b'Use of Appropriated Funds to Provide\nLight Refreshments to Non-Federal\nParticipants at EPA Conferences\nLight refreshments are \xe2\x80\x9csubsistence expenses\xe2\x80\x9d to which the prohibition of 31 U.S.C. \xc2\xa7 1345 applies,\nand various statutory provisions that authorize the Environmental Protection Agency to hold\nmeetings, conduct training, and provide grants do not satisfy the \xe2\x80\x9cspecifically provided by law\xe2\x80\x9d\nexception to the prohibition.\nA violation of section 1345 does not, by its own force, also violate the Anti-Deficiency Act.\n\nApril 5, 2007\n\nMEMORANDUM OPINION FOR THE GENERAL COUNSEL\nENVIRONMENTAL PROTECTION AGENCY\nYou have asked whether the Environmental Protection Agency (\xe2\x80\x9cEPA\xe2\x80\x9d) may,\nconsistent with 31 U.S.C. \xc2\xa7 1345 (2000), use appropriations to provide light\nrefreshments to non-federal participants at EPA conferences. We conclude that\nlight refreshments, as you have described them, are \xe2\x80\x9csubsistence expenses\xe2\x80\x9d to\nwhich the prohibition of section 1345 applies, and that the various provisions you\nhave cited that authorize the EPA to hold meetings, conduct training, and provide\ngrants do not, in the words of section 1345, \xe2\x80\x9cspecifically provide[]\xe2\x80\x9d for the EPA to\nuse an appropriation for subsistence expenses for a meeting. You have further\nasked that, if we reach these conclusions, we determine whether a violation of\nsection 1345 also would violate the Anti-Deficiency Act (\xe2\x80\x9cADA\xe2\x80\x9d or \xe2\x80\x9cAct\xe2\x80\x9d), as\ncodified at 31 U.S.C. \xc2\xa7 1341(a)(1) (2000). Because the prohibition in section 1345\nis not, in the words of that Act, \xe2\x80\x9cin an appropriation . . . for the expenditure or\nobligation,\xe2\x80\x9d id. \xc2\xa7 1341(a)(1)(A), we conclude that a violation of section 1345 does\nnot, by its own force, also violate the Anti-Deficiency Act.\nI.\nThe EPA\xe2\x80\x99s various statutory missions, you have explained, are furthered by the\nEPA\xe2\x80\x99s providing opportunities for federal officials and employees and persons\nwho are not federal employees to exchange information at meetings, including\nconferences. You have noted several sources of statutory authority, which we\ndiscuss below, under which the EPA holds such meetings and conferences. To\nfacilitate these activities, the EPA wishes, when appropriate, to provide light\nrefreshments\xe2\x80\x94bottled water, coffee, bagels, and the like\xe2\x80\x94to all participants,\nincluding those attendees who are not federal employees.\nSection 1345 provides as follows:\n\n54\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\nExcept as specifically provided by law, an appropriation may not be\nused for travel, transportation, and subsistence expenses for a meeting. This section does not prohibit\xe2\x80\x94\n(1) an agency from paying the expenses of an officer or employee\nof the United States Government carrying out an official duty;\nand\n(2) the Secretary of Agriculture from paying necessary expenses\nfor a meeting called by the Secretary for 4-H Boys and Girls\nClubs as part of the cooperative extension work of the Department of Agriculture.\n31 U.S.C. \xc2\xa7 1345. In 2005, the Comptroller General opined that the National\nInstitutes of Health could pay for light refreshments at a government-sponsored\nconference because, among other things, \xe2\x80\x9cformal conferences\xe2\x80\x9d are not \xe2\x80\x9cmeetings\xe2\x80\x9d\nunder this section. National Institutes of Health\xe2\x80\x94Food at Government-Sponsored\nConferences, B-300826, 2005 WL 502825, at *4 (Mar. 3) (\xe2\x80\x9cNIH Opinion\xe2\x80\x9d).\nThis Office, however, concluded in 2004 that a \xe2\x80\x9cfellowship program that would\nbring representatives from various countries to the United States\xe2\x80\x9d is a \xe2\x80\x9cmeeting\xe2\x80\x9d\nunder section 1345. Use of Appropriations to Pay Travel Expenses of International Trade Administration Fellows, 28 Op. O.L.C. 269, 269 (2004) (\xe2\x80\x9cITA Opinion\xe2\x80\x9d).\nFocusing on the statutory text, we reasoned that such a fellowship program would\n\xe2\x80\x9c[i]n everyday usage . . . involve a \xe2\x80\x98meeting\xe2\x80\x99\xe2\x80\x94indeed, several meetings.\xe2\x80\x9d Id. at\n270. We distinguished, and questioned the reasoning of, a 1993 Comptroller\nGeneral opinion interpreting the term \xe2\x80\x9cmeeting\xe2\x80\x9d in light of the floor statements of\na few members of Congress at the time of the statute\xe2\x80\x99s original enactment, see id.\nat 273\xe2\x80\x9374, and instead agreed with the Comptroller General\xe2\x80\x99s pre-1993 interpretations, see id. at 271-72. In his NIH Opinion, the Comptroller General relied on his\n1993 opinion, even while recognizing that it \xe2\x80\x9ceffectively overrul[ed] prior\n[Government Accountability Office (\xe2\x80\x9cGAO\xe2\x80\x9d)] decisions that applied section 1345\nto meetings and conferences other than assemblages and gatherings that private\norganizations sought to hold at government expense.\xe2\x80\x9d NIH Opinion, 2005 WL\n502825, at *5 n.5.\nFor the Executive Branch, this Office\xe2\x80\x99s interpretation of the term \xe2\x80\x9cmeeting\xe2\x80\x9d in\nthe ITA Opinion necessarily continues to control notwithstanding the subsequent\ndecision of the Comptroller General. 1 Because, under this interpretation, section\n1345 applies in more instances than it would under the Comptroller General\xe2\x80\x99s\n1\nThe Comptroller General is an agent of Congress. Therefore, although his views often provide\nhelpful guidance on appropriations matters and related issues, they do not bind the Executive Branch.\nSee, e.g., Submission of Aviation Insurance Program Claims to Binding Arbitration, 20 Op. O.L.C.\n341, 343 n.3 (1996).\n\n55\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nview, and given the different approaches by this Office and the GAO to interpreting section 1345, you have sought our views on the scope of that section\xe2\x80\x99s\nreference to \xe2\x80\x9csubsistence expenses.\xe2\x80\x9d You have further asked whether, if light\nrefreshments are \xe2\x80\x9csubsistence expenses,\xe2\x80\x9d various statutory provisions applicable to\nthe EPA \xe2\x80\x9cspecifically provide[]\xe2\x80\x9d for use of an appropriation for such expenses for\na meeting; and whether, if section 1345 does prohibit such use of an appropriation,\na violation of section 1345 also would violate the Anti-Deficiency Act. We answer\neach question in turn.\nII.\nThe answer to your first question is not beyond debate, but the better reading is\nthat the costs of light refreshments, such as you have described them, are \xe2\x80\x9csubsistence expenses\xe2\x80\x9d under section 1345. This conclusion rests on the text, context, and\nstatutory history of section 1345, and is consistent with the views of the Comptroller General.\nDictionaries define \xe2\x80\x9csubsistence\xe2\x80\x9d to mean \xe2\x80\x9cthe irreducible minimum (as of food\nand shelter) necessary to support life.\xe2\x80\x9d Webster\xe2\x80\x99s Third New International\nDictionary 2279 (1993); see also Webster\xe2\x80\x99s Ninth New Collegiate Dictionary 1176\n(1984) (\xe2\x80\x9cthe minimum (as in food and shelter) necessary to support life\xe2\x80\x9d); The\nAmerican Heritage Dictionary of the English Language 1791 (3d ed. 1992) (\xe2\x80\x9c[a]\nmeans of subsisting, especially means barely sufficient to maintain life\xe2\x80\x9d). Thus,\n\xe2\x80\x9cfood\xe2\x80\x9d of some sort is included within \xe2\x80\x9csubsistence.\xe2\x80\x9d These definitions do not\nobviously indicate a distinction between food that could be called a \xe2\x80\x9cmeal\xe2\x80\x9d and\nfood that could be called a light refreshment, and many sorts of food could be used\nfor either purpose. In one sense, light refreshments fall more readily within the\nmeaning of \xe2\x80\x9csubsistence\xe2\x80\x9d than do meals, as the former may be thought of as\nminimal (or marginal) resources for subsistence, in contrast to more substantial\n\xe2\x80\x9cmeals.\xe2\x80\x9d On the other hand, one could view light refreshments as supplementing\nmeals. But these definitions at least do not exclude light refreshments from the\ncategory of \xe2\x80\x9csubsistence\xe2\x80\x9d and do suggest the possibility of including them.\nAlthough simple dictionary definitions are thus inconclusive, the use of the\nterm \xe2\x80\x9csubsistence\xe2\x80\x9d elsewhere in the U.S. Code in analogous circumstances, and\nparticularly its use elsewhere in title 31, indicates that \xe2\x80\x9csubsistence\xe2\x80\x9d as used in\nsection 1345 does include light refreshments. Under 31 U.S.C. \xc2\xa7 326(b) (2000),\nthe Secretary of the Treasury \xe2\x80\x9cmay approve reimbursement to agents on protective\nmissions for subsistence expenses authorized by law without regard to rates and\namounts established under section 5702 of title 5,\xe2\x80\x9d which sets the per diem rates\nfor federal employees on travel. Those per diem rates, in turn, incorporate a\ndefinition of \xe2\x80\x9csubsistence\xe2\x80\x9d as \xe2\x80\x9clodging, meals, and other necessary expenses for\nthe personal sustenance and comfort of the traveler.\xe2\x80\x9d 5 U.S.C. \xc2\xa7 5701(3) (2000);\nsee also 2 U.S.C. \xc2\xa7 68b (2000) (incorporating this definition of \xe2\x80\x9csubsistence\xe2\x80\x9d from\nsection 5701 for officers and employees of the Senate). The use of the phrase\n\xe2\x80\x9cother necessary expenses\xe2\x80\x9d after the word \xe2\x80\x9cmeals\xe2\x80\x9d in section 5701\xe2\x80\x99s definition of\n\n56\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\n\xe2\x80\x9csubsistence\xe2\x80\x9d indicates that \xe2\x80\x9csubsistence expenses\xe2\x80\x9d include more than just \xe2\x80\x9cmeals\xe2\x80\x9d\n(or lodging). In context, the definition of the term \xe2\x80\x9csubsistence\xe2\x80\x9d permits the\ngovernment to reimburse employees for the amount of food that a typical employee eats in one day, without reference to whether the employee consumes the food\nin two or three meals or, instead, two or three meals supplemented with a snack or\ntwo. Light refreshments are therefore fairly included within the terms of the\nresidual category of \xe2\x80\x9cnecessary expenses\xe2\x80\x9d for \xe2\x80\x9cpersonal sustenance and comfort\xe2\x80\x9d\nfor which employees may be reimbursed and, by extension, fairly included within\nthe broader term \xe2\x80\x9csubsistence expenses.\xe2\x80\x9d\nIn addition, 31 U.S.C. \xc2\xa7 3903(c) (2000) permits agencies to procure by contract\n\xe2\x80\x9csubsistence items.\xe2\x80\x9d See also 31 U.S.C. \xc2\xa7 1501(a)(4)(B) (2000) (authorizing\nrecording amounts as obligations of the United States government when supported\nby an order purchasing \xe2\x80\x9cperishable subsistence supplies\xe2\x80\x9d). And 31 U.S.C.\n\xc2\xa7 1353(a) (2000) authorizes the Administrator of General Services to \xe2\x80\x9cprescribe by\nregulation the conditions under which an agency in the executive branch . . . may\naccept payment, or authorize an employee of such agency to accept payment on\nthe agency\xe2\x80\x99s behalf, from non-Federal sources for . . . subsistence.\xe2\x80\x9d We are aware\nof no authority suggesting that contracts for \xe2\x80\x9csubsistence items,\xe2\x80\x9d orders for\n\xe2\x80\x9cperishable subsistence supplies,\xe2\x80\x9d and acceptance of payment for \xe2\x80\x9csubsistence\xe2\x80\x9d\nunder these sections can include meals, or the ingredients for meals\xe2\x80\x94that is,\nfood\xe2\x80\x94yet somehow exclude food that is or may be used as light refreshments, nor\ndo we see a basis for such a view. Thus, the use of the term \xe2\x80\x9csubsistence\xe2\x80\x9d in these\nprovisions as well is better read to include light refreshments.\nThe statutory history of section 1345 further indicates that \xe2\x80\x9csubsistence expenses\xe2\x80\x9d include the cost of light refreshments. What is now section 1345 was enacted\nas section 551 of title 31 in 1935. See Pub. Res. No. 74-2, 49 Stat. 19, 19 (1935)\n(codified at 31 U.S.C. \xc2\xa7 551 (Supp. I 1935)). Section 551 provided, \xe2\x80\x9c[u]nless\nspecifically provided by law, no moneys from funds appropriated for any purpose\nshall be used for the purpose of lodging, feeding, conveying, or furnishing\ntransportation to, any conventions or other form of assemblage or gathering to be\nheld in the District of Columbia or elsewhere.\xe2\x80\x9d Id. (emphasis added). According to\nthe statutory findings, \xe2\x80\x9cnumerous applications [were] being received from various\norganizations requesting lodging, food, and transportation for the purpose of\nholding conventions or meetings at Washington and elsewhere,\xe2\x80\x9d and \xe2\x80\x9cthe expenditure of Government funds for such purposes is against the policy of Congress.\xe2\x80\x9d Id.\n(emphasis added). The terms \xe2\x80\x9cfeeding\xe2\x80\x9d and particularly \xe2\x80\x9cfood\xe2\x80\x9d include light\nrefreshments, and when Congress in 1982 as part of recodifying title 31 moved\nsection 551 to section 1345 and substituted the current language, including the\nterm \xe2\x80\x9csubsistence,\xe2\x80\x9d see Pub. L. No. 97-258, sec. 1, \xc2\xa7 1345, 96 Stat. 877, 925\n(1982), it explained that such revisions should \xe2\x80\x9cnot be construed as making a\nsubstantive change in the laws replaced,\xe2\x80\x9d id. sec. 4(a), 96 Stat. at 1067.\nOur conclusion regarding the term \xe2\x80\x9csubsistence expenses\xe2\x80\x9d under section 1345\nalso is consistent with the views of the Comptroller General regarding both section\n\n57\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\n1345 and its predecessor. Most significantly, soon after Congress enacted section\n551, the Comptroller General opined that, because of section 551, appropriations\nfor the American Battle Monuments Commission \xe2\x80\x9care not available for such items\nof expenditure as \xe2\x80\x98transportation to and from monument sites\xe2\x80\x99 and \xe2\x80\x98light refreshments.\xe2\x80\x99\xe2\x80\x9d Conventions and Gatherings\xe2\x80\x94Lodging, Feeding, and Transporting, 14\nComp. Gen. 851, 852 (1935) (emphasis added). More recently, the Comptroller\nGeneral has opined that section 1345 prohibits expenditures for \xe2\x80\x9cfood and\nlodging.\xe2\x80\x9d National Highway Traffic Safety Administration\xe2\x80\x94Travel and Lodging\nExpenses, 62 Comp. Gen. 531, 531\xe2\x80\x9332 (1983) (\xe2\x80\x9cNHTSA Opinion\xe2\x80\x9d) (emphasis\nadded). The Comptroller General also has used the term \xe2\x80\x9csubsistence\xe2\x80\x9d in related\ncontexts without distinguishing between meals and light refreshments. For\nexample, he has opined that authority in a statute to conduct a meeting \xe2\x80\x9cis not\nsufficient to authorize payment from appropriated funds of the attendees\xe2\x80\x99 subsistence expenses,\xe2\x80\x9d by which he meant both \xe2\x80\x9cmeals\xe2\x80\x9d and \xe2\x80\x9crefreshments.\xe2\x80\x9d Coast\nGuard\xe2\x80\x94Coffee Break Refreshments at Training Exercise\xe2\x80\x94Non-Federal Personnel, B-247966, 1993 WL 266761, at *2\xe2\x80\x933 (June 16). And he has said that the\ngeneral rule that \xe2\x80\x9cthe government may not pay, in addition to an employee\xe2\x80\x99s\nregular compensation, per diem or subsistence expenses to a civilian employee at\nhis official duty station\xe2\x80\x9d applies to expenditures \xe2\x80\x9cfor coffee and doughnuts.\xe2\x80\x9d FBI\nPayment for Refreshments During Organized Crime Investigation, B-234813,\n1989 WL 241372, at *2\xe2\x80\x933 (Comp. Gen. Nov. 9). Finally, the NIH Opinion,\ndiscussed above with regard to the meaning of \xe2\x80\x9cmeeting\xe2\x80\x9d in section 1345, does not\nconsider the term \xe2\x80\x9csubsistence expenses\xe2\x80\x9d in that section, so we have no reason to\nbelieve that these prior opinions have ceased to reflect the Comptroller General\xe2\x80\x99s\nviews.\nSeveral federal regulations do distinguish between light refreshments and\nmeals\xe2\x80\x94as does 5 U.S.C. \xc2\xa7 5701, noted above. But, as our discussion of section\n5701 indicated, our conclusion does not depend on equating the two, only on\nrecognizing that both fall within the term \xe2\x80\x9csubsistence,\xe2\x80\x9d and none of the regulations of which we are aware distinguishes between the two in using the word\n\xe2\x80\x9csubsistence\xe2\x80\x9d or a similar statutory term. Rather, the regulations involve statutory\nlanguage that gives regulatory agencies flexibility in a particular context. For\nexample, the federal ethics regulations provide that \xe2\x80\x9c[m]odest items of food and\nrefreshments such as soft drinks, coffee and donuts, offered other than as part of a\nmeal\xe2\x80\x9d do not qualify as gifts. 5 C.F.R. \xc2\xa7 2635.203(b)(1) (2006). One of the\nstatutory authorities on which this regulation rests, 5 U.S.C. \xc2\xa7 7353(a), (b)(1)\n(2000 & Supp. III 2003), states that employees of the Executive Branch may not\n\xe2\x80\x9caccept anything of value from a person,\xe2\x80\x9d except as permitted in \xe2\x80\x9csuch reasonable\nexceptions as may be appropriate.\xe2\x80\x9d The statute, in other words (and the quoted\nregulations), provides for the \xe2\x80\x9creasonable exceptions\xe2\x80\x9d that section 1345 does not\nacknowledge. Government regulations also provide that federal travelers at federal\nconferences need not deduct the cost of government-furnished light refreshments\nfrom their per diem claims, but do need to deduct the cost of meals. See 41 C.F.R.\n\xc2\xa7 301-74.21(b) (2006). But those regulations rest on the General Services Admin-\n\n58\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\nistration\xe2\x80\x99s discretion to reimburse federal employees either on a per diem basis, or\non an \xe2\x80\x9cactual and necessary expenses\xe2\x80\x9d basis, or with any combination of the two.\nSee 5 U.S.C. \xc2\xa7 5702(a)(1) (2000).\nSimilarly, the apparently common practice among federal agencies of allowing\nattendees at certain events to partake of light refreshments rests on specific\nauthority under the Government Employees\xe2\x80\x99 Incentive Awards Act, not on any\npremise that light refreshments are not subsistence expenses. See 5 U.S.C. \xc2\xa7 4503\n(2000) (permitting an agency head to \xe2\x80\x9cincur necessary expense for the honorary\nrecognition of, an employee\xe2\x80\x9d). Nor could this practice support a distinction\nbetween \xe2\x80\x9clight refreshments\xe2\x80\x9d and \xe2\x80\x9cmeals\xe2\x80\x9d for purposes of interpreting \xe2\x80\x9csubsistence\xe2\x80\x9d (such that the term would include meals yet not light refreshments),\nbecause meals also are served at such receptions. As the Comptroller General has\nexplained, \xe2\x80\x9c[t]he provision of food or refreshments at an awards ceremony is an\nexception to the general rule prohibiting an agency from feeding its employees at\ntaxpayer expense.\xe2\x80\x9d Defense Reutilization and Marketing Service Awards Ceremonies, B-270327, 1997 WL 108952, at *2 (Mar. 12) (emphasis added).\nIn sum, although it is undoubtedly true that, as a matter of degree, food when\nserved for \xe2\x80\x9cmeals\xe2\x80\x9d is more significant than food served for \xe2\x80\x9clight refreshments,\xe2\x80\x9d\nsection 1345 in its application to \xe2\x80\x9csubsistence expenses\xe2\x80\x9d does not draw this\ndistinction between different uses of food. We therefore conclude that the\nprohibition on \xe2\x80\x9cthe use of appropriated funds for subsistence expenses\xe2\x80\x9d in section\n1345 applies to light refreshments as well as meals.\nIII.\nSection 1345\xe2\x80\x99s prohibition on the use of an appropriation for subsistence expenses applies \xe2\x80\x9c[e]xcept as specifically provided by law.\xe2\x80\x9d You have directed us to\neight sections of the U.S. Code as possibly satisfying this exception with regard to\nlight refreshments for persons at conferences who are not federal employees.\nAmong these are section 103 of the Clean Air Act, 42 U.S.C. \xc2\xa7 7403 (2000);\nsection 104 of the Clean Water Act, 33 U.S.C. \xc2\xa7 1254 (2000); and the Government\nEmployees Training Act, 5 U.S.C. \xc2\xa7 4110 (2000). In an appendix, we have\nidentified all eight sections, as well as the particular subsections and text in them\nthat most bear on this question; here, it is sufficient to summarize the relevant text\nas authorizing various sorts of programs, training, and grants that may include\nprivate parties and state and local governments. Four of them generally authorize\nthe EPA to fund the training of non-federal persons (see 42 U.S.C. \xc2\xa7 7403 (2000),\nid. \xc2\xa7 9604(k)(6) (2000 & Supp. III 2003), id. \xc2\xa7 9660 (2000), and 33 U.S.C. \xc2\xa7 1254\n(2000)) and the remainder simply allow the EPA to encourage or fund research,\nwhere appropriate. Besides authorizing such actions, however, these provisions\nsay nothing in particular about the \xe2\x80\x9ctravel, transportation, and subsistence\xe2\x80\x9d\nexpenses that section 1345 regulates. As we explain, these general authorizations\ndo not suffice to authorize an exception from section 1345.\n\n59\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nIn the context of section 1345, the word \xe2\x80\x9cspecifically\xe2\x80\x9d is best read to mean\n\xe2\x80\x9cwith exactness and precision\xe2\x80\x9d or \xe2\x80\x9cin a definite manner.\xe2\x80\x9d Webster\xe2\x80\x99s Third New\nInternational Dictionary 2187 (1993). A general authorization of a meeting is not\nan exact, precise, or definite authorization of an agency to use appropriated funds\nfor \xe2\x80\x9ctravel, transportation, and subsistence\xe2\x80\x9d expenses.\nThe structure and context of section 1345 confirm this understanding. A federal\nagency that expends appropriated funds on a meeting must derive its authority to\nspend that money from some statutory source. If every statute that authorized the\nfederal funding of meetings attended by non-federal participants also permitted the\nexpenditure of funds for the purposes prohibited by section 1345, then section\n1345 never would prohibit expending funds for \xe2\x80\x9ctravel, transportation, and\nsubsistence\xe2\x80\x9d for lawful meetings. While it may not be possible to detail a general\nrule for exactly how \xe2\x80\x9cspecific[]\xe2\x80\x9d is specific enough, it is thus clear that general\nauthority to fund a meeting is insufficient.\nOur ITA Opinion supports the above interpretation. The Department of Commerce had not identified any statute that it thought would provide specific\nauthority under section 1345 for the expenses of the proposed fellowship program.\nSee ITA Opinion, 28 Op. O.L.C. at 275. We recognized that it had cited as\n\xe2\x80\x9cgeneral authority\xe2\x80\x9d 22 U.S.C. \xc2\xa7 2351(b) (2000), which authorizes the President to\n\xe2\x80\x9cmake arrangements to find, and draw the attention of private enterprise to,\nopportunities for investment and development in less-developed friendly countries\nand areas,\xe2\x80\x9d but we pointed out that the Department of Commerce did \xe2\x80\x9cnot\ncontend . . . that section 2351 speaks with sufficient specificity to satisfy section\n1345.\xe2\x80\x9d ITA Opinion, 28 Op. O.L.C. at 275 n.4.\nThis reading also is consistent with a series of Comptroller General decisions\nunder section 1345 and its predecessor. Most notably, the Comptroller General\nopined in 1979 that, \xe2\x80\x9c[b]y using the word \xe2\x80\x98specifically,\xe2\x80\x99 Congress indicated that\nauthority to pay travel and subsistence expenses of non-government employees\nattending conventions or other assemblages should not be inferred from other laws\nbut rather that there should be a definite indication in an enactment that the\npayment of such expenses was contemplated, intended and authorized.\xe2\x80\x9d Mine\nSafety and Health Administration\xe2\x80\x94Payment of Travel Expenses at Seminars, B193644, 1979 WL 12354, at *2 (Comp. Gen. July 2) (emphasis added). Such a\nrequirement \xe2\x80\x9cis not satisfied merely by showing that an agency has legislative\nauthority to hold conventions or other assemblages\xe2\x80\x9d or \xe2\x80\x9cauthority to train private\nindividuals.\xe2\x80\x9d Id. The Comptroller General therefore reasoned that a statute that\nauthorized an agency to \xe2\x80\x9cexpand programs for the education and training\xe2\x80\x9d of mine\noperators and agents did not speak with sufficient specificity to establish an\nexception to section 1345. Id. at *1 (internal quotation marks omitted).\nSimilarly, in the 1935 opinion discussed above in Part II, the Comptroller General opined that a statute authorizing \xe2\x80\x9cevery expenditure requisite for or incident to\nthe work of the American Battle Monuments Commission\xe2\x80\x9d did not provide\nspecific authority for purposes of the identically phrased exception in section 551,\n\n60\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\nthe predecessor of section 1345: \xe2\x80\x9cGeneral terms such as [those] quoted . . . are not\nsufficient to make an appropriation available for such purposes.\xe2\x80\x9d Conventions and\nGatherings, 14 Comp. Gen. at 851, 852 (internal quotation marks omitted in first\nquotation). In the 1983 NHTSA Opinion, also discussed above, he likewise opined\nthat a statute permitting the Secretary of Transportation to \xe2\x80\x9ccooperate with\nappropriate State and local officials to the greatest extent possible consistent with\nthe purposes of this subsection\xe2\x80\x9d did not speak with sufficient specificity: \xe2\x80\x9c[T]here\nis a distinction between the general authority to hold a conference and the specific\nauthority to overcome the prohibition in 31 U.S.C. \xc2\xa7 1345.\xe2\x80\x9d 62 Comp. Gen. at\n531\xe2\x80\x9332 (internal quotation marks omitted in first quotation). And in 1975, the\nComptroller General opined that a statute permitting an agency, for various\npurposes, to \xe2\x80\x9cconduct, and encourage, cooperate with, and render financial and\nother assistance to appropriate public (whether federal, state, interstate, or local)\nauthorities, agencies, and institutions, private agencies and institutions, and\nindividuals\xe2\x80\x9d did not provide the specific authority for an exception to section 551.\nUse of Appropriated Funds in Connection with National Solid Waste Management\nAssociation Convention, B-166506, 1975 WL 8253, at *1\xe2\x80\x932 (July 15) (internal\nquotation marks omitted). Although he acknowledged that such a statute may give\nthe agency \xe2\x80\x9cthe authority to hold conventions,\xe2\x80\x9d the statute did not permit \xe2\x80\x9cthe\npayment from appropriated funds of transportation and lodging expenses of state\nofficials or employees to attend such conventions.\xe2\x80\x9d Id. at *3.\nThe Comptroller General has twice found sufficient specificity, in statutes\nrequiring (rather than merely authorizing) a conference, and requiring it to have\nwide representation. In 1991, he opined that the Commission on Interstate Child\nSupport could spend appropriated funds on transportation and subsistence\nexpenses of conference invitees under a statute requiring that it hold one or more\nnational conferences on child support reform, directing that it ensure wide\nrepresentation at the conference, and permitting the Commission to adopt such\nrules and procedures as it deemed appropriate. Commission on Interstate Child\nSupport\xe2\x80\x94Payment of Lodging and Meal Expenses of Certain Attendees at the\nNational Conference on Interstate Child Support, B-242880, 1991 WL 71686, at\n*2\xe2\x80\x933 (Mar. 27). According to the Comptroller General, \xe2\x80\x9cThe main difference\nbetween [such a] conference and the other section 1345 cases is between a general\ngrant of authority that may be broad enough to permit an agency to hold a\nconference as opposed to a specific statutory directive to hold a conference in\norder to implement the law.\xe2\x80\x9d Id. at *2. This 1991 opinion relied on a 1955\nprecedent stating that \xe2\x80\x9c[t]he express provision in the enabling act that the White\nHouse Conference on Education be \xe2\x80\x98broadly representative of educators and other\ninterested citizens from all parts of the Nation,\xe2\x80\x99 when considered in conjunction\nwith the provision authorizing the appropriation of such sums as the Congress\ndetermines to be necessary for the \xe2\x80\x98administration\xe2\x80\x99 of that act, is considered to be\nsufficiently broad to authorize the appropriation of funds for necessary travel\nexpenses.\xe2\x80\x9d Appropriations\xe2\x80\x94Availability\xe2\x80\x94Travel Expenses of Delegates to White\nHouse Conference on Education, 35 Comp. Gen. 129, 132 (1955). Even assuming\n\n61\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nthat these decisions are correct, which we have no occasion to consider, they do\nnot apply here because none of the statutes that you have cited requires that a\nconference be held or that any conference have wide representation. Similarly, the\nComptroller General in his 1983 NHTSA Opinion declined to apply the 1955\nopinion where the statutory provision at issue did \xe2\x80\x9cnot mandate that a conference\nbe held,\xe2\x80\x9d 62 Comp. Gen. at 532, a view he reiterated in 1991, see Commission on\nInterstate Child Support, 1991 WL 71686, at *1 (distinguishing the workshops in\nthe NHTSA Opinion because the act in question \xe2\x80\x9cdid not mandate that workshops\nbe held\xe2\x80\x9d).\nIV.\nFinally, given our answers in Parts II and III to your questions regarding light\nrefreshments and section 1345, you have asked whether a violation of that\nprovision also violates the Anti-Deficiency Act, codified at 31 U.S.C. \xc2\xa7\xc2\xa7 1341\xe2\x80\x93\n1342, 1349\xe2\x80\x931351, 1511\xe2\x80\x931519 (2000). We conclude that a violation of section\n1345 does not, by that fact alone, also violate the ADA, because section 1345 is\nnot part of an appropriation. This conclusion rests on the text, structure, and\nhistory of the Act, which together establish that the Act proscribes violations of\nlimits in the relevant appropriation, not violations of all statutory law. This\nconclusion should not be construed as in any way condoning violations of section\n1345, and we do not consider other sanctions that may apply to a violation of\nsection 1345. 2\nThe provision of the ADA primarily at issue prohibits \xe2\x80\x9c[a]n officer or employee\nof the United States Government or of the District of Columbia government\xe2\x80\x9d from\n\xe2\x80\x9cmak[ing] or authoriz[ing] an expenditure or obligation exceeding an amount\navailable in an appropriation or fund for the expenditure or obligation.\xe2\x80\x9d 31\nU.S.C. \xc2\xa7 1341(a)(1)(A) (emphasis added). A knowing and willful violation is\nsubject to a fine of up to $5,000 and up to two years in prison. Id. \xc2\xa7 1350. The\nADA also requires reporting to the President and Congress violations of section\n1341(a), which provide grounds for administrative discipline including removal\n2\n\nCongress has ample authority and means to impose penalties, whether derived from the ADA or\nnot, for violating statutory restrictions on spending such as section 1345. Among other things, it may\nincorporate into such a statute by reference the penalties of the ADA, or it may incorporate the statute\nby reference into a given appropriation, thus making the ADA apply to a violation pursuant to our\nreasoning below and in our 2001 ADA opinion discussed below. \xe2\x80\x9c[A] statute may refer to another and\nincorporate part or all of it by reference.\xe2\x80\x9d Norman J. Singer, 2B Sutherland on Statutes and Statutory\nConstruction \xc2\xa7 51.07, at 267 (6th ed. 2000). \xe2\x80\x9cThere are two general types of reference statutes: statutes\nof specific reference and statutes of general reference.\xe2\x80\x9d Id. at 269. The former type \xe2\x80\x9crefers specifically\nto a particular statute by its title or section number.\xe2\x80\x9d Id. The latter type \xe2\x80\x9crefers to the law on the subject\ngenerally,\xe2\x80\x9d for example by stating that \xe2\x80\x9ccontracts made under the statute are to be made \xe2\x80\x98in the manner\nnow provided by law.\xe2\x80\x99\xe2\x80\x9d Id. at 269\xe2\x80\x9370. We do not have before us any particular appropriation (which\nmight be said, depending on its text, to incorporate section 1345 through an internal cap or condition),\nnor does section 1345 by its terms either specifically or generally incorporate the penalties of the ADA.\n\n62\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\nfrom office. Id. \xc2\xa7\xc2\xa7 1349, 1351. You have stated that, if we conclude that a\nviolation of section 1345 violates the ADA, you would \xe2\x80\x9creport . . . immediately\xe2\x80\x9d\npursuant to this provision any violations that may have resulted from the legal\nuncertainty. (Our conclusion that the ADA does not apply to require reporting a\nviolation of section 1345 says nothing, of course, about the advisability of EPA\xe2\x80\x99s\ndoing so, to the President and, with appropriate permission, the Congress.)\nAn officer or employee most clearly would violate the ADA if an appropriations statute appropriated $X for some account or object, and he spent more than\n$X\xe2\x80\x94in other words, \xe2\x80\x9cexcess\xe2\x80\x9d or \xe2\x80\x9cdeficiency\xe2\x80\x9d spending. That is the scenario that\nnearly all judicial interpretations of the Act have considered. In Hooe v. United\nStates, 218 U.S. 322 (1910), for example, the Supreme Court noted that an agency\nwould have violated an earlier version of the Act had it incurred an obligation for\nthe rental of a building in excess of an appropriation authorizing a certain amount\nof moneys \xe2\x80\x9cin full compensation for\xe2\x80\x9d that rental in a particular fiscal year. Id. at\n332; see also Sutton v. United States, 256 U.S. 575, 580\xe2\x80\x9381 (1921) (holding under\nearlier version of Act that the Secretary of War did not have, among other things,\n\xe2\x80\x9cauthority . . . to obligate the Government\xe2\x80\x9d to pay more for improving a channel\nthan Congress had appropriated for that purpose); Bradley v. United States, 98\nU.S. 104 (1878) (similar to Hooe); Office of Personnel Mgmt. v. Richmond, 496\nU.S. 414, 430 (1990) (citing sections 1341 and 1350 for the proposition that it is a\ncrime to \xe2\x80\x9cknowingly spend money in excess of that appropriated\xe2\x80\x9d); Hercules, Inc.\nv. United States, 516 U.S. 417, 427 (1996) (\xe2\x80\x9cThe [ADA] bars a federal employee\nor agency from entering into a contract for future payment of money in advance\nof, or in excess of, an existing appropriation.\xe2\x80\x9d). And the Federal Circuit has noted\nthat a federal agency could not fund certain entitlements beyond the amount that\nCongress had appropriated for them, because the ADA \xe2\x80\x9cmakes it clear that an\nagency may not spend more money for a program than has been appropriated for\nthat program.\xe2\x80\x9d Highland Falls-Fort Montgomery Cent. Sch. Dist. v. United States,\n48 F.3d 1166, 1171 (1995); see also E. Band of Cherokee Indians v. United States,\n16 Cl. Ct. 75 (1988) (similar).\nIn 2001, this Office faced the question whether the ADA extended to a different\nscenario: an expenditure of funds that did not exceed the applicable appropriated\namount but did violate certain kinds of restrictions contained in the appropriation\xe2\x80\x94namely, a \xe2\x80\x9ccondition\xe2\x80\x9d (which \xe2\x80\x9cwould prohibit an agency from expending\nany of its funds for a particular purpose\xe2\x80\x9d) or an \xe2\x80\x9cinternal cap\xe2\x80\x9d (which \xe2\x80\x9cwould\nprohibit an agency from expending any of its funds in excess of a designated\namount for a particular purpose\xe2\x80\x9d). Applicability of the Antideficiency Act to a\nViolation of a Condition or Internal Cap Within an Appropriation, 25 Op. O.L.C.\n33, 33\xe2\x80\x9334 (2001) (\xe2\x80\x9c2001 ADA Opinion\xe2\x80\x9d). We gave \xe2\x80\x9ca narrow definition\xe2\x80\x9d to these\ncategories, excluding from our consideration, for example, \xe2\x80\x9cceilings within\nparticular appropriations acts,\xe2\x80\x9d which would apply to all funds appropriated by an\nact. Id. at 34. As an example of an \xe2\x80\x9cinternal cap,\xe2\x80\x9d we quoted an appropriation act\nfor the Department of Justice that, in a single paragraph, appropriated approxi-\n\n63\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nmately $1 billion for \xe2\x80\x9csalaries and expenses for the Border Patrol program, the\ndetention and deportation program, the intelligence program, and the inspections\nprogram\xe2\x80\x9d and \xe2\x80\x9c[p]rovided . . . [t]hat none of the funds available to the [Immigration and Naturalization Service] shall be available to pay any employee overtime\npay in an amount in excess of $30,000\xe2\x80\x9d in a particular period. Id. (internal\nquotation marks omitted).\nWe concluded that to violate a \xe2\x80\x9ccondition\xe2\x80\x9d or \xe2\x80\x9cinternal cap\xe2\x80\x9d in an appropriation\nwould be to \xe2\x80\x9cmake or authorize an expenditure or obligation exceeding an amount\navailable in an appropriation or fund for the expenditure or obligation.\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1341(a)(1)(A). We acknowledged that one might read this text (together with the\nlanguage of other parts of the Act) as simply barring \xe2\x80\x9cthose expenditures that\nexceed the total amount of funds Congress has provided within a particular\naccount,\xe2\x80\x9d 2001 ADA Opinion, 25 Op. O.L.C. at 36\xe2\x80\x94that is, as mandating \xe2\x80\x9cno\nspending \xe2\x80\x98after funds are exhausted,\xe2\x80\x99\xe2\x80\x9d id.\xe2\x80\x94but reasoned that \xe2\x80\x9cCongress\xe2\x80\x99s obvious\nconcern with overall deficiencies caused by expenditures in excess of appropriated\nfunds does not, however, exclude the possibility that it also intended through the\n[ADA] to enforce its appropriations power by exercising control over the purposes\nfor which agencies may use their appropriated funds,\xe2\x80\x9d id. at 37 (emphasis in\noriginal). We relied on two primary arguments to conclude that Congress had so\nintended with regard to conditions and internal caps.\nFirst, we stated that the word \xe2\x80\x9cavailable\xe2\x80\x9d in section 1341(a)(1)(A) \xe2\x80\x9cis modified\nby the phrase \xe2\x80\x98for the expenditure or obligation.\xe2\x80\x99\xe2\x80\x9d Id. at 37\xe2\x80\x9338; see also id. at 35,\n36, 48 (indicating this view by adding emphases to statutory text). We thought that\nthe inclusion of this phrase \xe2\x80\x9csuggests\xe2\x80\x9d an intent to incorporate a \xe2\x80\x9clegal permissibility\xe2\x80\x9d component, because \xe2\x80\x9c[i]f Congress had intended to address solely the problem\nof overall deficiency spending, this phrase would appear somewhat superfluous.\nCongress could have simply prohibited any expenditure or obligation \xe2\x80\x98exceeding\nan amount available in an appropriation.\xe2\x80\x99\xe2\x80\x9d Id. at 37\xe2\x80\x9338. Congress\xe2\x80\x99s use of\nadditional language, we reasoned, \xe2\x80\x9csuggests that the term \xe2\x80\x98available\xe2\x80\x99 should be\nconstrued more broadly to encompass the concept of legal permissibility.\xe2\x80\x9d Id. at\n38. Second, we cited several statutes (both appropriations acts and provisions of\ntitle 31 codified near the ADA and referring to appropriations) in which \xe2\x80\x9cCongress\nused the term \xe2\x80\x98available\xe2\x80\x99 in a manner that is not dependent on whether funds are\nactually \xe2\x80\x98unobligated,\xe2\x80\x99 and that instead limits the permissible purposes for which\nfunds may be spent.\xe2\x80\x9d Id. Section 1343(d), for example, provides that an appropriation \xe2\x80\x9cis available to buy, maintain, or operate an aircraft only if the appropriation\nspecifically authorizes the purchase, maintenance, or operation.\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1343(d) (2000); see 2001 ADA Opinion, 25 Op. O.L.C. at 38; but cf. id. at 36\xe2\x80\x93\n37 & n.5 (acknowledging authority suggesting a different sense of \xe2\x80\x9cavailable\xe2\x80\x9d in\nthis context). In addition, although describing the question before us as \xe2\x80\x9ca difficult\nissue of first impression for this Office,\xe2\x80\x9d we noted that the Office in a 1984\nmemorandum had assumed without discussion that the violation of \xe2\x80\x9ca condition\nwithin an appropriation\xe2\x80\x9d ordinarily would violate the ADA. Id. at 35 n.2 (describ-\n\n64\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\ning Memorandum for the Attorney General, from Theodore B. Olson, Assistant\nAttorney General, Office of Legal Counsel, Re: Application of the Independent\nCounsel Provisions of the Ethics in Government Act to Alleged Violations of the\nBoland Amendment and the Antideficiency Act (Apr. 27, 1984)). 3\nOur 2001 ADA Opinion did not address, among other things, \xe2\x80\x9cceilings\xe2\x80\x9d (as\nnoted above), the application of the ADA to amounts in a \xe2\x80\x9cfund,\xe2\x80\x9d or, most\nimportantly for present purposes, \xe2\x80\x9crestrictions . . . not found in appropriations\nacts.\xe2\x80\x9d Id. at 34 n.1. Nor, as this caveat indicated, does the general recognition that\nthe term \xe2\x80\x9cavailable\xe2\x80\x9d in section 1341(a)(1)(A) incorporates a concept of \xe2\x80\x9cvalidity\xe2\x80\x9d\nand suggests \xe2\x80\x9clegal permissibility\xe2\x80\x9d resolve the scope of such a concept under the\nterms of the statute and thereby answer the question whether the ADA applies to a\nrestriction not found in an appropriation.\nThe ADA prohibits \xe2\x80\x9can expenditure or obligation exceeding an amount available in an appropriation . . . for the expenditure or obligation.\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1341(a)(1)(A) (emphasis added). Much as we thought in the 2001 ADA Opinion\nthat reading this statute not to include some legal permissibility standard would\nhave left the phrase \xe2\x80\x9cfor the expenditure or obligation\xe2\x80\x9d \xe2\x80\x9csomewhat superfluous,\xe2\x80\x9d\nhere reading the statute to apply to the violation of a codified statute such as\nsection 1345\xe2\x80\x94not part of an appropriation making an amount available for\nexpenditure or obligation\xe2\x80\x94would leave the phrase \xe2\x80\x9cin an appropriation\xe2\x80\x9d without\nany clear purpose. Congress could have prohibited simply expenditures or\nobligations \xe2\x80\x9cexceeding an amount available for the expenditure or obligation,\xe2\x80\x9d\nwhich might, given our reading of \xe2\x80\x9cavailable\xe2\x80\x9d in our earlier opinion, have\nsuggested a broad inquiry into all possible legal constraints on the \xe2\x80\x9cavailab[ility]\xe2\x80\x9d\nof an amount for an expenditure or obligation. The inclusion of the phrase \xe2\x80\x9cin an\nappropriation\xe2\x80\x9d suggests a more restrictive intent, such that one should answer the\nquestion of \xe2\x80\x9cavailab[ility]\xe2\x80\x9d by determining \xe2\x80\x9cavailab[ility]\xe2\x80\x9d within the terms of a\nparticular \xe2\x80\x9cappropriation.\xe2\x80\x9d\nMoreover, and related, the concluding prepositional phrase \xe2\x80\x9cfor the expenditure\nor obligation\xe2\x80\x9d in section 1341(a)(1)(A) is better read as modifying the noun\n\xe2\x80\x9cappropriation\xe2\x80\x9d (or \xe2\x80\x9cfund\xe2\x80\x9d) rather than, as our prior opinion asserted, the earlier\nadjective \xe2\x80\x9cavailable.\xe2\x80\x9d The full relevant portion of the ADA refers to \xe2\x80\x9can expenditure or obligation exceeding an amount available in an appropriation or fund for\n\n3\nWe rejected the holding of Southern Packaging & Storage Co. v. United States, 588 F. Supp. 532\n(D.S.C. 1984), that violation of a \xe2\x80\x9cbuy American\xe2\x80\x9d condition in an appropriations act did not violate the\nADA. That court so held because it had \xe2\x80\x9cno evidence . . . that [the Defense Department] authorized\nexpenditures beyond the amount appropriated by Congress for the procurement of\xe2\x80\x9d the items in\nquestion. Id. at 550. We disagreed with \xe2\x80\x9cthe court\xe2\x80\x99s apparent conclusion that, even though the\nappropriation forbade the purchase of non-American food items, there remained funds \xe2\x80\x98available\xe2\x80\x99 in\nthat appropriation for such purchases.\xe2\x80\x9d The court\xe2\x80\x99s decision, we thought, was \xe2\x80\x9cinconsistent with the\nAntideficiency Act\xe2\x80\x99s legislative history and evolution and with the rest of the (limited) caselaw.\xe2\x80\x9d 2001\nADA Opinion, 25 Op. O.L.C. at 52.\n\n65\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nthe expenditure or obligation.\xe2\x80\x9d Based on proximity, it is more credible to read the\nstatute as referring to amounts \xe2\x80\x9cavailable\xe2\x80\x9d in an appropriation that is \xe2\x80\x9cfor the\nexpenditure or obligation\xe2\x80\x9d in question, rather than as essentially stating that the\namount must be broadly \xe2\x80\x9cavailable for the expenditure or obligation\xe2\x80\x9d and also \xe2\x80\x9cin\nan appropriation.\xe2\x80\x9d The statutory history (discussed further below) also suggests\nthis construction, as recognized in the 2001 ADA Opinion. In finding support for\nour reading of \xe2\x80\x9cavailable\xe2\x80\x9d in the existence of the phrase \xe2\x80\x9cfor the expenditure or\nobligation,\xe2\x80\x9d we acknowledged, based on the version of the Act in force from 1950\nto 1982, that the entire phrase \xe2\x80\x9can amount available in an appropriation or fund for\nthe expenditure or obligation\xe2\x80\x9d could be interchangeable with \xe2\x80\x9cthe amount\navailable []in\xe2\x80\x9d the \xe2\x80\x9cappropriation or fund\xe2\x80\x9d under which an expenditure or obligation was made. 2001 ADA Opinion, 25 Op. O.L.C. at 39; see also id. at 47\xe2\x80\x9348.\nBecause in the earlier opinion we limited our consideration to \xe2\x80\x9cinternal caps\xe2\x80\x9d\nand \xe2\x80\x9cconditions,\xe2\x80\x9d this interpretation of the textual structure gives us no reason to\nquestion our ultimate conclusion there, even though that opinion purported to rely\non a different interpretation of the structure: Once one identifies the \xe2\x80\x9cappropriation\nor fund for the expenditure or obligation\xe2\x80\x9d that is at issue, there is still the question\nof what amount is \xe2\x80\x9cavailable in\xe2\x80\x9d that appropriation, and our prior opinion determined that a limitation on spending that is \xe2\x80\x9cin an appropriation\xe2\x80\x9d is one whose\nviolation also would violate the ADA. The assertion of how the phrase \xe2\x80\x9cfor the\nexpenditure or obligation\xe2\x80\x9d related to the rest of the provision was not necessary to\nreach that conclusion, given that the opinion provided additional bases for its\nreading of \xe2\x80\x9cavailable.\xe2\x80\x9d But the different understanding of the textual structure does\nmake a difference here, because a proper reading reinforces that the ADA does not\nimpose a roving requirement of \xe2\x80\x9cavailability\xe2\x80\x9d under all possibly applicable law,\nbut rather requires \xe2\x80\x9cavailability\xe2\x80\x9d in the particular \xe2\x80\x9cappropriation . . . for the expenditure or obligation\xe2\x80\x9d\xe2\x80\x94whether \xe2\x80\x9cavailability\xe2\x80\x9d in the narrow sense of the\nexistence of \xe2\x80\x9cunobligated\xe2\x80\x9d amounts \xe2\x80\x9cin\xe2\x80\x9d the appropriation or in the more extended\nsense of amounts not being subject to a restriction that is \xe2\x80\x9cin\xe2\x80\x9d the appropriation,\nsuch as the \xe2\x80\x9cinternal cap\xe2\x80\x9d addressed in the 2001 ADA Opinion. One can readily\naccept our prior reading of \xe2\x80\x9cavailable\xe2\x80\x9d as having, since that term was introduced\ninto the ADA in 1950, \xe2\x80\x9cincorporated the concept of legal permissibility,\xe2\x80\x9d 25 Op.\nO.L.C. at 39, and still conclude that the question of permissibility applies only \xe2\x80\x9cin\nan appropriation.\xe2\x80\x9d\nA proper understanding of the term \xe2\x80\x9cappropriation\xe2\x80\x9d as used in the ADA further\nsupports this interpretation of section 1341. That term refers not to a particular pot of\nmoney\xe2\x80\x94such that one might say availability is determined by all laws that apply to\nthat pot\xe2\x80\x94but rather to a particular legislative authorization of a federal agency to\nspend a particular amount of money for some purpose. An \xe2\x80\x9cappropriation\xe2\x80\x9d is a\n\xe2\x80\x9clegislative body\xe2\x80\x99s act of setting aside a sum of money for a public purpose.\xe2\x80\x9d\nBlack\xe2\x80\x99s Law Dictionary 110 (8th ed. 2004). The congressional GAO (formerly\nknown as the General Accounting Office) has defined the word similarly to mean\n\xe2\x80\x9c[a]uthority given to federal agencies to incur obligations and to make payments\n\n66\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\nfrom the Treasury for specified purposes.\xe2\x80\x9d General Accounting Office,\nGAO/AFMD-2.1.1, A Glossary of Terms Used in the Federal Budget Process 21\n(1993). The GAO also has explained that \xe2\x80\x9c[a]ppropriations do not represent cash\nactually set aside in the Treasury. They represent legal authority granted by Congress to incur obligations and to make disbursements for the purposes, during the\ntime periods, and up to the amount limitations specified in the appropriation acts.\xe2\x80\x9d\n1 General Accounting Office, Principles of Federal Appropriations Law 2-5 (3d ed.\n2004) (\xe2\x80\x9cFederal Appropriations Law\xe2\x80\x9d). The courts of appeals have adopted a similar\ndefinition. See, e.g., United States ex rel. Becker v. Westinghouse Savannah River\nCo., 305 F.3d 284, 286 n.1 (4th Cir. 2002) (citing the GAO definition). And section\n1341(b), although not defining \xe2\x80\x9cappropriation,\xe2\x80\x9d contemplates that purchases may be\nmade using money from \xe2\x80\x9can appropriation made to a regular contingent fund\xe2\x80\x9d\xe2\x80\x94a\nlegislative authorization of a particular amount for a fund.\nTwo sections of title 31 define the term \xe2\x80\x9cappropriations\xe2\x80\x9d similarly to the above\nauthority. See 31 U.S.C. \xc2\xa7\xc2\xa7 701, 1511 (2000). Although both of these provisions\ndefine the term only for the chapter or subchapter in which they appear, of which\nsection 1341 is not a part, it is nevertheless reasonable to turn to them for guidance\nregarding the same term used elsewhere in that title. Section 1511, which concerns\napportioning an appropriation across the period of the appropriation and, as indicated\nabove, is part of the ADA, see generally 2001 ADA Opinion, 25 Op. O.L.C. at 36\xe2\x80\x93\n37, defines \xe2\x80\x9cappropriations\xe2\x80\x9d to mean \xe2\x80\x9cappropriated amounts,\xe2\x80\x9d \xe2\x80\x9cfunds,\xe2\x80\x9d and \xe2\x80\x9cauthority to make obligations by contract before appropriations.\xe2\x80\x9d 31 U.S.C. \xc2\xa7 1511(a); see\nalso id. \xc2\xa7\xc2\xa7 1512\xe2\x80\x931514 (similar, part of the subchapter to which section 1511\napplies). Section 701, which concerns the work of the GAO, defines \xe2\x80\x9cappropriations\xe2\x80\x9d as \xe2\x80\x9cappropriated amounts,\xe2\x80\x9d which includes, depending on the \xe2\x80\x9cappropriate\ncontext,\xe2\x80\x9d \xe2\x80\x9cfunds,\xe2\x80\x9d \xe2\x80\x9cauthority to make obligations by contract before appropriations,\xe2\x80\x9d\nand \xe2\x80\x9cother authority making amounts available for obligation or expenditure.\xe2\x80\x9d Id.\n\xc2\xa7 701(2); see also id. \xc2\xa7 1341(a)(1)(B) (providing that an employee may not involve\nthe government \xe2\x80\x9cin a contract or obligation for the payment of money before an\nappropriation is made unless authorized by law\xe2\x80\x9d) (emphasis added). Thus, it is an\n\xe2\x80\x9cappropriation\xe2\x80\x9d that makes an amount available; the appropriation is not the physical\namount that is available. Amounts are appropriated by proper authority, and an\nappropriation is something that is made. See, e.g., 2001 ADA Opinion, 25 Op.\nO.L.C. at 37 (referring to \xe2\x80\x9cappropriated funds\xe2\x80\x9d); id. at 45, 50 (same); id. at 52\n(referring to a use of funds that \xe2\x80\x9cthe appropriation forbade\xe2\x80\x9d). Accordingly, to\ndetermine under the ADA the \xe2\x80\x9camount available in an appropriation . . . for [an]\nexpenditure or obligation,\xe2\x80\x9d we must look to the applicable legislative act making the\namounts in question available for obligation or expenditure\xe2\x80\x94that is, to the applicable appropriation.\nA rule of construction that Congress has codified in title 31, and that applies to\nsection 1341, reinforces this understanding of what an \xe2\x80\x9cappropriation\xe2\x80\x9d is, and thus\nwhere one looks to determine the amount available \xe2\x80\x9cin an appropriation.\xe2\x80\x9d Section\n1301(d) provides that \xe2\x80\x9c[a] law may be construed to make an appropriation out of\n\n67\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nthe Treasury or to authorize making a contract for the payment of money in excess\nof an appropriation only if the law specifically states that an appropriation is made\nor that such a contract may be made\xe2\x80\x9d (emphasis added). Enabling legislation, for\nexample, has typically been viewed as not an \xe2\x80\x9cappropriation.\xe2\x80\x9d See, e.g., 1 Federal\nAppropriations Law at 2-40 (noting that \xe2\x80\x9cappropriation acts\xe2\x80\x9d \xe2\x80\x9cmust be distinguished from\xe2\x80\x9d enabling or organic legislation, which typically \xe2\x80\x9cdoes not provide\nany money\xe2\x80\x9d). We do not see why the interpretive rule of section 1301(d) would\nnot also apply to resolve any doubt about the scope of the ADA, such that a\nprovision limiting the government\xe2\x80\x99s ability to perform certain functions, including\nlimiting expenditures, is not \xe2\x80\x9cin an appropriation\xe2\x80\x9d for purposes of section 1341\xe2\x80\x94\nand thus does not alter the \xe2\x80\x9camount available in an appropriation\xe2\x80\x9d for a given\nexpenditure or obligation\xe2\x80\x94unless it is found in a \xe2\x80\x9claw specifically stat[ing] that an\nappropriation is made\xe2\x80\x9d for the object in question.\nThe statutory history of the ADA further supports our conclusion that a violation of a statutory restriction on spending does not violate that Act where the\nrestriction is not \xe2\x80\x9cin an appropriation.\xe2\x80\x9d Throughout the four versions it has had in\nits long history, and even as Congress has broadened its scope somewhat, the\nADA always has focused on expenditures in excess of sums in \xe2\x80\x9cappropriations\xe2\x80\x9d or\n\xe2\x80\x9can appropriation,\xe2\x80\x9d and thus respected the distinction between appropriations and\nother legislation. The initial 1870 version prohibited \xe2\x80\x9cany department of the\ngovernment\xe2\x80\x9d from \xe2\x80\x9cexpend[ing] in any one fiscal year any sum in excess of\nappropriations made by Congress for that fiscal year.\xe2\x80\x9d Act of July 12, 1870, ch.\n251, \xc2\xa7 7, 16 Stat. 230, 251 (emphasis added). The 1905 version similarly required\nthat \xe2\x80\x9c[n]o Department of the Government shall expend, in any one fiscal year, any\nsum in excess of appropriations made by Congress for that fiscal year.\xe2\x80\x9d Act of\nMar. 3, 1905, ch. 1484, sec. 4, \xc2\xa7 3679, 33 Stat. 1214, 1257 (emphasis added). The\n1950 revision stated: \xe2\x80\x9cNo officer or employee of the United States shall make or\nauthorize an expenditure from or create or authorize an obligation under any\nappropriation or fund in excess of the amount available therein.\xe2\x80\x9d Pub. L. No. 81759, sec. 1211, \xc2\xa7 3679, 64 Stat. 595, 765 (1950) (emphases added). The current\nlanguage of section 1341 was enacted as part of a general recodification of title 31\nin 1982 and thus was not intended to work any substantive change, as we have\nrecognized. See, e.g., 2001 ADA Opinion, 25 Op. O.L.C. at 39. The preamble to\nthe recodification stated that the bill\xe2\x80\x99s purpose was \xe2\x80\x9c[t]o revise, codify, and enact\nwithout substantive change certain general and permanent laws, related to money\nand finance, as title 31, United States Code, \xe2\x80\x98Money and Finance.\xe2\x80\x99\xe2\x80\x9d Pub. L. No.\n97-258, 96 Stat. 877, 877 (1982); see also Finley v. United States, 490 U.S. 545,\n554 (1989) (\xe2\x80\x9cUnder established canons of statutory construction, \xe2\x80\x98it will not be\ninferred that Congress, in revising and consolidating the laws, intended to change\ntheir effect unless such intention is clearly expressed.\xe2\x80\x99\xe2\x80\x9d); see generally 2001 ADA\nOpinion, 25 Op. O.L.C. at 42\xe2\x80\x9349 (canvassing the statutory and legislative histories\nof the Act in greater detail). Thus, the 1950 and current versions should be read in\nharmony, and the 1950 version, together with its predecessors, confirms the need\n\n68\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\nto focus on what an appropriation from which an expenditure is to be made (or\nunder which an obligation is to be incurred) does or does not make \xe2\x80\x9cavailable.\xe2\x80\x9d\nThe major substantive change during this history (apart from the addition of the\nword \xe2\x80\x9cfund\xe2\x80\x9d in 1950) was, as we explained in the 2001 ADA Opinion, the shift in\n1950, continued in the current version, from a focus on \xe2\x80\x9coverall spending\xe2\x80\x9d by a\nparticular department for a fiscal year, under appropriations made for that department, to a focus on \xe2\x80\x9cspending out of particular appropriations\xe2\x80\x9d and on \xe2\x80\x9cexpenditures\nin excess of any single appropriation or fund.\xe2\x80\x9d Id. at 47, 48. Congress thus did\nbroaden the Act. But, as our earlier explanation indicates, the ADA continued to\nfocus, indeed even more than before, on particular legislative authorizations of\nspending\xe2\x80\x94on the \xe2\x80\x9cappropriation . . . for the expenditure or obligation.\xe2\x80\x9d Congress, in\nmaking the ADA\xe2\x80\x99s requirements more stringent, did not silently add to the ADA a\nnew sanction for all violations of statutory restrictions on spending, whether in an\nappropriation or ordinary legislation. 4\nFinally, to the extent that the above analysis leaves any ambiguity about whether\nviolations of restrictions on spending not in the appropriation violate section\n1341(a), our reading finds further support in the rule of lenity\xe2\x80\x94the canon that if\nambiguity remains in a criminal statute after textual, structural, historical, and\nprecedential analyses have been exhausted, the narrower construction should prevail.\nSee, e.g., Leocal v. Ashcroft, 543 U.S. 1, 11 n.8 (2004) (\xe2\x80\x9cEven if [the relevant\nstatute] lacked clarity on this point, we would be constrained to interpret any\nambiguity in the statute in petitioner\xe2\x80\x99s favor.\xe2\x80\x9d). As noted above, the ADA carries\nboth administrative (section 1351) and criminal (section 1350) penalties for its\nviolations. The Supreme Court in Leocal unanimously held that, where (as here) a\nstatute has \xe2\x80\x9cboth criminal and noncriminal applications,\xe2\x80\x9d the rule of lenity applies in\nall applications, to ensure a consistent interpretation. Id. Our 2001 ADA Opinion did\nconsider and reject the applicability of the rule of lenity to the distinct question\nwhether to \xe2\x80\x9cequat[e] the terms \xe2\x80\x98available\xe2\x80\x99 and \xe2\x80\x98unobligated,\xe2\x80\x99\xe2\x80\x9d such that a cap or\ncondition in an appropriation would not affect the \xe2\x80\x9camount available in an appropria4\nIt is not clear how the term \xe2\x80\x9cfund\xe2\x80\x9d (added to the ADA in 1950) would be read in harmony with the\nterm \xe2\x80\x9cappropriation.\xe2\x80\x9d and, thus, whether one could understand the phrase \xe2\x80\x9camount available in a . . . fund\nfor the expenditure or obligation\xe2\x80\x9d in precisely the same sense as the phrase \xe2\x80\x9camount available in an\nappropriation . . . for the expenditure or obligation.\xe2\x80\x9d We are unaware of any judicial cases, opinions of this\nOffice, or decisions of the Comptroller General interpreting section 1341(a)(1)(A) as applied to a \xe2\x80\x9cfund.\xe2\x80\x9d\nAlthough under normal rules of construction one presumptively should seek to read two seemingly parallel\nwords in a statute, such as \xe2\x80\x9cappropriation\xe2\x80\x9d and \xe2\x80\x9cfund,\xe2\x80\x9d to have similar meanings, there may be reasons not\nto do so in section 1341. One can, as explained above, refer to an \xe2\x80\x9cappropriation made by Congress\xe2\x80\x9d and\nto \xe2\x80\x9cappropriated funds,\xe2\x80\x9d but it is not clear how one might use \xe2\x80\x9cfund\xe2\x80\x9d (or \xe2\x80\x9cfunded\xe2\x80\x9d) in the same sense.\nSimilarly, section 1341(b) refers to \xe2\x80\x9can appropriation made to a regular contingent fund,\xe2\x80\x9d 31 U.S.C.\n\xc2\xa7 1341(b) (emphasis added), and one would not ordinarily refer to \xe2\x80\x9ca fund made to a regular contingent\nfund\xe2\x80\x9d (or an appropriation made to an appropriation). Nor is it clear what it would mean to \xe2\x80\x9cauthorize an\nobligation under . . . [a] fund.\xe2\x80\x9d We need not resolve such questions here, just as our 2001 ADA Opinion\ndid not resolve them, because the facts that you have provided do not suggest the involvement of any\n\xe2\x80\x9cfund\xe2\x80\x9d as a possible source of expenditures for light refreshments.\n\n69\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\ntion\xe2\x80\x9d for a given \xe2\x80\x9cexpenditure or obligation.\xe2\x80\x9d 25 Op. O.L.C. at 41. We did so\nbecause, although the language of the ADA \xe2\x80\x9cadmits of some ambiguity,\xe2\x80\x9d we found\nno serious ambiguity or \xe2\x80\x9ccomplete equipoise\xe2\x80\x9d on this question. Id. But, as noted\nabove, to conclude simply that \xe2\x80\x9cavailable\xe2\x80\x9d means more than \xe2\x80\x9cunobligated,\xe2\x80\x9d such that\nthe ADA would apply to an internal cap or condition\xe2\x80\x94\xe2\x80\x9cin an appropriation\xe2\x80\x9d\xe2\x80\x94does\nnot answer just how far beyond \xe2\x80\x9cobligated\xe2\x80\x9d that term reaches, and in particular the\ncritical question whether it reaches beyond the \xe2\x80\x9cappropriation\xe2\x80\x9d that makes \xe2\x80\x9can\namount available . . . for [an] expenditure or obligation,\xe2\x80\x9d or not. 5\nFor all of the above reasons, we conclude that the ADA does not reach beyond\nthe \xe2\x80\x9cappropriation\xe2\x80\x9d that makes \xe2\x80\x9can amount available . . . for [an] expenditure or\nobligation.\xe2\x80\x9d Because section 1345 of title 31 is not part of an appropriation, it does\nnot determine the amount available in a particular appropriation for an expenditure\nor obligation; the ADA therefore does not apply by its own force to a violation of\nsection 1345.\nC. KEVIN MARSHALL\nDeputy Assistant Attorney General\nOffice of Legal Counsel\n\n5\nAs in our 2001 ADA Opinion, we need not here resolve the applicability of the ADA to restrictions\nother than internal caps and conditions that may appear in an appropriations act. The 2001 ADA Opinion\nmentioned \xe2\x80\x9cceilings\xe2\x80\x9d as an example. 25 Op. O.L.C. at 34. It is enough that section 1345 plainly is not \xe2\x80\x9can\nappropriation\xe2\x80\x9d under any possible scope of that term. The Comptroller General has stated that an\nappropriation may be \xe2\x80\x9cexhausted\xe2\x80\x9d for purposes of section 1341(a) upon (1) the \xe2\x80\x9c[d]epletion of [an]\nappropriation account\xe2\x80\x9d; (2) the \xe2\x80\x9cdepletion of a maximum amount specifically earmarked in a lump-sum\nappropriation\xe2\x80\x9d; or (3) the \xe2\x80\x9c[d]epletion of an amount subject to a monetary ceiling imposed by some other\nstatute (usually, but not always, the relevant program legislation).\xe2\x80\x9d 2 Federal Appropriations Law at 6-41.\nThe first category is, as we have explained, the paradigmatic violation of the ADA. The second is similar\nto the scenario addressed in our 2001 ADA Opinion, although we expressly did not reach specific\nearmarks. 25 Op. O.L.C. at 34. The third, although not directly on point for section 1345, is arguably in\ntension with our conclusion. We have considered the Comptroller\xe2\x80\x99s limited precedent and brief reasoning\nin support of this third category and do not find them persuasive regarding whether the ADA applies to\nsection 1345. See, e.g., Monetary Ceilings on Minor Military Construction (10 U.S.C. \xc2\xa7 2805), 63 Comp.\nGen. 422, 424 (1984) (indicating, without further explanation, that the monetary limit in section 2805(c)\nlimited the \xe2\x80\x9camount available in an appropriation\xe2\x80\x9d under the ADA); Reconsideration of B-214172, 64\nComp. Gen. 282, 289 (1985) (without citing Monetary Ceilings, extending earlier precedents that\n\xe2\x80\x9cinvolved limitations that were contained in an appropriation act\xe2\x80\x9d to apply \xe2\x80\x9cto a limitation contained in\nauthorizing legislation\xe2\x80\x9d).\n\n70\n\n\x0cUse of Appropriated Funds to Provide Light Refreshments at EPA Conferences\n\nAPPENDIX\n\xe2\x80\xa2 Clean Air Act section 103, 42 U.S.C. \xc2\xa7 7403 (2000). The EPA has authority to\n\xe2\x80\x9cestablish a national research and development program for the prevention and\ncontrol of air pollution,\xe2\x80\x9d and, among other things, may \xe2\x80\x9cpromote the coordination\xe2\x80\x9d\nof research with private organizations, and may \xe2\x80\x9cprovide financial assistance to,\xe2\x80\x9d\n\xe2\x80\x9cmake grants to,\xe2\x80\x9d or \xe2\x80\x9ccontract with\xe2\x80\x9d appropriate public or private agencies. EPA\nalso may \xe2\x80\x9cprovide training for, and make training grants to,\xe2\x80\x9d appropriate public or\nprivate organizations or individuals. Id. \xc2\xa7 7403(a)\xe2\x80\x93(b).\n\xe2\x80\xa2 Clean Water Act section 104, 33 U.S.C. \xc2\xa7 1254 (2000). The EPA has authority\nto \xe2\x80\x9cestablish national programs for the prevention, reduction, and elimination of\npollution\xe2\x80\x9d and, among other things, may \xe2\x80\x9cpromote the coordination\xe2\x80\x9d of relevant\nactivities with appropriate public and private organizations, may \xe2\x80\x9crender technical\nservices\xe2\x80\x9d to appropriate organizations, and may \xe2\x80\x9ccooperate with,\xe2\x80\x9d \xe2\x80\x9cmake grants\nto,\xe2\x80\x9d or \xe2\x80\x9ccontract with\xe2\x80\x9d those organizations. Id. \xc2\xa7 1254(a)\xe2\x80\x93(b). EPA also may\n\xe2\x80\x9cfinance pilot programs,\xe2\x80\x9d in cooperation with appropriate public and private\nparties, of \xe2\x80\x9cmanpower development and training and retraining.\xe2\x80\x9d Id. \xc2\xa7 1254(g).\n\xe2\x80\xa2 Solid Waste Disposal Act section 8001, 42 U.S.C. \xc2\xa7 6981 (2000). EPA may\n\xe2\x80\x9cencourage, cooperate with, and render financial and other assistance to appropriate\xe2\x80\x9d public or private organizations and individuals. Id. \xc2\xa7 6981(a).\n\xe2\x80\xa2 National Environmental Policy Act section 102(2)(G), 42 U.S.C. \xc2\xa7 4332(2)(G)\n(2000). Federal agencies shall \xe2\x80\x9cmake available to States, counties, municipalities,\ninstitutions, and individuals, advice and information useful in restoring, maintaining, and enhancing the quality of the environment.\xe2\x80\x9d\n\xe2\x80\xa2 Comprehensive Environmental Response, Compensation, and Liability Act\nsection 104(k)(6), 42 U.S.C. \xc2\xa7 9604(k)(6) (2000 & Supp. III 2003). The EPA may\n\xe2\x80\x9cprovide, or fund eligible entities or nonprofit organizations to provide, training,\nresearch, and technical assistance to individuals and organizations, as appropriate.\xe2\x80\x9d In addition, under section 311, the EPA may \xe2\x80\x9center into contracts and\ncooperative agreements with, and make grants to, persons, public entities, and\nnonprofit private entities,\xe2\x80\x9d id. \xc2\xa7 9660(b)(3) (2000), and conduct \xe2\x80\x9ca program of\ntraining,\xe2\x80\x9d id. \xc2\xa7 9660(b)(9).\n\xe2\x80\xa2 Intergovernmental Personnel Act, 42 U.S.C. \xc2\xa7 4742 (2000). A federal agency\n\xe2\x80\x9cmay admit State and local government employees and officials to agency training\nprograms established for Federal professional, administrative, or technical\npersonnel.\xe2\x80\x9d Id. \xc2\xa7 4742(a).\n\xe2\x80\xa2 Government Employees Training Act, 5 U.S.C. \xc2\xa7 4110 (2000). A federal agency\nmay expend travel expenses \xe2\x80\x9cfor expenses of attendance at meetings which are\n\n71\n\n\x0cOpinions of the Office of Legal Counsel in Volume 31\n\nconcerned with the functions or activities for which the appropriation is made or\nwhich will contribute to improved conduct, supervision, or management of the\nfunctions or activities.\xe2\x80\x9d\n\n72\n\n\x0c'


b'Applicability of 18 U.S.C. \xc2\xa7 431 to Limited Partnership Interests\nin Government Leases\nA m odified version o f the proposed real estate transaction described in the February 17, 1998 opinion\nthat gives the blind trusts no interest in any governm ent contracts is perm issible under 18 U.S.C.\n\xc2\xa7431\n\nMarch 13, 1998\nM e m o r a n d u m O p in io n f o r t h e G e n e r a l C o u n s e l\nG e n e r a l S e r v ic e s A d m in is t r a t io n\n\nThis memorandum responds to your March 4, 1998 follow-up letter regarding\nour February 17, 1998 opinion on the applicability of 18 U.S.C. \xc2\xa7\xc2\xa7431-433\n(1994) to the interests o f two Members of Congress in government contracts under\na proposed real estate transaction.1 In your letter, you raise the question whether\na modified version of the transaction, as described by counsel for the interested\nentities, would be permissible under 18 U.S.C. \xc2\xa7 4 3 1.2 We conclude that the modi\xc2\xad\nfied transaction as described by counsel would not violate 18 U.S.C. \xc2\xa7431.\nOur February 17 opinion addressed several variations of a proposed transaction\nunder which certain entities would contribute their assets to a limited partnership\n(the \xe2\x80\x9c Operating Partnership\xe2\x80\x9d ), the sole general partner of which is a real estate\ninvestment trust (the \xe2\x80\x9c REIT\xe2\x80\x9d ), in exchange for cash and preferred partnership\nunits (\xe2\x80\x9c OP Units\xe2\x80\x9d ) in the Operating Partnership. Six of these entities (the \xe2\x80\x9c MOC\nEntities\xe2\x80\x9d ) are owned by trusts in which two Members of Congress have beneficial\ninterests; none of the MOC Entities currendy holds any contracts with the Federal\nGovernment. Two entities, however (the \xe2\x80\x9c non-MOC Entities\xe2\x80\x9d ), have current\nleases with federal agencies. The contribution of the non-MOC Entities\xe2\x80\x99 assets\nto the Operating Partnership has prompted the question whether the proposed\ntransaction would give the Members of Congress interests in Government con\xc2\xad\ntracts in violation of 18 U.S.C. \xc2\xa7431.\nIn our February 17 opinion, we concluded that the unmodified proposed trans\xc2\xad\naction would be prohibited by \xc2\xa7431 because of two features of the OP Units\nto be received by the MOC Entities (and hence the trusts) under the transaction.\nFirst, the preferred distribution rights in the OP Units would be ownership interests\nin the Operating Partnership, and thus in the Government contracts held by the\nPartnership. See 22 Op. O.L.C. at 35-36. And second, the right to convert the\n\n1See Applicability o f 18 V S C. \xc2\xa7\xc2\xa7431-433 to Limited Partnership Interests in Government Leases Under Proposed\nTransaction, 22 O p O L C 33 (1998).\n2 See Letter for Emily Hewitt, General Counsel, General Services Administration, from Francis L. Coolidge, Ropes\n& Gray (Mar 3, 1998) ( \xe2\x80\x9c Coolidge Letter III\xe2\x80\x9d ) As with our February 17 opinion, the facts outlined in this memo\xc2\xad\nrandum denve from information provided by you and by counsel for the entities that would contribute assets under\nthe transaction To the extent that additional facts are relevant, but have not been described to us, our conclusion\ncould change See 22 Op O L.C. at 33 n 2\n41\n\n\x0cOpinions o f the Office o f Legal Counsel in Volume 22\n\nOP Units into common units of the Operating Partnership, and ultimately into\nshares of the REIT, would itself be a prohibited ownership interest in the Govern\xc2\xad\nment contracts under \xc2\xa7 431. Id. at 36.\nUnder the proposed modified transaction, the trusts, through the MOC Entities,\nwould receive a discrete, alternate class of preferred partnership units in the Oper\xc2\xad\nating Partnership ( \xe2\x80\x9c Alternate OP U nits\xe2\x80\x9d ) rather than the OP Units. The face value\nof the Alternate OP Units would be based on the fair market value of the MOC\nEntities\xe2\x80\x99 assets, which do not include any Government contracts, and the distribu\xc2\xad\ntion rate would be set at a fixed percentage of the face value.3 Holders of the\nAlternate OP Units would be excluded from any benefit derived from any Govern\xc2\xad\nment contracts held, or to be held, by the Operating Partnership. In particular,\ndistributions made to holders of the Alternate OP Units would be reduced from\nthe stated amount to the extent that the revenues of the Operating Partnership\nless any gross revenues from Government contracts were insufficient to make\nthose payments; in addition, revenues from Government contracts would be seg\xc2\xad\nregated so that distributions to Alternate OP Unit holders, in all cases clearly\nwould be made only from revenues not derived from Government contracts. See\nCoolidge Letter III, at 2. As noted in our February 17 opinion, this modification\nensures that the trusts do not benefit from any Government contracts in the dis\xc2\xad\ntributions for the units\xe2\x80\x94 either through the receipt of actual revenues generated\nby the Government contracts or through the receipt of funds that would not have\nbeen paid but for those contracts. See 22 Op. O.L.C. at 36 n.10. Thus, the pro\xc2\xad\nposed modification avoids the first problem identified in our opinion by elimi\xc2\xad\nnating the ownership interests in the Operating Partnership\xe2\x80\x99s Government contracts\nby virtue o f limited partnership distributions.\nUnder the proposed modified transaction, the Alternate OP Units also would\nhave no rights of conversion into either common units of the Operating Partnership\nor shares of the REIT. Instead, the Alternate OP Units would be redeemable by\nthe owners solely for cash in the amount of their face value, and would be unilater\xc2\xad\nally called, at face value, by the Operating Partnership a fixed number of years\nafter the transaction occurs. See Coolidge Letter III, at 2. Because the proposed\nmodification eliminates the conversion-right feature of the OP Units, it avoids\nthe second problem identified in our February 17 opinion.\n\n3See Coolidge Letter III, at 1-2; Letter for Emily Hewitt, General Counsel, General Services Administration,\nfrom Francis L. Coolidge, Ropes & Gray (Mar. 12, 1998) (\xe2\x80\x9c Coolidge Letter IV\xe2\x80\x9d ) Although the distribution rate\nof the A lternate OP Units would be higher than that to be earned by the OP Units, counsel for the entities advises\nthat higher rate reflects solely the lack of conversion rights in the Alternate OP Units and does not in any way\nreflect com pensation for the value o f Government contracts held, o r to be held, by the Operating Partnership. See\nCoolidge Letter IV. Thus, neither the face value nor the distribution rate of the Alternate O P Units reflects the\nvalue o f G overnm ent contracts. Id\n\n42\n\n\x0cApplicability o f 18 U.S C. \xc2\xa7431 to Limited Partnership Interests in Government Leases\n\nAs modified, therefore, the proposed transaction would not give the trusts any\ninterest in Government contracts, and it would not be prohibited by \xc2\xa7431.\nBETH NOLAN\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n43\n\n\x0c'


b"AppflncaMIlntfy \xc2\xa9ff Founirillh AmnKenndinnieiiiilt to ui\xc2\xa7\xc2\xae o f ElecHrcwmSc\nB eep ers nnn TracCdmg Bamk E&olblfoeiry Band Mouney\nThe w arrantless m onitoring by law enforcem ent personnel of electronic beepers hidden in bait\nmoney robbed from a bank probably does not constitute a \xe2\x80\x9csearch\xe2\x80\x9d implicating the Fourth\nAm endm ent, even after the beeper being monitored has been taken into a home.\nOne w ho has com e into possession o f beeper-m onitored bank bait money by robbing a bank has\nno legitim ate expectation of privacy in such m oney that would be violated by the beeper\nm onitoring.\nA lthough this form o f beeper monitoring probably does not constitute a search implicating the\nFourth A m endm ent, it was recommended that the FBI should continue its practice of seeking\na w arrant w hen that form of m onitoring is undertaken. However, because exigent circum \xc2\xad\nstances justify the F B I's practice o f com m encing beeper m onitoring immediately when a\nbaited bank is robbed, the FBI is not constitutionally required to refrain from monitoring the\nbeeper until it has obtained a warrant.\n\nDecember 5, 1986\nM\n\nem orandum\n\nO\n\np in io n f o r t h e\n\nF edera l B\n\nA s s is t a n t D ir e c t o r , L e g a l C o u n s e l ,\n\nureau of\n\nIn v e s t i g a t i o n\n\nThis memorandum responds to your request for an opinion on the legality of\nthe warrantless monitoring of beepers hidden in bank robbery bait money. This\nOffice has concluded that such monitoring probably does not constitute a\n\xe2\x80\x9csearch,\xe2\x80\x9d even after a beeper has been taken into a home. Nevertheless, we\nrecognize that a court subsequently may disagree with this interpretation of the\nFourth Amendment. We therefore recommend that the FBI continue its current\npractice of seeking a warrant in every case.1\nBefore proceeding further, it is important to emphasize the narrow scope of\nthe constitutional issue presented. The installation of the beeper in the bait\nmoney clearly does not implicate the Fourth Amendment rights of the prospec\xc2\xad\ntive bank robber. Only the bank has a legitimate privacy interest in the bait\nmoney, and its consent to the installation would preclude any objection it might\nmake. United States v. Karo, 468 U.S. 705,711 (1984).2 Similarly, the transfer\nof the beeper to the bank robber does not infringe upon his legitimate expecta\xc2\xad\n1 This O ffice has been advised that the F B I\xe2\x80\x99s general p ractice, upon being informed o f a bank robbery in\nw hich a b eeper w as taken, is to seek a w arran t as soon as it is reasonably practicable to do so.\n2 W e assum e th at the installation occurs a t the direction o r suggestion o r with the cooperation of govern\xc2\xad\nm ent agents. O therw ise, o f course, the F o u rth A m endm ent w ould not apply because the Fourth Amendment\ndoes not govern private searches. United States v. Jacobsen, 466 U.S. 109, 113 (1984).\n\n138\n\n\x0ction of privacy. Id. at 712.3 Finally, even when government agents do begin\nmonitoring a beeper that has been taken from a bank, there is no \xe2\x80\x9csearch\xe2\x80\x9d if the\ninformation revealed could have been obtained through visual surveillance. See\nUnited States v. Knotts, 460 U.S. 276 (1983). Thus, the only time that the\nFourth Amendment might be implicated by the monitoring of a beeper in bait\nmoney is when the beeper is taken into a place that could not be entered\nphysically without a warrant.\nIn Karo, the Supreme Court held that using a beeper to locate a can of ether\ninside a house constituted a \xe2\x80\x9csearch\xe2\x80\x9d because it \xe2\x80\x9creveal [ed] a critical fact about\nthe interior of the premises that the Government was extremely interested in\nknowing and that it could not have otherwise obtained without a warrant.\xe2\x80\x9d 468\nU.S. at 715. The Court analogized the electronic surveillance to a physical\nentry of the home:\n[H]ad a DEA agent thought it useful to enter the Taos residence\nto verify that the ether was actually in the house and had he done\nso surreptitiously and without a warrant, there is little doubt that\nhe would have engaged in an unreasonable search within the\nmeaning of the Fourth Amendment. For purposes of the Amend\xc2\xad\nment, the result is the same where, without a warrant, the Gov\xc2\xad\nernment surreptitiously employs an electronic device to obtain\ninformation that it could not have obtained by observation from\noutside the curtilage of the house.\nId. If the Supreme Court were to carry this analogy to its logical extreme, of\ncourse, monitoring any beeper that has been taken into a residence would\nconstitute a \xe2\x80\x9csearch.\xe2\x80\x9d Fortunately, there is reason to believe that the Supreme\nCourt might not rely upon this analogy in the present situation. The Karo Court\nacknowledged that monitoring an electronic device in a home is \xe2\x80\x9cless intrusive\nthan a full scale search.\xe2\x80\x9d 468 U.S. at 715. More importantly, the Court sug\xc2\xad\ngested that a warrant to monitor a home electronically might be issued on the\nbasis of \xe2\x80\x9creasonable suspicion.\xe2\x80\x9d Id. at 718-19 n.5.4 This shows the imperfec\xc2\xad\ntion of the Court\xe2\x80\x99s analogy, for if the Court had intended to equate the\nmonitoring of a beeper in a private residence with the physical entry of the\nhome, there would have been no justification for suggesting that a warrant\nmight be issued to authorize the former in the absence of \xe2\x80\x9cprobable cause.\xe2\x80\x9d\nKaro is best understood as holding simply that the electronic surveillance at\nissue there infringed upon \xe2\x80\x9can expectation of privacy that society is prepared to\n3 In Karo , 468 U.S. at 712, the C ourt explained:\nThe m ere transfer to Karo o f a can containing an unm onitored beeper infringed no privacy\ninterest. It conveyed no inform ation that K aro wished to keep private, for it conveyed no\ninform ation at all. To be sure, it created a potential for an invasion o f privacy, but we have never\nheld that potential, as opposed to actual, invasions o f privacy constitute searches for purposes o f\nthe Fourth Amendment.\n4 In Karo , it was unnecessary for the C ourt to decide w hat level o f suspicion w ould justify the issuance o f a\nw arrant to m onitor a beeper in a home. The C ourt said that there would be \xe2\x80\x9ctim e enough to resolve the\nprobable cause/reasonable suspicion issue in a case that requires it.\xe2\x80\x9d 468 U.S. at 718-19 n.S.\n\n139\n\n\x0caccept as reasonable.\xe2\x80\x9d United States v. Jacobsen, 466 U.S. 109, 122 (1984).\nThe can of ether to which the beeper was attached was not contraband, and it\nhad been lawfully acquired. Thus, the respondent in Karo had a legitimate\nexpectation of privacy in the fact that he possessed this item in his home. If the\nCourt had reached a different conclusion, it would be constitutional for a\ngovernment agent to attach a beeper to any item and to monitor it wherever it\nwas taken.\nThis reasoning does not apply to a bank robber\xe2\x80\x99s possession of bank bait\nmoney. Unlike a person who has lawfully acquired a non-contraband item, a\nbank robber does not have a legitimate expectation that a beeper in a bait pack\nwill not be monitored in his home. A \xe2\x80\x9clegitimate\xe2\x80\x9d expectation of privacy \xe2\x80\x9cmust\nhave a source outside of the Fourth Amendment, either by reference to real or\npersonal property law or to understandings that are recognized and permitted\nby society.\xe2\x80\x9d Rakas v. Illinois, 439 U.S. 128, 143\xe2\x80\x9444 n.12 (1978). The beeper,\nof course, is attached to bait money that has been stolen from a bank. Neither\nproperty law nor any other \xe2\x80\x9cunderstanding\xe2\x80\x9d recognized by society protects an\nexpectation of privacy relating to the location of such stolen money. Admit\xc2\xad\ntedly, it may be reasonable for the bank robber to assume that government\nauthorities are not monitoring the location of a recently stolen bait pack, in\nmuch the same way that \xe2\x80\x9ca burglar plying his trade in a summer cabin during\nthe off season may have a thoroughly justified subjective expectation of\nprivacy.\xe2\x80\x9d United States v. Jacobsen, 466 U.S. at 122-23 n.22. The Supreme\nCourt has long recognized, however, that \xe2\x80\x9cthe concept of an interest in privacy\nthat society is prepared to recognize as reasonable is . . . critically different\nfrom the mere expectation . . . that certain facts will not come to the attention of\nauthorities.\xe2\x80\x9d Id. at 122.5\nThe Supreme Court\xe2\x80\x99s decision in United States v. Jacobsen, supra, bolsters\nthe argument that monitoring a beeper attached to bank robbery bait money,\neven after the beeper is taken into a home, does not implicate the Fourth\nAmendment. In Jacobsen, the Court held that testing a white powder to\ndetermine whether it was cocaine did not constitute a search. Critical to the\nCourt\xe2\x80\x99s decision was the fact that \xe2\x80\x9c[t]he field test at issue could disclose only\none fact previously unknown to the agent \xe2\x80\x94 whether or not a suspicious white\npowder was cocaine.\xe2\x80\x9d 466 U.S. at 122.6 Because Congress had decided to\n\xe2\x80\x9ctreat the interest in \xe2\x80\x98privately\xe2\x80\x99 possessing cocaine as illegitimate,\xe2\x80\x9d id. at 123,\n5 In a num ber o f cases antedating United Slates v. Karo, supra, courts found that m onitoring beepers placed\nin stolen property and contraband did not constitute a \xe2\x80\x9csearch\xe2\x80\x9d within the meaning o f the Fourth Amendment.\nSee, e.g.. United States v. Bailey, 628 F .2 d 9 3 8 ,9 4 4 (6th C ir. 1980) (\xe2\x80\x9cF or Fourth A mendment purposes, there\nis a cle ar distinction betw een contraband and other property.\xe2\x80\x9d); United States v. Moore , 562 F.2d 106, 111\n(1st C ir. 1977) (\xe2\x80\x9cW e an d o th er courts h a v e upheld the placing o f beepers, w ithout warrant, in contraband,\nstolen goods, and the like on the theory th a t the possessors o f such articles have no legitim ate expectation of\nprivacy in substances w hich they have n o right to possess at all.\xe2\x80\x9d); United States v. Perez , 526 F.2d 859, 863\n(5th C ir. 1976) (\xe2\x80\x9ca person w ho accepts an item o f personal property in exchange for heroin has no reasonable\nexpectation that it is cleansed of any dev ice designed to uncover the tainted transaction or identify the\nparties\xe2\x80\x9d ).\n6 The C ourt pointed out that the field te st could not even tel) the governm ent agent whether the substance\nw as su g ar o r talcum pow der. 466 U.S. a t 109.\n\n140\n\n\x0cgovernmental conduct revealing only whether a substance was cocaine, and no\nother arguably \xe2\x80\x9cprivate\xe2\x80\x9d fact, compromised no legitimate privacy interest.\nJacobsen suggests that monitoring a beeper placed in bank robbery bait money\ndoes not constitute a \xe2\x80\x9csearch.\xe2\x80\x9d Possession of money stolen from a bank, like\npossession of cocaine, has been made illegal, and therefore a bank robber\xe2\x80\x99s\nexpectation of privacy relating solely to the location of this stolen money is\nillegitimate.\nThe Supreme Court\xe2\x80\x99s decision in United States v. Place, 462 U.S. 696\n(1983), likewise suggests that the Constitution does not prohibit the warrant\xc2\xad\nless monitoring of a beeper in a bait pack, even after it is taken into a home. In\nPlace, the Court held that having a specially trained dog sniff personal luggage\nin order to determine whether it contains contraband does not constitute a\n\xe2\x80\x9csearch.\xe2\x80\x9d Id. at 707. There were twin rationales for the Court\xe2\x80\x99s decision. First,\nthe canine sniff reveals only one thing about the contents of the suitcase, the\npresence or absence of contraband. Second, the limited nature of the search\ninsures that the owner of the suitcase is not \xe2\x80\x9csubjected to the embarrassment\nand inconvenience entailed in less discriminate and more intrusive investiga\xc2\xad\ntive methods,\xe2\x80\x9d such as having an officer \xe2\x80\x9crummage through the contents of the\nluggage.\xe2\x80\x9d Id. These two rationales imply that monitoring a beeper that has been\ntaken into a home does not constitute a \xe2\x80\x9csearch.\xe2\x80\x9d Such monitoring reveals only\none thing, the presence or absence of an item that is possessed illegally.\nFurthermore, like the owner of the suitcase in Place, the person from whose\nhome the radio signals are emanating is not subjected to the embarrassment\nof more intrusive investigative methods, such as the physical entry of his\nresidence.\nAlthough this Office believes that monitoring a beeper that has been placed\nin bait money probably does not constitute a \xe2\x80\x9csearch,\xe2\x80\x9d we recommend that the\nFBI continue its current practice of seeking a warrant in every case. See supra\nnote 1. This does not mean that the FBI should refrain from monitoring a\nbeeper until it has obtained a warrant. When a bank is robbed, exigent circum\xc2\xad\nstances justify the FBI\xe2\x80\x99s current practice of beginning immediately to monitor\na beeper, even before a warrant is secured.7 But while one or more agents are\nmonitoring the beeper, another agent should be seeking a warrant as soon as it\nis reasonably practicable to do so.8 This course of action will avoid the\n7 If the FBI w ere to locate a bait pack in a specific residence before it had been able to obtain a w arrant, we\nfeel certain that a court would hold that this \xe2\x80\x9csearch,\xe2\x80\x9d if it is indeed a \xe2\x80\x9cs e a rc h /\xe2\x80\x99 was ju stifie d by exigent\ncircum stances. The w arrantless entry o f a home is ju stified if there is reason to believe that evidence will be\ndestroyed o r rem oved before a w arrant can be secured. See, e.g , United States v. Edwards, 602 F.2d 458 (1st\nCir. 1979); United States v Rubin, 474 F.2d 262 (3d Cir. 1973). A lthough the resolution o f this issue depends\nupon varying factual circum stances, in m ost cases it will be reasonable for FBI agents to assum e that if they\ndo not locate the beeper im m ediately, it will be rem oved or destroyed. M oreover, it is im portant to rem em ber\nthat the \xe2\x80\x9cexigent circum stances\xe2\x80\x9d exception to the warrant requirem ent justifies the physical entry of a home.\nThis O ffice believes that a court w ould be even more w illing to find that exigent circum stances justify the\n\xe2\x80\x9celectronic entry\xe2\x80\x9d o f a hom e without a warrant.\n8 The w arrant issued need not describe the \xe2\x80\x9cplace\xe2\x80\x9d to be searched. As the Suprem e C ourt recognized in\nUnited States v. Karo , 468 U.S. at 719, \xe2\x80\x9cthe location o f the place is precisely w hat is sought to be discovered\xe2\x80\x9d\nContinued\n\n141\n\n\x0cunnecessary suppression of important evidence if a court subsequently dis\xc2\xad\nagrees with our constitutional analysis. We are confident that in the foreseeable\nfuture the issue will be resolved in litigation.\nS a m u e l A . A l it o , J r .\n\nDeputy Assistant Attorney General\nOffice o f Legal Counsel\n\n* ( . . . co ntinued)\nthrough th e m onitoring o f the beeper. T herefore, an agent applying fo r a w arrant in such a case sim ply should\ndescrib e the circum stances under which th e bait pack w as taken and the length o f tim e for which beeper\nsurveillan ce is requested. See id.\n\n142\n\n\x0c"


b'March 22, 1977\n\n77-13\n\nMEMORANDUM OPINION FOR THE\nATTORNEY GENERAL\nWashington, D.C., Hostage Situation: Basis for\nFederal Jurisdiction\n\nThe United States Attorney for the District of Columbia is under the\nimmediate supervision of the Attorney General, in a chain of command\nsense, because of the Federal Government\xe2\x80\x99s responsibility for the Dis\xc2\xad\ntrict and the U.S. Attorney\xe2\x80\x99s role as chief prosecutor of crimes arising\nunder the District of Columbia Code. For this reason, and apart from\nany consideration of Federal jurisdiction based on violations of Federal\nlaw, the Attorney General has a basis on which to participate with the\nU.S. Attorney in formulating a response to situations such as this.\nSection 533 of Title 28 provides that the Attorney General may appoint\nofficials to conduct investigations regarding official matters under the\ncontrol of the Department of Justice. In our opinion, this statute pro\xc2\xad\nvides the Attorney General, at least, with authority to provide investi\xc2\xad\ngative support to local officials in connection with actions of a local\nnature within the District. This conclusion arises from the relationship\nbetween the U.S. Attorney and the Department o f Justice. This statute\ndoes not, of course, provide a basis for the assertion of Federal jurisdic\xc2\xad\ntion based on the commission of a substantive Federal offense.\nIn addition, with respect to the use of Justice Department personnel\n(the Federal Bureau of Investigation (FBI), for example) in the investi\xc2\xad\ngative stages of the hostage incident, it is our conclusion that the FBI\nguidelines do permit the Bureau to conduct an investigation to deter\xc2\xad\nmine whether a Federal substantive offense has been committed.\nFinally, it is the conclusion of this Office that four Federal statutes\nfurnish a possible basis for Federal jurisdiction, and they are as follows:\n1.\nUnder 18 U.S.C. \xc2\xa7 922(d)(4) it is unlawful for any person who has\nbeen adjudicated a mental defective or who has been committed to any\nmental institution to receive any firearm or ammunition that has been\nshipped or transported in interstate commerce. Firearms are not manu\xc2\xad\nfactured in the District. According to information we received, the\nleader of the group apparently responsible for this situation had been\n31\n\n\x0cdeclared a mental defective. On the basis of these facts, it would appear\nthat this statute was violated or that, at least, there was a reasonable\nbasis for investigating to determine whether it had been violated.\n2. Under 18 U.S.C. \xc2\xa7 231(a)(2) it is a Federal offense for one to\ntransport in commerce a firearm knowing or having reason to know or\nintending that it will be used unlawfully in furtherance of a civil\ndisorder. \xe2\x80\x9cThe term \xe2\x80\x98civil disorder\xe2\x80\x99 means any public disturbance in\xc2\xad\nvolving acts of violence by assemblages of three or more persons,\nwhich cause an immediate danger of or results in damage or injury to\nthe property or person of any other individual.\xe2\x80\x9d 18 U.S.C. \xc2\xa7 232(1).\nO ur information established that there were more than three persons\ninvolved in this incident and clearly the remaining requirements of this\ndefinition were met. Likewise, the transportation-in-commerce require\xc2\xad\nment was met by virtue o f the definition of that term in 18 U.S.C.\n\xc2\xa7 232(2) which provides as follows:\nThe term \xe2\x80\x98commerce\xe2\x80\x99 means commerce (A) between any State or\nthe District of Columbia and any place outside thereof; (B) be\xc2\xad\ntween points within any State or the District of Columbia, but\nthrough any place outside thereof; or (C) wholly within the Dis\xc2\xad\ntrict of Columbia.\nAgain, the facts available to us indicate that this statute had been\nviolated.\n3. The Riot Statute, 18 U.S.C. \xc2\xa7 2101(a)(1), provides as follows:\nW hoever travels in interstate or foreign commerce or uses any\nfacility o f interstate or foreign commerce, including, but not limit\xc2\xad\ned to, the mail, telegraph, telephone, radio, or television, with\nintent\xe2\x80\x94(A) to incite a riot; or (B) to organize, promote, encourage,\nparticipate in or carry on a riot; or (C) to commit any act of\nviolence in furtherance o f a riot; or (D) to aid or abet any person\nin inciting or participating in or carrying on a riot or committing\nany act of violence in furtherance of a riot; and who either during\nthe course o f any such travel or use or thereafter performs or\nattempts to perform any other overt act for any purpose specified\nin subparagraph (A), (B), (C), or (D) of this paragraph [is guilty of\na federal offense].\nO ur information was that the U-Haul truck used by those persons\ninstigating this incident was rented in College Park, Maryland, thus\napparently fulfilling the requirement of \xc2\xa7 2101(a)(1). The term \xe2\x80\x9criot\xe2\x80\x9d is\ndefined in \xc2\xa7 2102(a) in such a manner as to include the actions of those\ninvolved in this incident because there were acts of violence by an\nassemblage of at least three persons that constituted a clear and present\ndanger of damage or injury to the person or property of other individ\xc2\xad\nuals. Therefore, it again appeared that, based on the information availa\xc2\xad\nble to us, a Federal crime had been committed under this statute.\n32\n\n\x0c4.\nOne of the Civil Rights statutes, 18 U.S.C. \xc2\xa7245, may also come\ninto play here because of the apparently religious-based motives of the\nperpetrators of this incident, and because of the implications of their\nchoice of the B\xe2\x80\x99nai B\xe2\x80\x99rith building and The Islamic Center and the\noccupants thereof as targets for their actions. It should be noted that\nthis statute provides the weakest basis for the assertion of Federal\njurisdiction. This is because this statute is designed to cover federally\nprotected activities, such as voting, employment, jury duty in the\nUnited States courts, participation in Federal programs, education,\ntravel and the use of certain facilities in connection with travel. It does\nnot appear, or at least we did not have facts indicating, that these socalled federally protected activities were implicated by this incident\nexcept in perhaps a tangential manner.\nJohn M. H\n\narmon\n\nActing Assistant Attorney General\nOffice o f Legal Counsel\n\n33\n\n\x0c'