b'Fiduciary Obligations Regarding Bureau of Prisons\nCommissary Fund\n31 U.S.C. \xc2\xa7 1321 and its accompanying Department of Justice regulations do not impose a fiduciary\nobligation on the Bureau of Prisons to expend Commissary Fund moneys only in accordance with\nthe terms o f the Commissary Fund trust.\nM a y 22, 1995\nM e m o r a n d u m O p in io n f o r t h e A s s is t a n t A t t o r n e y G e n e r a l\nC iv il D iv is io n\n\nYou have asked whether the Office of Legal Counsel continues to adhere to\nthe analysis of the \xe2\x80\x9c Commissary fund, Federal prisons\xe2\x80\x9d (\xe2\x80\x9c Commissary Fund\xe2\x80\x9d )\ncontained in the Memorandum for Norman Carlson, Director, Bureau of Prisons,\nfrom Samuel A. Alito, Jr., Deputy Assistant Attorney General, Office of Legal\nCounsel, Re: Disposition o f Income From Prison Vending Machines Under the\nRandolph-Sheppard Act (Mar. 25, 1986) (\xe2\x80\x9c Randolph-Sheppard Memorandum\xe2\x80\x9d ).\nSee Memorandum for Walter Dellinger, Assistant Attorney General, Office of\nLegal Counsel, from Frank W. Hunger, Assistant Attorney General, Civil Division,\nRe: Revision o f Previous Request fo r Informal Legal Opinion Concerning the\nLimitations on Expenditures from the Bureau of Prisons Commissary Fund at 2\n\n(Apr. 13, 1995).\nThe Randolph-Sheppard Memorandum states that because the Commissary Fund\nis classified as a \xe2\x80\x9c trust\xe2\x80\x9d account under 31 U.S.C. \xc2\xa7 1321(a)(22), the Bureau of\nPrisons (\xe2\x80\x9c BOP\xe2\x80\x9d ) has the power to expend funds in the account only in a fiduciary\ncapacity. Randolph-Sheppard Memorandum at 4. Applying general principles of\ntrust law, it concludes that income from prison vending machines which would\notherwise accrue to the Commissary Fund is not subject to the income-sharing\nprovisions of section 7 of the Randolph-Sheppard Act. See Randolph-Sheppard\nAct Amendments of 1974, Pub. L. No. 93-516, sec. 206, \xc2\xa77, 88 Stat. 1622, 1627\n(codified as amended at 20 U.S.C. \xc2\xa7 107d-3).\nBecause the Randolph-Sheppard Memorandum mischaracterizes the Com\xc2\xad\nmissary Fund as a common law trust and suggests that, as trustee, the BOP has\na fiduciary obligation to federal prison inmates to expend Commissary Fund\nincome in accordance with the terms of the trust, see Randolph-Sheppard Memo\xc2\xad\nrandum at 4, 10, we disavow those aspects of the opinion which analyze the Com\xc2\xad\nmissary Fund under general trust law principles. Instead, for the reasons stated\nbelow, we conclude that 31 U.S.C. \xc2\xa71321 and its accompanying Department of\nJustice (\xe2\x80\x9c DOJ\xe2\x80\x9d ) regulations do not impose a fiduciary obligation on the BOP\nto expend Commissary Fund moneys pnly in accordance with the terms of the\nCommissary Fund.\n127\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nAlthough we recognize that the trust fund analysis contained in our RandolphSheppard Memorandum was based to some degree on our interpretation of a\nmemorandum attachment to a Letter for Honorable Elmer B. Staats, Comptroller\nGeneral of the United States, General Accounting Office, From Frank M.\nWozencraft, Assistant Attorney General, Office of Legal Counsel, Re: Set-Offs\nAgainst Prisoners\xe2\x80\x99 Trust Funds (Aug. 23, 1968) (\xe2\x80\x9c Prisoners\xe2\x80\x99 Trust Fund Memo\xc2\xad\nrandum\xe2\x80\x9d ), we nonetheless reaffirm the analysis presented in the Prisoners\xe2\x80\x99 Trust\nFund Memorandum. However, we limit the memorandum\xe2\x80\x99s applicability solely\nto those \xe2\x80\x9c trust funds\xe2\x80\x9d established under 31 U.S.C. \xc2\xa7 1321 that do impose fiduciary\nobligations on the United States.\nThis memorandum does not question the Randolph-Sheppard Memorandum\xe2\x80\x99s\nconclusion that the income-sharing provisions of section 7 of the RandolphSheppard Act do not apply to income from prison vending machines which would\notherwise accrue to the Commissary Fund, only the reasoning by which the\nconclusion was reached.\nI. BACKGROUND\nDOJ established the prison commissary system in 1930 to sell to prison inmates\narticles not regularly provided by federal prisons, such as toothpaste, soap, stamps,\narts and crafts, newspapers and magazines. Department of Justice Circular No.\n2126, *Jf][9\xe2\x80\x9411 (Aug. 1, 1930). At the same time, it established the Commissary\nFund in order to finance the purchase of the articles to be sold in the commissaries,\npay the salaries of commissary employees, and retain certain commissary system\nprofits in a capital fund for the future operation of the commissaries. Id. CH 9,\n14, 15, 18.\nIn 1930, DOJ also established an Inmate Trust Fund at each federal prison,\nwherein inmates were permitted to deposit money brought into the prison upon\narrival, money sent to them while in prison and money earned while incarcerated.\nId. TK2-4. The Inmate Trust Fund was intended to operate in conjunction with\nthe commissary. When purchasing articles from the commissaries, inmates were\nrequired to have their Inmate Trust Fund accounts debited in the amount of such\narticles.\nIn addition, DOJ created a \xe2\x80\x9c Welfare Fund\xe2\x80\x9d in 1930, wherein \xe2\x80\x9c a portion of\nthe [commissary] profits\xe2\x80\x9d could, upon \xe2\x80\x9c written order of the Warden\xe2\x80\x9d and with\nthe \xe2\x80\x9c approval of the Director, Bureau of Prisons,\xe2\x80\x9d be credited and disbursed \xe2\x80\x9c for\nany purpose accruing to the benefit of the inmate body, as a whole, such as amuse\xc2\xad\nments, education, library, or general welfare work.\xe2\x80\x9d Id.\n17-19.\nDOJ adopted rules pertaining to the management, use and operation of these\nactivities and functions in the Circular establishing them. These rules afforded\nthe BOP wide-ranging authority to promote its peneological and administrative\ninterests. See, e.g., id. tJ[23 (\xe2\x80\x9c The Warden or Superintendent of an institution may\n128\n\n\x0cFiduciary Obligations Regarding Bureau o f Prisons Commissary Fund\n\ndeny or limit any inmate as to the privilege of purchasing from the \xe2\x80\x98Institutional\nCommissary.\xe2\x80\x99 \xe2\x80\x9d ); id. \xe2\x80\x98fllO (\xe2\x80\x9c Only those articles which from time to time shall\nbe authorized by the Director, Bureau of Prisons, may be procured through the\n\xe2\x80\x98Institutional Commissary\xe2\x80\x99 for the use of inmates.\xe2\x80\x9d ); id. *1111 (\xe2\x80\x9c An approved list\nof newspapers, books and magazines, for distribution through the \xe2\x80\x98Institutional\nCommissary,\xe2\x80\x99 shall be issued from time to time by the Warden or Superintendent\nof the institution.\xe2\x80\x9d ). The rules also stressed that \xe2\x80\x9c [n]o inmate shall be entitled\nto . . . earnings derived through operation of the \xe2\x80\x98Institutional Commissary.\xe2\x80\x99 \xe2\x80\x9d\nId. 1121.\nNew rules, promulgated in 1932, regarding the Commissary Fund and related\naccounts and functions, see Department of Justice Circular No. 2244 (Jan. 1, 1932)\n(\xe2\x80\x9c Circular No. 2244\xe2\x80\x9d ), continued to vest the BOP with wide-ranging authority.\nThe operating expenses and employee salaries associated with the commissaries\ncontinued to be financed through the Commissary Fund. Id. TRI19, 34. The BOP\nretained authority to determine the articles sold in the commissaries, id. %23, the\nreading materials available for distribution through the commissaries, id. H25, and\nthe inmates permitted to exercise commissary privileges. Id. ^21. Moreover, the\nBOP retained the authority to determine whether and how much of the profits\nfrom commissary operations would be distributed to the Welfare Fund to be dis\xc2\xad\nbursed for the benefit of the inmate population as a whole. Id. <]ffll6, 41.\nThe amended rules continued to deny inmates any entitlement to commissary\nearnings. Id. %22. In addition, the separate account for inmates\xe2\x80\x99 personal funds\nwas also retained, although it was renamed the \xe2\x80\x9c Prisoners\xe2\x80\x99 Trust Fund.\xe2\x80\x9d Id. <]H[1,\n2, 5. Further, the amended rules provided for the deposit of the Commissary Fund\nand Prisoners\xe2\x80\x99 Trust Fund in the United States Treasury. Id. <fll2.1\nCongress first recognized the existence of the Commissary Fund in its fiscal\nyear 1933 Department of Justice appropriation. In response to a request from\nAttorney General William D. Mitchell, Congress authorized DOJ to retain and\nuse proceeds from the operation of the commissaries to pay commissary\nemployees\xe2\x80\x99 salaries. See Act of July 1, 1932, ch. 361, 47 Stat. 475, 493.2\n\xe2\x80\xa2Although the BOP occasionally updates its interpretation o f Circular No. 2244, the purpose o f the Prisoners*\nTrust Fund and Commissary Fund \xe2\x80\x9c remains essentially the same as when created: . . . To maintain inmates\xe2\x80\x99 monies\n. . . while they are incarcerated\xe2\x80\x9d and \xe2\x80\x9c [t]o provide inmates the privilege o f obtaining merchandise not provided\nby the [BOP] or o f a different quality.\xe2\x80\x9d Federal Bureau o f Prisons, U.S. Department o f Justice, Trust Fund M anage\xc2\xad\nment Manual, Program Statem ent 4500.3, ch. 4501 (1989).\n2 In requesting such authority, Attorney General Mitchell explained that the new commissary system, and the\nauthority to pay the salaries o f commissary employees through it, \xe2\x80\x9c reduces the possibilities for contraband, assists\nin the control o f the purchase o f extra articles by prisoners, and . . . will save the Government a substantia] sum\no f m oney.\xe2\x80\x9d Letter for Hon. William B. Oliver, Chairman, Subcommittee on Appropriations, from William D.\nMitchell, Attorney General at 1 (Jan. 27, 1932), reprinted in Department o f Justice Appropriation Bill for 1933:\n\nHearing before the Subcomm. on the Departments o f State, Justice. Commerce, and Labor Appropriation o f the\nHouse Comm. on Appropriations, 72d Cong. 484 (1932) ( \xe2\x80\x9c 1932 H earings\xe2\x80\x9d ). Similarly, referring to the personal\nfunds of inmates located in their individual trust accounts, a BOP statement accompanying the Attorney G eneral\xe2\x80\x99s\nstatement declared that \xe2\x80\x9c [t]he establishment o f so-called commissaries is not solely for the purpose of supplying\nprisoners with special articles not furnished by the Government. It is rather an incident to the adoption o f m easures\nfor perfecting the control and management o f money owned by prisoners but in the custody o f prison officials.\xe2\x80\x9d\nContinued\n\n129\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nIn 1934, as part of the Permanent Appropriation Repeal Act, Congress classified\nthe Commissary Fund and the Prisoners\xe2\x80\x99 Trust Fund as \xe2\x80\x9c trust funds\xe2\x80\x9d and pro\xc2\xad\nvided that \xe2\x80\x9c [a]ll moneys accruing to these funds are hereby appropriated, and\nshall be disbursed in compliance with the terms of the trust.\xe2\x80\x9d See Permanent\nAppropriation Repeal Act, ch. 756, \xc2\xa7 20(a), 48 Stat. 1224, 1233 (1934) (originally\ncodified at 31 U.S.C. \xc2\xa7725s(a) (1934)). The statutory language pertaining to the\nCommissary Fund and Prisoners\xe2\x80\x99 Trust Fund has remained essentially unchanged\nsince 1934. Today the funds are listed as \xe2\x80\x9c trust funds\xe2\x80\x9d at 31 U.S.C. \xc2\xa7 1321(a)(22)\nand (a)(21).3 Pursuant to 31 U.S.C. \xc2\xa7 1321(b)(1), moneys \xe2\x80\x9c received by the United\nStates Government as trustee shall be deposited in an appropriate trust fund\naccount in the Treasury. . . . [A]mounts accruing to these funds. . . are appro\xc2\xad\npriated to be disbursed in compliance with the terms of the trust.\xe2\x80\x9d 4\nEL LEGAL ANALYSIS\nAt common law, \xe2\x80\x9c [a] trust. . . is a fiduciary relationship with respect to prop\xc2\xad\nerty, subjecting the person by whom the title to the property is held to equitable\nduties to deal with the property for the benefit o f another person, which arises\nas a result o f a manifestation o f an intention to create it.\xe2\x80\x9d Restatement (Second)\nof Trusts \xc2\xa72 (1959) (emphasis added).5 \xe2\x80\x9c No trust is created unless the settlor\nmanifests an intention to impose enforceable duties.\xe2\x80\x9d Id. \xc2\xa725. Moreover, as sov\xc2\xad\nereign, the United States has the capacity to act as a common law trustee. See\n2 Austin Wakeman Scott & William Franklin Fratcher, The Law o f Trusts \xc2\xa7 95\n(4th ed. 1987).\nSupreme Court precedent informs our decision to recede from our previous\nobservation that 31 U.S.C. \xc2\xa71321 creates a fiduciary relationship between the\nUnited States, as trustee, and inmates with respect to the management and oper\xc2\xad\nation of the Commissary Fund. While we are not aware of any court decisions\ndiscussing whether 31 U.S.C. \xc2\xa71321, or a predecessor provision in the United\n1932 H earings at 4 84-85. The statement provided further that \xe2\x80\x9c [c]ommissaries were . . . established as a means\nto insure the safe and econom ical procurement and distribution o f special articles which by custom prisoners have\nalways been perm itted to procure through paym ent from their personal funds.\xe2\x80\x9d Id. at 48S. In addition, the statement\nargued that the com m issary system ,4[m]inimizes [the] possibility o f introduction of contrabands such as dope, liquor,\nweapons, etc.\xe2\x80\x9d Id.\n3 The Com m issary Fund is listed as \xe2\x80\x9c C om m issary funds, Federal prisons.** The Prisoners* Trust Fund is listed\nas \xe2\x80\x9c Funds o f Federal Prisoners.\xe2\x80\x9d\n4 In 19S2, Congress authorized the A ttorney General to make small loans from the Commissary Fund to deserving\ninmates upon their release from prison and accept gifts o r bequests o f m oney for credit to the Commissary Fund.\nSee Act o f M ay 15, 1952, ch. 289, 66 S ta t 72 (originally codified at 18 U.S.C. \xc2\xa74284 (1956)). However, the\nprovision giving the A ttorney General the authority to make small loans to released inmates was repealed prospectively in 1984. See Comprehensive Crime Control Act o f 1984, Pub. L. No. 98-473, \xc2\xa7 2 18(a)(3), 98 Stat. 1976,\n2027 (1984). The repeal was effective N ovem ber 1,1986.\n9 \xe2\x80\x9c A person in a fiduciary relation to another is under a duty to act for the benefit o f the other as to matteis\nwithin the scope o f the relation. . . . Fiduciary relations include not only the relation o f trustee and beneficiary,\nbut also, am ong others, those o f guardian and ward, agent and principal, attorney and client. . . . The scope of\nthe transactions affected by the relation and th e extent o f the duties imposed are not identical in all fiduciary relations.\nThe duties o f a trustee are more intensive th a n the duties o f som e other fiduciaries.\xe2\x80\x9d Id. \xc2\xa7 2 cmt. b.\n\n130\n\n\x0cFiduciary Obligations Regarding Bureau o f Prisons Commissary Fund\n\nStates Code, imposes fiduciary obligations on the United States with respect to\n\xe2\x80\x9c trust funds,\xe2\x80\x9d it must be noted that 31 U.S.C. \xc2\xa7 1321 currently classifies as \xe2\x80\x9c trust\nfunds\xe2\x80\x9d ninety-one different funds located in the United States Treasury. These\nfunds range from moneys that are identifiable to particular persons (e.g., \xe2\x80\x9c Money\nand effects of deceased patients,\xe2\x80\x9d Public Health Service, 31 U.S.C. \xc2\xa7 1321(a)(30))\nto moneys simply dedicated to a particular public purpose (e.g., \xe2\x80\x9c Library of Con\xc2\xad\ngress trust fund, investment account,\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1321(a)(9); \xe2\x80\x9c Violent Crime\nReduction Trust Fund,\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1321 (a)(91)). The wide-ranging diversity of\nthe Treasury \xe2\x80\x9c trust funds\xe2\x80\x9d and the lack of identifiable beneficiaries of a number\nof them suggests that, in enacting the statute. Congress did not intend for the\nUnited States to be held to the same duties and obligations as a private, common\nlaw trustee with respect to all such Treasury accounts.\nIn the absence of federal court decisions interpreting 31 U.S.C. \xc2\xa7 1321, we must\nlook to interpretations of other statutes to glean the factors which distinguish statu\xc2\xad\ntory trusts that impose fiduciary obligations on the United States from those that\ndo not. Several sovereign immunity decisions provide guidance. In United States\nv. Mitchell, 445 U.S. 535 (1980) (\xe2\x80\x9c Mitchell I\xe2\x80\x9d ), Quinault Indian allottees of land\nheld \xe2\x80\x9c in trust\xe2\x80\x9d by the United States sought damages against the United States\nunder the Tucker Act, 28 U.S.C. \xc2\xa71491, and the Indian Claims Compensation\nAct, 28 U.S.C. \xc2\xa7 1505, for breach of trust and mismanagement of timber resources\nfound on the land. The threshold question resolved by the Supreme Court in\nMitchell I was whether the General Allotment Act of 1887, ch. 119, 24 Stat. 388\n(codified as amended at 25 U.S.C. \xc2\xa7\xc2\xa7331-358), creates a fiduciary obligation on\nthe part of the United States to manage the timber resources properly, the violation\nof which could subject the United States to suit.6 After noting that \xe2\x80\x9c [a] waiver\nof sovereign immunity \xe2\x80\x98cannot be implied but must be unequivocally expressed,\xe2\x80\x99 \xe2\x80\x99\xe2\x80\x99\nMitchell I, 445 U.S. at 538 (quoting United States v. King, 395 U.S. 1, 4 (1969)),\nthe Supreme Court concluded that the trust language of the General Allotment\nAct does not impose any fiduciary management duties on the United States or\nrender it answerable for breach thereof, but merely prevents alienation of the\nallotted lands and immunizes them from taxation. Id. at 544.\nAlthough the General Allotment Act expressly required the United States to\n\xe2\x80\x9c hold the land . . . in trust for the sole use and benefit\xe2\x80\x9d of the allottee, Mitchell\nI, 445 U.S. at 541 (quoting the General Allotment Act \xc2\xa75, 24 Stat. at 389 (codified\n6 Section 5 o f the General Allotment Act stated:\nUpon the approval o f the allotments provided for in this act by the Secretary o f the Interior, he shall\ncause patents to issue therefor in the name o f the allottees, which patents shall be o f the legal effect,\nand declare that the United States does and will hold the land thus allotted, for the period o f twentyfive years, in trust for the sole use and benefit o f the Indian to whom such allotment shall have been\nmade . . . and that at the expiration o f said period the United States will convey the same by patent\nto said Indian . . . in fee, discharged o f said trust and free o f all charge or incumbrance w hatsoever\nProvided, That the President o f the United States may in any case in his discretion extend the period.\nMitchell /, 445 U S at 541 (quoting the General Allotment Act \xc2\xa7 5 , 24 Stat. at 389 (codified as amended at 25\nU.S.C. \xc2\xa7 348)). Congress extended the period during which the United States was to hold the allotted land indefinitely\nin the Indian Reorganization Act o f 1934, ch. 576, \xc2\xa72, 48 Stat. 984, 984 (codified as amended at 25 U.S.C. \xc2\xa7462).\n\n131\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nas amended at 25 U.S.C. \xc2\xa7348)), the Supreme Court, referring to the language\nand legislative history of the statute as a whole, concluded that \xe2\x80\x9c the Act created\nonly a limited trust relationship between the United States and the allottee that\ndoes not impose any duty upon the Government to manage timber resources.\xe2\x80\x9d\nId. at 542. As the basis for its conclusion, the Supreme Court noted that the Gen\xc2\xad\neral Allotment Act \xe2\x80\x9c does not unambiguously provide that the United States has\nundertaken full fiduciary responsibilities as to the management of allotted lands.\xe2\x80\x9d\nId. The Supreme Court also opined that Congress included the \xe2\x80\x9c in trust\xe2\x80\x9d language\nin the statute \xe2\x80\x9c not because it wished the Government to control use of the land\nand be subject to money damages for breaches of fiduciary duty, but simply\nbecause it wished to prevent alienation of the land and to ensure that allottees\nwould be immune from state taxation.\xe2\x80\x9d Id. at 544. Finally, the Supreme Court\ndeclared that \xe2\x80\x9c events surrounding and following the passage of the General Allot\xc2\xad\nment Act indicate that the Act should not be read as authorizing, much less\nrequiring, the Government to manage timber resources for the benefit o f Indian\nallottees." Id. at 545 (emphasis added).\nIn United States v. Mitchell, 463 U.S. 206 (1983) (\xe2\x80\x9c Mitchell II"), the Supreme\nCourt once again considered whether the United States had assumed fiduciary\nobligations, as trustee, to Quinault Indians as to the management of timber on\ntheir allotted lands. In Mitchell II, it held that the Tucker Act waives sovereign\nimmunity for claims of breach of fiduciary duty where specific statutes or regula\xc2\xad\ntions give rise to the fiduciary duty in question. Id. at 218. The Supreme Court\nreviewed several congressional statutes and government regulations affecting the\nmanagement of Indian lands. \xe2\x80\x9c In contrast to the bare trust created by the General\nAllotment Act,\xe2\x80\x9d which was found in Mitchell I not to have imposed fiduciary\nobligations upon the United States, it held that the statutes and regulations before\nit \xe2\x80\x9c clearly give the Federal Government full responsibility to manage Indian\nresources and land for the benefit of the Indians.\xe2\x80\x9d Id. at 224. Accordingly, the\nSupreme Court concluded that the statutes and regulations \xe2\x80\x9c establish a fiduciary\nrelationship and define the contours of the United States\xe2\x80\x99 fiduciary responsibil\xc2\xad\nities.\xe2\x80\x9d Id.\nIn support of its holding, the Supreme Court stressed Congress\xe2\x80\x99s and the Depart\xc2\xad\nment of Interior\xe2\x80\x99s long-standing involvement in the management of Indian timber\nlands. It declared that Congress, as demonstrated by its successive legislative\nefforts to improve the management of Indian timber lands, desired to ensure that\nsuch lands were as productive as possible for Indians. See id. at 219-223. The\nSupreme Court also stated that \xe2\x80\x9c [t]he language of [the] statutory and regulatory\nprovisions directly supports the existence of a fiduciary relationship,\xe2\x80\x9d noting that\none of the examined acts \xe2\x80\x9c expressly mandates that sales of timber from Indian\ntrust lands be based upon the [Interior] Secretary\xe2\x80\x99s consideration of the \xe2\x80\x98needs\nand best interests of the Indian owner and his heirs\xe2\x80\x99 and that proceeds from such\nsales be paid to owners \xe2\x80\x98or disposed of for their benefit.\xe2\x80\x99 \xe2\x80\x9d Id. at 224 (quoting\n132\n\n\x0cFiduciary Obligations Regarding Bureau o f Prisons Commissary Fund\n\n25 U.S.C. \xc2\xa7 406(a)). The Supreme Court provided further that \xe2\x80\x9c even in its earliest\nregulations, the Government recognized its duties in \xe2\x80\x98managing the Indian forests\nso as to obtain the greatest revenue fo r the Indians consistent with a proper protec\xc2\xad\ntion and improvement of the forests.\xe2\x80\x99 \xe2\x80\x9d Id. (emphasis added) (quoting U.S. Office\nof Indian Affairs, Regulations and Instructions for Officers in Charge of Forests\non Indian Reservations 4 (1911)).7\nLower courts applying Mitchell I and Mitchell II have refrained from recog\xc2\xad\nnizing the existence of fiduciary obligations on the part of the United States where\ncongressional statutes and governmental regulations, by their own terms, do not\nexpressly subject the United States to suit for breach of fiduciary duties, unambig\xc2\xad\nuously provide that the United States has assumed fiduciary duties, or commit\nthe United States to acting in a comprehensive fashion in the best interest or on\nbehalf of trust beneficiaries. See, e.g., Han v. United States Dep\xe2\x80\x99t o f Justice, 45\nF.3d 333, 337 (9th Cir. 1995) (refusing to require the United States to file a breach\nof trust action against the state of Hawaii under section 5(f) of the Hawaii Admis\xc2\xad\nsion Act, Pub. L. No. 86-3, 73 Stat. 4, 6 (1959), on account of the fact that\nthe Hawaii Admission Act \xe2\x80\x9c \xe2\x80\x98does not unambiguously provide that the United\nStates has undertaken full fiduciary responsibilities as to the management o f \xe2\x80\x9d\nlands that had been allotted by the United States for agricultural and homestead\nuse) (quoting Mitchell I, 445 U.S. at 542); National Ass\xe2\x80\x99n o f Counties v. Baker,\n842 F.2d 369, 375-76 (D.C. Cir. 1988), cert, denied, 488 U.S. 1005 (1989) (cita\xc2\xad\ntion omitted) (concluding that the Revenue Sharing Act, Pub. L. No. 97-258, 96\nStat. 877, 1010 (1982), though establishing a trust fund and naming the Treasury\nSecretary as trustee of the trust fund, created only a limited trust relationship\nsimilar to the relationship found in Mitchell I: \xe2\x80\x9c In Mitchell /[,] the Supreme Court\nconcluded that the General Allotment Act does not confer a right to recover dam\xc2\xad\nages against the United States. In Mitchell II, the Supreme Court discussed\nMitchell I and placed great significance on the fact that the \xe2\x80\x98trust language of\nthe Act does not impose any fiduciary management duties or render the United\nStates answerable for breach thereof\xe2\x80\x99. . . . We do not think that when Congress\ncreated [the State and Local Government Fiscal Assistance] Trust Fund and made\nthe Secretary trustee, Congress did so with the intent that the trustee would be\nsubject to money damages for breach of fiduciary duties. Rather, Congress created\nthe Trust Fund in order to ensure constant funding for the Revenue Sharing Pro\xc2\xad\ngrams. Indeed, there is no indication in the Revenue Sharing Act or its legislative\nhistory that the Secretary owes any common law fiduciary obligations to Trust\nFund recipients.\xe2\x80\x9d ); Hohri, 782 F.2d at 244 (distinguishing non-statutory commit\xc2\xad\n7TTie Supreme Court also stated that \xe2\x80\x9c a fiduciary relationship necessarily arises when the Government assumes\nsuch elaborate control over forests and property belonging to Indians.\xe2\x80\x99* Id. at 225. However, like the District o f\nColumbia Circuit, \xe2\x80\x9c [w]e do not read this alternative holding . . . as articulating a broad rule in favor of finding\nfiduciary relationships by implication whenever the government assumes pervasive control over a group\xe2\x80\x99s property.\nRead in context, the Court created only a narrow exception \xe2\x80\x94 for Indian tribes\xe2\x80\x94 to the requirement that the govern\xc2\xad\nment must expressly state its intent to manage the would-be beneficiaries\xe2\x80\x99 property as a trustee.\xe2\x80\x9d Hohri v. United\nStates, 782 F.2d 2 2 7 ,2 4 4 n.39 (D.C. Cir.), vacated and remanded on other grounds, 482 U.S. 64 (1987).\n\n133\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nments by the United States to act for the benefit of Japanese-American evacuees\nduring World War II from a \xe2\x80\x9c comprehensive obligation to provide for the \xe2\x80\x98best\ninterests\xe2\x80\x99 of the evacuees\xe2\x80\x9d ); see also Short v. United States, 719 F.2d 1133, 113436 (Fed. Cir. 1983) (affirming the jurisdiction of the Court of Claims and the\nClaims Court over an action for breach of fiduciary duties against the United\nStates by Indians where the Indian lands at issue were, like the lands in Mitchell\nII, subject to the comprehensive control of the Government for the benefit of\nIndians), cert, denied, 467 U.S. 1256 (1984).\nApplying the standards forged in Mitchell I, Mitchell II and their progeny, we\nconclude that 31 U.S.C. \xc2\xa7 1321 does not impose fiduciary obligations on the BOP\nto expend Commissary Fund moneys only in accordance with the terms of the\ntrust. As stated above, 31 U.S.C. \xc2\xa71321 and its predecessor statutes provide that\nthe Commissary Fund is a \xe2\x80\x9c trust fund.\xe2\x80\x9d However, under the cases discussed\nabove, the mere inclusion of the term \xe2\x80\x9c trust\xe2\x80\x9d in a federal statute is insufficient\nto impose fiduciary obligations on the United States as trustee. See Mitchell I,\n445 U.S. at 540-46. The statute also refers to the United States as \xe2\x80\x9c trustee\xe2\x80\x9d\nof the \xe2\x80\x9c trust funds.\xe2\x80\x9d Similarly, under the cited precedent, identification of the\nUnited States as trustee in a statute, without more, is insufficient to impose\ncommon law fiduciary duties. See National Ass\xe2\x80\x99n of Counties, 842 F.2d at 37576.\nThe legislative history of 31 U.S.C. \xc2\xa7 1321 does not support a conclusion that\nCongress intended to impose fiduciary obligations on the United States with\nrespect to the Commissary Fund. As noted above, the language of 31 U.S.C.\n\xc2\xa71321 originated in section 20(a) of the Permanent Appropriation Repeal Act.\nThe general purpose of that act was to give Congress greater control over the\nappropriations process by abolishing many permanent appropriations.8 However,\nsection 20(a) carved out an exception from the general purpose of the act for\ncertain funds located in the Treasury (i.e., \xe2\x80\x9c trust funds\xe2\x80\x9d ) that, in Congress\xe2\x80\x99s view,\ndid not belong to the United States.\nCongress enacted section 20(a) to prevent the Comptroller General from exer\xc2\xad\ncising unfettered control over the withdrawal of \xe2\x80\x9c trust fund\xe2\x80\x9d moneys from the\nTreasury. By permanently appropriating moneys accruing to Treasury \xe2\x80\x9c trust\nfunds,\xe2\x80\x9d Congress ensured that the Comptroller General would no longer be able\nto exercise such control. According to the House of Representatives committee\nreport accompanying the act:\n8 According to the House o f Representatives committee report accompanying the act:\n[P erm an en t appropriations are a vicious usurpation and invasion o f the rights of sitting Congresses . . . .\n[TJhey com plicate bookkeeping in the Office o f the Treasurer . . . m ake auditing in the Comptroller G en\xc2\xad\ne ral\xe2\x80\x99s O ffice difficult; conceal from Congress many avenues o f receipts and expenditures (which in itself\nis an invitation to extravagance) and, for lack o f proper annual disclosure, make the work of the appropria\xc2\xad\ntions subcom m ittees conjectural and uncertain.\nH.R. Rep. No. 73-1414, at 2 (1934).\n\n134\n\n\x0cFiduciary Obligations Regarding Bureau o f Prisons Commissary Fund\n\nThe committee is unanimous in its approbation of the course being\nfollowed by the Comptroller General in requiring that moneys, held\nand administered by Government officers, be deposited into the\nTreasury, where proper account and audit may be made of all\ndisbursements, but it cannot follow any line of reasoning that will\nallow the Comptroller General, without specific authority, to permit\nthe withdrawal of moneys so deposited in the Treasury without the\nexpress appropriation thereof by Congress. The constitutional provi\xc2\xad\nsion touching on this matter is unambiguous and direct. Once\nmoneys are covered into the Treasury, regardless of the nomen\xc2\xad\nclature that may be applied to the account in which they are depos\xc2\xad\nited, they are bound, by the constitutional inhibition that \xe2\x80\x9c No money\nshall be drawn from the Treasury but in consequence of appropria\xc2\xad\ntions made by law.\xe2\x80\x9d\nH.R. Rep. No. 73-1414, at 12.\nCongress understood that retaining some permanent appropriations was incon\xc2\xad\nsistent with the overriding purpose of the Permanent Appropriation Repeal Act.\nIt justified this deviation, however, by distinguishing \xe2\x80\x9c trust funds\xe2\x80\x9d from funds\nthat belong to the United States:\nIn order to close the question as to the right of the Comptroller\nGeneral to approve withdrawals of trust-fund moneys without actual\nappropriation- thereof by Congress, language has been inserted in\nthis section appropriating the moneys in the trust funds listed in\nthis section as well as in trust funds of similar character established\nin the future. While this is in fact a permanent appropriation in\nitself, it appears to be the most effective way of meeting the\nproblem, and is entirely justifiable on the ground that the moneys\nare not Government moneys, and in no way enter into the fiscal\nprogram of the Government, and follows the policy heretofore\nemployed as to all trust funds.\nId. 9\n\nLike the legislative history of the General Allotment Act discussed in Mitchell\nI and the legislative history of the Revenue. Sharing Act discussed in National\n9 That Congress considered \xe2\x80\x9c trust fu n d " moneys different from moneys accruing to the United States in its capacity\nas sovereign is bome out by a discussion o f receipt classification in the same committee report.\nAs a primary thesis, there are, essentially, but two forms o f government receipts, (1) those accruing* to\nthe Government, in its sovereign capacity, as a result o f [the] law, and (2) those accruing to the Government\nas a trustee o f m oneys belonging to individuals, either in consequence o f law or as a result of the factual\nrelationship existing between the Government and such individuals. Thus, in the instance o f the former,\nthe moneys belong to the Government; in the case o f the latter, they belong to the individual.\nId. at 3.\n\n135\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 19\n\nA ss\xe2\x80\x99n o f Counties, section 20(a)\xe2\x80\x99s legislative history reveals that it was enacted\n\nfor a purpose other than imposing fiduciary obligations on the United States. The\nfact that Congress distinguished between Treasury \xe2\x80\x9c trust funds\xe2\x80\x9d and funds truly\nbelonging to the United States in the section\xe2\x80\x99s legislative history does not dem\xc2\xad\nonstrate Congress\xe2\x80\x99s unambiguous desire to subject the United States to suit for\nbreach of fiduciary obligations.10 Accordingly, the legislative history of 31 U.S.C.\n\xc2\xa71321 does not support the position that the statute imposes fiduciary obligations\non the BOP with respect to the funds it classifies as \xe2\x80\x9c trust funds.\xe2\x80\x9d 11\nFinally, the terms of the Commissary Fund, as set forth by DOJ in Circular\nNo. 2244, also do not support the imposition of fiduciary obligations. Far from\nimposing fiduciary duties on the BOP, the provisions of Circular No. 2244 which\nestablish and set forth the operating rules pertaining to the Commissary Fund\nmerely create a mechanism through which inmates may secure items not generally\navailable through the prisons. See, e.g.. Circular No. 2244, <fll9 (\xe2\x80\x9c For the procure\xc2\xad\nment of articles not regularly issued as a part of the institutional administration\nthere is hereby authorized the establishment of an \xe2\x80\x98Institutional Commissary\xe2\x80\x99\nthrough which all articles shall be procured and charged to the fund entitled \xe2\x80\x98Com\xc2\xad\nmissary Fund, Federal Prisons, Trust Fund.\xe2\x80\x99 \xe2\x80\x9d ). Nowhere in Circular No. 2244\nis it suggested that the BOP is subject to suit for breach of fiduciary duties. Like\xc2\xad\n,0 Congress has enacted laws pertaining to the Commissary Fund twice since enactment o f the Permanent Appro\xc2\xad\npriation Repeal Act. As stated in note 4, supra , in 1952 it authorized the A ttorney General to make small loans\nto released inmates from the Commissary Fund and accept gifts or bequests o f money on behalf of the Commissary\nFund. In 1984, it repealed the Attorney G eneral\'s authority to make small loans from the Commissary Fund. When\nCongress enacted legislation relating to the Commissary Fund in 1952, the committee report accompanying the legis\xc2\xad\nlation in the House o f Representatives stated:\n. [The Commissary Fund] obtains its revenue through the sale o f tobacco, candy, handkerchiefs, inexpensive\nwatches, and other small items, at a sm all margin o f profit, from the inmates o f the various Federal institu\xc2\xad\ntions. Ordinarily these profits are used for purposes which benefit the inmate body as a whole, such as\namusements, libraries, and general welfare.\nH.R. Rep. No. 82-1662, at 2 (1952), reprinted in 1952 U.S.C.C.A.N. 1424, 1424-25. The report\'s description of\nthe Commissary Fund is consistent with the language o f Circular No. 2244, and demonstrates that Congress has\nnever altered the original relationship established between the BOP and inmates with respect to the Commissary\nFund.\n11 W hile the statutory language and legislative history o f 31 U.S.C. \xc2\xa71321 do not unambiguously demonstrate\nthat Congress intended the U nited States to assume fiduciary obligations as to the management and operation of\nthe \xe2\x80\x9c trust funds,\xe2\x80\x9d they do suggest that Congress intended that moneys accruing to these \xe2\x80\x9c trust funds\xe2\x80\x9d be permanently\nappropriated, and therefore, generally subject to laws pertaining to congressional appropriations. See Soboleski v.\nCommissioner, 88 T.C. 1024, 1034 (1987) ( \xe2\x80\x9c With limited exceptions not here applicable, all amounts credited to\nall o f the U.S. Treasury trust funds . . . are appropriated funds.\xe2\x80\x9d ), a jfd , 842 F.2d 1292 (4th Cir. 1988). In fact,\nthe C om ptroller General has reasoned that amounts located within Treasury \xe2\x80\x9c trust funds\xe2\x80\x9d are appropriated funds\nand, therefore, subject to its jurisdiction. See 58 Comp. Gen. 81, 86-87 (1978) (concluding that the General\nAccounting O ffice has the authority to review the propriety o f contract awards made under the Department of\nD efense\xe2\x80\x99s Foreign M ilitary Sales Program, in part, because funds in the Foreign Military Sales Tm st Fund, a \xe2\x80\x9c trust\nfund\xe2\x80\x9d established under a predecessor provision to 31 U.S.C. \xc2\xa71321, were appropriated funds); see also Letter\nfor Sidney R. Yates, Chairm an, Subcommittee on the Department o f the Interior and Related Agencies, House Com\xc2\xad\nmittee on Appropriations, from Milton J. Socolar, Comptroller General o f the United States, General Accounting\nOffice, 1985 W L 53671, at 2 (Dec. 12, 1985) (\xe2\x80\x9c Like a number o f other Federal entities, the [United States Holocaust\nM emorial] Council expends both appropriated funds and donated funds to accomplish its purposes. As a general\nrule, expenditures from both sources would be regarded as appropriated fund expenditures and would be subject\nto all statutes governing such expenditures. See, e.g., . . . 31 U.S.C. \xc2\xa7 1321(a).\xe2\x80\x9d ). Accordingly, as with any federal\nagency expending appropriated funds, the B O P may apply Commissary Fund moneys \xe2\x80\x9c only to the objects for which\nthe appropriations were made except as otherw ise provided by law .\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1301(a); see also I United States\nGeneral Accounting Office, Office of General Counsel, Principles o f Federal Appropriations Law 4 -2 (2d ed. 1991)\n\n136\n\n\x0cFiduciary Obligations Regarding Bureau o f Prisons Commissary Fund\n\nwise, nowhere in Circular No. 2244 is it unambiguously provided that the BOP\nhas assumed fiduciary duties.\nAs discussed above, Circular No. 2244 makes clear that the BOP wields com\xc2\xad\nprehensive authority over the management and operation of the commissaries and\nCommissary Fund. However, unlike the statutes and executive department regula\xc2\xad\ntions which were found to impose fiduciary obligations on the United States and\ndefine the contours of the United States\xe2\x80\x99 fiduciary responsibilities in Mitchell II,\nCircular No. 2244 does not mandate that the BOP act in the best interest of or\nfor the benefit of inmates when operating the commissaries or administering the\nCommissary Fund.12 As stated above, Circular No. 2244 also provides that \xe2\x80\x9c [n]o\ninmate shall be entitled to any portion of the earnings derived through operation\nof the \xe2\x80\x98Institutional Commissary\xe2\x80\x99.\xe2\x80\x9d Id. %22. Further, unlike the relationship held\nto be suggestive of a fiduciary relationship between the United States and Quinault\nIndians in Mitchell II, nothing in the history of the BOP\xe2\x80\x99s relationship with\ninmates concerning the Commissary Fund suggests the creation of a fiduciary rela\xc2\xad\ntionship.\nBased on our examination of 31 U.S.C. \xc2\xa71321, its legislative history and Cir\xc2\xad\ncular No. 2244, we conclude that the arrangement between the United States,\ninmates, and the Commissary Fund which we analyzed in the Randolph-Sheppard\nMemorandum as a common law trust does not, in fact, satisfy the requirements\nfor a common law trust involving the United States as trustee set forth in Mitchell\nI, Mitchell II, and their progeny. Although the Commissary Fund was established\nto allow inmates the opportunity to purchase goods not ordinarily provided by\nfederal prisons and moneys accruing to the Commissary Fund Treasury account\ndo not belong to the United States in the same manner as miscellaneous receipts,\nnothing in Circular No. 2244 suggests that inmates have a property right in\nmoneys accruing to the Commissary Fund or that the BOP is under a fiduciary\nobligation to the inmates as to the management and operation of the Commissary\nFund.\nAlthough we have established that 31 U.S.C. \xc2\xa71321 and the rules set forth\nin Circular No. 2244 pertaining to the Commissary Fund do not impose fiduciary\nobligations on the BOP with respect to the Commissary Fund, we believe that\n31 U.S.C. \xc2\xa71321 and the rules set forth in Circular No. 2244 pertaining to the\n12 Instead o f requiring the BOP to channel all or a portion o f the profits from commissary operations into the\nWelfare Fund to be disbursed for the benefit o f the inmate body as a whole. Circular No. 2244 merely affords\nthe BOP the discretion to do so. See Circular No. 2244, \xc2\xa741. It would be permissible under the rules for the BOP\nto channel all the profits from the operation o f the commissaries back into the Commissary Fund for the future\noperation o f the commissaries, and disburse no funds for the benefit o f the inmate population as a whole. See id.\n\xc2\xa7 16. Similarly, Circular No. 2244 provides:\nThe W arden or Superintendent at each institution may in his discretion authorize the selection by the\ninmates of a representative committee o f . . . inmates who shall together with the W arden and the com \xc2\xad\nmissary clerk constitute an advisory committee who may make suggestions and recommendations to the\nend that the scheme herein outlined shall be conducted in the best interests of the institution and its inmates.\nId. \xc2\xa720. Like the provision governing distribution o f commissary profits for the welfare o f the inmates, this provision\nis styled not as a mandate o r an obligation, but merely as an option to the supervisor o f each prison for seeking\nadvice from the inmates on ways to improve the operation o f the commissaries and Commissary Fund.\n\n137\n\n\x0cOpinions o f the Office o f Legal Counsel m Volume 19\n\nPrisoners\xe2\x80\x99 Trust Fund do impose fiduciary obligations on the BOP with respect\nto moneys contained in inmates\xe2\x80\x99 Prisoners\xe2\x80\x99 Trust Fund accounts. We base our\nconclusions on distinctions between the two \xe2\x80\x9c trust funds.\xe2\x80\x9d\nFirst, the moneys in inmates\xe2\x80\x99 Prisoners\xe2\x80\x99 Trust Fund accounts are truly personal\nfunds. As stated above, each inmate\xe2\x80\x99s Prisoners\xe2\x80\x99 Trust Fund account contains\nmoney he or she brought into prison, received from a person outside the prison,\nor earned while in prison.13 Accordingly, Circular No. 2244 establishes an elabo\xc2\xad\nrate accounting scheme to ensure that funds in inmates\xe2\x80\x99 Prisoners\xe2\x80\x99 Trust Fund\naccounts are properly credited, see id. <H 4 -7 ,14 and debited, see id. \xe2\x80\x98H8-10.\nSecond, unlike provisions of Circular No. 2244 pertaining to the commissaries\nand Commissary Fund, provisions pertaining to the Prisoners\xe2\x80\x99 Trust Fund require\nthe BOP to act in the best interest of individual inmates in managing their Pris\xc2\xad\noners\xe2\x80\x99 Trust Fund accounts. Circular No. 2244 limits the amount of money that\ncan be withdrawn monthly from inmates\xe2\x80\x99 Prisoners\xe2\x80\x99 Trust Fund accounts. How\xc2\xad\never, it also provides that a prison warden may authorize larger monthly with\xc2\xad\ndrawals for restitution or reparation of damages, payment of fines, remittance to\na dependent in dire circumstances, books, tools or materials used for educational\nor vocational purposes, and payments to lawyers if the Warden deems it \xe2\x80\x9c nec\xc2\xad\nessary or for the best interest of an inmate and is satisfied that no abuse would\nresult therefrom.\xe2\x80\x9d Id. 18. Circular No. 2244 also provides that \xe2\x80\x9c [i]n no event\nshall any transfer from one inmate\xe2\x80\x99s account to that of another be permitted.\xe2\x80\x9d\nId. ^9. Moreover, the Circular states that while food and clothing will no longer\nbe accepted at federal prisons for use of inmates, \xe2\x80\x9c money may be received and\nplaced to the credit of the individual inmates in the \xe2\x80\x98Prisoners\xe2\x80\x99 Trust Fund,\xe2\x80\x99 to\nbe used fo r their benefit in accordance with rules and regulations herein pro\xc2\xad\nvided.\xe2\x80\x9d Id. *][18 (emphasis added).\nThird, the BOP has historically recognized fiduciary obligations with respect\nto inmates\xe2\x80\x99 Prisoners\xe2\x80\x99 Trust Fund accounts, generally refusing \xe2\x80\x9c to allow attach\xc2\xad\nment or levy on the prisoners\xe2\x80\x99 trust funds as inconsistent with the provisions of\nthe trust.\xe2\x80\x9d Prisoners\xe2\x80\x99 Trust Fund Memorandum at 5. In affirming the BOP\xe2\x80\x99s\nunderstanding that it may not attach inmates\xe2\x80\x99 Prisoners\xe2\x80\x99 Trust Fund moneys to\nsatisfy claims by the United States, this Office has stated that \xe2\x80\x9c [a] withdrawal\n13CircuJar No. 2244 provides that \xe2\x80\x9c [a]ny inmate . . . may place a reasonable sum o f money in the hands of\nthe W arden o r Superintendent o f the institution, for credit to the inmate\xe2\x80\x99s personal account.\xe2\x80\x9d Id. \xc2\xa72. Circular No.\n2244 provides further that \xe2\x80\x9c (a]ny person m ay send a reasonable amount by check, money order, or cash, to be\nplaced to the credit o f an inm ate." Id. \xc2\xa7 3 . Moreover, C ircular No. 2244 requires that an inmate\xe2\x80\x99s Prisoners\xe2\x80\x99 Trust\nFund account be credited with any moneys earned by the inmate while employed in the prison. Id. \xc2\xa76.\n,4 For exam ple, paragraph 7 o f Circular N o. 2244 provides:\nA receipt shall be furnished for all funds received for deposit in the \xe2\x80\x9c Prisoners, (sic) Trust F und" from\nwhatever source derived. Such receipts shall be prepared by the Accounting Section upon forms furnished\nfor such purpose. The receipts shall g o to the prisoners\xe2\x80\x99 fund accounting section for posting to the prisoners*\npersonal accounts after which they will b e sent to the inmates.\nSim ilarly, paragraph 37 o f Circular No. 2 2 4 4 provides that \xe2\x80\x9c [e]ach m onth the Accounting Section shall prepare\nstatem ents for the Director, Bureau of Prisons, Warden o r Superintendent of the Institution and for the inmates\nwho have been credited w ith money in the Prisoners\xe2\x80\x99 Trust Fund, in such manner and form as prescribed.\xe2\x80\x99\xe2\x80\x99\n\n138\n\n\x0cFiduciary Obligations Regarding Bureau o f Prisons Commissary Fund\n\nof [Prisoners\xe2\x80\x99 Trust Fund moneys] without the inmate\xe2\x80\x99s consent . . . would seem\nto constitute a breach of the terms of the trust.\xe2\x80\x9d Id. at 11.\nin. CONCLUSION\n\nFor the foregoing reasons, we disavow that portion of our Randolph-Sheppard\nMemorandum which concludes that the BOP has a fiduciary obligation to inmates\nto expend Commissary Fund moneys only in a manner consistent with the terms\nof the Commissary Fund trust. In contrast, we conclude that the BOP is not under\na fiduciary obligation to inmates concerning the management and operation of\nthe Commissary Fund. In addition, we reaffirm the analysis contained in our Pris\xc2\xad\noners\xe2\x80\x99 Trust Fund Memorandum, but restrict the memorandum\xe2\x80\x99s application to\nstatutory trusts, like the Prisoners\xe2\x80\x99 Trust Fund, which impose fiduciary obligations\non the United States.\nRICHARD L. SHIFFRIN\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n139\n\n\x0c'


b'State of Residence Requirements for Firearms Transfers\nSection 922(b)(3) of title 18, which forbids federal firearms licensees from selling or\ndelivering \xe2\x80\x9cany firearm to any person who the licensee knows or has reasonable cause\nto believe does not reside in . . . the State in which the licensee\xe2\x80\x99s place of business is\nlocated,\xe2\x80\x9d cannot be interpreted to define \xe2\x80\x9creside in . . . the State\xe2\x80\x9d differently for citizens and aliens.\nJanuary 30, 2012\n\nMEMORANDUM OPINION FOR THE CHIEF COUNSEL\nBUREAU OF ALCOHOL, TOBACCO, FIREARMS, AND EXPLOSIVES\nThe Gun Control Act of 1968 (\xe2\x80\x9cGCA\xe2\x80\x9d or \xe2\x80\x9cthe Act\xe2\x80\x9d) contains a series of\nprovisions that regulate transactions involving firearms and ammunition.\n18 U.S.C. \xc2\xa7 922 (2006 & Supp. IV 2010). 1 One such provision forbids\nfederal firearms licensees (\xe2\x80\x9cFFLs\xe2\x80\x9d)\xe2\x80\x94persons who are licensed under\nfederal law to import, manufacture, or deal in firearms\xe2\x80\x94from selling or\ndelivering \xe2\x80\x9cany firearm to any person who the licensee knows or has\nreasonable cause to believe does not reside in . . . the State in which the\nlicensee\xe2\x80\x99s place of business is located.\xe2\x80\x9d Id. \xc2\xa7 922(b)(3). In a proposed\nfinal rule interpreting this provision, the Bureau of Alcohol, Tobacco,\nFirearms, and Explosives (\xe2\x80\x9cATF\xe2\x80\x9d) contemplates defining the term \xe2\x80\x9creside\nin . . . the State\xe2\x80\x9d differently for citizens and aliens, as it has since 1968.\nSee Memorandum for the Attorney General from Kenneth E. Melson,\nDeputy Director, Bureau of Alcohol, Tobacco, Firearms, and Explosives,\nRe: Final Rule Concerning Residency Requirements for Persons Acquiring Firearms at 2 (Apr. 30, 2010) (describing proposed final rule).\nAs part of our routine legal review of rules requiring the Attorney General\xe2\x80\x99s approval, this Office advised that the proposed definition was\ninconsistent with section 922(b)(3) of the Act. That section makes no\ndistinction between citizens and aliens; it simply restricts the sale or\ndelivery of firearms to \xe2\x80\x9cany person\xe2\x80\x9d who \xe2\x80\x9cdoes not reside in\xe2\x80\x9d the state\n\n1 Several of these provisions of the GCA, including 18 U.S.C. \xc2\xa7 922(b)(3), were originally enacted several months before the enactment of the GCA, as part of title IV of the\nOmnibus Crime Control and Safe Streets Act of 1968, Pub. L. No. 90-351, \xc2\xa7 901(a)(1), 82\nStat. 197, 225\xe2\x80\x9335. Where appropriate, we accordingly refer to legislative findings that\nCongress adopted in enacting the Omnibus Crime Control and Safe Streets Act. See infra\npp. 57\xe2\x80\x9358.\n\n49\n\n\x0c36 Op. O.L.C. 49 (2012)\n\nwhere the FFL is located. 18 U.S.C. \xc2\xa7 922(b)(3) (2006). The Supreme\nCourt has rejected interpretations of statutes that would \xe2\x80\x9cadopt a construction\xe2\x80\x9d attributing \xe2\x80\x9cdifferent meanings to the same phrase in the same\nsentence,\xe2\x80\x9d as the proposed final rule would do. See Reno v. Bossier Parish\nSch. Bd., 528 U.S. 320, 329 (2000). Here, it is particularly difficult to\njustify an inference, without textual support, that state residency should be\ndefined differently for citizens and aliens, because elsewhere in the statute, Congress expressly addressed the treatment of certain categories of\naliens and enacted a special definition of state residency for a particular\ncategory of persons (members of the military on active duty, see 18\nU.S.C. \xc2\xa7 921(b) (2006)). In light of these considerations, we advised that\nsection 922(b)(3) cannot be interpreted to define \xe2\x80\x9creside in . . . the State\xe2\x80\x9d\ndifferently for citizens and aliens. At your request, this opinion memorializes and elaborates on our prior advice. See Memorandum for the Office\nof Legal Counsel from Stephen R. Rubenstein, Chief Counsel, Bureau of\nAlcohol, Tobacco, Firearms, and Explosives (Dec. 18, 2011) (\xe2\x80\x9cOpinion\nRequest\xe2\x80\x9d).\nI.\nThe federal Gun Control Act of 1968, Pub. L. No. 90-618, 82 Stat.\n1213 (codified at 18 U.S.C. \xc2\xa7\xc2\xa7 921\xe2\x80\x93931), sets out \xe2\x80\x9ca detailed federal\nscheme\xe2\x80\x9d to govern \xe2\x80\x9cthe distribution of firearms.\xe2\x80\x9d Printz v. United States,\n521 U.S. 898, 902 (1997). The Act regulates FFLs directly and also lays\nout a series of so-called \xe2\x80\x9cprohibitors\xe2\x80\x9d that define particular categories of\nindividuals prohibited from engaging in certain firearms transactions.\nSection 922(b)(3) of the GCA imposes the limitation on FFLs at issue\nhere, providing in pertinent part:\nIt shall be unlawful for any licensed importer, licensed manufacturer, licensed dealer, or licensed collector to sell or deliver . . . any\nfirearm to any person who the licensee knows or has reasonable\ncause to believe does not reside in (or if the person is a corporation\nor other business entity, does not maintain a place of business in) the\nState in which the licensee\xe2\x80\x99s place of business is located[.] 2\n2 Section 922(b)(3) exempts certain transfers of rifles and shotguns from this general\nrule and provides that the rule \xe2\x80\x9cshall not apply to the loan or rental of a firearm to any\nperson for temporary use for lawful sporting purposes.\xe2\x80\x9d\n\n50\n\n\x0cState of Residence Requirements for Firearms Transfers\n\nThe Act defines \xe2\x80\x9cperson\xe2\x80\x9d broadly to \xe2\x80\x9cinclude any individual, corporation,\ncompany, association, firm, partnership, society, or joint stock company.\xe2\x80\x9d\n18 U.S.C. \xc2\xa7 921(a)(1) (2006). The Act does not define what it means for\nsuch a person to \xe2\x80\x9creside in . . . the State\xe2\x80\x9d as a general matter, but it does\ncontain one special rule with respect to state residency: a member of the\nArmed Forces on active duty \xe2\x80\x9cis a resident of the State in which his permanent duty station is located\xe2\x80\x9d for purposes of the firearms provisions of\ntitle 18. Id. \xc2\xa7\xc2\xa7 922(b)(3), 921(b).\nSince 1968, ATF has maintained regulations defining the term \xe2\x80\x9cState\nof residence\xe2\x80\x9d (although that precise term does not appear in the GCA)\nand requiring potential firearms buyers to establish their state of residence, in order to implement the general statutory provision establishing\nthat an FFL may not transact business with \xe2\x80\x9cany person\xe2\x80\x9d the FFL \xe2\x80\x9cknows\nor has reasonable cause to believe does not reside in . . . the State\xe2\x80\x9d in\nwhich the FFL is located. See Commerce in Firearms and Ammunition,\n33 Fed. Reg. 18,555, 18,559 (Dec. 14, 1968) (defining \xe2\x80\x9cState of residence\xe2\x80\x9d for the first time); 27 C.F.R. \xc2\xa7 478.11 (2011). These regulations\nhave always given \xe2\x80\x9cState of residence\xe2\x80\x9d one meaning for U.S. citizens and\nanother meaning for aliens. The definition of \xe2\x80\x9cState of residence\xe2\x80\x9d has\nchanged somewhat over the years, 3 but the regulations have consistently\nrequired aliens to meet both the residency requirement that applies to\ncitizens and an additional requirement that they have resided in the state\n\xe2\x80\x9cfor a period of at least 90 days prior to the date of sale or delivery of a\nfirearm.\xe2\x80\x9d See, e.g., Commerce in Firearms and Ammunition, 33 Fed.\nReg. at 18,559; Residency Requirements for Persons Acquiring Firearms,\n62 Fed. Reg. 19,442, 19,442 (Apr. 21, 1997); 27 C.F.R. \xc2\xa7 478.11 (2011).\n(We will refer to this additional requirement as the \xe2\x80\x9c90-day requirement.\xe2\x80\x9d) Consistent with this historical practice, the proposed final rule\nwould provide that a citizen \xe2\x80\x9cpresent in a State with the intention of\nmaking a home in that State\xe2\x80\x9d would satisfy section 922(b)(3)\xe2\x80\x99s requirement that he or she \xe2\x80\x9creside in . . . the State\xe2\x80\x9d where the FFL is located, but\nthat an alien lawfully \xe2\x80\x9cpresent in a State with the intention of making a\nhome in that State\xe2\x80\x9d would not satisfy that statutory requirement until the\nalien proved as well that he or she had resided in that state for a mini-\n\n3\n\nSee infra note 4.\n\n51\n\n\x0c36 Op. O.L.C. 49 (2012)\n\nmum of 90 days. 4 Residency Requirements for Persons Acquiring Firearms at 21 (unpublished proposed rule, intended to be codified at 27\nC.F.R. part 478).\nIn addition to laying out generally applicable restrictions, such as the\none set forth in section 922(b)(3), the GCA also expressly prohibits certain categories of persons from engaging in firearms transactions. As\nrelevant here, neither aliens \xe2\x80\x9cillegally or unlawfully in the United States,\xe2\x80\x9d\nsee 18 U.S.C. \xc2\xa7 922(d)(5)(A) (2006); id. \xc2\xa7 922(g)(5)(A), nor aliens who\nhave been \xe2\x80\x9cadmitted to the United States under a nonimmigrant visa,\xe2\x80\x9d see\nid. \xc2\xa7 922(d)(5)(B); id. \xc2\xa7 922(g)(5)(B), may ship, transport, possess, or\nreceive firearms or ammunition, with certain limited exceptions. 5 The\nGCA does not otherwise bar aliens as a category from engaging in firearms transactions; instead, aliens are subject to the same general regulatory requirements as U.S. citizens. See generally United States v. Camacho,\n528 F.2d 464, 468\xe2\x80\x9369 (9th Cir. 1976) (rejecting appellant\xe2\x80\x99s argument that\nthe GCA does not restrict gun sales to visiting aliens who do not reside in\nany state, and stating: \xe2\x80\x9cAn alien who has not established residence in the\nstate where the licensed dealer is located falls within the class of persons\nto whom the dealer is not permitted to sell firearms under \xc2\xa7 922(b)(3).\xe2\x80\x9d).\nThe question we address is whether the proposed final rule\xe2\x80\x99s interpretation of section 922(b)(3) as authorizing different definitions of the term\n\xe2\x80\x9creside in . . . the State\xe2\x80\x9d for citizens and aliens is consistent with the\nstatutory scheme.\nIn 1968, and for many years afterwards, ATF defined \xe2\x80\x9cState of residence\xe2\x80\x9d to mean\n\xe2\x80\x9c[t]he State in which an individual regularly resides, or maintains his home.\xe2\x80\x9d Commerce\nin Firearms and Ammunition, 33 Fed. Reg. at 18,559. A 1997 interim final rule amended\nthen-existing regulations interpreting section 922(b)(3) to require a purchaser of firearms\nto affirmatively declare his or her state of residence on the relevant ATF form and to\nrequire aliens legally in the United States to show substantiating documentation, such as a\nutility bill, to satisfy the 90-day rule. Opinion Request at 2\xe2\x80\x933. The proposed final rule\nwould maintain these amendments but also eliminate an existing provision that allows\naliens to establish residency by providing a letter from their embassy or consulate. We do\nnot address that proposed rule change in this opinion. We also do not address the requirement that firearms purchasers affirmatively declare their \xe2\x80\x9cState of residence\xe2\x80\x9d on a\nform provided by ATF.\n5 Section 922(y)(2) lists various exceptions to the prohibitions applicable to nonimmigrant aliens admitted under a visa, and section 922(y)(3) sets out a waiver procedure for\naliens subject to the same prohibitions. See 18 U.S.C. \xc2\xa7 922(y) (2006).\n4\n\n52\n\n\x0cState of Residence Requirements for Firearms Transfers\n\nII.\nBased on the text of section 922(b)(3) and the overall statutory context,\nwe conclude that the phrase \xe2\x80\x9creside in . . . the State\xe2\x80\x9d in section 922(b)(3)\ncannot be interpreted differently for citizens and aliens and therefore may\nnot be construed to impose different substantive requirements when aliens\nand citizens seek to obtain a firearm from an FFL.\nThe residency requirement in the text of section 922(b)(3) is established with a single phrase, \xe2\x80\x9creside in . . . the State,\xe2\x80\x9d that applies to all\n\xe2\x80\x9cperson[s].\xe2\x80\x9d More specifically, section 922(b)(3) provides that a covered\nfirearms transaction may not take place when \xe2\x80\x9cthe [FFL] knows or has\nreasonable cause to believe\xe2\x80\x9d that the \xe2\x80\x9cperson\xe2\x80\x9d who would receive the\nfirearm \xe2\x80\x9cdoes not reside in . . . the State\xe2\x80\x9d where the FFL does business. 18\nU.S.C. \xc2\xa7 922(b)(3). The plain text of the statute thus appears to require\nATF to apply the same standard to determine whether \xe2\x80\x9cany person . . .\nreside[s] in . . . the State,\xe2\x80\x9d regardless of the citizenship status of the prospective buyer. See id.\nThe proposed final rule, however, would effectively adopt two different\ndefinitions of \xe2\x80\x9creside in . . . the State.\xe2\x80\x9d Citizens would be required to\nshow only an intent to make a home in the state in which they were present, whereas aliens would be required to show that same intent and also\nprove that they had been present in the state for 90 days. We recognize\nthat what it means to \xe2\x80\x9creside\xe2\x80\x9d in a state may itself be susceptible to numerous interpretations. See, e.g., Downs v. Comm\xe2\x80\x99r, 166 F.2d 504, 508\n(9th Cir. 1948); Assistant U.S. Attorneys\xe2\x80\x94Residency Requirement, 3 Op.\nO.L.C. 360, 361 (1979). But regardless of how that term is defined, the\nplain text of section 922(b)(3) contemplates that the same definition will\napply to \xe2\x80\x9cany person,\xe2\x80\x9d citizen or alien, to whom an FFL seeks to sell or\ndeliver a firearm (with the exception of members of the Armed Forces on\nactive duty, to whom the Act expressly applies a different definition of\nstate residency, see supra p. 51).\nNothing in the concept of state residence, moreover, suggests that it is\nappropriate to read a distinction between aliens and citizens into the\nstatute where no such distinction exists in the text. We are aware of no\nbackground common-law definition of state residency, for example, that\nwould suggest that state residency should be defined differently for aliens\nand citizens. Cf. Clackamas Gastroenterology Assocs. v. Wells, 538 U.S.\n\n53\n\n\x0c36 Op. O.L.C. 49 (2012)\n\n440 (2003) (observing that courts interpreting the statutory term \xe2\x80\x9cemployee\xe2\x80\x9d look to its common-law meaning in different settings). 6\nSupreme Court precedent squarely supports this reading of the plain\ntext of section 922(b)(3). In Clark v. Martinez, 543 U.S. 371 (2005), for\nexample, the Court made clear that a single undifferentiated statutory term\nin section 241 of the Immigration and Nationality Act (\xe2\x80\x9cINA\xe2\x80\x9d), 8 U.S.C.\n\xc2\xa7 1231(a)(6), must be given the same meaning in all of its potential applications. In Clark, the Court interpreted INA section 241(a)(6), which\nauthorizes the Attorney General to retain custody of aliens ordered removed from the United States beyond the 90-day period established by\nsection 241(a)(1), see 8 U.S.C. \xc2\xa7 1231(a)(1) (2000), and provides that\nthree different categories of aliens \xe2\x80\x9cmay be detained beyond the removal\nperiod.\xe2\x80\x9d 543 U.S. at 377 (quoting 8 U.S.C. \xc2\xa7 1231(a)(6)) (internal quotation marks omitted).\nFour years earlier, in Zadvydas v. Davis, 533 U.S. 678 (2001), the\nCourt had construed section 241(a)(6) in a particular way, in order to\navoid a constitutional question. The Court held that the provision authorized the Executive Branch to detain one covered category of aliens\xe2\x80\x94those\ndeportable on certain crime-related grounds\xe2\x80\x94for \xe2\x80\x9conly as long as \xe2\x80\x98reasonably necessary\xe2\x80\x99 to remove them from the country,\xe2\x80\x9d rather than indefinitely, as the plain text of the statute might have suggested. Clark, 543\nU.S. at 377 (quoting Zadvydas, 533 U.S. at 699). In light of Zadvydas, the\nClark Court subsequently held that the construction it had given to the\nWe examined the administrative record that accompanied ATF\xe2\x80\x99s 1968 interpretation\nof the state of residence requirement, but that record does not reveal a rationale behind the\ndecision to establish different state residency requirements for citizens and aliens. Shortly\nafter the GCA\xe2\x80\x99s enactment in 1968, the Director of the Alcohol and Tobacco Tax Division\n(which was then part of the Internal Revenue Service), issued a notice of proposed\nrulemaking defining a number of terms, but not \xe2\x80\x9cState of residence.\xe2\x80\x9d See Commerce in\nFirearms and Ammunition, 33 Fed. Reg. 16,285, 16,288 (proposed Nov. 6, 1968). That\ndefinition first appeared in the final rule issued several weeks later, without elaboration.\nSee Commerce in Firearms and Ammunition, 33 Fed. Reg. at 18,559; see id. at 18,555\n(\xe2\x80\x9cImmediately following the definition of \xe2\x80\x98State\xe2\x80\x99 there is inserted a new definition.\xe2\x80\x9d). We\nrecognize that ATF\xe2\x80\x99s proposed definition is longstanding, but we do not think its \xe2\x80\x9cvintage\xe2\x80\x9d can overcome the meaning required by the statute\xe2\x80\x99s text. Cf. Judulang v. Holder,\n132 S. Ct. 476, 488 (2011) (\xe2\x80\x9cvintage\xe2\x80\x9d is a \xe2\x80\x9cslender reed to support a significant government policy\xe2\x80\x9d); Demarest v. Manspeaker, 498 U.S. 184, 190 (1991) (abrogating a\n\xe2\x80\x9clongstanding administrative construction\xe2\x80\x9d\xe2\x80\x94which the court below had noted dated back\nto \xe2\x80\x9cat least the year 1900,\xe2\x80\x9d Demarest v. Manspeaker, 884 F.2d 1343, 1345 (10th Cir.\n1989)\xe2\x80\x94upon concluding that the agency\xe2\x80\x99s construction was inconsistent with the statute).\n6\n\n54\n\n\x0cState of Residence Requirements for Firearms Transfers\n\nstatutory phrase in Zadvydas also had to be applied to the inadmissible\naliens covered by section 241(a)(6), even assuming that there were substantial reasons to treat inadmissible aliens and deportable aliens differently with respect to detention, as the government had argued. Id. at 380.\nThe Court recognized that the constitutional concerns at issue in Zadvydas\nwere not implicated in the case of inadmissible aliens. Id. But, the Court\nexplained, \xe2\x80\x9c[t]he operative language of [the relevant statute], \xe2\x80\x98may be\ndetained beyond the removal period,\xe2\x80\x99 applies without differentiation to all\nthree categories of aliens that are its subject. To give these same words a\ndifferent meaning for each category would be to invent a statute rather\nthan interpret one.\xe2\x80\x9d Id. at 378.\nNotably, the Court acknowledged that the text of INA section 241(a)(6)\nwas ambiguous and could have been validly interpreted to permit more\nprotracted detention for inadmissible aliens. Id. But the Court rejected the\nnotion that statutory ambiguity could justify two different simultaneous\nconstructions of the same ambiguous phrase depending on the category of\naliens to which the phrase applied:\nAs the Court in Zadvydas recognized, the statute can be construed\n\xe2\x80\x9cliterally\xe2\x80\x9d to authorize indefinite detention, or (as the Court ultimately held) it can be read to \xe2\x80\x9csuggest [less than] unlimited discretion\xe2\x80\x9d to\ndetain. It cannot, however, be interpreted to do both at the same\ntime.\nId. (citations omitted); see also id. at 379 (giving the text the interpretation found in Zadvydas \xe2\x80\x9cbecause the statutory text provides for no distinction between admitted and nonadmitted aliens\xe2\x80\x9d). The Court observed that\na contrary holding would establish \xe2\x80\x9cthe dangerous principle that judges\ncan give the same statutory text different meanings in different cases.\xe2\x80\x9d Id.\nat 386; see also Bossier Parish Sch. Bd., 528 U.S. at 329 (\xe2\x80\x9cAs we have in\nthe past, we refuse to adopt a construction that would attribute different\nmeanings to the same phrase in the same sentence, depending on which\nobject it is modifying.\xe2\x80\x9d); Bankamerica Corp. v. United States, 462 U.S.\n122, 129 (1983) (\xe2\x80\x9c[W]e reject as unreasonable the contention that Congress intended the phrase \xe2\x80\x98other than\xe2\x80\x99 to mean one thing when applied to\n\xe2\x80\x98banks\xe2\x80\x99 and another thing as applied to \xe2\x80\x98common carriers,\xe2\x80\x99 where the\nphrase \xe2\x80\x98other than\xe2\x80\x99 modifies both words in the same clause.\xe2\x80\x9d). 7\n7 Since Clark, the Supreme Court has reaffirmed the basic principle of interpretation\non which it relied there. See United States v. Santos, 553 U.S. 507 (2008) (concluding that\n\n55\n\n\x0c36 Op. O.L.C. 49 (2012)\n\nClark thus supports our conclusion that the proposed rule is not consistent with the statute, because the proposed rule would give the same\nphrase\xe2\x80\x94\xe2\x80\x9creside in . . . the State\xe2\x80\x9d\xe2\x80\x94different constructions for U.S. citizens and aliens, even though no textual foundation for imposing a different substantive rule on aliens exists.\nOur reading of the text of section 922(b)(3) also finds support in other\nprovisions of the GCA, and in the legislative findings accompanying the\nAct. In particular, as noted above, section 922(g)(5) prohibits certain\ncategories of aliens\xe2\x80\x94those unlawfully present and those admitted under a\nnonimmigrant visa\xe2\x80\x94from shipping, transporting, possessing, and receiving firearms and ammunition, with certain exceptions. See also 18 U.S.C.\n\xc2\xa7 922(d)(5) (2006) (making it unlawful for any person to sell or dispose of\nfirearms to unlawfully present aliens or aliens admitted under a nonimmigrant visa). This specific treatment of aliens elsewhere in section 922\ncounsels against inferring that Congress intended differential treatment of\ncitizens and aliens where there is no textual or other support for such an\ninference.\nSimilarly, although the GCA does not define the phrase \xe2\x80\x9creside . . . in\nthe State,\xe2\x80\x9d the Act\xe2\x80\x99s definition section does create a unique state residency requirement for one class of persons. As noted above, section 921(b)\nstates that \xe2\x80\x9ca member of the Armed Forces on active duty is a resident of\nthe State in which his permanent duty station is located\xe2\x80\x9d for the purposes\n\nthe term \xe2\x80\x9cproceeds\xe2\x80\x9d in the federal money-laundering statute, 18 U.S.C. \xc2\xa7 1956(a)(1)(A)(i)\n(2006), means \xe2\x80\x9cprofits\xe2\x80\x9d and not \xe2\x80\x9creceipts,\xe2\x80\x9d and that its meaning must be uniform across\ncontexts); compare id. at 525 (Stevens, J., concurring in the judgment) (concluding that\n\xe2\x80\x9cproceeds\xe2\x80\x9d could mean \xe2\x80\x9creceipts\xe2\x80\x9d or \xe2\x80\x9cprofits\xe2\x80\x9d depending on the context, suggesting that,\n\xe2\x80\x9c[i]f Congress could have expressly defined the term \xe2\x80\x98proceeds\xe2\x80\x99 differently when applied\nto different specified unlawful activities, it seems to me that judges filling the gap in a\nstatute with such a variety of applications may also do so, as long as they are conscientiously endeavoring to carry out the intent of Congress\xe2\x80\x9d), with id. at 522 (Scalia, J.,\nconcurring in the judgment) (describing Justice Stevens\xe2\x80\x99s approach as a form of \xe2\x80\x9cinterpretive contortion,\xe2\x80\x9d and contending that the Court had \xe2\x80\x9cforcefully rejected\xe2\x80\x9d that approach in\nClark), and id. at 532 (Alito, J., dissenting) (\xe2\x80\x9cI cannot agree with Justice Stevens\xe2\x80\x99s\napproach insofar as it holds that the meaning of the term \xe2\x80\x98proceeds\xe2\x80\x99 varies depending on\nthe nature of the illegal activity that produces the laundered funds[.]\xe2\x80\x9d); see also Pasquantino v. United States, 544 U.S. 349, 358\xe2\x80\x9359 (2005) (citing Clark in concluding that\nbecause the federal wire fraud statute, 18 U.S.C. \xc2\xa7 1343, \xe2\x80\x9capplies without differentiation\xe2\x80\x9d\nto \xe2\x80\x9cfraudulent uses of domestic wires,\xe2\x80\x9d it must necessarily apply to a scheme to use the\ndomestic wires to deprive a foreign sovereign of taxes that are due).\n\n56\n\n\x0cState of Residence Requirements for Firearms Transfers\n\nof the firearms provisions of title 18. This language provides clear textual\nsupport for ATF\xe2\x80\x99s conclusion that the \xe2\x80\x9cState of residence\xe2\x80\x9d of active duty\nmilitary personnel should be determined under a different standard than\nthe one applicable to other persons. See 27 C.F.R. \xc2\xa7 478.11 (2011) (\xe2\x80\x9cIf an\nindividual is on active duty as a member of the Armed Forces, the individual\xe2\x80\x99s State of residence is the State in which his or her permanent duty\nstation is located.\xe2\x80\x9d). Again, however, the presence of the express language\ndefining state residency differently for one particular group of persons\n(military personnel) makes it difficult to argue that Congress intended to\nauthorize a special definition of state residency for a second group of\npersons (aliens), because there is no express textual indication that Congress intended to do so. See, e.g., Demarest v. Manspeaker, 498 U.S. 184,\n188 (1991) (holding that prisoners who appear as witnesses in federal\ncourt are entitled to payment under a statute granting appearance fees to\nany \xe2\x80\x9cwitness in attendance at any court of the United States,\xe2\x80\x9d relying in\npart on the fact that other provisions of the statute expressly prohibited\nprisoners from receiving other kinds of fees, and in part on the fact that a\nsubset of prisoners\xe2\x80\x94detained aliens\xe2\x80\x94was expressly excluded from the\nentitlement to appearance fees (internal quotation marks omitted)). 8\nCongress\xe2\x80\x99s express legislative findings with respect to the state residency requirement likewise fail to support the distinction made in the\nproposed final rule. These findings reflect Congress\xe2\x80\x99s concern over the\n\xe2\x80\x9cwidespread traffic in firearms moving in or otherwise affecting interstate\nor foreign commerce,\xe2\x80\x9d and the fact that \xe2\x80\x9cthe existing Federal controls\nover such traffic do not adequately enable the States to control this traffic\nwithin their own borders through the exercise of their police power.\xe2\x80\x9d\nOmnibus Crime Control and Safe Streets Act \xc2\xa7 901(a)(1) (codified at 18\nU.S.C. \xc2\xa7 921 note). Congress concluded that this interstate traffic, which\ninvolved \xe2\x80\x9cthe sale or other disposition of concealable weapons . . . to\nnonresidents of the State in which the licensees\xe2\x80\x99 places of business are\nlocated,\xe2\x80\x9d tended to render ineffective \xe2\x80\x9cthe laws, regulations, and ordinances in the several States and local jurisdictions regarding such firearms.\xe2\x80\x9d Id. \xc2\xa7 901(a)(5). These findings focus on the states\xe2\x80\x99 ability to regulate and control firearms transactions and do not suggest any unique\n8 Congress subsequently adopted the Incarcerated Witness Fees Act of 1991, Pub. L.\nNo. 102-417, 106 Stat. 2138 (1992), which amended the statute to eliminate witness fees\nfor incarcerated persons.\n\n57\n\n\x0c36 Op. O.L.C. 49 (2012)\n\nconcern with respect to state and local enforcement of firearms laws\nagainst aliens. In the Senate Report, statements concerning the state\nresidency requirement, as originally enacted in the Omnibus Crime Control and Safe Streets Act, are to similar effect. 9\nIn sum, we do not think Congress\xe2\x80\x99s use of the phrase \xe2\x80\x9creside in . . . [a]\nState\xe2\x80\x9d supports different definitions of that phrase for citizens and aliens\nas a group, particularly in light of the principles of statutory interpretation\nlaid out in Clark. We thus conclude that the proposed final rule reflects an\ninterpretation of section 922(b)(3) that is not consistent with the statute.\nVIRGINIA A. SEITZ\nAssistant Attorney General\nOffice of Legal Counsel\n\n9 See, e.g., S. Rep. No. 90-1097, at 80 (1968), reprinted in 1968 U.S.C.C.A.N. 2112,\n2167 (\xe2\x80\x9cThe provisions of the title which prohibit a licensee from disposing of firearms\n(other than rifles and shotguns) to persons who are not residents of the State in which [the\nFFL] conducts his business is justified by the record, which is replete with testimony\ndocumenting the fact that the purchase of such firearms by persons in other than their\nresidence State is a serious contributing factor to crime.\xe2\x80\x9d); id. at 114, reprinted in 1968\nU.S.C.C.A.N. at 2204 (explaining that section 922(b)(3) \xe2\x80\x9cimplements the strict controls\nover the interstate movements of pistols and revolvers in section 922(a)(2) as contained in\nthe title,\xe2\x80\x9d and is also \xe2\x80\x9cdesigned to prevent the avoidance of State and local laws controlling firearms other than rifles and shotguns by the simple expediency of crossing a State\nline to purchase one\xe2\x80\x9d).\n\n58\n\n\x0c'