xc2\xad\nary travel under the authority of the Appropriations Act of 1980, Pub. L. No.\n96-86, \xc2\xa7 112, 93 Stat. 656,661 (1979). The Appropriations Act p u tacap o n the\ntotal amount of funds which could be obligated for travel and transportation \xe2\x80\x9cfor\nofficers and employees of the executive branch. . . .\xe2\x80\x9d OMB initially took the\nposition that the Act limited the funds which could be obligated for VA benefici\xc2\xad\nary travel, and thus moved to limit beneficiary travel payments. Ultimately, the\nAdministration agreed not to limit expenditures for beneficiary travel as a result of\nPub. L. No. 96-86. See S. Doc. No. 49, 96th Cong., 2d Sess. 8-9 (1980). In\nresponse to the threatened cutback, however, Congress passed an Act which\n740\n\n\x0cstated that henceforth \xe2\x80\x9c[n]o provision . . . which imposes any restriction or\nlimitation on the availability of funds for the travel and transportation of officers\nand employees of the executive branch\xe2\x80\x9d shall be applicable to veterans obtaining\ntravel expenses under \xc2\xa7 111 \xe2\x80\x9cunless such provision is expressly made applicable\nto the travel of such veterans. . . .\xe2\x80\x9d Pub. L. No. 96-330, \xc2\xa7 406, 94 Stat. 1030,\n1052 (1980), reprinted in notes to \xc2\xa7 111.\nLike the 1976 Amendment, the passage of this provision does not clearly\nconstitute an adoption of the Administrator\xe2\x80\x99s position on beneficiary travel by\nCongress. The only question at issue was the Administrator\xe2\x80\x99s obligation under the\n1980 Appropriations Act or similar acts to reduce the costs of beneficiary travel\nalong with government employee travel. The amendment did not deal with the\nquestion of the Administrator\xe2\x80\x99s authority to reduce travel costs under \xc2\xa7111.\nWe recognize and have carefully considered that during the hearings over the\nproposed cutbacks, two members of the House Committee on Veterans Affairs\nand the representatives of the VA stated, without analysis, that the Administrator\nwas required to reimburse the covered transportation costs of VA beneficiaries in\nthe absence of the budgetary cap. See Letter of Apr. 1, 1980 from Rep. Ray\nRoberts to James McIntyre, Jr., Director, OMB, reprinted in Hearings on VA\nBeneficiary Travel Before the House Subcommittee on Special Investigations c f\nthe Committee on Veterans Affairs, 96th Cong., 2d Sess. 29 (May 21, 1980)\n(Travel Hearings); Travel Hearings at 1 (remarks of Rep. Mottl); id. at 27\n(remarks of Dr. Custis); id. at 32 (remarks of Mr. Coy). This legal issue, however,\n\nwas not the focus of the hearing, nor of the subsequent amendment to \xc2\xa7 111\ndealing with general budget caps on travel expenses. There is no indication,\nmoreover, that Congress as a whole ever considered this issue in passing the\namendment. We cannot find a congressional adoption of the Administrator\xe2\x80\x99s\nposition \xe2\x80\x9cbased only upon a few isolated statements in the thousands of pages of\nlegislative documents,\xe2\x80\x9d especially where that interpretation is \xe2\x80\x9cat odds with the\nlanguage of the section in question and the pattern of the statute as a whole.\xe2\x80\x9d\nSecurities and Exchange Commission v. Sloan, 436 U.S. at 121.\n(iii)\n1979 Amendment. The 1979 amendment to \xc2\xa7 111, which gave the\nAdministrator broad authority to determine by regulation whether recipients were\nable to defray the cost of travel, see P\xe2\x80\x99ib. L. No. 96-151, 201(a), 93 Stat. 1092,\n1093 (1979), raises a more serious question of legislative ratification and thus\nmust be considered in greater detail than the other two changes. In 1979 the\nAdministrator originally proposed that \xc2\xa7 111 be amended to abolish reimburse\xc2\xad\nment of transportation for non-service-connected care, except where a special\nmode of transportation was needed for medical reasons. See S. Rep. No. 177,\n96th Cong., IstSess. 15-16, 52-53 (1979). The Administrator noted in a letter to\nthe Senate that \xe2\x80\x9cthis proposal will result in significant cost savings to the\nGovernment so that limited VA resources may be more effectively utilized\n. . . .\xe2\x80\x9d Letter to Walter Mondale, President, U.S. Senate, from Max Cleland,\nAdministrator, VA, reprinted in S. Rep. No. 177, 96th Cong., 1st Sess. 53\n(1979). In hearings before the committee, officials of the VA appeared to\nconcede, albeit without any legal analysis, that the VA could not bring about\n741\n\n\x0csavings in the travel program without the enactment of its proposal. See Hearings\non VA H ealth Resources and Program Extensions Before the Senate Committee\non Veterans Affairs, 96th Cong., 1st Sess. 64 (1979) (remarks of Dr. Custis,\nDeputy Chief Medical Director, VA). Cf. id. at 70 (enactment of restriction on\nbeneficiary travel would save $39 million dollars).\nThe position adopted by the Senate Veterans Affairs Committee could be read\nto suggest that it agreed with this view. The Committee initially opposed these\nand other cutbacks because \xe2\x80\x9cthe nearly $ 100 mil lion that the VA estimated would\nbe saved if the cost-savings provisions were enacted, would be subtracted from\nthe already strained VA budget.\xe2\x80\x9d S. Rep. No. 177, 96th Cong., 1st Sess. 16\n(1979) (emphasis added). Subsequently, the Senate Committee agreed to report a\nmodified version of the Administration proposal, which reduced the reimburse\xc2\xad\nment of transportation costs for non-service-connected care, but only if the\nAdministration also agreed to use the extra funds reaped from the cost savings for\nthe hiring of additional medical personnel at VA hospitals. See S. Rep. No. 177,\n96th Cong., 1st Sess. 7 (1979). See also 125 Cong. Rec. 15163, 15172, 15175\n(1979) (remarks of Sen. Cranston); 125 Cong. Rec. 15167, 15173 (1979)\n(remarks of Sen. Humphrey). The agreement was necessary, as one Senator\nnoted, because the VA was \xe2\x80\x9cprohibited from enforcing the cost savings unless it\nalso hires the extra medical personnel\xe2\x80\x9d to which it had agreed. 125 Cong. Rec.\n15177-78 (1979) (remarks of Sen. Morgan). See also 125 Cong. Rec. 34985\n(1979) (remarks of Sen. Cranston). The Administrator assented to this bargain\nbecause \xe2\x80\x9c[ejnactment of these provisions [would] free up resources to make\npossible additional VA medical facility staffing . . . .\xe2\x80\x9d Letter of June 15, 1979,\nto Sen. Alan Cranston from Max Cleland, Administrator, VA, reprinted in 125\nCong. Rec. 15163 (1979) (emphasis added). By making such an agreement,\ntherefore, it might be argued that the Senate committee and the Administrator\nrecognized that the Administrator did not have authority to reap these cost savings\nby eliminating reimbursement for beneficiary travel without this amendment.\nUltimately the Administrator acquiesced and adopted the personnel increases\nbefore passage of the amendments, see 125 Cong. Rec. 34985 (1979) (remarks of\nSen. Cranston), and the Senate and House compromise limited even further the\ncutbacks on beneficiary travel which had been adopted by the Senate. See id.\n(rem arks of Sen. Cranston); id . at 34989-90 (Senate-House Report on\nCompromise).\nAlthough the significance of the 1979 legislative history is not free from doubt,\nwe do not believe that this one brief period of bargaining between the Admin\xc2\xad\nistrator and the Senate committee constitutes a ratification by Congress of the\nlegal position of the VA with respect to the reimbursement of travel costs. We\ncannot find in these circumstances sufficient evidence of congressional adoption\nof the VA\xe2\x80\x99s construction of the statutory provisions here in issue. First, there is no\nindication the Senate as a whole or the House agreed with the position of the\nSenate committee. Second, the circumstances of the bargaining process suggest\nthat members of the committee may have been motivated more by a desire to\nsecure concessions from the Administrator on staffing levels under circumstances\n742\n\n\x0cin which they otherwise agreed with the policy of limited travel expenses, than\nany underlying agreement with his legal position. In this regard, we note that\nthere was no discussion or consideration of the legal basis of the Administrator\xe2\x80\x99s\nsupposed obligation to provide transportation payments in the committee report\nor floor comments. Finally, and most importantly, we are aware of no other\noccasion where a congressional report has specifically addressed the authority of\nthe Administrator to elim inate reimbursement for beneficiary travel under\n\xc2\xa7\xc2\xa7 111,610, and 612. In the absence of any sustained and general treatment of\nthis issue or a more specific focus on it, we do not believe that this single period of\nbargaining between the Administrator and the Senate committee can be said to\nrebut the plain words of the statute.\nAccordingly, in light of the plain language of the statute and the lack of\npersuasiveness of the Administrator\xe2\x80\x99s decisions, we conclude that none of these\namendments constitutes a congressional ratification of the VA\xe2\x80\x99s legal position.\n\nIV. Conclusion\nIn summary, we believe the plain language of \xc2\xa7\xc2\xa7 111, 601, 610, and 612\nindicates that the Administrator is not required to reimburse the transportation\ncosts of eligible veterans\xe2\x80\x99 beneficiaries traveling to obtain medical benefits. We\nare reluctant to construe a term which provides discretion to an agency as creating\na mandatory requirement unless there is reasonably strong and persuasive\nevidence that Congress intended to limit both the agency\xe2\x80\x99s discretion and Con\xc2\xad\ngress\xe2\x80\x99 discretion in the appropriations process. The legislative history of these\nprovisions, however, although somewhat confused, generally supports a per\xc2\xad\nmissive interpretation. The history surrounding Congress\xe2\x80\x99 recent amendments to\n\xc2\xa7111, moreover, does not evidence any general and clear congressional accept\xc2\xad\nance of the VA\xe2\x80\x99s position that such payments are mandatory so as to constitute a\ncongressional ratification of this view. Thus, we agree with OMB that the VA has\ndiscretionary authority to determine in what cases it will reimburse the covered\ntransportation expenses of veterans who are eligible to receive such payments\nunder \xc2\xa7\xc2\xa7 111, 601, 610, and 612. We emphasize that our conclusion does not\nrequire the Administrator of the VA to make any changes in pending policies or\npractices. We find only that the language of the relevant statutes does not prevent\nhim from doing it.\nT\n\nheodore\n\nB. O\n\nlson\n\nAssistant Attorney General\nOffice c f Legal Counsel\n\n743\n\n\x0c'


b"January 27, 1977\n\n77-1\n\nMEMORANDUM OPINION FOR A UNITED\nSTATES ATTORNEY\nConflict of Interest\xe2\x80\x94Former United States Attorney\n\nThis letter is to confirm the opinion expressed in a telephone conver\xc2\xad\nsation between this Office and your Office regarding the propriety of\nthe representation of a corporation by a law firm in the case of\n---------------. The question arises because Mr. A, who until recently was\na United States Attorney, is now associated with the law firm. The case\nwas pending in the U.S. Attorney\xe2\x80\x99s Office at the time of Mr. A \xe2\x80\x99s\ndeparture.\nMr. A states in his letter to this Office that he has no present\nrecollection of the case, although he assumes that he reviewed the file\nfor purposes of determining its nature and assigning it to an Assistant\nU.S. Attorney. He also states that he has no recollection of any conver\xc2\xad\nsations with the assistant regarding the case. The assistant informed this\nOffice that he, not Mr. A, signed the complaint and that Mr. A did not\nreceive any confidential information regarding it.\nOn the basis of the facts presented to us, it appears that Mr. A is\npersonally barred by 18 U.S.C. \xc2\xa7 207(b), for one year from the date he\nleft the U.S. Attorney\xe2\x80\x99s Office, from appearing as agent or attorney in\nthe case because it was under his \xe2\x80\x9cofficial responsibility\xe2\x80\x9d (as that term\nis defined in 18 U.S.C. \xc2\xa7 202(b)) during his tenure as U.S. Attorney. But\nthis statutory bar is not imputed to the partners and associates of his\nfirm. It does not appear, however, that Mr. A \xe2\x80\x99s participation in the\nmatter was sufficiently substantial to give rise to the permanent bar in\n18 U.S.C. \xc2\xa7 207(a).\nUnder Disciplinary Rule 9 - 101(B) of the American Bar Association\n(ABA) Code of Professional Responsibility, which we assume is appli\xc2\xad\ncable here, see Local Rule 4(f), a lawyer may not accept private\nemployment in a matter in which he had \xe2\x80\x9csubstantial responsibility\xe2\x80\x9d as\na public employee. The disqualification is generally imputed to the\npartners and associates of the former Government lawyer, see ABA\nCode of Professional Responsibility, D R 5-105(D), although a recent\nopinion of the ABA Committee on Professional Ethics concludes that\n1\n\n\x0cthis imputed disqualification may be waived by the Government in\ncertain situations if appropriate safeguards are followed. See ABA\nForm al Opinion 342, 62 A.B.A.J. 517. The Department of Justice in\ngeneral supports an interpretation of the Code o f Professional Responsi\xc2\xad\nbility that permits the Government to waive the imputed disqualifica\xc2\xad\ntion in appropriate cases. Safeguards adopted by the Department in\nsuch cases in the past have included: (1) an undertaking by the firm and\nby the disqualified attorney that such attorney would have no personal\ninvolvement with the matter and would not discuss it within the firm;\n(2) a reasonable basis for concluding that the undertaking could be\nobserved, considering such factors as the competence of the remaining\nmembers of the firm to handle the matter and the size of the firm; (3) a\nrequirement that in general the representation predate the hiring of the\ndisqualified lawyer, so as to eliminate any possible suggestion that the\nfirm was retained because of his presence; (4) and undertaking that the\ndisqualified attorney will not share in any fees generated by the repre\xc2\xad\nsentation; and (5) disclosure to the court or agency before which the\nm atter is pending.\nThe D epartm ent\xe2\x80\x99s position is that the questions of Mr. A \xe2\x80\x99s personal\ndisqualification under DR 9-101(B) and whether the Government\nshould waive the imputed disqualification of the entire law firm if Mr.\nA is barred under that provision, are essentially for your Office to\ndetermine, in conjunction with the Federal agency involved\xe2\x80\x94or for the\ncourt, on a motion to disqualify. However, we offer the following\nopinion on the m atter for your information.\nBecause Mr. A apparently intends to disqualify himself from personal\nparticipation in the case in any event, the applicability of D R 9-101(B)\nto him is relevant only in deciding either that the Government must\ngrant a formal waiver to permit other members of Mr. A \xe2\x80\x99s firm to\nrepresent the corporation in the case or, on the other hand, that there is\nno basis under the Code of Professional Responsibility to object to\nrepresentation by other members of the firm.\nFormal Opinion 342 of the ABA Committee on Professional Ethics,\nto which Mr. A refers in his letter, takes a rather narrow view of what\nconstitutes the \xe2\x80\x9csubstantial responsibility\xe2\x80\x9d that gives rise to personal\ndisqualification under DR 9-101(B). Under the ABA interpretation, in\norder to be disqualified under D R 9 - 101(B), the former Government\nlaw yer must either have been personally involved in the investigative\nor deliberative processes regarding the m atter \xe2\x80\x9cto an important, materi\xc2\xad\nal degree\xe2\x80\x9d o r have had a \xe2\x80\x9cheavy responsibility\xe2\x80\x9d for the matter, which\nsuggests that he probably did become so involved. See 62 A.B.A.J. at\n520. Under this standard, DR 9-101(B) may well be wholly inapplica\xc2\xad\nble here.\nH owever, the Department has taken the position that the term \xe2\x80\x9csub\xc2\xad\nstantial responsibility\xe2\x80\x9d should be given a broader reading, requiring that\na G overnm ent attorney at the supervisory level be charged with such\n2\n\n\x0cresponsibility for all but the most routine matters under his jurisdiction\neven if he did not participate personally in them. In our view, this\nconstruction of D R 9-101(B) is necessary to avoid the appearance of\nimpropriety in an attorney\xe2\x80\x99s representing a private party in a matter in\nwhich he previously had the power to affect the Government\xe2\x80\x99s posi\xc2\xad\ntion. See I. Kaufman, \xe2\x80\x9cThe Former Government Attorney and the\nCanons of Professional Ethics,\xe2\x80\x9d 70 Harv. L. Rev. 657,666 (1957). We\nbelieve that the factors to be considered in determining whether from\nan ethical standpoint a former Government attorney may personally\nrepresent a party in a matter that was under his official responsibility,\nbut in which he did not participate personally, include: (1) whether his\nrelationship to the matter was merely formal; (2) whether the subject\nmatter was routine and involved no policy determination or was not\notherwise o f particular significance; and (3) whether there were inter\xc2\xad\nvening levels of responsibility or other indications that the matter was\nnot of a type with which the attorney would or should ordinarily have\nhad personal involvement. See, generally, Kesselhaut v. United States,\n(March 29, 1976), slip opinion at 24-29 rev'd on other grounds (May 18,\n1977); Opinion 889 of the Committee on Professional and Judicial\nEthics o f the Association of the Bar of the City of New York. For\nexample, if Mr. A\xe2\x80\x99s apparent assignment of the case to his assistant in\neffect constituted a determination by him that the complaint should be\nfiled as requested by the Federal agency, this would suggest that Mr. A\ndid have \xe2\x80\x9csubstantial responsibility\xe2\x80\x9d in the case. Indeed, if this were the\nfact, he would in our view have participated personally and substantial\xc2\xad\nly in the case and be barred under 18 U.S.C. \xc2\xa7 207(a).\nAs pointed out above, whether or not Mr. A is personally barred\nunder the Department\xe2\x80\x99s construction of D R 9-101(B) is a factual deter\xc2\xad\nmination for your Office to make in light of the foregoing. If he is, he\nmust forgo any share of the fees in the case as a condition of his firm\xe2\x80\x99s\nhandling the case. O f course, such a waiver decision is ultimately for\nyour Office to make as well.\nIf Mr. A \xe2\x80\x99s personal disqualification instead derives from 18 U.S.C.\n\xc2\xa7 207(b) alone, the only restriction on his receiving fees is the prohibi\xc2\xad\ntion in 18 U.S.C. \xc2\xa7 203 against sharing in compensation received by the\nfirm for services rendered by its members before a Government agency\n(but not a court) in this or other cases during the time that he was U.S.\nAttorney; there would be no prohibition against Mr. A \xe2\x80\x99s sharing in fees\nfor services still to be performed in the case.\nL eon U lm an\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n3\n\n\x0c"